Exhibit 10.10


 


OFFICE LEASE


 


799 MARKET STREET


 


CFRI MARKET STREET CORP.,


 


a Delaware corporation


 


as Landlord,


 


and


 


OPEN TABLE, INC.,


 


a Delaware corporation,


 


as Tenant.


 

















 


INDEX


 


	
   

  	
   

  	
  Page(s)

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  PREMISES, BUILDING, PROJECT, AND COMMON AREAS

  	
  3

  
	
  ARTICLE 2

  	
  LEASE TERM

  	
  3

  
	
  ARTICLE 3

  	
  BASE RENT

  	
  4

  
	
  ARTICLE 4

  	
  ADDITIONAL RENT

  	
  4

  
	
  ARTICLE 5

  	
  USE OF PREMISES

  	
  10

  
	
  ARTICLE 6

  	
  SERVICES AND UTILITIES

  	
  10

  
	
  ARTICLE 7

  	
  REPAIRS

  	
  12

  
	
  ARTICLE 8

  	
  ADDITIONS AND ALTERATIONS

  	
  12

  
	
  ARTICLE 9

  	
  COVENANT AGAINST LIENS

  	
  14

  
	
  ARTICLE 10

  	
  INSURANCE

  	
  14

  
	
  ARTICLE 11

  	
  DAMAGE AND DESTRUCTION

  	
  16

  
	
  ARTICLE 12

  	
  NONWAIVER

  	
  17

  
	
  ARTICLE 13

  	
  CONDEMNATION

  	
  18

  
	
  ARTICLE 14

  	
  ASSIGNMENT AND SUBLETTING

  	
  18

  
	
  ARTICLE 15

  	
  SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF
  TRADE

  	
   

  
	
   

  	
  FIXTURES

  	
  21

  
	
  ARTICLE 16

  	
  HOLDING OVER

  	
  22

  
	
  ARTICLE 17

  	
  ESTOPPEL CERTIFICATES

  	
  22

  
	
  ARTICLE 18

  	
  SUBORDINATION

  	
  22

  
	
  ARTICLE 19

  	
  DEFAULTS; REMEDIES

  	
  23

  
	
  ARTICLE 20

  	
  COVENANT OF QUIET ENJOYMENT

  	
  25

  
	
  ARTICLE 21

  	
  LETTER OF CREDIT

  	
  25

  
	
  ARTICLE 22

  	
  SUBSTITUTION OF OTHER PREMISES

  	
  27

  
	
  ARTICLE 23

  	
  SIGNS

  	
  27

  
	
  ARTICLE 24

  	
  COMPLIANCE WITH LAW

  	
  27

  
	
  ARTICLE 25

  	
  LATE CHARGES

  	
  28

  
	
  ARTICLE 26

  	
  LANDLORD’S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT

  	
  28

  
	
  ARTICLE 27

  	
  ENTRY BY LANDLORD

  	
  28

  
	
  ARTICLE 28

  	
  INTENTIONALLY DELETED

  	
  29

  
	
  ARTICLE 29

  	
  MISCELLANEOUS PROVISIONS

  	
  29

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  A

  	
  OUTLINE OF PREMISES

  	
  1

  
	
  B

  	
  INTENTIONALLY DELETED

  	
  1

  
	
  C

  	
  FORM OF NOTICE OF LEASE TERM DATES

  	
  1

  
	
  D

  	
  RULES AND REGULATIONS

  	
  1

  
	
  E

  	
  FORM OF TENANT’S ESTOPPEL CERTIFICATE

  	
  1

  
	
  F

  	
  FORM OF LETTER OF CREDIT

  	
  1

  
				



 


i

















 


	
   

  	
  Page(s)

  
	
   

  	
   

  
	
  Alterations

  	
  12

  
	
  Base
  Rent

  	
  4

  
	
  Base
  Taxes

  	
  8

  
	
  Base
  Year

  	
  5

  
	
  Brokers

  	
  32

  
	
  Building

  	
  3

  
	
  Building
  Common Areas,

  	
  3

  
	
  Building
  Hours

  	
  10

  
	
  Common
  Areas

  	
  3

  
	
  Comparable
  Buildings

  	
  4

  
	
  Cost
  Pools

  	
  8

  
	
  Direct
  Expenses

  	
  5

  
	
  Estimate

  	
  9

  
	
  Estimate
  Statement

  	
  9

  
	
  Estimated
  Excess

  	
  9

  
	
  Excess

  	
  8

  
	
  Expense
  Year

  	
  5

  
	
  Force
  Majeure

  	
  31

  
	
  Holidays

  	
  10

  
	
  HVAC

  	
  10

  
	
  Identification
  Requirements

  	
  33

  
	
  Landlord

  	
  1

  
	
  Landlord
  Parties

  	
  14

  
	
  Landlord
  Repair Notice

  	
  16

  
	
  Lease

  	
  1

  
	
  Lease
  Commencement Date

  	
  4

  
	
  Lease
  Expiration Date

  	
  4

  
	
  Lease
  Term

  	
  3

  
	
  Lease
  Year

  	
  4

  
	
  Lines

  	
  33

  
	
  Mail

  	
  31

  
	
  Notices

  	
  31

  
	
  Operating
  Expenses

  	
  5

  
	
  Original
  Improvements

  	
  15

  
	
  Other
  Improvements

  	
  34

  
	
  Premises

  	
  3

  
	
  Project,

  	
  3

  
	
  Proposition
  13

  	
  7

  
	
  Renovations

  	
  33

  
	
  Statement

  	
  8

  
	
  Subject
  Space

  	
  18

  
	
  Summary

  	
  1

  
	
  Tax
  Expenses

  	
  7

  
	
  Tenant

  	
  1

  
	
  Tenant’s
  Share

  	
  8

  
	
  Transfer
  Notice

  	
  18

  
	
  Transferee

  	
  18

  



 


ii

















 


799 MARKET STREET


 


OFFICE LEASE


 


This
Office Lease (the “Lease”), dated
as of the date set forth in Section 1 of the Summary of Basic Lease
Information (the “Summary”),
below, is made by and between CFRI MARKET STREET CORP., a Delaware corporation  (“Landlord”),
and OPEN TABLE, INC., a Delaware
corporation (“Tenant”).


 


SUMMARY OF BASIC
LEASE INFORMATION


 


	
  TERMS OF LEASE

  	
  DESCRIPTION

  
	
   

  	
   

  
	
  1.

  	
  Date:

  	
   

  	
  March 29, 2007

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Premises

  (Article 1).

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Building:

  	
  799 Market Street

  San Francisco, California 94103

  Containing approximately 142,902 rentable square feet of office space.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Premises:

  	
  Approximately 17,120 rentable square feet of space
  located on the fourth (4th) floor of the Building, as further set forth in Exhibit A to the Office Lease.

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Lease Term

  (Article 2).

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Length of Term:

  	
  Five (5) years and five (5) months.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Lease Commencement Date:

  	
  December 1, 2007

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Lease Expiration Date:

  	
  April 30, 2013.

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Base Rent (Article 3):

  	
   

  



 


	
  Period During

  Lease Term

  	
   

  	
  Annual

  Base Rent

  	
   

  	
  Monthly

  Installment

  of Base Rent

  	
   

  	
  Annual Base

  Rent

  per Rentable

  Square Foot

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 1,
  2007 – April 30, 2010

  	
   

  	
  $

  	
  479,360.04

  	
   

  	
  $

  	
  39,946.67

  	
   

  	
  $

  	
  28.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  May 1, 2010
  – April 30, 2011

  	
   

  	
  $

  	
  582,080.04

  	
   

  	
  $

  	
  48,506.67

  	
   

  	
  $

  	
  34.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  May 1, 2011
  – April 30, 2012

  	
   

  	
  $

  	
  599,199.96

  	
   

  	
  $

  	
  49,933.33

  	
   

  	
  $

  	
  35.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  May 1, 2012
  – April 30, 2013

  	
   

  	
  $

  	
  616,320.00

  	
   

  	
  $

  	
  51,360.00

  	
   

  	
  $

  	
  36.00

  	
   

  



 

















 


	
  5.

  	
  Base Year

  (Article 4):

  	
   

  	
  Calendar year 2008.

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Tenant’s Share

  (Article 4):

  	
   

  	
  Approximately 11.9802%.

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Permitted Use

  (Article 5):

  	
   

  	
  General office use consistent with a first-class
  office building.

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Letter of Credit

  (Article 21): 

  	
   

  	
  $88,453.33.

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Intentionally deleted.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Address of Tenant

  (Section 29.18):

  	
   

  	
  Open Table, Inc.

  799 Market Street, Fourth
  (4th) Floor

  San Francisco, California
  94103

  Attention: Mr. John Orta

   

  (Prior to and after Lease Commencement Date)

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Address of Landlord

  (Section 29.18):

  	
   

  	
  See Section 29.18 of the Lease.

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Broker(s)

  (Section 29.24):

  	
   

  	
  The CAC Group

  



 


2

















 


ARTICLE 1


 


PREMISES, BUILDING,
PROJECT, AND COMMON AREAS


 


1.1                                Premises, Building, Project and Common Areas.


 


1.1.1        The Premises.  Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the premises set forth in Section 2.2
of the Summary (the “Premises”).  The outline of the Premises is set forth in Exhibit A attached hereto.  Landlord and Tenant hereby acknowledge and
agree that the rentable square footage of the Premises shall be as set forth in
Section 2.2 of the Summary and that the same shall not be subject
to re-measurement or modification.  The
parties hereto agree that the lease of the Premises is upon and subject to the
terms, covenants and conditions herein set forth, and Tenant covenants as a
material part of the consideration for this Lease to keep and perform each and
all of such terms, covenants and conditions by it to be kept and performed and
that this Lease is made upon the condition of such performance.  The parties hereto hereby acknowledge that
the purpose of Exhibit A
is to show the approximate location of the Premises in the “Building,” as that
term is defined in Section 1.1.2, below, only, and such Exhibit is
not meant to constitute an agreement, representation or warranty as to the
construction of the Premises, the precise area thereof or the specific location
of the “Common Areas,” as that term is defined in Section 1.1.3,
below, or the elements thereof or of the accessways to the Premises or the “Project,”
as that term is defined in Section 1.1.2, below.  Except as specifically set forth in this
Lease, Landlord shall not be obligated to provide or pay for any improvement
work or services related to the improvement of the Premises.  Tenant also acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty
regarding the condition of the Premises, the Building or the Project or with
respect to the suitability of any of the foregoing for the conduct of Tenant’s
business, except as specifically set forth in this Lease.  The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises and the Building were at
such time in good and sanitary order, condition and repair.


 


1.1.2        The Building and The Project.  The Premises are a part of the building set
forth in Section 2.1 of the Summary (the “Building”). 
The Building is part of an office project currently known as “799 Market
Street.”  The term “Project,” as used in this Lease, shall mean
(i) the Building and the Common Areas, and (ii) the land (which is
improved with landscaping, above ground and subterranean parking facilities and
other improvements) upon which the Building and the Common Areas are located.


 


1.1.3        Common Areas.  Tenant shall have the non-exclusive right to
use in common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions
of the Project which are provided, from time to time, for use in common by
Landlord, Tenant and any other tenants of the Project (such areas, together
with such other portions of the Project designated by Landlord, in its
discretion, including certain areas designated for the exclusive use of certain
tenants, or to be shared by Landlord and certain tenants, are collectively
referred to herein as the “Common Areas”).  The Common Areas shall consist of the “Project Common Areas” and the “Building Common Areas.”  The term “Project
Common Areas,” as used in this Lease, shall mean the portion of the
Project designated as such by Landlord. 
The term “Building Common Areas,”
as used in this Lease, shall mean the portions of the Common Areas located
within the Building designated as such by Landlord.  The manner in which the Common Areas are
maintained and operated shall be at the sole discretion of Landlord and the use
thereof shall be subject to such rules, regulations and restrictions as
Landlord may make from time to time. 
Landlord reserves the right to close temporarily, make alterations or
additions to, or change the location of elements of the Project and the Common
Areas.


 


ARTICLE 2


 


LEASE TERM


 


2.1                                In General.  The terms and provisions of this Lease shall
be effective as of the date of this Lease. 
The term of this Lease (the “Lease
Term”) shall be as set forth in Section 3.1 of the
Summary, shall commence on 


 

















 


the date set forth in Section 3.2 of the Summary (the “Lease Commencement Date”), and shall
terminate on the date set forth in Section 3.3 of the Summary (the “Lease Expiration Date”) unless this Lease
is sooner terminated as hereinafter provided. 
For purposes of this Lease, the term “Lease
Year” shall mean each consecutive twelve (12) month period during
the Lease Term, provided that the last Lease Year shall end on the Lease
Expiration Date.  At any time during the
Lease Term, Landlord may deliver to Tenant a notice in the form as set forth in
Exhibit C, attached
hereto, as a confirmation only of the information set forth therein, which
Tenant shall execute and return to Landlord within five (5) days of
receipt thereof.


 


2.2                                Early Termination Right.  Tenant hereby acknowledges and agrees that
Landlord shall have the one time right to terminate this Lease effective as of April 30,
2010 (the “Termination Date”) by
delivering a written notice to Tenant (the “Termination
Notice”) stating that Landlord elects to terminate this Lease
pursuant to the terms and conditions of this Section 2.2, provided
that Tenant receives the Termination Notice from Landlord on or before the date
which is nine (9) months prior to the Termination Date.  Landlord and Tenant hereby acknowledge and
agree that Landlord shall have the right to terminate the Lease pursuant to the
terms of this Section 2.2, only if (i) Landlord renews its
lease with Ross Stores, Inc. whether or not such renewal is pursuant to an
express written lease amendment or a new lease; (ii) Landlord enters into
any new leases with third parties for retail space in the Building; or (iii) Landlord,
elects, in its sole and absolute discretion, to perform seismic/structural
upgrades to the Building.  Tenant hereby
acknowledges and agrees that Landlord shall not be obligated to pay to Tenant
any costs, fees, or penalties in connection with Landlord’s election to
terminate this Lease.  Notwithstanding
the foregoing, in the event that Landlord elects to terminate this Lease,
Tenant shall not be obligated to pay any Base Rent otherwise attributable to
the Premises for the full calendar months of March and April 2010.  Landlord and Tenant acknowledge that the
aggregate amount of such abatement of Base Rent equals Seventy-Nine Thousand
Eight Hundred Ninety-Three and 34/100 Dollars ($79,893.34).  Provided that Landlord terminates this Lease
pursuant to the terms of this Section 2.2, this Lease shall
automatically terminate and be of no further force or effect and Landlord and
Tenant shall be relieved of their respective obligations under this Lease as of
the Termination Date, except those obligations set forth in this Lease which
specifically survive the expiration or earlier termination of this Lease,
including, without limitation, the payment by Tenant of all amounts owed by
Tenant under this Lease, up to and including the Termination Date.


 


ARTICLE 3


 


BASE RENT


 


Tenant
shall pay, without prior notice or demand, to Landlord or Landlord’s agent at
the management office of the Project, or, at Landlord’s option, at such other
place as Landlord may from time to time designate in writing, by a check for
currency (or by any other method as Landlord may designate from time to time)
which, at the time of payment, is legal tender for private or public debts in
the United States of America, base rent (“Base
Rent”) as set forth in Section 4 of the Summary, payable
in equal monthly installments as set forth in Section 4 of the
Summary  in advance on or before the
first day of each and every calendar month during the Lease Term, without any
setoff or deduction whatsoever.  The Base
Rent for the first full month of the Lease Term which occurs after the
expiration of any free rent period shall be paid at the time of Tenant’s
execution of this Lease.  If any Rent
payment date (including the Lease Commencement Date) falls on a day of the
month other than the first day of such month or if any payment of Rent is for a
period which is shorter than one month, the Rent for any fractional month shall
accrue on a daily basis for the period from the date such payment is due to the
end of such calendar month or to the end of the Lease Term at a rate per day
which is equal to 1/365 of the applicable annual Rent.  All other payments or adjustments required to
be made under the terms of this Lease that require proration on a time basis
shall be prorated on the same basis.


 


ARTICLE 4


 


ADDITIONAL RENT


 


4.1                                General Terms.  In addition to paying the Base Rent specified
in Article 3 of this Lease, Tenant shall pay “Tenant’s Share” of the annual “Direct Expenses,” as those terms are
defined in Sections 4.2.6 and 4.2.2 of this Lease, respectively, which
are in excess of the amount of Direct Expenses applicable to the “Base Year,” as 


 


4

















 


that term is defined in Section 4.2.1, below; provided,
however, that in no event shall any decrease in Direct Expenses for any “Expense Year,” as that term is defined in Section 4.2.3
below, below Direct Expenses for the Base Year entitle Tenant to any decrease
in Base Rent or any credit against sums due under this Lease.  Such payments by Tenant, together with any
and all other amounts payable by Tenant to Landlord pursuant to the terms of
this Lease, are hereinafter collectively referred to as the “Additional Rent”, and the Base Rent and the
Additional Rent are herein collectively referred to as “Rent.” 
All amounts due under this Article 4 as Additional Rent
shall be payable for the same periods and in the same manner as the Base
Rent.  Without limitation on other
obligations of Tenant which survive the expiration of the Lease Term, the obligations
of Tenant to pay the Additional Rent provided for in this Article 4
shall survive the expiration of the Lease Term.


 


4.2                                Definitions of Key Terms Relating to Additional Rent.  As used in this Article 4, the
following terms shall have the meanings hereinafter set forth:


 


4.2.1        “Base Year” shall mean the period set forth
in Section 5 of the Summary.


 


4.2.2        “Direct Expenses” shall mean “Operating Expenses” and “Tax Expenses.”


 


4.2.3        “Expense Year” shall mean each calendar year
in which any portion of the Lease Term falls, through and including the
calendar year in which the Lease Term expires, provided that Landlord, upon
notice to Tenant, may change the Expense Year from time to time to any other
twelve (12) consecutive month period, and, in the event of any such change,
Tenant’s Share of Direct Expenses shall be equitably adjusted for any Expense
Year involved in any such change.


 


4.2.4        “Operating Expenses” shall mean all
expenses, costs and amounts of every kind and nature which Landlord pays or accrues
during any Expense Year because of or in connection with the ownership,
management, maintenance, security, repair, replacement, restoration or
operation of the Project, or any portion thereof.  Without limiting the generality of the
foregoing, Operating Expenses shall specifically include any and all of the
following:  (i) the cost of
supplying all utilities, the cost of operating, repairing, maintaining, and
renovating the utility, telephone, mechanical, sanitary, storm drainage, and
elevator systems, and the cost of maintenance and service contracts in
connection therewith; (ii) the cost of licenses, certificates, permits and
inspections and the cost of contesting any governmental enactments which may
affect Operating Expenses, and the costs incurred in connection with a
governmentally mandated transportation system management program or similar
program; (iii) the cost of all insurance carried by Landlord in connection
with the Project as reasonably determined by Landlord; (iv) the cost of
landscaping, relamping, and all supplies, tools, equipment and materials used
in the operation, repair and maintenance of the Project, or any portion
thereof; (v) the cost of parking area operation, repair, restoration, and
maintenance; (vi) fees and other costs, including management and/or
incentive fees, consulting fees, legal fees and accounting fees, of all
contractors and consultants in connection with the management, operation,
maintenance and repair of the Project; (vii) payments under any equipment
rental agreements and the fair rental value of any management office space; (viii) subject
to item (f), below, wages, salaries and other compensation and benefits,
including taxes levied thereon, of all persons engaged in the operation,
maintenance and security of the Project; (ix) costs under any instrument
pertaining to the sharing of costs by the Project; (x) operation, repair,
maintenance and replacement of all systems and equipment and components thereof
of the Project; (xi) the cost of janitorial, alarm, security and other
services, replacement of wall and floor coverings, ceiling tiles and fixtures
in common areas, maintenance and replacement of curbs and walkways, repair to
roofs and re-roofing; (xii) amortization (including interest on the unamortized
cost) over such period of time as Landlord shall reasonably determine, of the
cost of acquiring or the rental expense of personal property used in the
maintenance, operation and repair of the Project, or any portion thereof;
(xiii) the cost of capital improvements or other costs incurred in connection
with the Project (A) which are intended to effect economies in the
operation or maintenance of the Project, or any portion thereof, or to reduce
current or future Operating Expenses or to enhance the safety or security of
the Project or its occupants, (B) that are required to comply with present
or anticipated conservation programs, (C) which are replacements or
modifications of nonstructural items located in the Common Areas required to
keep the Common Areas in good order or condition, or (D) that are required
under any governmental law or regulation; provided, however, that any capital
expenditure shall be amortized (including interest on the amortized cost) over
such period of time as Landlord shall reasonably determine; and (xiv) 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 


 


5

















 


removal, community services, or other services which do not constitute “Tax
Expenses” as that term is defined in Section 4.2.5, below,
(xv) cost of tenant relation programs reasonably established by Landlord,
and (xvi) payments under any easement, license, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the sharing of
costs by the Building, including, without limitation, any covenants, conditions
and restrictions affecting the property, and reciprocal easement agreements
affecting the property, any parking licenses, and any agreements with transit
agencies affecting the Property (collectively, “Underlying Documents”).  Notwithstanding the foregoing, for purposes
of this Lease, Operating Expenses shall not, however, include:


 


(a)           costs,
including legal fees (i.e., legal fees incurred by Landlord resulting from
Landlord’s dispute with tenants of the Building), space planners’ fees,
advertising and promotional expenses (except as otherwise set forth above), and
brokerage fees incurred in connection with the original construction or
development, or original or future leasing of the Project, and costs, including
permit, license and inspection costs, incurred with respect to the installation
of tenant improvements made for new tenants initially occupying space in the
Project after the Lease Commencement Date or incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Project (excluding, however, such costs
relating to any common areas of the Project or parking facilities);


 


(b)           except
as set forth in items (xii), (xiii), and (xiv) above, depreciation, interest
and principal payments on mortgages and other debt costs, if any, penalties and
interest, costs of capital repairs and alterations, and costs of capital
improvements and equipment;


 


(c)           costs
for which the Landlord is reimbursed by any tenant or occupant of the Project
or by insurance by its carrier or any tenant’s carrier or by anyone else, and
electric power costs for which any tenant directly contracts with the local
public service company;


 


(d)           any
bad debt loss, rent loss, or reserves for bad debts or rent loss;


 


(e)           costs
associated with the operation of the business of the partnership or entity
which constitutes the Landlord, as the same are distinguished from the costs of
operation of the Project (which shall specifically include, but not be limited
to, accounting costs associated with the operation of the Project).  Costs associated with the operation of the
business of the partnership or entity which constitutes the Landlord include
costs of partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of the Tenant may be in
issue), costs of selling, syndicating, financing, mortgaging or hypothecating
any of the Landlord’s interest in the Project, and costs incurred in connection
with any disputes between Landlord and its employees, between Landlord and
Project management, or between Landlord and other tenants or occupants;


 


(f)            the
wages and benefits of any employee who does not devote substantially all of his
or her employed time to the Project unless such wages and benefits are prorated
to reflect time spent on operating and managing the Project vis-a-vis time
spent on matters unrelated to operating and managing the Project; provided,
that in no event shall Operating Expenses for purposes of this Lease include
wages and/or benefits attributable to personnel above the level of Project
manager;


 


(g)           amount
paid as ground rental for the Project by the Landlord;


 


(h)           except
for a Project management fee, below, overhead and profit increment paid to the
Landlord or to subsidiaries or affiliates of the Landlord for services in the
Project to the extent the same exceeds the costs of such services rendered by
qualified, first-class unaffiliated third parties on a competitive basis;


 


(i)            any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by the Landlord (which shall specifically exclude the
parking facilities), provided that any compensation paid to any concierge at
the Project shall be includable as an Operating Expense;


 


6

















 


(j)            rentals
and other related expenses incurred in leasing air conditioning systems,
elevators or other equipment which if purchased the cost of which would be
excluded from Operating Expenses as a capital cost, except equipment not
affixed to the Project which is used in providing janitorial or similar
services and, further excepting from this exclusion such equipment rented or
leased to remedy or ameliorate an emergency condition in the Project ;


 


(k)           all
items and services for which Tenant or any other tenant in the Project
reimburses Landlord or which Landlord provides selectively to one or more
tenants (other than Tenant) without reimbursement;


 


(l)            any
costs expressly excluded from Operating Expenses elsewhere in this Lease;


 


(m)          rent
for any office space occupied by Project management personnel to the extent the
size or rental rate of such office space exceeds the size or fair market rental
value of office space occupied by management personnel of the comparable
buildings in the vicinity of the Building, with adjustment where appropriate
for the size of the applicable project; and


 


(n)           costs
arising from the gross negligence or willful misconduct of Landlord or its
agents, employees, vendors, contractors, or providers of materials or services.


 


If
Landlord is not furnishing any particular work or service (the cost of which,
if performed by Landlord, would be included in Operating Expenses) to a tenant
who has undertaken to perform such work or service in lieu of the performance
thereof by Landlord, Operating Expenses shall be deemed to be increased by an
amount equal to the additional Operating Expenses which would reasonably have
been incurred during such period by Landlord if it had at its own expense
furnished such work or service to such tenant. 
If the Project is not fully occupied during all or a portion of the Base
Year or any Expense Year, Landlord shall make an appropriate adjustment to the
components of Operating Expenses for such year to determine the amount of
Operating Expenses that would have been incurred had the Project been fully occupied;
and the amount so determined shall be deemed to have been the amount of
Operating Expenses for such year. 
Operating Expenses for the Base Year shall not include market-wide cost
increases due to extraordinary circumstances, including, but not limited to,
Force Majeure, boycotts, strikes, conservation surcharges, embargoes or
shortages, or amortized costs relating to capital improvements.  In no event shall the components of Direct
Expenses for any Expense Year related to Project insurance, security or utility
costs be less than the components of Direct Expenses related to Project
insurance, security or utility costs, respectively, in the Base Year.


 


4.2.5                      Taxes.


 


4.2.5.1     “Tax Expenses” shall mean all federal,
state, county, or local governmental or municipal taxes, fees, charges or other
impositions of every kind and nature, whether general, special, ordinary or
extraordinary, (including, without limitation, real estate taxes, general and
special assessments, transit taxes, leasehold taxes or taxes based upon the
receipt of rent, including gross receipts or sales taxes applicable to the
receipt of rent, unless required to be paid by Tenant, personal property taxes
imposed upon the fixtures, machinery, equipment, apparatus, systems and
equipment, appurtenances, furniture and other personal property used in
connection with the Project, or any portion thereof), which shall be paid or
accrued during any Expense Year (without regard to any different fiscal year
used by such governmental or municipal authority) because of or in connection
with the ownership, leasing and operation of the Project, or any portion
thereof.


 


4.2.5.2     Tax
Expenses shall include, without limitation: 
(i) Any tax on the rent, right to rent or other income from the
Project, or any portion thereof, or as against the business of leasing the
Project, or any portion thereof; (ii) Any assessment, tax, fee, levy or
charge in addition to, or in substitution, partially or totally, of any
assessment, tax, fee, levy or charge previously included within the definition
of real property tax, it being acknowledged by Tenant and Landlord that
Proposition 13 was adopted by the voters of the State of California in the June 1978
election (“Proposition 13”) and
that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street, sidewalk
and road maintenance, refuse removal and for other governmental services
formerly provided without charge to property owners or occupants, and, in 


 


7

















 


further recognition of the decrease in the level and quality of
governmental services and amenities as a result of Proposition 13, Tax Expenses
shall also include any governmental or private assessments or the Project’s
contribution towards a governmental or private cost-sharing agreement for the
purpose of augmenting or improving the quality of services and amenities
normally provided by governmental agencies; (iii) Any assessment, tax,
fee, levy, or charge allocable to or measured by the area of the Premises or
the Rent payable hereunder, including, without limitation, any business or
gross income tax or excise tax with respect to the receipt of such rent, or
upon or with respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises, or
any portion thereof; and (iv) Any assessment, tax, fee, levy or charge,
upon this transaction or any document to which Tenant is a party, creating or
transferring an interest or an estate in the Premises.


 


4.2.5.3     Any
costs and expenses (including, without limitation, reasonable attorneys’ and
consultants’ fees) incurred in attempting to protest, reduce or minimize Tax
Expenses shall be included in Tax Expenses in the Expense Year such expenses
are incurred.  Tax refunds shall be
credited against Tax Expenses and refunded to Tenant regardless of when
received, based on the Expense Year to which the refund is applicable, provided
that in no event shall the amount to be refunded to Tenant for any such Expense
Year exceed the total amount paid by Tenant as Additional Rent under this Article 4
for such Expense Year.  If Tax Expenses
for any period during the Lease Term or any extension thereof are increased
after payment thereof for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, Tenant shall
pay Landlord upon demand Tenant’s Share of any such increased Tax
Expenses.  Notwithstanding anything to
the contrary contained in this Section 4.2.5 (except as set forth
in Section 4.2.5.1, above), there shall be excluded from Tax
Expenses (i) all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal
and state income taxes, and other taxes to the extent applicable to Landlord’s
general or net income (as opposed to rents, receipts or income attributable to
operations at the Project), (ii) any items included as Operating Expenses,
and (iii) any items paid by Tenant under Section 4.5 of this
Lease.


 


4.2.5.4     The
amount of Tax Expenses for the Base Year attributable to the valuation of the
Project, inclusive of tenant improvements, shall be known as the “Base Taxes”.  If in any comparison year subsequent to the
Base Year, the amount of Tax Expenses decreases below the amount of Base Taxes,
then for purposes of all subsequent comparison years, including the comparison
year in which such decrease in Tax Expenses occurred, the Base Taxes, and
therefore the Base Year, shall be decreased by an amount equal to the decrease
in Tax Expenses.


 


4.2.6                      “Tenant’s Share” shall mean the percentage
set forth in Section 6 of the Summary.


 


4.3                                Cost Pools.  Landlord shall have the right, from time to
time, to equitably allocate some or all of the Direct Expenses for the Project
among different portions or occupants of the Project (the “Cost Pools”), in Landlord’s reasonable
discretion.  Such Cost Pools may include,
but shall not be limited to, the office space tenants of a building of the
Project or of the Project, and the retail space tenants of a building of the
Project or of the Project.  The Direct
Expenses within each such Cost Pool shall be allocated and charged to the tenants
within such Cost Pool in an equitable manner.


 


4.4                                Calculation and Payment of Additional Rent.  If for any Expense Year ending or commencing
within the Lease Term, Tenant’s Share of Direct Expenses for such Expense Year
exceeds Tenant’s Share of Direct Expenses applicable to the Base Year, then
Tenant shall pay to Landlord, in the manner set forth in Section 4.4.1,
below, and as Additional Rent, an amount equal to the excess (the “Excess”).


 


4.4.1                      Statement of Actual Direct Expenses and Payment by
Tenant.  Landlord shall
endeavor to give to Tenant following the end of each Expense Year, a statement
(the “Statement”) which shall
state the Direct Expenses incurred or accrued for such preceding Expense Year,
and which shall indicate the amount of the Excess.  Upon receipt of the Statement for each
Expense Year commencing or ending during the Lease Term, if an Excess is
present, Tenant shall pay, with its next installment of Base Rent due, the full
amount of the Excess for such Expense Year, less the amounts, if any, paid
during such Expense Year as “Estimated Excess,”
as that term is defined in Section 4.4.2, below, and if Tenant paid
more as Estimated Excess than the actual Excess, Tenant shall receive a credit
in the amount of Tenant’s overpayment against Rent next due under this
Lease.  The failure of


 


8














 


Landlord to timely furnish the Statement for any Expense Year shall not
prejudice Landlord or Tenant from enforcing its rights under this Article 4.  Even though the Lease Term has expired and
Tenant has vacated the Premises, when the final determination is made of Tenant’s
Share of Direct Expenses for the Expense Year in which this Lease terminates,
if an Excess if present, Tenant shall immediately pay to Landlord such amount,
and if Tenant paid more as Estimated Excess than the actual Excess, Landlord shall,
within thirty (30) days, deliver a check payable to Tenant in the amount of the
overpayment.  The provisions of this Section 4.4.1
shall survive the expiration or earlier termination of the Lease Term.


 


4.4.2        Statement of Estimated Direct Expenses.  In addition, Landlord shall endeavor to give
Tenant a yearly expense estimate statement (the “Estimate Statement”) which shall set forth Landlord’s
reasonable estimate (the “Estimate”)
of what the total amount of Direct Expenses for the then-current Expense Year
shall be and the estimated excess (the “Estimated
Excess”) as calculated by comparing the Direct Expenses for such
Expense Year, which shall be based upon the Estimate, to the amount of Direct
Expenses for the Base Year.  The failure
of Landlord to timely furnish the Estimate Statement for any Expense Year shall
not preclude Landlord from enforcing its rights to collect any Estimated Excess
under this Article 4, nor shall Landlord be prohibited from
revising any Estimate Statement or Estimated Excess theretofore delivered to
the extent necessary.  Thereafter, Tenant
shall pay, with its next installment of Base Rent due, a fraction of the
Estimated Excess for the then-current Expense Year (reduced by any amounts paid
pursuant to the last sentence of this Section 4.4.2).  Such fraction shall have as its numerator the
number of months which have elapsed in such current Expense Year, including the
month of such payment, and twelve (12) as its denominator.  Until a new Estimate Statement is furnished
(which Landlord shall have the right to deliver to Tenant at any time), Tenant
shall pay monthly, with the monthly Base Rent installments, an amount equal to
one-twelfth (1/12) of the total Estimated Excess set forth in the previous
Estimate Statement delivered by Landlord to Tenant.


 


4.5                               Taxes and Other Charges for Which Tenant Is Directly
Responsible.


 


4.5.1        Tenant
shall be liable for and shall pay ten (10) days before delinquency, taxes
levied against Tenant’s equipment, furniture, fixtures and any other personal
property located in or about the Premises. 
If any such taxes on Tenant’s equipment, furniture, fixtures and any
other personal property are levied against Landlord or Landlord’s property or
if the assessed value of Landlord’s property is increased by the inclusion
therein of a value placed upon such equipment, furniture, fixtures or any other
personal property and if Landlord pays the taxes based upon such increased
assessment, which Landlord shall have the right to do regardless of the
validity thereof but only under proper protest if requested by Tenant, Tenant
shall upon demand repay to Landlord the taxes so levied against Landlord or the
proportion of such taxes resulting from such increase in the assessment, as the
case may be.


 


4.5.2        If
the tenant improvements in the Premises, whether installed and/or paid for by
Landlord or Tenant and whether or not affixed to the real property so as to
become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which tenant improvements conforming to
Landlord’s “building standard” in
other space in the Building are assessed, then the Tax Expenses levied against
Landlord or the property by reason of such excess assessed valuation shall be
deemed to be taxes levied against personal property of Tenant and shall be
governed by the provisions of Section 4.5.1, above.


 


4.5.3        Notwithstanding
any contrary provision herein, Tenant shall pay prior to delinquency any (i) rent
tax or sales tax, service tax, transfer tax or value added tax, or any other
applicable tax on the rent or services herein or otherwise respecting this
Lease, (ii) taxes assessed upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion of the Project, including
the Project parking facility; or (iii) taxes assessed upon this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises.


 


9

















 


ARTICLE 5


 


USE OF PREMISES


 


5.1                               Permitted Use.  Tenant shall use the Premises solely for the
Permitted Use set forth in Section 7 of the Summary and Tenant
shall not use or permit the Premises or the Project to be used for any other
purpose or purposes whatsoever without the prior written consent of Landlord,
which may be withheld in Landlord’s sole discretion.


 


5.2                               Prohibited Uses.  Tenant further covenants and agrees that
Tenant shall not use, or suffer or permit any person or persons to use, the
Premises or any part thereof for any use or purpose contrary to the provisions
of the Rules and Regulations set forth in Exhibit D, attached hereto, or in violation of the
laws of the United States of America, the State of California, the ordinances,
regulations or requirements of the local municipal or county governing body or
other lawful authorities having jurisdiction over the Project) including,
without limitation, any such laws, ordinances, regulations or requirements
relating to hazardous materials or substances, as those terms are defined by
applicable laws now or hereafter in effect, or any Underlying Documents.  A violation of the Rules and Regulations
by Tenant shall be deemed a default under this Article 5.  Tenant shall not do or permit anything to be
done in or about the Premises which will in any way damage the reputation of
the Project or obstruct or interfere with the rights of other tenants or
occupants of the Building, or injure or annoy them or use or allow the Premises
to be used for any improper, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the
Premises.  Tenant shall comply with, and
Tenant’s rights and obligations under the Lease and Tenant’s use of the
Premises shall be subject and subordinate to, all recorded easements,
covenants, conditions, and restrictions now or hereafter affecting the Project.


 


ARTICLE 6


 


SERVICES AND UTILITIES


 


6.1                               Standard Tenant Services.  Landlord shall provide the following services
on all days (unless otherwise stated below) during the Lease Term.


 


6.1.1        Subject
to limitations imposed by all governmental rules, regulations and guidelines
applicable thereto, Landlord shall provide heating and air conditioning (“HVAC”) when necessary for normal comfort
for normal office use in the Premises from 7:00 A.M. to
7:00 P.M. Monday through Friday (the “Building
Hours”), except for the date of observation of New Year’s Day,
Independence Day, Labor Day, Memorial Day, Thanksgiving Day, Christmas Day and,
at Landlord’s discretion, other locally or nationally recognized holidays which
are observed by other buildings comparable to and in the vicinity of the
Building (collectively, the “Holidays”).


 


6.1.2        Landlord
shall provide adequate electrical wiring and facilities for connection to
Tenant’s lighting fixtures and incidental use equipment, provided that (i) the
connected electrical load of the incidental use equipment does not exceed an
average of four (4) watts per usable square foot of the Premises during
Building Hours calculated on a monthly basis, and the electricity so furnished
for incidental use equipment will be at a nominal one hundred twenty (120)
volts and no electrical circuit for the supply of such incidental use equipment
will require a current capacity exceeding twenty (20) amperes, and (ii) the
connected electrical load of Tenant’s lighting fixtures does not exceed an
average of four (4) watt per usable square foot of the Premises during
Building Hours calculated on a monthly basis, and the electricity so furnished
for Tenant’s lighting will be at a nominal two hundred seventy-seven (277)
volts, which electrical usage shall be subject to applicable laws and
regulations, including Title 24.  Tenant
shall bear the cost of replacement of lamps, starters and ballasts for
non-Building standard lighting fixtures within the Premises.


 


6.1.3        Landlord
shall provide city water from the regular Building outlets for drinking,
lavatory and toilet purposes in the Building Common Areas.


 


10

















 


6.1.4        Landlord
shall provide janitorial services to the Premises, except for weekends and the
date of observation of the Holidays, in and about the Premises and window
washing services in a manner consistent with other comparable buildings in the
vicinity of the Building.


 


6.1.5        Landlord
shall provide nonexclusive, non-attended automatic passenger elevator service
during the Building Hours, shall have one elevator available at all other
times, including on the Holidays.


 


6.1.6        Landlord
shall provide nonexclusive freight elevator service subject to scheduling by
Landlord.


 


Tenant shall cooperate fully with Landlord at all
times and abide by all regulations and requirements that Landlord may reasonably
prescribe for the proper functioning and protection of the HVAC, electrical,
mechanical and plumbing systems.


 


6.2                               Overstandard Tenant Use.  Tenant shall not, without Landlord’s prior
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
Building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section 6.1
of this Lease.  If Tenant uses water,
electricity, heat or air conditioning in excess of that supplied by Landlord
pursuant to Section 6.1 of this Lease, Tenant shall pay to
Landlord, upon billing, the actual cost of such excess consumption, the cost of
the installation, operation, and maintenance of equipment which is installed in
order to supply such excess consumption, and the cost of the increased wear and
tear on existing equipment caused by such excess consumption; and Landlord may
install devices to separately meter any increased use and in such event Tenant
shall pay the increased cost directly to Landlord, on demand, at the rates
charged by the public utility company furnishing the same, including the cost
of installing, testing and maintaining of such additional metering
devices.  Tenant’s use of electricity
shall never exceed the capacity of the feeders to the Project or the risers or
wiring installation, and subject to the terms of Section 29.31,
below, Tenant shall not install or use or permit the installation or use of any
computer or electronic data processing equipment in the Premises (other than
normal personal desktop or portable personal computers), without the prior
written consent of Landlord.  If Tenant
desires to use heat, ventilation or air conditioning during hours other than
those for which Landlord is obligated to supply such utilities pursuant to the
terms of Section 6.1 of this Lease, Tenant shall give Landlord such
prior notice, if any, as Landlord shall from time to time establish as
appropriate, of Tenant’s desired use in order to supply such utilities, and
Landlord shall supply such utilities to Tenant at such hourly cost per zone to
Tenant (which shall be treated as Additional Rent) as Landlord shall from time
to time establish.


 


6.3                               Interruption of Use.  Tenant agrees that Landlord shall not be
liable for damages, by abatement of Rent or otherwise, for failure to furnish
or delay in furnishing any service (including telephone and telecommunication
services), or for any diminution in the quality or quantity thereof, when such
failure or delay or diminution is occasioned, in whole or in part, by breakage,
repairs, replacements, or improvements, by any strike, lockout or other labor
trouble, by inability to secure electricity, gas, water, or other fuel at the
Building or Project after reasonable effort to do so, by any riot or other
dangerous condition, emergency, accident or casualty whatsoever, by act or
default of Tenant or other parties, or by any other cause beyond Landlord’s
reasonable control; and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of Tenant’s use and possession
of the Premises or relieve Tenant from paying Rent or performing any of its
obligations under this Lease. 
Furthermore, Landlord shall not be liable under any circumstances for a
loss of, or injury to, property or for injury to, or interference with, Tenant’s
business, including, without limitation, loss of profits, however occurring,
through or in connection with or incidental to a failure to furnish any of the
services or utilities as set forth in this Article 6.


 


6.4                               Abatement of Rent.  Notwithstanding anything to the contrary
contained in this Lease, in the event that Tenant is prevented from using, and
does not use the Premises or any portion thereof, as a result of (i) any
repair, maintenance, alteration or Renovations (as defined in Section 29.29,
below) performed by Landlord, or which Landlord failed to perform, after the
Lease Commencement Date and required by this Lease, which substantially
interferes with Tenant’s use of or ingress to or egress from the Building or
Premises; or (ii) any failure of or unavailability to Tenant of services,
utilities or ingress to and egress from the Building or Premises (any such 


 


11

















 


set of circumstances as set forth in items (i) and (ii) above
to be known as an “Abatement Event”),
then Tenant shall give Landlord notice of such Abatement Event, and if such
Abatement Event continues for five (5) consecutive business days after
Landlord’s receipt of any such notice (the “Eligibility
Period”) then the Base Rent and Tenant’s Share of Operating Expenses
and Tax Expenses shall be abated or reduced, as the case may be, after
expiration of the Eligibility Period for such time that Tenant continues to be
so prevented from using, and does not use, the Premises, or a portion thereof,
in the proportion that the rentable area of the portion of the Premises that
Tenant is prevented from using, and does not use (“Unusable
Area”), bears to the total rentable area of the Premises.  In the event that Tenant is prevented from
using, and does not use, the Unusable Area for a period of time in excess of
the Eligibility Period and the remaining portion of the Premises is not
sufficient to allow Tenant to effectively conduct its business therein, and if
Tenant does not conduct its business from such remaining portion, then for such
time after expiration of the Eligibility Period during which Tenant is so
prevented from effectively conducting its business therein, the Base Rent and
Tenant’s Share of Operating Expenses and Tax Expenses for the entire Premises
shall be abated for such time as Tenant continues to be so prevented from
using, and does not use, the Premises. 
If, however, Tenant reoccupies any portion of the Premises during such
period, the Rent allocable to such reoccupied portion, based on the proportion
that the rentable area of such reoccupied portion of the Premises bears to the
total rentable area of the Premises, shall be payable by Tenant from the date
Tenant reoccupies such portion of the Premises.


 


ARTICLE 7


 


REPAIRS


 


Tenant shall, at Tenant’s own expense, keep the Premises,
including all improvements, fixtures, furnishings, and systems and equipment
therein (including, without limitation, plumbing fixtures and equipment such as
dishwashers, garbage disposals, and insta-hot dispensers), and the floor or
floors of the Building on which the Premises are located, in good order, repair
and condition at all times during the Lease Term.  In addition, Tenant shall, at Tenant’s own
expense, but under the supervision and subject to the prior approval of
Landlord, and within any reasonable period of time specified by Landlord,
promptly and adequately repair all damage to the Premises and replace or repair
all damaged, broken, or worn fixtures and appurtenances, except for damage
caused by ordinary wear and tear or beyond the reasonable control of
Tenant;  provided however, that, if
Tenant fails to make such repairs, Landlord may, but need not, make such
repairs and replacements, and Tenant shall pay Landlord the cost thereof,
including a percentage of the cost thereof (to be uniformly established for the
Building and/or the Project) sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs or expenses arising from Landlord’s
involvement with such repairs and replacements forthwith upon being billed for same.  Notwithstanding the foregoing, Landlord shall
be responsible for repairs to the exterior walls, foundation and roof of the
Building, the structural portions of the floors of the Building, and the base
building systems and equipment of the Building, except to the extent that such
repairs are required due to the negligence or willful misconduct of Tenant;
provided, however, that if such repairs are due to the negligence or willful
misconduct of Tenant, Landlord shall nevertheless make such repairs at Tenant’s
expense, or, if covered by Landlord’s insurance, Tenant shall only be obligated
to pay any deductible in connection therewith. 
Landlord may, but shall not be required to, enter the Premises at all
reasonable times to make such repairs, alterations, improvements or additions
to the Premises or to the Project or to any equipment located in the Project as
Landlord shall desire or deem necessary or as Landlord may be required to do by
governmental or quasi-governmental authority or court order or decree.  Tenant hereby waives any and all rights under
and benefits of subsection 1 of Section 1932 and Sections 1941 and 1942 of
the California Civil Code or under any similar law, statute, or ordinance now
or hereafter in effect.


 


ARTICLE 8


 


ADDITIONS AND ALTERATIONS


 


8.1                               Landlord’s Consent to Alterations.  Tenant may not make any improvements,
alterations, additions or changes to the Premises or any mechanical, plumbing
or HVAC facilities or systems pertaining to the Premises (collectively, the “Alterations”) without first procuring the
prior written consent of Landlord to such Alterations, which consent shall be
requested by Tenant not less than thirty (30) days prior to the commencement
thereof, and which consent shall not be unreasonably withheld by Landlord,
provided it shall be deemed reasonable 


 


12

















 


for Landlord to withhold its consent to any Alteration which adversely
affects the structural portions or the systems or equipment of the Building or
is visible from the exterior of the Building. 
Notwithstanding the foregoing, Tenant shall be permitted to make
Alterations following ten (10) business days notice to Landlord, but
without Landlord’s prior consent, to the extent that such Alterations are
decorative only (i.e., installation of carpeting
or painting of the Premises).


 


8.2                               Manner of Construction.  Landlord may impose, as a condition of its
consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its reasonable discretion may deem
desirable, including, but not limited to, the requirement that Tenant utilize
for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list provided and approved by Landlord,
the requirement that upon Landlord’s request, Tenant shall, at Tenant’s
expense, remove such Alterations upon the expiration or any early termination
of the Lease Term.  Tenant shall
construct such Alterations and perform such repairs in a good and workmanlike
manner, in conformance with any and all applicable federal, state, county or
municipal laws, rules and regulations and pursuant to a valid building
permit, issued by the city in which the Building is located all in conformance
with Landlord’s construction rules and regulations; provided, however,
that prior to commencing to construct any Alteration, Tenant shall meet with
Landlord to discuss Landlord’s design parameters and code compliance
issues.  In the event Tenant performs any
Alterations in the Premises which require or give rise to governmentally
required changes to the “Base Building,” as that term is defined below, then
Landlord shall, at Tenant’s expense, make such changes to the Base
Building.  The “Base Building” shall include the structural
portions of the Building, and the public restrooms, elevators, exit stairwells
and the systems and equipment located in the internal core of the Building on
the floor or floors on which the Premises are located.  In performing the work of any such
Alterations, Tenant shall have the work performed in such manner so as not to
obstruct access to the Project or any portion thereof, by any other tenant of
the Project, and so as not to obstruct the business of Landlord or other
tenants in the  Project.  Tenant shall not use (and upon notice from
Landlord shall cease using) contractors, services, workmen, labor, materials or
equipment that, in Landlord’s reasonable judgment, would disturb labor harmony
with the workforce or trades engaged in performing other work, labor or
services in or about the Building or the Common Areas.  In addition to Tenant’s obligations under Article 9
of this Lease, upon completion of any Alterations, Tenant agrees to cause a
Notice of Completion to be recorded in the office of the recorder of the county
in which the Building is located in accordance with Section 3093 of the
Civil Code of the State of California or any successor statute, and Tenant
shall deliver to the Project construction manager a reproducible copy of the “as built” drawings of the Alterations as
well as all permits, approvals and other documents issued by any governmental
agency in connection with the Alterations.


 


8.3                               Payment for Improvements.  If payment is made by Tenant directly to
contractors, Tenant shall (i) comply with Landlord’s requirements for
final lien releases and waivers in connection with Tenant’s payment for work to
contractors, and (ii) sign Landlord’s standard contractor’s rules and
regulations.  If Tenant orders any work
directly from Landlord, Tenant shall pay to Landlord an amount equal to
Landlord’s then current standard fee to compensate Landlord for all overhead,
general conditions, fees and other costs and expenses arising from Landlord’s
involvement with such work.  If Tenant
does not order any work directly from Landlord, Tenant shall reimburse Landlord
for Landlord’s  reasonable, actual,
out-of-pocket costs and expenses actually incurred in connection with Landlord’s
review of such work.  At Landlord’s
option, prior to the commencement of construction of any Alteration, Tenant
shall provide Landlord with the reasonably anticipated cost thereof, which
Landlord shall disburse during construction pursuant to Landlord’s standard,
commercially reasonable disbursement procedure.


 


8.4                               Construction Insurance.  In addition to the requirements of Article 10
of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries “Builder’s All Risk”
insurance in an amount approved by Landlord covering the construction of such
Alterations, and such other insurance as Landlord may reasonably require, it
being understood and agreed that all of such Alterations shall be insured by
Tenant pursuant to Article 10 of this Lease immediately upon
completion thereof.  In addition,
Landlord may, in its discretion, require Tenant to obtain a lien and completion
bond or some alternate form of security satisfactory to Landlord in an amount
sufficient to ensure the lien-free completion of such Alterations and naming
Landlord as a co-obligee.


 


8.5                               Landlord’s Property.  All Alterations, improvements, fixtures,
equipment and/or appurtenances which may be installed or placed in or about the
Premises, from time to time, shall be at the sole cost of Tenant and 


 


13

















 


shall be and become the property of Landlord, except that Tenant may
remove any Alterations, improvements, fixtures and/or equipment which Tenant
can substantiate to Landlord have not been paid for with any Tenant improvement
allowance funds provided to Tenant by Landlord, provided Tenant repairs any
damage to the Premises and Building caused by such removal and returns the
affected portion of the Premises to a building standard tenant improved
condition as determined by Landlord. 
Tenant shall be required, at Tenant’s expense, upon the expiration or
earlier termination of this Lease, to remove any Alterations and/or
improvements and/or systems and equipment within the Premises that Tenant was
informed at the time of Landlord’s approval of such Alterations and/or
improvements and/or systems and equipment require such removal.  Furthermore, Tenant shall repair any damage
to the Premises and Building caused by such removal and return the affected
portion of the Premises to a building standard tenant improved condition as
determined by Landlord.  If Tenant fails
to complete such removal and/or to repair any damage caused by the removal of
any Alterations and/or improvements and/or systems and equipment in the
Premises and return the affected portion of the Premises to a building standard
tenant improved condition as reasonably determined by Landlord, (i) Landlord
may do so and may charge the cost thereof to Tenant, and (ii) Tenant shall
be deemed to be in holdover until such time as the removal and restoration is
completed (and, accordingly, the terms of Article 16 of this Lease shall
be applicable during such period). 
Tenant hereby protects, defends, indemnifies and holds Landlord harmless
from any liability, cost, obligation, expense or claim of lien in any manner
relating to the installation, placement, removal or financing of any such
Alterations, improvements, fixtures and/or equipment in, on or about the Premises,
which obligations of Tenant shall survive the expiration or earlier termination
of this Lease.


 


ARTICLE 9


 


COVENANT AGAINST LIENS


 


Tenant shall keep the Project and Premises free from
any liens or encumbrances arising out of the work performed, materials
furnished or obligations incurred by or on behalf of Tenant, and shall protect,
defend, indemnify and hold Landlord harmless from and against any claims,
liabilities, judgments or costs (including, without limitation, reasonable
attorneys’ fees and costs) arising out of same or in connection therewith.  Tenant shall give Landlord notice at least
twenty (20) days prior to the commencement of any such work on the Premises (or
such additional time as may be necessary under applicable laws) to afford
Landlord the opportunity of posting and recording appropriate notices of
non-responsibility.  Tenant shall remove
any such lien or encumbrance by bond or otherwise within ten (10) business
days after notice by Landlord, and if Tenant shall fail to do so, Landlord may
pay the amount necessary to remove such lien or encumbrance, without being
responsible for investigating the validity thereof.  The amount so paid shall be deemed Additional
Rent under this Lease payable upon demand, without limitation as to other remedies
available to Landlord under this Lease. 
Nothing contained in this Lease shall authorize Tenant to do any act
which shall subject Landlord’s title to the Building or Premises to any liens
or encumbrances whether claimed by operation of law or express or implied
contract.  Any claim to a lien or
encumbrance upon the Building or Premises arising in connection with any such
work or respecting the Premises not performed by or at the request of Landlord
shall be null and void, or at Landlord’s option shall attach only against
Tenant’s interest in the Premises and shall in all respects be subordinate to
Landlord’s title to the Project, Building and Premises.


 


ARTICLE 10


 


INSURANCE


 


10.1                         Indemnification and Waiver.  Tenant hereby assumes all risk of damage to property
or injury to persons in, upon or about the Premises from any cause whatsoever
(including, but not limited to, any personal injuries resulting from a slip and
fall in, upon or about the Premises) and agrees that Landlord, its partners,
subpartners and their respective officers, agents, servants, employees, and
independent contractors (collectively, “Landlord
Parties”) shall not be liable for, and are hereby released from any
responsibility for, any damage either to person or property or resulting from
the loss of use thereof, which damage is sustained by Tenant or by other
persons claiming through Tenant.  Tenant
shall indemnify, defend, protect, and hold harmless the Landlord Parties from
any and all loss, cost, damage, expense and liability (including without
limitation court costs and reasonable attorneys’ fees) incurred in connection
with or arising from any cause in, on or about the Premises (including, but 


 


14

















 


not limited to, a slip and fall), any acts, omissions or negligence of
Tenant or of any person claiming by, through or under Tenant, or of the
contractors, agents, servants, employees, invitees, guests or licensees of
Tenant or any such person, in, on or about the Project or any breach of the
terms of this Lease, either prior to, during, or after the expiration of the
Lease Term, provided that the terms of the foregoing indemnity shall not apply
to the negligence or willful misconduct of Landlord.  Should Landlord be named as a defendant in any
suit brought against Tenant in connection with or arising out of Tenant’s
occupancy of the Premises, Tenant shall pay to Landlord its costs and expenses
incurred in such suit, including without limitation, its actual professional
fees such as reasonable appraisers’, accountants’ and attorneys’ fees.  The provisions of this Section 10.1
shall survive the expiration or sooner termination of this Lease with respect
to any claims or liability arising in connection with any event occurring prior
to such expiration or termination.


 


10.2                         Tenant’s Compliance With Landlord’s Fire and Casualty
Insurance.  Tenant shall,
at Tenant’s expense, comply with all insurance company requirements pertaining
to the use of the Premises.  If Tenant’s
conduct or use of the Premises causes any increase in the premium for such
insurance policies then Tenant shall reimburse Landlord for any such increase.
Tenant, at Tenant’s expense, shall comply with all rules, orders, regulations
or requirements of the American Insurance Association (formerly the National
Board of Fire Underwriters) and with any similar body.


 


10.3                         Tenant’s Insurance.  Tenant shall maintain the following coverages
in the following amounts.


 


10.3.1      Commercial
General Liability Insurance covering the insured against claims of bodily
injury, personal injury and property damage (including loss of use thereof)
arising out of Tenant’s operations, and contractual liabilities (covering the
performance by Tenant of its indemnity agreements) including a Broad Form endorsement
covering the insuring provisions of this Lease and the performance by Tenant of
the indemnity agreements set forth in Section 10.1 of this Lease,
for limits of liability not less than:


 


	
  Bodily Injury and

  Property Damage Liability

  	
   

  	
  $5,000,000 each occurrence

  $5,000,000 annual aggregate

  
	
   

  	
   

  	
   

  
	
  Personal Injury Liability

  	
   

  	
  $5,000,000 each occurrence

  $5,000,000 annual aggregate

  0% Insured’s participation

  



 


10.3.2      Physical
Damage Insurance covering all office furniture, business and trade fixtures,
office equipment, free-standing cabinet work, movable partitions, merchandise
and all other items of Tenant’s property on the Premises installed by, for, or
at the expense of Tenant (the “Original
Improvements”), and (iii) all other improvements, alterations
and additions to the Premises.  Such
insurance shall be written on an “all risks”
of physical loss or damage basis, for the full replacement cost value (subject
to reasonable deductible amounts) new without deduction for depreciation of the
covered items and in amounts that meet any co-insurance clauses of the policies
of insurance and shall include coverage for damage or other loss caused by fire
or other peril including, but not limited to, vandalism and malicious mischief,
theft, water damage of any type, including sprinkler leakage, bursting or stoppage of
pipes, and explosion, and providing business interruption coverage for a period
of one year.


 


10.3.3      Worker’s
Compensation and Employer’s Liability or other similar insurance pursuant to
all applicable state and local statutes and regulations.


 


10.4                         Form of Policies.  The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease.  Such insurance
shall (i) name Landlord, and any other party the Landlord so specifies, as
an additional insured, including Landlord’s managing agent, if any; (ii) specifically
cover the liability assumed by Tenant under this Lease, including, but not
limited to, Tenant’s obligations under Section 10.1 of this Lease; (iii) be
issued by an insurance company having a rating of not less than A-X in Best’s
Insurance Guide or which is otherwise acceptable to Landlord and licensed to do
business in the State of California; (iv) be primary insurance as to all
claims thereunder and provide that any insurance carried by Landlord is excess
and is non-contributing with any insurance requirement of Tenant; (v) be
in form and content reasonably acceptable to Landlord; and (vi) provide
that said insurance shall not be canceled or coverage changed 


 


15

















 


unless thirty (30) days’ prior written notice shall have been given to
Landlord and any mortgagee of Landlord. 
Tenant shall deliver said policy or policies or certificates thereof to
Landlord on or before the Lease Commencement Date and at least thirty (30) days
before the expiration dates thereof.  In
the event Tenant shall fail to procure such insurance, or to deliver such
policies or certificate, Landlord may, at its option, procure such policies for
the account of Tenant, and the cost thereof shall be paid to Landlord within
five (5) days after delivery to Tenant of bills therefor.


 


10.5                         Subrogation.  Landlord and Tenant intend that their
respective property loss risks shall be borne by reasonable insurance carriers
to the extent above provided, and Landlord and Tenant hereby agree to look
solely to, and seek recovery only from, their respective insurance carriers in
the event of a property loss to the extent that such coverage is agreed to be
provided hereunder.  The parties each
hereby waive all rights and claims against each other for such losses, and
waive all rights of subrogation of their respective insurers, provided such
waiver of subrogation shall not affect the right to the insured to recover
thereunder.  The parties agree that their
respective insurance policies are now, or shall be, endorsed such that the
waiver of subrogation shall not affect the right of the insured to recover thereunder,
so long as no material additional premium is charged therefor.


 


10.6                         Additional Insurance Obligations.  Tenant shall carry and maintain during the
entire Lease Term, at Tenant’s sole cost and expense, increased amounts of the
insurance required to be carried by Tenant pursuant to this Article 10
and such other reasonable types of insurance coverage and in such reasonable
amounts covering the Premises and Tenant’s operations therein, as may be
reasonably requested by Landlord, but in no event in excess of the amounts and
types of insurance then being required by landlords of buildings comparable to
and in the vicinity of the Building.


 


ARTICLE 11


 


DAMAGE AND DESTRUCTION


 


11.1                         Repair of Damage to Premises by Landlord.  Tenant shall promptly notify Landlord of any
damage to the Premises resulting from fire or any other casualty.  If the Premises or any Common Areas serving
or providing access to the Premises shall be damaged by fire or other casualty,
Landlord shall promptly and diligently, subject to reasonable delays for
insurance adjustment or other matters beyond Landlord’s reasonable control, and
subject to all other terms of this Article 11, restore the Base
Building and such Common Areas.  Such
restoration shall be to substantially the same condition of the Base Building
and the Common Areas prior to the casualty, except for modifications required
by zoning and building codes and other laws or by the holder of a mortgage on
the Building or Project or any other modifications to the Common Areas deemed
desirable by Landlord, which are consistent with the character of the Project,
provided that access to the Premises and any common restrooms serving the
Premises shall not be materially impaired. 
Upon the occurrence of any damage to the Premises, upon notice (the “Landlord Repair Notice”) to Tenant from
Landlord, Tenant shall assign to Landlord (or to any party designated by
Landlord) all insurance proceeds payable to Tenant under Tenant’s insurance
required under Section 10.3 of this Lease, and Landlord shall
repair any injury or damage to the Tenant Improvements and the Original
Improvements installed in the Premises and shall return such Tenant
Improvements and Original Improvements to their original condition; provided
that if the cost of such repair by Landlord exceeds the amount of insurance
proceeds received by Landlord from Tenant’s insurance carrier, as assigned by
Tenant, the cost of such repairs shall be paid by Tenant to Landlord prior to
Landlord’s commencement of repair of the damage.  In the event that Landlord does not deliver the
Landlord Repair Notice within sixty (60) days following the date the casualty
becomes known to Landlord, Tenant shall, at its sole cost and expense, repair
any injury or damage to the Tenant Improvements and the Original Improvements
installed in the Premises and shall return such Tenant Improvements and
Original Improvements to their original condition.  Whether or not Landlord delivers a Landlord
Repair Notice, prior to the commencement of construction, Tenant shall submit
to Landlord, for Landlord’s review and approval, all plans, specifications and
working drawings relating thereto, and Landlord shall select the contractors to
perform such improvement work.  Landlord
shall not be liable for any inconvenience or annoyance to Tenant or its
visitors, or injury to Tenant’s business resulting in any way from such damage
or the repair thereof; provided however, that if such fire or other casualty
shall have damaged the Premises or Common Areas necessary to Tenant’s
occupancy, and the Premises are not occupied by Tenant as a result thereof,
then during the time and to the extent the Premises are unfit for occupancy,
the Rent shall be abated in proportion to the ratio that the amount of rentable
square feet of the Premises 


 


16

















 


which is unfit for occupancy for the purposes permitted under this
Lease bears to the total rentable square feet of the Premises.  In the event that Landlord shall not deliver
the Landlord Repair Notice, Tenant’s right to rent abatement pursuant to the
preceding sentence shall terminate as of the date which is reasonably
determined by Landlord to be the date Tenant should have completed repairs to
the Premises assuming Tenant used reasonable due diligence in connection
therewith.


 


11.2                         Landlord’s Option to Repair.  Notwithstanding the terms of Section 11.1
of this Lease, Landlord may elect not to rebuild and/or restore the Premises,
Building and/or Project, and instead terminate this Lease, by notifying Tenant
in writing of such termination within sixty (60) days after the date of
discovery of the damage, such notice to include a termination date giving
Tenant sixty (60) days to vacate the Premises, but Landlord may so elect only
if the Building or Project shall be damaged by fire or other casualty or cause,
whether or not the Premises are affected, and one or more of the following
conditions is present: (i) in Landlord’s reasonable judgment, repairs
cannot reasonably be completed within one hundred eighty (180) days after the
date of discovery of the damage (when such repairs are made without the payment
of overtime or other premiums); (ii) the holder of any mortgage on the
Building or Project or ground lessor with respect to the Building or Project
shall require that the insurance proceeds or any portion thereof be used to
retire the mortgage debt, or shall terminate the ground lease, as the case may
be; (iii) the damage is not fully covered by Landlord’s insurance
policies; (iv) Landlord decides to rebuild the Building or Common Areas so
that they will be substantially different structurally or architecturally; (v) the
damage occurs during the last twelve (12) months of the Lease Term; or (vi) any
owner of any other portion of the Project, other than Landlord, does not intend
to repair the damage to such portion of the Project; provided, however, that if
Landlord does not elect to terminate this Lease pursuant to Landlord’s
termination right as provided above, and the repairs cannot, in the reasonable
opinion of Landlord, be completed within one hundred eighty (180) days after
being commenced, Tenant may elect, no earlier than sixty (60) days after the
date of the damage and not later than ninety (90) days after the date of such
damage, to terminate this Lease by written notice to Landlord effective as of
the date specified in the notice, which date shall not be less than thirty (30)
days nor more than sixty (60) days after the date such notice is given by
Tenant.


 


11.3                         Waiver of Statutory Provisions.  The provisions of this Lease, including this Article 11,
constitute an express agreement between Landlord and Tenant with respect to any
and all damage to, or destruction of, all or any part of the Premises, the
Building or the Project, and any statute or regulation of the State of
California, including, without limitation, Sections 1932(2) and 1933(4) of
the California Civil Code, with respect to any rights or obligations concerning
damage or destruction in the absence of an express agreement between the
parties, and any other statute or regulation, now or hereafter in effect, shall
have no application to this Lease or any damage or destruction to all or any
part of the Premises, the Building or the Project.


 


ARTICLE 12


 


NONWAIVER


 


No provision of this Lease shall be deemed waived by
either party hereto unless expressly waived in a writing signed thereby.  The waiver by either party hereto of any
breach of any term, covenant or condition herein contained shall not be deemed
to be a waiver of any subsequent breach of same or any other term, covenant or condition
herein contained.  The subsequent
acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant or condition of this
Lease, 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.  No acceptance
of a lesser amount than the Rent herein stipulated shall be deemed a waiver of
Landlord’s right to receive the full amount due, nor shall any endorsement or
statement on any check or payment or any letter accompanying such check or
payment be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord’s right to recover the full
amount due.  No receipt of monies by
Landlord from Tenant after the termination of this Lease shall in any way alter
the length of the Lease Term or of Tenant’s right of possession hereunder, or
after the giving of any notice shall reinstate, continue or extend the Lease
Term or affect any notice given Tenant prior to the receipt of such monies, it
being agreed that after the service of notice or the commencement of a suit, or
after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.


 


17

















 


ARTICLE 13


 


CONDEMNATION


 


If the whole or any part of the Premises, Building or
Project shall be taken by power of eminent domain or condemned by any competent
authority for any public or quasi-public use or purpose, or if any adjacent
property or street shall be so taken or condemned, or reconfigured or vacated
by such authority in such manner as to require the use, reconstruction or
remodeling of any part of the Premises, Building or Project, or if Landlord
shall grant a deed or other instrument in lieu of such taking by eminent domain
or condemnation, Landlord shall have the option to terminate this Lease
effective as of the date possession is required to be surrendered to the
authority.  If more than twenty-five
percent (25%) of the rentable square feet of the Premises is taken, or if
access to the Premises is substantially impaired, in each case for a period in
excess of one hundred eighty (180) days, Tenant shall have the option to
terminate this Lease effective as of the date possession is required to be
surrendered to the authority.  Tenant
shall not because of such taking assert any claim against Landlord or the
authority for any compensation because of such taking and Landlord shall be
entitled to the entire award or payment in connection therewith, except that
Tenant shall have the right to file any separate claim available to Tenant for
any taking of Tenant’s personal property and fixtures belonging to Tenant and
removable by Tenant upon expiration of the Lease Term pursuant to the terms of
this Lease, and for moving expenses, so long as such claims do not diminish the
award available to Landlord, its ground lessor with respect to the Building or
Project or its mortgagee, and such claim is payable separately to Tenant.  All Rent shall be apportioned as of the date
of such termination.  If any part of the
Premises shall be taken, and this Lease shall 
not be so terminated, the Rent shall be proportionately abated.  Tenant hereby waives any and all rights it
might otherwise have pursuant to Section 1265.130 of The California Code
of Civil Procedure.  Notwithstanding
anything to the contrary contained in this Article 13, in the event
of a temporary taking of all or any portion of the Premises for a period of one
hundred and eighty (180) days or less, then this Lease shall not terminate but
the Base Rent and the Additional Rent shall be abated for the period of such
taking in proportion to the ratio that the amount of rentable square feet of
the Premises taken bears to the total rentable square feet of the
Premises.  Landlord shall be entitled to
receive the entire award made in connection with any such temporary taking.


 


ARTICLE 14


 


ASSIGNMENT AND SUBLETTING


 


14.1                         Transfers.  Tenant shall not, without the prior written
consent of Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit
any lien to attach to, or otherwise transfer, this Lease or any interest
hereunder, permit any assignment, or other transfer of this Lease or any
interest hereunder by operation of law, sublet the Premises or any part
thereof, or enter into any license or concession agreements or otherwise permit
the occupancy or use of the Premises or any part thereof by any persons other
than Tenant and its employees and contractors (all of the foregoing are
hereinafter sometimes referred to collectively as “Transfers” and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a “Transferee”).  If Tenant desires Landlord’s consent to any
Transfer, Tenant shall notify Landlord in writing, which notice (the “Transfer Notice”) shall include (i) the
proposed effective date of the Transfer, which shall not be less than thirty
(30) days nor more than one hundred eighty (180) days after the date of
delivery of the Transfer Notice, (ii) a description of the portion of the
Premises to be transferred (the “Subject
Space”), (iii) all of the terms of the proposed Transfer and
the consideration therefor, including calculation of the “Transfer Premium”, as that term is defined
in Section 14.3 below, in connection with such Transfer, the name
and address of the proposed Transferee, and a copy of all existing executed
and/or proposed documentation pertaining to the proposed Transfer, including
all existing operative documents to be executed to evidence such Transfer or
the agreements incidental or related to such Transfer, provided that Landlord
shall have the right to require Tenant to utilize Landlord’s standard Transfer
documents in connection with the documentation of such Transfer, (iv) current
financial statements of the proposed Transferee certified by an officer,
partner or owner thereof, business credit and personal references and history
of the proposed Transferee and any other information reasonably required by
Landlord which will enable Landlord to determine the financial responsibility,
character, and reputation of the proposed Transferee, nature of such Transferee’s
business and proposed use of the Subject Space, and (v) an executed
estoppel certificate from Tenant in the form attached hereto as Exhibit E.  Any Transfer made without Landlord’s prior
written consent shall, at Landlord’s option, be null, void and of no effect,
and shall, at Landlord’s option, constitute a default by Tenant under this
Lease.  Whether 


 


18

















 


or not Landlord consents to any proposed Transfer, Tenant shall pay Landlord’s
reasonable review and processing fees, as well as any reasonable professional
fees (including, without limitation, attorneys’, accountants’, architects’,
engineers’ and consultants’ fees) incurred by Landlord, within thirty (30) days
after written request by Landlord. 
Notwithstanding any provision to the contrary contained in this Lease,
the Premises shall only be occupied by one tenant at a time during the Lease
Term.  Accordingly, Tenant shall not have
the right to sublease the Premises to more than one Transferee at any time
during the Lease Term.


 


14.2                         Landlord’s Consent.  Landlord shall not unreasonably withhold or
delay its consent to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in the Transfer Notice.  Without limitation as to other reasonable
grounds for withholding consent, the parties hereby agree that it shall be
reasonable under this Lease and under any applicable law for Landlord to
withhold consent to any proposed Transfer where one or more of the following
apply:


 


14.2.1      The
Transferee is of a character or reputation or engaged in a business which is
not consistent with the quality of the Building or the Project;


 


14.2.2      The
Transferee intends to use the Subject Space for purposes which are not permitted
under this Lease;


 


14.2.3      The
Transferee is either a governmental agency or instrumentality thereof or a
nonprofit organization;


 


14.2.4      Intentionally
deleted;


 


14.2.5      The
Transferee is not a party of reasonable financial worth and/or financial stability
in light of the responsibilities to be undertaken in connection with the
Transfer on the date consent is requested;


 


14.2.6      The
proposed Transfer would cause a violation of another lease for space in the
Project, or would give an occupant of the Project a right to cancel its lease;
or


 


14.2.7      Either
the proposed Transferee, or any person or entity which directly or indirectly,
controls, is controlled by, or is under common control with, the proposed
Transferee, (i) occupies space in the Project at the time of the request
for consent, or (ii) is negotiating with Landlord or has negotiated with
Landlord during the six (6) month period immediately preceding the date
Landlord receives the Transfer Notice, to lease space in the Project.


 


If Landlord consents to any Transfer pursuant to the
terms of this Section 14.2 (and does not exercise any recapture
rights Landlord may have under Section 14.4 of this Lease), Tenant
may within six (6) months after Landlord’s consent, but not later than the
expiration of said six-month period, enter into such Transfer of the Premises
or portion thereof, upon substantially the same terms and conditions as are set
forth in the Transfer Notice furnished by Tenant to Landlord pursuant to Section 14.1
of this Lease, provided that if there are any changes in the terms and
conditions from those specified in the Transfer Notice (i) such that
Landlord would initially have been entitled to refuse its consent to such
Transfer under this Section 14.2, or (ii) which would cause
the proposed Transfer to be more favorable to the Transferee than the terms set
forth in Tenant’s original Transfer Notice, Tenant shall again submit the
Transfer to Landlord for its approval and other action under this Article 14
(including Landlord’s right of recapture, if any, under Section 14.4
of this Lease).  Notwithstanding anything
to the contrary in this Lease, if Tenant or any proposed Transferee claims that
Landlord has unreasonably withheld or delayed its consent under Section 14.2
or otherwise has breached or acted unreasonably under this Article 14,
their sole remedies shall be a suit for contract damages (other than damages
for injury to, or interference with, Tenant’s business including, without
limitation, loss of profits, however occurring) or declaratory judgment and an
injunction for the relief sought, and Tenant hereby waives all other remedies,
including, without limitation, any right at law or equity to terminate this
Lease, on its own behalf and, to the extent permitted under all applicable laws,
on behalf of the proposed Transferee.


 


19














 


14.3         Transfer Premium.  If Landlord consents to a Transfer, as a
condition thereto which the parties hereby agree is reasonable, Tenant shall
pay to Landlord fifty percent (50%) of any “Transfer
Premium,” as that term is defined in this Section 14.3,
received by Tenant from such Transferee. 
“Transfer Premium” shall
mean all rent, additional rent or other consideration payable by such
Transferee in connection with the Transfer in excess of the Rent and Additional
Rent payable by Tenant under this Lease during the term of the Transfer on a
per rentable square foot basis if less than all of the Premises is transferred,
after deducting the reasonable expenses incurred by Tenant for (i) any
changes, alternations and improvements to the Premises in connection with the
Transfer, (ii) any free base rent and/or work allowance reasonably
provided to the Transferee, and (iii) any brokerage commissions,
advertising costs, and attorneys’ fees in connection with the Transfer.  “Transfer
Premium” shall also include, but not be limited to, key money, bonus
money or other cash consideration paid by Transferee to Tenant in connection
with such Transfer, and any payment in excess of fair market value for services
rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment,
or furniture transferred by Tenant to Transferee in connection with such
Transfer.  The determination of the
amount of Landlord’s applicable share of the Transfer Premium shall be made on
a monthly basis as rent or other consideration is received by Tenant under the
Transfer.


 


14.4         Landlord’s Option as to Subject Space.  Notwithstanding anything to the contrary
contained in this Article 14, Landlord shall have the option, by giving
written notice to Tenant within thirty (30) days after receipt of any Transfer
Notice, to recapture the Subject Space. 
Such recapture notice shall cancel and terminate this Lease with respect
to the Subject Space as of the date stated in the Transfer Notice as the
effective date of the proposed Transfer until the last day of the term of the
Transfer as set forth in the Transfer Notice (or at Landlord’s option, shall
cause the Transfer to be made to Landlord or its agent, in which case the
parties shall execute the Transfer documentation promptly thereafter).  In the event of a recapture by Landlord, if
this Lease shall be canceled with respect to less than the entire Premises, the
Rent reserved herein shall be prorated on the basis of the number of rentable
square feet retained by Tenant in proportion to the number of rentable square
feet contained in the Premises, and this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same.  If Landlord declines, or fails to elect in a
timely manner to recapture the Subject Space under this Section 14.4,
then, provided Landlord has consented to the proposed Transfer, Tenant shall be
entitled to proceed to transfer the Subject Space to the proposed Transferee,
subject to provisions of this Article 14.


 


14.5         Effect of Transfer.  If Landlord consents to a Transfer, (i) the
terms and conditions of this Lease shall in no way be deemed to have been
waived or modified, (ii) such consent shall not be deemed consent to any
further Transfer by either Tenant or a Transferee, (iii) Tenant shall
deliver to Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord’s request a complete
statement, certified by an independent certified public accountant, or Tenant’s
chief financial officer, setting forth in detail the computation of any
Transfer Premium Tenant has derived and shall derive from such Transfer, and (v) no
Transfer relating to this Lease or agreement entered into with respect thereto,
whether with or without Landlord’s consent, shall relieve Tenant or any
guarantor of the Lease from any liability under this Lease, including, without
limitation, in connection with the Subject Space.  Landlord or its authorized representatives
shall have the right at all reasonable times to audit the books, records and
papers of Tenant relating to any Transfer, and shall have the right to make
copies thereof.  If the Transfer Premium
respecting any Transfer shall be found understated, Tenant shall, within thirty
(30) days after demand, pay the deficiency, and if understated by more than two
percent (2%), Tenant shall pay Landlord’s costs of such audit.


 


14.6         Additional Transfers.  For purposes of this Lease, the term “Transfer” shall also include (i) if
Tenant is a partnership, the withdrawal or change, voluntary, involuntary or by
operation of law, of fifty percent (50%) or more of the partners, or transfer
of fifty percent (50%) or more of partnership interests, within a twelve
(12)-month period, or the dissolution of the partnership without immediate
reconstitution thereof, and (ii) if Tenant is a closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), (A) the dissolution, merger,
consolidation or other reorganization of Tenant or (B) the sale or other
transfer of an aggregate of fifty percent (50%) or more of the voting shares of
Tenant (other than to immediate family members by reason of gift or death),
within a twelve (12)-month period, or (C) the sale, mortgage,
hypothecation or pledge of an aggregate of fifty percent (50%) or more of the
value of the unencumbered assets of Tenant within a twelve (12)-month period.


 


20

















 


14.7         Occurrence of Default.  Any Transfer hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any Transfer, Landlord shall have the right
to:  (i) treat such Transfer as
cancelled and repossess the Subject Space by any lawful means, or (ii) require
that such Transferee attorn to and recognize Landlord as its landlord under any
such Transfer.  If Tenant shall be in
default under this Lease, Landlord is hereby irrevocably authorized, as Tenant’s
agent and attorney-in-fact, to direct any Transferee to make all payments under
or in connection with the Transfer directly to Landlord (which Landlord shall
apply towards Tenant’s obligations under this Lease) until such default is
cured.  Such Transferee shall rely on any
representation by Landlord that Tenant is in default hereunder, without any
need for confirmation thereof by Tenant. 
Upon any assignment, the assignee shall assume in writing all
obligations and covenants of Tenant thereafter to be performed or observed
under this Lease.  No collection or
acceptance of rent by Landlord from any Transferee shall be deemed a waiver of
any provision of this Article 14 or the approval of any Transferee
or a release of Tenant from any obligation under this Lease, whether
theretofore or thereafter accruing.  In
no event shall Landlord’s enforcement of any provision of this Lease against
any Transferee be deemed a waiver of Landlord’s right to enforce any term of
this Lease against Tenant or any other person. 
If Tenant’s obligations hereunder have been guaranteed, Landlord’s
consent to any Transfer shall not be effective unless the guarantor also
consents to such Transfer.


 


14.8         Non-Transfers.  Notwithstanding anything to the contrary
contained in this Article 14, neither   (i) an assignment to a transferee of
all or substantially all of the assets or equity of Tenant, (ii) an
assignment of the Premises to a transferee which is the resulting entity of a
merger or consolidation of Tenant with another entity, nor (iii) an
assignment or subletting of all or a portion of the Premises to an affiliate of
Tenant (an entity which is controlled by, controls, or is under common control
with, Tenant (an “Affiliate”)),
shall be deemed a Transfer under Article 14 of this Lease, provided
that (a) in the event of an assignment to an Affiliate, such Affiliate has
a net worth, as calculated by generally accepted accounting principles, and as
reasonably demonstrated to Landlord, which is equal to or in excess of the net
worth of Tenant as of the date hereof, (b) Tenant notifies Landlord of any
such assignment or sublease and promptly supplies Landlord with any documents
or information reasonably requested by Landlord regarding such transfer or
Affiliate, and (c) such assignment or sublease is not a subterfuge by
Tenant to avoid its obligations under this Lease.  “Control,”
as used in this Section 14.8, shall mean the ownership, directly or
indirectly, of at least fifty-one percent (51%) of the voting securities of, or
possession of the right to vote, in the ordinary direction of its affairs, of
at least fifty-one percent (51%) of the voting interest in, any person or
entity.


 


ARTICLE 15


 


SURRENDER OF PREMISES; OWNERSHIP AND

REMOVAL OF TRADE FIXTURES


 


15.1         Surrender of Premises.  No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in writing by Landlord.  The delivery of keys to the Premises to
Landlord or any agent or employee of Landlord shall not constitute a surrender
of the Premises or effect a termination of this Lease, whether or not the keys
are thereafter retained by Landlord, and notwithstanding such delivery Tenant
shall be entitled to the return of such keys at any reasonable time upon
request until this Lease shall have been properly terminated.  The voluntary or other surrender of this
Lease by Tenant, whether accepted by Landlord or not, or a mutual termination
hereof, shall not work a merger, and at the option of Landlord shall operate as
an assignment to Landlord of all subleases or subtenancies affecting the Premises
or terminate any or all such sublessees or subtenancies.


 


15.2         Removal of Tenant Property by Tenant.  Upon the expiration of the Lease Term, or
upon any earlier termination of this Lease, Tenant shall, subject to the
provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable
wear and tear and repairs which are specifically made the responsibility of
Landlord hereunder excepted.  Upon such
expiration or termination, Tenant shall, without expense to Landlord, remove or
cause to be removed from the Premises all debris and rubbish, and such items of
furniture, equipment, business and trade fixtures, free-standing cabinet work,
movable partitions and other articles of 


 


21

















 


personal property owned by Tenant or installed or placed by Tenant at
its expense in the Premises, and such similar articles of any other persons
claiming under Tenant, as Landlord may, in its sole discretion, require to be
removed, and Tenant shall repair at its own expense all damage to the Premises
and Building resulting from such removal.


 


ARTICLE 16


 


HOLDING OVER


 


If Tenant holds over after the expiration of the Lease
Term or earlier termination thereof, with or without the express or implied
consent of Landlord, such tenancy shall be from month-to-month only, and shall
not constitute a renewal hereof or an extension for any further term, and in
such case Rent shall be payable at a monthly rate equal to one hundred fifty
percent (150%) of the Rent applicable during the last rental period of the
Lease Term under this Lease for the first four (4) months of such tenancy,
and two hundred percent (200%) of such Rent thereafter.  Such month-to-month tenancy shall be subject
to every other applicable term, covenant and agreement contained herein.  Nothing contained in this Article 16
shall be construed as consent by Landlord to any holding over by Tenant, and
Landlord expressly reserves the right to require Tenant to surrender possession
of the Premises to Landlord as provided in this Lease upon the expiration or
other termination of this Lease.  The
provisions of this Article 16 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
or at law.  If Tenant fails to surrender
the Premises upon the termination or expiration of this Lease, in addition to any
other liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys’ fees) and liability resulting from such failure, including, without
limiting the generality of the foregoing, any claims made by any succeeding
tenant founded upon such failure to surrender and any lost profits to Landlord
resulting therefrom.


 


ARTICLE 17


 


ESTOPPEL CERTIFICATES


 


Within ten (10) business days following a request
in writing by Landlord, Tenant shall execute, acknowledge and deliver to
Landlord an estoppel certificate, which, as submitted by Landlord, shall be
substantially in the form of Exhibit E,
attached hereto (or such other form as may be required by any prospective
mortgagee or purchaser of the Project, or any portion thereof), indicating
therein any exceptions thereto that may exist at that time, and shall also
contain any other information reasonably requested by Landlord or Landlord’s
mortgagee or prospective mortgagee.  Any
such certificate may be relied upon by any prospective mortgagee or purchaser
of all or any portion of the Project. 
Tenant shall execute and deliver whatever other instruments may be
reasonably required for such purposes. 
At any time during the Lease Term, Landlord may require Tenant to
provide Landlord with a current financial statement and financial statements of
the two (2) years prior to the current financial statement year.  Such statements shall be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, shall be audited by an independent certified public
accountant.  Failure of Tenant to timely
execute, acknowledge and deliver such estoppel certificate or other instruments
shall constitute an acceptance of the Premises and an acknowledgment by Tenant
that statements included in the estoppel certificate are true and correct,
without exception.


 


ARTICLE 18


 


SUBORDINATION


 


This Lease shall be subject and subordinate to all
present and future ground or underlying leases of the Building or Project and
to the lien of any mortgage, trust deed or other encumbrances now or hereafter
in force against the Building or Project or any part thereof, if any, and to
all renewals, extensions, modifications, consolidations and replacements
thereof, and to all advances made or hereafter to be made upon the security of
such mortgages or trust deeds, unless the holders of such mortgages, trust
deeds or other encumbrances, or the lessors under such ground lease or
underlying leases, require in writing that this Lease be superior thereto.  Tenant covenants and agrees in the event any
proceedings are brought for the foreclosure of any such mortgage or deed in
lieu thereof (or if any ground lease is terminated), to attorn, without any
deductions or set-offs whatsoever, to the 


 


22

















 


lienholder or purchaser or any successors thereto upon
any such foreclosure sale or deed in lieu thereof (or to the ground lessor), if
so requested to do so by such purchaser or lienholder or ground lessor, and to
recognize such purchaser or lienholder or ground lessor as the lessor under
this Lease, provided such lienholder or purchaser or ground lessor shall agree
to accept this Lease and not disturb Tenant’s occupancy, so long as Tenant
timely pays the rent and observes and performs the terms, covenants and
conditions of this Lease to be observed and performed by Tenant.  Landlord’s interest herein may be assigned as
security at any time to any lienholder. 
Tenant shall, within ten (10) days of request by Landlord, execute
such further instruments or assurances as Landlord may reasonably deem
necessary to evidence or confirm the subordination or superiority of this Lease
to any such mortgages, trust deeds, ground leases or underlying leases.  Tenant waives the provisions of any current
or future statute, rule or law which may give or purport to give Tenant
any right or election to terminate or otherwise adversely affect this Lease and
the obligations of the Tenant hereunder in the event of any foreclosure
proceeding or sale.


 


ARTICLE 19


 


DEFAULTS; REMEDIES


 


19.1                          Events of Default.  The occurrence of any of the following shall
constitute a default of this Lease by Tenant:


 


19.1.1      Any
failure by Tenant to pay any Rent or any other charge required to be paid under
this Lease, or any part thereof, when due; or


 


19.1.2      Except
where a specific time period is otherwise set forth for Tenant’s performance in
this Lease, in which event the failure to perform by Tenant within such time period
shall be a default by Tenant under this Section 19.1.2, any failure
by Tenant to observe or perform any other provision, covenant or condition of
this Lease to be observed or performed by Tenant where such failure continues
for ten (10) days after written notice thereof from Landlord to Tenant;
provided that if the nature of such default is such that the same cannot
reasonably be cured within a ten (10) day period, Tenant shall not be
deemed to be in default if it diligently commences such cure within such period
and thereafter diligently proceeds to rectify and cure such default; or


 


19.1.3      Abandonment
or vacation of all or a substantial portion of the Premises by Tenant; or


 


19.1.4      The
failure by Tenant to observe or perform according to the provisions of Articles
5, 14, 17 or 18 of this Lease where such failure
continues for more than two (2) business days after notice from Landlord;
or


 


19.1.5      Tenant’s
failure to occupy the Premises within ten (10) business days after the
Lease Commencement Date.


 


The notice periods provided herein are in lieu of, and
not in addition to, any notice periods provided by law.


 


19.2                          Remedies Upon Default.  Upon the occurrence of any event of default
by Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity (all of which remedies shall be distinct, separate
and cumulative), the option to pursue any one or more of the following
remedies, each and all of which shall be cumulative and nonexclusive, without
any notice or demand whatsoever.


 


19.2.1      Terminate
this Lease, in which event Tenant shall immediately surrender the Premises to
Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any
other remedy which it may have for possession or arrearages in rent, enter upon
and take possession of the Premises and expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof, without being
liable for prosecution or any claim or damages therefor; and Landlord may
recover from Tenant the following:


 


(i)           The
worth at the time of award of the unpaid rent which has been earned at the time
of such termination; plus


 


23

















 


(ii)          The
worth at the time of award of the amount by which the unpaid rent which would
have been earned after termination until the time of award exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided; plus


 


(iii)         The
worth at the time of award of the amount by which the unpaid rent for the
balance of the Lease Term after the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided; plus


 


(iv)        Any
other amount necessary to compensate Landlord for all the detriment proximately
caused by Tenant’s failure to perform its obligations under this Lease or which
in the ordinary course of things would be likely to result therefrom,
specifically including but not limited to, brokerage commissions and
advertising expenses incurred, expenses of remodeling the Premises or any
portion thereof for a new tenant, whether for the same or a different use, and
any special concessions made to obtain a new tenant; and


 


(v)         At
Landlord’s election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.


 


The term “rent”
as used in this Section 19.2 shall be deemed to be and to mean all
sums of every nature required to be paid by Tenant pursuant to the terms of
this Lease, whether to Landlord or to others. 
As used in Sections 19.2.1(i) and (ii), above, the “worth
at the time of award” shall be computed by allowing interest at the rate set
forth in Article 25 of this Lease, but in no case greater than the
maximum amount of such interest permitted by law.  As used in Section 19.2.1(iii) above,
the “worth at the time of award”
shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).


 


19.2.2      Landlord
shall have the remedy described in California Civil Code Section 1951.4
(lessor may continue lease in effect after lessee’s breach and abandonment and
recover rent as it becomes due, if lessee has the right to sublet or assign,
subject only to reasonable limitations). 
Accordingly, if Landlord does not elect to terminate this Lease on
account of any default by Tenant, Landlord may, from time to time, without
terminating this Lease, enforce all of its rights and remedies under this
Lease, including the right to recover all rent as it becomes due.


 


19.2.3      Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies
available under Sections 19.2.1 and 19.2.2, above, or any law or
other provision of this Lease), without prior demand or notice except as
required by applicable law, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.


 


19.3                          Subleases of Tenant.  Whether or not Landlord elects to terminate
this Lease on account of any default by Tenant, as set forth in this Article 19,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord’s sole discretion,
succeed to Tenant’s interest in such subleases, licenses, concessions or
arrangements.  In the event of Landlord’s
election to succeed to Tenant’s interest in any such subleases, licenses,
concessions or arrangements, Tenant shall, as of the date of notice by Landlord
of such election, have no further right to or interest in the rent or other
consideration receivable thereunder.


 


19.4                          Efforts to Relet.  No re-entry or repossession, repairs,
maintenance, changes, alterations and additions, reletting, appointment of a
receiver to protect Landlord’s interests hereunder, or any other action or
omission by Landlord shall be construed as an election by Landlord to terminate
this Lease or Tenant’s right to possession, or to accept a surrender of the
Premises, nor shall same operate to release Tenant in whole or in part from any
of Tenant’s obligations hereunder, unless express written notice of such
intention is sent by Landlord to Tenant. 
Tenant hereby irrevocably waives any right otherwise available under any
law to redeem or reinstate this Lease.


 


24

















 


ARTICLE 20


 


COVENANT OF QUIET ENJOYMENT


 


Landlord covenants that Tenant, on paying the Rent,
charges for services and other payments herein reserved and on keeping,
observing and performing all the other terms, covenants, conditions, provisions
and agreements herein contained on the part of Tenant to be kept, observed and
performed, shall, during the Lease Term, peaceably and quietly have, hold and
enjoy the Premises subject to the terms, covenants, conditions, provisions and
agreements hereof without interference by any persons lawfully claiming by or
through Landlord.  The foregoing covenant
is in lieu of any other covenant express or implied.


 


ARTICLE 21


 


LETTER OF CREDIT


 


21.1         Letter of Credit.  Concurrently with Tenant’s execution of this
Lease, Tenant shall deliver to Landlord an unconditional, clean, irrevocable
letter of credit (the “L-C”) in the
amount set forth in Section  8 of the Summary (the “L-C Amount”), which L-C shall be issued by a money-center
bank (a bank which accepts deposits, maintains accounts, has a local San Francisco
office which will negotiate a letter of credit, and whose deposits are insured
by the FDIC) reasonably acceptable to Landlord (the “Bank”),
with a short term Fitch Rating currency rating which is not less than “F2”, and
a long term Fitch Rating currency rating which is not less than “A” (an “Approved Bank”).  The
L-C shall be in a form and content as set forth in Exhibit F,
attached hereto.  Tenant shall pay all
expenses, points and/or fees incurred by Tenant in obtaining the L-C.  The L-C shall (i) be “callable” at
sight, irrevocable and unconditional, (ii) be maintained in effect,
whether through renewal or extension, for the period from the Lease
Commencement Date and continuing until the date (the “L-C
Expiration Date”) that is one hundred twenty (120) days after the
expiration of the Lease Term, and Tenant shall deliver a new L-C or certificate
of renewal or extension to Landlord at least thirty (30) days prior to the
expiration of the L-C then held by Landlord, without any action whatsoever on the
part of Landlord, (iii) be fully assignable by Landlord, its successors
and assigns, (iv) permit partial draws and multiple presentations and
drawings, and (v) be otherwise subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision) International Chamber of
Commerce Publication #500.  Landlord, or
its then managing agent, shall have the right to draw down an amount up to the
face amount of the L-C if any of the following shall have occurred or be
applicable: (1) such amount is due to Landlord  under the terms and conditions of this Lease,
or (2) Tenant has filed a voluntary petition under the U.S. Bankruptcy
Code or any state bankruptcy code (collectively, “Bankruptcy
Code”), or (3) an involuntary petition has been filed against Tenant
under the Bankruptcy Code, or (4) the Bank has notified Landlord that the
L-C will not be renewed or extended through the LC Expiration Date.  The L-C will be honored by the Bank
regardless of whether Tenant disputes Landlord’s right to draw upon the L-C.


 


21.2         Maintenance of L-C by Tenant.  If, as a result of any drawing by Landlord on
the L-C, the amount of the L-C shall be less than the L-C Amount, Tenant shall,
within five (5) days thereafter, provide Landlord with additional letter(s) of
credit in an amount equal to the deficiency, and any such additional letter(s) of
credit shall comply with all of the provisions of this Article 21,
and if Tenant fails to comply with the foregoing, notwithstanding anything to
the contrary contained in Section 19.1 of this Lease, the same
shall constitute an incurable event of default by Tenant.  Tenant further covenants and warrants that it
will neither assign nor encumber the L-C or any part thereof and that neither
Landlord nor its successors or assigns will be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.  Without limiting the generality of the
foregoing, if the L-C expires earlier than the LC Expiration Date, Landlord
will accept a renewal thereof (such renewal letter of credit to be in effect
and delivered to Landlord, as applicable, not later than thirty (30) days prior
to the expiration of the L-C), which shall be irrevocable and automatically
renewable as above provided through the LC Expiration Date upon the same terms
as the expiring L-C or such other terms as may be acceptable to Landlord in its
sole discretion.  However, if the L-C is
not timely renewed, or if Tenant fails to maintain the L-C in the amount and in
accordance with the terms set forth in this Article 21, Landlord
shall have the right to present the L-C to the Bank in accordance with the
terms of this Article 21, and the proceeds of the L-C may be
applied by Landlord against any Rent payable by Tenant under this Lease that is
not paid when due and/or to pay for all losses and damages that Landlord has
suffered or that Landlord reasonably estimates that it will suffer as a result
of any breach 


 


25

















 


or default by Tenant under this Lease. 
Any unused proceeds shall constitute the property of Landlord and need
not be segregated from Landlord’s other assets. 
Landlord agrees to pay to Tenant within thirty (30) days after the LC
Expiration Date the amount of any proceeds of the L-C received by Landlord and
not applied against any Rent payable by Tenant under this Lease that was not
paid when due or used to pay for any losses and/or damages suffered by Landlord
(or reasonably estimated by Landlord that it will suffer) as a result of any
breach or default by Tenant under this Lease; provided, however, that if prior
to the LC Expiration Date a voluntary petition is filed by Tenant, or an
involuntary petition is filed against Tenant by any of Tenant’s creditors,
under the Bankruptcy Code, then Landlord shall not be obligated to make such
payment in the amount of the unused L-C proceeds until either all preference
issues relating to payments under this Lease have been resolved in such
bankruptcy or reorganization case or such bankruptcy or reorganization case has
been dismissed.


 


21.3         Landlord’s Right to Draw Upon L-C.  Tenant hereby acknowledges and agrees that
Landlord is entering into this Lease in material reliance upon the ability of
Landlord to draw upon the L-C upon the occurrence of any breach or default on
the part of Tenant under this Lease.  If
Tenant shall breach any provision of this Lease or otherwise be in default
hereunder, Landlord may, but without obligation to do so, and without notice to
Tenant, draw upon the L-C, in part or in whole, to cure any breach or default
of Tenant and/or to compensate Landlord for any and all damages of any kind or
nature sustained or which Landlord reasonably estimates that it will sustain
resulting from Tenant’s breach or default. 
The use, application or retention of the L-C, or any portion thereof, by
Landlord shall not prevent Landlord from exercising any other right or remedy
provided by this Lease or by any applicable law, it being intended that
Landlord shall not first be required to proceed against the L-C, and shall not
operate as a limitation on any recovery to which Landlord may otherwise be
entitled.  Tenant agrees not to interfere
in any way with payment to Landlord of the proceeds of the L-C, either prior to
or following a “draw” by Landlord of any portion of the L-C, regardless of
whether any dispute exists between Tenant and Landlord as to Landlord’s right
to draw upon the L-C.  No condition or
term of this Lease shall be deemed to render the L-C conditional to justify the
issuer of the L-C in failing to honor a drawing upon such L-C in a timely
manner.  Tenant agrees and acknowledges
that (a) the L-C constitutes a separate and independent contract between
Landlord and the Bank, (b) Tenant is not a third party beneficiary of such
contract, (c) Tenant has no property interest whatsoever in the L-C or the
proceeds thereof, and (d) in the event Tenant becomes a debtor under any
chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant’s
bankruptcy estate shall have any right to restrict or limit Landlord’s claim
and/or rights to the L-C and/or the proceeds thereof by application of Section 502(b)(6) of
the U.S. Bankruptcy Code or otherwise.


 


21.4         Transfer of L-C by Landlord.  The L-C shall also provide that Landlord, its
successors and assigns, may, at any time and without notice to Tenant and
without first obtaining Tenant’s consent thereto, transfer (one or more times)
all or any portion of its interest in and to the L-C to another party, person
or entity, regardless of whether or not such transfer is separate from or as a
part of the assignment by Landlord of its rights and interests in and to this
Lease.  In the event of a transfer of
Landlord’s interest in the Building, Landlord shall transfer the L-C, in whole
or in part, to the transferee and thereupon Landlord shall, without any further
agreement between the parties, be released by Tenant from all liability
therefor, and it is agreed that the provisions hereof shall apply to every
transfer or assignment of the whole or any portion of said L-C to a new
landlord.  In connection with any such
transfer of the L-C by Landlord, Tenant shall, at Tenant’s sole cost and
expense, execute and submit to the Bank such applications, documents and
instruments as may be necessary to effectuate such transfer, and Tenant shall
be responsible for paying the Bank’s transfer and processing fees in connection
therewith.


 


21.5         L-C Not a Security Deposit.  Landlord and Tenant acknowledge and agree
that in no event or circumstance shall the L-C or any renewal thereof or any proceeds
thereof be (i) deemed to be or treated as a “security deposit” within the
meaning of California Civil Code Section 1950.7, (ii) subject to the
terms of such Section 1950.7, or (iii) intended to serve as a “security
deposit” within the meaning of such Section 1950.7.  The parties hereto (A) recite that the
L-C is not intended to serve as a security deposit and such Section 1950.7
and any and all other laws, rules and regulations applicable to security
deposits in the commercial context (“Security Deposit Laws”)
shall have no applicability or relevancy thereto and (B) waive any and all
rights, duties and obligations either party may now or, in the future, will
have relating to or arising from the Security Deposit Laws.


 


26

















 


ARTICLE 22


 


SUBSTITUTION OF OTHER PREMISES


 


Landlord shall have the right to move Tenant to other
space in the Project comparable to the Premises, and all terms hereof shall
apply to the new space with equal force; provided that Tenant’s then existing
monetary obligations under this Lease shall not be increased as a result of
such relocation of the Premises, and such relocation space shall not be on a
floor lower than the fourth (4th) floor of the Building.  In such event, Landlord shall give Tenant
prior notice, shall provide Tenant, at Landlord’s sole cost and expense, with
tenant improvements at least equal in quality and layout to those in the
Premises and shall move Tenant’s effects to the new space at Landlord’s sole
cost and expense at such time and in such manner as to inconvenience Tenant as
little as reasonably practicable.  In
addition, Landlord shall reimburse Tenant for the reasonable costs and expenses
incurred by Tenant in connection with such relocation (including, but not
limited to, the costs of reasonable supplies of replacement stationery and
telephone installations), within thirty (30) days of Landlord’s receipt of an
invoice therefor.  Simultaneously with
such relocation of the Premises, the parties shall immediately execute an
amendment to this Lease stating the relocation of the Premises.  Notwithstanding any provision to the contrary
contained in this Lease, in the event that Landlord moves Tenant to other space
in the Project during the initial two (2) years of the Lease Term pursuant
to the terms of this Section 22, then Landlord shall be deemed to have
waived its termination right set forth in Section 2.2 of this
Lease.


 


ARTICLE 23


 


SIGNS


 


23.1         Full Floors.  Subject to Landlord’s prior written approval,
in its sole discretion, and provided all signs are in keeping with the quality,
design and style of the Building and Project, Tenant, if the Premises comprise
an entire floor of the Building, at its sole cost and expense, may install
identification signage anywhere in the Premises including in the elevator lobby
of the Premises, provided that such signs must not be visible from the exterior
of the Building.


 


23.2         Multi-Tenant Floors.  If other tenants occupy space on the floor on
which the Premises is located, Tenant’s identifying signage shall be provided
by Landlord, at Tenant’s cost, and such signage shall be comparable to that
used by Landlord for other similar floors in the Building and shall comply with
Landlord’s then-current Building standard signage program.


 


23.3         Prohibited Signage and Other Items.  Any signs, notices, logos, pictures, names or
advertisements which are installed and that have not been separately approved
by Landlord may be removed without notice by Landlord at the sole expense of
Tenant.  Tenant may not install any signs
on the exterior or roof of the Project or the Common Areas.  Any signs, window coverings, or blinds (even
if the same are located behind the Landlord-approved window coverings for the
Building), or other items visible from the exterior of the Premises or
Building, shall be subject to the prior approval of Landlord, in its sole
discretion.


 


ARTICLE 24


 


COMPLIANCE WITH LAW


 


Tenant shall not do anything or suffer anything to be
done in or about the Premises or the Project which will in any way conflict
with any law, statute, ordinance or other governmental rule, regulation or
requirement now in force or which may hereafter be enacted or promulgated.  At its sole cost and expense, Tenant shall
promptly comply with all such governmental measures.  Should any standard or regulation now or
hereafter be imposed on Landlord or Tenant by a state, federal or local
governmental body charged with the establishment, regulation and enforcement of
occupational, health or safety standards for employers, employees, landlords or
tenants, then Tenant agrees, at its sole cost and expense, to comply promptly
with such standards or regulations. 
Tenant shall be responsible, at its sole cost and expense, to make all
alterations to the Premises as are required to comply with the governmental
rules, regulations, requirements or standards described in this Article 24.  The judgment of any court 


 


27

















 


of competent jurisdiction or the admission of Tenant
in any judicial action, regardless of whether Landlord is a party thereto, that
Tenant has violated any of said governmental measures, shall be conclusive of
that fact as between Landlord and Tenant.


 


ARTICLE 25


 


LATE CHARGES


 


If any installment of Rent or any other sum due from
Tenant shall not be received by Landlord or Landlord’s designee on or before
the date the same is due, then Tenant shall pay to Landlord a late charge equal
to five percent (5%) of the overdue amount plus any reasonable attorneys’ fees
incurred by Landlord by reason of Tenant’s failure to pay Rent and/or other
charges when due hereunder.  The late
charge shall be deemed Additional Rent and the right to require it shall be in
addition to all of Landlord’s other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord’s remedies
in any manner.  In addition to the late
charge described above, any Rent or other amounts owing hereunder which are not
paid on or before the date they are due shall bear interest from the date when
due until paid at a rate per annum equal to the lesser of (i) the annual “Bank Prime Loan” rate cited in the Federal
Reserve Statistical Release Publication G.13(415), published on the first
Tuesday of each calendar month (or such other comparable index as Landlord and
Tenant shall reasonably agree upon if such rate ceases to be published) plus
two (2) percentage points, and (ii) the highest rate permitted by
applicable law.  In the event that Tenant
shall fail to timely pay Rent when due more than twice in any twelve (12) month
period, at Landlord’s option, notwithstanding anything contained in this Lease
to the contrary, Tenant shall thereafter be required to pay all Base Rent and
estimated Direct Expenses due under this Lease semi-annually in advance.


 


ARTICLE 26


 


LANDLORD’S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT


 


26.1         Landlord’s Cure.  All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant at Tenant’s
sole cost and expense and without any reduction of Rent, except to the extent,
if any, otherwise expressly provided herein. 
If Tenant shall fail to perform any obligation under this Lease, and
such failure shall continue in excess of the time allowed under Section 19.1.2,
above, unless a specific time period is otherwise stated in this Lease,
Landlord may, but shall not be obligated to, make any such payment or perform
any such act on Tenant’s part without waiving its rights based upon any default
of Tenant and without releasing Tenant from any obligations hereunder.


 


26.2         Tenant’s Reimbursement.  Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, upon delivery by Landlord
to Tenant of statements therefor:  (i) sums
equal to expenditures reasonably made and obligations incurred by Landlord in
connection with the remedying by Landlord of Tenant’s defaults pursuant to the
provisions of Section 26.1; (ii) sums equal to all losses,
costs, liabilities, damages and expenses referred to in Article 10
of this Lease; and (iii) sums equal to all expenditures made and
obligations incurred by Landlord in collecting or attempting to collect the
Rent or in enforcing or attempting to enforce any rights of Landlord under this
Lease or pursuant to law, including, without limitation, all reasonable legal
fees and other amounts so expended. 
Tenant’s obligations under this Section 26.2 shall survive
the expiration or sooner termination of the Lease Term.


 


ARTICLE 27


 


ENTRY BY LANDLORD


 


Landlord reserves the right at all reasonable times
and upon reasonable notice to Tenant (except in the case of an emergency) to
enter the Premises to (i) inspect them; (ii) show the Premises to
prospective purchasers, or to current or prospective mortgagees, ground or
underlying lessors or insurers or, during the last twelve (12) months of the
Lease Term, to prospective tenants; (iii) post notices of
nonresponsibility; or (iv) alter, improve or repair the Premises or the
Building, or for structural alterations, repairs or improvements to the
Building or the Building’s 


 


28

















 


systems and equipment. 
Notwithstanding anything to the contrary contained in this Article 27,
Landlord may enter the Premises at any time to (A) perform services
required of Landlord, including janitorial service; (B) take possession
due to any breach of this Lease in the manner provided herein; and (C) perform
any covenants of Tenant which Tenant fails to perform.  Landlord may make any such entries without
the abatement of Rent, except as otherwise provided in this Lease, and may take
such reasonable steps as required to accomplish the stated purposes.  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.  For each
of the above purposes, Landlord shall at all times have a key with which to
unlock all the doors in the Premises, excluding Tenant’s vaults, safes and
special security areas designated in advance by Tenant.  In an emergency, Landlord shall have the
right to use any means that Landlord may deem proper to open the doors in and
to the Premises.  Any entry into the
Premises by Landlord in the manner hereinbefore described shall not be deemed
to be a forcible or unlawful entry into, or a detainer of, the Premises, or an
actual or constructive eviction of Tenant from any portion of the Premises.  No provision of this Lease shall be construed
as obligating Landlord to perform any repairs, alterations or decorations
except as otherwise expressly agreed to be performed by Landlord herein.


 


ARTICLE 28


 


INTENTIONALLY DELETED


 


 


ARTICLE 29


 


MISCELLANEOUS PROVISIONS


 


29.1         Terms; Captions.  The words “Landlord”
and “Tenant” as used herein shall
include the plural as well as the singular. 
The necessary grammatical changes required to make the provisions hereof
apply either to corporations or partnerships or individuals, men or women, as
the case may require, shall in all cases be assumed as though in each case
fully expressed.  The captions of
Articles and Sections are for convenience only and shall not be deemed to
limit, construe, affect or alter the meaning of such Articles and Sections.


 


29.2         Binding Effect.  Subject to all other provisions of this
Lease, each of the covenants, conditions and provisions of this Lease shall
extend to and shall, as the case may require, bind or inure to the benefit not
only of Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of Article 14
of this Lease.


 


29.3         No Air Rights.  No rights to any view or to light or air over
any property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.  If at any time any
windows of the Premises are temporarily darkened or the light or view therefrom
is obstructed by reason of any repairs, improvements, maintenance or cleaning
in or about the  Project, the same shall
be without liability to Landlord and without any reduction or diminution of
Tenant’s obligations under this Lease.


 


29.4         Modification of Lease.  Should any current or prospective mortgagee
or ground lessor for the Building or Project require a modification of this
Lease, which modification will not cause an increased cost or expense to Tenant
or in any other way materially and adversely change the rights and obligations
of Tenant hereunder, then and in such event, Tenant agrees that this Lease may
be so modified and agrees to execute whatever documents are reasonably required
therefor and to deliver the same to Landlord within ten (10) business days
following a request therefor.  At the
request of Landlord or any mortgagee or ground lessor, Tenant agrees to execute
a short form of Lease and deliver the same to Landlord within ten (10) business
days following the request therefor.


 


29.5         Transfer of Landlord’s Interest.  Tenant acknowledges that Landlord has the
right to transfer all or any portion of its interest in the Project or Building
and in this Lease, and Tenant agrees that in the event of any such transfer,
Landlord shall automatically be released from all liability under this Lease
and Tenant agrees to look solely to such transferee for the performance of
Landlord’s obligations hereunder after the date of transfer and such 


 


29

















 


transferee shall be deemed to have fully assumed and be liable for all
obligations of this Lease to be performed by Landlord, including the return of
any Security Deposit, and Tenant shall attorn to such transferee.


 


29.6         Prohibition Against Recording.  Except as provided in Section 29.4
of this Lease, neither this Lease, nor any memorandum, affidavit or other
writing with respect thereto, shall be recorded by Tenant or by anyone acting
through, under or on behalf of Tenant.


 


29.7         Landlord’s Title.  Landlord’s title is and always shall be
paramount to the title of Tenant. 
Nothing herein contained shall empower Tenant to do any act which can,
shall or may encumber the title of Landlord.


 


29.8         Relationship of Parties.  Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.


 


29.9         Application of Payments.  Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant’s
designation of such payments, to satisfy any obligations of Tenant hereunder,
in such order and amounts as Landlord, in its sole discretion, may elect.


 


29.10       Time of Essence.  Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.


 


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


 


29.12       No Warranty.  In executing and delivering this Lease,
Tenant has not relied on any representations, including, but not limited to,
any representation as to the amount of any item comprising Additional Rent or
the amount of the Additional Rent in the aggregate or that Landlord is
furnishing the same services to other tenants, at all, on the same level or on
the same basis, or any warranty or any statement of Landlord which is not set
forth herein or in one or more of the exhibits attached hereto.


 


29.13       Landlord Exculpation.  The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord’s operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the lesser of (a) the interest of Landlord in the Building or (b) the
equity interest Landlord would have in the Building if the Building were
encumbered by third-party debt in an amount equal to eighty percent (80%) of
the value of the Building (as such value is determined by Landlord), provided
that in no event shall such liability extend to any sales or insurance proceeds
received by Landlord or the Landlord Parties in connection with the Project,
Building or Premises.  Neither Landlord,
nor any of the 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 Section 29.13 shall inure to the benefit of Landlord’s and the
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. 
Notwithstanding any contrary provision herein, neither Landlord nor the
Landlord Parties shall be liable under any circumstances for 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, in each case, however occurring.


 


29.14       Entire Agreement.  It is understood and acknowledged that there
are no oral agreements between the parties hereto affecting this Lease and this
Lease constitutes the parties’ entire agreement with respect to the 


 


30

















 


leasing of the Premises and supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if any,
between the parties hereto or displayed by Landlord to Tenant with respect to
the subject matter thereof, and none thereof shall be used to interpret or
construe this Lease.  None of the terms,
covenants, conditions or provisions of this Lease can be modified, deleted or
added to except in writing signed by the parties hereto.


 


29.15       Right to Lease.  Landlord reserves the absolute right to
effect such other tenancies in the Project as Landlord in the exercise of its
sole business judgment shall determine to best promote the interests of the
Building or Project.  Tenant does not
rely on the fact, nor does Landlord represent, that any specific tenant or type
or number of tenants shall, during the Lease Term, occupy any space in the Building
or Project.


 


29.16       Force Majeure.  Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, acts of war, terrorist acts,
inability to obtain services, labor, or materials or reasonable substitutes
therefor, governmental actions, civil commotions, fire or other casualty, and
other causes beyond the reasonable control of the party obligated to perform,
except with respect to the obligations imposed with regard to Rent and other
charges to be paid by Tenant pursuant to this Lease (collectively, a “Force Majeure”), notwithstanding anything
to the contrary contained in this Lease, shall excuse the performance of such
party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an obligation
of either party, that time period shall be extended by the period of any delay
in such party’s performance caused by a Force Majeure.


 


29.17       Waiver of Redemption by Tenant.  Tenant hereby waives, for Tenant and for all
those claiming under Tenant, any and all rights now or hereafter existing to
redeem by order or judgment of any court or by any legal process or writ,
Tenant’s right of occupancy of the Premises after any termination of this
Lease.


 


29.18       Notices.  All notices, demands, statements, designations,
approvals  or other communications
(collectively, “Notices”) given or
required to be given by either party to the other hereunder or by law shall be
in writing, shall be (A) sent by United States certified or registered
mail, postage prepaid, return receipt requested (“Mail”), (B) transmitted by telecopy, if such telecopy is
promptly followed by a Notice sent by Mail, (C) delivered by a nationally
recognized overnight courier, or (D) delivered personally.  Any Notice shall be sent, transmitted, or delivered,
as the case may be, to Tenant at the appropriate address set forth in Section 10
of the Summary, or to such other place as Tenant may from time to time
designate in a Notice to Landlord, or to Landlord at the addresses set forth
below, or to such other places as Landlord may from time to time designate in a
Notice to Tenant.  Any Notice will be
deemed given (i) three (3) days after the date it is posted if sent
by Mail, (ii) the date the telecopy is transmitted, (iii) the date
the overnight courier delivery is made, or (iv) the date personal delivery
is made.  As of the date of this Lease,
any Notices to Landlord must be sent, transmitted, or delivered, as the case
may be, to the following addresses:


 


Commonfund Realty, Inc.


15 Old Danbury Road


P.O. Box 812


Wilton, CT 06897-0812


Attention:  Jim
Keary, Managing Director


 


and


 


Allen Matkins Leck Gamble Mallory & Natsis
LLP

1901 Avenue of the Stars, Suite 1800

Los Angeles, California 90067


Attention: 
Anton N. Natsis, Esq.


 


29.19       Joint and Several.  If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.


 


31














 


29.20                     Authority.  If Tenant is a
corporation, trust or partnership, each individual executing this Lease on
behalf of Tenant hereby represents and warrants that Tenant is a duly formed
and existing entity qualified to do business in California and that Tenant has
full right and authority to execute and deliver this Lease and that each person
signing on behalf of Tenant is authorized to do so.  In such event, Tenant shall, within ten (10) days
after execution of this Lease, deliver to Landlord satisfactory evidence of
such authority and, if a corporation, upon demand by Landlord, also deliver to
Landlord satisfactory evidence of (i) good standing in Tenant’s state of
incorporation and (ii) qualification to do business in California.


 


29.21                     Attorneys’ Fees.  In the event
that either Landlord or Tenant should bring suit for the possession of the
Premises, for the recovery of any sum due under this Lease, or because of the
breach of any provision of this Lease or for any other relief against the
other, then all costs and expenses, including reasonable attorneys’ fees,
incurred by the prevailing party therein shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have accrued
on the date of the commencement of such action and shall be enforceable whether
or not the action is prosecuted to judgment.


 


29.22                     Governing Law; WAIVER OF TRIAL BY JURY.  This Lease
shall be construed and enforced in accordance with the laws of the State of
California.  IN ANY ACTION OR PROCEEDING
ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I) THE
JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF CALIFORNIA, (II) SERVICE
OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW, AND (III) IN THE
INTEREST OF SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT’S
USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY.  IN THE
EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF
BASE RENT OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF
ANY NATURE OR DESCRIPTION (UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY
SUCH PROCEEDING OR ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT
LAW.


 


29.23                     Submission of Lease.  Submission of
this instrument for examination or signature by Tenant does not constitute a
reservation of, option for or option to lease, and it is not effective as a
lease or otherwise until execution and delivery by both Landlord and Tenant.


 


29.24                     Brokers.  Landlord and Tenant hereby 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, excepting only the real estate
brokers or agents specified in Section 12 of the Summary (the “Brokers”), and that they know of no other real estate broker
or agent who is entitled to a commission in connection with this Lease.  Each party agrees to indemnify and defend the
other party against and hold the other party harmless from any and all claims,
demands, losses, liabilities, lawsuits, judgments, costs and expenses
(including without limitation reasonable attorneys’ fees) with respect to any
leasing commission or equivalent compensation alleged to be owing on account of
any dealings with any real estate broker or agent, other than the Brokers,
occurring by, through, or under the indemnifying party.


 


29.25                     Independent Covenants.  This Lease
shall be construed as though the covenants herein between Landlord and Tenant
are independent and not dependent and Tenant hereby expressly waives the
benefit of any statute to the contrary and agrees that if Landlord fails to
perform its obligations set forth herein, Tenant shall not be entitled to make
any repairs or perform any acts hereunder at Landlord’s expense or to any
setoff of the Rent or other amounts owing hereunder against Landlord.


 


29.26                     Project or Building Name and Signage. 
Landlord shall have the right at any time to change the name of the
Project or Building and to install, affix and maintain any and all signs on the
exterior and on the interior of the Project or Building as Landlord may, in
Landlord’s sole discretion, desire. 
Tenant shall not use the name of the Project or Building or use pictures
or illustrations of the Project or Building in advertising or other publicity
or for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.


 


32





















 


29.27                     Counterparts. 
This Lease may be executed in counterparts with the same effect as if
both parties hereto had executed the same document.  Both counterparts shall be construed together
and shall constitute a single lease.


 


29.28                     Confidentiality. 
Tenant acknowledges that the content of this Lease and any related
documents are confidential information. 
Tenant shall keep such confidential information strictly confidential
and shall not disclose such confidential information to any person or entity
other than Tenant’s financial, legal, and space planning consultants.


 


29.29                     Building Renovations. 
It is specifically understood and agreed that Landlord has no obligation
and has made no promises to alter, remodel, improve, renovate, repair or
decorate the Premises, Building, or any part thereof and that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant except as specifically set forth herein.  However, Tenant hereby acknowledges that
Landlord is currently renovating or may during the Lease Term renovate,
improve, alter, or modify (collectively, the “Renovations”)
the Project, the Building and/or the Premises. 
Tenant hereby agrees that such Renovations shall in no way constitute a
constructive eviction of Tenant nor entitle Tenant to any abatement of
Rent.  Landlord shall have no
responsibility and shall not be liable to Tenant for any injury to or
interference with Tenant’s business arising from the Renovations, nor shall
Tenant be entitled to any compensation or damages from Landlord for loss of the
use of the whole or any part of the Premises or of Tenant’s personal property
or improvements resulting from the Renovations, or for any inconvenience or
annoyance occasioned by such Renovations.


 


29.30                     No Violation. 
Tenant hereby warrants and represents that neither its execution of nor
performance under this Lease shall cause Tenant to be in violation of any
agreement, instrument, contract, law, rule or regulation by which Tenant
is bound, and Tenant shall protect, defend, indemnify and hold Landlord
harmless against any claims, demands, losses, damages, liabilities, costs and
expenses, including, without limitation, reasonable attorneys’ fees and costs,
arising from Tenant’s breach of this warranty and representation.


 


29.31                     Communications and Computer Lines. 
Tenant may install, maintain, replace, remove or use any communications
or computer wires and cables serving the Premises (collectively, the “Lines”), provided that (i) Tenant
shall obtain Landlord’s prior written consent, use an experienced and qualified
contractor approved in writing by Landlord, and comply with all of the other
provisions of Articles 7 and 8 of this Lease, (ii) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Project, as determined in
Landlord’s reasonable opinion, (iii) the Lines therefor (including riser
cables) shall be appropriately insulated to prevent excessive electromagnetic
fields or radiation, shall be surrounded by a protective conduit reasonably
acceptable to Landlord, and shall be identified in accordance with the “Identification
Requirements,” as that term is set forth hereinbelow, (iv) any new or
existing Lines servicing the Premises shall comply with all applicable
governmental laws and regulations, (v) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises and repair any damage in connection
with such removal, and (vi) Tenant shall pay all costs in connection
therewith.  All Lines shall be clearly
marked with adhesive plastic labels (or plastic tags attached to such Lines
with wire) to show Tenant’s name, suite number, telephone number and the name
of the person to contact in the case of an emergency (A) every four feet
(4’) outside the Premises (specifically including, but not limited to, the
electrical room risers and other Common Areas), and (B) at the Lines’
termination point(s) (collectively, the “Identification
Requirements”).  Unless
otherwise instructed by Landlord (by notice to Tenant), Tenant shall, at Tenant’s
sole cost and expense, prior to the expiration or earlier termination of this
Lease, remove any Lines located in or serving the Premises (and repair any
resulting damage).


 


29.32                     Transportation Management. 
Tenant shall fully comply with all present or future programs intended
to manage parking, transportation or traffic in and around the Project and/or
the Building, and in connection therewith, Tenant shall take responsible action
for the transportation planning and management of all employees located at the
Premises by working directly with Landlord, any governmental transportation
management organization or any other transportation-related committees or
entities.  Such programs may include,
without limitation: (i) restrictions on the number of peak-hour vehicle
trips generated by Tenant; (ii) increased vehicle occupancy; (iii) implementation
of an in-house ridesharing program and an employee transportation coordinator; (iv) working
with employees and any Project, Building or area-wide ridesharing program
manager; (v) instituting


 


33





















 


employer-sponsored incentives (financial or in-kind) to encourage
employees to rideshare; and (vi) utilizing flexible work shifts for
employees.


 


29.33                     Development of the
Project.


 


29.33.1            Subdivision.  Landlord
reserves the right to further subdivide all or a portion of the Project.  Tenant agrees to execute and deliver, upon
demand by Landlord and in the form requested by Landlord, any additional
documents needed to conform this Lease to the circumstances resulting from such
subdivision.


 


29.33.2            The Other Improvements. 
If portions of the Project or property adjacent to the Project
(collectively, the “Other Improvements”)
are owned by an entity other than Landlord, Landlord, at its option, may enter
into an agreement with the owner or owners of any or all of the Other
Improvements to provide (i) for reciprocal rights of access and/or use of
the Project and the Other Improvements, (ii) for the common management,
operation, maintenance, improvement and/or repair of all or any portion of the
Project and the Other Improvements, provided that Tenant’s rights under this
Lease are not materially impaired, (iii) for the allocation of a portion
of the Direct Expenses to the Other Improvements and the operating expenses and
taxes for the Other Improvements to the Project, and (iv) for the use or
improvement of the Other Improvements and/or the Project in connection with the
improvement, construction, and/or excavation of the Other Improvements and/or
the Project.  Nothing contained herein
shall be deemed or construed to limit or otherwise affect Landlord’s right to
convey all or any portion of the Project or any other of Landlord’s rights
described in this Lease.


 


29.33.3            Construction of Project and Other Improvements. 
Tenant acknowledges that portions of the Project and/or the Other
Improvements may be subject to demolition or construction  following Tenant’s occupancy of the Premises,
and that such construction may result in levels of noise, dust, obstruction of
access, etc. which are in excess of that present in a fully constructed
project.  Tenant hereby waives any and all
rent offsets or claims of constructive eviction which may arise in connection
with such demolition or construction.


 


[signatures
appear on following page]


 


IN WITNESS WHEREOF,
Landlord and Tenant have caused this Lease to be executed the day and date
first above written.


 


	
  LANDLORD:

  	
  TENANT:  

  
	
   

  	
   

  
	
  CFRI MARKET STREET CORP.,

  a Delaware corporation

  	
  OPEN TABLE, INC.,
 a Delaware corporation

  
	
   

  	
   

  
	
  By:

  	
  CRI PROPERTY, TRUST

  	
  By:

  	
  /s/ Thomas Layton 

  
	
   

  	
  a Maryland real estate investment trust,

  	
   

  
	
   

  	
  its sole member

  	
  Its:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James Keary

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  James Keary, Treasurer

  	
  By:

  	
  /s/ Matt Roberts

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  CFO

  
							



 


34

















 


EXHIBIT
A


 


799
MARKET STREET


 


OUTLINE
OF PREMISES


 





 


1

















 


EXHIBIT
B


 


799
MARKET STREET


 


INTENTIONALLY
DELETED


 


1

















 


EXHIBIT
C


 


799
MARKET STREET


 


NOTICE
OF LEASE TERM DATES


 


To:                              

                                              


 


 


 


 


Re:                               Office Lease dated
                        ,
200   between
                                        ,
a
                                          
(“Landlord”), and
                                              ,
a
                                              
(“Tenant”) concerning Suite             
on floor(s)                     
of the office building located at ,
                          ,
                      ,
California.


 


Gentlemen:


 


In accordance with the
Office Lease (the “Lease”), we
wish to advise you and/or confirm as follows:


 


1.                                       The Lease Term shall commence on or has
commenced on
                          
for a term of                               
ending on
                              .


 


2.                                       Rent commenced to accrue on
                        ,
in the amount of                         .


 


3.                                       If the Lease Commencement Date is other
than the first day of the month, the first billing will contain a pro rata
adjustment.  Each billing thereafter,
with the exception of the final billing, shall be for the full amount of the monthly
installment as provided for in the Lease.


 


4.                                       Your rent checks should be made payable
to
                    
at
                            .


 


5.                                       The exact number of rentable/usable
square feet within the Premises is
                  
square feet.


 


6.                                       Tenant’s Share as adjusted based upon the
exact number of usable square feet within the Premises is
                        %.


 


	
   

  	
  “Landlord”:  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  a

  	
   

  	
  ,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Its

  	
   

  	
   

  	 

								



 


1

















 


	
  Agreed to and Accepted as  

  	
   

  	
   

  
	
  of           ,
  200  .

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  “Tenant”:  

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  a  

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  
					



 


2














 


EXHIBIT
D


 


799
MARKET STREET


 


RULES
AND REGULATIONS


 


Tenant shall faithfully
observe and comply with the following Rules and Regulations.  Landlord shall not be responsible to Tenant
for the nonperformance of any of said Rules and Regulations by or otherwise
with respect to the acts or omissions of any other tenants or occupants of
the  Project.  In the event of any conflict between the Rules and
Regulations and the other provisions of this Lease, the latter shall control.


 


1.                                       Tenant shall not alter any lock or
install any new or additional locks or bolts on any doors or windows of the
Premises without obtaining Landlord’s prior written consent.  Tenant shall bear the cost of any lock
changes or repairs required by Tenant. 
Two keys will be furnished by Landlord for the Premises, and any
additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord. 
Upon the termination of this Lease, Tenant shall restore to Landlord all
keys of stores, offices, and toilet rooms, either furnished to, or otherwise
procured by, Tenant and in the event of the loss of keys so furnished, Tenant
shall pay to Landlord the cost of replacing same or of changing the lock or
locks opened by such lost key if Landlord shall deem it necessary to make such
changes.


 


2.                                       All doors opening to public corridors
shall be kept closed at all times except for normal ingress and egress to the
Premises.


 


3.                                       Landlord reserves the right to close and
keep locked all entrance and exit doors of the Building during such hours as
are customary for comparable buildings in the vicinity of the Building.  Tenant, its employees and agents must be sure
that the doors to the Building are securely closed and locked when leaving the
Premises if it is after the normal hours of business for the Building.  Any tenant, its employees, agents or any
other persons entering or leaving the Building at any time when it is so
locked, or any time when it is considered to be after normal business hours for
the Building, may be required to sign the Building register.  Access to the Building may be refused unless
the person seeking access has proper identification or has a previously
arranged pass for access to the Building. 
Landlord will furnish passes to persons for whom Tenant requests same in
writing.  Tenant shall be responsible for
all persons for whom Tenant requests passes and shall be liable to Landlord for
all acts of such persons.  The Landlord
and his agents shall in no case be liable for damages for any error with regard
to the admission to or exclusion from the Building of any person.  In case of invasion, mob, riot, public
excitement, or other commotion, Landlord reserves the right to prevent access
to the Building or the Project during the continuance thereof by any means it
deems appropriate for the safety and protection of life and property.


 


4.                                       No furniture, freight or equipment of any
kind shall be brought into the Building without prior notice to Landlord.  All moving activity into or out of the
Building shall be scheduled with Landlord and done only at such time and in
such manner as Landlord designates. 
Landlord shall have the right to prescribe the weight, size and position
of all safes and other heavy property brought into the Building and also the
times and manner of moving the same in and out of the Building.  Safes and other heavy objects shall, if
considered necessary by Landlord, stand on supports of such thickness as is
necessary to properly distribute the weight.  
Landlord will not be responsible for loss of or damage to any such safe
or property in any case.  Any damage to
any part of the Building, its contents, occupants or visitors by moving or
maintaining any such safe or other property shall be the sole responsibility
and expense of Tenant.


 


5.                                       No furniture, packages, supplies,
equipment or merchandise will be received in the Building or carried up or down
in the elevators, except between such hours, in such specific elevator and by
such personnel as shall be designated by Landlord.


 


6.                                       The requirements of Tenant will be
attended to only upon application at the management office for the Project or
at such office location designated by Landlord. 
Employees of Landlord shall not perform any work or do anything outside
their regular duties unless under special instructions from Landlord.


 


1

















 


7.                                       No sign, advertisement, notice or
handbill shall be exhibited, distributed, painted or affixed by Tenant on any
part of the Premises or the Building without the prior written consent of the
Landlord.  Tenant shall not disturb,
solicit, peddle, or canvass any occupant of the Project and shall cooperate
with Landlord and its agents of Landlord to prevent same.


 


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


 


9.                                       Tenant shall not overload the floor of
the Premises, nor mark, drive nails or screws, or drill into the partitions,
woodwork or drywall or in any way deface the Premises or any part thereof
without Landlord’s prior written consent. 
Tenant shall not purchase spring water, ice, towel, linen, maintenance
or other like services from any person or persons not approved by Landlord.


 


10.                                 Except for vending machines intended for
the sole use of Tenant’s employees and invitees, no vending machine or machines
other than fractional horsepower office machines shall be installed, maintained
or operated upon the Premises without the written consent of Landlord.


 


11.                                 Tenant shall not use or keep in or on the
Premises, the Building, or the Project any kerosene, gasoline or other
inflammable or combustible fluid, chemical, substance or material.


 


12.                                 Tenant shall not without the prior
written consent of Landlord use any method of heating or air conditioning other
than that supplied by Landlord.


 


13.                                 Tenant shall not use, keep or permit to
be used or kept, any foul or noxious gas or substance in or on the Premises, or
permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Project by reason of noise,
odors, or vibrations, or interfere with other tenants or those having business
therein, whether by the use of any musical instrument, radio, phonograph, or in
any other way.  Tenant shall not throw
anything out of doors, windows or skylights or down passageways.


 


14.                                 Tenant shall not bring into or keep
within the Project, the Building or the Premises any animals, birds, aquariums,
or, except in areas designated by Landlord, bicycles or other vehicles.


 


15.                                 No cooking shall be done or permitted on
the Premises, nor shall the Premises be used for the storage of merchandise,
for lodging or for any improper, objectionable or immoral purposes.  Notwithstanding the foregoing, Underwriters’
laboratory-approved equipment and microwave ovens may be used in the Premises
for heating food and brewing coffee, tea, hot chocolate and similar beverages
for employees and visitors, provided that such use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules and
regulations.


 


16.                                 The Premises shall not be used for
manufacturing or for the storage of merchandise except as such storage may be
incidental to the use of the Premises provided for in the Summary.  Tenant shall not occupy or permit any portion
of the Premises to be occupied as an office for a messenger-type operation or
dispatch office, public stenographer or typist, or for the manufacture or sale
of liquor, narcotics, or tobacco in any form, or as a medical office, or as a
barber or manicure shop, or as an employment bureau without the express prior
written consent of Landlord.  Tenant
shall not engage or pay any employees on the Premises except those actually
working for such tenant on the Premises nor advertise for laborers giving an
address at the Premises.


 


17.                                 Landlord reserves the right to exclude or
expel from the Project any person who, in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of these Rules and Regulations.


 


18.                                 Tenant, its employees and agents shall
not loiter in or on the entrances, corridors, sidewalks, lobbies, courts,
halls, stairways, elevators, vestibules or any Common Areas for the purpose of
smoking tobacco 


 


2

















 


products
or for any other purpose, nor in any way obstruct such areas, and shall use
them only as a means of ingress and egress for the Premises.


 


19.                                 Tenant shall not waste electricity, water
or air conditioning and agrees to cooperate fully with Landlord to ensure the
most effective operation of the Building’s heating and air conditioning system,
and shall refrain from attempting to adjust any controls.


 


20.                                 Tenant shall store all its trash and
garbage within the interior of the Premises. 
No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in the vicinity
of the Building without violation of any law or ordinance governing such
disposal.  All trash, garbage and refuse
disposal shall be made only through entry-ways and elevators provided for such
purposes at such times as Landlord shall designate.


 


21.                                 Tenant shall comply with all safety, fire
protection and evacuation procedures and regulations established by Landlord or
any governmental agency.


 


22.                                 Any persons employed by Tenant to do janitorial
work shall be subject to the prior written approval of Landlord, and while in
the Building and outside of the Premises, shall be subject to and under the
control and direction of the Building manager (but not as an agent or servant
of such manager or of Landlord), and Tenant shall be responsible for all acts
of such persons.


 


23.                                 No awnings or other projection shall be
attached to the outside walls of the Building without the prior written consent
of Landlord, and no curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Premises other
than Landlord standard drapes.  All
electrical ceiling fixtures hung in the Premises or spaces along the perimeter
of the Building must be fluorescent and/or of a quality, type, design and a
warm white bulb color approved in advance in writing by Landlord.  Neither the interior nor exterior of any
windows shall be coated or otherwise sunscreened without the prior written
consent of Landlord.  Tenant shall abide
by Landlord’s regulations concerning the opening and closing of window
coverings which are attached to the windows in the Premises, if any, which have
a view of any interior portion of the Building or Building Common Areas.


 


24.                                 The sashes, sash doors, skylights,
windows, and doors that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by Tenant, nor shall any bottles, parcels or other articles be
placed on the windowsills.


 


25.                                 Tenant must comply with requests by the
Landlord concerning the informing of their employees of items of importance to
the Landlord.


 


26.                                 Tenant must comply with the State of
California “No-Smoking” law set
forth in California Labor Code Section 6404.5, and any local “No-Smoking”
ordinance which may be in effect from time to time and which is not superseded
by such State law.


 


27.                                 Tenant hereby acknowledges that Landlord
shall have no obligation to provide guard service or other security measures
for the benefit of the Premises, the Building or the Project.  Tenant hereby assumes all responsibility for
the protection of Tenant and its agents, employees, contractors, invitees and
guests, and the property thereof, from acts of third parties, including keeping
doors locked and other means of entry to the Premises closed, whether or not
Landlord, at its option, elects to provide security protection for the Project
or any portion thereof.  Tenant further
assumes the risk that any safety and security devices, services and programs
which Landlord elects, in its sole discretion, to provide may not be effective,
or may malfunction or be circumvented by an unauthorized third party, and
Tenant shall, in addition to its other insurance obligations under this Lease,
obtain its own insurance coverage to the extent Tenant desires protection
against losses related to such occurrences. 
Tenant shall cooperate in any reasonable safety or security program
developed by Landlord or required by law.


 


28.                                 All office equipment of any electrical or
mechanical nature shall be placed by Tenant in the Premises in settings
approved by Landlord, to absorb or prevent any vibration, noise and annoyance.


 


3

















 


29.                                 Tenant shall not use in any space or in
the public halls of the Building, any hand trucks except those equipped with
rubber tires and rubber side guards.


 


30.                                 No auction, liquidation, fire sale,
going-out-of-business or bankruptcy sale shall be conducted in the Premises
without the prior written consent of Landlord.


 


31.                                 No tenant shall use or permit the use of
any portion of the Premises for living quarters, sleeping apartments or lodging
rooms.


 


Landlord reserves the
right at any time to change or rescind any one or more of these Rules and
Regulations, or to make such other and further reasonable Rules and
Regulations as in Landlord’s judgment may from time to time be necessary for
the management, safety, care and cleanliness of the Premises, Building, the
Common Areas and the Project, and for the preservation of good order therein,
as well as for the convenience of other occupants and tenants therein.  Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in
favor of any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules or Regulations against any or all tenants of the  Project. 
Tenant shall be deemed to have read these Rules and Regulations and
to have agreed to abide by them as a condition of its occupancy of the
Premises.


 


4

















 


EXHIBIT
E


 


799
MARKET STREET


 


FORM OF
TENANT’S ESTOPPEL CERTIFICATE


 


The undersigned as Tenant
under that certain Office Lease (the “Lease”)
made and entered into as of                       ,
200    by and between                       
as Landlord, and the undersigned as Tenant, for Premises on the                       
floor(s) of the office building located at                       ,
                                 ,
                      ,
California, certifies as follows:


 


1.                                       Attached hereto as Exhibit A is a true and correct
copy of the Lease and all amendments and modifications thereto.  The documents contained in Exhibit A represent the entire
agreement between the parties as to the Premises.


 


2.                                       The undersigned currently occupies the
Premises described in the Lease, the Lease Term commenced on                  ,
and the Lease Term expires on                          ,
and the undersigned has no option to terminate or cancel the Lease or to
purchase all or any part of the Premises, the Building and/or the Project.


 


3.                                       Base Rent became payable on                       .


 


4.                                       The Lease is in full force and effect and
has not been modified, supplemented or amended in any way except as provided in
Exhibit A.


 


5.                                       Tenant has not transferred, assigned, or
sublet any portion of the Premises nor entered into any license or concession
agreements with respect thereto except as follows:


 


6.                                       Tenant shall not modify the documents
contained in Exhibit A
without the prior written consent of Landlord’s mortgagee.


 


7.                                       All monthly installments of Base Rent,
all Additional Rent and all monthly installments of estimated Additional Rent
have been paid when due through                       .  The current monthly installment of Base Rent
is $                                    .


 


8.                                       All conditions of the Lease to be
performed by Landlord necessary to the enforceability of the Lease have been
satisfied and Landlord is not in default thereunder.  In addition, the undersigned has not
delivered any notice to Landlord regarding a default by Landlord thereunder.  The Lease does not require Landlord to
provide any rental concessions or to pay any leasing brokerage commissions.


 


9.                                       No rental has been paid more than thirty
(30) days in advance and no security has been deposited with Landlord except as
provided in the Lease.  Neither Landlord,
nor its successors or assigns, shall in any event be liable or responsible for,
or with respect to, the retention, application and/or return to Tenant of any
security deposit paid to any prior landlord of the Premises, whether or not
still held by any such prior landlord, unless and until the party from whom the
security deposit is being sought, whether it be a lender, or any of its
successors or assigns, has actually received for its own account, as landlord,
the full amount of such security deposit.


 


10.                                 As of the date hereof, there are no
existing defenses or offsets, or, to the undersigned’s knowledge, claims or any
basis for a claim, that the undersigned has against Landlord.


 


1

















 


11.                                 If Tenant is a corporation or
partnership, each individual executing this Estoppel Certificate on behalf of
Tenant hereby represents and warrants that Tenant is a duly formed and existing
entity qualified to do business in California and that Tenant has full right
and authority to execute and deliver this Estoppel Certificate and that each
person signing on behalf of Tenant is authorized to do so.


 


12.                                 There are no actions pending against the
undersigned under the bankruptcy or similar laws of the United States or any
state.


 


13.                                 Tenant 
is in full compliance with all federal, state and local laws,
ordinances, rules and regulations affecting its use of the Premises,
including, but not limited to, those laws, ordinances, rules or
regulations relating to hazardous or toxic materials.  Tenant has never permitted or suffered, nor
does Tenant have any knowledge of, the generation, manufacture, treatment, use,
storage, disposal or discharge of any hazardous, toxic or dangerous waste,
substance or material in, on, under or about the Project or the Premises or any
adjacent premises or property in violation of any federal, state or local law,
ordinance, rule or regulation.


 


14.                                 To the undersigned’s knowledge, all
tenant improvement work to be performed by Landlord under the Lease has been
completed in accordance with the Lease and has been accepted by the undersigned
and all reimbursements and allowances due to the undersigned under the Lease in
connection with any tenant improvement work have been paid in full.  All work (if any) in the common areas
required by the Lease to be completed by Landlord has been completed and all
parking spaces required by the Lease have been furnished and/or all parking
ratios required by the Lease have been met.


 


The undersigned
acknowledges that this Estoppel Certificate may be delivered to Landlord or to
a prospective mortgagee or prospective purchaser, and acknowledges that said
prospective mortgagee or prospective purchaser will be relying upon the
statements contained herein in making the loan or acquiring the property of
which the Premises are a part and that receipt by it of this certificate is a
condition of making such loan or acquiring such property.


 


Executed at                           
on the                    
day of                     ,
200  .


 


	
   

  	
  “Tenant”:    
  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ,

  
	
   

  	
  a

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
				



 


2

















 


EXHIBIT
F


 


799
MARKET STREET


 


FORM OF
LETTER OF CREDIT


 


(Letterhead of a
money center bank


 


acceptable to the
Landlord)


 


                          , 200   


 


[INSERT LANDLORD
ADDRESS]

                                                         


                                                         


 


Attention:                                 


 


Ladies and Gentlemen:


 


We
hereby establish our Irrevocable Letter of Credit and authorize you to draw on
us at sight for the account of [INSERT TENANT NAME AND LEGAL ENTITY] the
aggregate amount of                                                  
and No/100 Dollars ($                ).


 


Funds
under this Letter of Credit are available to the beneficiary hereof as follows:


 


Any or
all of the sums hereunder may be drawn down at any time and from time to time
from and after the date hereof by [INSERT LANDLORD ENTITY] (“Beneficiary”) when accompanied by this Letter of Credit and
a written statement signed by a representative of Beneficiary, certifying that
such moneys are due and owing to Beneficiary, and a sight draft executed and
endorsed by a representative of Beneficiary.


 


This
Letter of Credit is transferable in its entirety at no cost to Beneficiary.
Should a transfer be desired, such transfer will be subject to the return to us
of this advice, together with written instructions.


 


The
amount of each draft must be endorsed on the reverse hereof by the negotiating
bank. We hereby 

agree that this Letter of Credit shall be duly honored upon presentation and
delivery of the certification specified above.


 


This
Letter of Credit shall expire on                                    .


 


Notwithstanding
the above expiration date of this Letter of Credit, the term of this Letter of
Credit shall be automatically renewed for successive, additional one (1) year
periods unless, at least thirty (30) days prior to any such date of expiration,
the undersigned shall give written notice to Beneficiary, by certified mail,
return receipt requested and at the address set forth above or at such other
address as may be given to the undersigned by Beneficiary, that this Letter of
Credit will not be renewed.


 


This
Letter of Credit is governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication 500.


 


	
  Very
  truly yours,

  	
   

  
	
   

  	
   

  
	
  (Name
  of Issuing Bank)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
			



 


1














 


FIRST
AMENDMENT TO OFFICE LEASE


 


This
First Amendment to Office Lease (this “First
Amendment”) is made and entered into as of May 22, 2008, by and
between CFRI MARKET STREET CORP., a Delaware corporation (“Landlord”), and OPENTABLE, INC., a Delaware
corporation (“Tenant”).


 


R E C I T A L S :


 


A.                                   Landlord and Tenant entered into that
certain Office Lease, dated March 29, 2007 (the “Lease”), whereby Landlord leases to Tenant
and Tenant leases from Landlord approximately 17,120 rentable square feet of
space located on the fourth (4th) floor (the “Existing
Premises”) of the building located at 799 Market Street, San
Francisco, California (the “Building”).


 


B.                                     Tenant desires to expand the Existing
Premises to include that certain space consisting of approximately 17,116
rentable square feet of space located on the sixth (6th) floor of the Building
(the “Expansion Premises”), as
more particularly set forth on Exhibit A attached hereto, and to
make other modifications to the Lease, as hereinafter provided.


 


A G R E E M E N T :


 


                                                NOW, THEREFORE, in consideration of the
foregoing recitals and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows.


 


1.                                       Defined Terms. 
Except as explicitly set forth in this First Amendment, each initially
capitalized term when used herein shall have the same respective meaning as is
set forth in the Lease.


 


2.                                       Premises.  Tenant shall
continue to accept the Existing Premises in its presently existing, “as is”
condition, and Landlord shall not be obligated to provide or pay for any
improvements or alterations to the Existing Premises.  Except as provided in Section 5,
below, Tenant shall accept the Expansion Premises in its presently existing, “as
is” condition, and Landlord shall not be obligated to provide or pay for any
improvements or alterations to the Expansion Premises.  Tenant also acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty
regarding the condition of either the Existing Premises or the Expansion
Premises, or the Building or with respect to the suitability of any of the
foregoing for the conduct of Tenant’s business. 
Effective as of the “Expansion
Premises Commencement Date,” as that term is defined in Section 3,
below, the “Premises,” as that
term is defined in the Lease, shall contain approximately 34,236 rentable
square feet of space in the Building and shall consist of (a) the Existing
Premises, and (b) the Expansion Premises.


 


3.                                       Term.  Tenant
acknowledges that the Expansion Premises is currently occupied by a tenant (the
“Existing Tenant”) pursuant to a
lease that extends through December 31, 2008.  


 


1

















 


Landlord shall deliver the Expansion Premises to
Tenant promptly following the Existing Tenant’s vacation and surrender thereof
and Landlord’s completion of the “Tenant Improvements,” as that term is defined
in Section 5 below.  Landlord
shall use commercially reasonable efforts (not including litigation, except as
elected by Landlord in Landlord’s sole discretion) to cause the Existing Tenant
to vacate and surrender the Expansion Premises promptly following the
termination of its lease thereof.  If Landlord
does not tender possession of the Expansion Premises to Tenant on or before any
particular date, for any reason whatsoever, Landlord shall not be liable for
any damage thereby and this First Amendment shall not be void or voidable
thereby.  The term of Tenant’s lease of
the Expansion Premise shall commence on the earlier of (the “Expansion Premises Commencement Date”) (i) the
date which is thirty (30) days after the date upon which Landlord delivers the
Expansion Premises to Tenant, which date of delivery is anticipated to be January 15,
2009, and (ii) the date that Tenant occupies any portion of the Expansion
Premises for the conduct of business, and shall continue through and include
the Lease Expiration Date (which is April 30, 2013), unless the Lease, as
amended by this First Amendment, is sooner terminated as provided in the
Lease.  The term of Tenant’s lease of the
Expansion Premises commencing as of the Expansion Premises Commencement Date
and continuing through and including the Lease Expiration Date is referred to
herein as the “Expansion Premises Term”.


 


4.                                       Rent.


 


4.1                                 Base Rent.  During the
Expansion Term, Tenant shall pay monthly installments of Base Rent for the
Expansion Premises in the amounts set forth below, but otherwise in accordance
with the terms of the Lease.  For
purposes of this First Amendment, “Expansion
Lease Year,” shall mean each consecutive twelve (12) month period
during the Expansion Term applicable to the Expansion Premises, provided that
the last Expansion Lease Year shall end on the Lease Expiration Date.


 


	
  Period During Expansion Term

  	
   

  	
  Annual Base Rent

  	
   

  	
  Monthly

  Installments of

  Base Rent

  	
   

  	
  Annual Base Rent

  Per Rentable

  Square Foot

  
	
  1

  	
   

  	
  $

  	
  684,640.00

  	
   

  	
  $

  	
  57,053.33

  	
   

  	
  $

  	
  40.00

  
	
  2

  	
   

  	
  $

  	
  701,756.00

  	
   

  	
  $

  	
  58,479.67

  	
   

  	
  $

  	
  41.00

  
	
  3

  	
   

  	
  $

  	
  718,872.00

  	
   

  	
  $

  	
  59,906.00

  	
   

  	
  $

  	
  42.00

  
	
  4

  	
   

  	
  $

  	
  735,988.00

  	
   

  	
  $

  	
  61,332.33

  	
   

  	
  $

  	
  43.00

  
	
  5 –
  Lease Expiration Date (i.e., April 30, 2013)

  	
   

  	
  $

  	
  753,104.00

  	
   

  	
  $

  	
  62,758.67

  	
   

  	
  $

  	
  44.00

  



 


Notwithstanding anything in this Section 4.1,
above, to the contrary, provided that Tenant is not in default of the Lease, as
amended hereby, Tenant shall not be obligated to pay an 


 


2

















 


amount
equal to $57,053.33 of the monthly Base Rent attributable to the Expansion
Premises for the first (1st) month of
the Expansion Term.


 


Concurrently with Tenant’s execution and delivery of
this First Amendment, Tenant shall deliver to Landlord a check payable to
Landlord in the amount of $57,053.33, which amount represents the Base Rent due
for the Expansion Premises for the second (2nd)
month of the Expansion Term.


 


4.2                                 Tenant’s Share of Direct Expenses.


 


4.2.1                        Existing Premises.  Landlord and
Tenant hereby acknowledge that Landlord allocates some of the Direct Expenses
for the Project among office space tenants of the Project and the retail space
tenants of the Project (collectively, the “General Building Cost Pool”).  Landlord and Tenant further acknowledge that
Landlord allocates Direct Expenses which only benefit the office space tenants
of the Project only to such office space tenants (the “Office Cost
Pool”).  Accordingly, Landlord
and Tenant hereby acknowledge and agree that, notwithstanding any provision to
the contrary contained in the Lease, in connection with the Existing Premises,
Tenant’s Share of Direct Expenses of (i) the Office Cost Pool shall be
20.5992% and (ii) the General Building Cost Pool shall be 11.9802%.


 


4.2.2                        Expansion Premises.  During the
Expansion Term, Tenant shall pay Tenant’s Share of Direct Expenses with respect
to the Expansion Premises in accordance with the terms of the Lease, as amended
hereby; provided, however, during the Expansion Term with respect to the
Expansion Premises, Tenant’s Share of Direct Expenses of (i) the Office
Cost Pool shall be 20.5944%, (ii) the General Building Cost Pool shall be
11.977%, and (iii) the Base Year shall be the calendar year 2009.


 


5.                                       Tenant Improvements. 
Except as set forth in this Section 5, Landlord shall not be
obligated to construct or install or pay for any improvements or facilities of
any kind in the Expansion Premises. 
Notwithstanding the foregoing, subject to the terms of this Section 5,
Landlord shall prior to Landlord’s delivery of the Expansion Premises to Tenant
(i) re-paint the interior painted areas of the Expansion Premises with one
(1) coat of Building standard paint in a Building standard color selected
by Tenant, subject to availability within five (5) business days following
demand by Landlord, and (ii) re-carpet the carpeted areas of the Expansion
Premises with Building standard carpet in a Building standard color selected by
Tenant, subject to availability within five (5) business days following
demand by Landlord (collectively the “Tenant
Improvements”).  The Tenant
Improvements shall be completed by Landlord in accordance with Building
standards.  Tenant shall have no right to
modify or alter the Tenant Improvements.


 


6.                                       Letter of Credit. 
Landlord and Tenant hereby acknowledge that, in accordance with the
Lease, Tenant has previously delivered to Landlord a Letter of Credit in the
amount of $88,453.33 (the “Existing LC Amount”),
pursuant to the terms of Article 21 of the Lease.  Concurrently with Tenant’s execution of this
First Amendment, Tenant shall deliver to Landlord an amendment to the Letter of
Credit, which amendment shall increase the Existing LC Amount to
$205,098.87.  Accordingly, upon receipt
of such amendment, notwithstanding anything in the 


 


3

















 


Lease to the contrary, the Letter of Credit amount
held by Landlord pursuant to the Lease, as amended hereby, shall equal
$205,098.87.


 


7.                                       Confidentiality. 
Tenant acknowledges that the content of this First Amendment and any
related documents are confidential information. 
Tenant shall keep such confidential information strictly confidential
and shall not disclose such confidential information to any person or entity
other than Tenant’s financial, legal, and space planning consultants.


 


8.                                       Deletion.  Section 2.2
of the Lease is hereby deleted in its entirety and is of no further force or
effect.


 


9.                                       Communications and Computer Lines located
in Expansion Premises.  Landlord hereby acknowledges
that Tenant may desire to use the existing communications, computer wires and
cables (collectively, the “Lines”)
currently located in the Expansion Premises. 
Tenant hereby acknowledges that such Lines were installed in the
Expansion Premises by the Existing Tenant. 
Landlord hereby agrees to use commercially reasonable efforts to arrange
Tenant’s access to the Expansion Premises on or after July 1, 2008 for the
purpose of determining whether Tenant wants the Lines to remain in the
Expansion Premises upon the vacation of the Expansion Premises by the Existing
Tenant.  Tenant hereby acknowledges that
Tenant shall have access to the Expansion Premises for the purpose set forth in
this Section 9 only if the Existing Tenant permits such access to
the Expansion Premises.  Landlord shall
not be liable to Tenant in any manner whatsoever, if Landlord is not able to
provide Tenant access to the Expansion Premises pursuant to the terms of this Section 9.  Landlord hereby agrees not to remove the
Lines from the Expansion Premises in the event that Tenant elects to use the
Lines located in the Expansion Premises during the Expansion Term and the
Existing Tenant elects not to remove the Lines from the Expansion
Premises.  Additionally, Landlord hereby
agrees to use commercially reasonable efforts to cause the Existing Tenant not
to remove the Lines from the Expansion Premises in the event that Tenant elects
to use the Lines located in the Expansion Premises during the Expansion Term;
provided, however, in no event shall Landlord be liable to Tenant in any manner
whatsoever if the Existing Tenant elects to remove the Lines from the Expansion
Premises.


 


10.                                 Broker.  Landlord and
Tenant hereby warrant to each other that, other than The CAC Group, Inc. (“Broker”), they have had no dealings with
any real estate broker or agent in connection with the negotiation of this
First Amendment and that they know of no other real estate broker or agent who
is entitled to a commission in connection with this First Amendment.  Each party agrees to indemnify and defend the
other party against and hold the other party harmless from any and all claims,
demands, losses, liabilities, lawsuits, judgments, and costs and expenses
(including without limitation reasonable attorneys’ fees) with respect to any
leasing commission or equivalent compensation alleged to be owing on account of
the indemnifying party’s dealings with any real estate broker or agent other
than Broker.  The terms of this Section 10
shall survive the expiration or earlier termination of the Lease, as hereby
amended.


 


11.                                 No Other Modifications. 
Except as otherwise provided herein, all other terms and provisions of
the Lease shall remain in full force and effect, unmodified by this First
Amendment.


 


4

















 


12.                                 Counterparts. 
This First Amendment may be executed in any number of original
counterparts.  Any such counterpart, when
executed, shall constitute an original of this First Amendment, and all such
counterparts together shall constitute one and the same First Amendment.


 


13.                                 Conflict.  In the event
of any conflict between the Lease and this First Amendment, this First
Amendment shall prevail.


 


IN WITNESS
WHEREOF, the parties have entered into this First Amendment as of the date
first set forth above.


 


	
  LANDLORD:     
  

  	
  TENANT:

  
	
   

  	
   

  
	
  CFRI MARKET STREET
  CORP.,

  	
  OPENTABLE, INC.,

  
	
  a Delaware corporation

  	
  a Delaware corporation 

  
	
   

  	
   

  
	
  By:

  	
  CRI PROPERTY, TRUST , 

  	
  By:

  	
  /s/
  Jeff Jordan

  
	
   

  	
  a Maryland real estate
  investment trust

  	
   

  	
   

  
	
   

  	
  its sole member

  	
  Its:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ James Keary

  	
   

  	
   

  
	
  James
  Keary, Treasurer

  	
  By:

  	
  /s/
  Matt Roberts

  
	
   

  	
   

  
	
   

  	
  Its:

  	
  CFO

  
							



 


5

















 


EXHIBIT A


 


EXPANSION
PREMISES


 





 


1