Complaint Unlimited Fee Applies

Cal. Super. - 6th Dist.April 1, 2021

Pahl & McCay A Professional Corp. 225 W. Santa Clara Suite 1500 San Jose, CA 951 13 (408) 286-5100 *4932/006 - 00848601.PDF.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [\J6 27 28 E-FILED 4/1/2021 12:00 AM PAHL & McCAY Clerk of Court A Professional Law Corporation SUpenor court Of CA’ Sarahann Shapiro, Esq. (State BarNo. 157122) county Of santa Clara 225 West Santa Clara Street 21 CV381 438 Suite 1500 Reviewed By: D Harris San Jose, California 951 13-1752 Telephone: (408) 286-5 100 Facsimile: (408) 286-5722 Email: sshapiro@pahl-mccav.com Attorneys for Plaintiff PREYLOCK SJC LLC SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA PREYLOCK SJC LLC, a Delaware limited Case N0. 21 CV381 438 liability company, [Unlimited - Exceeds $25,000] Plaintiff, V. COMPLAINT FOR BREACH OF LEASE SIMPLEMACHINES, INC., a Delaware corporation, and DOES 1 through 50, inclusive, Action Filed: Defendants. Trial Date: TBA vvvvvvvvvvv Comes now PlaintiffPREYLOCK SJC LLC, and complains as follows: 1. PlaintiffPREYLOCK SJC LLC, is and was the owner 0f the real property at issue herein at all times relevant t0 this matter. Plaintiff is a Delaware limited liability company, and has fulfilled all applicable requirements t0 conduct business and does business in the State 0f California. 2. Plaintiff is informed and believes and thereon alleges that Defendant SIMPLEMACHINES, INC., is a Delaware limited liability company, which has a principal place 0f business in the County 0f Santa Clara and which entered into a contract Where all payment and performance was due in the County 0f Santa Clara. 3. Plaintiff does not know the true names or capacities, whether individual, corporate, associate, or otherwise of Defendants sued herein as DOES 1 through 50, inclusive. Plaintiff sues said Defendants by such fictitious names and prays leave t0 amend this Complaint when the true names and capacities 0f said Defendants have been ascertained. Plaintiff is ____________________ 1 ____________________ COMPLAINT FOR BREACH OF LEASE (Case No. Pahl & McCay A Professional Corp. 225 W. Santa Clara Suite 1500 San Jose, CA 951 13 (408) 286-5100 *4932/006 - 00848601.PDF.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [\J6 27 28 informed and believes and thereon alleges that said Defendants conducted, participated in, or are responsible for the acts set forth herein, and Plaintiff is further informed and believes and thereon alleges that some 0r all of the said DOE Defendants are in combination, agency, 0r joint venture relationships With the named Defendants. 4. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, each Defendant was the agent, servant, joint venturer, partner, and/or employee 0f each and every one of the other Defendants, and was acting Within the course and scope 0f his authority, and each Defendant ratified, authorized, and approved 0f the acts 0f each other Defendant. Any acts 0r omissions attributed herein t0 a corporation 0r other business entity were authorized acts, performed by an authorized representative of said entity, acting within the course and scope of his agency or authority, and were ratified by reasonable representatives of the entity. 5. The amount in controversy exceeds $25,000 and this matter is thus properly designated as a case 0f general jurisdiction. 6. On or about August 30, 2019, Plaintiff and Defendant entered into a written lease agreement, under which Defendant agreed to lease certain premises. By means 0f a First Amendment executed 0n or about October 19, 2020, Defendant leased additional space, such that Defendant now leases from Plaintiff Suites 120 and 108 in the building located at 2890 Zanker Road, San Jose, California, (the “Premises”), for a term Which has been extended such that it now expires on 0r about November 30, 2023. True and correct copies of the original lease agreement, and the First Amendment t0 Lease, (collectively referred t0 as the “Lease Agreement”), are attached hereto as Exhibit A and incorporated herein as though fully set forth. 7. Under the terms and conditions 0f the Lease Agreement, Defendant agreed to undertake obligations including, but not limited t0, the payment of monthly installments of rent, in addition to other charges in accordance With the terms 0f said Lease Agreement. 8. Plaintiff has duly performed all 0f the terms, covenants and conditions 0f the Lease Agreement to be performed on its part. 9. Defendant has breached the Lease Agreement by failing and refusing t0 pay rent ____________________ 2 ____________________ COMPLAINT FOR BREACH OF LEASE (Case No. 1 charges as agreed in the Lease Agreement, from in or around January 2021 , through the present 2 time, and by continuing to refuse to pay the sums due in response to Plaintiff’s subsequent 3 demands for payment. 4 10. As a proximate result of Defendant’s breaches, Plaintiff has been damaged in that 5 rent and additional rent charges, have accrued and will accrue through the end of the lease term 6 in an amount to be proven at trial, but n0 less than Eighty-One Thousand Five Hundred 7 Seventy-Six Dollars and 45/100, ($81,576.45). Based upon the breach by Defendant of the 8 Lease Agreement, Plaintiff is entitled to judgment in said amount. 9 11. Section 29.21 0f the Lease Agreement provides that the prevailing party in any 10 action under the Lease Agreament shall be entitled to an award of attorney’s fees. Plaintiff has 11 employed the services of the law firm of Pahl & McCay, a professional corporation, to enforce 12 its rights under the Lease Agreement, has incurred legal fees and costs as a result of the 13 aforementioned breaches and will continue to incur legal fees and miscellaneous costs related 14 thereto. Should Plaintiff prevail in this action, Plaintiff is entitled t0 and should be awarded its 15 actual legal fees and costs incurred relating t0 this proceeding. 16 WHEREFORE, PlaintiffPREYLOCK SJC LLC, prays forjudgment against Defendant 17 SIMPLEMACHYNES, INC., and all other Defendants, jointly and severally, as follows: 18 1. For damages for breach of the Lease Agreement in an amount to be proven at trial, 19 but no less than Eighty-One Thousand Five Hundred Seventy~Six Dollars and 45/100, 20 ($81,576.45); 21 2. For attorney’s fees incurred by Plaintiff herein; 22 3. For costs of suit incurred herein; and, 23 4. For such other and further relief as this Court may deem just and proper X‘é'g’ri‘sgfifiafi‘éiip 24 DATED; Marchfl, 2021 PAHL & McCAY fifiewl'jiwwm A Profession o oration San Jose? CA 951 13 2 (403) 285.5100 5 3323220551)“ 26 27 By: v' ' Sarahann Shapiro 28 Attorneys for PlaintiffPREYLOCK SJC LLC ____________________ 3 --_-_-_---_--_--_-__ COMPLAINT FOR BREACH 0F LEASE (Case No. ) EXHIBIT A 3936074 OFFICE LEASE CENTRAL PARK PLAZA PREYLOCK SJC LLC, a Delaware limited liability company as Landlord, and SIMPLEMACHINES, INC., a Delaware corporation, as Tenant. (‘15N’l RAL PARK PLAZA {Simpchaclxincs} PREYLOCK.26 SimpleMachines Lease 4 TABLE OF CONTENTS Bags ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS ....................... 4 ARTICLE 2 LEASE TERM ...................................................................................................... 5 ARTICLE 3 BASE RENT ......................................................................................................... 6 ARTICLE 4 ADDITIONAL RENT .......................................................................................... 6 ARTICLE 5 USE 0F PREMISES ........................................................................................... 15 ARTICLE 6 SERVICES AND UTILITIES ......... . .................................................................. 15 ARTICLE 7 REPAIRS ............................................................................................................ 18 ARTICLE 8 ADDITIONS AND ALTERATIONS ................................................................ 19 ARTICLE 9 COVENANT AGAINST LIENS ........................................................................ 21 ARTICLE 10 INSURANCE ...................................................................................................... 22 ARTICLE 11 DAMAGE AND DESTRUCTION .................................................................... 24 ARTICLE 12 NONWAIVER .................................................................................................... 26 ARTICLE 13 CONDEMNATION ............................................................................................ 26 ARTICLE 14 ASSIGNMENT AND SUBLETTING ............................................................... 27 ARTICLE 15 SURRENDER 0F PREMISES; OWNERSHIP AND REMOVAL 0F TRADE FIXTURES ........................................................................................... 31 ARTICLE 16 HOLDING OVER .............................................................................................. 32 ARTICLE 17 ESTOPPEL CERTIFICATES ............................................................................ 32 ARTICLE 18 SUBORDINATION ............................................................................................ 33 ARTICLE 19 DEFAULTS; REMEDIES .................................................................................. 34 ARTICLE 20 COVENANT 0F QUIET ENJOYMENT .......................................................... 36 ARTICLE 21 SECURITY DEPOSIT ....................................................................................... 36 ARTICLE 22 SUBSTITUTION 0F OTHER PREMISES ....................................................... 37 ARTICLE 23 SIGNS ................................................................................................................. 37 ARTICLE 24 COMPLIANCE WITH LAW ............................................................................. 38 ARTICLE 25 LATE CHARGES ............................................................................................... 38 ARTICLE 26 LANDLORD'S RIGHT To CURE DEFAULT; PAYMENTS BY TENANT ............................................................................................................ 39 ARTICLE 27 ENTRY BY LANDLORD .................................................................................. 39 ARTICLE 28 TENANT PARKING .......................................................................................... 40 ARTICLE 29 MISCELLANEOUS pROVISlONs .................................................................. 41 EXHIBITS A SPACE PLAN/OUTLINE 0F PREMISES B FURNITURE INVENTORY C NOTICE 0F LEASE TERM DATES D RULES AND REGULATIONS E FORM 0F TENANT'S ESTOPPEL CERTIFICATE (‘EN I'RAL PARK PLAZA [SimNeMnchincs](i) 3936074 PREYLOCKZB SimpleMachines Lease4 INDEX Pagegsl Additional Rent ............................................................................................................................. 8 Alterations ................................................................................................................................... 20 Bank Prime Loan ........................................................................................................................ 40 Base Building .............................................................................................................................. 20 Base Rent ...................................................................................................................................... 7 Base Rent Abatement .................................................................................................................... 8 Base Rent Abatement Period ........................................................................................................ 8 Brokers ........................................................................................................................................ 47 Builder‘s All Risk ........................................................................................................................ 21 Building ........................................................................................................................................ 4 Building Hours ............................................................................................................................ l7 Common Areas ............................................................................................................................. 4 Comparable Transactions ............................................................................................................. 6 Concessions ...................................................................................... 6 Cost Pools ................................................................................................................................... l4 Direct Expenses ............................................................................................................................ 9 Estimate ...................................................................................................................................... 15 Estimate Statement ..................................................................................................................... 15 Estimated Excess ........................................................................................................................ 15 Excess ......................................................................................................................................... 14 Expense Year ................................................................................................................................ 9 Fair Market Rent ........................................................................................................................... 6 Force Majeure ............................................................................................................................. 44 Government Llsts .................................................................. 46 Hohdays ............................ 17 HVAC ......................................................................................................................................... 17 Landlord ........................................................................................................................................ 1 Landlord Paflies .......................................................................................................................... 22 Landlord Repair Notice .............................................................................................................. 25 Laws ............................................................................................................................................ 38 Lease ...................................................................................................... . ...................................... l Lease Commencement Date ......................................................................................................... 5 Lease Expiration Date ................................................................................................................... 5 Lease Term ................................................................................................................................... 5 Lease Year .................................................................................................................................... 5 Lines ............................................................................................................................................ 48 Notices ........................................................................................................................................ 45 Operating Expenses ...................................................................................................................... 9 Option Rent ................................................................................................................................... 6 Option Rent Notice ....................................................................................................................... 7 Option Term .................................................................................................................................. 5 Original Improvements ............................................................................................................... 23 Original Tenant ............................................................................................................................. 5 Outside Agreement Date ............................................................................................................... 7 .. CENTRAL PARK PLAZA (n) lSimplefvtnchines] 39360714 PREYLOCK‘ZG SimpleMachines Lease4 Parking Operator ......................................................................................................................... 41 Premises ........................................................................................................................................ 4 Project ........................................................................................................................................... 4 Proposition 13 ............................................................................................................................. 12 Renovations ................................................................................................................................ 48 Rent ............................................................................................................................................... 8 Security Deposit .......................................................................................................................... 37 Statement .................................................................................................................................... 14 Subject Space .............................................................................................................................. 27 Summary ....................................................................................................................................... l Tax Expenses .............................................................................................................................. 12 Tenant ........................................................................................................................................... 1 Tenant Individuals ...................................................................................................................... 46 Tenant’s Interest Notice ................................................................................................................ 7 Tenant’s Share ............................................................................................................................ 13 Transfer ....................................................................................................................................... 3O Transfer Notice ........................................................................................................................... 27 Transfer Premium ....................................................................................................................... 29 Transferee ................................................................................................................................... 27 Transferee Affiliate ..................................................................................................................... 28 Transfers ..................................................................................................................................... 27 Underlying Documents ............................................................................................................... 10 (”EN IIRAI. PARK PLAZA (m) [Simpchachineq 393607.4 PREYLOCK.26 SimpleMachines Lease4 CENTRAL PARK PLAZA OFFlCE LEASE This Office Lease (the "Lease"), dated as of the date set forth in Section l 0f the Summary ofBasic Lease Infonnation (the "Summary"), below, is made by and between PREYLOCK SJC LLC, a Delaware limited liability company ("Landlord"), and SIMPLEMACHINES, INC., a Delaware corporation ("Tenant"). SUMMARY OF BASIC LEASE INFORMATION TERMS OF LEASE DESCRIPTION l. Date: August 30, 2019 2. Premises 2.1 Building: That certain office building located at 2890 Zanker Road, San Jose, Califomia 95134. 2.2 Premises: Approximately 7,153 rentable square feet 0f space located 0n the first (13‘) floor of the Building and commonly known as Suite 120, as further set forth in Exhibit A t0 this Lease. 3. Lease Tenn (Article 2). 3 .1 Length of Tenn: Approximately three (3) years. 3.2 Lease Commencement Date: October 1, 2019. 3.3 Lease Expiration Date: The last day of the thirty-sixth (36"‘) full calendar month 0f the Lease Term. 3.4 Early Access: Upon the mutual execution and delivery 0f this Lease Landlord shall provide Tenant access to the Premises and parking until the Lease Commencement Date for Tenant’s installation 0f its furniture, fixtures and equipment. Such early access t0 the Premises shall be subject t0 all of the terms 0f this Lease, provided that Tenant shall not be obligated to pay Rent during such early access. (‘ENTRAL PARK PLAZA {SimpleMnchinesl 3936014 PREYLOCK.26 SimpleMachines Lease4 4. Base Rent (Anicle 3): 4.1 Amount Due: Annual Lease Months Base Rent *1-12 $ 266,091.60 13~24 $ 274,074.36 25-36 $ 282,314.64 Monthly Monthly Rental Rate Installment per Rentable 0f Base Rent Sguare Foot $ 22,174.30 $3.100 $ 22,839.53 $3.193 $ 23,526.22 $3.289 * Subject to the terms set forth in Section 3.2 below, the monthly installment ofBase Rent for the first two (2) full calendar months 0f the Lease Term shall be abated. 10. 4.2 Rent Payment Address: Base Year (Article 4): 5.1 Operating Base Year: 5.2 Tax Base Year: Tenant’s Share (Article 4): Permitted Use (Amicle 5): Security Deposit (Article 2 l): Parking Ratio (Article 28): Address ofTenant (Section 29. l 8): 3936074 PREYLOCK.26 Simp)eMaChines Lease4 Preylock SJC LLC P.O. Box 399066 San Francisco, California 94139~9066 Calendar year 2019. Calendar year 20 l 9. 16.39% (based 0n 7,153 rentable square feet in the Premises and 43,656 rentable square feet in the Building). General office, software development, electronics development, design and testing, sales and administrative use and other legally pennissible office uses only, consistent with a first-class office building. $ 47,052.44 Three and nine-tenths (3.9) unreserved parking spaces for every 1,000 rentable square feet 0f the Premises, which equals twenty~eight (28) unreserved parking spaces, subject to the terms 0f Article 28 0f this Lease. 455 Science Drive Suite 250 Madison, WI 53711 CENTRAL PARK PLAZA -.. [SimpfcMachiIms] Attn: SVP Operations With copy t0: 2890 Zanker Road, Suite 120 San Jose, CA 95134 Attention: 1 l. Address 0f Landlord (Section 29-18): See Sectlon 29. 1 8 0f the Lease. 12. Broker(s) For Landlord: . BR , I . (Semen 29.24): C E “C For Tenant: Cresa CENTRAL PARK PLAZA -3~ [SimpleMachines] 393607.4 PREYLOCK.26 SimpleMachines Lease4 ARTICLE l PREMISES, BUILDING, PROJECT: AND COMMON AREAS 1.1 Premises, Building. Project and Common Areas. 1.1.1 The Premises. Landlord hereby leases t0 Tenant and Tenant hereby leases from Landlord the premises set forth in Section 2.2 ofthe Summary (the "Premises"). The outline of the Premises is set forth in Exhibit A attached hereto and each floor 0r floors 0f the Premises has approximately the number of rentable square feet as set fonh in Section 2.2 0f the Summary. The palfies hereto agree that the lease 0f the Premises is upon and subject t0 the terms, covenants and conditions herein set forth, and Tenant covenants as a material part 0f the consideration for this Lease t0 keep and perfonn each and all 0f such terms, covenants and conditions by it t0 be kept and performed and that this Lease is made upon the condition of such performance. The panics hereto hereby acknowledge that the purpose of Exhibit A is t0 show the approximate location 0f the Premises in the Building, as that term is defined in Section 1.1.2, below, only, and such Exhibit is not meant t0 constitute an agreement, representation or warranty as t0 the construction of the Premises, the precise area thereofor the specific location ofthe Common Areas, as that temn is defined in Section 1.1.3, below, or the elements thereof 01‘ 0f the accessways t0 the Premises 0r 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 0f the Premises. Tenant also acknowledges that neither Landlord nor any agent 0f Landlord has made any representation 01’ warranty regarding the condition of the Premises, the Building or the Project (except to the extent expressly set fonh in this Lease) or with respect to the suitability 0f any ofthe foregoing for the conduct ofTenant‘s business. Landlord shall deliver the Premises to Tenant vacant and broom clean. 1.1.2 The Building and The Proiect. The Premises are a part 0f the building set forth in Section 2.1 0f the Summary (the “Building”). The Building is pan of an office project cunently known as “Central Park Plaza.” The term “Project,” as used in this Lease, shall mean (i) the Building and the Common Areas, (ii) the land (which is improved with landscaping, parking facilities and other improvements) upon which the Building and the Common Areas are located, and (iii) the office buildings located adjacent to the Building at 2890 Zanker Road, San Jose, California 95134, and the land (which is improved with landscaping, parking facilities and other improvements) upon which such adjacent office buildings are located. 1.1.3 Common Areas. Tenant shall have the non-exclusive right t0 use in_ common with other tenants in the Project, and subject to the rules and regulations referred to in Article 5 Ofthis Lease, those portions 0f 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 Ofthe Project designated by Landlord, in its discretion, including certain areas designated for the exclusive use 0f ceflain tenants, or t0 be shared by Landlord and certain tenants, are collectively refen'ed t0 herein as the "Common Areas"). The tenn “Project Common Areas,” as used in this Lease, shall mean the pomon ofthe Project designated as such by Landlord. The term “Building Common Areas,” as used in this Lease, shall mean the ponions Ofthe 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 0f Landlord and the use CENTRAL PARK PLAZA [SimpleMachinefl 3936014 PREYLOCK.26 SimpleMachines Lease4 thereof shall be subject to such reasonable, non-discriminatory rules, regulations and restrictions as Landlord may make from time to time, provided that Landlord shall use commercially reasonable efforts to minimize unreasonable interference with Tenant’s business operations during such maintenance and operation 0f the Common Areas. Landlord reserves the right to Close temporarily, make alterations 0r additions to, 0r change the location Ofelements 0f the Project and the Common Areas. ‘ 1.2 Stipulation of Rentable Square Feet 0f Premises and Building. For purposes 0f this Lease, the "rentable square feet" 0f the Premises shall be deemed t0 be as set forth in Section 2.2 0f the Summary. Landlord and Tenant hereby acknowledge and agree that the Base Rent set forth in Section 4 0f the Summaxy was calculated pursuant t0 the measurements 0f the Building and the Premises as set forth in Sections 2.1 and 2;; 0f the Summary, and that such measurements shall not be subject t0 any remeasurement 0r recalculation during the Lease Tenn. ARTICLE 2 LEASE TERM The terms and provisions of this Lease shall be effective as 0f the date of this Lease as set forth herein. The term Ofthis Lease (the "Lease Term") shall be as set forth in Section 3.1 0f the Summary, shall commence 011 the date set forth in Section 3.2 0f the Summaly (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 0f this Lease, the term "Lease Year" shall mean each consecutive twelve (12) month period during the Lease Tenn; provided, however, that (i) the first Lease Year shall commence 0n the Lease Commencement Date and if the Lease Commencement Date is the first day of a calendar month, then the first Lease Year shall end on the last day of the month immediately preceding the first anniversary 0fthe Lease Commencement Date, and if the Lease Commencement Date is other than the first day 0f a calendar month, then the first Lease Year shall end on the last day of the eleventh calendar month following the date in which the Lease Commencement Date occurs, (ii) the second and each succeeding Lease Year shall commence on the first day of the next calendar month; and (iii) the last Lease Year shall end on the Lease Expiration Date (even if such last Lease Year consists 0f less than twelve (12) months). At any time during the Lease Term, Landlord may deliver t0 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. ARTICLE 3 BASE RENT 3.1 In General. Tenant shall pay, without prior notice 0r demand, t0 Landlord or Landlord's agent at the address set forth in Section 4.2 0f the Summary, 0r, at Landlord's option, at such other place as Landlord may from time to time designate in writing, by a check 0r wire transfer for currency which, at the time ofpayment, is legal tender for private 01‘ public debts in the United States 0f America, base rent ("Base Rent") as set forth in Section 4 Ofthe Summary, payable in equal monthly installments as set forth in Section 4 of the Summary in advance on 0r CENTRAL PARK PLAZA -5- [SimpleMachines] 393607.4 PREYLOCK.26 SimpleMachines Lease4 before the first day 0f each and every calendar month during the Lease Tenn, without any setoff or deduction whatsoever. The Base Rent for the first full month ofthe Lease Term which occurs after the expiration ofany free rent period shall be paid at the time ofTenant's execution of this Lease. Ifany Rent payment date (including the Lease Commencement Date) falls 0n a day ofthe month other than the first day 0f such month 0r if any payment 0f 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 t0 the end Ofsuch calendar month 0r t0 the end 0f the Lease Term at a rate per day which is equal t0 1/365 0f the applicable annual Rent. Al] other payments or adjustments required to be made under the terms 0f this Lease that require proration 0n a time basis shall be prorated 0n the same basis. 3.2 Base Rent Abatement. Subject t0 the terms of this Section 3.2, during the first (15‘) and second (2M) full calendar months 0f the Lease Term (the "Base Rent Abatement Period"), Tenant shall not be obligated to pay Base Rent for the Premises (the "Base Rent Abatement"). The foregoing Base Rent Abatement has been granted to Tenant as additional consideration for entering into this Lease and for agreeing to pay the rent and perform the terms and conditions otherwise required under this Lease. 1f at any time during the Lease Term Tenant shall be in default under this Lease, and shall fail to cure such default within the applicable notice and cure period, ifany, set forth in this Lease, then Landlord may at its option, elect, in addition t0 any other remedies Landlord may have under this Lease, one or more ofthe following remedies: (i) that Tenant’s right to receive any Base Rent Abatement provided under this Lease Shall automatically be deemed terminated and of no funher force 0r effect, (ii) that Tenant shall immediately become obligated to pay t0 Landlord all Base Rent abated hereunder during the Base Rent Abatement Period, with interest as with interest at the "Interest Rate," as that telm is defined in Article 25 below, from the date such Base Rent would have otherwise been due but for the abatement provided herein, 0r (iii) that the dollar amount ofthe unapplied portion 0fthe Base Rent Abatement as ofsuch default shall be converted to a credit to be applied to the Base Rent applicable t0 the Premises at the end of'the Lease Term and Tenant shall immediately be obligated t0 begin paying Base Rent for the Premises in full. ARTICLE 4 ADDITIONAL RENT 4.1 General Terms. 1n addition t0 paying the Base Rent specified in Article 3 0f this Lease, Tenant shall pay Tenant’s Share (as defined in Section 4.2.7, below) 0f (i) the annual Operating Expenses, as that term is defined in Section 4.2.5 0fthis Lease, which are in excess of the amount 0f Operating Expenses applicable to the "Operating Base Year," as that term is defined in Section 4.2. 1, below, and (ii) the annual Tax Expenses, as that term is defined in Sections 4.2.6 0f this Lease, which are in excess of the amount 0f Tax Expenses applicable t0 the "Tax Base Year," as that term is defined in Section 4.2.2, below; provided, however, that in 110 event shall any decrease in either Operating Expenses or Tax Expenses for any Expense Year below Operating Expenses for the Operating Base Year and Tax Expenses for the Tax Base Year, respectively, entitle Tenant to any decrease in Base Rent 0r 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 t0 the terms 0f this Lease, are hereinafter collectively refen'ed to as the "Additional Rent", and the Base Rent and the Additional Rent are herein collectively referred to as "Rent." CENTRAL PARK PLAZA [SimpleMachincs] 3936014 PREYLOCK.26 SimpleMachines Lease4 A11 amounts due under this Alticle 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 ofTenant which survive the expiration 0f the Lease Tenn, the obligations of Tenant t0 pay the Additional Rent provided for in this Article 4 shall suwive the expiration 0f the Lease Term. 4.2 Definitions 0fKev Terms Relating to Additional R6131. As used in this Article 4, the following terms shall have the meanings hereinafier set forth: 4.2.1 "Operating Base Year" shall mean the period set forth in Section 5.1 of the Summary. 4.2.2 "Tax Base Year" shall mean the period set foflh in Section 5.2 of the Summaly. 4.2.3 “Direct Expenses” shall mean “Operating Expenses” and “Tax Expenses.” 4.2.4 “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. 4.2.5 “Operating Expenses” shall mean all expenses, Costs and amounts ofevery kind and nature which Landlord pays or accmes during any Expense Year because 0f or in connection with the ownership, management, maintenance, security, repair, replacement, restoration 0r operation 0f the Project, 0r any ponion 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 0f operating, repairing, maintaining, and renovating the utility, telephone, mechanical, sanitary, storm drainage, and elevator systems, and the cost 0f maintenance and service contracts in connection therewith; (ii) the cost of licenses, certificates, pennits and inspections and the cost 0f 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 premiums and deductibles carried by Landlord in connection with the Project as reasonably determined by Landlord; (iv) the cost oflandscaping, relamping, and a1] supplies, tools, equipment and materials used in the operation, repair and maintenance 0f the Project, or any pofiion 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 0f the Project; (vii) payments under any equipment rental agreements and the fair rental value 0f any management office space; (viii) subject t0 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 Ofcosts by the Project, including as relating to any business improvement district; (x) operation, repair, maintenance and replacement 0f all systems and equipment and components thereof of the Project; (xi) the cost ofjanitorial, alarm, security and other services, replacement ofwall and floor coverings, ceiling tiles and fixtures in Common Areas, maintenance and replacement 0f curbs and walkways, repair to roofs and re-roofing; (xii) amomization (including interest 0n the unamortized cost) over such period 0f time as Landlord shall reasonably determine, 0f the cost ofacquiring or the rental expense ofpersonal propeny used in the maintenance, operation and repair ot‘the Proj ect, CENTRAL PARK PLAZA '7' [SimpleMachines] 3936074 PREYLOCK.26 SimpleMachines Lease4 or any ponion thereof; (xiii) the cost ofcapital improvements or other costs incurred in connection with the Project (A) which are intended to effect economies in the operation 0r maintenance of the Project, 0r any portion thereof, 01' t0 reduce current 01' future Operating Expenses 01' t0 enhance the safety or security thhe Project 01' its occupants, (B) that are required t0 comply with present 0r anticipated conservation programs, (C) which are replacements 01‘ modifications 0f nonstructural items located in the Common Areas ofthe Building required to keep the Common Areas ofthe Building in good order or condition, 0r (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 0f time as Landlord shall reasonably determine, consistent with landlords 0f similarly situated firsbclass office buildings in the vicinity 0f the Project; and (xiv) costs, fees, charges 0r assessments imposed by, 01‘ resulting from any mandate imposed 0n Landlord by, any federal, state 0r local government for fire and police protection, trash removal, community services, 0r other services which d0 not constitute Tax Expenses, (xv) cost of tenant relation programs reasonably established by Landlord, (xvi) payments under any easement, license, operating agreement, declaration, restrictive covenant, or instrument pertaining t0 the sharing 0f costs by the Building, including, without limitation, any covenants, conditions and restrictions affecting the property, and reciprocal easement agreements affecting the propeny, any parking licenses, and any agreements with transit agencies affecting the Property (collectively, “Underlying Documents”) and (xvii) a Project management fee (the “Project Management Fee”) for Landlord’s management 0f the Project. Notwithstanding the foregoing, for purposes 0f this Lease, Operating Expenses shall not, however, include: (a) costs, including legal fees, space planners’ fees, advenising and promotional expenses (except as otherwise set forth above), and brokerage fees incurred in connection with the original construction or development, 0r original or future leasing 0f the Project, and costs, including pelmit, license and inspection costs, incurred with respect to the installation 0f tenant improvements made for new tenants initially occupying space in the Project afier the Lease Commencement Date or incurred in renovating 0r otherwise improving, decorating, painting or redecorating vacant space for tenants 01‘ other occupants of the Project (excluding, however, such costs relating t0 any Common Areas 0f the Project or parking facilities); (b) except as set fonh in items (xii), (xiii), and (xiv) above, depreciation, interest and principal payments 0n mortgages and other debt costs, if any, penalties and interest, costs 0f capital repairs and alterations, and costs 0f capital improvements and equipment; (c) costs for which the Landlord is reimbursed by any tenant 0r occupant ofthe Project or by insurance by its can‘ier or any tenant’s carrier 0r 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 Ofthe business ofthe pafinership 0r 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 t0, accounting costs associated with the operation 0f the Project). Costs associated with the operation 0f the business 0f the partnership 0r entity which constitutes the Landlord include costs 0f panncrship accounting and CENTRAL PARK PLAZA [SinwleMachinesJ 3936014 PREYLOCKQG SimpIeMachines Lease4 legal matters, costs Ofdefending any lawsuits with any mortgagee (except as the actions 0f the Tenant may be in issue), costs of selling, syndicating, financing, mortgaging 0r hypothecating any 0f 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, 01' between Landlord and other tenants or occupants; (f) the wages and benefits of any employee who does not devote substantially all of his 0r her employed time to the Project unless such wages and benefits are prorated t0 reflect time spent 0n operating and managing the Project vis-z‘i-vis time spent 0n matters unrelated t0 operating and managing the Project; provided, that in n0 event shall Operating Expenses for purposes 0f 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) overhead and profit increment paid to the Landlord or t0 subsidiaries 0r affiliates Ofthe Landlord for sewices in the Project t0 the extent the same exceeds the costs 0f such services rendered by qualified, first-class unaffiliated third parties 0n a competitive basis; (i) any compensation paid to clerks, attendants 0r other persons in commercial concessions operated by the Landlord, provided that any compensation paid to any concierge at the Projectshall be includable as an Operating Expense; (j) rentals and other related expenses incurred in leasing air‘ conditioning systems, elevators 01' other equipment which if purchased the cost ofwhich would be excluded from Operating Expenses as a capital cost, except equipment not affixed to the Project which is used in providing janitorial 0r similar services and, further excepting from this exclusion such equipment rented 0r leased t0 remedy or ameliorate an emergency condition in the Project; (k) all items and services for which Tenant 0r any other tenant in the Proj ect reimburses Landlord or which Landlord provides selectively to one 0r 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 0f such office space exceeds the size 0r fair market rental value 0f office space occupied by management personnel of the comparable buildings in the vicinity 0f the Building, with adjustment where appropriate for the size Ofthe applicable project; (n) costs arising from the gross negligence 0r willful misconduct 0f Landlord or its agents, employees, vendors, contractors, 0r providers of materials 0r services; (0) costs incurred t0 comply with laws relating t0 the removal 0f hazardous material (as defined under applicable law) which was in existence in the Building 0r 0n the Project prior to the Lease Commencement Date, and was 0f such a nature that a federal, State 0r municipal governmental authority, if it had then had knowledge 0f the presence of such CENTRAL PARK PLAZA [SimpleMachines] ”9- 3936014 PREYLOCK.26 SimpleMachines Lease4 hazardous material, in the state, and under the conditions that it then existed in the Building 0r 0n the Project, would have then required the removal ofsuch hazardous material or other remedial or containment action with respect thereto; and costs incun'ed t0 remove, remedy, contain, 0r treat hazardous material, which hazardous material is brought into the Building or onto the Project after the date hereofby Landlord 0r any other tenant of the Project and is of such a nature, at that time, that a federal, State 0r municipal governmental authority, if it had then had knowledge of the presence of such hazardous material, in the state, and under the conditions, that it then exists in the Building or 0n the Project, would have then required the removal 0f such hazardous material 01‘ other remedial 01' containment action with respect thereto; (p) increases in insurance costs caused by the activities of another occupant of the Project; (q) expense reserves for future expenses; (r) costs which could properly be capitalized, as reasonably determined by Landlord, except to the extent forth in this Section 4.2.5 above; (s) costs occasioned by insured casualties or condemnation (except that the cost of Landlord’s insurance premiums and deductibles are expressly included in Operating Expenses as set forth above); (t) any fee, profit 01‘ compensation paid 0r retained by Landlord 0r its affiliates for management and administration 0f the Project except for the Project Management Fee and which shall not be in excess 0f3% of gross revenues. IfLandlord is not fumishing any particular work 0r service (the cost 0f which, ifperfonned by Landlord, would be included in Operating Expenses) to a tenant who has undefiaken to perform such work or service in lieu 0f 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 0r service t0 such tenant. If the Project is not at least one hundred percent (1 00%) occupied during all 0r a portion ofthe Operating Base Year 0r any Expense Year, Landlord shall make an appropriate adjustment to the components of Operating Expenses for such year t0 determine the amount ofOperating Expenses that would have been incurred had the Project been one hundred percent (100%) occupied; and the amount so determined shall be deemed t0 have been the amount 0f Operating Expenses for such year. In no event shall the components of Direct Expenses for any Expense Year related t0 Project insurance, security 01‘ utility costs be less than the components of Direct Expenses related t0 Project insurance, security or utility costs, respectively, in the Operating Base Year. 4.2.6 Taxes. 4.2.6.1 “Tax Expenses” shall mean all federal, state, county, 0r local governmental 01* municipal taxes, fees, charges 01‘ other impositions of every kind and nature, whether general, Special, ordinary 0r extraordinary, (including, without limitation, real estate taxes, general and special assessments, transit taxes, leasehold taxes 0r taxes based upon the receipt 0f rent, including gross receipts 0r sales taxes applicable t0 the receipt 0f rent, unless required t0 be CENTRAL PARK PLAZA - 1 0- {Simpchachinesl 3936014 PREYLOCK.26 SimpieMachines Leased paid by Tenant, personal propetTy taxes imposed upon the fixtures, machinexy, equipment, apparatus, systems and equipment, appurtenances, fumiture and other personal propefiy used in connection with the Project, 01‘ any portion thereof), which shall be paid or accrued during any Expense Year (without regard t0 any different fiscal year used by such governmental or municipal authority) because 0f 0r in connection with the ownership, leasing and operation of the Project, or any portion thereof. 4.2.6.2 Tax Expenses shall either be included with Operating Expenses 0r separately billed as Tax Expenses (but not both) in accordance with this Article 4 and shall include, without limitation: (i) Any tax 0n the rent, right to rent 0r other income from the Project, or any portion thereof, 0r as against the business of leasing the Project, 01‘ any portion thereof; (ii) Any assessment, tax, fee, levy 0r charge in addition to, or in substitution, paflially or totally, 0f any assessment, tax, fee, levy 0r 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 0f 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 sewices as fire protection, street, sidewalk and road maintenance, refuse removal and for other govemmental services formerly provided without charge to propefiy owners 0r occupants, and, in further recognition of the decrease in the level and quality 0f governmental sewices and amenities as a result ofProposition 13, Tax Expenses shall also include any governmental or private assessments 0r the Project’s contribution towards a governmental or private cost-sharing agreement for the purpose of augmenting 0r improving the quality of services and amenities normally provided by governmental agencies; (iii) Any assessment, tax, fee, levy, 0r charge allocable to 01' measured by the area 0f the Premises 0r the Rent payable hereunder, including, without limitation, any business 0r gross income tax 0r excise tax with respect t0 the receipt of such rent, 0r upon 0r with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by Tenant 0f the Premises, 0r any portion thereof; and (iv) Any assessment, tax, fee, levy 0r charge, upon this transaction 0r any document t0 which Tenant is a party, creating 0r transferring an interest 0r an estate in the Premises. Regardless 0f the actual Taxes assessed against the Project, Tax Expenses during the Tax Base Year shall include any supplemental assessment 0r taxes triggered during such Tax Base Year (i.e., such as an increase in Tax Expenses triggered by the sale of the Project during the Tax Base Year) regardless 0f when Landlord receives any applicable supplemental tax bill 0r assessment. 4.2.6.3 Any costs and expenses (including, without limitation, reasonable attomeys’ and consultants’ fees) incurred in attempting to protest, reduce 0r 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 t0 Tenant regardless 0f when received, based 0n 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. IfTax Expenses for any period during the Lease Tenn 0r any extension thereof are increased after payment thereoffoxf any reason, including, without limitation, error 0r reassessment by applicable govemmental 0r municipal authorities, Tenant shall pay Landlord upon demand Tenant’s Share of any such increased Tax Expenses included by Landlord as Tax Expenses pursuant to the terms 0f this Lease. Notwithstanding anything t0 the contrary contained in this Section 4.2.6 (except as set forth in Section 4.2.6.1, above), there shall be excluded from Tax Expenses (i) all excess profits taxes, CENTRAL PARK PLAZA '1 1' {SimpleMachines} 3936014 PREYLOCK.26 SimpleMachines Lease4 franchise taxes, gifi taxes, documentary transfer taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal and state income taxes, and other taxes t0 the extent applicable t0 Landlord’s general 0r net income (as opposed t0 rents, receipts or income attributable t0 operations at the Prdject), (ii) any items included as Operating Expenses, (iii) any items paid by Tenant under Section 4.5 of this Lease, (iv) taxes imposed 0n land and improvements other than the Project, and (v) tax increases resulting from the improvement ofany Ofthe Project for the sole use ofother occupants. 4.2.6.4 Notwithstanding anything to the contrary set fonh in this Lease, the amount 0f Tax Expenses for the Base Year and any Expense Year shall be calculated without taking into account any decreases in real estate taxes obtained in connection with Proposition 8, and, therefore, the Tax Expenses in the Base Year and/or a Expense Year may be greater than those actually incuned by Landlord, but shall, nonetheless, be the Tax Expenses due under this Lease; provided that (i) any costs and expenses incun'ed by Landlord in securing any Proposition 8 reduction shall not be deducted from Tax Expenses nor included in Direct Expenses for puxposes of this Lease, and (ii) tax refunds under Proposition 8 shall not be deducted from Tax Expenses nor refunded to Tenant, but rather shall be the sole property 0f Landlord. Landlord and Tenant acknowledge that the preceding sentence is not intended to in any way affect (A) the inclusion in Tax Expenses of the statutory two percent (2.0%) annual increase in Tax Expenses (as such statutory increase may be modified by subsequent legislation), 0r (B) the adjustment of Tax Expenses pursuant to the terms 0f Proposition 13. 4.2.7 “Tenant’s Share” shall mean the percentage set fonh in Section 6 of the Summary. 4.3 Allocation of Direct Expenses. 4.3.1 Method 0f Allocation. The parties acknowledge that the Building is a part 0f a multi-building project and that the costs and expenses incurred in connection with the Project (Le. the Direct Expenses) should be shared between the tenants of the Building and the tenants of any other building in the Project. Accordingly, as set forth in Section 4.2 above, Direct Expenses (which consist of Operating Expenses and Tax Expenses) are determined annually for the Project as a whole, and a portion of the Direct Expenses, which portion shall be determined by Landlord on an equitable basis, shall be allocated to the tenants of the Building (as opposed t0 the tenants 0f any other building in the Project) and such ponion shall be the Direct Expenses for purposes 0f this Lease. Such portion ofDirect Expenses allocated t0 the tenants of the Building shall include all Direct Expenses attributable solely to the Building and an equitable pofiion of the Direct Expenses attributable to the Project as a whole. In n0 event shall Direct Expenses allocated t0 the tenants 0fthe Building include Direct Expenses attributable solely to other buildings in the Proj ect. 4.3.2 Cost Pool. Landlord shall have the right, from time to time, to equitably allocate some 0r a1] 0f the Direct Expenses for the Project among different portions or occupants 0f the Project (the “Cost Pools”), in Landlord’s reasonable discretion. Such Cost Pools may include, but shall not be limited t0, the office space tenants 0f a building 0f the Project or 0f the Project, and the retail space tenants 0f a building of the Project 0r of the Project. The Direct Expenses within each such Cost P001 shall be allocated and charged to the tenants within such Cost Pool in an equitable manner. CENTRAL PARK PLAZA ‘ I 2' [SimpleMacllincs] 393607.4 PREYLOCK.26 SimpleMachines Lease4 4.4 Calculation and Pavment 0f Additional Rent. If for any Expense Year ending or commencing within the Lease Tenn (following the Base Year), Tenant’s Share 0f Direct Expenses for such Expense Year exceeds Tenant's Share 0f Operating Expenses and Tax Expenses applicable t0 the Operating Base Year and Tax Base Year, respectively, then Tenant shall pay t0 Landlord, in the manner set forth in Section 4.4. 1 , below, and as Additional Rent, an amount equal t0 the excess (the “Excess”). 4.4.1 Statement 0f Actual Direct Exgcnses and Payment bx Tenant. Landlord shall give to Tenant following the end ofeach 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 0f the Excess. Upon receipt 0f the Statement for each Expense Year commencing or ending during the Lease Tenn (following the Base Year), if an Excess is present, Tenant shall pay, with its next installment 0f Base Rent due, the full amount ofthe 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 0f Tenant’s overpayment against Rent next due under this Lease. The failure 0f Landlord to timely fumish 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 is 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 t0 Tenant in the amount 0f the overpayment. The provisions 0f this Section 4.4.1 shall survive the expiration 01‘ earlier termination 0f the Lease Term. 4.4.2 Statement of Estimated Direct Expenses. In addition, Landlord shall 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 Operating Expenses and Tax Expenses for the then-current Expense Year shall be and the estimated excess (the “Estimated Excess”) as calculated by comparing the Operating Expenses and Tax Expenses for such Expense Year, which shall be based upon the Estimate to the amount OfOperating Expenses and Tax Expenses for the Operating Base Year and Tax Base Year, respectively. The failure of Landlord to timely fumish 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 0r Estimated Excess theretofore delivered to the extent necessaly. 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 t0 the last sentence of this Section 4.4.2). Such fraction shall have as its numerator the number 0f 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 t0 Tenant at any time), Tenant shall pay monthly, with the monthly Base Rent installments, an amount equal t0 one-twelfth (1/12) of the total Estimated Excess set fonh in the previous Estimate Statement delivered by Landlord to Tenant. CENTRAL PARK PLAZA - I 3- [SimpleMachincsl 3936074 PREYLOCK.26 SimpleMachines Lease4 4.5 Taxes and Other Charges for Which Tenant [s Directly Responsible. 4.5.1 Tenant shall be liable for and shall pay ten (10) days before delinquency, taxes levied against Tenant’s equipment, fumiture, fixtures and any other personal property located in or about the Premises. If any such taxes 0n Tenant’s equipment, fumiture, fixtures and any other personal property are levied against Landlord or Landlord’s property 0r if the assessed value 0f Landlord’s propeny is increased by the inclusion therein 0f a value placed upon such equipment, furniture, fixtures 0r any other personal property and if Landlord pays the taxes based upon such increased assessment, which Landlord shall have the right to d0 regardless of the validity thereof but only under proper protest if requested by Tenant, Tenant shall within thirty (30) days following Landlord’s written demand repay to Landlord the taxes so levied against Landlord 0r the proportion 0f 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 0r not affixed to the real property so as t0 become a pal’t thereof, are assessed for real property tax purposes at a valuation higher than the valuation at which tenant improvements conforming t0 Landlord’s “building standard” in other space in the Building are assessed, then the Tax Expenses levied against Landlord or the property by reason 0f such excess assessed valuation shall be deemed to be taxes levied against personal property of Tenant and shall be governed by the provisions 0f Section 4.5.1, above. 4.5.3 Notwithstanding any contrary provision herein, Tenant shall pay prior t0 delinquency any (i) rant tax or sales tax, service tax, transfer tax 0r value added tax, or any other applicable tax on the rent or services herein 0r otherwise respecting this Lease, (ii) taxes assessed upon 0r with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use 0r occupancy by Tenant of the Premises or any portion of the Project, including the Project parking facility; 0r (iii) taxes assessed upon this transaction or any document to which Tenant is a party creating 0r transferring an interest or an estate in the Premises. 4.6 Landlord's Books and Records, Within ninety (90) days after receipt 0f a Statement by Tenant, Tenant may submit a written notice t0 Landlord that Tenant disputes the amount 0f Direct Expenses (0r any charges therein) set forth in the Statement. If Tenant timely submits such notice, an independent certified public accountant (which accountant is a member 0f a nationally or regionally recognized accounting firm and which accountant shall not be compensated 0n a contingency fee 0r similar basis related to the result of such audit), designated by Tenant, may, after reasonable notice to Landlord and at reasonable times subject t0 Landlord's reasonable scheduling requirements, inspect Landlord's records at Landlord's offices; provided that Tenant is not then in default under this Lease and Tenant has paid all amounts required t0 be paid under the applicable Statement; and fufiher provided that such inspection must be completed within twenty (20) business days afier Landlord's records are made available to Tenant. In connection with such inspection 0f Landlord's records, Tenant and Tenant‘s agents must agree in advance t0 follow Landlord's reasonable rules and procedures regarding an inspection of Landlord's records, and shall execute a commercially reasonable confidentiality agreement regarding the same. If, within ten (10) days after such inspection, Tenant notifies Landlord in writing that Tenant still disputes such Direct Expenses included in the Statement, then a cex’tification as t0 the proper amount shall be made, at Tenant's expense, by an independent cenified public accountant selected by Landlord, which certification shall be final and conclusive; CENTRAL PARK PLAZA -14- [SimpleMachines] 393607.4 PREYLOCK.26 SimpleMachines Lease4 provided, however, if the actual amount 0f Direct Expenses due for that Expense Year, as determined by such certification, is determined to have been overstated by more than five percent (5%), then Landlord shall pay the costs associated with such certification. 'I"cnant's failure (i) to take exception t0 any Statement within ninety (90) days after Tenant’s receipt 0f such Statement, (ii) t0 timely complete its inspection ofLandlord’s records, 01‘ (iii) t0 timely notify Landlord 0f any remaining dispute after such inspection shall be deemed t0 be Tenant's approval 0f such Statement and Tenant, thereafter, waives the right or ability t0 dispute the amounts set forth in such Statement, which Statement shall be considered final and binding. ARTICLE 5 USE 0F PREMISES 5.1 Permitted Use. Tenant shall use the Premises solely for the Permitted Use set forth in Section 7 of the Summaly and Tenant shall not use or permit the Premises 0r the Project t0 be used for any other pumose 0r purposes whatsoever without the prior written consent of Landlord, which may be withheld in Landlord's sole discretion. 5.2 Prohibited Uses. The uses prohibited under this Lease shall include, without limitation, use 0f the Premises 0r a portion thereof for (i) offices of any agency 0r bureau 0f the United States 0r any state 0r political subdivision thereof; (ii) offices 0r agencies 0f any foreign governmental or political subdivision thereof; (iii) offices 0f any health care professionals or service organization; (iv) schools 0r other training facilities which are not ancillary to corporate, executive 0r professional office use; (v) retail 0r restaurant uses; (vi) communications firms such as radio and/or television stations, or (vii) an executive suites subleasing business 0r operation. Tenant shall not allow occupancy density 0f use of the Premises which is greater than the typical density used by tenants occupying premises similar t0 the Premises for uses similar to the Permitted Use, in buildings in the vicinity 0f the Building. Tenant further covenants and agrees that Tenant shall not use, 0r suffer 0r permit any person 0r persons t0 use, the Premises 0r any part thereof for any use 0r purpose contrary t0 the provisions 0f the Rules and Regulations set forth in Exhibit D, attached hereto, 0r in violation 0f the laws of the United States 0f America, the State of California, or the ordinances, regulations or requirements 0f the local municipal 0r county governing body 01‘ other lawful authorities having jurisdiction over the Project) including, without limitation, any such laws, ordinances, regulations 0r requirements relating to hazardous materials 0r substances, as those tcnns are defined by applicable laws now 0r hereafier in effect. Notwithstanding the foregoing, Landlord agrees that (i) Landlord shall apply and enforce the Rules and Regulations in a non-discriminatory manner, and (ii) Tenant may use a reasonable amount of solder and solvents such as acetone so long as the same is used, stored and disposed 0f in compliance with all applicable Laws. Tenant shall not do or permit anything t0 be done in 0r about the Premises which will in any way damage the reputation of the Project 0r obstruct or interfere with the rights 0f other tenants 0r occupants 0f the Building, 0r injure 0r annoy them 0r use 0r allow the Premises t0 be used for any unlawful purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall comply with all recorded covenants, conditions, and restrictions (“CC&Rs”) now or hereafter affecting the Project; provided that, to the extent the same is in Landlord’s reasonable control, Landlord shall use commercially reasonable efforts t0 provide that any such CC&Rs, 01‘ modifications, effectuated after the date of this Lease shall not unreasonably interfere with the nonnal and customary conduct 0f Tenant's CENTRAL PARK PLAZA " 1 5- [Simpchachines] 3936014 PREYLOCK.26 SimpleMachines Lease4 business at the Premises, 01‘ materially increase the obligations 0r decrease the rights 0f Tenant under this Lease. Notwithstanding anything to the contrary set fofih above, Landlord represents and waxrants to Tenant that Tenant’s Permitted Use does not violate the CC&Rs currently in effect for the Project. ARTICLE 6 SERVICES AND UTILITIES 6.1 Standard Tenant Services. Landlord shall provide the following services 0n all days (unless otherwise stated below) during the Lease Term. 6.1.1 Subject to limitations imposed by all govemmental rules, regulations and guidelines applicable thereto, Landlord shall provide heating and air conditioning (”HVAC”) when necessary for normal comfort for nonnal office use in the Premises from 8:00 A.M. to 6:00 P.M. Monday through Friday, and on Saturdays from 9:00 A.M. to 1:00 RM. (collectively, the "Building Hours"), except for the date 0f Observation 0f New Year's Day, Presidents‘ Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the Friday afier Thanksgiving, Christmas Day and, at Landlord's discretion, other locally 0r nationally recognized holidays (collectively, the "Holidays"). Notwithstanding the Building Hours, Tenant shall have the right t0 access the Premises 24 hours a day, 7 days per week, subject to the terms and conditions ofthis Lease. 6.1 .2 Landlord shall provide adequate electrical wiring and facilities for normal general office use and electricity at levels consistent with nonnal general office use, as reasonably determined by Landlord. Tenant shall bear the cost 0f replacement 0f 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. 6.1.4 Landlord shall provide customary weekday janitorial services t0 the Premises, except the date 0f observation of the Holidays, in and about the Premises and window washing services in a manner consistent with other comparable buildings in the vicinity 0f the Building. ' 6.1.5 Landlord shall provide nonexclusive, non~attended automatic passenger elevator service during the Building Hours and shall have one elevator available at all other times 6.1.6 If the Building contains a freight elevator, Landlord shall provide nonexclusive freight elevator service subject t0 scheduling by Landlord. 6.1.7 Landlord shall provide reasonable access-control services for the Building and in the Building parking facility in a manner materially consistent with the services provided by Landlord as ofthe date 0f this Lease. CENTRAL PARK PLAZA ~ I 6- [SimpicMachinesl 3936074 PREYLOCKZB SimpleMachines Lease4 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. I 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 01‘ lighting other than Building standard lights in the Premises, which may affect the temperature otherwise maintained by the air conditioning system 01' increase the water normally furnished for the Premises by Landlord pursuant t0 the terms ofSection 6.1 ofthis Lease. If such consent is given, Landlord shall have the right t0 install supplementary air conditioning units 0r other facilities in the Premises, including supplementary 0r additional metering devices, and the cost thereof, including the cost ofinstallation, operation and maintenance, increased wear and tear on existing equipment and other similar charges, shall be paid by Tenant to Landlord upon billing by Landlord. If Tenant uses water, electricity, heat 0r air conditioning in excess of that supplied by Landlord pursuant t0 Section 6.1 of this Lease, 0r ifTenant shall install and/or operate in the Premises any equipment which shall have an electrical consumption greater than that 0f normal general office equipment, 0r which, consistent with the practices of the landlords of comparable first class office buildings located in the vicinity of the Building, are considered to be high electricity consumption equipment, Tenant shall pay t0 Landlord, upon billing, the cost of such excess consumption, the cost 0f the installation, operation, and maintenance of equipment which is installed in order t0 supply such excess consumption, 21nd the cost 0f the increased wear and tear 0n existing equipment caused by such excess consumption; and Landlord may install devices t0 separately meter any increased use and in such event Tenant shall pay the increased cost directly t0 Landlord, on demand, at the rates charged by the public utility company furnishing the same, including the cost ofsuch additional metering devices. Tenant's use ofelectricity shall never exceed the capacity of the feeders to the Project 0r the risers or wiring installation, and subject t0 the terms of Section 29.32, below, Tenant shall not install or use 0r permit the installation 0r use ofany computer or electronic data processing equipment in the Premises, without the prior written consent of Landlord. IfTenant desires to use heat, ventilation 0r 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 t0 supply such utilities, and Landlord shall supply such utilities to Tenant at such hourly cost to Tenant (which shall be treated as Additional Rent) as Landlord shall from time to time establish. Notwithstanding any provision to the contrmy contained in this Lease, Tenant shall promptly pay to Landlord, Landlord’s standard charge for any sewices provided to Tenant at Tenant’s request which Landlord is not specifically obligated to provide t0 Tenant pursuant t0 the terms of this Lease. 6.3 Interruption of Use. Tenant agrees that Landlord shall not be liable for damages, by abatement 0f Rent or otherwise (except t0 the extent provided in Article I 1 below), for failure to fumish 0r delay in furnishing any service (including telephone and telecommunication services), 0r for any diminution in the quality or quantity thereof, when such failure 0r delay or diminution is occasioned, in whole 0r in part, by breakage, repairs, replacements, 0r improvements, by any strike, lockout 0r other labor trouble, by inability t0 secure electricity, gas, water, 0r other fuel at the Building or Project after reasonable effofi t0 d0 so, by any riot or other dangerous condition, emergency, accident 0r casualty whatsoever, by act or default ofTenant 0r other patties, or by any other cause; and such failures 0r delays 0r diminution shall never be deemed t0 constitute an CENTRAL PARK PLAZA ’ 1 7‘ [Simpchachines] 393607.41 PREYLOCK.26 SimpleMachines Lease4 eviction 0r disturbance 0f Tenant's use and possession of the Premises 0r relieve Tenant from paying Rent or performing any 0f its obligations under this Lease. Funhennore, Landlord shall not be liable under any circumstances for a loss 0f, 0r injury t0, property 01‘ for injury t0, 0r interference with, Tenant's business, including, without limitation, loss 0f profits, however occurring, through 01‘ in connection with 0r incidental t0 a failure t0 furnish any Ofthe services 01‘ utilities as set forth in this Article 6. Landlord may comply with voluntary controls or guidelines promulgated by any governmental entity relating to the use 0r conservation 0f energy, water, gas, light or electricity 0r the reduction 0f automobile 0r other emissions without creating any liability of Landlord t0 Tenant under this Lease, provided that the Premises are not thereby rendered untenantable. ARTICLE 7 REPAIRS Subject t0 Landlord’s obligations under this Article 7, and the provisions ofAnicle 11 and Aflicle l3 below, Tenant shall, at Tenant's own expense, pursuant t0 the tenns of this Lease, including without limitation Article 8 hereof, keep the Premises, including all improvements, fixtures and furnishings therein, and the floor 0r floors 0f the Building on which the Premises are located, in as good order, repair and condition as received at all times during the Lease Tenn. In addition, Tenant shall, at Tenant's own expense, but under the supervision and subject t0 the prior approval 0f Landlord, and within any reasonable period 0f time specified by Landlord, pursuant to the tenns 0f this Lease, including without limitation Article 8 hereof, promptly and adequately repair all damage to the Premises and replace or repair all damaged, broken, 0r worn fixtures and appurtenances, except for damage caused by ordinary wear and tear, casualty, condemnation 0r damage that is beyond the reasonable control 0f Tenant; provided however, that, at Landlord's option, 0r if Tenant fails t0 make such repairs, Landlord may, afier written notice to Tenant and Tenant's failure to repair within a reasonable period thereafter, but need not, make such repairs and replacements, and Tenant shall pay Landlord the cost thereof, including a percentage ofthe 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 within ten (10) days afier being billed for same. Landlord may, but shall not be required to, enter the Premises at all reasonable times to make such repairs, alterations, improvements 0r additions to the Premises or to the Project or to any equipment located in the Project as Landlord shall desire or deem necessary 0r as Landlord may be required to d0 by governmental 0r quasi-govemmental authority 0r coufi order 0r decree. Tenant hereby waives any and all rights under and benefits of subsection 1 0f Section 1932 and Sections 1941 and 1942 0fthe California Civil Code or under any similar law, statute, 0r ordinance now 01' hereafier in effect. Notwithstanding anything t0 the contrary herein, Tenant shall have no responsibility t0 perform 0r construct, any repair, maintenance or improvements (a) necessitated by the acts 0r omissions of Landlord 01‘ any other occupant of the Project (other than Tenant), 0r their respective agents, employees or contractors, 0r (b) to the stmctural portions of the Premises, unless such structural repairs 01‘ improvements are required due t0 Tenant’s pamicular use 0f the Premises, Tenant’s alterations 01' Tenant’s failure t0 maintain the other portions 0f the Premises as required above 0r other breach 0f this Lease, 0r (c) which could be treated as a “capital expenditure”, except as expressly set forth in the other Amicles Ofthis Lease (such as Articles 4, 1 1 and 24). Landlord shall maintain and repair the structure 0f the Building, the Building systems CENTRAL PARK PLAZA [SimpleMachincsl’ -13- 393607.4 PREYLOCK.26 SimpleMachines Lease4 serving the Premises, the Common Areas and other poxtions 0fthe Project outside 0f the Premises, and the cost thereof shall be included in Operating Expenses to the extent permitted in Article 4. ARTICLE 8 ADDITIONS AND ALTERATIONS 8.1 Landlord's Consent to Alterations. Tenant may not make any improvements, alterations, additions 0r changes t0 the Premises 0r any mechanical, plumbing 01“ HVAC facilities 0r systems penaining t0 the Premises (collectively, the "Alterations") without first procuring the prior written consent 0f Landlord t0 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 for Landlord to withhold its consent to any Alteration which adversely affects the structural portions or the systems or equipment 0f the Building 0r is visible from the exterior of the Building. Landlord hereby consents to Tenant’s installation 0f commercially reasonable data and other cabling in the Premises. 8.2 Manner of Construction. Landlord may impose, as a condition 0f its consent to any and all Alterations 0r repairs of the Premises or about the Premises, such requirements as Landlord in its sole 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 tennination of the Lease Term, and the requirement that all Alterations confonn in terms 0f quality and style to the building’s standards established by Landlord. If such Alterations will involve the use of 0r disturb hazardous materials 01‘ substances existing in the Premises, Tenant shall comply with Landlord’s rules and regulations concerning such hazardous materials 0r substances. Landlord's approval of the plans, specifications and working drawings for Tenant's Alterations shall create no responsibility 0r liability 0n the part of Landlord for their completeness, design sufficiency, 0r compliance with all Laws. Tenant shall constmct 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 pennit, issued by the City of San Jose, all in conformance with Landlord's construction rules and regulations. In the event Tenant performs any Alterations in the Premises which require 0r give rise t0 governmentally required changes t0 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 pofiions 0f the Building, and the public restrooms and the systems and equipment located in the internal core 0f the Building on the floor or floors on which the Premises are located. In performing the work 0f any such Alterations, Tenant shall have the work perfonned in such manner so as not to obstruct access t0 the Project 0r any portion thereof, by any other tenant of the Project, and so as'not t0 obstruct the business of Landlord 01' other tenants in the Project. Tenant shall not use (and upon notice from Landlord shall cease using) contractors, subcontractors, services, workmen, labor, materials 01' equipment that, in Landlord's reasonable judgment, would disturb labor harmony with the workforce 0r trades t0 be engaged in performing other work, labor 01‘ sewices in 0r about the Building 0r the Common Areas. In addition t0 Tenant's Obligations under Article 9 0f this Lease, upon completion ofany (‘EN TRAL PARK PLAZA - 1 9- [SimpleMachinesI 3936074 PREYLOCK.26 SimpleMachines Lease4 Alterations costing in excess 0f $50,000, Tenant agrees to cause a Notice of Completion to be recorded in the office of the Recorder of the County 0f Santa Clara in accordance with Section 81 82 0fthe Civil Code Ofthe State of California 0r any successor statute, and Tenant shall deliver t0 the Project management office a reproducible copy 0f the ”as built" drawings 0f 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 directly t0 contractors, Tenant shall comply with Landlord’s requirements for final lien releases and waivers in connection with Tenant’s payment for work to contractors. Tenant shall reimburse Landlord for Landlord’s actual out ofpocket costs and expenses incurred in connection with Landlord’s review ofsuch work in connection with such Alterations. 8.4 Construction Insurance. 1n addition to the requirements of Amicle 10 0f this Lease, in the event that Tenant makes any Alterations, prior t0 the commencement 0f such Alterations, Tenant shall provide Landlord with evidence that Tenant carries "Builder's Al] Risk" insurance in an amount approved by Landlord covering the construction of such Alterations, and such other insurance as Landlord may require, it being understood and agreed that all of such Alterations shall be insured by Tenant pursuant t0 Article 10 of this Lease immediately upon completion thereof. 1n addition, Landlord may, in its discretion, require Tenant to obtain a lien and completion bond in an amount sufficient to ensure the lien-free completion ofsuch Alterations and naming Landlord as a co-obligee. 8.5 Landlord's Progerg. All Alterations, improvements, fixtures, equipment and/or appurtenances which may be installed 0r placed in 01' about the Premises, from time to time, shall be at the sole cost ofTenant and 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 return the affected portion 0f the Premises to a building standard tenant improved condition as determined by Landlord. Furthermore, Landlord may, by written notice to Tenant prior to the end of the Lease Term, 0r given following any earlier tennination of this Lease, require Tenant, at Tenant's expense, to remove any Alterations and/or improvements and/or systems and equipment within the Premises and to repair any damage t0 the Premises and Building caused by such removal and return the affected pomon 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 0f any Alterations 0r improvements in the Premises, and return the affected ponion 0f the Premises t0 a building standard tenant improved condition as determined by Landlord, then at Landlord's option, either (A) Tenant shall be deemed t0 be holding over in the Premises ‘and Rent shall continue to accrue in accordance with the terms of Amicle 16, below, until such work shall be completed, 0r (B) Landlord may do so and may charge the cost thereof to Tenant. Tenant hereby protects, defends, indemnifies and holds Landlord harmless from any liability, cost, obligation, expanse or claim of lien in any manner relating to the installation, placement, removal 0r financing of any such Alterations, improvements, fixtures and/or equipment in, 0n or about the Premises, which obligations ot‘Tenant shall survive the expiration 0r earlier termination 0f this Lease. CENTRAL PARK PLAZA~20- [Simp‘cMnchines] 393607.4 PREYLOCK.26 SimpleMachines Lease4 ARTICLE 9 COVENANT AGAINST LIENS Tenant shall keep the Project and Premises free from any liens 0r encumbrances arising out of the work performed, materials furnished 0r obligations incurred by or 0n behalf 0f Tenant, and shall protect, defend, indemnify and hold Landlord hannless from and against any claims, liabilities, judgments 0r costs (including, without limitation, reasonable attomeys’ fees and costs) arising out 0f same 0r in connection therewith Tenant shall give Landlord notice at least twenty ('20) days prior t0 the commencement 0f any such work 0n the Premises (or such additional time as may be necessary under applicable laws) t0 afford Landlord the opportunity 0f posting and recording appropriate notices of non-responsibility. Tenant shall remove any such lien 0r encumbrance by bond 0r otherwise within five (5) days after notice by Landlord, and if Tenant shall fail t0 d0 so, Landlord may pay the amount necessary t0 remove such lien 0r 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 01' encumbrances whether claimed by operation of law 01' express or implied contract. Any claim to a lien 0r encumbrance upon the Building 0r Premises arising in connection with any such work or respecting the Premises not performed by 0r at the request 0f 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 0f damage to property or injury t0 persons in, upon 01‘ about the Premises from any cause whatsoever and agrees that Landlord, its partners, members and their respective partners, members, 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 0r property 0r resulting from the loss ofuse thereof, which damage is sustained by Tenant 01' by other persons claiming through Tenant, except t0 the extent caused by the gross negligence 0r willful misconduct 0f Landlord 0r the Landlord Parties, 0r Landlord's default under this Lease. Tenant shall indemnify, defend, protect, and hold hannless the Landlord Parties from any and all loss, cost, damage, expense and liability (including without limitation court costs and reasonable attomeys’ fees) incurred in connection with 01' arising from any cause in, 0n 0r about the Premises, any violation of any 0f the requirements, ordinances, statutes, regulations 0r other laws, including, without limitation, any environmental laws, any acts, omissions or negligence 0f Tenant 0r of any person claiming by, through 0r under Tenant, or of the contractors, agents, servants, employees, invitees, guests 0r licensees 0fTenant 0r any such person, in, on or about the Proj ect or any breach 0fthe terms 0f this Lease, either prior t0, during, or after the expiration ofthe Lease Term, provided that the terms 0f the foregoing indemnity shall not apply to the gross negligence 0r willful misconduct 0f Landlord 0r Landlord’s default under this Lease. Should Landlord be named as a defendant in any suit brought against Tenant in connection with or arising out 0f Tenant's CENTRAL PARK PLAZA ' “ lmpc RCHIICS21 [5' 1M I‘ 1 393607.4 PREYLOCKZS SimpleMachines Lease4 occupancy of‘the Premises, Tenant shall pay t0 Landlord its costs and expenses incurred in such suit, including without limitation, its actual professional fees such as appraisex‘s', accountants‘ and attorneys’ fees. Further, Tenant's agreement t0 indemnify Landlord pursuant to this Section 10.1 is not intended and shall not relieve any insurance carrier ofits obligations under policies required to be carried by Tenant pursuant t0 the provisions ofthis Lease, to the extent such policies cover the matters subject t0 Tenant's indemnification obligations; nor shall they supersede any inconsistent agreement of the panics set forth in any other provision Ofthis Lease. 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 t0 such expiration or termination. 10.2 Tenant's Compliance With Landlord's Fire and Casualtv Insurance. Tenant shall, at Tenant's expense, comply with all insurance company requirements peflaining to the use of the Premises. If Tenant's conduct 0r use 0f 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 0f the American Insurance Association (fennerly the National Board 0f 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 ofbodily injury, personal injury and propeny damage (including loss ofuse thereof) arising out of Tenant‘s operations, and contractual liabilities (covering the performance by Tenant of its indemnity agreements) including a Broad Fonn endorsement covering the insuring provisions 0f this Lease and the perfonnance by Tenant 0f the indemnity agreements set forth in Section 10.1 of this Lease, for limits ofliability not less than: Bodily Injury and $3,000,000 each occurrence Property Damage Liability $3,000,000 annual aggregate Personal Injury Liability $3,000,000 each occurrence $3,000,000 annual aggregate 0% Insured's palticipation 10.3.2 Physical Damage Insurance covering (i) all office furniture, business and trade fixtures, office equipment, fi’ee-standing cabinet work, movable partitions, merchandise and all other items 0f Tenant’s property on the Premises installed by, for, 01' at the expense ofTenant, (ii) any other improvements which exist in the Premises as 0f the Lease Commencement Date (excluding the Base Building) (the "Original Improvements"), and (iii) all other improvements, alterations and additions to the Premises. Such insurance shall be written 0n an "all risks" of physical loss or damage basis, for the full replacement cost value (subject t0 reasonable deductible amounts) new without deduction for depreciation 0f the covered items and in amounts that meet any co-insurance clauses of the policies 0f insurance and shall include coverage for damage 0r other loss caused by fire 0r other peril including, but not limited t0, vandalism and malicious CENTRAL PARK PLAZA [SuupchchlIinch 393607‘4 PREYLOCK.26 SimpleMachines Lease4 mischief, theft, water damage 0f any type, including sprinkler leakage, bursting 0r 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 t0 all applicable state and local statutes and regulations. 10.4 Form of Policies. The minimum limits ofpolicies ofinsurance required 0f Tenant under this Lease shall in no event limit the liability of Tenant under this Lease. Such insurance shall (i) name Landlord, Landlord's lender, 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 0f not less than AaVIII in Best's Insurance Guide or which is otherwise acceptable t0 Landlord and licensed to do business in the State ofCalifomia; (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 fonn and content reasonably acceptable t0 Landlord; (vi) contain a cross-liability endorsement or severability of interest clause acceptable to Landlord; and (vii) provide that said insurance shall not be canceled 0r coverage changed unless twenty (20) days‘ prior written notice shall have been given (whether by such insurer or Tenant) t0 Landlord and any mortgagee ofLandlord ofwhich Tenant has been provided notice. Tenant shall deliver said policy 0r policies or certificates thereof to Landlord on 0r before the Lease Commencement Date and at least twenty (20) days before the expiration dates thereof. In the event Tenant shall fail to procure such insurance, 0r t0 deliver such policies 0r cemificate, Landlord may, at its option, procure such policies for the account of Tenant, and the cost thereof shall be paid t0 Landlord within five (5) days after delivery t0 Tenant 0f bills therefor. 10.5 Subrogation. Landlord and Tenant intend that their respective property loss risks shall be borne by reasonable insurance carriers t0 the extent above provided, and Landlord and Tenant hereby agree t0 100k solely t0, and seek recovery only from, their respective insurance carriers in the event of a property loss to the extent that such loss is the result 0f a risk insurable under policies 0f property damage insurance. Notwithstanding anything to the contrary in this Lease, the pafiics each hereby waive and release all rights and claims against each other for such losses that result from a risk which is actually insured against 0r which would normally be covered by all risk property insurance can‘ied by either party hereunder, without regard to the negligence 01‘ willful misconduct 0f the entity so released, and waive all rights of subrogation 0f their respective insurers, provided such waiver 0f subrogation in not intended to affect the right to the insured t0 recover under such policies. The patties agree that their respective insurance policies are now, 0r shall be, endorsed such that the waiver of subrogation shall not affect the right of the insured to recover thereunder, so long as n0 material additional premium is charged therefor. 10.6 Additional Insurance Obligations. Tenant shall early and maintain during the entire Lease Term, at Tenant's sole cost and expense, increased amounts ofthe insurance required t0 be carried by Tenant pursuant t0 this Atticle 10 and such other reasonable types 0f insurance coverage and in such reasonable amounts covering the Premises and Tenant’s Operations therein, as may be reasonably requested by Landlord. CENTRAL PARK PLAZA -23- [SimpleMachines] 393607.4 PREYLOCK.26 SimpleMachines LeaseA ARTICLE ll DAMAGE AND DESTRUCTION 11.1 Repair of Damage t0 Premises bv Landlord. Tenant shall promptly notify Landlord 0f any damage t0 the Premises resulting from fire 0r any other casualty. If the Premises 0r Common Areas serving 0r providing access t0 the Premises shall be damaged by fire 01‘ other casualty, Landlord shall promptly and diligently, subject t0 reasonable delays for insurance adjustment or other matters beyond Landlord's reasonable control, and subject t0 all other tenns of this Article 11, restore the Base Building and such Common Areas. Such restoration shall be to substantially the same condition 0f the Base Building and the Common Areas prior t0 the casualty, except for modifications required by zoning and building codes and other laws or by the holder 0f a mortgage 0n the Building or Project 0r any other modifications t0 the Common Areas deemed desirable by Landlord, provided that access t0 the Premises and any common restrooms serving the Premises shall not be materially impaired. Upon the occurrence of any damage t0 the Premises, upon notice (the "Landlord Repair Notice") to Tenant from Landlord, Tenant shall. assign to Landlord (0r to any party designated by Landlord) all insurance proceeds payable t0 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 can‘ier, as assigned by Tenant, the cost of such repairs shall be paid by Tenant t0 Landlord prior to Landlord's commencement of repair of the damage. In the event that Landlord does not deliver the Landlord Repair Notice mmmfiMywmdwsEWMmgmeMmmewwmwbmmmwbmwnmLmflm¢TwmanL 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 0r not Landlord delivers a Landlord Repair Notice, prior to the commencement 0f construction, Tenant shall submit to Landlord, for Landlord's review and approval, all plans, specifications and working drawings relating thereto, and all contractors selected by Tenant shall be subject t0 Landlord’s approval (not to be unreasonably withheld, conditioned 0r delayed). Landlord shall not be liable for any inconvenience 0r annoyance t0 Tenant or its visitors, 0r injury to Tenant's business resulting in any way from such damage 0r the repair thereef; provided however, that if such fire 0r other casualty shall have damaged the Premises or Common Areas necessary t0 Tenant's occupancy, Landlord shall allow Tenant a proportionate abatement 0f Rent t0 the extent Landlord is reimbursed from the proceeds of rental interruption insurance purchased by Landlord as pan of Operating Expenses, during the time and to the extent the Premises are unfit for occupancy for the purposes permitted under this Lease, and not occupied by Tenant as a result thereof; provided, further, however, that if the damage 0r destruction is due to the negligence 0r willful misconduct 0f Tenant 0r any 0f its agents, employees, contractors, invitees 0r guests, Tenant shall be responsible for any reasonable, applicable insurance deductible (which shall be payable t0 Landlord upon demand) and there shall be no rent abatement. In the event that Landlord shall not deliver the Landlord Repair Notice, Tenant's right to rent abatement pursuant t0 the preceding sentence shall terminate as 0f the date which is reasonably determined by Landlord to be the date Tenant should have completed repairs t0 the Premises assuming Tenant used reasonable due diligence in connection therewith. Notwithstanding anything t0 the contrary herein, ifthe Premises CENTRAL PARK PLAZA [SimpleMachiucs] -24- 3936074 PREYLOCK.26 SimpleMachines Lease4 are damaged by any peril such that Tenant is unable to (and does, not) use 21nd occupy a reasonable portion of the Premises t0 conduct its business, and Landlord does not terminate this Lease, then Tenant shall have the right t0 terminate this Lease, upon written notice t0 Landlord, if the Premises cannot be, or are not in fact, fully restored by Landlord to their prior condition within nine (9) months after the damage (when such repairs are made without the payment 0f overtime 0r other premiums). If such damage occurs during the last six (6) months of the Lease Tenn, Tenant shall have the same right ifsuch damage cannot be, 0r is not in fact, fully restored within one hundred twenty (1 20) days after the damage. 11.2 Landlord's Option to Repgjg. Notwithstanding the terms of Section 11.1 0f 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 0f such termination within sixty (60) days afler the date ofdiscovery 0f the damage, such notice t0 include a tennination date giving Tenant sixty (60) days t0 vacate the Premises, but Landlord may so elect only if the Building 0r Project shall be damaged by fire or other casualty 0r cause, whether 0r not the Premises are affected, and one 0r more 0f the following conditions is present: (i) in Landlord‘s reasonable judgment, repairs cannot reasonably be completed within one hundred eighty ( l 80) days afier the date 0f discovery 0f the damage (when such repairs are made without the payment of overtime or other premiums); (ii) the holder of any mofigage 0n the Building or Project 0r ground lessor with respect to the Building 0r Project shall require that the insurance proceeds or any portion thereof be used t0 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 (with deductibles thereunder deemed “covered”); (iv) Landlord also terminates the lease of at least one other similarly situated and affected tenant; or (v) the damage occurs during the last twelve (12) months 0f the Lease Term. Notwithstanding the foregoing, Landlord shall not have the right to tenninate this Lease under this Section 1 1.2 due t0 relatively minor damage (i.e., where the cost t0 repair is less than 5% of the value 0f the portion 0f the Premises, Building 0r Project so affected). 11.3 Waiver of Statutorv Provisions. The provisions 0f this Lease, including this Article 11, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, 0r destruction of, all 0r any part 0f the Premises, the Building or the Project, and any statute 0r regulation of the State of California, including, without limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with respect t0 any rights or obligations concerning damage or destruction in the absence 0f an express agreement between the parties, and any other statute or regulation, now 0r hereafter in effect, shall have no application to this Lease 0r any damage 0r destruction t0 all 0r any pat“: 0f the Premises, the Building or the Project. ARTICLE 12 NONWAIVER N0 provision of this Lease shall be deemed waived by either party hereto unless expressly waived in a writing signed thereby. The waiver by either pany hereto 0f any breach ofany term, covenant 0r condition herein contained shall not be deemed to be a waiver 0f any subsequent breach of the same 01' any other term, covenant 0r condition herein contained. The subsequent acceptance 0f Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant ofany term, covenant 01‘ condition 0f this Lease, other than the failure ofTenant CENTRAL PARK PLAZA -25~ {SinlpleMachines} 393607.4 PREYLOCK.26 SimpleMachines Lease4 t0 pay the panicular Rent so accepted, regardless 0f Landlord‘s knowledge of such preceding breach at the time 0f acceptance 0f such Rent. N0 acceptance 0f a lesser amount than the Rent herein stipulated shall be deemed a waiver 0f Landlord's right to receive tho full amount due, nor shall any endorsement 01‘ statement on any check or payment 0r any letter accompanying such check or payment be deemed an accord and satisfaction, and Landlord may accept such Check 01‘ payment without prej udice t0 Landlord's right t0 recover the full amount due. N0 receipt ofmonies by Landlord from Tenant afler the termination ofthis Lease shall in any way alter the length Ofthe Lease Term or 0f Tenant's right of possession hereunder, 0r after the giving 0f any notice shall reinstate, continue 0r extend the Lease Tenn or affect any notice given Tenant prior t0 the receipt of such monies, it being agreed that after the service 0f notice 0r the commencement 0f a suit, 0r afier final judgment for possession 0f the Premises, Landlord may receive and collect any Rent due, and the payment 0f said Rent shall not waive 0r affect said notice, suit or judgment. ARTICLE 13 CONDEMNATION If the whole 0r any pan 0f the Premises, Building or Project shall be taken by power of eminent domain 0r condemned by any competent authority for any public or quasi-public use or purpose, 0r if any adjacent propeny 0r street shall be so taken 01' condemned, or reconfigured or vacated by such authority in such manner as t0 require the use, reconstruction 0r remodeling 0f any part 0f the Premises, Building or Project, or if Landlord shall grant a deed 0r other instrument in lieu 0f 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. Ifmore than twenty-five percent (25%) of the rentable square feet of the Premises is taken, 0r if access t0 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 tenninate this Lease effective as 0f the date possession is required t0 be surrendered t0 the authority. Tenant Shall not because 0f such taking assert any claim against Landlord 0r the authority for any compensation because of such taking and Landlord shall be entitled t0 the entire award or payment in connection therewith, except that Tenant shall have the right to file any separate claim available t0 Tenant for any taking of Tenant's personal property and fixtures belonging t0 Tenant and removable by Tenant upon expiration 0f the Lease Term pursuant t0 the terms 0f this Lease, and for moving expenses, so long as such claims do not diminish the award available t0 Landlord, its ground lessor with respect t0 the Building or Project 0r its mongagee, and such claim is payable separately to Tenant. All Rent shall be apportioned as of the date of such termination. If any pm 0f 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 t0 Section 1265.130 0f The California Code ofCivil Procedure. Notwithstanding anything to the contrary contained in this Article 13, in the event ofa temporary taking ofall or any portion 0f the Premises for a period ofone hundred and eighty (180) days 01‘ less, then this Lease shall not terminate but the Base Rent and the Additional Rent shall be abated for the period 0f such taking in pmportion t0 the ratio that the amount of rentable square feet 0f the Premises taken bears t0 the total rentable square feet Ofthe Premises. Landlord shall be entitled t0 receive the entire award made in connection with any such temporary taking. CENTRAL PARK PLAZA [Simpchachincs] -26- 393607.4 PREYLOCK.26 SimpleMachines Lease4 ARTICLE 14 ASSIGNMENT AND SUBLETTING 14.1 Transfers. Tenant shall not, without the prior written consent 0f Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach t0, or otherwise transfer, this Lease or any interest hereunder, pennit any assignment, 0r other transfer 0f this Lease or any interest hereunder by operation 0f law, sublet the Premises 01‘ any pan thereof, or enter into any license or concession agreements or otherwise permit the occupancy or use Ofthe Premises or any pan thereof by any persons other than Tenant and its employees and contractors (all of the foregoing are hereinafier sometimes referred to collectively as "Transfers" and any person to whom any Transfer is made 0r sought t0 be made is hereinafter sometimes referred to as a "Transferee"). IfTenant 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 0f delivery 0f the Transfer Notice, (ii) a description of the portion 0f the Premises to be transferred (the "Subject Space"), (iii) all 0f the terms of the proposed Transfer and the consideration therefor, including calculation 0f 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 an executed copy 0f all documentation effectuating the proposed Transfer, including all operative documents to evidence such Transfer and all agreements incidental 0r related t0 such Transfer, provided that Landlord shall have the right to require Tenant to utilize Landlord’s standard consent documents in connection with Landlord’s consent to such Transfer, and provided further that the terms of the prdposed Transfer shall provide that such proposed Transferee shall not be permitted to further assign or sublease its interest in the Subject Space and/or Lease without Landlord’s consent per the terms of this Lease, and (iv) current financial statements of the proposed Transferee certified by an officer, pafiner or owner thereof, business credit and personal references and histony 0f the proposed Transferee and any other information required by Landlord which will enable Landlord to determine the financial responsibility, character, and reputation 0f the proposed Transferee, nature 0f such Transferee‘s business and proposed use of the Subject Space. Any Transfer made without Landlord's prior written consent shall, at Landlord's option, be null, void and ofno effect, and shall, at Landlord's option, constitute a default by Tenant under this Lease. Whether 01' not Landlord consents t0 any proposed Transfer, Tenant Shall pay Landlord's review and processing fees, as well as any reasonable professional fees (including, without limitation, attomeys', accountants', architects“, engineers’ and consultants' fees) incurred by Landlord, within thirty (30) days after written request by Landlord (not to exceed $2,500, in the aggregate, per request). 14.2 Landlord's Consent. Landlord shall not unreasonably withhold, condition or delay its consent to any proposed Transfer of the Subject Space t0 the Transferee 0n the terms specified in the Transfer Notice. Without limitation as t0 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 01' more of the following apply: 14.2.1 Intentionally deleted; CENTRAL PARK PLAZA -27- [SimpleMachines] 3936074 PREYLOCKZB SimpleMachines Lease4 14.2.2 The Transferee intends t0 use the Subject Space for purposes which are not pelmitted under this Lease; 14.2‘3 The Transferee is either a governmental agency 01' instrumentality thereof; 14.2.4 The Transferee is not a pany ofreasonable financial worth and/or financial stability in light of the responsibilities to be undertaken in connection with the Transfer 0n the date consent is requested; 14.2.5 The proposed Transfer would cause a violation 0f another lease for space in the Project, 0r would give an occupant 0f the Project a right t0 cancel its lease; 14.2.6 The tenns 0f the proposed Transfer will allow the Transferee t0 exercise a right of renewal, right 0f expansion, right of first offer, or other similar right held by Tenant; 14.2.7 The proposed Transferee is negotiating with Landlord (which for purposes 0fthis section shall be evidenced by the transmittal 0f one 01‘ more letters of intent, drafi proposals 0r lease documents by the proposed Transferee to Landlord or Landlord to the proposed Transferee) t0 lease space in the Project at such time, or (ii) has negotiated with Landlord during the three (3)-month period immediately preceding the Transfer Notice; 14.2.8 The Transferee does not intend to occupy the Subject Space and conduct its business therefrom for a substantial portion of the term of the 'l‘ransfer; 14.2.9 The texms 0f the proposed Transfer provide for a rental or other payment based in whole 0r in part on the income or profits derived by any person from the Subject Space (other than an amount based 0n a fixed percent or percentages of gross receipts or sales), which percent or percentages and any breakpoints are fixed at the inception of the Transfer; or 14.2.10 The tenns 0f the proposed Transfer would cause any ponion 0f the amounts payable to Landlord hereunder not to constitute "rents from real property" within the meaning 0f Section 5 1 2(b)(3) Ofthe Internal Revenue Code. If Landlord consents to any Transfer pursuant to the tenns of this Section 14.2 (and does not exercise any recapture rights Landlord may have under Section 14.4 0f this Lease), Tenant may within six (6) months afier Landlord's consent, but not later than the expiration 0f said six- month period, enter into such Transfer 0f the Premises 0r 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 t0 such Transfer under this Section 14.2, 0r (ii) which would cause the proposed Transfer to be materially more favorable t0 the Transferee than the telms 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 l4 (including Landlord's right of recapture, if any, under Section 14.4 Ofthis Lease). Notwithstanding anything t0 the contrary in this Lease, ifTenant 0r any proposed Transferee claims that Landlord has unreasonably withheld 0r delayed its consent under Section 14.2 0r otherwise has breached 01‘ acted unreasonably under this Anicle l4, their sole remedies Shall be a declaratory judgment and an injunction for the relief sought and actual (‘EN‘I‘RAL PARK PLAZA~28- [Sinmlelviachiucs] 393607.4 PREYLOCK.26 SimpleMachines Lease4 (but not consequential 0r any other) damages, and Tenant hereby waives all other remedies, including, without limitation, any right at law or equity t0 terminate this Lease, 0n its own behalf and, t0 the extent permitted under all applicable laws, on behalfofthe proposed Transferee. Tenant shall indemnify, defend and hold hannless Landlord from any and all liability, losses, claims, damages, costs, expenses, causes 0f action and proceedings involving any third party 0r parties (including without limitation Tenant‘s proposed subtenant 01' assignee) who claim they were damaged by Landlord's wrongful withholding or conditioning 0f Landlord's consent. 14.3 Transfer Premium. If Landlord consents t0 a Transfer, as a condition thereto which the parties hereby agree is reasonable, Tenant shall pay t0 Landlord fifiy percent (50%) 0f any Transfer Premium, as that term is defined in this Section 14.3, received by Tenant from such Transferee in any particular calendar month. "Transfer Premium" shall mean all rent, additional rent 0r other consideration payable by such Transferee in connection with the Transfer in excess ofthe Rent and Additional Rent payable by Tenant under this Lease during the term 0fthe Transfer on a per rentable square foot basis if less than a1] 0f the Premises is transferred, afier deducting the reasonable expenses incurred by Tenant for (i) any changes, alterations and improvements to the Premises in connection with the Transfer, (ii) any free base rent or other economic concessions reasonably provided t0 the Transferee, and (iii) any brokerage commissions and reasonable legal fees paid 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 t0 Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant t0 Transferee 0r for assets, fixtures, inventory, equipment, 0r furniture transferred by Tenant to Transferee in connection with such Transfer. For purposes ofcalculating the “TransferPremium” in this section, Base Rent shall be deemed t0 have not been abated pursuant t0 Section 3.2, above. 14.4 Landlord’s Option as to Subiect Space. Notwithstanding anything to the contrary contained in this Amicle 14, Landlord shall have the option, by giving written notice t0 Tenant within thifiy (30) days after receipt of any Transfer Notice, to recapture the Subject Space for the remainder of the Lease Term. Such recapture notice shall cancel and terminate this Lease with respect to the Subject Space as 0f the date stated in the Transfer Notice as the effective date of the proposed Transfer. 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 0n the basis of the number 0f rentable square feet retained by Tenant in proportion t0 the number 0f rentable square feet contained in the Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request ofeither party, the patties 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 t0 the proposed Transfer, Tenant shall be entitled t0 proceed t0 transfer the Subj ect Space to the proposed Transferee, subj ect t0 provisions 0f this Article l4. 14.5 Effect 0f Transfer. If Landlord consents t0 a Transfer, (i) the terms and conditions Ofthis Lease shall in no way be deemed to have been waived or modified, (ii) such consent shall not be deemed consent t0 any further Transfer by either Tenant 0r a Transferee, (iii) Tenant shall deliver t0 Landlord, promptly after execution, an original executed copy 0f all documentation pertaining t0 the Transfer in form reasonably acceptable t0 Landlord, (iv) Tenant shall furnish upon Landlord's request a complete statement, certified by an independent certified public CENTRAL I’ARK PLAZA -29- [Simpchachines] 3936014 PREYLOCKQB SimpleMachines Lease4 accountant, 0r, at Tenant’s election, Tenant’s chief financial officer, setting forth in detail the computation 0f any Transfer Premium Tenant has derived and shall derive from such Transfer, and (v) n0 Transfer relating t0 this Lease 0r agreement entered into with respect thereto, whether with 01‘ without Landlord's consent, shall relieve Tenant 0r any guarantor 0f the Lease from any liability under this Lease, including, without limitation, in connection with the Subject Space. In n0 event shall any Transferee assign, sublease or otherwise encumber its interest in this Lease or further sublet any portion 0f the Subject Space, 0r otherwise suffer 01‘ pennit any portion 0f the Subject Space t0 be used or occupied by others. Landlord 0r its authorized representatives shall have the right at all reasonable times t0 audit the books, records and papers 0f Tenant relating t0 any Transfer, and shall have the right t0 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 ofthis Lease, the term "Transfer" shall also include (i) if Tenant is a partnership, the withdrawal or change, voluntary, involuntary or by operation 0f law, 0f fifty-one percent (5 1 %) 0r more of the pafiners, or transfer offifty-one percent (51%) or more 0f partnership interests, within a twelve (12)-month period, 0r the dissolution 0f 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 0r other reorganization of Tenant 01‘ (B) the sale 0r other transfer of an aggregate 0f fifiywne percent (51%) or more 0f the voting shares 0f Tenant (other than to immediate family members by reason ofgift or death), within a twelve (1 2)- month period, 0r (C) the sale, mortgage, hypothecation 0r pledge 0f an aggregate 0f fifty-one percent (51%) or more 0f the value of the unencumbered assets 0f Tenant within a twelve (12)- month period. 14.7 Occurrence of Default. Any Transfer hereunder shall be subordinate and subject to the provisions ofthis Lease, and ifthis Lease shall be terminated during the term 0fany Transfer, Landlord shall have the right t0: (i) treat such Transfer as cancelled and repossess the Subject Space by any lawful means, 0r (ii) require that such Transferee attom to and recognize Landlord as its landlord under any such Transfer. If Tenant shall be in default under this Lease beyond applicable notice and cure periods, Landlord is hereby irrevocably authorized, as Tenant's agent and attomey-in-fact, t0 direct any Transferee to make all payments under or in connection with the Transfer directly t0 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 thereofby Tenant. Upon any assignment, the assignee shall assume in writing all obligations and covenants 0f Tenant thereafier t0 be perfonned or observed under this Lease. N0 collection or acceptance 0f rent by Landlord from any Transferee shall be deemed a waiver ofany provision Ofthis Article 14 0r the approval of any Transferee 0r a release of Tenant from any obligation under this Lease, whether theretofore 0r thereafter accruing. In no event shall Landlord’s enforcement of any provision of this Lease against any Transferee be deemed a waiver 0f Landlord's right t0 enforce any tenn 0f this Lease against Tenant 01‘ 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. ("ENTRAL PARK PLAZA~30- [Simpchacllincs] 3936074 PREYLOCK.26 SimpleMachines Lease4 14.8 Deemed Consent Transfers. Notwithstanding anything to the contrary in this Lease, Tenant may, without Landlord’s prior written consent and without constituting an assignment 0r sublease hereunder, (I) sublet the Premises 0r assign this Lease t0 (a) an entity controlling, controlled by 0r under common control with Tenant, (b) an entity related t0 Tenant by merger, consolidation 0r reorganization, 0r (c) a purchaser of a substantial pofiion of Tenant’s assets, 0r (II) undergo a Transfer under subpart (ii) 0f Section 14.6, above; provided that, in each case, (A) Tenant notifies Landlord in writing of any such Transfer prior t0 the effective date of such Transfer and promptly supplies Landlord with any documents or information reasonably requested by Landlord regarding such Transfer 0r such affiliate; (B) such Transfer is not a subterfuge by Tenant t0 avoid its obligations under this Lease; and (C) (i) in the case 0f a Transfer under subpart (I)(c) above, the applicable transferee shall have assets sufficient to meet (0r provide Landlord with a letter 0f credit 01‘ other credit enhancements sufficient to secure) such transferee's obligations under the assignment or sublease immediately afier the effective date ofthe assignment or sublease, (ii) in the case of a Transfer under subpart (I)(b) 0r (II) above, the net worth of the entity that will remain as “Tenant” shall have a net worth that is not less than the net worth of the Tenant immediately prior t0 such Transfer, 0r Tenant’s net worth as of the Lease Commencement Date, whichever is greater. A transfer of Tenant’s stock for purposes 0f obtaining financing shall not be deemed an assignment, subletting or any other transfer 0f this Lease 0r the Premises. ARTICLE 15 SURRENDER OF PREMISES: OWNERSHIP AND REMOVAL OF TRADE FIXTURES 15.1 Surrender 0f Premises. N0 act or thing done by Landlord or any agent 0r ' employee 0f Landlord during the Lease Term shall be deemed t0 constitute an acceptance by Landlord 0f a surrender 0f the Premises unless such intent is specifically acknowledged in writing by Landlord. The delively 0f keys t0 the Premises to Landlord or any agent or employee 0f Landlord shall not constitute a surrender 0f the Premises 0r effect a termination of this Lease, whether 01‘ 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 0f this Lease by Tenant, whether accepted by Landlord 0r not, or a mutual tennination hereof, shall not work a merger, and at the option of Landlord shall operate as an assignment t0 Landlord of all subleases or subtenancies affecting the Premises or terminate any or all such sublessees or subtenancies. 15.2 Removal of Tenant Property bv Tenant. Upon the expiration Ofthe Lease Term, or upon any earlier tennination of this Lease, Tenant shall, subject to the provisions of this Article 15, quit and surrender possession of the Premises t0 Landlord in as good order and condition as when Tenant took possession and as thereafter improved by Landlord and/or Tenant, reasonable wear and fear, damage due t0 casualty, condemnation and repairs which are specifically made the responsibility 0f Landlord hereunder excepted. Upon such expiration 0r termination, Tenant shall, without expense t0 Landlord, remove or cause t0 be removed from the Premises all debris and rubbish, and such items 0f furniture, equipment, business and trade fixtures, free- standing cabinet work, movable partitions, cabling installed at 0r by the request 0f Tenant that is not contained in protective conduit 0r metal raceway and other amides ofpersonal property owned by Tenant or installed 0r placed by Tenant at its expense in the Premises, and such similar articles CENTRAL PARK I’LAZA -3 1- [SimpleMachines] 39360744 PREYLOCK26 SimpleMachines Lease4 0f any other persons claiming under Tenant, as Landlord may, in its sole discretion, require t0 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 0f the Lease Term or earlier termination thereof, such tenancy shall be a tenancy at sufferance, and shall not constitute a renewal hereof 0r an extension for any further term, and in such case Rent shall be payable at a daily rate equal t0 the product of (i) the daily Rent applicable during the last rental period of the Lease Term under this Lease, and (ii) a percentage equal t0 150% during the first thiny (30) days immediately following the expiration 01' earlier tennination ofthe Lease Tenn, and 200% thereafter. Such tenancy shall be subject t0 every other applicable tenn, covenant and agreement contained herein. Nothing contained in this Article 16 shall be constmed as consent by Landlord to any holding over by Tenant, and Landlord expressly reserves the right t0 require Tenant t0 surrender possession 0f the Premises to Landlord as provided in this Lease upon the expiration 0r other telmination of this Lease. If Tenant holds over without Landlord's express written consent, and tenders payment 0f rent for any period beyond the expiration ofthe Lease Term by way 0f check (whether directly t0 Landlord, its agents, or t0 a lock box) 0r wire transfer, Tenant acknowledges and agrees that the cashing of such check 0r acceptance of such wire shall be considered inadvertent and not be construed as creating a month-to-month tenancy, provided Landlord refunds such payment t0 Tenant promptly upon learning that such check has been cashed 0r wire transfer received. The provisions of this Anicle l6 shall not be deemed t0 limit or constitute a waiver of any other rights or remedies ofLandlord provided herein or at law. If Tenant fails to sun‘ender the Premises upon the termination or expiration 0f 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 attomeys’ fees) and liability resulting from such failure, including, without limiting the generality Ofthe foregoing, any claims made by any succeeding tenant founded upon such failure to surrender and any lost profits to Landlord resulting therefrom. Tenant agrees that any proceedings necessary t0 recover possession of the Premises, whether before or after expiration of the Lease Term, shall be considered an action t0 enforce the terms of this Lease for pumoses 0f the awarding of any attorney’s fees in connection therewith. ARTICLE l7 ESTOPPEL CERTIFICATES Within ten (10) days following a request in writing by Landlord, Tenant shall execute, acknowledge and deliver t0 Landlord an estoppel certificate which, as submitted by Landlord, shall be substantially in the form 0f Exhibit E, attached hereto (01' such other form as may be required by any prospective mortgagee 0r purchaser 0f the Project, 0r any portion thereof), stating (a) that this Lease is unmodified and is in full force and effect (0r, if there have been modifications, that this Lease is in full force and effect as modified, and setting f011h such modifications), (b) the dates t0 which Rent and other sums payable hereunder have been paid, (c) either that, t0 the knowledge of Tenant n0 default exists hereunder 0r, specifying each such default 0f which Tenant has CENTRAL PARK PLAZA lSimpieMachines] -32- 3936074 PREYLOCK26 SimpieMachines Lease4 knowledge and (d) any other information reasonably requested by Landlord or Landlord‘s current 01' prospective mortgagee. Any such certificate may be relied upon by any current mortgagee 0r purchaser 0f all 0r any portion 0f 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, and t0 the extent applicable, any guarantor(s), to provide Landlord with Tenant’s most recently prepared financial statement. Such statements shall be delivered by Tenant and such guarantor(s) t0 Landlord within fifieen (15) days after Landlord's written request therefor and be prepared in accordance with generally accepted accounting principles and, if such is the normal practice 0f Tenant 0r such guarantor(s), shall be audited by an independent certified public accountant with copies 0f the auditor's statement, reflecting Tenant‘s or such guarant0r(s)', as applicable, then-current financial condition. The failure 0fTenant and any such guarant0r(s) to timely execute, acknowledge and deliver such estoppel certificate 0r other instruments shall constitute an acceptance 0f the Premises and an acknowledgment by Tenant and such guarantor(s) that statements included in the estoppel certificate are tme and correct, without exception. ARTICLE ‘18 SUBORDINATION 18.1 In General. Tenant covenants and agrees that this Lease is subject and subordinate to any mortgage, deed of tmst, ground lease and/or security agreement Which may now 0r hereafter encumber the Project, the Building, the Premises or any interest 0f Landlord therein and/or the contents 0f the Building, and t0 any advances made 0n the security thereof and to any and all increases, renewals, modifications, consolidations, replacements and/or extensions thereof. This clause shall be self-operative and no further instrument 0f subordination need be required by any owner or holder 0f any such ground lease, moflgage, deed 0f trust or security agreement. In confinnation 0f such subordination, at Landlord's request, Tenant shall execute promptly any appropriate certificate or instrument that Landlord may reasonably request. Notwithstanding the foregoing, the owner 0r holder 0f any such ground lease, mongage, deed 0f trust or security agreement may elect, in its sole and absolute discretion, t0 subordinate the lien of such ground lease, mortgage, deed 0f trust 0r security agreement to this Lease. In the event 0f the enforcement by any ground lessor, mofigagee, 0r holder of any deed 0f trust 0r security agreement ("Successor Landlord") of the remedies provided for by law or by such ground lease, mortgage, deed of trust 0r security agreement, Tenant shall automatically become the tenant 0f such Successor Landlord without any change in the terms or other provisions of this Lease; provided, however, that such Successor Landlord or successor in interest shall not be: (i) liable for any act 0r omission of any prior landlord (including, without limitation, the then defaulting landlord, but excluding ongoing obligations under the Lease); (ii) subject t0 any defense 0r offsets which Tenant may have against any prior landlord (including, without limitation, the then defaulting landlord); (iii) bound by any payment 0f Rent which Tenant might have paid for more than one month in advance 0f the due date under this Lease to any prior landlord (including, without limitation, the then defaulting landlord); (iv) bound by any obligation t0 make any payment t0 Tenant which was required t0 be made prior to the time Successor Landlord succeeded t0 any prior landlord's interest; (v) accountable for any monies deposited with any prior landlord (including the Security Deposit), except to the extent such monies are actually received by Successor Landlord; or (vi) bound by any surrender, termination, amendment 0r modification 0f this Lease made without the consent 0f Successor Landlord. Upon request by such Successor Landlord, whether before 0r afier the CENTRAL PARK PLAZA -33- [Simpchnchines] 3936074 PREYLOCK.26 SimpleMachines Lease4 enforcement of its remedies, Tenant shall execute and deliver an instrument 0r instruments confirming and evidencing the attornment herein set fonh. 18.2 Mortgages Protection Clause. Tenant shall give the owners 0r holders 0f any ground lease, mortgage, deed oftrust or security agreement ("Lienholder"), by registered mail, a copy of any notice 0f default Tenant serves 0n Landlord, provided that Landlord 0r Lienholder previously notified Tenant (by way ofnotice 0f assignment ofrents and leases or otherwise) 0f the address of Lienholder. Tenant further agrees that ifLandlord fails t0 cure such default within the time provided for in this Lease, then Tenant shall provide written notice of such failure t0 Lienholder and Lienholder shall have an additional thirty (30) days within which to cure the default. Lienholder shall have no obligation t0 cure (and shall have no liability 0r obligation for not curing) any breach 0r default by Landlord, except to the extent that Lienholder agrees 01‘ undertakes otherWise in writing. If the default cannot be cured within the additional thirty (30) day period, then Lienholder shall have such additional time as may be necessary to effect the cure if, within the thirty (30) day period, Lienholder has commenced and is diligently pursuing the cure (including without limitation commencing foreclosure proceedings if necessary to effect the cure). ARTICLE 19 DEFAULTS,‘ REMEDIES 19.1 Events of Default. The occurrence ofany ofthe following shall constitute a default of this Lease by Tenant: 19.1.1 Any failure by Tenant to pay any Rent 01‘ any other charge required t0 be paid under this Lease, 0r any part thereof, when due (but, in the first instance during the Term 0f such failure to pay Rent or any other charge timely, Landlord shall first provide written notice to Tenant and Tenant shall have five (5) days t0 cure); 01‘ 19.1,2 Except where a specific time period is otherwise set fomh for Tenant's performance in this Lease, in which event the failure to perfonn by Tenant within such time period shall be a default by Tenant under this Section l9. 1 .2, any failure by Tenant t0 observe or perform any other provision, covenant 0r condition 0f this Lease t0 be observed 0r performed by Tenant where such failure continues for twenty (20) days after written notice thereof from Landlord t0 Tenant; provided that if the nature 0fsuch default is such that the same cannot reasonably be cured within a twanty (20) 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 defauit, but in no event exceeding a period 0f time in excess of forty-five (45) days after written notice thereof from Landlord to Tenant; or 19.1 .3 Abandonment 0f all 0r a substantial portion 0f the Premises by Tenant; 01‘ 19.1 .4 The failure by Tenant to observe 0r perfmm according to the provisions 0f Afiicles 5, 1:1, L2 0r L8. of this Lease where such failure continues for more than two (2) business days after notice from Landlord. The notice periods provided herein are in lieu of, and not in addition to, any notice periods provided by law. (‘ENTRAL PARK PLAZA“34' v [SimpleMachines] 393607.4 PREYLOCK‘ZS SimpleMachines Lease4 19.2 Remedies Ugon Default. Upon the occuITence ofany event 0f default by Tenant (beyond applicable notice and cure periods), Landlord shall have, in addition t0 any other remedies available to Landlord at law or in equity (all of which remedies shall be distinct, separate and cumulative), the option t0 pursue any one or more 0f the following remedies, each and all ofwhich shall be cumulative and nonexclusive, without any notice 0r demand whatsoever. 19.2.1 Terminate this Lease, in which event Tenant shall immediately surrender the Premises t0 Landlord, and if Tenant fails to d0 so, Landlord may, without prejudice t0 any other remedy which it may have for possession 0r arrearages in rent, enter upon and take possession 0f the Premises and expel 01‘ remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution 0r any claim 0r damages therefor; and Landlord may recover from Tenant the following: (i) The worth at the time 0f award 0f any unpaid rent which has been earned at the time of such termination; plus (ii) The worth at the time ofaward 0f the amount by which the unpaid rent which would have been earned after termination until the time ofaward exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus (iii) The worth at the time ofaward 0fthe amount by which the unpaid rent for the balance of the Lease Term afier the time of award exceeds the amount ofsuCh 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 t0 perform its obligations under this Lease 0r which in the ordinary course Ofthings would be likely to result therefrom, specifically including but not limited t0, brokerage commissions and advertising expenses incuned, 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 t0 obtain a new tenant; and (v) At Landlord's election, such other amounts in addition t0 01' in lieu 0f 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 t0 be and t0 mean all sums 0f every nature required t0 be paid by Tenant pursuant t0 the terms 0f this Lease, whether t0 Landlord or t0 others. As used in Paragraphs 19.2. 1m and ii , above, the "worth at the time 0f 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 0f such interest pennitted by law. As used in Paragraph 19.2.lgiii1 above, the "worth at the time 0f award" shall be computed by discounting such amount at the discount rate ofthe Federal Reserve Bank of San Francisco at the time ofaward 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 t0 sublet or assign, subject only t0 reasonable limitations). Accordingly, if Landlord does not elect t0 tenninate this Lease 0n account of any ('EN'I‘RAL PARK PLAZA ~35- ISimpchachines] 3936014 PREYLOCK.26 SimpleMachines Lease4 default by Tenant, Landlord may, from time t0 time, without tenninating 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 t0 those rights and remedies available under Sections 19.2.1 and 19.2.2, above, 0r any law 0r other provision ofthis Lease), without prior demand 01‘ notice except as required by applicable law, t0 seek any declaratory, injunctive or Other equitable relief, and specifically enforce this Lease, or restrain 0r enjoin a violation or breach 0f any provision hereof. 19.3 Subleases of Tenant. IfLandlord elects t0 terminate this Lease 011 account of any default by Tenant, as set forth in this Article I9, 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 0r may, in Landlord's sole discretion, succeed t0 Tenant's interest in such subleases, licenses, concessions 01’ arrangements. In the event of Landlord's election to succeed t0 Tenant‘s interest in any such subleases, licenses, concessions 0r arrangements, Tenant shall, as of the date 0f notice by Landlord 0f such election, have no further right to or interest in the rent 01‘ other consideration receivable thereunder. 19.4 Form 0f Payment After Default. Following the second occurrence of an event of default by Tenant, Landlord shall have the right t0 require that any or all subsequent amounts paid by Tenant to Landlord hereunder, whether to cure the default in question 01‘ otherwise, be paid in the form 0f cash, money order, cashier's or certified check drawn 0n an institution acceptable t0 Landlord, or by other means approved by Landlord, notwithstanding any prior practice 0f accepting payments in any different form. 19.5 Efforts t0 Relet. N0 re-entry 0r repossession, repairs, maintenance, changes, alterations and additions, reletting, appointment 0f a receiver t0 protect Landlord's interests hereunder, or any other action 01‘ omission by Landlord shall be construed as an election by Landlord to terminate this Lease or Tenant's right t0 possession, or t0 accept a surrender 0f 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 0f such intention is sent by Landlord t0 Tenant. Tenant hereby irrevocably waives any right otherwise available under any law t0 redeem 0r reinstate this Lease. ARTICLE 20 COVENANT OF QUIET ENJOYMENT Landlord covenants that Tenant, 0n paying the Rent, charges for services and other payments herein reserved and 0n keeping, observing and performing all the other terms, covenants, conditions, provisions and agreements herein contained on the part ofTenant to be kept, observed and performed, shall, dun'ng the Lease Tenn, peaceably and quietly have, hold and enjoy the Premises subject t0 the tenns, covenants, conditions, provisions 0f this Lease without interference by any persons lawfully claiming by or through Landlord. The foregoing covenant is in lieu of any other covenant express 0r implied. CENTRAL PARK PLAZA -36- [Sunpchzmhiucs] 3936074 PREYLOCK.26 SimpleMachines Lease4 ARTICLE 21 SECURITY DEPOSIT Concun’ently with Tenant’s execution Ofthis Lease, Tenant shall deposit with Landlord a security deposit (the “Security Deposit”) in the amount set forth in Section 8 of the Summary, as security for the faithful performance by Tenant 0f all of its obligations under this Lease. IfTenant defaults (beyond applicable notice and cure periods) with respect t0 any provisions 0f this Lease, including, but not limited t0, the provisions relating to the payment of Rent, the removal of property and the repair of resultant damage, Landlord may, without notice to Tenant, but shall not be required to apply all 0r any part 0f the Security Deposit for the payment 0f any Rent or any other sum in default and Tenant shall, upon demand therefor, restore the Security Deposit to its original amount. Any unapplied portion of the Security Deposit shall be returned t0 Tenant, 0r, at Landlord’s option, t0 the last assignee ofTenant’s interest hereunder, within forty-five (45) days following the expiration of the Lease Tenn. Tenant shall not be entitled t0 any interest 0n the Security Deposit. Tenant hereby irrevocably waives and relinquishes any and all rights, benefits, 0r protections, if any, Tenant now has, 0r in the future may have, under Section 1950.7 0f the California Civil Code, any successor statue, and all other provisions of law, now or hereafter in effect, including, but not limited t0, any provision of law which (i) establishes the time frame by which a landlord must refund a security deposit under a lease, or (ii) provides that a landlord may claim from a security deposit only those sums reasonably necessary t0 remedy defaults in the payment of rent, to repair damage caused by a tenant, 0r to clean the subject premises. Tenant acknowledges and agrees that (A) any statutory time frames for the return 0f a security deposit are superseded by the express period identified in this Article 21, above, and (B) rather than be so limited, Landlord may claim from the Security Deposit (i) any and all sums expressly identified in this Anicle 21 , above, and (ii) any additional sums reasonably necessary to compensate Landlord for any and all losses 0r damages caused by Tenant's default of this Lease, including, but not limited t0, all damages or rent due upon termination of this Lease pursuant t0 Section 1951 .2 0f the California Civil Code. ARTICLE 22 INTENTIONALLY DELETED ARTICLE 23 SIGNS 23.1 Full Floors. Subject t0 Landlord’s prior'written approval, in its sole discretion, and provided all signs are in keeping with the quality, design and style 0f the Building and Project, Tenant, if the Premises comprise an entire floor 0f the Building, at its sole cost and expense, may install identification signage anywhere in the Premises including in the Elevator lobby 0f the Premises, provided that such signs must not be visible from the exterior 0f the Building. 23.2 Multi-Tenant Floors. If other tenants occupy space 0n the floor on which the Premises is located, Tenant's identifying signage shall be provided by Landlord, at Tenant’s cost, CENTRAL PARK PLAZA ~37~ [SimpleMachines] 393607.4 PREYLOCK26 SimpleMachines Lease4 and such signage shall be comparable to that used by Landlord for other similar floors in the Building and shall comply with Landlord's Building standard signage program. 23.3 Building Directory. Tenant shall be entitled t0 display, at Landlord’s sole cost and expense, Tenant's name and location in the Building directory. 23.4 Prohibited Signage and Other Items. Any signs, notices, logos, pictures, names 0r advertisements which are installed and that have not been separately approved by Landlord may be removed without notice by Landlord at the sole expense ofTenant. Tenant may not install any signs 0n the exterior 0r roofof the Project 0r the Common Areas. Any signs, window coverings, 0r blinds (even if the same are located behind the Landlord-approved window coverings for the Building), or other items visible from the exterior 0f the Premises 01‘ Building, shall be subject t0 the prior approval 0f Landlord, in its sole discretion. ARTICLE 24 COMPLIANCE WITH LAW 24.1 In General. Tenant shall not d0 anything 0r suffer anything t0 be done in 0r about the Premises 0r the Project which will in any way conflict with any law, statute, ordinance 0r other governmental rule, regulation 0r requirement now in force or which may hereafter be enacted 0r promulgated (collectively, the "Laws"). At its sole cost and expense, Tenant shall promptly comply with all such LawsA Should any standard or regulation now or hereafter be imposed 0n Landlord 0r Tenant by a state, federal 0r local governmental body charged with the establishment, regulation and enforcement 0f occupational, health or safety standards for employers, employees; landlords 0r tenants, then Tenant agrees, at its sole cost and expense, to comply promptly with such standards 0r regulations. Tenant shall be responsible, at its sole cost and expense, to make all alterations t0 the Premises as are required to comply with the governmental mles, regulations, requirements 0r standards described in this Article 24, t0 the extent required due t0 Tenant’s particular use 0f the Premises, 01' (ii) Tenant’s alterations, 0r (iii) Tenant’s breach 0f this Lease. Notwithstanding anything t0 the contrary in this Lease, Tenant shall not be required to comply with 0r cause the Premises to comply with any laws, rules, regulations or insurance requirements requiring the constmction 0f alterations unless such compliance is necessitated (i) solely due to Tenant’s particular use 0f the Premises, 0r (ii) Tenant’s alterations, 01‘ (iii) Tenant’s breach of this Lease. The judgment of any court of competent jurisdiction 0r the admission 0f Tenant in any judicial action, regardless of whether Landlord is a pany thereto, that Tenant has violated any of said govemmental measures, shall be conclusive 0f that fact as between Landlord and Tenant. 24.2 CASE. For purposes of Section 1938(2)) 0f the California Civil Code, Landlord hereby discloses t0 Tenant, and Tenant hereby acknowledges, that the Premises have not undergone inspection by a Certified Access Specialist (CASp). As required by Section 1938(6) 0f the California Civil Code, Landlord hereby states as follows: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection 0f the subject premises, the commercial property owner 0r lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy 01‘ potential occupancy Ofthe lessee 0r tenant, if requested by the lessee CENTRAL PARK PLAZA “38" iSimpleMaclfinesl 3936074 PREYLOCK.26 SimpleMachines Lease4 or tenant. The parties shall mutually agree 0n the arrangements for the time and manner 0f the CASp inspection, the payment 0f the fee for the CASp inspection, and the cost of making any repairs necessary t0 correct Violations of construction-related accessibility standards within the premises." In furtherance Ofthe foregoing, Landlord and Tenant hereby agree as follows: (a) any CASp inspection requested by Tenant shall be conducted, at Tenant's sole cost and expense, by a CASp designated by Landlord; and (b) pursuant to Section 24.1 above, Tenant, at its sole cost and expense, shall be responsible for making any improvements, alterations 0r repairs within the Premises to correct Violations 0f construction-related accessibility standards identified in such CASp inspection requested by Tenant; and, subject to Section 24. 1 , above, if anything done by 0r for Tenant in its use 0r occupancy 0f the Premises shall require any improvements 0r repairs t0 the Proj ect (outside the Premises) t0 correct Violations Ofconstruction-related accessibility standards, then Tenant shall, at Landlord's option, either (i) perform such improvements, alterations 0r repairs at Tenant's sole cost and expense, or (ii) reimburse Landlord upon demand, as Additional Rent, for the out-of-pocket cost t0 Landlord 0f perfonning such improvements, alterations, or repairs. ARTICLE 25 LATE CHARGES If any installment 0f Rent 0r any other sum due from Tenant shall not be received by Landlord 0r Landlord's designee within five (5) days after said amount is due, then Tenant shall pay to Landlord a late charge equal t0 six percent (6%) of the overdue amount plus any attorneys' fees incurred by Landlord by reason 0f Tenant's failure t0 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 0r 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 within ten (10) days after the date they are due shall bear interest from the date when due until paid at a rate (the "Interest Rate") per annum equal to the lesser 0f (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 (0r such other comparable index as Landlord and Tenant shall reasonably agree upon if such rate ceases t0 be published) plus four (4) percentage points, and (ii) the highest rate permitted by applicable law. Notwithstanding the foregoing, before assessing a late charge or such interest the first time during the Term, Landlord shall provide Tenant written notice Ofthe delinquency, and shall waive such late charge ifTenant pays such delinquency within five (5) days thereafter. ARTICLE 26 LANDLORD'S RIGHT T0 CURE DEFAULT: PAYMENTS BY TENANT 26.1 Landlord's Cure. A11 covenants and agreements to be kept 0r 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 t0 the extent, if any, otherwise expressly provided herein. If Tenant shall fail to perfonn any obligation under this Lease, and such failure shall continue in excess 0f the time allowed under Section 19. 1 .2, above, unless a specific time period is othemise stated in this Lease, Landlord may, but shall not be obligated to, make any such payment or CENTRAL PARK PLAZA ~39~ [SimpleMachines] 393607.4 PREYLOCKZB SimpleMachines Lease4 perform any such act 011 Tenant's p211“! without waiving its rights based upon any default OfTenant 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 0f Section 26.1; (ii) sums equal t0 all losses, costs, liabilitieg, damages and expenses refened t0 in Article 10 of this Lease; and (iii) sums equal t0 all expenditures made and obligations incurred by Landlord in collecting or attempting t0 collect the Rent 01' in enforcing or attempting to enforce any rights of Landlord under this Lease or pursuant to law, including, without limitation, all legal fees and Other amounts SO expended. Tenant's obligations under this Section 26.2 shall survive the expiration or sooner tennination of the Lease Term. ARTICLE 27 ENTRY BY LANDLORD Landlord reserves the right at all reasonable times and upon reasonable notice t0 Tenant 0f not less than one (l) business day (except in the case of an emergency) t0 enter the Premises to (i) inspect them; (ii) show the Premises to prospective purchasers, mortgagees or tenants, or t0 current 0r prospective mortgagees, ground 0r underlying lessors or insurers; (iii) post notices of nonresponsibility; or (iv) alter, improve 0r repair the Premises 0r the Building, or for structural alterations, repairs 0r improvements to the Building or the Building‘s systems and equipment. Landlord shall use commercially reasonable effofis t0 avoid unreasonably interfering with Tenant’s business operations during such entries. Notwithstanding anything to the contrary contained in this Afiicle 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 ofTenant which Tenant fails t0 perform within applicable notice and cure periods. Landlord may make any such entries without the abatement of Rent 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 t0 0r 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 t0 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, 0r a detainer of, the Premises, 0r an actual or constructive eviction of Tenant from any portion ofthe Premises. N0 provision of this Lease shall be construed as obligating Landlord to perfonn any repairs, alterations 0r decorations except as otherwise expressly agreed to be perfonned by Landlord herein. CENTRAL PARK PLAZA {Simpchachinesl -40- 3936074 PREYLOCK‘ZG SimpleMachines Lease4 ARTICLE 28 TENANT PARKING 28.1 Tenant Parking. Tenant shall have the right, commencing 0n the Lease Commencement Date, to use the number of parking spaces set forth in Section 9 0f the Summary, throughout the Lease Term. Tenant hereby acknowledges and agrees that any 01‘ all 0f the parking facilities may be managed, maintained 01' operated from time to time by an independent parking facility operator (a "Parking Operator") and not by Landlord, in which instance Landlord may delegate its responsibilities hereunder to any such Parking Operator and such Parking Operator shall have all the rights 0f control attributed hereby to Landlord. Tenant's continued right t0 use the parking spaces is conditioned upon Tenant abiding by all rules and regulations which are prescribed from time to time for the orderly operation and use ofthe parking facilities where the parking is located, including any sticker 0r other identification system established by Landlord, Tenant's cooperation in seeing that Tenant's employees and visitors also comply with such rules and regulations. In addition, Tenant shall comply with all applicable governmental resolutions, laws, mles and regulations enacted by the City 0f San Jose. 28.2 Other Terms. Landlord specifically reserves the right to change the size, configuration, design, layout and all other aspects of the Project parking facilities at any time and Tenant acknowledges and agrees that Landlord may, without incurring any liability to Tenant and without any abatement of Rent under this Lease, from time t0 time, temporarily close-off or restrict access to the Project parking facilities for purposes 0f permitting 0r facilitating any such construction, alteration 0r improvements. To the extent the same is within Landlord’s control, other than temporary closures, Landlord shall not exercise the foregoing right in a manner that materially reduces parking available to Tenant. 28.3 Parking Procedures. The parking spaces initially will not be separately identified; however Landlord resewes the right in its sole and absolute discretion to separately identify by signs 0r other markings the area for Tenant’s parking. Landlord shall have no obligation to monitor the use 0f the parking facilities, nor shall Landlord be responsible for any loss 0r damage to any vehicle 0r other property 0r for any injury t0 any person. Tenant’s parking spaces shall be used only for parking of automobiles no larger than full size passenger automobiles, sport utility vehicles or pick-up trucks only during the hours that Tenant and/or its personnel are conducting business operations from the Premises; provided, however, occasional overnight parking associated with Tenant's 0r its personnel's conduct 0f business from the Premises shall be permitted, subject to Tenant's and/or its personnel's compliance with Landlord’s rules related t0 such ovemight parking. Tenant shall comply with a1] mles and regulations which may be adopted by Landlord from time t0 time with respect t0 parking and/or the parking facilities servicing the Project. Tenant shall not at any time use more parking spaces than the number allocated t0 Tenant 0r park its vehicles 01' the vehicles of others in any portion 0f the Project parking facilities not designated by Landlord as a non-exclusive parking area. Tenant shall not have the exclusive right to use any specific parking space. If Landlord grants to any other tenant the exclusive right t0 use any particular parking space(s), Tenant shall not use such spaces. All trucks (other than pick-up trucks) and delively vehicles shall be (i) parked at the designated areas 0f the parking facilities (which designated areas are subject t0 change by Landlord at any time), (ii) loaded and unloaded in a manner which does not interfere with the businesses 0f other occupants 0f the Project, and CENTRAL PARK PLAZA ’41- ISimpleMachinesl 3936074 PREYLOCK.26 SimpleMachines Lease4 (iii) permitted t0 remain 0n the Project only so long as is reasonably necessary to complete loading and unloading. In the event Landlord elects in its sole but reasonable discretion or is required by any law t0 limit or control parking, whether by validation of parking tickets 01* any other method 0f assessment, Tenant agrees t0 participate in such validation 0r assessment program under such reasonable rules and regulations as are from time t0 time established by Landlord. ARTICLE 29 MISCELLANEOUS PROVISIONS 29.1 Terms; Cagtions. 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 t0 corporations 0r pafinerships 0r individuals, men 0r women, as the case may require, shall in all cases be assumed as though in each case fully expressed. The captions of Anicles and Sections are for convenience only and shall not be deemed t0 limit, construe, affect 0r alter the meaning ofsuch Alticles and Sections. 29.2 Binding Effect. Subject t0 all other provisions 0f1his Lease, each 0fthe covenants, conditions and provisions of this Lease shall extend to and shall, as the case may require, bind 0r inure to the benefit not only ofLandlord and of Tenant, but also Oftheir respective heirs, personal representatives, successors or assigns, provided this clause shall not permit any assignment by Tenant contrary t0 the provisions 0f Amicle l4 0f this Lease. 29.3 N0 Air Rights. No rights t0 any view or to light or air over any property, whether belonging to Landlord or any other person, are granted t0 Tenant by this Lease. If at any time any windows 0f the Premises are temporarily darkened or the light or view therefrom is obstructed by reason 0f any repairs, improvements, maintenance 0r 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 0f Lease. Should any cun‘ent or prospective mortgagee 0r ground lessor for the Building 0r Project require a modification of this Lease, which modification will not cause an increased cost 0r expense to Tenant 0r in any other way materially and adversely change the rights and obligations 0f 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 t0 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 shon 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 0r any portion 0f its interest in the Project 0r Building and in this Lease, and Tenant agrees that in the event ofany such transfer, Landlord Shall automatically be released fi‘om all liability under this Lease and Tenant agrees t0 look solely t0 such transferee for the performance ofLandlord‘s obligations hereunder after the date Oftransfer and such transferee shall be deemed t0 have fully assumed and be liable for all obligations of this Lease t0 be performed by Landlord, including the return of any Security Deposit, and Tenant shall attom t0 such transferee. Tenant CL’N'I'RAL PARK PLAZA [SimpIcMachincs] 3936074 PREYLOCK.26 SimpleMaChines Lease4 further acknowledges that Landlord may assign its interest in this Lease t0 a mortgage lender as additional security and agrees that such an assignment shall not release Landlord from its obligations hereunder and that Tenant shall continue t0 100k to Landlord for the performance 0f its obligations hereunder. 29.6 Prohibition Against Recording. Except as provided in Section 29.4 Ofthis Lease, neither this Lease, nor any memorandum, affidavit or other writing with respect thereto, shall be recorded by Tenant 0r by anyone acting through, under or on behalfof Tenant. 29.7 Landlord's Title. Landlord's title is and always shall be paramount t0 the title of Tenant. Nothing herein contained shall empower Tenant t0 d0 any act which can, shall 0r may encumber the title of Landlord. 29.8 Relationship 0f Parties. Nothing contained in this Lease shall be deemed 0r construed by the parties hereto or by any third party to create the relationship 0f principal and agent, partnership, joint venturer or any association between Landlord and Tenant. 29.9 Application 0f Pavments. 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 0f Tenant hereunder, in such order and amounts as Landlord, in its sole discretion, may elect. 29. 1 0 Time of Essence. Time is of the essence with respect to the performance of every provision 0f this Lease in which time 0f performance is a factor. 29.1 l Partial Invalidity Ifany term, provision or condition contained in this Lease shall, to any extent, be invalid 0r unenforceable, the remainder of this Lease, or the application 0f such term, provision 0r condition t0 persons 0r circumstances other than those with respect to which it is invalid 0r 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 N0 Warranty. In executing and delivering this Lease, Tenant has not relied 0n any representations, including, but not limited to, any representation as to the amount of any item comprising Additional Rent or the amount ofthe Additional Rent in the aggregate 0r that Landlord is furnishing the same sewices t0 other tenants, at all, on the same level 0r 0n the same basis, 0r any warranty 0r any statement of Landlord which is not set fonh herein or in one 0r more 0f the exhibits attached hereto. 29. 1 3 Landlord Exculgation. The liability ofLandlord 01‘ the Landlord Parties to Tenant for any default by Landlord under this Lease 0r arising in connection herewith 0r with Landlord's operation, management, leasing, repair, renovation, alteration or any other matter relating t0 the Project 0r the Premises shall be limited solely and exclusively t0 an amount which is equal to the interest 0f Landlord in the Proj ect and any proceeds therefrom, provided that in no event shall such liability extend t0 any sales 0r 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 0n behalf of itself and all persons claiming by, through 0r under Tenant. CENTRAL PARK PLAZA -43- [SimweMachincs] 3936014 PREYLOCK26 SimpleMachines Lease4 The limitations 0f liability contained in this Section 29.13 shall inure t0 the benefit ofLandlord'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 0r future partner 0f Landlord (if Landlord is a partnership), or tmstee 01‘ beneficiary (if Landlord 0r any partner 0f Landlord is a trust), have any liability for the performance 0f 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 01‘ damage t0, 01‘ interference with, Tenant's business, including but not limited to, loss of profits, loss 0f rents 0r other revenues, loss of business opportunity, loss 0f goodwill 0r loss 0f 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 leasing 0f the Premises and supersedes and cancels any and all previous negotiations, an‘angements, brochures, agreements and understandings, if any, between the parties hereto 0r displayed by Landlord t0 Tenant with respect to the subject matter thereof, and none thereof shall be used to interpret 0r construe this Lease. None of the terms, covenants, conditions or provisions of this Lease can be modified, deleted 0r added to except in writing signed by the parties hereto. 29. 1 5 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 Ofthe Building 0r Proj ect. Tenant does not rely 0n the fact, nor does Landlord represent, that any specific tenant 0r type or number 0f tenants shall, during the Lease Term, occupy any space in the Building 0r Project. 29.16 Force Majeur . Any prevention, delay or stoppage due t0 strikes, Iockouts, labor disputes, acts 0f God, acts ofwar, acts of terrorism, inability t0 obtain services, labor, 0r materials 01' reasonable substitutes therefor, governmental actions, civil commotions, fire or other casualty, and other causes beyond the reasonable control 0f the party obligated t0 perform, except with respect t0 the obligations imposed with regard to Rent and other charges t0 be paid by Tenant pursuant t0 this Lease (collectively, a "Force Majeure"), notwithstanding anything t0 the contrary contained in this Lease, shall excuse the performance 0f such party for a period equal to any such prevention, delay 0r stoppage and, therefore, if this Lease specifies a time period for perfonnance 0f an obligation of either pany, that time period shall be extended by the period of any delay in such party's performance caused by a Force Majeure. 29. 1 7 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 0r writ, Tenant's right ofoccupancy of the Premises afier any telmination of this Lease. 29.18 Notices. A11 notices, demands, statements, designations, approvals 0r other communications (collectively, "Notices") given 01' required t0 be given by either party t0 the other hereunder 01‘ by law shall be in writing, shall be (A) delivered personally, (B) delivered by a nationally recognized overnight courier, or (C) transmitted by telecopy, if such telecopy is promptly followed by a Notice sent by a nationally recognized overnight courier. Any Notice shall (‘liN'l‘RAL PARK PLAZA '44" [SimpIeMacllinesI 3936074 PREYLOCK.26 SimpteMachines Lease4 bu sent, transmittal, 0r delivered. us the case may ho, 10 'l‘cnam at the appropriate address set 1’0th in Sectionifl ofihc Summary. 0r m such other place as ’Ibmmt may {'mm time t0 lime designate in a Notice t0 Landlmd, 0r to I_..a,ndl<>rd at the addresses set form below, m- m such other places us Landlord may from time m lime designate in a Notice m Tenant; Any Notice will be deemed given (i) the date personal delivery is made 01' attempted to be made, (ii) the (late the overnight courier delivery is made, 01‘ (iii) the date the tclecopy is transmitted. II" 'l'cmmt is notified 0f the identity and address 0f Landlm'd's mortgagee 0r gmund m‘ underlying lossmg "I‘emmt’ shall give t0 such mortgagee or ground m‘ underlying lessor written notice ofimy default by Landlord under the terms ofthis Lease by registered 01‘ certified mail, and wch mofigagcc 0r ground or underlying lessor Shall be given a reasonable Opportunity to cure such default prim“ t0 Tenant's exercising any remedy available t0 Tenant. "l“hc party delivering Nmice shall use commercially rcusonuble efforts m provide a courtesy copy Ofcach such Notice to tho receiving pafly via electronic mail. As ()fthc date 0f this Lease, any Natices to Landlord must be sent, transmitted, 01' delivered, us the case may be, t0 the following addresses: Prcylock SJC LLC‘ 0/0 Prcylock Real Estate I'Ioldings 100! Avenue thho Stars, Suite 1800 Los Angeles, California 90067 Atm: Brett [Jpnmn/Stcvc Shokouhi Email: bratm(?]er'lockhuidinUS$01,“ atovc(’d§nrcv1ockhmldinasxmg’g and Rosenfeld, Wolffcfiz Klein 1901 Avenue of'the Stars, Suite 500 L05 Angclcs, California 90067 Attention: Steven G. W01!"fi Esq. Fax No.1 (3 I 0) 556-0401 Email: s - In: s a lue onyx (mm KCaSV S- y 9‘ I rm‘ I ‘7 l-‘Im rm; r‘m ‘ 1c; 4533662 PREYLOCK.26 FlrstAmendment-Expansionz