Improve marketing efficiency by focusing on cost-effective customer acquisition, the retention of existing customers, and increasing conversion of potential customers

Licensee:

Red Envelope
149 New Montgomery Street

San Francisco CA 94105

Licensee Contact:
Ed Schmults
Chief Operating Officer

These License Terms and Conditions together with any schedules and exhibits attached hereto and the immediately preceding summary of Basic License Terms (the “Basic License Terms”) when taken together comprise the “License Agreement” or “Agreement” between 160 Harrison, LLC, a California limited liability company (“Licensor”), and the licensee identified in the Basic License Terms (the “Licensee”).

Licensor hereby grants Licensee the right during the Term of this Agreement to install, maintain and operate computer and/or telecommunications equipment (the “Equipment”) within the space designated on Exhibit A attached hereto (the “License Area”) within the building commonly known as 365 Main Street, San Francisco, California 94105 (the “Building”). Licensor shall not be obligated to provide any telecommunications services or managed services to Licensee under this Agreement. In addition, Licensor shall have no obligation to make any alterations, install any equipment or otherwise prepare the License Area for use by Licensee other than the work specifically set forth on Exhibit A as work to be completed by Licensor in the License Area prior to the commencement of the Term (the “Licensor Work”). Licensee acknowledges and agrees that any services to be provided by Licensor hereunder in connection with the Equipment or the License Area may be performed by an independent contractor or contractors on behalf of Licensor.

The term of this Agreement shall be the “Base Term” shown in the Basic License Terms (the “Term”), unless this Agreement is sooner terminated in accordance with Section 13.1 below

The Policies and Procedures of the Building in effect as of the date hereof are attached hereto as Exhibit B (the “Policies and Procedures”). Licensor reserves the right, from time to time, to adopt additional Policies and Procedures and to amend the Policies and Procedures then in effect, which additions and amendments shall become effective as to Licensee upon notification by Licensor provided such additions or amendments do no materially diminish Licensee’s rights under this Agreement. Licensor shall not be liable to Licensee for violation of the Policies and Procedures by any other lessee or licensee, its employees, agents, visitors or licensees. If there shall be any inconsistencies between this Agreement and the Policies and Procedures, the provisions of this Agreement shall prevail.

     4.1 Use.

          (a) Licensee shall use and occupy the License Area only for the operation of the Equipment, and for no other purpose. Licensee shall not use or keep in the License Area any substance defined as a “hazardous material” by any Governmental Authority (as defined below) (collectively, “Hazardous Materials”). Licensee’s violation of this Section 4.1(a) will be grounds for termination of this Agreement by Licensor in Licensor’s sole and absolute discretion.

          (b) Licensee shall not place a load upon any area of the License Area, which load either exceeds the floor load per square foot that such area is designed to carry or violates Legal Requirements. Pursuant to Building specifications, the designated loads per square foot are: (i) two thousand (2000) pounds with respect to any raised floor, and (ii) two hundred fifty (250) pounds with respect to areas other than a raised floor.

          (c) Licensee’s Indemnification. Licensee agrees to indemnify, defend and hold harmless Licensor, its successors and assigns, and its and their directors, officers, shareholders, members, managers, employees, agents, and partners from all costs, expenses, damages, liabilities, claims, fines, penalties, interest, judgments, and losses of any kind, including, without limitation, reasonable attorneys’ fees and costs, arising from or in any way related to Licensee’s or

Licensee’s officers’, employees’, contractors’, representatives’, affiliates’, assignees’, sublicensees’, agents’ or invitee’s (collectively, “Licensee’s Representatives”) handling of Hazardous Materials during the Term or violation of any of the provisions of this Agreement pertaining to Hazardous Materials (collectively, “Environmental Losses”), including, without limitation, consequential damages, damages for personal or bodily injury, property damage, encumbrances, liens, costs and expenses of investigations, monitoring, clean up, removal or remediation of Hazardous Materials, defense costs of any claims, good faith settlements, attorneys’ and consultants’ fees and costs, and losses attributable to the diminution of value, whether or not such Environmental Losses are contingent or otherwise, matured or unmatured, foreseeable or unforeseeable.

          (a) Definitions.

“Legal Requirements” means all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, executive orders, rules of common law, and any judicial interpretations thereof, of all Governmental Authorities, including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. § 9601 et seq., and any law of like import, any statute, rule or regulation designating any substance as a hazardous material or substance, and all rules, regulations and government orders with respect thereto affecting Licensee’s use of the License Area, the Building or the maintenance, use or occupation thereof.

“Governmental Authority” means any of the United States of America, the State of California, the City and County of San Francisco, any political subdivision thereof and any agency, department, commission, board, bureau or instrumentality of any of the foregoing, now existing or hereafter created, having jurisdiction over the Building or any portion thereof or the vaults, curbs, sidewalks, streets and areas adjacent thereto.

          (b) Compliance with Legal Requirements. Licensee, at its sole expense, shall comply with all Legal Requirements applicable to the License Area or the use and occupancy thereof by Licensee. Licensee shall not do or permit to be done any act or thing upon the License Area which will invalidate or be in conflict with Licensor’s insurance policies. If, as a result of Licensee’s acts or omissions, the insurance rates for the Building shall be increased, then Licensee shall reimburse Licensor for the amount of any such increase upon demand by Licensor.

          (c) City and County of San Francisco. Licensee shall have the sole responsibility to secure any and all governmental approvals relating to Licensee’s use of the License Area other than permits required in connection with any Licensor Work. Licensee shall secure such approvals prior to execution of this Agreement and hold Licensor harmless from any costs and fees incurred in the process of obtaining such approvals, and from any fines or penalties imposed by a Governmental Authority arising from Licensee’s nonconformance with Legal Requirements (other than building permits required in connection with any Licensor Work).

     4.3 Access and Inspection. Licensor and Licensor’s lender and consultants, and each of their respective officers, agents, employees, members or managers, shall have the right, but not the obligation, to enter into the License Area at any time in the case of an emergency, and otherwise at reasonable times upon at least twenty-four (24) hours’ notice to inspect the License Area or to make such alterations, repairs, improvements or additions to the License Area as Licensor may deem necessary. In addition, Licensor or Licensor’s agents may have access to the License Area at any time for the purpose of providing Remote Hands services or other services requested by Licensee. All such activities shall be without abatement of License Fees or liability to Licensee.

     5.1 The term “Alterations” shall mean any modification of the License Area from and after the commencement of the Term, whether by addition or deletion and shall exclude any Licensor Work.

     5.2 Licensee shall not make any Alterations to the License Area without Licensor’s prior written consent, which may be given or withheld in Licensor’s sole and absolute discretion; provided, however, that Licensor shall not unreasonably withhold its consent to the installation in the License Area by Licensee of customary cabling and trade fixtures.

     5.3 Liens. Licensee shall keep the License Area free from any liens and shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Licensee at or for use on or in the License Area.

Provided no Event of Default has occurred and is continuing, Licensor shall provide or cause an independent contractor to provide on behalf of Licensor, at Licensor’s expense, except as otherwise set forth herein, the following, in accordance with the commitment levels described in the Basic License Terms (the “Commitment Levels”), as applicable:

     6.1 Electricity. Licensor, subject to the provisions of this Section 6.1, shall use commercially reasonable efforts to make available to Licensee, AC electric capacity at a level not less than the level described in the Basic License Terms (the “Basic Capacity”). Licensee shall pay for electricity service based upon usage on a monitored basis, as further described below and in the Basic License Terms. Licensee shall be solely responsible, at Licensee’s sole cost and expense, for the installation of all power circuits and rack grounding to the base Building grounding grid system required in order to deliver the Basic Capacity to the License Area and to distribute it therein. Upon Licensor’s approval of Licensee’s request for the installation of electrical services to the Licensee Area, Licensor’s designated electrical contractor shall perform the tap-in to the Building’s electrical system located at the remote power panel. In the event that Licensee shall require electrical capacity in excess of the Basic Capacity, then upon request, and subject to the availability of additional electrical capacity in the Building, as determined by Licensor in its reasonable discretion, Licensor shall make additional electric power available to Licensee. Licensee shall pay to Licensor a one-time charge equal to Licensor’s designated electrical contractor’s expense to install such electrical facilities and equipment necessary to enable Licensee to obtain such additional electrical capacity. Licensee shall pay Licensor, as additional License Fees, on a monthly basis, for its consumption of electrical energy at the License Area, which consumption shall be deemed to include both the electrical energy consumed by each circuit in the License Area as well as the electrical energy required to cool the heat generated thereby (the “License Area Consumption”), as more particularly provided herein. “Licensor’s Electricity Cost” means the cost per kilowatt hour and cost per kilowatt demand, adjusted by applicable rate adjustments, to Licensor for the purchase of electricity from the public utility or other electricity provider furnishing electricity service to the Building from time to time (the “Electricity Provider”), including sales and other taxes or other impositions imposed by any Governmental Authority on Licensor’s purchase of electricity. If at any time during the term the cost elements comprising Licensor’s Electricity Cost shall be increased by the Electricity Provider, or Licensor’s Electricity Cost shall be increased for any other reason, then effective as of the date of such increase, Licensee’s payment for submetered electricity under this Section 6.1 shall be proportionately increased. Licensor reserves the right to contract with different Electricity Providers from time to time in its sole discretion, and without reference to whether any Electricity Provider selected by Licensor provides lower rates than any other electricity supplier. Licensee covenants that Licensee’s License Area Consumption shall not at any time exceed the capacity of any of the electrical facilities and installations in or otherwise serving or being used in the License Area and Licensee shall, upon the submission by Licensor to Licensee of written notice, promptly cease the use of any of Licensee’s electrical equipment which Licensor believes will cause Licensee to exceed such capacity. If, within twenty-four (24) hours of receiving such a notice from Licensor, Licensee shall fail to reduce its License Area Consumption to a level that complies with the terms of this Section 6.1, Licensor shall have the right to disconnect power to

the applicable circuit. Any additional feeders, risers, electrical facilities and other such installations required for electric service to the License Area will require approval by Licensor and an amendment to this Agreement executed by both parties hereto.

Licensee shall be billed for electricity based upon usage as monitored by Licensor using readings of one or more circuit monitors to be installed by Licensor, applied to Licensor’s Electricity Cost. The cost for installation of such circuit monitors shall be borne by Licensor if the License Area comprises an entire colocation area; otherwise, Licensee shall bear such cost as set forth in the Basic License Terms. Licensee shall pay on a monthly basis Licensor’s Electricity Cost for Licensee’s License Area Consumption for circuit power and cooling, as determined hereunder as measured and calculated by such circuit monitor or monitors including an increase by a factor not to exceed two (2), applied to the monitored totals to account for cooling electricity usage. In addition, Licensee shall pay to Licensor, as additional License Fees (i) the fees and expenses of Licensor’s electrical contractor for services rendered based upon readings of such contractor in the maintenance and repair of such circuit monitor(s), and (ii) the amount of any taxes or other impositions imposed by any Governmental Authority related to the electricity used or consumed by Licensee in connection with the License Area, including Licensee’s costs of cooling.

     6.2 Environmental Controls. Licensor shall use commercially reasonable efforts to provide heating, ventilation and air conditioning (“HVAC”) to the License Area twenty-four (24) hours a day, seven (7) days a week, three hundred sixty-five (365) days a year, through use of the Building standard HVAC system.

     6.3 Security.

          (a) Building Security. Licensor, or an independent contractor on behalf of Licensor, shall provide security services with respect to access to the Building twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Licensee acknowledges and agrees that neither Licensor’s agreement to provide such security services nor Licensor’s actual provision of the same pursuant to this Agreement shall directly or indirectly create any liability (and Licensee hereby waives any claim based on any such liability) on the part of Licensor to Licensee, any persons visiting the Building, or any other person or entity with respect to any loss by theft, injury or loss of life, or any other damage suffered or incurred in connection with any entry into the Building or any other breach of security with respect to the Building unless such claim results from Licensor’s failure to use commercially reasonable efforts to comply with its obligations under this Section 6.3.

          (b) License Area Security. Licensor or an independent contractor on behalf of Licensor, shall provide security services with respect to access to the License Area twenty-four (24) hours a day, seven (7) days a week. Licensor has installed the security measures requested by Licensee, if any, as outlined in Exhibit A. Licensee has provided Licensor with a Customer Access List, as defined in the Policies and Procedures, naming individuals to whom Licensee has authorized Licensor to grant access to the License Area. Licensor shall limit access to the License Area to: (i) individuals on the Customer Access List from time to time, (ii) Licensor’s employees, agents or representatives in the event of an emergency, and (iii) Licensor’s contractors responding to a properly authorized Work Order for Remote hands services.

     6.4 Fire Detection and Suppression. Licensor shall maintain a very early smoke detection system and a double interlock pre-action and detection system in the Building. In addition, Licensor shall provide and maintain fire extinguishers in the Building, including clean agent extinguishers for use in “mission critical” portions of the Building, as determined by Licensor. Licensee acknowledges that it has reviewed and approved the smoke detection and fire suppression systems prior to the date hereof.

     6.5 Remote Hands. Licensor, or an independent contractor on behalf of Licensor, shall provide personnel capable of performing certain limited maintenance services in accordance with the Licensee’s written directions (“Remote Hands”) on equipment belonging to Licensee installed in the License Area, provided that Remote Hands shall not be available beyond the point at which a login prompt appears on Licensee’s Equipment. Remote Hands shall be available twenty-four (24) hours a day, seven (7) days a week. Licensee shall access and utilize Remote Hands in accordance with

the Policies and Procedures. Notwithstanding anything to the contrary contained herein, in no event shall Licensor be responsible for the repair, configuration, tuning or installation of the Equipment or the License Area or any damage or loss caused by Remote Hands, except to the extent resulting from Licensor’s gross negligence or willful misconduct.

Licensee understands that the License Area and related services are provided on an “AS-IS” basis (except for Licensor’s Work as described in Exhibit A), and Licensor makes no warranty that the space or such services are suitable for Licensee’s intended purpose except as expressly stated herein. Licensee acknowledges that: (a) Licensee has made such investigations as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its use of the License Area, and, (b) neither Licensor, Licensor’s agents, nor any broker has made any oral or written representations or warranties with respect to said matters other than as set forth in this Agreement. Installation of any Equipment by Licensee shall be deemed conclusive evidence that Licensee accepts the same “as-is” and agrees that Licensor is under no obligation to perform any work or provide any materials to prepare the License Area or the Building for Licensee except for any Licensor Work. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THOSE EXPRESSLY STATED HEREIN.

Licensee agrees to pay all fees detailed in the Basic License Terms and any additional fees described in this Agreement (collectively, “License Fees”) when due. Upon execution of this Agreement, Licensee will pay all amounts designated in the Basic License Terms as being due upon execution. After the commencement of the Term, ongoing License Fees will be billed in advance with payment due on the first business day of the month to which such License Fees relate, provided that any failure of Licensee to timely receive a detailed billing statement shall not affect Licensee’s obligation to pay such License Fees when due.

     9.1 During Term. Licensee agrees not to remove any Equipment from the License Area except in strict compliance with the Policies and Procedures.

     9.2 Upon Termination. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly remove all Equipment from the License Area and from the Building in accordance with the Policies and Procedures. If Licensee fails to do so with fifteen (15) days of such termination, Licensor may treat the Equipment as abandoned and either charge Licensee for the removal and/or storage costs or dispose of the Equipment in any manner that Licensor shall elect, provided that in the case of any sale of the Equipment by Licensor, Licensee shall be entitled to receive the proceeds of such sale less any amounts due and owing to Licensor under this Agreement. Licensor has no duty to preserve or care for any Equipment abandoned or deemed abandoned hereunder, and Licensee hereby waives and releases any claims it may have in connection with any such removal, storage or sale.

     10.1 Insurance. At all times during the Term of this Agreement, Licensee shall maintain and pay for (a) commercial general liability insurance in an amount not less than $1,000,000 per occurrence, (b) workers’ compensation insurance in an amount not less than that prescribed by applicable law, (c) employer’s liability insurance in an amount not less than $1,000,000 per occurrence, (d) insurance coverage on all of Licensee’s Equipment and property in the License Area with full replacement cost coverage and a deductible not to exceed $10,000 per occurrence, and (e) umbrella or excess liability insurance with a combined single limit of not less than $2,000,000 to apply over the above mentioned policies. The policies for such commercial general liability insurance and umbrella or excess liability coverage shall name Licensor as an additional insured. In addition, all insurance policies required under this

Section 10.1 shall (i) be non-cancelable except upon thirty (30) days’ prior written notice to Licensor, (ii) be issued by an insurer with an AM Best’s Rating of B+ or better, and (iii) be primary in nature. Licensee shall provide Licensor with certificates evidencing the required coverages prior to bringing any Equipment into the Building. If Licensee fails to maintain the required coverages, Licensor may, but shall not be obligated to, purchase such coverage for Licensee, at Licensee’s cost. Licensee shall insure that all of its subcontractors and agents maintain insurance in the amounts required in this Section 10.1.

As of the date hereof, Licensor currently maintains insurance in the following amounts: (a) commercial general liability insurance in the amount of $1,000,000 per occurrence, $2,000,000 general aggregate and $50,000,000 excess umbrella; (b) all risk insurance on a replacement cost basis, and (c) boiler/machinery insurance in the amount of $50,000,000. Licensor reserves the right from time to time, in its absolute and sole discretion, to modify these limits as it deems necessary. In no event will the Licensor provide coverage that is less than it deems commercially reasonable for a building of similar size and configuration in the San Francisco South of Market area. Licensor requires the operator of the Building to carry a minimum of $1,000,000 in Workman’s Compensation insurance.

     10.2 Waiver of Subrogation. To ensure that the risk of loss normally insured against by each party’s insurance carrier remains the burden of the insurance carrier and cannot be shifted over to the other party, Licensor and Licensee have agreed to the following waiver of subrogation. Licensor and Licensee each release the other and waive the entire right of recovery against the other for loss or damage arising out of or incident to the perils insured against, which occur in, on or about the License Area. The parties agree to request that their respective property damage insurance carriers waive any right to subrogation that such companies may have against Licensor or Licensee, as the case may be, so long as the insurance is not invalidated thereby. Licensor and Licensee each agree to take any necessary action to make this release effective and binding upon their respective insurance carriers so that such carriers specifically waive any right of subrogation that such carriers might otherwise have against either the parties hereto or their officers, employees, agents or representatives.

     10.3 Indemnity.

          (a) Except for any matter resulting from Licensor’s gross negligence or willful misconduct, Licensee shall indemnify, protect, defend and hold harmless Licensor and its agents, partners and Lenders (as defined in Section 27 below), from and against any and all claims, losses and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees and/or other liabilities (collectively, “Claims”) arising out of, involving or in connection with the use and/or occupancy of the License Area by Licensee. If any action or proceeding is brought against Licensor by reason of any of the foregoing matters, Licensee shall upon notice defend the same at Licensee’s expense by counsel reasonably satisfactory to Licensor and Licensor shall cooperate with Licensee in such defense. Licensor need not have first paid any such claim in order to be defended or indemnified.

          (b) Licensor shall have no liability or responsibility for the content of any communications transmitted via third party services, and Licensee shall, indemnify, protect, defend and hold Licensor harmless from any and all claims (including claims by any Governmental Authority seeking to impose penal sanctions) related to such content or for claims by third parties relating to Licensee’s use of the License Area. Licensor does not operate or control the information, services, opinions or other content of third party services that may utilize equipment in the Building or provide services therein. Licensee agrees that it shall make no claim whatsoever against Licensor relating to the content of any such services or respecting any information, product, service or software ordered through or provided by virtue of such third party services.

          (c) Except for any matter resulting from Licensee’s gross negligence or willful misconduct, Licensor shall indemnify, protect, defend and hold harmless Licensee from and against any and all Claims arising out of, involving, or in connection with Licensor’s gross negligence or willful misconduct in or about the License Area or with respect to the Equipment.

     10.4 Liability with respect to the License Area; Limitations on Consequential Damages. Licensor shall not be liable for injury or damage to persons or goods or other property of Licensee, Licensee’s employees, contractors, invitees, customers, or any other person in or about the License Area, whether such injury or damage results from conditions arising within the License Area, or from other sources or places, other than damages proximately caused by reason of Licensor’s gross negligence or willful misconduct. Licensor shall not be liable for any damages arising from any act or neglect of any other licensee of Licensor. Notwithstanding any other provision of this Agreement, neither Licensor nor Licensee shall be liable to the other party for any indirect, special, consequential, exemplary or punitive damages (including but not limited to damages for lost profits, lost revenues or the cost of purchasing replacement services) arising out the performance or failure to perform Licensor’s or Licensee’s obligations under this Agreement, as applicable, however caused, on any theory of liability, whether in an action in contract, strict liability, tort or otherwise, and whether nor not the party has been advised of the possibility of such damage, provided, however, that Licensee shall be liable to Licensor for any such damages to the extent (i) arising under Section 4.1(c) of this Agreement, or (ii) relating to the Building or claims by tenants, licensees, occupants or other users of the Building.

In the event of material damage to, destruction of or condemnation of the Building or the License Area, Licensor shall have the right, in Licensor’s sole discretion, to terminate this Agreement upon notice to Licensee, and upon delivery of such notice, Licensor shall have no further obligations to Licensee under this Agreement.

     12.1 Each of the following shall be an "Event of Default” under this Agreement:

          (a) the failure of Licensee to make any payment of License Fees with respect to any month by the first calendar day of such month or any other monetary payment required to be made by Licensee hereunder when such payment is due, in each case, where such failure continues for a period of three (3) days after receipt of written notice from Licensor;

          (b) the failure by Licensee to provide reasonable written evidence of compliance with Legal Requirements or any other documentation or information which Licensor may reasonably require of Licensee under the terms of this Agreement, where any such failure continues for a period of fifteen (15) days following written notice to Licensee;

          (c) Licensee’s commencement of any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent or Licensee’s admitting in writing its inability to pay its debts as they become due; or

          (d) Licensee’s breach of any other provision of this Agreement or any agreement referred to herein (except those breaches described in clause (a) of this Section 12), including without limitation, violation of the Policies and Procedures, if not cured within fifteen (15) days after receipt of written notice of such breach, provided, however, that if any such breach is not susceptible to cure within fifteen (15) days, the cure period shall be extended up to a maximum of sixty (60) days so long as Licensee continues to diligently prosecute such cure to completion.

     12.2 Breach by Licensor. Except as otherwise provided in the Basic License Terms, Licensor shall not be deemed in breach of this Agreement unless Licensor fails within a reasonable time to perform an obligation required to be performed by Licensor. For purposes of this Section 12.2, a reasonable time shall in no event be less than thirty (30) days after receipt by Licensor of written notice specifying the obligation of Licensor that has not been performed; provided, however, that if the nature of Licensor’s obligation is such that more than thirty (30) days are reasonably required for its performance, then Licensor shall not be in breach if performance is

commenced within such thirty (30) day period and thereafter diligently pursued to completion.

     13.1 Upon occurrence of an Event or Default, Licensor shall be entitled to restrict Licensee’s access to the License Area, to exercise any other remedies available to it under this Agreement and to terminate this Agreement by notice to Licensee. This Agreement shall terminate as of the effective date of any such termination notice and Licensor shall be entitled to collect damages resulting from such termination. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. If Licensee files a petition under the Bankruptcy Code or under any other similar federal or state law, Licensee unconditionally and irrevocably agrees that Licensor shall be entitled, and Licensee unconditionally consents, to relief from the automatic stay so as to allow Licensor to exercise its rights and remedies under this Agreement with respect to the Building or the License Area. In such event, Licensee hereby agrees it shall not, in any manner, oppose or otherwise delay any motion filed by Licensor for relief from the automatic stay. Licensor’s enforcement of the rights granted herein for relief from the automatic stay is subject to the approval of the bankruptcy court in which the case is then pending.

     13.2 Late Charges. Licensee hereby acknowledges that late payment by Licensee of License Fees will cause Licensor to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Licensor by any Lender. Accordingly, if any License Fees shall not be received by Licensor within three (3) days after such amount shall be due, then, upon written notice to Licensee, Licensee shall pay to Licensor a late charge for each such occurrence equal to ten percent (10%) of each such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Licensor will incur by reason of such late payment. Acceptance of such late charge by Licensor shall in no event constitute a waiver of Licensee’s Default with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder.

     13.3 Interest. Any monetary payment due Licensor hereunder, other than late charges, not received by Licensor when due shall bear interest at the lower of (i) eighteen percent (18%), or (ii) the highest interest rate allowable by law from the date due until paid in full. Interest is payable in addition to the potential late charge provided for in Section 13.2.

     14.1 Licensee’s Assignment or Sublicensing. Licensee shall not assign, mortgage, pledge or otherwise transfer this Agreement, in whole or in part, nor sublicense or permit use by any party other than Licensee of all or any part of the License Area, without obtaining in each instance the prior written consent of Licensor, which consent Licensor shall not unreasonably withheld.

     14.2 Licensor’s Assignment. If Licensor conveys its interest in the License Area or the Building, Licensor shall provide Licensee with written notice of such conveyance and Licensor shall be automatically relieved from all liability as respects the further performance of its covenants or obligations hereunder after the effective date of such conveyance provided that Licensor’s successor-in-interest shall have assumed Licensor’s obligations under this Agreement.

     15.1 Notice Requirements. All notices required or permitted by this Agreement shall be in writing and may be delivered in person (by hand or by courier) or may be sent by commercial overnight courier, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Section 15. Notice may also be sent by e-mail, provided, however, that such notice must also be sent by a method described in the foregoing sentence and will be deemed delivered based upon the receipt of the facsimile, hand or commercial overnight courier method of delivery as described in Section 15.2 below. The addresses noted in the Basic License Terms shall be that party’s address for delivery or mailing of notices. Either

party may by written notice to the other specify a different address for notice.

     15.2 Date of Notice. Notices transmitted by facsimile transmission or similar means shall be deemed delivered upon electronic confirmation of receipt. Notices delivered by hand or commercial overnight courier shall be deemed given upon delivery. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.

Except for monetary obligations, neither party shall be responsible for failure to act in accordance with the terms of this Agreement if such failure is due to causes beyond the party’s reasonable control, financial inability excluded, such as earthquake, flood, acts of God, war, or terrorist attacks, whether physical or electronic, or failure of the internet; provided that the party who is unable to act promptly provides written notice detailing the problem and further provided that such party uses commercially reasonable efforts to overcome such delay.

Licensee consents to the disclosure and use of Licensee’s name and status as a Licensee in the Building in any advertising or marketing materials or efforts of Licensee.

This Agreement shall be governed by and construed under the laws of the State of California.

This Agreement shall inure to the benefit of and be binding on the parties, and their heirs, successors, assigns and legal representatives, but nothing contained in this Section 19 shall be construed to permit an assignment or other transfer except as provided in Section 14.

The invalidity of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

The obligations of Licensor under this Agreement shall not constitute personal obligations of Licensor, the individual partners, managers or members of Licensor or its or their individual partners, directors, officers, employees, members, investors or shareholders, and Licensee shall look to the License Area and the Building, and to no other assets of Licensor, for the satisfaction of any liability of Licensor with respect to this Agreement, and shall not seek recourse against Licensor or the individual partners or members of Licensor, or its or their individual partners, directors, officers, members, investors or shareholders, or any of their personal assets for such satisfaction.

Time is of the essence with respect to the performance of all obligations to be performed or observed by the parties under this Agreement. Unless otherwise specifically indicated to the contrary, the word “days” as used in this Agreement shall mean and refer to calendar days.

No waiver by Licensor of any Event of Default hereunder by Licensee shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Event of Default by Licensee of the same or of any other term, covenant or condition hereof.

All provisions of this Agreement to be observed or performed by Licensee are both covenants and conditions. In construing this Agreement, all headings and titles are for the convenience of the parties only and shall not be considered a part of this Agreement. Whenever required by the context, the singular shall include the

plural and vice versa. This Agreement shall not be construed as if prepared by one of the parties, but rather according to its fair meaning as a whole, as if both parties had prepared it.

If either party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Agreement on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on its behalf.

Sections 4.1(a) (Use), 9 (Removal of Equipment), 10.3 (Indemnity), 10.4 (Liability with respect to the License Area; Limitations on Consequential Damages) and 29 (Attorney’s Fees) shall survive the expiration or earlier termination of the Agreement.

The Agreement may be changed only by a written agreement signed by both parties. As long as they do not materially change Licensee’s obligations hereunder, Licensee agrees to make such reasonable non-monetary modifications to this Agreement as may be reasonably required by a lender in connection with the obtaining of normal financing or refinancing of the Building (“Lender”).

This Agreement shall be subject and subordinate to any ground lease, mortgage, deed of trust or other hypothecation or security device now or hereafter placed upon the License Area or the Building (collectively, “Security Device”), to any and all advances made on the security thereof and to all renewals, modifications, and extensions thereof. Licensee agrees that the holders of any such Security Devices shall have no liability or obligation to perform any of the obligations of Licensor under this License. Any Lender who succeeds to the interests of Licensor hereunder shall have the option to either terminate this Agreement upon notice to Licensee or to maintain this Agreement in full force and effect, in the sole discretion of such Lender. The agreements in this Section 28 shall be effective without the execution of any further documents; provided, however, that upon written request from Licensor or Lender in connection with a sale, financing or refinancing of the Building, Licensee and Licensor shall execute such further writings as may be reasonably required to separately document any subordination provided for herein. In addition, Licensee shall, within ten (10) days after the written notice from Licensor, execute, acknowledge and deliver to Licensor an estoppel certificate in the form requested by Licensor or any Lender, together with any additional information, confirmation and/or statements reasonably requested by Licensor.

If either party commences an action or arbitration against the other party arising out of or concerning this Agreement, the prevailing party in such litigation or arbitration shall be entitled to reasonable attorneys’ fees and costs in addition to such relief as may be awarded.

Licensee’s interest is as a licensee; with such license revocable upon an Event of Default. Nothing in this Agreement grants Licensee an easement, leasehold, or other property or ownership right in the License Area or the Building or creates a partnership or joint venture between Licensor and Licensee. Licensee acknowledges and agrees that this agreement does not comprise a leasehold or any other interest in real estate involving the Building, the License Area or otherwise. Except as expressly provided herein, nothing in this Agreement shall be construed to limit Licensor’s right to maintain and operate the Building and the License Area in its sole discretion.

This Agreement, consisting of the Basic License Terms and the Exhibits attached hereto, contains the entire agreement between the parties regarding the subject matter hereof, and there are no verbal or other agreements which modify or affect this Agreement. The Agreement supersedes all prior discussions and agreements made by or on behalf of Licensor and Licensee regarding the subject matter hereof.