SUBLEASE THIS SUBLEASE (this “Sublease”) is dated for reference purposes as of November 2, 2018, and is made by and between eHealth, Inc., a Delaware corporation (“Sublessor”), and JJ Lake Corporation, a Delaware corporation (“Sublessee”). Sublessor...
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SUBLEASE THIS SUBLEASE (this “Sublease”) is dated for reference purposes as of November 2, 2018, and is made by and between eHealth, Inc., a Delaware corporation (“Sublessor”), and XX Xxxx Corporation, a Delaware corporation (“Sublessee”). Sublessor and Sublessee hereby agree as follows: 1. Recitals: This Sublease is made with reference to the fact that 340 Middlefield, LLC, a California limited liability company, as landlord (“Master Lessor”), and Sublessor, as tenant, entered into that certain Lease Agreement, dated as of March 23, 2012 (the “Original Lease”), as amended by that certain Amendment to Lease dated May 28, 2013 (the “First Amendment”, and together with the Original Lease, the “Master Lease”), with respect to premises consisting of approximately 18,272 square feet of space, located at 000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX as more particularly defined and described in the Master Lease (the “Premises” or the “Building”). A copy of the Master Lease is attached hereto as Exhibit A. 2. Premises: Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases from Sublessor, all of the Premises (also referred to herein as the “Subleased Premises”). 3. Term: A. Term. The term (the “Term”) of this Sublease shall be for the period commencing on (i) December 1, 2018 (the “First Floor Commencement Date”) with respect to the first floor of the Premises (the “First Floor Premises”) and (ii) December 21, 2018 (the “Second Floor Commencement Date”, and together with the First Floor Commencement Date, each a “Commencement Date”) with respect to the second floor of the Premises (the “Second Floor Premises”) and ending on July 31, 2023 (the “Expiration Date”), unless this Sublease is sooner terminated pursuant to its terms or the Master Lease is sooner terminated pursuant to its terms. Notwithstanding the foregoing, between the First Floor Commencement Date and the Second Floor Commencement Date, Sublessor shall retain the right to access the First Floor Premises for purposes of ingress and egress and moving its personnel and equipment from the Second Floor Premises. During such period, Sublessor shall also retain the right to park in the parking lot and use the electric vehicle chargers. B. Early Possession. If Sublessor permits Sublessee to access the Subleased Premises prior to the applicable Commencement Date, such occupancy (i) shall be subject to all of the provisions of this Sublease, except for the obligation to pay Base Rent and Additional Rent (each, as defined below); and (ii) shall not advance the Expiration Date of this Sublease. Sublessor shall permit Sublessee to enter the First Floor Premises between November 24, 2018 and November 28, 2018 solely for the purpose of event setup for the Event Day (as defined below) and not for the purpose of conducting business therein, provided (i) Master Lessor’s consent to this Sublease has been received, (ii) Sublessee has delivered to Sublessor the Security Deposit and first month’s Base Rent as required under Section 4, (iii) Sublessee has delivered to Sublessor evidence of all insurance required under this Sublease and (iv) Sublessor has received a fully executed copy of the Sublessee Guaranty (defined below). As used herein, the term “Event Day” shall mean November 29, 2018. Subject to Master Lessor’s consent and all applicable terms, conditions and restrictions of the Master Lease as to this Sublease, on such Event Day, (i) Sublessee shall have the right to cover Sublessor’s interior and exterior logo(s) with Sublessee’s logo(s), provided, that Sublessee shall remove such covers by November 30, 2018, (ii) Sublessee and its invitees shall have exclusive use of the First Floor Premises on such Event Day for a grand opening event and (iii) Sublessor shall give an escorted tour of the whole Premises for Sublessee and its invitees. Sublessee shall provide Sublessor with a schedule and general description of the activities that will occur on such Event Day and Sublessor shall have the right to prescribe reasonable rules and regulations for such activities to protect against health and safety concerns and to ensure compliance with the Master Lease. Such occupancy and early access as provided above shall be subject to all of the provisions of this Sublease, except for the obligation to pay Base Rent and Additional Rent and shall not advance the Expiration Date of this Sublease. 9490521_4 -1-
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4. Rent: A. Base Rent. Sublessee shall pay to Sublessor as base rent for the Subleased Premises for each month during the Term in accordance with the schedule set forth in Exhibit B (“Base Rent”): Base Rent for the period of the Term between the applicable Commencement Date and December 31, 2018 shall be abated. Base Rent and Additional Rent, as defined in Section 4.B below, shall be paid on or before the first (1st) day of each month during the Term. Base Rent and Additional Rent for any period during the Term hereof which is for less than one (1) month of the Term shall be a pro rata portion of the monthly installment based on a thirty (30) day month. If an increase in Base Rent becomes effective on a date other than the first day of a calendar month, the Base Rent for that month shall be the sum of the two applicable rates, each prorated for the portion of the month during which the rate is in effect. Base Rent and Additional Rent shall be payable without notice or demand and without any deduction, offset, or abatement, in lawful money of the United States of America. Base Rent and Additional Rent shall be paid directly to Sublessor at 0000 Xxxxxxxxx Xxxxx, Xxxxx 0, Xxxxx Xxxxx, XX 00000, Attention: Accounting and Finance Department, or such other address as may be designated in writing by Sublessor. For the avoidance of doubt, Sublessee shall not be responsible for the Monthly Base Rent (as defined in the Master Lease) payable to Master Lessor under the Master Lease except as provided in Section 6 below, and the Base Rent payable by Sublessee hereunder is in lieu thereof. B. Additional Rent. All monies other than Monthly Base Rent required to be paid by Sublessor under the Master Lease during the Term, including, without limitation, any amounts payable by Sublessor to Master Lessor as “Additional Rent” (as defined in Section 3.2(b) of the Master Lease), shall be paid by Sublessee hereunder as and when such amounts are due under the Master Lease, as incorporated herein. Sublessee shall also pay to Sublessor all costs directly incurred by or at the request of Sublessee with respect to its use of the Premises. All such amounts shall be deemed additional rent (“Additional Rent”). Until such time that both the First Floor Commencement Date and the Second Floor Commencement Date have occurred, Sublessee shall pay its pro rata portion of the Additional Rent based on the portion of the Premises to which Sublessor has delivered possession to Sublessee. Base Rent and Additional Rent hereinafter collectively shall be referred to as “Rent”. Sublessee and Sublessor agree, as a material part of the consideration given by Sublessee to Sublessor for this Sublease, that Sublessee shall pay all costs, expenses, taxes, insurance, maintenance and other charges of every kind and nature arising in connection with this Sublease, the Master Lease or the Subleased Premises, such that Sublessor shall receive, as a net consideration for this Sublease, the Base Rent payable under Section 4.A. hereof; provided, however, that in no event shall Sublessee be responsible for Sublessor’s costs and expenses incurred in connection with the negotiation and execution of this Sublease or Sublessor’s request for Master Lessor’s consent to this Sublease, including without limitation attorneys’ fees, broker commissions, and any Bonus Rent or other fees or consideration payable to Master Lessor in connection with Master Lessor’s consent to this Sublease. C. Advance Payment of Rent. Upon execution hereof by Sublessee, Sublessee shall pay to Sublessor the sum of Seventy-Nine Thousand Four Hundred Eighty-Three and 20/100 Dollars ($79,483.20), which shall constitute Base Rent for the month of January 2019. 5. Security Deposit: Upon execution hereof by Sublessee, Sublessee shall deposit with Sublessor the sum of Two Hundred Fifty Thousand Dollars ($250,000) (the “Security Deposit”), in cash, as security for the performance by Sublessee of the terms and conditions of this Sublease. If Sublessee fails to pay Rent or other charges due hereunder or otherwise defaults with respect to any provision of this Sublease, then Sublessor may draw upon, use, apply or retain all or any portion of the Security Deposit for the payment of any Rent or other charge in default, for the payment of any other sum which Sublessor has become obligated to pay by reason of Sublessee’s default, or to compensate Sublessor for any loss or damage which Sublessor has suffered thereby, including future rent damages under California Civil Code Section 1951.2, without prejudice to any other remedy provided herein or by law. Sublessee hereby waives the provisions of any law, now or hereafter in force, including, without limitation, California Civil Code Section 1951.7, that provides that Sublessor may claim from a security deposit only those sums reasonably necessary to remedy 9490521_4 -2-
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16. Default; Remedies: A. Sublessee shall be in material default of its obligations under this Sublease upon the occurrence of any Event of Default as set forth in Section 15.1 of the Master Lease, as incorporated herein. Upon any such Event of Default by Sublessee, Sublessor shall have all remedies provided pursuant to Section 15.2 of the Master Lease and by applicable law, including damages that include the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided and 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 right to sublet or assign, subject only to reasonable limitations). B. Sublessor shall be in default under this Sublease if Sublessor shall fail to perform its obligations under this Sublease within thirty (30) days after written notice by Sublessee to Sublessor specifying wherein Sublessor has failed to perform such obligations; provided, however, that if the nature of Sublessor’s obligations is such that more than thirty (30) days are required for performance then Sublessor shall not be in default if Sublessor commences performance within such thirty (30) day period and thereafter diligently pursues the same to completion within ninety (90) days. Sublessee waives any right to terminate this Sublease or to vacate the Subleased Premises on Sublessor’s default under this Sublease. Sublessee’s sole remedy on Sublessor’s default is an action for damages or injunctive or declaratory relief. 17. Surrender: Prior to expiration of this Sublease, Sublessee shall remove all of its trade fixtures and shall surrender the Subleased Premises to Sublessor in the condition required under the Master Lease; provided, however, that Sublessee shall not be required to remove or restore (i) any alterations or improvements existing in the Subleased Premises on the applicable Commencement Date or (ii) any alterations to which Master Lessor has agreed in writing may remain at the end of the Term. If the Subleased Premises are not so surrendered, then Sublessee shall be liable to Sublessor for all liabilities Sublessor incurs as a result thereof, including costs incurred by Sublessor in returning the Subleased Premises to the required condition, plus interest thereon at the Interest Rate (as defined in the Master Lease). Sublessee shall be required to remove the Furniture (defined below) from the Subleased Premises at the expiration or earlier terminaton of this Sublease unless Master Lessor agrees in writing that the Furniture may remain in the Subleased Premises. 18. Broker: Sublessor and Sublessee each represent to the other that they have dealt with no real estate brokers, finders, agents or salesmen other than Newmark Cornish & Xxxxx, representing Sublessor, and Sunrise Value Investments, representing Sublessee, in connection with this transaction. Each party agrees to hold the other party harmless from and against all claims for brokerage commissions, finder’s fees or other compensation made by any other agent, broker, salesman or finder as a consequence of such party’s actions or dealings with such agent, broker, salesman, or finder. 19. Notices: Unless at least five (5) days’ prior written notice is given in the manner set forth in this paragraph, the address of each party for all purposes connected with this Sublease shall be that address set forth below its signature at the end of this Sublease. All notices, demands or communications in connection with this Sublease shall be (a) personally delivered; or (b) properly addressed and (i) submitted to an overnight courier service, charges prepaid, or (ii) deposited in the mail (certified, return receipt requested, and postage prepaid). Notices shall be deemed delivered upon receipt, if personally delivered, one (1) business day after being submitted to an overnight courier service and three (3) business days after mailing, if mailed as set forth above. All notices given to Master Lessor under the Master Lease shall be considered received only when delivered in accordance with the Master Lease. 20. Miscellaneous: This Sublease shall in all respects be governed by and construed in accordance with the laws of the State of California. If any term of this Sublease is held to be invalid or unenforceable by any court of competent jurisdiction, then the remainder of this Sublease shall remain in full force and effect to the fullest extent possible under the law, and shall not be affected or impaired. This Sublease may not be amended except by the written agreement of all parties hereto. If either party brings any 9490521_4 -5-
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action or legal proceeding with respect to this Sublease, the prevailing party shall be entitled to recover reasonable attorneys’ fees, experts’ fees, and court costs. Sublessee and Sublessor each represent and warrant to the other that each person executing this Sublease on behalf of such party is duly authorized to execute and deliver this Sublease on behalf of that party. Sublessor has not had an inspection of the Premises performed by a Certified Access Specialist as described in California Civil Code § 1938. A Certified Access Specialist (CASp) can inspect the Subleased Premises and determine whether the Subleased Premises complies with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the Subleased Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the Subleased Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Subleased Premises. Capitalized terms used but not defined in this Sublease shall have the meanings ascribed to such terms in the Master Lease. 21. Other Sublease Terms: A. Incorporation By Reference. Except as set forth below, the terms and conditions of this Sublease shall include all of the terms of the Master Lease and such terms are incorporated into this Sublease as if fully set forth herein, except that: (i) each reference in such incorporated sections to “Lease” shall be deemed a reference to “Sublease”; (ii) each reference to the “Premises” shall be deemed a reference to the “Subleased Premises”; (iii) each reference to “Landlord” and “Tenant” shall be deemed a reference to “Sublessor” and “Sublessee”, respectively, except as otherwise expressly set forth herein; (iv) each reference to “Monthly Base Rent” shall be deemed a reference to the “Base Rent” set forth herein (v) each reference to “Premises Delivery Date” or “Commencement Date” shall be deemed a reference to the applicable “Commencement Date” set forth herein; (vi) each reference to “Lease Date” shall be deemed a reference to the date of execution of this Sublease; (vii) with respect to work, services, repairs, restoration, insurance, indemnities, representations, warranties or the performance of any other obligation of Master Lessor under the Master Lease, the sole obligation of Sublessor shall be to request the same in writing from Master Lessor as and when requested to do so by Sublessee, and to use Sublessor’s reasonable efforts to obtain Master Lessor’s performance, provided, however, that (a) Sublessee agrees to reimburse Sublessor for any reasonable costs incurred by Sublessor in connection with such reasonable efforts and (b) Sublessor shall not be required to institute any lawsuit or other legal action against Master Lessor; (viii) with respect to any obligation of Sublessee to be performed under this Sublease, wherever the Master Lease grants to Sublessor a specified number of days to perform its obligations under the Master Lease, except as otherwise provided herein, Sublessee shall have three (3) fewer days to perform the obligation, including, without limitation, curing any defaults; (ix) with respect to any approval required to be obtained from the “Landlord” under the Master Lease, such consent must be obtained from both Master Lessor and Sublessor, and the approval of Sublessor may be withheld if Master Lessor’s consent is not obtained; (x) in any case where the “Landlord” reserves or is granted the right to manage, supervise, control, repair, alter, regulate the use of, enter or use the Premises or any areas beneath, above or adjacent thereto, perform any actions or cure any failures, such reservation or right shall be deemed to be for the benefit of both Master Lessor and Sublessor; (xi) in any case where “Tenant” is to indemnify, release or waive claims against “Landlord”, such indemnity, release or waiver shall be deemed to cover, and run from Sublessee to, both Master Lessor and Sublessor; (xii) in any case where “Tenant” is to execute and deliver certain documents or notices to “Landlord”, such obligation shall be deemed to run from Sublessee to both Master Lessor and Sublessor; (xiii) all payments shall be made to Sublessor; (xiv) Sublessee shall pay all consent and review fees set forth in the Master Lease to each of Master Lessor and Sublessor; (xv) Sublessee shall not have the right to terminate this Sublease due to casualty or condemnation unless Sublessor has such right under the Master Lease; (xvi) fifty percent (50%) of all “profit” under sub-subleases and assignments remaining after Master Lessor has received its share of such “profit” shall be paid to Sublessor; and (xvii) Sublessor’s obligations under Section 3.2(b) are limited to forwarding statements and refunds provided by Master Lessor, and Sublessee shall have no right to dispute or audit such statements. 9490521_4 -6-
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shall insure the Furniture under the property insurance policy as and to the extent required under the Master Lease, as incorporated herein, and pay all taxes with respect to the Furniture (except to the extent such taxes are applicable to Sublessor’s income derived from the Furniture Rental Fee). During the Term, Sublessee shall maintain the Furniture in good condition and repair, reasonable wear and tear excepted, and shall be responsible for any loss or damage to the same occurring during the Term. Upon the expiration or earlier termination of this Sublease, Sublessor shall relinquish any and all rights it may have in or to the Furniture and Sublessee shall be required to remove the Furniture from the Subleased Premises unless Master Lessor agrees in writing that the Furniture may remain in the Subleased Premises. 9490521_4 -8-
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the day and year first above written. SUBLESSOR: SUBLESSEE: EHEALTH, INC., XX XXXX CORPORATION, a Delaware corporation a Delaware corporation By: - 7- By: C7T Name: /K L/H A/6r~ Name: Its: Its: Address: Address: eHealth, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxx 0 Xxxxx Xxxxx, XX 00000 Attn: General Counsel With a copy to: eHealthlnsurance Services, Inc. 000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxxxx Xxxx, XX 00000 Attn: General Counsel 9490521_4 -9-
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the day and year first above written. SUBLESSOR: SUBLESSEE: EHEALTH, INC., XX XXXX CORPORATION, a Delaware corporation a Delaware corporation By: By: Name: Name: J-JcxAvg rTonaj Its: Its: ueo Address: Address: Hllft YKAN LNTERMT10HAL eHealth, Inc. 0000 Xxxxxxxxx Xxxxx XXXXXX Xxxxx 0 Xxxxx Xxxxx, XX 00000 Attn: General Counsel 8*/? With a copy to: eHealthlnsurance Services, Inc. Coftwewe (et&te 000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxxxx Xxxx, XX 00000 I Kowtvon Attn: General Counsel Wo^5 9490521_4 -9-
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EXHIBIT A MASTER LEASE 9490521_4
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LEASE AGREEMENT (SINGLE TENANT BUILDING IN SINGLE BUILDING PROJECT) between 340 MIDDLEFIELD, LLC, as "Landlord" and cHEALTH, INC. a Delaware corporation as "Tenant" WEST\225501828.8
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TABLE OF CONTENTS 1. PREMISES 1 2. TERM .2 3. RENT 3 4. SECURITY DEPOSIT 8 5. USE AND COMPLIANCE WITH LAWS 11 6. ALTERATIONS 14 7. MAINTENANCE AND REPAIRS 17 8. TENANT'S TAXES 18 9. UTILITIES AND SERVICES 18 10. EXCULPATION AND INDEMNIFICATION 19 11. INSURANCE 20 12. DAMAGE OR DESTRUCTION 22 13. CONDEMNATION 23 14. ASSIGNMENT AND SUBLETTING 24 15. DEFAULT AND REMEDIES ,27 16. NOTICE REQUIREMENTS 29 17. LATE CHARGE AND INTEREST 29 18. WAIVER 30 19. ENTRY, INSPECTION AND CLOSURE 30 20. SURRENDER AND HOLDING OVER 31 21. ENCUMBRANCES 32 22. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS 33 23. NOTICES 34 24. ATTORNEYS'FEES 34 25. QUIET POSSESSION 34 26. SIGNS 34 27. COMMON AREAS 35 28. RULES AND REGULATIONS 35 29. LANDLORD'S LIABILITY 35 30. CONSENTS AND APPROVALS .35 31. BROKERS 35 WEST\225501828.8
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32. PARKING 36 33. ENTIRE AGREEMENT 36 34. MISCELLANEOUS 36 35. TIME 37 36. AUTHORITY 37 37. OPTION TO EXTEND LEASE 37 ii WEST\225501828.8
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BASIC LEASE INFORMATION Lease Date: For identification purposes only, the date of this Lease is March Z-^>, 2012 Landlord; 340 Middlefield, LLC Tenant: eHealth, Inc., a Delaware corporation Property: That certain real property described in Exhibit A attached hereto and commonly known as 000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx. Premises: The Property, including the building (the "Building") that Landlord will construct along with related improvements as Landlord's Work described in the Work Letter Agreement attached hereto as Exhibit C (the "Work Letter"). Building Address: 000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000 Tenant Improvement Allowance: Forty Five Dollars ($45) per square foot of the Building, as provided in the Work Letter. Term: Unless earlier terminated in accordance with the provisions hereof, the Term shall be One Hundred and Twenty (120) full calendar months (plus any partial month at the beginning of the Term) following the Commencement Date. Commencement Date: The Commencement Date shall be ninety (90) days following the delivery of the Premises to Tenant in Tenant Access Condition (as defined in the Work Letter) (the "Premises Delivery Date"). The Premises shall be in Tenant Access Condition no sooner than eight (8) months from the Lease Date and no later than twenty (20) months from the Lease Date (the "Anticipated Delivery Date") and rent commencement will be pursuant to Paragraph 3.1, and, in no event shall rent commence earlier than ten (10) months from the Lease Date. Expiration Date: The last day of the One Hundred Twentieth (120th) full calendar month in the Term, pursuant to Paragraph 2 hereof. Monthly Base Rent: Monthly Base Rent for the first twelve (12) months of the Term shall be equal to S2.80 per rentable square foot of the Building. The Monthly Base Rent shall be increased annually by three percent (3%) on the first anniversary of the Commencement Date and each anniversary thereafter during the Term. iv WEST,225501 S28.8
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For the purpose of determining the amount of Monthly Base Rent due upon execution of this Lease, the parties agree and acknowledge that the Building is expected to contain approximately Seventeen Thousand Seven Hundred Forty (17,740) square feet. Accordingly, Tenant shall deliver to Landlord Forty Nine Thousand Six Hundred Seventy Two and 00/100 Dollars ($49,672.00) on the execution of this Lease, which amount shall be applied to the Base Rent as more particularly set forth in Paragraph 3.1 below. Following completion of Landlord's Work, Landlord and Tenant will reconcile the difference, if any, between the estimated and actual square footage of the Building. Tenant's Share: One Hundred Percent (100%) Security Deposit: A Letter of Credit in the amount of Five Hundred Ninety Six Thousand Sixty Four and 00/100 Dollars ($596,064.00), pursuant to Paragraph 4, below. Advance Rent: Concurrently with its execution and delivery of this Lease, Tenant shall pay to Landlord (i) the Monthly Base Rent for the first full calendar month of the Term in the amount of Forty Nine Thousand Six Hundred Seventy Two and 00/100 Dollars ($49,672.00)plus (ii) Landlord's estimate of Additional Rent for such month in an amount equal to Thirteen Thousand Seven Hundred Thirty Five and 00/100 Dollars ($13,735.00). Landlord's Address for Payment of Rent and Notices: 340 Middlefield LLC c/o Xxx Xxxxxx Xxxxxx LLP 0 Xxxxxx Xxxxx, Xxx 000 Xxxxxxx Xxxx, Xx 00000 Tenant's Address for Notices: Prior to the Commencement Date: eHealth, Inc. 000 X. Xxxxxxxxxxx Xx. Xxxxxxxx Xxxx, Xx 00000 Attn: General Counsel Effective upon the Commencement Date, Tenant's sole Address for Notices shall be the Premises address. The Basic Lease Information set forth above is part of the Lease. In the event of any conflict between any provision in the Basic Lease Information and the Lease, the Lease shall control. v WEST\225501828.S
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funds, as reasonably detennined by Landlord), over the useful life of such improvements or replacements, as determined in accordance with generally accepted accounting principles, consistently applied; (H) property management fees equal to three percent (3.0%) of the annual amount of Monthly Base Rent payable hereunder; (I) complying with and/or performing obligations under any reciprocal easement agreement or other similar arrangement with adjacent property owners; (J) reasonable accounting, legal and other professional services incurred in connection with the operation of the Property and the calculation of Operating Costs and Taxes; (K) contesting the validity or applicability of any Laws that may affect the Property; (L) supplies, materials, tools and rental equipment; and (M) any other cost, expenditure, fee or charge, whether or not hereinbefore described, which in accordance with generally accepted property management practices would be considered a reasonable expense of managing, operating, maintaining, repairing and/or improving the Property. Operating Costs shall not include (i) ground rent payments; (ii) interest and principal payments on loans or indebtedness of Landlord, financing costs and amortization of funds borrowed by Landlord, whether secured or unsecured; (iii) depreciation; (iv) costs, fines or penalties incurred due to the violation of any Law by Landlord and/or its employees, agents or contractors; (v) salaries, wages, benefits and other compensation paid to officers and employees of Landlord who are not assigned in whole or in part to the operation, management, maintenance or repair of the Property; (vi) general organizational, administrative and overhead costs relating to maintaining Landlord's existence, either as a corporation, partnership or other entity, including general corporate, legal and accounting expenses incurred in connection therewith; (vii) costs and expenses, including legal fees, incurred in connection with negotiations or disputes with employees, consultants, management agents, leasing agents, service providers, purchasers or mortgagees of the Building or the Property; (viii) tax penalties, fines or interest incurred as a result of Landlord's failure, inability or unwillingness to pay and/or to file any tax or informational returns when due, or from Landlord's failure to make any tax payment required to be made by Landlord before delinquency (other than to the extent any such failure to pay and/or to file, or to pay before delinquency, is due to Tenant's failure to timely pay Tenant's Share of Taxes and/or Tenant's Taxes); (ix) overhead and profit increment paid to the Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in or to the Building or the Property to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis; (x) costs arising from Landlord's charitable or political contributions; (xi) costs incurred in connection with the sale or refinancing of the Building or the Property; (xii) income taxes measured by the net income of Landlord or the owner of any interest in the Building or the Property, franchise, capital stock, gift, estate or inheritance taxes or any federal, state or local documentary transfer taxes imposed in connection with recording a deed transferring an interest in the Property or any portion thereof or interest therein; (xiii) any expense to the extent covered aid actually paid by insurance; (xiv) any costs and expenses incurred to comply with Environmental Requirements that do not arise out of or result from Hazardous Materials Handled by Tenant; (xv) costs occasioned by casualties or condemnation; (xvi) costs to comply with any Laws, private restrictions or underwriting requirements applicable to the Premises or the Property on the Premises Delivery Date; (xvii) insurance costs for coverage not customarily paid by tenants of similar projects in the vicinity of the Premises, insurance deductibles, except to the extent included in Operating Costs pursuant to subpart (D) of the first paragraph of this provision, and co-insurance payments; (xviii) expense reserves; (xix) costs of structural repairs to the Building; (xx) costs which could properly be 5 WEST\225501828.8
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Commencing on the first day of January of each calendar year and continuing on the first day of every month thereafter in such year, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated Additional Rent. If Landlord thereafter estimates that Operating Costs for such year will vary from Landlord's prior estimate. Landlord may, on not less than thirty (30) days' prior written notice to Tenant, revise the estimate for such year (and Additional Rent shall thereafter be payable based on the revised estimate). Landlord's initial estimate of Operating Costs for the first full calendar month of the Term is Thirteen Thousand Seven Hundred Thirty Five and 00/100 Dollars ($13,735.00). (3) As soon as reasonably practicable after the end of each calendar year, Landlord shall furnish Tenant a statement (the "Statement") with respect to such year, showing Operating Costs, and any other Additional Rent for the year, and the total payments made by Tenant with respect thereto. Unless Tenant raises any objections to Landlord's Statement within ninety (90) days after receipt of the same. Tenant shall have no right thereafter to audit Landlord's books and records with respect to such Statement. If Tenant does object to such Statement within the requisite time period, then Landlord shall provide Tenant with reasonable verification of the figures shown on the Statement and the parties shall negotiate in good faith to resolve any disputes. If after such negotiations Landlord and Tenant cannot agree upon the amount of Operating Costs, then Tenant shall have the right to have a certified public accountant (at Tenant's sole cost and expense) and approved by Landlord (which approval shall not be unreasonably withheld or delayed), audit and/or review Landlord's books and records relating to the Statement and the calculation of Operating Costs for the year in question (the "Independent Review"). The results of any such Independent Review shall be binding on Landlord and Tenant, unless Landlord elects, within sixty (60) days of receipt of the results of the Independent Review, to initiate legal proceedings to resolve any disputes regarding conclusions in the Independent Review that Landlord does not accept. If the Independent review and/or any legal proceedings with respect thereto show that the Operating Costs actually paid by Tenant for the calendar year in question exceeded Tenant's obligations for such calendar yeai. Tenant may offset such excess against Rent due under the Lease or, if no rent remains due. Landlord shall pay the excess to Tenant within fifteen (15) days after final determination of the Operating Costs after deducting all other amounts due Landlord. If the Independent Review and/or any legal proceedings with respect thereto show that Tenant's payments of Operating Costs for such calendar year were less than Tenant's obligation for the calendar year, Tenant shall pay the deficiency to the Landlord within fifteen (15) days after final determination of the Operating Costs. If the Independent Review and/or any legal proceedings with respect thereto show that Tenant has overpaid Operating Costs for the year in question by more than five percent (5%), then Landlord shall reimburse Tenant for all reasonable costs paid by Tenant to the firm performing the Independent Review. Operating Costs for the calendar years in which Tenant's obligation to share therein begins and ends shall be prorated. Any failure of Landlord to deliver Landlord's Statement as provided herein shall not reUeve Tenant of Tenant's obligation to pay any amounts due Landlord based on Landlord's Statement, so long as the Statement for any calendar year is delivered not later than nine (9) months after the end of the calendar year. (4) If Tenant's Additional Rent as finally determined for any calendar year exceeds the total payments made by Tenant on account thereof, and Tenant does not timely object thereto as permitted under subparagraph (3) above. Tenant shall pay Landlord the deficiency within five (5) days of Tenant's receipt of Landlord's Statement. If, however, Tenant 7 WEST\225501828.8
![slide27](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn027.jpg)
replenisli the Security Deposit to the Ml amount thereof, and Tenant's failure to do so within five (5) Business Days after receipt of such demand from Landlord shall constitute an Event of Default. 4.3 Transfer. If Landlord disposes of its interest in the Building, Landlord may deliver or credit the Security Deposit to Landlord's successor-in-interest, and Landlord thereupon shall be relieved of further responsibility with respect to the Security Deposit. Upon a sale or other transfer of the Property or the Building, or any financing of Landlord's interest therein. Landlord shall have the right to transfer the Security Deposit to its transferee or lender. With respect to the Letter of Credit, within five (5) days after notice of such transfer or financing. Tenant, at its sole cost, shall arrange for the transfer of the Letter of Credit to the new landlord or the lender, as designated by Landlord in the foregoing notice or have the Letter of Credit reissued in the name of the new landlord or the lender. Following any such transfer of the Security Deposit and the written assumption of this Lease by the transferee, Tenant shall look solely to the new landlord or lender for the return of such cash Security Deposit or Letter of Credit and the provisions hereof shall apply to every transfer or assignment made of the Security Deposit to a new landlord. 4.4 Reduction in the Amount of the Letter of Credit. Following each Reduction Date (as hereinafter defined), provided that both (A) no Event of Default has occurred and is continuing as of the date that is five (5) business days prior to each Reduction Date and (B) no Event of Default in the payment of Monthly Base Rent or Additional Rent described in Paragraph 15.1(a) hereof has occurred on three (3) or more occasions during the portion of the Term preceding such Reduction Date, then, for each such Reduction Date until the amount of the Security Deposit has been reduced to the Reduction Limit (as hereinafter defined), the Security Deposit shall be reduced effective as of the Reduction Date by the Reduction Increment (as hereinafter defined). Promptly following any such Reduction Date, Landlord shall deliver to Tenant written notice confirming such permitted reduction in the amount of the Security Deposit, and, upon receipt of such notice. Tenant shall be authorized to deliver a substitute or amended Letter of Credit to Landlord satisfying the requirements set forth in Paragraph 4 and in an amount equal to the Security Deposit as reduced by such Reduction Increment and Landlord shall exchange the prior Letter of Credit for the substitute Letter of Credit in cooperation with the Issuing Bank. For the purposes of this Paragraph 4 "Reduction Date" shall mean the first (1st), second (2nd) and third (3rd) anniversary of the Commencement Date. The term "Reduction Increment" shall mean an amount equal to twenty-five percent (25%) of the initial amount of the Letter of Credit. The term "Reduction Limit" shall mean an amount equal to no less than twenty-five percent (25%) of the amount of the Letter of Credit required on the Lease Date. 4.5 Waiver. Nothing in this Paragraph 4 shall be construed to limit the amount of damages recoverable by Landlord or any other remedy to the amount of the Security Deposit. Further, nothing herein shall be construed to require Landlord to accept any portion of the Security Deposit in the form of cash (i.e., as opposed to a Letter of Credit), and Landlord shall have the right, at any time, to require Tenant to convert any cash Security Deposit held by Landlord to a Letter of Credit meeting the requirements set forth herein. Tenant waives the provisions of California Civil Code Section 1950.7, and all other provisions of law now in force or that become in force after the date of execution of this Lease, to the extent the same provide that Landlord may claim from a security deposit only those sums reasonably necessary to remedy 10 WEST\22550] 828.8
![slide29](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn029.jpg)
5.2 Hazardous Materials. (a) Definitions. (1) "Hazardous Materials" shall mean any substance, material or waste (A) that now or in the future is regulated or governed by, requires investigation or remediation under, or is defined as a hazardous waste, hazardous substance, hazardous material, pollutant or contaminant under any Laws, including the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recoveiy Act, 42 U.S.C. § 6901 et seq., and Sections 25117 and 25316 of the California Health and Safety Code, or (B) that is toxic, explosive, corrosive, flammable, radioactive, carcinogenic, dangerous or otherwise hazardous, including gasoline, diesel fuel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs), asbestos, radon and urea formaldehyde foam insulation. (2) "Environmental Requirements" shall mean all present and future Laws and other requirements of any kind applicable to Hazardous Materials. (3) "Handled by Tenant" and "Handling by Tenant" shall mean and refer to any installation, handling, generation, storage, use, disposal, discharge, release, abatement, removal, transportation, or any other activity of any type by Tenant or its agents, employees, contractors, licensees, assignees, sublessees, transferees or representatives (collectively, "Representatives") or its guests, customers, invitees, or visitors (collectively, "Visitors"), at or about the Premises and/or the Property in connection with or involving Hazardous Materials. (4) "Environmental Losses" shall mean all costs Mid expenses of any kind (including attorneys' fees), damages, including foreseeable and unforeseeable consequential damages, fines and penalties incurred in connection with any violation of and/or compliance with Environmental Requirements and all losses of any kind attributable to the diminution of value, loss of use or adverse effects on marketability or use of any portion of the Property. (b) Tenant's Covenants. No Hazardous Materials shall be Handled by Tenant at or about the Premises or Property without Landlord's prior written consent, which consent may be granted, denied, or conditioned upon compliance with Landlord's requirements, all in Landlord's absolute discretion. Notwithstanding the foregoing, normal quantities and use of those products containing small amounts of Hazardous Materials customarily used in the conduct of general office activities, such as copier fluids and cleaning supplies ("Permitted Hazardous Materials"), may be used and stored at the Premises without Landlord's prior written consent, provided that Tenant's activities at or about the Premises and Property and the Handling by Tenant of all such products and the Hazardous Materials therein shall comply at all times with all Environmental Requirements. At the expiration or termination of the Lease, Tenant shall promptly remove from the Property all Hazardous Materials Handled by Tenant at the Property. Tenant shall keep Landlord fully and promptly informed of all Handling by Tenant of Hazardous Materials other than Permitted Hazardous Materials. Tenant shall be responsible and liable for the compliance with all of the provisions of this Paragraph by all of Tenant's agents, employees and contractors ("Tenant's Representatives") and Tenant's visitors, clients, guests and invitees ("Tenant's Visitors"), and all of Tenant's obligations under this Paragraph (including its 12 WESTy225501828.8
![slide34](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn034.jpg)
7. MAINTENANCE AND REPAIRS. 7.1 Tenant's Obligations. As of the Premises Delivery Date, the portion of the Premises consisting of Landlord's Work shall be in good working condition and in compliance with the Work Letter, and Landlord hereby warrants the same during the Warranty Period and shall repair or replace, as necessary, any such components of the Premises which are not in good working condition to the extent Tenant provides written notice thereof to Landlord within the Warranty Period. Except as expressly set forth in this Paragraph 7.1 and Paragraph 1.2 and Paragraph 5.1, above, the Premises shall be delivered to, and accepted by. Tenant in its "as is" condition with "all faults," and, excepting any defective components (or noncompliance with Laws) of the Premises noted by Tenant in writing during the Warranty Period, Landlord shall have no obligation whatsoever to alter, remodel, improve, repair, decorate or paint the Premises, the remainder of the Property or any part thereof either prior to or during the Term, except as expressly set forth in Paragraph 7.2, below. By taking possession of the Premises Tenant agrees that the Premises (and the Property) are suitable for Tenant's purposes and in good and tenantable condition. During the Term, Tenant, at Tenant's expense, but under the direction of Landlord if Landlord so elects, shall clean, keep and maintain in good order, condition and repair (and replace, if necessary) every part of the Premises and the remainder of the Property which is not part of Landlord's obligation pursuant to Paragraph 7.2 of this Lease, said obligation of Tenant to include (but not be limited to) all Building Systems (including the Building's HVAC systems and all components thereof (including all machinery, equipment, wires, conduits and lines), the interior of all walls, all floors and floor coverings, ceilings (ceiling tiles and grid), the Tenant Improvements, any Alterations installed by Tenant, fire extinguishers, outlets and fixtures, any appliances (including dishwashers, hot water heaters Mid garbage disposals), and all windows, doors, entrances, and plate glass. Tenant shall maintain an HVAC maintenance contract with a reputable HVAC contractor approved by Landlord in Landlord's reasonable discretion and shall provide Landlord copies of reports received by Tenant firom the HVAC contractor regarding the maintenance and repair of the HVAC system, and permit Landlord to call the HVAC contractor directly in the event of an emergency. Tenant acknowledges and agrees that it has inspected, or immediately after taking possession of the Premises will inspect, the Property (including the Premises) and that Tenant is not relying on any representations or warranties made by Landlord regarding the Premises or any other part of the Property, except as may be expressly set forth in this Lease. 7.2 Landlord's Obligations. Subject to Paragraphs 7.1,12 aid 13, Landlord shall maintain or cause to be maintained in good order, condition and repair, the Common Areas of the Property (including the parking area and the landscaping on the Property), the structural components of the Building (which structural components include only the foundation and the structural components of all exterior walls and the Building's roof system), the Building's exterior walls, and the Building's roof (including the roof membrane). Any costs incurred by Landlord pursuant to this provision shall be Operating Costs (to the extent properly included therein) and nothing contained herein shall be construed to negate or limit Tenant's obligation to pay Tenant's Share of such costs. Landlord shall be under no obligation to inspect the Property, including the Building; and Tenant shall promptly report in writing to Landlord any condition known to Tenant which Landlord is required to repair. As a material part of the consideration for this Lease, Tenant hereby waives any benefits of any applicable existing or future Law, including the provisions of California Civil Code Sections 1932(1), 1941 and 1942, that allows a tenant to 17 WEST\225501828.8
![slide35](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn035.jpg)
make repairs at its landlord's expense. Notwithstanding anything to the contrary in this Lease, Landlord shall perform and construct, and Tenant shall have no responsibility to perform or construct, any repair, maintenance or improvements (a) necessitated by the acts or omissions of Landlord, or its respective agents, employees or contractors, (b) for which Landlord has a right of reimbursement from others or (c) which could be treated as a "capital expenditure" under generally accepted accounting principles and cost in excess of $75,000 per occurrence. Notwithstanding the foregoing, Tenant shall pay for its share of the repairs described in subsections (a) and (c) to the extent such costs are properly included in Operating Costs. 8. TENANT'S TAXES. "Tenant's Taxes" shall mean (a) all taxes, assessments, license fees and other governmental charges or impositions levied or assessed against or with respect to Tenant's personal property or Trade Fixtures in the Premises, whether any such imposition is levied directly against Tenant or levied against Landlord or the Property, (b) all rental, excise, sales or transaction privilege taxes arising out of this Lease (excluding, however, state and federal personal or corporate income taxes measured by the income of Landlord from all sources) imposed by any taxing authority upon Landlord or upon Landlord's receipt of, or right to receive, any rent payable by Tenant pursuant to the terms of this Lease ("Rental Tax"), and (c) any increase in Taxes attributable to inclusion of a value placed on Tenant's personal property, Trade Fixtures or Alterations. Tenant shall pay any Rental Tax to Landlord in addition to and at the same time as Monthly Base Rent is payable under this Lease, and shall pay all other Tenant's Taxes before delinquency (and, at Landlord's request, shall furnish Landlord satisfactory evidence thereof). If Landlord pays Tenant's Taxes or any portion thereof, Tenant shall reimburse Landlord upon demand for the amount of such payment, together with interest at the Interest Rate from the date of Landlord's payment to the date of Tenant's reimbursement. 9. UTILITIES AND SERVICES. 9.1 Responsibility for Utilities and Services. Tenant shall be responsible for and shall pay promptly all costs and other charges (including initial and subsequent deposits, if any) for water, gas, electricity, telephone, refuse pickup, sewer, janitorial service, and all other utilities, materials and services furnished directly to or used by Tenant in, on or about the Property during the Term, together with any taxes thereon. Tenant is hereby permitted to have access to the Premises twenty-four hours a day, seven days a week. 9.2 Interruption of Services. In the event of an interruption in or failure or inability to provide any services or utilities to the Premises or Building for any reason (a "Service Failure"), such Service Failure shall not, except as set forth below, impose upon Landlord any liability whatsoever, constitute an eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of rent or to terminate this Lease or otherwise release Tenant from any of Tenant's obligations under this Lease. Tenant hereby waives any benefits of any applicable existing or future Law, including the provisions of California Civil Code Section 1932(1), permitting the termination of this Lease due to such interruption, failure or inability. Notwithstanding anything to the contrary herein, if Tenant is prevented from using for the conduct of its business, and does not use for the conduct of its business, the Premises for ten (10) consecutive business days as a result of (i) of a Service Failure resulting from the actions of Landlord and not caused by the negligence or willful misconduct or Tenant, or its agents, employees, invitees, or otherwise due to the occurrence of a casualty or condemnation, (ii) interference by Landlord to Tenant's access 18 WEST\225501828,8
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(e) Tenant ceases doing business as a going concern; makes an assignment for the benefit of creditors; is adjudicated an insolvent, files a petition (or files an answer admitting the material allegations of a petition) seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors' rights; all or substantially all of Tenant's assets are subject to judicial seizure or attachment and are not released within 30 days, or Tenant consents to or acquiesces in the appointment of a trustee, receiver or liquidator for Tenant or for all or any substantial part of Tenant's assets. (f) Tenant fails, within sixty (60) days after the commencement of any proceedings against Tenant seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors' rights, to have such proceedings dismissed, or Tenant fails, within thirty (30) days after an appointment, without Tenant's consent or acquiescence, of any trustee, receiver or liquidator for Tenant or for all or any substantial part of Tenant's assets, to have such appointment vacated. (g) Tenant fails to perform or comply with any provision of this Lease other than those described in (a) through (f) above, and does not fully cure such failure within thirty (30) days after notice to Tenant or, if such failure cannot reasonably be cured within such thirty (30)-day period. Tenant fails within such thirty (30)-day period to commence, and thereafter to diligently proceed with all actions necessary to cure such failure as soon as reasonably possible and in all events within one hundred twenty (120) days of such notice. (h) Tenant fails to perform its obligations under Paragraph 4 of this Lease with regard to delivering or replenishing the Security Deposit. 15.2 Remedies. Upon the occurrence ofan Event ofDefault, Landlord shall have the following remedies, which shall not be exclusive but shall be cumulative and shall be in addition to any other remedies now or hereafter allowed by law: (a) Landlord may terminate this Lease and Tenant's right to possession of the Premises at any time by written notice to Tenant. Tenant acknowledges that in the absence of such written notice from Landlord, no other act of Landlord, including reentry into the Premises, efforts to relet the Premises, storage of Tenant's personal property and Trade Fixtures, acceptance of keys to the Premises from Tenant or exercise of any other rights and remedies under this Paragraph, shall constitute an acceptance of Tenant's surrender of the Premises or constitute a termination of this Lease or of Tenant's right to possession of the Premises. Upon such termination in writing of this Lease and of Tenant's right to possession of the Premises, as herein provided, this Lease shall terminate and Landlord shall be entitled to recover the following damages from Tenant: (i) the worth at the time of the award of the unpaid Monthly Base Rent and Additional Rent which had been earned or was payable at the time of termination; (ii) the worth at the time of the award of the amount by which the unpaid Monthly Base Rent and Additional Rent which would have been earned or payable after termination until the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (iii) the worth at the time of the award of the amount by which the unpaid Monthly Base Rent aid Additional Rent which would have been paid for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; and (iv) any other amount necessary to compensate Landlord for all 28 WEST\225501828.8
![slide57](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn057.jpg)
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of the Lease Date. TENANT: LANDLORD: eHEALTH, INC. 340 MIDDLEFIELD, LLC a Delaware corporation By:. V—l By: 1 Title: Chief FinanciaKOfficer Title: Name: Stuart Huizinaa Name: By:. Title: Name: 40 WEST\225501828.8
![slide58](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn058.jpg)
EXHIBIT A The Property The land and building referred to in this description are situated in the State of California, County of Santa Xxxxx, City of Mountain View and are described as follows; Lot 10, as shown on that certain map entitled Tract no 2724 Xxxxx-Middlefield Industrial Park, which map was filed for record in the office of the recorder of the county of Santa Xxxxx, State of California on June 16, 1960 in book 121 of maps page(s) 40,41, 42, 43, 44. APN; 000-00-000 ARB: 159-41-5 Commonly known as: 000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xx. WEST\225501828.8 1
![slide62](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn062.jpg)
EXHIBIT C WORK LETTER AGREEMENT This Exhibit C (referred to herein as this "Work Letter") forms a part of that certain Lease Agreement (the "Lease") by and between 340 Middlefield, LLC, as Landlord, and eHealth, Inc., a Delaware corporation, as Tenant, to which this Work Letter is attached. If there is any conflict between this Work Letter and the Lease, this Work Letter shall govern. All defined terms referred to in this Work Letter shall have the same meaning as defined in the Lease to which this Work Letter is a part, except where expressly defined to the contrary. 1. Landlord's Work. (a) Construction of Base Building. Landlord shall construct or perform, at Landlord's sole cost and expense, through its designated general contractor, the improvements set forth on Schedule 1 attached hereto and referred to herein and in the Lease as "Landlord's Work," Landlord shall complete Landlord's Work in accordance with applicable laws, ordinances and codes. Landlord's Work shall consist of the construction of one two-story concrete free standing Class A office building in accordance with the plans and specifications to be prepared by Devcon Construction, Inc, and referenced on Schedule 1 (the "Base Building Plans and Specifications"). Tenant acknowledges and agrees that modifications to Landlord's Work or to the Base Building Plans and Specifications to be prepared by Devcon may be necessary to accommodate recommended construction modifications, field conditions and/or the requirements of the City of Mountain View and other governmental entities with applicable jurisdiction. If Landlord desires to make any modifications to the Base Building Plans and Specifications, then Landlord shall submit such modification to Tenant for its review. Tenant shall approve or disapprove any modifications to the Base Building Plans and Specifications in writing within five (5) business days after Tenant receives the modifications, aid, if disapproved, Tenant shall specify a reasonably specific explanation of the reasons for Tenant's disapproval; provided, however, Tenant shall not have the right to disapprove any immaterial modifications or any modifications to the Base Building Plans and Specifications required by the City of Mountain View or other governmental entities with applicable jurisdiction. Landlord shall make all necessary revisions requested by Tenant and approved by Landlord after Landlord's receipt of Tenant's disapproval of the modifications. Tenant shall approve or disapprove the revised Base Building Plans and Specifications in writing within five (5) business days after Tenant receives the revised Base Building Plans and Specifications, and, if reasonably disapproved. Tenant shall specify a reasonably specific explanation of the reasons for Tenant's disapproval. The revision procedure specified in this paragraph shall be repeated until Tenant approves any modifications to the Base Building Plans and Specifications. (b) Delivery of Access. Prior to the Commencement Date, Tenant shall have early access to the Premises in accordance with the terms and conditions of the Lease at such time as the Premises is in the Tenant Access Condition (as defined below). For purposes hereof, "Tenant Access Condition" shall mean that the items of Landlord's Work have been substantially completed. In addition. Tenant shall have early access to the Premises prior to the Premises Delivery Date for the purpose of designing and planning the Tenant Improvements and inspecting the progress of Landlord's Work; provided, however, that Tenant shall coordinate any WEST^SSOI 828.8 1
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(i) An estimated budget and cost breakdown for the Tenant Improvements; (ii) Estimated completion schedule for the Tenant Improvements; and (iii) Copies of all required approvals and permits from governmental agencies having jurisdiction or authority for the construction and installation of the Tenant Improvements. (c) Landlord shall at all times have a right to inspect the Tenant Improvements. If Landlord shall give notice of faulty construction or any other deviation from the Final Plans and Specifications, Tenant shall cause Contractor to make corrections promptly. However, neither the privilege herein granted to Landlord to make such inspections, nor the making of such inspections by Landlord, shall operate as a waiver of any rights of Landlord to require good and workmanlike construction and improvements constructed in accordance with the Final Plans and Specifications, or constitute Landlord's warranty or representation that the Tenant Improvements have been constructed in accordance with applicable laws, ordinances or codes or the sufficiency of the Tenant Improvements for any purpose. Landlord shall provide reasonable access to the Premises, at all times, for Tenant, its Contractor, Architect, and agents, including without limitation reasonable access prior to the Commencement Date for purposes of taking measurements, inspecting field conditions and reviewing compliance of Landlord's Work with the plans therefore. (d) Tenant shall pay and discharge promptly and fully all claims for labor done and materials and services furnished in connection with the Tenant Improvements. The Tenant Improvements shall not be commenced until Landlord has received notice from Tenant stating the date the construction of the Tenant Improvements is to commence so that Landlord can post and record any appropriate notice of non-responsibility. In the event any materialman or mechanic's lien may attach to the Premises or the Property in connection with Tenant's construction of the Tenant Improvements, Tenant shall, within fifteen (15) days of Landlord's request, either satisfy such claim and cause its discharge or record a bond sufficient to remove the lien in accordance with applicable law. Tenant shall indemnify, defend and hold Landlord harmless in connection with any claim or liability asserted against or incurred by Landlord in connection with any such lien. (e) Tenant shall maintain (or cause its general contractor to maintain) during the construction of the Tenant Improvements, at its sole cost and expense, builders' risk insurance for the amount of the completed value of the Tenant Improvements providing for "special form" coverage covering all improvements under construction, including building materials stored at the Premises. (f) Upon completion of the Tenant Improvements, Tenant shall deliver to Landlord the following, all of which shall be to the Landlord's reasonable satisfaction: (i) Copies of any certificates required for occupancy of the Premises, including a permanent and complete Certificate of Occupancy issued by the City of Mountain View. (ii) A copy of a Certificate of Completion signed by the Architect who prepared the Final Plans and Specifications. WEST\225501828.8 5
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SCHEDULE 1 Description Of Landlord's Work Landlord's Work will consist of the following: STRUCTURAL BUILDING SYSTEM: Structural building system will be similar to 000 X. Xxxxxxxxxxx and will comply with all local building codes. Structural drawings will be provided and sealed by a structural engineer licensed in the state of California, Structural System includes spread footings, elevator pit and sump, a 5" concrete slab-on-grade over 2" of sand over 15 mil vapor barrier over 5" of crushed rock, 8" and 6" thick reinforced concrete tilt-up exterior wall panels, open web steel joists, metal deck, and concrete fill at the second floor, and a wood panelized-roof system with a sloping wood framed mansard roof around entire building perimeter. Framed openings will be provided for two stairwells, mechanical shafts, elevator hoistway, roof hatch, and skylight. Roof will be designed to support rooftop HVAC package units, boiler, and exhaust fans. Elevator hoistway includes TS guiderail supports on both sides of the hoistway from the top of the elevator pit to the underside of the roof. Interior columns are tube steel and exterior columns/pilasters are concrete that will be cast integral with exterior wall panels. BUILDING ENVELOPE: The building envelope will be similar to 000 X. Xxxxxxxxxxx and will comply with all local building codes. Exterior wall panels will be sandblasted colored concrete with GFRC(Glass Fiber Reinforced Concrete) spilt face sandstone accents at building comers, entrances, and 3' high wainscot at ground floor between windows. GFRC bullnose elements will also be utilized at second floor line and second floor window xxxxx. Window and storefront system will consist of bronze anodized aluminum frames and bronze tinted insulated glass. Glass will be tempered where required by code. Entry doors will be medium stile aluminum storefront doors with Xxxxx Rite panic devices. A mansard roof will be included at entire roof perimeter and will be covered with clay tile over 30# felt. Mechanical well roof will be TPO to comply with cool roof requirements. A large profile copper cornice and gutter system will be installed at the top of exterior walls and bottom of clay tile mansard roof. Metal stud framing, sheathing, and plaster walls and soffits will be utilized at recessed entrances. Insulation at exterior walls and roof will be installed with interior improvements to avoid condensation build-up. SITEWORK: Sitework will be fully landscaped with improvements similar to 000 X. Xxxxxxxxxxx. Sitework will comply with all local codes and will attempt to include some connection to 000 X Xxxxxxxxxxx via sidewalks and plant placement. Hardscape will be a blend of xxxx concrete and colored exposed aggregate concrete accents to correlate with the building exterior. Hardscape will include apron around building perimeter, sidewalks, and enlarged landings at building entrances. Planting will include a variety of trees, shrubs, and groundcovers to compliment adjacent properties. Sitework will include a complete spray or drip irrigation system with programmable controller as required by local jurisdiction and as determined by the Landscape WEST\225501828,8 1
![slide70](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn070.jpg)
Architect. Sitework will also include a cast in place monument sign using materials to compliment the building. Parking areas will be paved asphalt and include all site utilities including, sanitary sewer, stonn drain, fire, domestic, and irrigation water, and gas. Raceways and utility boxes are included for electrical, telephone, CATV, and fiberoptics but all cabling and utility services are excluded. Sitework also includes the following offsite work: new curb and gutter, sidewalks, driveway entrances, and utility cormections to mains in street. MEPF SYSTEMS: Includes complete and operating plumbing, fire sprinkler, mcchanical(HVAC), and electrical systems for a warm shell and core that meet all local codes. These systems will be designed and installed by licensed design/build MEPF subcontractors. Plumbing System: Includes all below ground and above ground plumbing including sanitary waste, roof drains, overflow drains, and connection to sheet metal cornice gutter system, gas and condensate piping to (2) roof mounted package units and heating hot water boiler, and finished toilet cores on both floors. Each toilet core will include five fixtures for men's and five fixtures for women's and will be ADA compliant. Toilet fixtures will be wall mounted flush valves and are based on commercial fixtures manufactured by American Standard or similar. First floor toilet core includes showers and second floor toilet core includes an adjacent Janitor's Closet with a floor mounted sink. Toilet cores on each floor include handicapped drinking fountains at entrance vestibule. Includes a 1650 watt electric domestic hot water heater and insulated HW piping. Includes a below slab passive ventilation system that will be vented outside the building at several locations. Vent risers can be concealed by planting. Fire Sprinkler System; Includes a fully engineered wet sprinkler system based on Ordinary Hazard 0.17 GPM/SF over 3000SF for shell and core and light hazard for mansard roof. We include ceiling heads for toilet cores only. Ceiling heads in other areas including Lobby will be provided with interior improvements. Plugs are included for future drops. Mechaiiical(HVAC) System; Includes (2) 27.5 ton variable volume rooftop package units with economizer, 100% power exhaust, and BACnet ready capability. Includes supply and return ductwork and HHW piping stubbed out of mechanical shaft on each floor. Excludes ductwork and piping distribution on each floor and this will be installed with interior improvements. Includes a complete toilet exhaust system and inline fan for elevator machine room. Includes a 630MBH heating hot water boiler with 82% efficiency and one 7.5HP pump that will provide 34GPM @70' TDH. Includes a web based DDC control panel with expandability for future interior improvements. Electrical System: Includes 1600A, 277/480, 3 phase, 4 wire main electrical service and switchboard. Main switchboard will be located in Main Electrical Room on the ground floor and will have two metered 800A sections with empty conduit stubbed to each floor for future T.I. panels. Includes (1) 277/480V house panel, (1) step-down transformer and (1) 120/208V house panel. Site lighting includes (5) pole mounted lighted fixtures, (8) bollard lights, and (2) uplights at monument sign. Includes exit lights with emergency battery backup and fluorescent wall mounted light fixtures in stairwells. Includes light fixtures for toilet cores, janitor's closet, and main electrical room. Includes electrical conduit, wiring, and connections to roof mounted WEST\225501828.8 2
![slide71](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn071.jpg)
HVAC equipment and elevator. Includes code compliant Fire Alarm system including elevator recall, smoke detectors at rooftop package units, fire sprinkler flow alarms, and notification devices in toilet rooms. CORE: Core areas include two stairs from first to second floor, toilet cores on each floor, elevator hoist way, mechanical shaft, main electrical and telephone room on first floor, and janitor's closet on second floor next to toilet core. One stair will be fully enclosed with 1 hr. rated enclosure and the Lobby stair will be open on one side. Stairs include code compliant rails but no cladding or finishes are included at stair treads, risers, and stringers. No demising walls or ceilings are included for Lobby. LI toilet core will include one shower and changing area at men's and women's. Toilet room finishes include granite countertops, thinset ceramic tile 4' high wainscot at wet walls and floors. Remaining walls will have vinyl wall covering and ceilings will be painted. Includes a fully operational dual xxxx holeless hydraulic 3500# elevator with standard cab finishes. Standard cab finishes include plastic laminate panels, baked enamel doors and frames, and lexan ceiling with fluorescent fixtures. Cab finish upgrade options are available at additional cost. Interior doors for core areas will be clear anodized aluminum frames with pre- finished xxxxxx xxxx veneer doors. Doors and frames will be fire rated as required to meet code. WEST\225501828.8 3
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Amendment to Lease THIS FIRST AMENDMENT (this "Amendment") is made as of May 28, 2013, ("the Amendment Date") and amends the Lease Agreement ("the Lease") dated March 23, 2012, by and between 340 Middlefield, LLC ("Landlord"), and eHealth, Inc., a Delaware corporation ("Tenant"). All capitalized terms not defined in this Amendment shall have the meaning set forth in the Lease. A. WHEREAS, Landlord and Tenant desire to modify certain terms of the Lease; and B. WHEREAS, these modifications are made pursuant to Section 33 of the Lease which provides in pertinent part that the Lease "may be amended or modified only by a written instrument signed by Landlord and Tenant." When signed by authorized representatives of Landlord and Tenant, this Amendment shall constitute such a written instrument. Now, therefore. Landlord and Tenant hereby agree that the Lease is amended as follows: 1. Environmental Disclosures. The following paragraph shall be added to the Lease as Paragraph 38 Environmental Disclosures. Section 25359.7 of the California Health and Safety Code requires landlords of non-residential real property who know, or have reasonable cause to believe, that any release of a hazardous substance has come to be located on or beneath their real property to provide written notice of such to a lessee of the real property. The Property, of which the Premises are a part, is located within the boundaries of the Middlefield-Xxxxx-Xxxxxxx Superfund Site Study Area ("MEW Site"). As such, hazardous substances may exist on and/or beneath the Property. The EPA is overseeing the investigation, monitoring, remediation and response actions being conducted at the MEW Site. Information concerning the MEW Site can be found by accessing the EPA's website at; xxxx://xxxxxxxx.xxx.xxx/x0/xxxxx/x0xxxxxx.xxxX/xxxXxXXXXX/XXX000000000. The responsible parties for the contamination ("RPs") have long been conducting investigations, monitoring and remediation activities at the MEW Site including, without limitation, groundwater remediation. The Building was constructed with an EPA-approved vapor intrusion barrier. Following construction, Landlord shall use reasonable efforts to cause the RPs to periodically test the Building's indoor air, as required by EPA, to verify that the Building's indoor air quality complies with EPA's MEW Site cleanup levels for commercial buildings, however. Tenant acknowledges that Landlord is not a responsible party for remediation of any such hazardous substances and does not assume responsibility for the same, except as required by law. Tenant further acknowledges that the provision of this disclosure does not impose any additional legal obligations or duties on Landlord. Tenant shall cooperate and provide reasonable access to the Premises for air quality testing, inspections, mitigation and remediation, as needed. Tenant shall not initiate any communication with any governmental agencies concerning hazardous substances existing at the Premises and/or the MEW Site, without first notifying Landlord in writing of its intention to do so and allowing Landlord to (a) participate in any meetings or conference calls with the governmental agencies and (b) review in advance, and provide comments to, any proposed communications with the governmental agencies. 2. Paragraph 3.1 of the Lease. The following shall be added after the last sentence of paragraph 3.1. Per BOMA 2010 Standards, the rentable square footage is 18,272 square feet. 3. Monthly Base Rent. The parties hereby agree that based on the BOMA measurement of 18,272 the Monthly Base Rent for the first twelve months shall be Fifty One Thousand One Hundred Sixty One and 60/100 dollars ($51,161.60) and thereafter shall be adjusted annually as set forth in the Monthly Base Rent Section. The parties acknowledge that Advanced Rent was paid in the amount of Forty Nine Thousand Six Hundred Seventy Two and 00/100 Dollars ($49,672.00). On Page 1 of 3
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EXHIBIT B BASE RENT SCHEDULE MonthlyBase Monthly Base Month Sqft Rental Rate Rent 2019 January Month 1 18 ,272 $4.35 $79,483.20 February Month 2 18,272 $4.35 $79,483.20 March Month 3 18,272 $4.35 $79,483.20 April Month 4 18,272 $4.35 $79,483.20 May Month 5 18,272 $4.35 $79,483.20 June Month 6 18,272 $4.35 $79,483.20 July Month 7 18,272 $4.35 $79,483.20 August Month 8 18,272 $4.35 $79,483.20 September Month 9 18,272 $4.35 $79,483.20 October Month 10 18,272 $4.35 $79,483.20 November Month 11 18,272 $4.35 $79,483.20 December Month 12 18,272 $4.35 $79,483.20 2020 January Month 13 18,272 $4.57 $83,457.36 February Month 14 18,272 $4.57 $83,457.36 March Month 15 18,272 $4.57 $83,457.36 April Month 16 18,272 $4.57 $83,457.36 May Month 17 18,272 $4.57 $83,457.36 June Month 18 18,272 $4.57 $83,457.36 July Month 19 18,272 $4.57 $83,457.36 August Month 20 18,272 $4.57 $83,457.36 September Month 21 18,272 $4.57 $83,457.36 October Month 22 18,272 $4.57 $83,457.36 November Month 23 18,272 $4.57 $83,457.36 December Month 24 18,272 $4.57 $83,457.36 2021 January Month 25 18,272 $4.80 $87,630.23 February Month 26 18,272 $4.80 $87,630.23 March Month 27 18,272 $4.80 $87,630.23 April Month 28 18,272 $4.80 $87,630.23 May Month 29 18,272 $4.80 $87,630.23 June Month 30 18,272 $4.80 $87,630.23 July Month 31 18,272 $4.80 $87,630.23 August Month 32 18,272 $4.80 $87,630.23 September Month 33 18,272 $4.80 $87,630.23 October Month 34 18,272 $4.80 $87,630.23 November Month 35 18,272 $4.80 $87,630.23 December Month 36 18,272 $4.80 $87,630.23 2022 January Month 37 18,272 $0.00 $0.00 February Month 38 18,272 $0.00 $0.00 March Month 39 18,272 $0.00 $0.00 April Month 40 18,272 $0.00 $0.00 May Month 41 18,272 $0.00 $0.00 June Month 42 18,272 $0.00 $0.00 July Month 43 18,272 $2.00 $36,5 44.00 August Month 44 18,272 $2.00 $36,544.00 September Month 45 18,272 $2.00 $36,544.00 October Month 46 18,272 $2.00 $36,544.00 November Month 47 18,272 $2.00 $36,544.00 December Month 48 18,272 $2.00 $36,544.00 2023 January Month 49 18,2 72 $2.00 $36,544.00 February Month 50 18,272 $2.00 $36,544.00 March Month 51 18,272 $2.00 $36,544.00 April Month 52 18,272 $2.00 $36,544.00 May Month 53 18,272 $2.00 $36,544.00 June Month 54 18,272 $2.00 $36,544.00 July Month 55 18,272 $2 .00 $36,544.00 9490521_4
![slide77](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn077.jpg)
EXHIBIT C GUARANTY [See attached] 9490521_4
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similar proceedings affecting the status, existence, assets or obligations of, Sublessee). In the event that Sublessor seeks to enforce any of its rights under this Guaranty and demands payment or performance from Guarantor, such demand and Guarantor's compliance therewith shall not release, extinguish, exonerate or in any way affect or diminish Guarantor's continuing obligations under this Guaranty. Guarantor's liability under this Guaranty with respect to the Guaranteed Obligations shall continue following the expiration or earlier termination of the Sublease to the extent the Guaranteed Obligations have not otherwise been paid and performed in full and shall further continue until the expiration of all periods within which any amount at any time paid on account of the Guaranteed Obligations could be required to be restored or returned by Sublessor upon the bankruptcy, insolvency or reorganization of Sublessee, any other guarantor or any other person or entity, including, without limitation, pursuant to any laws regarding fraudulent transfers and voidable preferences. In the event that any amount at any time paid on account of the Guaranteed Obligations is required to be restored or returned by Sublessor as a result of any such bankruptcy, insolvency or reorganization, Guarantor shall remain liable under this Guaranty with respect to such amount as if such amount was never paid, even if the Guaranteed Obligations have previously been paid or satisfied in full. 3. The Sublease may be assigned, modified, amended or encumbered in whole or in part, the Premises may be sublet in whole or in part, and changes may be made in the entity comprising Sublessee from time to time without notice to Guarantor and without releasing Guarantor or extinguishing, exonerating or in any way affecting or diminishing Guarantor's obligations under this Guaranty. Similarly, Sublessor may from time to time, and without notice to Guarantor, release Sublessee or any persons or entities comprising Sublessee from Sublessee's obligations under the Sublease; release or substitute any security that Sublessor may have for the Guaranteed Obligations or accept security therefor; add, substitute or release additional guarantors; or compromise or settle any amount due or owing, or claimed to be due or owing, under the Sublease; and no such action by Sublessor or any other act or omission of Sublessor in connection with the Sublease or the Premises shall in any way affect this Guaranty or Guarantor's obligations hereunder. In addition, Sublessor may, without notice to Guarantor, assign, transfer, encumber or otherwise dispose of any or all of Sublessor's rights, claims or interests in, under and to the Sublease, the Premises or this Guaranty, and no such act shall release Guarantor or extinguish or diminish in any way Guarantor's obligations hereunder. No termination of the Sublease by Sublessor shall extinguish, release or in any way affect or diminish Guarantor's obligations hereunder, and in no event shall Sublessor be obliged to sublease the Premises to Guarantor after any such termination. 4. This Guaranty constitutes a guaranty of payment and performance and not of collection, the obligations of Guarantor under this Guaranty are independent of the obligations of Sublessee, and Sublessor may enforce this Guaranty against Guarantor without first (a) making any effort at collection or enforcement of any Guaranteed Obligations from or against Sublessee or any other party that may be liable therefor (including filing suit or otherwise initiating legal proceedings to obtain or assert a claim for personal judgment against Sublessee or any other guarantor of any Guaranteed Obligations from time to time or any of them or any other party), (b) exercising or asserting any other right or remedy which may be available in connection with the Guaranteed Obligations or resorting to or exhausting any other security, guaranty or collateral held with respect to the Guaranteed Obligations, or (c) asserting or filing any claim against the assets of Sublessee, Guarantor, or any of them or any other guarantor or any other party who may be liable (or jointly or severally liable with Guarantor) for such Guaranteed Obligations or any part thereof. All liability of Guarantor hereunder shall be joint and several with the liabilities of any other guarantor of any or all of the Guaranteed Obligations from time to time. Neither the failure by Sublessor to enforce any or all of its rights under the Sublease or to insist upon the strict performance or observance by Sublessee of the Guaranteed Obligations, nor any grant by Sublessor of any indulgences or extensions of time to Sublessee for the performance of any Guaranteed Obligations, shall release Guarantor or in any way affect or diminish Guarantor’s Obligations under this Guaranty. C:\NRPortbl\palib2\JPMC\9488585_4.doc
![slide80](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn080.jpg)
5. Guarantor expressly waives (a) any right Guarantor may have to require Sublessor to proceed against Sublessee or any other guarantor of any Guaranteed Obligations, to proceed against or exhaust any security held by Sublessor, or to pursue any other remedy in Sublessor's power to pursue prior to claiming or proceeding against Guarantor; (b) any defense based upon any legal disability of Sublessee or any other guarantor of any Guaranteed Obligations or any discharge or limitation of the liability of Sublessee or any such other guarantor to Sublessor, whether consensual or arising by operation of law or any bankruptcy, reorganization, receivership, insolvency or debtor-relief proceeding or from any other cause; (c) any defense based upon any invalidity or unenforceability of the Sublease or any other guaranty of any Guaranteed Obligations; (d) any notice of acceptance of this Guaranty, diligence, presentment, demand, protest, extension of time for payment or performance of the Guaranteed Obligations, and notice of any kind whatsoever, and Guarantor hereby consents to any and all forebearances and extensions of time for payment and performance of the Guaranteed Obligations now or hereafter made or granted with or without notice to Guarantor; (e) any defense based upon, or arising out of any defense which Sublessee may have to, the payment or performance of any Guaranteed Obligations; and (f) all rights of subrogation, indemnification, contribution and reimbursement, all rights to enforce any remedy that Sublessor may have against Sublessee, or any other guarantor of any Guaranteed Obligations, and all rights to participate in any security held by Sublessor for the Guaranteed Obligations until such Guaranteed Obligations have been paid and performed in full. Without limiting the foregoing, Guarantor hereby waives (i) any and all rights and defenses available to Guarantor by reason of California Civil Code Sections 2787 through 2855, inclusive, 2899 and 3433, and any successor statutes, and (ii) any and all rights and defenses arising out of an election of remedies by Sublessor, even though that election of remedies has destroyed any right that Guarantor may have to collect from Sublessee (including any of Guarantor’s rights of subrogation or reimbursement against Sublessee). 6. Guarantor hereby subordinates all of its claims for payment or liens now or hereafter securing any indebtedness or obligations of Sublessee to Guarantor to Sublessor's right to receive payment from Sublessee of all Guaranteed Obligations. Guarantor expressly waives any and all rights of subrogation, reimbursement, indemnity and contribution which Guarantor may now or hereafter have against Sublessee, any other guarantor or any person who now or hereafter has direct or contingent liability (whether by contract, at law or in equity) for all or any portion of the Guaranteed Obligations, and any benefit of, and any right to participate in, any security now or hereafter held by Sublessor until the Guaranteed Obligations have been paid and performed in full. If and to the extent this waiver is unenforceable, Guarantor agrees that all such rights of subrogation, reimbursement, indemnity and contribution shall be junior and subordinate to the right of Sublessor to obtain payment and performance of the Guaranteed Obligations and to all rights of Sublessor in and to any property which now or hereafter serves as collateral for the Guaranteed Obligations. 7. This Guaranty shall remain and continue in full force and effect notwithstanding (a) the commencement or continuation of any action or proceeding by, against or concerning Sublessee under any bankruptcy, insolvency or other debtor-relief law, (b) the voluntary or involuntary appointment of a receiver, trustee, keeper or other person who takes possession of any of Sublessee's assets, regardless of whether such appointment occurs as a result of insolvency or any other cause, or (c) any assignment by Sublessee for the benefit of its creditors. In the event any payment by Sublessee to Sublessor is held to constitute a preference, fraudulent conveyance or similar voidable payment under any law now or hereafter in effect and such payment is rescinded or otherwise required to be returned by Sublessor, such payment by Sublessee to Sublessor shall not constitute a release of Guarantor and shall not in any way diminish Guarantor's obligations hereunder, and this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. 8. Guarantor shall not, without the prior written consent of Sublessor, commence, or join with any other person in commencing, any bankruptcy, reorganization, or insolvency proceeding against Sublessee. The obligations of Guarantor under this Guaranty shall not be altered, limited, or affected by any proceeding, C:\NRPortbl\palib2\JPMC\9488585_4.doc
![slide81](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn081.jpg)
voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation, or arrangement of Sublessee, or by any defense that Sublessee may have by reason of any order, decree, or decision of any court or administrative body resulting from any such proceeding. Guarantor shall file in any bankruptcy or other proceeding in which the filing of claims is required or permitted by law all claims that Guarantor may have against Sublessee relating to any indebtedness of Sublessee to Guarantor, and Guarantor shall assign to Sublessor all rights of Guarantor under such claims. Sublessor shall have the sole right to accept or reject any plan proposed in such proceeding and to take any other action that a party filing a claim is entitled to take. In all such cases, whether in administration, bankruptcy, or otherwise, the person or persons authorized to pay such claim shall pay to Sublessor the amount payable on such claim and, to the full extent necessary for that purpose, Guarantor assigns to Sublessor all of Guarantor’s rights to any such payments or distributions to which Guarantor would otherwise be entitled; provided, however, that Guarantor’s obligations under this Guaranty shall not be satisfied except to the extent that Sublessor receives cash by reason of any such payment or distribution. If Sublessor receives anything other than cash, the same shall be held as collateral for amounts due under this Guaranty. 9. If a claim (“Claim”) is made on Sublessor at any time (whether before or after payment or performance in full of any obligation of Guarantor, and whether such claim is asserted in a bankruptcy proceeding or otherwise) for repayment or recovery of any amount or other value received by Sublessor (from any source) in payment of, or on account of, any obligation of Guarantor under this Guaranty, and if Sublessor repays such amount, returns value, or otherwise becomes liable for all or part of such Claim by reason of (a) any judgment, decree, or order of any court or administrative body or (b) any settlement or compromise of such Claim, Guarantor shall remain liable to Sublessor for the amount so repaid or returned or for which Sublessor is liable to the same extent as if such payments or value had never been received by Sublessor, despite any termination of this Guaranty or the termination of the Sublease or cancellation of any document evidencing any obligation of Guarantor under this Guaranty. 10. Sublessor has no duty to disclose to Guarantor any information that Sublessor receives regarding the financial status of Sublessee, whether or not such information indicates that the risk of Guarantor under this Guaranty has been or may be increased. Guarantor assumes full responsibility for being and keeping informed of Sublessee's financial condition, performance under the Sublease, and use, operation and occupancy of the Premises. Guarantor represents and warrants that, to Guarantor's best knowledge, Sublessee is under no disability in connection with the execution and delivery of the Sublease and that there are no defenses to Sublessee's full payment and performance of all of its obligations under the Sublease. Within ten (10) days following demand by Sublessor, Guarantor shall deliver to Sublessor and to any interested party reasonably designated by Sublessor an estoppel certificate modified as necessary to accurately represent the facts therein, executed and acknowledged by Guarantor, to the effect that this Guaranty is in full force and effect and has not been amended or terminated (or, if amended or terminated, specifying the date and terms thereof). Guarantor shall also certify such other matters relating to the Guaranteed Obligations or this Guaranty as may reasonably be requested by Sublessor, modified as necessary to accurately represent the facts therein, executed and acknowledged by Guarantor. In addition, at any time and from time to time during the term of the Sublease (but no more than annually so long as Sublessee is not in default of the Sublease), Guarantor shall, upon ten (10) days’ prior written notice from Sublessor, provide Sublessor with a current financial statement prepared in accordance with generally accepted accounting principles. 11. This Guaranty shall be in full force and effect immediately upon execution and delivery of this Guaranty by Guarantor. The effectiveness of this Guaranty shall not be subject to any condition. No term or condition of this Guaranty may be amended, modified, waived, discharged or terminated orally or by course of conduct, but only by an instrument in writing duly executed by both Sublessor and Guarantor. No waiver by Sublessor of any default or any other event shall be effective unless in writing, nor shall it operate as a C:\NRPortbl\palib2\JPMC\9488585_4.doc
![slide83](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn083.jpg)
15. All rights and remedies of Sublessor under this Guaranty and under the Sublease shall be cumulative and not restrictive of any and all other rights and remedies available at law and in equity. Successive demands may be made upon, and successive actions for the enforcement of such demands may be brought against, Guarantor upon the successive breach of or default under any Guaranteed Obligations. The enforcement of this Guaranty against Guarantor with respect to any particular breach of or default under any obligations shall not operate to exhaust this Guaranty or to waive Sublessor’s right to proceed under this Guaranty with respect to any future default or breach. 16. Time is of the essence of this Guaranty. This Guaranty shall inure to the benefit of Sublessor and its successors and assigns and shall be binding upon Guarantor and its heirs, legal representatives, successors and assigns. This Guaranty constitutes the entire agreement between Sublessor and Guarantor with respect to the subject matter of this Guaranty and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to that subject matter. Whenever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty. 17. When the context and construction so requires, all words used in the singular in this Guaranty shall be deemed to have been used in the plural. The term “Sublessor” whenever used in this Guaranty refers to and means the Sublessor specifically named under the Sublease and also any assignee of such Sublessor, whether by outright assignment or by assignment for security, and also any successor to the interest of Sublessor or of any assignee of the Sublease or any interest under the Sublease, whether by assignment or otherwise. The term “Sublessee” whenever used in this Guaranty refers to and means the Sublessee specifically named under the Sublease and also any assignee of the interest of Sublessee in the Sublease and any subsublessee of all or any part of the Premises and their respective successors in interest. 18. In executing and delivering this Guaranty, Guarantor is not relying upon any representations, warranties or inducements from Sublessor. Guarantor represents and warrants to Sublessor that Guarantor has the full power, authority and legal right to enter into and perform this Guaranty and that the execution, delivery and performance of this Guaranty by Guarantor have been duly authorized by all necessary action on the part of Guarantor, do not and will not require any approval or consent of the holders of any indebtedness or obligations of Guarantor, and will not result in the breach of or constitute a default under any contract or agreement to which Guarantor is a party or by which Guarantor or any of Guarantor’s assets is or may be bound or affected. 19. Guarantor shall indemnify, defend and hold Sublessor harmless from and against all losses, costs, claims, liabilities and damages (including attorneys’ fees and court costs) incurred or paid by Sublessor in enforcing this Guaranty and the Sublease. Should any litigation be commenced among Guarantor, Sublessee, Sublessor or their representatives, or should any of such parties institute any proceeding in a bankruptcy or similar court which has jurisdiction over any other such party, or any or all of its property or assets or concerning any provision of this Guaranty or the rights or duties of any person or entity in relation thereto, the prevailing party shall be entitled to receive from the non-prevailing party the prevailing party’s reasonable attorneys’ fees, costs of such action or proceeding, and costs of any proceeding to enforce the judgment or obtain the relief ordered or granted. C:\NRPortbl\palib2\JPMC\9488585_4.doc
![slide85](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn085.jpg)
EXHIBIT D FURNITURE [See attached] 9490521_4
![slide86](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn086.jpg)
Bldg Floor Location Qty Description 340 1 Marketing 8 Cubicles 340 1 Marketing 8 Chairs 340 1 Marketing 5 Lateral Cabinets (2-drawer) 36" width 340 1 Marketing 8 Pedestal Cabinets (3-drawer) 15" width 340 1 Marketing 6 Overhead bins 48" width 340 1 Marketing 1 Lateral Cabinets (4-drawer) 36" width 340 1 Marketing 1 Whiteboard (wall-mounted) 8' x 4' 340 1 Legal 8 Cubicles 340 1 Legal 8 Chairs 340 1 Legal 8 Lateral Cabinets (2-drawer) 36" width 340 1 Legal 8 Pedestal Cabinets (3-drawer) 15" width 340 1 Legal 8 Overhead bins 48" width 340 1 Lobby Rear 1 Sofa (Espresso-Dk.Xxxxx) 340 1 Lobby Rear 2 Chairs (Espresso-Dk.Xxxxx) 340 1 Lobby Rear 1 Coffee Table 340 1 Lobby Front 1 Sofa (Cream) 340 1 Lobby Front 1 Love Seat (Cream) 340 1 Lobby Front 1 Chair (Cream) 340 1 Lobby Front 3 Ottomans (Cream) 340 1 Lobby Front 1 Credenza 340 1 Lobby Front 1 Coffee Table 340 1 Santa Xxxxx CR 1 Table 340 1 Santa Xxxxx CR 6 Chairs (Black Mesh Task Chairs) 340 1 Santa Xxxxx CR 1 Whiteboard (6' x 4') 340 1 Palo Alto XX 0 Xxxxx Xxxxxx 000 0 Xxxx Xxxx XX 0 Xxxxxx 000 0 Xxxx Xxxx CR 37 Chairs (Gold)* 340 1 Palo Alto CR 1 Whiteboard (8' x 4') 340 1 Palo Alto XX 0 Xxxxxxxxx 000 0 Xxxx Xxxx CR 11 Chairs (Black Plastic) 340 1 Cupertino CR 6 Tables 340 1 Cupertino CR 18 Chairs (Gold)* 340 1 Cupertino CR 1 Monitor 70" 340 1 Cupertino CR 1 Audio system with 3 mics 340 1 Cupertino CR 1 Cisco Telepresence 340 1 Cupertino XX 0 Xxxxx Xxxxxx 000 0 Xxxxx Xxxx XX 8 Tables 340 1 Menlo Park CR 19 Chairs (Gold)* 340 1 Menlo Park CR 1 Whiteboard (8' x 4') 340 1 Menlo Park CR 1 Projector 340 1 Menlo Park CR 1 Cisco Camera 340 1 Hall 1 Artwork 340 1 Break Room (0xx Xxxxx) 3 Round Tables
![slide87](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn087.jpg)
340 1 Break Room (0xx Xxxxx) 12 Chairs (Blue) 340 1 Break Room (0xx Xxxxx) 10 Tall Chairs (Blue) 340 1 Break Room (0xx Xxxxx) 2 Tall Tables 340 1 Break Room (0xx Xxxxx) 2 Warming Drawers (built-in) 340 1 Break Room (0xx Xxxxx) 1 Dishwasher (built-in) 340 1 Break Room (0xx Xxxxx) 1 Black, full-size Xxxxxxxxxxxx 000 0 Xxxxx Xxxx (0xx Xxxxx) 2 Microwaves 340 1 Break Room (0xx Xxxxx) 1 Monitor 70" 340 1 Patio 4 Round Tables 340 1 Patio 15 Patio Chairs 340 1 Patio 1 EV Charging Station (2 ports) 340 1 IDF Room 2 Two-Post Racks 340 1 IDF Xxxx 0 Xxxxxxxxxx XXX-XX00XX AC unit 340 1 IDF Room 11 Security Cameras 340 1 IDF Xxxx 0 XXX 000 0 IDF Room 1 Pedestal Cabinet (3-drawer) 15" width 340 1 IDF Room 1 19" monitor for DVR 340 1 Mail Room 1 Corkboard (6' x 4') 340 1 Mothers Xxxx 0 Xxxxx Xxxxxxxxxxxx 000 0 Phone Room 107 1 Round Table 3' 340 1 Phone Room 107 1 Chair 340 1 Phone Room 107 5 Sound Panels 340 1 Phone Room 108 1 Round Table 3' 340 1 Phone Room 108 1 Chair 340 1 Phone Room 108 4 Sound Panels 340 1.5 Main Stairwell 1 Artwork 340 2 Finance/BD/CR 31 Cubicles 340 2 Finance/BD/CR 31 Chairs 340 2 Finance/BD/CR 31 Lateral Cabinets (2-drawer) 36" width 340 2 Finance/BD/CR 31 Pedestal Cabinets (3-drawer) 15" width 340 2 Finance/BD/CR 28 Overhead bins 48" width 340 2 Phone Room 209 1 Round Table 3' 340 2 Phone Room 209 1 Chair 340 2 Phone Room 209 2 Sound Panels 340 2 Phone Room 208 1 Round Table 3' 340 2 Phone Room 208 1 Chair 340 2 Phone Xxxx 000 0 Xxxxx Xxxxxx 000 0 Xxxxx Xxxx (0xx Xxxxx) 1 Black, full-size Xxxxxxxxxxxx 000 0 Xxxxx Xxxx (0xx Xxxxx) 1 Microwave Oven 340 2 Westford CR 1 Credenza 340 0 Xxxxxxxx XX 0 Xxxxxx 000 0 Xxxxxxxx XX 14 Chairs 340 2 DC CR 1 Table 340 2 DC CR 6 Chairs 340 2 DC XX 0 Xxxx Xxxxx
![slide88](https://www.sec.gov/Archives/edgar/data/1333493/000162828018014758/exhibit101subleasedatedn088.jpg)
000 0 XX XX 1 Table 340 2 SF CR 10 Chairs 340 2 SF CR 4 Sound Panels 340 2 Salt Lake City CR 1 Credenza 340 2 Salt Lake City CR 1 Table 340 2 Salt Lake City CR 10 Chairs 340 2 Exec. CEO 2 Cubicles 340 2 Exec. CEO 2 Chairs 340 2 Exec. CEO 4 Lateral Cabinets (2-drawer) 36" width 340 2 Exec. CEO 3 Pedestal Cabinets (3-drawer) 15" width 340 2 Exec. CEO 2 Overhead bins 48" width 340 2 Exec. CEO 1 Lateral Cabinets (4-drawer) 36" width 340 2 Exec. CEO 1 Small Conf Table 340 2 Exec. CEO 7 Small Conf Guest Chairs 340 2 Visitor Cubicles 3 Cubicles 340 2 Visitor Cubicles 3 Chairs 340 2 Visitor Cubicles 3 Lateral Cabinets (2-drawer) 36" width 340 2 Visitor Cubicles 3 Pedestal Cabinets (3-drawer) 15" width 340 2 Visitor Cubicles 3 Overhead bins 48" width 340 2 Executive Lounge 1 Artwork 340 2 Executive Lounge 1 Sofa (Xxxxx) 340 2 Executive Lounge 2 Chairs (Xxxxx) 340 2 Executive Lounge 1 Ottoman (Xxxxx) 340 2 Executive Lounge 1 Side Table 340 2 Exec. COO 2 Cubicles 340 2 Exec. COO 2 Chairs 340 2 Exec. COO 3 Lateral Cabinets (2-drawer) 36" width 340 2 Exec. COO 2 Pedestal Cabinets (3-drawer) 15" width 340 2 Exec. COO 2 Overhead bins 48" width 340 2 Exec. COO 1 Lateral Cabinets (4-drawer) 36" width 340 2 Exec. COO 3 Small Conf Guest Chairs * 74 Total Gold Chairs