Preview
1 SHARTSIS FRIESE LLP
ROEY Z. RAHMIL (Bar #273803)
2 One Maritime Plaza, Eighteenth Floor
San Francisco, CA 94111-3598
3 Telephone: (415) 421-6500
Facsimile: (415) 421-2922
4 Email: rrahmil@sflaw.com
5 Attorneys for Plaintiff
ORACLE AMERICA, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10 ORACLE AMERICA, INC., a Delaware Case No.
corporation,
11 COMPLAINT FOR BREACH OF
Plaintiff, CONTRACT
12
SAN FRANCISCO, CA 94111-3598
v.
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
13
ONEVALLEY IC, LLC, formerly known as
14 NESTGSV SILICON VALLEY, LLC, a
California limited liability company, and DOES
15 1-20, inclusive,
16 Defendants.
17
18 Plaintiff Oracle America, Inc. (“Plaintiff”) alleges as follows:
19 1. Plaintiff is a Delaware corporation and, through a lease, possessed the real
20 property commonly identified as 2955 Campus Drive, San Mateo, California 94403 (the
21 “Premises”).
22 2. Defendant OneValley IC, LLC formerly known as NestGSV (“Defendant”) is a
23 California limited liability company.
24 3. The true names and capacities of Defendants Does 1-20, inclusive, are unknown to
25 the Plaintiff. Plaintiff therefore sues Defendants by such fictitious names. Plaintiff is informed
26 and believes and based thereon alleges that each of the Defendants designated herein as Does are
27 legally responsible in some manner for the events and happenings herein referred to and caused
28 injuries and damages as alleged by Plaintiff hereto.
-1-
COMPLAINT FOR BREACH OF CONTRACT
1 4. Venue is proper in this Court because the contract giving rise to this action was to
2 be performed in San Mateo County, the contract was entered into in San Mateo County, and the
3 real property that is the subject of the contract at issue is located in San Mateo County.
4 FACTUAL ALLEGATIONS
5 5. Plaintiff and Defendant are parties to a written Sublease (the “Sublease”) dated as
6 of March 22, 2018, by which Defendant subleased the Premises. A copy of the Sublease, with all
7 exhibits, addenda, and amendments, is attached hereto as Exhibit A. The term of the Sublease
8 expired on or about May 31, 2022.
9 6. In connection with the First Amendment to the Sublease, Plaintiff agreed to
10 conditionally abate past-due and portion of future Rent (as defined in the Sublease) in the amount
11 of $2,900,706.49. Section 1(e) of the First Amendment provides:
12 The concessions made by Sublandlord in this First Amendment are conditioned
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
upon Subtenant’s full performance of its modified obligations. If at any time
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
13 hereafter Subtenant shall be in violation of any provision of the Sublease, at
Sublandlord’s election (i) the Adjusted Base Rent provisions shall be shall be void,
14 (ii) the Rent provisions of the Original Lease shall be reinstated, and (iii)
Subtenant shall be required to reimburse and pay to Sublandlord, as Additional
15 Rent, the full amount of any difference between the amount paid by Subtenant and
what otherwise was due under the Sublease for the period of time in question,
16 without modification by this First Amendment (the “Shortfall”).
17 7. When the Sublease expired, Subtenant owed Adjusted Rent (as defined in the
18 Sublease) of $651,541.12 under the First Amendment.
19 8. By letter dated June 14, 2022, a copy of which is attached as Exhibit B, Plaintiff
20 informed Defendant that “If Subtenant does not pay the full amount due and owing by June 20,
21 2022, Sublandlord will elect to exercise its option under Section 1(e) of the First Amendment, and
22 a total of $3,096,422.29 will become due and owing.”
23 9. Defendant did not pay the full amount due and owing.
24 10. Plaintiff has performed all conditions, covenants, and obligations it owes under the
25 Sublease, or has been excused from performance.
26 11. Section 13 of the Sublease provides for the award of attorney’s fees and other
27 costs of litigation to the prevailing party in legal proceedings with respect to the Sublease.
28
-2-
COMPLAINT FOR BREACH OF CONTRACT
1 Plaintiff has incurred attorney’s fees and other litigation costs with respect to the subject matter or
2 enforcement of the Sublease.
3 FIRST CAUSE OF ACTION
4 (Breach of Contract—Against All Defendants)
5 12. Paragraphs 1 through 11 are incorporated herein by reference.
6 13. The Sublease is a binding contract between Plaintiff, on the one hand, and
7 Defendant, on the other hand.
8 14. Plaintiff has performed, or been excused from performing, all covenants,
9 conditions, and obligations that it owes under the Sublease.
10 15. Defendant has failed to perform its obligations under the Sublease by, among other
11 things, not paying amounts owed, and by abandoning the Premises.
12 16. As a direct and proximate result of Defendant’s breach, Plaintiff has been damaged
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
13 in an amount according to proof, but not less than $3,096,422.29.
14 PRAYER
15 Wherefore, Plaintiff prays for judgment against Defendant as follows:
16 1. For compensatory damages in the amount according to proof, but not less than
17 $3,096,422.29.
18 2. For prejudgment interest;
19 3. For reasonable attorney’s fees;
20 4. For costs of suit; and
21 5. For such other and further relief as the Court deems just and proper.
22 Dated: June 2, 2023 SHARTSIS FRIESE LLP
23
24 By: ROEY Z. RAHMIL
25 Attorneys for Plaintiff
ORACLE AMERICA, INC.
26
27
28
-3-
COMPLAINT FOR BREACH OF CONTRACT
9434010
EXHIBIT A
Approved as to Legal Form
3/612018
Tess Sara Brandwein
Shartsls Friese LLP
Doc. #8072922vl2
SUBLEASE
BETWEEN
ORACLE AMERICA, INC.
AND
NESTGSV SILICON VALLEY, LLC
295~ Campus Drive, San Mateo, CaJifornia
Portion of First (1st) Floor and Entire Third (3rd) Floor
153255914 vll
02266\l 70A\8072922.vU
SUBLEASE
THIS SUBLEASE ("Sublease") is entered into as of March;\~ 2018 (the "Effective Date"),
by and between ORACLE AMERICA, INC., a Delaware corporation ("Sublandlord'') and
NESTGSV SaICON VALLEY, LLC, a California limited liability company ("Subtenanf'),
with reference to 't he following facts:
A. Pursuant to that certain Office Lease Agreement dated August 2, 2005 (the
"Original Lease"), as the same has been amended by that certaitt First Amendment dated
April 24, 2008 (the "First Amendment"), that certain Second Amendment dated October 8,
2010 (the "Second Amendment"), that certain Third Amendment dated December 9,.2011 (the
"Third Amendment"), that certain Fourth Amendment dated February 1, 2013 (the "Fourth
Amendment''), ,that certain Fifth Amendment dated May 15, 2013 (the "Fifth Amendment''),
that certain Sixth Amendment dated July 8, 2013 (the "Sixth Amendment"), that certain
Seventh Amendment dated February 28, 2014 (the "Seventh Amendment") and that certain
Eighth Amendment dated May 8, 2015 (the "Eighth Amendmenf') (the Original Lease as so
amended shall be referred to herein as the "Master Lease"), Hudson Peninsula Office Park,
LLC, a Delaware limited liability company ("Landlord"), as Landlord (successor in interest to
BOP-Peninsula Office Park, L.L.C.), leases to SubJandlord (successor in interest to NetSuite
Inc.), as tenant; certain space (the "Master Lease Premises") consisting of approximately
128,473 rentable square feet ("RSF') located on the ground floor, first (1st), second (2nd), third
(3rd) and fourth (4th) floors of the building commonly kno~ as Peninsula Office Park Building
9 located at 2955 Campus Drive, San Mateo, California (the "Bwlding").
B. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Subtenant, a portion of the Master Lease Premises containing approximately
48,884 RSF comprised of (i) 14,674 RSF located on the frrst (1st) floor commonly known as
Suites 110 and 120 and (ii) 34,210 RSF commonly known as Suite 300 located on the third (3rd)
floor of the Building, said .space being inore particula.dy identified and described on the floor
plan attached hereto as Exhibit A and incorporated herein by reference (and hereinafter. referred
to as the "Subleased Premises"). ·
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged by the
parties, Sublandlord and Subtenant hereby agree as follows:
1. Sublease. Sublandloxd hereby suble&Scs to Subtenant and Sub~nant
hereby subleases from Sublandlord for the term, at the rentaJ, and upon all of the conditions set
forth herein, the Subleased Premises.
2. Term.
(a) . Generally. ·The term of this Sublease (the "Term") shall
commence on the date (the "Commencement Date") that is the later to occur of (i) March 1,
2018, and (ii) the date that Sublandlord delivers possession of the Subleased Premise.s to
Subtenant in accordance with the provisions of this Sublease, and (iii) the date upon which
Sublandlord procures Landlord's consent to this Sublease in accordance with Section 6(f) (the
"Consent'>, and the date upon which Sublandlord procures ·the Conse·n t being the "Coose~t
02.266\170A\80729'22.vl2
Date") and end on May 31, 2022 (the "Expirat.ion Date,,), unless sooner terminated pursuant to
any provision hereof. Upon the determination of the Cornm:encem~nt Date, SublandJord and
Subtenant will enter into a letter agreement in the form of Exhibit B attached hereto!
(b) Adjustments. Notwithstanding the provisions of Section 2(a)
above:
. (i) if, as of the date that Sublandlqrd' would otherwise deli~er
possession of the Subleased Premise.s to Subtenant as described in Section 2(a) above, Subtenant
has not delivered to Sublandlord (x) the prepaid Base Rent pursuant to the provisions of Section
3(a)(i) below, (y) the Letter of Credit pursuant to the provisions of Section 4 below and
·(z) evidence of Subtenant's procurement of all insurance coverage required hereunder (the
"Delivery Conditions"), then Sublandlord will have no obligation to deliver possession of the
Subleased . Premises to Sl;lbtenant, but the fail,ure on the part of Sublandlord to so deliver
possession of the Subleased Premises to Subtenant in' such event will not serve to delay the
occurrence of the Commencement Date and the commencement of Subtenant' s obligations to
pay Rent (defined below) here\i.nder.
(ii) if, pursuant-to the terms of the Master L~ase, Sublandlord is
required by Landlord to rerqove any improvements or alteratio~s in the Subleased Premises on or
before the date of expirati9n of the Master Lease, Sublandlord shall have the right, by written
notice to Subtenant, to accelerate the Expiration Date .to May 15, 2022, in order to provide
Sublandloi:d wit4 sufficient time following the Expiration Date in which to enter the Subleased
Preffiises and perform any required restoration/repair work. Sublandlord agrees to give any such .
acceleration notice to Subtenant promptly following Sublandlord's determination that L:andlord
will require any such restoration or repair, and Sublandlord will use commercially reasonable
efforts to notify Subtenant no later than March 15, 2022.
(iii) Early Access. Subtenant and Subtenant's representatives.
will have the right to enter the Subleased Premises on the later to occur of (i) the Cori.sent Date,
(ii) January 15, 2018, and (iii) the date upon which Subten!lllt satisfies the Delivery Conditions
(the date upon which Subtenant first has such access to the Subleased Premises being referred to
herein as the "Early Access Date") for the sole purpose of installing of Subtenant' s personal
property and equipment, furniture, fixtures and voice and data cabling, all subject to the terms,
conditjons and requirements of the Master Lease. All of.the rights and obpgations of the parties
under this Sublease (other than Subtenant's obligation, to pay Base Rent, but expressly including
without limitation Subtenant' s obligation to pay excess utility charges ·and carry insurance, as
well as Subtenan~'s indemnification obligations) shall commence upon the Early Access Date.
Subtenant shall coordinate any such entry w,ith Sublandlord.
3. ~·
(a) Rent Payments.
(i} · . Generally. Subtenant shall pay to Sublandlord as.base rent
for ~e Subleased Premises <;luring the Term ("Base Rent,,) the following:
2
153255914 Vil
02266\170A\11072922.vl2
. Rate Per RSF Per Monthly
Months of Tenn Month Base Rent
1* - 12 $3.60 $175,982.40*"'
13 - 24 $3.71 $181,261.87
25 - 36 $3.82 $186,699.73 .
37 - 48 $3.93 $192,300.72 .
49 - E>epiration Date $4.05 $198,069.14
* If the Commencement Date is not a :first (1st) day of a calendar month then, solely for the
purpose ·of the Base Rent table set forth above (and not for the purposes of detennining ·
Abatement Period or the Abated Rent, as said terms are described in Section 3(a)(ii) below),
''Month 1" will include a partial calendar month following Commencement Date and the next-
day succeeding cal~ndar month.
** The Base Rent shall be aba~ed for first (1st) five (5) full calendar months of the Term as
provided in Section 3(a)(ii) b~low. ·
Base Rent shall ·be paid in advance on the first day of each month of the Term, except that
Subtenant shall pay one (1) month's Base Rent (i.e., $175,982.40) to Sublandlord upon execution
of this Suble~e and delivery of this Sublease to Sublandlord; saird, Landlord, and any other person intended to be
benefited by said provision, for the purpose of inc.o rporation by reference in this Sublease. Any
right of Landlord under the Master Lease (i) of access or inspection, (ii) to do work in the Master
Lease Premises or in the Buildi.hg, (iii) in respect of rules and regulations, which is incorporated
herein by reference, shall be deemed to inure to the benefit of Sublandlord, L8:fldlord, and any
other person intended to be benefited by said provision, for the purpose of incorporation by
reference in this Sublease. Notwithstanding anything to the contrarr in this Sublease, in no event
shall Subtenant be obligated to remove or restore any Leasehold Improvements or Alterations (as
such terms are defined in the Master Lease) made prior to the Commencement Date.
(c) Modifications. For the pLirposes of incorporation herein, the tcnns
of the Master Lease are subject to the following additional modifications:
(i) Approvals. In all provisions of the Master Lease (under the
terms thereof and without regard to modifications thereof for purposes of incorporation into this
.Sublease) requiring the approval or consent of Landlord, Subtenant shall be required to obtafu
the approval or consent of both Su"blandJord and Landlord.
(ii) Deliveries. In all provisions of the Master Lease requiring
Tenant to submit, exhibit to, supply or provide Landlord with evi~ence, certificates, or ~y other
10
153255914 vll
02266\170A\8072922.vl2
matter or thing~ Subten_ant shall be required to submit, exhibit to', supply or provide, as the case
may be, th~ same to both Landlord and Sublandlord.
(iii) Damage; Condemnation. Sublandlord shall have no. -
obligation to restore or rebuild any portion of the Subleased Premises after any destruction or
taking by eminent domain. Any rights of Subtenant to abatement of Rent shall be conditioned
upon Sublandlord's ability to abate rent for the-Subleased Premises under the tenns of the Master
Lease. -
(iv) Insurance. In all provisions of the Master Lease requiring
Tenant to designate Landlord as an additional or named insured on its insurance policy,
Subtenant shall be required to so designate Landlord and Sublandlord on its ·insurance policy.
Sublandlord shall have no obligation to maintain the insurance to be maintained· by Landlord
Wlder the Master Lease. ·
(d) Exclusions. . Notwithstanding the terms of Section 6(b) above,
Subtenant shall·have no rights nor obligations under the following parts, Sections and Exhibits of
the Master Lease:
(i) Original Lease: . Article 1 (Ba5ic Lease Information)
(except · for the defu)itions ·of "Building," "Premises'', "Permitted Use/' "Business Day(s)/,
''Building Service Hours," "Holidays", and "Property"), Article 2 (Lease Grant) (except for the
right to use Common Areas), Article 3 (Adjustment of Commencement Date; Possession),
Article 4 (Re~t) (except to the extent necessary to implement the provisions of Section 3{b)
above), Article 6 (Security Deposit), Article 18 (Events of Default), Article 24 (Notice), Section
26.04, Section 26.05, Exhibit A, Exhibit B (except to the extent necessary to implement ilie
provisions of Section 3(b) above), Exhibit C, Exhibit D, Exhibit F (except for Sections 4 and 5 to
the extent necessary to implement the provisions of Section 17 below, and except for Section 6),
ExhibitF-1, ExhibitF-2 and ExhibitF-3.
. (ii) First Amendment: All except for Section 8.04 (Additional
Monument Signage) (except _as provided in Section 17 of this Sublease), Section 8.05
(Compliance with Laws), Section 8.07 (Parking) and Section 8.08 (Permitted Use);
(iii) Second Amendment: All · except for . Section 4.3
(Additional Monument Signage) (except as provided in Section 17 of this Sublease);
(iv) Third Amendment: All;
(v) Fourth Amendment: All except for Section ;7.1 (Parking);
(vi) Fifth Amendment: All;
(vii) Sixth Amendinent: All;
(viii) Seventh Amendment All; and
11
153255914 vu
02266\t70A\8072922.v12
(ix) Eighth Amendment: All except to the extent necessary to
conform the definition of the Master Lease Premises to this Sublease and except for Sections 9.4,
9.5, 9.6, 9.8, 9.12, and 9.14.
(e) Other Matters. Sublandlord represents and warrants to Subtenant
(a) that the Mastei: Lease and· amendments furnished by Sublandlord to Subtenant prior to the
execution of this Sublease are a true and complete copy thereof (and have not been otherwise
modified), (b) that the Ma5ter Lease is in full force and effect, (c) that, to Sublandlord's
lmowledge, Landlord is not in default under the terms of the Master Lease, (d) that Sublandlord
is not in default under the terms of the Master Lease nor has any event or circumstance arisen or
occurred that with the passage of time would constitute a default under the terms of the Master
Lease, and (e) that Sublandlord has not received any notice of default under the Master Lease,
except for any defaults which Sublandlord has cured and Landlord is no longer claiming to exist.
Except with respect to the exercise of any right expressly set forth in the Master Lease,
Sublandlord covenants as follows: (i) not to voluntarily terminate the Master Lease, (ii) not to
modey the Master Lease in any manner (except to a di minimus eXtent), (Hi) to talce all actions
reasonably necessary to preserve the Master Lease, and (iv) to pay prior to delinquency all
amounts due under the Master Lease (provided that Subtenant likewise pays prior to delinquency
all amounts due under this Sublease).
(t) Contingent Nature of Sublease. This Sublease is subject to, and
shall not be deemed fully effective until Sublandlord has obtained, Landlord's Consent, which
Consent shall (unless waived by Subtenant, in its sole and absolute discretion) expressly include
Subtenant' s rights under Section 7. Sublandlord will use commercially reasonable, efforts to
obtain Landlord's ·consent to Subtenant's parking, signage, and roof rights as set forth in Sections
16, 17 and 26, respectively (the "Additional Rights");' provided, however, (1) such consent shall
not be a condition to the effectiveness of this Sublease, and (2) Landlord's refusal to consent to
the Additional Rights shall not be deemed a Sublandlord Default (as defined in Section 12(b)
below) and Subtenant shall not in such event have the right to terminate or rescind this Sublease.
Each party agrees promptly to execute and deliver the Consent so long as such Consent is in a
commercially reasonable fonn requested by Landlord. If such Consent from Landlord is not
received by Subtenant within forty-five (45) days after the execution of this Sublease, then
Subtenant may, at its e]ection, in its sole and absolute discretion, at any time after the expiration
of such 45-day period but prior to delivery to Subtenant of such Consent, by notice to
Sublandlord, cancel this Sublease, in which case Sublandlord shall promptly return to Subtenant
all swns theretofore paid by Subtenant hereunder. If such Consent from Landlord is not received
by Subtenant within sixty (60) days after the execution of thls Sublease, then Sublandlord may,
at its election, in its sole and absolute· discretion, at any time after the expiration of such 60-day
period but prior to delivery to Subtenant of such Consent, _ by notice to Subtenant, cancel Uris
Sublease, in which case Sublandlord shall promptly return to Subtenant all sums theretofore paid
by Subtenant hereunder: .
7. Assignment and Subletting. Subtenant shall not assign this Sublease or
further sublet all or any part of the Subleased Premises without the prior written consent of
Sublandlord, which shall not be unreasonably withheld or delayed. Additionally, any such
assignment or sublease, if consented to by Sublandlord, shall be subject to and in compliance
with all of the terms and conditions of the Master Lease, and Sublandlord (in addition to
Landlord) shall have the same rights with respect to assignment and subleasing as Landlord has
12
153255914vi1
02266\170A\8072922,vl2
under the Master Lease. ·S ubtenant shall pay all fees and cost.c; payable to Landlord pursuant to
the Master Lease in connection' with all of Sublandlord's reasonable out-of-pocket costs relating
to any proposed assignment, sublease or transfer of the Subleased ·Premises, regardless of
whether any required consent is granted, and the effectiveness. of any such consent shall be
conditioned upon Landlord's and Sublandlord's receipt of all such fees and costs.
Notwithstanding anything to the cont:rarY in this.Sublease or the Master Lease, Sublandlord and
Landlord hereby acknowledge (pursuant to the tenns of the Landlord ' Consent to Sublease
executed between Landlord, Sublandlord and Subtenant on or about the 'date hereof (the
"Consent")) that Subtenant intends to use the Subleased Premises as a business incubator and as
shared office space; Subtenant shall have the right to penni~ third parties that are part of such
incubator program or such shared office space program (each, an °Approved User") to use
portions of the Subleased.Premises without such uses or sharing of offices requiring Landlord's
· or Sublandlord's additional consent and without triggering any revenue sharing or recapture
provisions under. the terms of the Master Lease or this Sublease; provided, however, that (a)
Subtenant does not separately demise such space and the Approved Users use, in common with
Subtenant, one common. entryway to the Subleased Premises. (b) the Approved User uses such
space for the Permitted Use (as defined in 1he Original Lease) and for no other purpose, and (c)
no later than one (1) business day following the Approved ·User's occupancy, (i) Subtenant
notifies Sublandlord and Landlord in writing of the Approved User's identity, and (ii) the
Approved User executes .and delivers .to Sublandlord and Landlord an agreement substantially in
the form of Exhibit E, which shall have.an Approved User Effective Date (as defined in Exhibit
E) that is the date on which such Approved User's occupancy commenced. For·the benefit of
Landlord and Sublandlord, Subtenant shall cause each Approved User, and each of its employees
and licensees, to comply with the provisions of .this Sublease, the Consent and the Master Lease
(other than the insurance provisions, so long as Subtenant provides Sublandlord with satisfactory
evidence, as determiJ.led by Sublandlord in Sublandlord's ruscretion, that Subtenant's insurance
required hereunder covers any acts and/or omissions of. each Approved User), and each
Approved User, and each of its employees and licensees, shall be deemed (i) licensees of
Subtenant for purposes of Subtenant's obligatj.ons under this Sublease, (ii) licensees of Subtenant
for purposes of Section 3 of the Consent, and (iii) licensees of Sublandlord for putposes of
Section 13 of the Original Lease (as amended). No use or occupancy of any portion of the
Subleased Premises by an Approved User shall release or excuse Subtenant from any obligation
hereunder (nor release or exc;use Sublandlord from any obligation under the Master Lease) or
create a landlor~tenant relationship between Sublandlors sole cost and
expense, using maintenance contractors specified by Sublandlord. Subtenant shall not modify,
reconfigure or refocate any of the Furniture except with the advance written permission of
Sublandlord, and any work of modifying any Furniture (including, without limitation, changing
the configuration of, "breaking down" or reassembly of cubicles or other modular furniture) shall
be performed at Subtenant's sole cost using Subland1ord's specified vendors or an alternate
vendor approved in writing by Sublandlord (such approval to be granted or withheld on
Sublandlord's good faith discretion, based upon Sublandlord's assessment of factors which
include, without limitation, whether the performance by such vendor will void applicable
warranties for such F\uniture and whether such vendor is sufficiently experienced in the design
of such Furniture). No item of Furniture shall be removed from the Subleased Premises without
Sublandlord,s prior written consent.
(b) Automatic Transfer of Fwniture to Subtenant. In consideration of
$1.00 and Subtenant's performance of its obligations under this Sublease, as of the date that is
thirty (30) days prior to the Expiration Date (the "Furniture Transfer Date"), all of
Subla:ndlord's right, title and interest in and to the Furniture shall automatically be transferred to
Subtenant. The Furniture shall be so transferred to Subtenant on an "as is" basis with no
representation or warranty of any kind from, and no recourse against, Sublandlord; provided,
however, that Sublandlord represents and warrants as of the ~ture Transfer Date that it owns
18
1S32SS914 vll
02266\J70A\80729'l2.vl2
all of the Furniture free and clear of all liens and encumbrances and has the authority to so
transfer the Furniture. Thereafter, Subtenant shall be solely responsible for the proper removal
of the Furniture from the Subleased Premises and the Building in accordance with the tenns and
provisions of the Master Lease. The transfer of ownership of the Furniture shall occut
automatically on the Furniture Transfer Date and this Sublease shall constitute a bill of s~e .
evidencing the transfer of the Furniture on the Furniture Transfer Date, unless otherwise agreed
to in a writing signed by both Su~landlord and Subtenant.. Notwithstanding the foregoing
provisions of this Section 19 to the contrary, if prior to the Furniture Transfer Date Subtenant is
in Default here1Ulder, then at Sublandlord's election, the automatic transfer of all of
Sublandlorci's right, title and interest in and to the Furniture shall be voidable by Sublandlord. If
Sublandlord ·SO elects to void such transfer, then Sublandlo~d shall provide notice of such
election to ·subtenant. 1µ such event, (i) prj.or to or promptly following the expiration or earlier
termination of this Sublease, Sublandlord shall conduct a walk-through of the Subleased
Premises to catalog any items of damage, disrepair, misuse or loss among the Furniture
(reasonable wear and tear excepted), and (ii) Subtenant shall be responsible, at ·subtenant's sole
cost and expense, for curing any such items (including, with respect to loss, replacing any lost
item with a substantially similar new item reasonably acceptable to Sublar.idlord). ·
20. Brokers. Subtenant represents that·it has dealt directly with and only with
CBRE ("Subtenant's Broker"), as a broker in connection with this Sublease. Sublandlord
represents that it has d.e alt directly with ·and only vyith Colliers International (''Sublandlord's
Broker"), as a broker in connection with this Sublease. Sublandlord and Subtenant shall
indemnify and hold each. other harmless from all claims of any brokers other than Subtenant' s
Broker and Sublandlord's Broker claiming to have represented Sublandlord or Subtenant in
connection with this Sublease. Subtenant and Sublandlord agree that Subtenant' s Broker and
Sublandlord' s Broker shall be paid commis~ions by Sublandlord in connection with this Sublease
pursuant to a separate a~reement.
21. Complete Agreement. There are no representations, warranties,
agreements, arrange.m ents or understandings, oral or written, between the parties or their
representatives relating to the subject matter of this Sublease which are not fully expressed in
thi~ Sublease. This Sublease cannot be changed or terminated nor may any of its provisions be
waived orally or in any manner other than by a written agreement executed by both parties.
22. Interoretation. Irrespective of the place of execution or performance, ~s
Sublease shall be governed by and c·onstrued in accordance with the laws of the State of
California. If any provision of this Sublease or the application thereof to any person or
circumstance shall, for any" reason and to apy extent, be invalid or unenforceable, the remainder
of this $ublease and the application of that provision to other persons or circumstances shall not
be affected but rather shall be enforced to the extent permitted by law. The table of contents,
captioqs, headings anq ti.ties, if any, in this Sublease are solely for convenience of ref~rence ~
shall not affect its interpretatio,n. This Sublease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this Sublease or any
part thereof to be drafted. If any words or phrases in this Sublease shall have been stricken out
or otherwise elll:nioated, whether or not any other words or phrases have been added, this
Sublease shall be construed as if the words or phrases so stricken out or otherwise eliminated
were never included in this Sublease and no impli9at:ion or inference shall be drawn from the fact
that said words or phrases were so stricken out or otherwise eliminated. Each covenant,
19
153255914 vl l
02266\I 70A\8072922.v 12
agreement, obligation or other provision of this Sublease shall be deemed and construed as a
separate and independent covenant of the party 'bound by, undertaking or making same, not
dependent on any other provision of this Sublease unless otherwise expressly provided. All
terins and words used in this Sublease, regardless of the number or gender in which they are
used, shall be deemed to inclu<;le any other num~er and any other gender as the context may
require. The word ''person" as used in this Sublease shall mean a natural person or persons, a
partnership, a corporation or any other form ofbusines~ or legal a5sociation or entity.
23. CASp. This ~otice is giyen pursuant to California Civil ·code Section
1938. The Subleased Premises, has not been issued a disability acqess inspection certificate. A
Certifi~d 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, Sublandlord
may not prohibit Subtenant from obtaining a CASp inspection for the occupancy or potential
occupancy of Subtenant, if requested by Subtenant. If Subtenant elects to perform a CASp
inspection, Subtenant will provide written notice to Sublandlord, and Sublandlord or Lanqlord
inay elect, in their sql~ discretion, to retain a CASp to perform the inspection. If Sublandlord
and Landlord do not ~·o elect, the time and manner of the CASp inspection will be. subject to the
prior written approval of Sublandlord, and Landlord. In either event, the payment of the fee for
the CASp inspection shall be borne by Subtenant. The· cost of making any.repairs necessary to
correct violations of construction-related accessibility standards within.the Subleased Premises
shaU be home by Sublandlord un~ess triggered by any alterations to the Subleased Premises
made by Subtenant.
"
. 24. USA Patriot Act Disclosures. Subtenant is currently in compliance. with
and shall at all times during the Tenn remain in compliance with the regulations of the Office of
Foreign Asset. Control ("OFAC") of the Department of the Treasury (including those named on
OFAC' s Specially Designated and ·Blocked Persons List) and any statute, executive order
(including the s·eptember 2;4, 2001, Executive Order Blocking Property and . Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terr~rism), or other
governmental action relating thereto.
25. Counterparts. This Sublease may be executed in multiple counterparts,
each of which is deemed an original but which together constitute one and the same instrument
This Sublease shall be fully executed when each party whose signature is required has signed
and delivered to each of the parties at least one counterpart, even though no single counterpart
contains the ·signatures of aU of the parties hereto. This Sublease may be executed in so-called
'l>~' format and each party has the right to rely upon a pdf counterpart of this Sublease signed
by the oth~r party to the same extent as if such party had received an original counterpart.
26. , Other Rights. Subject to Landlord's consent, Subtenant shall have the
same right as Sublandlord to install a Dish/Antenna in the Roof Space (each as defined in the
Original Lease). Subtenant shall have the same rights as Sublandlord with.respect to the Fitness
Qenter and Shower .Facility (each as defined in the Eighth Amendment). Subtenant shall have
the right to bring bicycles into the Subleased Premises, provided that Subtenant does so in a
c9mme~cially reasonable manner. ·
[Signatures Appear on Following Page]
20'
153255914 vll
02266\170A\807i922..vl2
IN WITNESS WHEREOF, the parties· hereto hereby execute this Sublease as of
the Effective.bate. ·
SUBLANDLORD: AMERICA., INC.,
ration
By:
Print Name: · Michae Bangs
Title: Vice President, Americas R al Estate &
Facilities, HQ ·
SUBTENANT: .NESTGSV SILICON VALLEY,
LLC, a California limited
liability company .
' By:,
Print Name:
title:
By:
Print Nrune:
Title: .
·.
21 .
153255914 vl l .
02266\l ?OA\8072922.v 12.
EXHIBIT A
Subleased Premises
., , • • _ _,,. , , .., .1 · •• ••· ! • - ••"'T•. ' I i••~'ll '"°''~ l'!11'1'Ul~'l'fo' tt•t .I._ l 'l • IU!o o')o:1 o~ri lolH'tf , .. , .. l•liol o
\
\ -
---,
I
~I
11 I -
~ 1
n1
I
A-1
153255914 vl l
02266\l70A\8072922.v 12
~ .......... , •.~ ... . . .... t.,,.,.,,
. ,.,.., ~,._ ,,. , .. ,,..of• J '4·• ••14rv-•tYW • .._.. .....,;_i. ••• Joll ... . .. ~,~ ..1i..,,1 ._
A-2
153255914 vll
02266\l ?OA\8072922.vl2
EXHIBITB
Commencement Date Letter Agreement
Date ________
, 2018
Subtenant
Address
Re: CornmencemeJ;1.t Date Letter Agreement with respect to that certain Sublease dated as of
March 2018, by and between ORACLE AMERICA, INC., a Delaware
corporation, as Sublandlord, and NESTGSV SILICON VALLEY, LLC, a California
limited liability company, as Subtenant, for 48,884 rentable square feet on ·the first (1st)
and third (3rd) floors of the building located at 2955 Campus Drive, Sari Mateo,
California
Dear
In accordance with the terms and conditions of the above referenced Sublease, Subtenant
accepts possession of the Subleased Premises and agrees:
I. The Commencement Date is _ _ _ _ ___, 2018;
2. The Abate ment Period is the period commencing as of _ _ ___,. 2018 and
expiring as of 2018;
3. The Expiration Date is May 31, 2022, subject to Section 2(b)(ii) of the Sublease.
Please acknowledge your acceptance of possession and agreement to the terms set forth
above by signing this Commencement Letter in the space provided and returning a fully executed
counterpart (a scanned signature sent in PDF or similar format will suffice) to my attention.
Sincerely,
Sublandlord Authorized Signatory
Agreed and Accepted:
Subtenant: NESTGSV SILICON VALLEY, LLC
By: lEXl:IlBIT - - DO NOT SIGN]
Name:
Title;
Date:
1S32S.S914 vl 1
02266\170A\8072922.vl2
EXlllBITC
Furniture
Suite #150
ITEM DESCRIPTION QUANTITY
:
Grey Chair with Wood Legs 1
Floor Lamp 1
XL Wood Rectangular Table 1
Microwave 1
2dr Lat File Cabinet 2
4dr Lat File Cabinet 2
Sdr Lat File· Cabinet 9
4' Maple Bookshelves 3
wo·o l Side Chairs 30
Black Side Chair 3
Appx. 3' Maple Bookshelves 5
B.ackless Counter Height Grey
Metal Stools 9
Mesh Conf Side
Preview
1 SHARTSIS FRIESE LLP ROEY Z. RAHMIL (Bar #273803) 2 One Maritime Plaza, Eighteenth Floor San Francisco, CA 94111-3598 3 Telephone: (415) 421-6500 Facsimile: (415) 421-2922 4 Email: rrahmil@sflaw.com 5 Attorneys for Plaintiff ORACLE AMERICA, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 ORACLE AMERICA, INC., a Delaware Case No. corporation, 11 COMPLAINT FOR BREACH OF Plaintiff, CONTRACT 12 SAN FRANCISCO, CA 94111-3598 v. SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR 13 ONEVALLEY IC, LLC, formerly known as 14 NESTGSV SILICON VALLEY, LLC, a California limited liability company, and DOES 15 1-20, inclusive, 16 Defendants. 17 18 Plaintiff Oracle America, Inc. (“Plaintiff”) alleges as follows: 19 1. Plaintiff is a Delaware corporation and, through a lease, possessed the real 20 property commonly identified as 2955 Campus Drive, San Mateo, California 94403 (the 21 “Premises”). 22 2. Defendant OneValley IC, LLC formerly known as NestGSV (“Defendant”) is a 23 California limited liability company. 24 3. The true names and capacities of Defendants Does 1-20, inclusive, are unknown to 25 the Plaintiff. Plaintiff therefore sues Defendants by such fictitious names. Plaintiff is informed 26 and believes and based thereon alleges that each of the Defendants designated herein as Does are 27 legally responsible in some manner for the events and happenings herein referred to and caused 28 injuries and damages as alleged by Plaintiff hereto. -1- COMPLAINT FOR BREACH OF CONTRACT 1 4. Venue is proper in this Court because the contract giving rise to this action was to 2 be performed in San Mateo County, the contract was entered into in San Mateo County, and the 3 real property that is the subject of the contract at issue is located in San Mateo County. 4 FACTUAL ALLEGATIONS 5 5. Plaintiff and Defendant are parties to a written Sublease (the “Sublease”) dated as 6 of March 22, 2018, by which Defendant subleased the Premises. A copy of the Sublease, with all 7 exhibits, addenda, and amendments, is attached hereto as Exhibit A. The term of the Sublease 8 expired on or about May 31, 2022. 9 6. In connection with the First Amendment to the Sublease, Plaintiff agreed to 10 conditionally abate past-due and portion of future Rent (as defined in the Sublease) in the amount 11 of $2,900,706.49. Section 1(e) of the First Amendment provides: 12 The concessions made by Sublandlord in this First Amendment are conditioned SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP upon Subtenant’s full performance of its modified obligations. If at any time ONE MARITIME PLAZA EIGHTEENTH FLOOR 13 hereafter Subtenant shall be in violation of any provision of the Sublease, at Sublandlord’s election (i) the Adjusted Base Rent provisions shall be shall be void, 14 (ii) the Rent provisions of the Original Lease shall be reinstated, and (iii) Subtenant shall be required to reimburse and pay to Sublandlord, as Additional 15 Rent, the full amount of any difference between the amount paid by Subtenant and what otherwise was due under the Sublease for the period of time in question, 16 without modification by this First Amendment (the “Shortfall”). 17 7. When the Sublease expired, Subtenant owed Adjusted Rent (as defined in the 18 Sublease) of $651,541.12 under the First Amendment. 19 8. By letter dated June 14, 2022, a copy of which is attached as Exhibit B, Plaintiff 20 informed Defendant that “If Subtenant does not pay the full amount due and owing by June 20, 21 2022, Sublandlord will elect to exercise its option under Section 1(e) of the First Amendment, and 22 a total of $3,096,422.29 will become due and owing.” 23 9. Defendant did not pay the full amount due and owing. 24 10. Plaintiff has performed all conditions, covenants, and obligations it owes under the 25 Sublease, or has been excused from performance. 26 11. Section 13 of the Sublease provides for the award of attorney’s fees and other 27 costs of litigation to the prevailing party in legal proceedings with respect to the Sublease. 28 -2- COMPLAINT FOR BREACH OF CONTRACT 1 Plaintiff has incurred attorney’s fees and other litigation costs with respect to the subject matter or 2 enforcement of the Sublease. 3 FIRST CAUSE OF ACTION 4 (Breach of Contract—Against All Defendants) 5 12. Paragraphs 1 through 11 are incorporated herein by reference. 6 13. The Sublease is a binding contract between Plaintiff, on the one hand, and 7 Defendant, on the other hand. 8 14. Plaintiff has performed, or been excused from performing, all covenants, 9 conditions, and obligations that it owes under the Sublease. 10 15. Defendant has failed to perform its obligations under the Sublease by, among other 11 things, not paying amounts owed, and by abandoning the Premises. 12 16. As a direct and proximate result of Defendant’s breach, Plaintiff has been damaged SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR 13 in an amount according to proof, but not less than $3,096,422.29. 14 PRAYER 15 Wherefore, Plaintiff prays for judgment against Defendant as follows: 16 1. For compensatory damages in the amount according to proof, but not less than 17 $3,096,422.29. 18 2. For prejudgment interest; 19 3. For reasonable attorney’s fees; 20 4. For costs of suit; and 21 5. For such other and further relief as the Court deems just and proper. 22 Dated: June 2, 2023 SHARTSIS FRIESE LLP 23 24 By: ROEY Z. RAHMIL 25 Attorneys for Plaintiff ORACLE AMERICA, INC. 26 27 28 -3- COMPLAINT FOR BREACH OF CONTRACT 9434010 EXHIBIT A Approved as to Legal Form 3/612018 Tess Sara Brandwein Shartsls Friese LLP Doc. #8072922vl2 SUBLEASE BETWEEN ORACLE AMERICA, INC. AND NESTGSV SILICON VALLEY, LLC 295~ Campus Drive, San Mateo, CaJifornia Portion of First (1st) Floor and Entire Third (3rd) Floor 153255914 vll 02266\l 70A\8072922.vU SUBLEASE THIS SUBLEASE ("Sublease") is entered into as of March;\~ 2018 (the "Effective Date"), by and between ORACLE AMERICA, INC., a Delaware corporation ("Sublandlord'') and NESTGSV SaICON VALLEY, LLC, a California limited liability company ("Subtenanf'), with reference to 't he following facts: A. Pursuant to that certain Office Lease Agreement dated August 2, 2005 (the "Original Lease"), as the same has been amended by that certaitt First Amendment dated April 24, 2008 (the "First Amendment"), that certain Second Amendment dated October 8, 2010 (the "Second Amendment"), that certain Third Amendment dated December 9,.2011 (the "Third Amendment"), that certain Fourth Amendment dated February 1, 2013 (the "Fourth Amendment''), ,that certain Fifth Amendment dated May 15, 2013 (the "Fifth Amendment''), that certain Sixth Amendment dated July 8, 2013 (the "Sixth Amendment"), that certain Seventh Amendment dated February 28, 2014 (the "Seventh Amendment") and that certain Eighth Amendment dated May 8, 2015 (the "Eighth Amendmenf') (the Original Lease as so amended shall be referred to herein as the "Master Lease"), Hudson Peninsula Office Park, LLC, a Delaware limited liability company ("Landlord"), as Landlord (successor in interest to BOP-Peninsula Office Park, L.L.C.), leases to SubJandlord (successor in interest to NetSuite Inc.), as tenant; certain space (the "Master Lease Premises") consisting of approximately 128,473 rentable square feet ("RSF') located on the ground floor, first (1st), second (2nd), third (3rd) and fourth (4th) floors of the building commonly kno~ as Peninsula Office Park Building 9 located at 2955 Campus Drive, San Mateo, California (the "Bwlding"). B. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes to sublease to Subtenant, a portion of the Master Lease Premises containing approximately 48,884 RSF comprised of (i) 14,674 RSF located on the frrst (1st) floor commonly known as Suites 110 and 120 and (ii) 34,210 RSF commonly known as Suite 300 located on the third (3rd) floor of the Building, said .space being inore particula.dy identified and described on the floor plan attached hereto as Exhibit A and incorporated herein by reference (and hereinafter. referred to as the "Subleased Premises"). · NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows: 1. Sublease. Sublandloxd hereby suble&Scs to Subtenant and Sub~nant hereby subleases from Sublandlord for the term, at the rentaJ, and upon all of the conditions set forth herein, the Subleased Premises. 2. Term. (a) . Generally. ·The term of this Sublease (the "Term") shall commence on the date (the "Commencement Date") that is the later to occur of (i) March 1, 2018, and (ii) the date that Sublandlord delivers possession of the Subleased Premise.s to Subtenant in accordance with the provisions of this Sublease, and (iii) the date upon which Sublandlord procures Landlord's consent to this Sublease in accordance with Section 6(f) (the "Consent'>, and the date upon which Sublandlord procures ·the Conse·n t being the "Coose~t 02.266\170A\80729'22.vl2 Date") and end on May 31, 2022 (the "Expirat.ion Date,,), unless sooner terminated pursuant to any provision hereof. Upon the determination of the Cornm:encem~nt Date, SublandJord and Subtenant will enter into a letter agreement in the form of Exhibit B attached hereto! (b) Adjustments. Notwithstanding the provisions of Section 2(a) above: . (i) if, as of the date that Sublandlqrd' would otherwise deli~er possession of the Subleased Premise.s to Subtenant as described in Section 2(a) above, Subtenant has not delivered to Sublandlord (x) the prepaid Base Rent pursuant to the provisions of Section 3(a)(i) below, (y) the Letter of Credit pursuant to the provisions of Section 4 below and ·(z) evidence of Subtenant's procurement of all insurance coverage required hereunder (the "Delivery Conditions"), then Sublandlord will have no obligation to deliver possession of the Subleased . Premises to Sl;lbtenant, but the fail,ure on the part of Sublandlord to so deliver possession of the Subleased Premises to Subtenant in' such event will not serve to delay the occurrence of the Commencement Date and the commencement of Subtenant' s obligations to pay Rent (defined below) here\i.nder. (ii) if, pursuant-to the terms of the Master L~ase, Sublandlord is required by Landlord to rerqove any improvements or alteratio~s in the Subleased Premises on or before the date of expirati9n of the Master Lease, Sublandlord shall have the right, by written notice to Subtenant, to accelerate the Expiration Date .to May 15, 2022, in order to provide Sublandloi:d wit4 sufficient time following the Expiration Date in which to enter the Subleased Preffiises and perform any required restoration/repair work. Sublandlord agrees to give any such . acceleration notice to Subtenant promptly following Sublandlord's determination that L:andlord will require any such restoration or repair, and Sublandlord will use commercially reasonable efforts to notify Subtenant no later than March 15, 2022. (iii) Early Access. Subtenant and Subtenant's representatives. will have the right to enter the Subleased Premises on the later to occur of (i) the Cori.sent Date, (ii) January 15, 2018, and (iii) the date upon which Subten!lllt satisfies the Delivery Conditions (the date upon which Subtenant first has such access to the Subleased Premises being referred to herein as the "Early Access Date") for the sole purpose of installing of Subtenant' s personal property and equipment, furniture, fixtures and voice and data cabling, all subject to the terms, conditjons and requirements of the Master Lease. All of.the rights and obpgations of the parties under this Sublease (other than Subtenant's obligation, to pay Base Rent, but expressly including without limitation Subtenant' s obligation to pay excess utility charges ·and carry insurance, as well as Subtenan~'s indemnification obligations) shall commence upon the Early Access Date. Subtenant shall coordinate any such entry w,ith Sublandlord. 3. ~· (a) Rent Payments. (i} · . Generally. Subtenant shall pay to Sublandlord as.base rent for ~e Subleased Premises <;luring the Term ("Base Rent,,) the following: 2 153255914 Vil 02266\170A\11072922.vl2 . Rate Per RSF Per Monthly Months of Tenn Month Base Rent 1* - 12 $3.60 $175,982.40*"' 13 - 24 $3.71 $181,261.87 25 - 36 $3.82 $186,699.73 . 37 - 48 $3.93 $192,300.72 . 49 - E>epiration Date $4.05 $198,069.14 * If the Commencement Date is not a :first (1st) day of a calendar month then, solely for the purpose ·of the Base Rent table set forth above (and not for the purposes of detennining · Abatement Period or the Abated Rent, as said terms are described in Section 3(a)(ii) below), ''Month 1" will include a partial calendar month following Commencement Date and the next- day succeeding cal~ndar month. ** The Base Rent shall be aba~ed for first (1st) five (5) full calendar months of the Term as provided in Section 3(a)(ii) b~low. · Base Rent shall ·be paid in advance on the first day of each month of the Term, except that Subtenant shall pay one (1) month's Base Rent (i.e., $175,982.40) to Sublandlord upon execution of this Suble~e and delivery of this Sublease to Sublandlord; saird, Landlord, and any other person intended to be benefited by said provision, for the purpose of inc.o rporation by reference in this Sublease. Any right of Landlord under the Master Lease (i) of access or inspection, (ii) to do work in the Master Lease Premises or in the Buildi.hg, (iii) in respect of rules and regulations, which is incorporated herein by reference, shall be deemed to inure to the benefit of Sublandlord, L8:fldlord, and any other person intended to be benefited by said provision, for the purpose of incorporation by reference in this Sublease. Notwithstanding anything to the contrarr in this Sublease, in no event shall Subtenant be obligated to remove or restore any Leasehold Improvements or Alterations (as such terms are defined in the Master Lease) made prior to the Commencement Date. (c) Modifications. For the pLirposes of incorporation herein, the tcnns of the Master Lease are subject to the following additional modifications: (i) Approvals. In all provisions of the Master Lease (under the terms thereof and without regard to modifications thereof for purposes of incorporation into this .Sublease) requiring the approval or consent of Landlord, Subtenant shall be required to obtafu the approval or consent of both Su"blandJord and Landlord. (ii) Deliveries. In all provisions of the Master Lease requiring Tenant to submit, exhibit to, supply or provide Landlord with evi~ence, certificates, or ~y other 10 153255914 vll 02266\170A\8072922.vl2 matter or thing~ Subten_ant shall be required to submit, exhibit to', supply or provide, as the case may be, th~ same to both Landlord and Sublandlord. (iii) Damage; Condemnation. Sublandlord shall have no. - obligation to restore or rebuild any portion of the Subleased Premises after any destruction or taking by eminent domain. Any rights of Subtenant to abatement of Rent shall be conditioned upon Sublandlord's ability to abate rent for the-Subleased Premises under the tenns of the Master Lease. - (iv) Insurance. In all provisions of the Master Lease requiring Tenant to designate Landlord as an additional or named insured on its insurance policy, Subtenant shall be required to so designate Landlord and Sublandlord on its ·insurance policy. Sublandlord shall have no obligation to maintain the insurance to be maintained· by Landlord Wlder the Master Lease. · (d) Exclusions. . Notwithstanding the terms of Section 6(b) above, Subtenant shall·have no rights nor obligations under the following parts, Sections and Exhibits of the Master Lease: (i) Original Lease: . Article 1 (Ba5ic Lease Information) (except · for the defu)itions ·of "Building," "Premises'', "Permitted Use/' "Business Day(s)/, ''Building Service Hours," "Holidays", and "Property"), Article 2 (Lease Grant) (except for the right to use Common Areas), Article 3 (Adjustment of Commencement Date; Possession), Article 4 (Re~t) (except to the extent necessary to implement the provisions of Section 3{b) above), Article 6 (Security Deposit), Article 18 (Events of Default), Article 24 (Notice), Section 26.04, Section 26.05, Exhibit A, Exhibit B (except to the extent necessary to implement ilie provisions of Section 3(b) above), Exhibit C, Exhibit D, Exhibit F (except for Sections 4 and 5 to the extent necessary to implement the provisions of Section 17 below, and except for Section 6), ExhibitF-1, ExhibitF-2 and ExhibitF-3. . (ii) First Amendment: All except for Section 8.04 (Additional Monument Signage) (except _as provided in Section 17 of this Sublease), Section 8.05 (Compliance with Laws), Section 8.07 (Parking) and Section 8.08 (Permitted Use); (iii) Second Amendment: All · except for . Section 4.3 (Additional Monument Signage) (except as provided in Section 17 of this Sublease); (iv) Third Amendment: All; (v) Fourth Amendment: All except for Section ;7.1 (Parking); (vi) Fifth Amendment: All; (vii) Sixth Amendinent: All; (viii) Seventh Amendment All; and 11 153255914 vu 02266\t70A\8072922.v12 (ix) Eighth Amendment: All except to the extent necessary to conform the definition of the Master Lease Premises to this Sublease and except for Sections 9.4, 9.5, 9.6, 9.8, 9.12, and 9.14. (e) Other Matters. Sublandlord represents and warrants to Subtenant (a) that the Mastei: Lease and· amendments furnished by Sublandlord to Subtenant prior to the execution of this Sublease are a true and complete copy thereof (and have not been otherwise modified), (b) that the Ma5ter Lease is in full force and effect, (c) that, to Sublandlord's lmowledge, Landlord is not in default under the terms of the Master Lease, (d) that Sublandlord is not in default under the terms of the Master Lease nor has any event or circumstance arisen or occurred that with the passage of time would constitute a default under the terms of the Master Lease, and (e) that Sublandlord has not received any notice of default under the Master Lease, except for any defaults which Sublandlord has cured and Landlord is no longer claiming to exist. Except with respect to the exercise of any right expressly set forth in the Master Lease, Sublandlord covenants as follows: (i) not to voluntarily terminate the Master Lease, (ii) not to modey the Master Lease in any manner (except to a di minimus eXtent), (Hi) to talce all actions reasonably necessary to preserve the Master Lease, and (iv) to pay prior to delinquency all amounts due under the Master Lease (provided that Subtenant likewise pays prior to delinquency all amounts due under this Sublease). (t) Contingent Nature of Sublease. This Sublease is subject to, and shall not be deemed fully effective until Sublandlord has obtained, Landlord's Consent, which Consent shall (unless waived by Subtenant, in its sole and absolute discretion) expressly include Subtenant' s rights under Section 7. Sublandlord will use commercially reasonable, efforts to obtain Landlord's ·consent to Subtenant's parking, signage, and roof rights as set forth in Sections 16, 17 and 26, respectively (the "Additional Rights");' provided, however, (1) such consent shall not be a condition to the effectiveness of this Sublease, and (2) Landlord's refusal to consent to the Additional Rights shall not be deemed a Sublandlord Default (as defined in Section 12(b) below) and Subtenant shall not in such event have the right to terminate or rescind this Sublease. Each party agrees promptly to execute and deliver the Consent so long as such Consent is in a commercially reasonable fonn requested by Landlord. If such Consent from Landlord is not received by Subtenant within forty-five (45) days after the execution of this Sublease, then Subtenant may, at its e]ection, in its sole and absolute discretion, at any time after the expiration of such 45-day period but prior to delivery to Subtenant of such Consent, by notice to Sublandlord, cancel this Sublease, in which case Sublandlord shall promptly return to Subtenant all swns theretofore paid by Subtenant hereunder. If such Consent from Landlord is not received by Subtenant within sixty (60) days after the execution of thls Sublease, then Sublandlord may, at its election, in its sole and absolute· discretion, at any time after the expiration of such 60-day period but prior to delivery to Subtenant of such Consent, _ by notice to Subtenant, cancel Uris Sublease, in which case Sublandlord shall promptly return to Subtenant all sums theretofore paid by Subtenant hereunder: . 7. Assignment and Subletting. Subtenant shall not assign this Sublease or further sublet all or any part of the Subleased Premises without the prior written consent of Sublandlord, which shall not be unreasonably withheld or delayed. Additionally, any such assignment or sublease, if consented to by Sublandlord, shall be subject to and in compliance with all of the terms and conditions of the Master Lease, and Sublandlord (in addition to Landlord) shall have the same rights with respect to assignment and subleasing as Landlord has 12 153255914vi1 02266\170A\8072922,vl2 under the Master Lease. ·S ubtenant shall pay all fees and cost.c; payable to Landlord pursuant to the Master Lease in connection' with all of Sublandlord's reasonable out-of-pocket costs relating to any proposed assignment, sublease or transfer of the Subleased ·Premises, regardless of whether any required consent is granted, and the effectiveness. of any such consent shall be conditioned upon Landlord's and Sublandlord's receipt of all such fees and costs. Notwithstanding anything to the cont:rarY in this.Sublease or the Master Lease, Sublandlord and Landlord hereby acknowledge (pursuant to the tenns of the Landlord ' Consent to Sublease executed between Landlord, Sublandlord and Subtenant on or about the 'date hereof (the "Consent")) that Subtenant intends to use the Subleased Premises as a business incubator and as shared office space; Subtenant shall have the right to penni~ third parties that are part of such incubator program or such shared office space program (each, an °Approved User") to use portions of the Subleased.Premises without such uses or sharing of offices requiring Landlord's · or Sublandlord's additional consent and without triggering any revenue sharing or recapture provisions under. the terms of the Master Lease or this Sublease; provided, however, that (a) Subtenant does not separately demise such space and the Approved Users use, in common with Subtenant, one common. entryway to the Subleased Premises. (b) the Approved User uses such space for the Permitted Use (as defined in 1he Original Lease) and for no other purpose, and (c) no later than one (1) business day following the Approved ·User's occupancy, (i) Subtenant notifies Sublandlord and Landlord in writing of the Approved User's identity, and (ii) the Approved User executes .and delivers .to Sublandlord and Landlord an agreement substantially in the form of Exhibit E, which shall have.an Approved User Effective Date (as defined in Exhibit E) that is the date on which such Approved User's occupancy commenced. For·the benefit of Landlord and Sublandlord, Subtenant shall cause each Approved User, and each of its employees and licensees, to comply with the provisions of .this Sublease, the Consent and the Master Lease (other than the insurance provisions, so long as Subtenant provides Sublandlord with satisfactory evidence, as determiJ.led by Sublandlord in Sublandlord's ruscretion, that Subtenant's insurance required hereunder covers any acts and/or omissions of. each Approved User), and each Approved User, and each of its employees and licensees, shall be deemed (i) licensees of Subtenant for purposes of Subtenant's obligatj.ons under this Sublease, (ii) licensees of Subtenant for purposes of Section 3 of the Consent, and (iii) licensees of Sublandlord for putposes of Section 13 of the Original Lease (as amended). No use or occupancy of any portion of the Subleased Premises by an Approved User shall release or excuse Subtenant from any obligation hereunder (nor release or exc;use Sublandlord from any obligation under the Master Lease) or create a landlor~tenant relationship between Sublandlors sole cost and expense, using maintenance contractors specified by Sublandlord. Subtenant shall not modify, reconfigure or refocate any of the Furniture except with the advance written permission of Sublandlord, and any work of modifying any Furniture (including, without limitation, changing the configuration of, "breaking down" or reassembly of cubicles or other modular furniture) shall be performed at Subtenant's sole cost using Subland1ord's specified vendors or an alternate vendor approved in writing by Sublandlord (such approval to be granted or withheld on Sublandlord's good faith discretion, based upon Sublandlord's assessment of factors which include, without limitation, whether the performance by such vendor will void applicable warranties for such F\uniture and whether such vendor is sufficiently experienced in the design of such Furniture). No item of Furniture shall be removed from the Subleased Premises without Sublandlord,s prior written consent. (b) Automatic Transfer of Fwniture to Subtenant. In consideration of $1.00 and Subtenant's performance of its obligations under this Sublease, as of the date that is thirty (30) days prior to the Expiration Date (the "Furniture Transfer Date"), all of Subla:ndlord's right, title and interest in and to the Furniture shall automatically be transferred to Subtenant. The Furniture shall be so transferred to Subtenant on an "as is" basis with no representation or warranty of any kind from, and no recourse against, Sublandlord; provided, however, that Sublandlord represents and warrants as of the ~ture Transfer Date that it owns 18 1S32SS914 vll 02266\J70A\80729'l2.vl2 all of the Furniture free and clear of all liens and encumbrances and has the authority to so transfer the Furniture. Thereafter, Subtenant shall be solely responsible for the proper removal of the Furniture from the Subleased Premises and the Building in accordance with the tenns and provisions of the Master Lease. The transfer of ownership of the Furniture shall occut automatically on the Furniture Transfer Date and this Sublease shall constitute a bill of s~e . evidencing the transfer of the Furniture on the Furniture Transfer Date, unless otherwise agreed to in a writing signed by both Su~landlord and Subtenant.. Notwithstanding the foregoing provisions of this Section 19 to the contrary, if prior to the Furniture Transfer Date Subtenant is in Default here1Ulder, then at Sublandlord's election, the automatic transfer of all of Sublandlorci's right, title and interest in and to the Furniture shall be voidable by Sublandlord. If Sublandlord ·SO elects to void such transfer, then Sublandlo~d shall provide notice of such election to ·subtenant. 1µ such event, (i) prj.or to or promptly following the expiration or earlier termination of this Sublease, Sublandlord shall conduct a walk-through of the Subleased Premises to catalog any items of damage, disrepair, misuse or loss among the Furniture (reasonable wear and tear excepted), and (ii) Subtenant shall be responsible, at ·subtenant's sole cost and expense, for curing any such items (including, with respect to loss, replacing any lost item with a substantially similar new item reasonably acceptable to Sublar.idlord). · 20. Brokers. Subtenant represents that·it has dealt directly with and only with CBRE ("Subtenant's Broker"), as a broker in connection with this Sublease. Sublandlord represents that it has d.e alt directly with ·and only vyith Colliers International (''Sublandlord's Broker"), as a broker in connection with this Sublease. Sublandlord and Subtenant shall indemnify and hold each. other harmless from all claims of any brokers other than Subtenant' s Broker and Sublandlord's Broker claiming to have represented Sublandlord or Subtenant in connection with this Sublease. Subtenant and Sublandlord agree that Subtenant' s Broker and Sublandlord' s Broker shall be paid commis~ions by Sublandlord in connection with this Sublease pursuant to a separate a~reement. 21. Complete Agreement. There are no representations, warranties, agreements, arrange.m ents or understandings, oral or written, between the parties or their representatives relating to the subject matter of this Sublease which are not fully expressed in thi~ Sublease. This Sublease cannot be changed or terminated nor may any of its provisions be waived orally or in any manner other than by a written agreement executed by both parties. 22. Interoretation. Irrespective of the place of execution or performance, ~s Sublease shall be governed by and c·onstrued in accordance with the laws of the State of California. If any provision of this Sublease or the application thereof to any person or circumstance shall, for any" reason and to apy extent, be invalid or unenforceable, the remainder of this $ublease and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. The table of contents, captioqs, headings anq ti.ties, if any, in this Sublease are solely for convenience of ref~rence ~ shall not affect its interpretatio,n. This Sublease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Sublease or any part thereof to be drafted. If any words or phrases in this Sublease shall have been stricken out or otherwise elll:nioated, whether or not any other words or phrases have been added, this Sublease shall be construed as if the words or phrases so stricken out or otherwise eliminated were never included in this Sublease and no impli9at:ion or inference shall be drawn from the fact that said words or phrases were so stricken out or otherwise eliminated. Each covenant, 19 153255914 vl l 02266\I 70A\8072922.v 12 agreement, obligation or other provision of this Sublease shall be deemed and construed as a separate and independent covenant of the party 'bound by, undertaking or making same, not dependent on any other provision of this Sublease unless otherwise expressly provided. All terins and words used in this Sublease, regardless of the number or gender in which they are used, shall be deemed to inclu<;le any other num~er and any other gender as the context may require. The word ''person" as used in this Sublease shall mean a natural person or persons, a partnership, a corporation or any other form ofbusines~ or legal a5sociation or entity. 23. CASp. This ~otice is giyen pursuant to California Civil ·code Section 1938. The Subleased Premises, has not been issued a disability acqess inspection certificate. A Certifi~d 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, Sublandlord may not prohibit Subtenant from obtaining a CASp inspection for the occupancy or potential occupancy of Subtenant, if requested by Subtenant. If Subtenant elects to perform a CASp inspection, Subtenant will provide written notice to Sublandlord, and Sublandlord or Lanqlord inay elect, in their sql~ discretion, to retain a CASp to perform the inspection. If Sublandlord and Landlord do not ~·o elect, the time and manner of the CASp inspection will be. subject to the prior written approval of Sublandlord, and Landlord. In either event, the payment of the fee for the CASp inspection shall be borne by Subtenant. The· cost of making any.repairs necessary to correct violations of construction-related accessibility standards within.the Subleased Premises shaU be home by Sublandlord un~ess triggered by any alterations to the Subleased Premises made by Subtenant. " . 24. USA Patriot Act Disclosures. Subtenant is currently in compliance. with and shall at all times during the Tenn remain in compliance with the regulations of the Office of Foreign Asset. Control ("OFAC") of the Department of the Treasury (including those named on OFAC' s Specially Designated and ·Blocked Persons List) and any statute, executive order (including the s·eptember 2;4, 2001, Executive Order Blocking Property and . Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terr~rism), or other governmental action relating thereto. 25. Counterparts. This Sublease may be executed in multiple counterparts, each of which is deemed an original but which together constitute one and the same instrument This Sublease shall be fully executed when each party whose signature is required has signed and delivered to each of the parties at least one counterpart, even though no single counterpart contains the ·signatures of aU of the parties hereto. This Sublease may be executed in so-called 'l>~' format and each party has the right to rely upon a pdf counterpart of this Sublease signed by the oth~r party to the same extent as if such party had received an original counterpart. 26. , Other Rights. Subject to Landlord's consent, Subtenant shall have the same right as Sublandlord to install a Dish/Antenna in the Roof Space (each as defined in the Original Lease). Subtenant shall have the same rights as Sublandlord with.respect to the Fitness Qenter and Shower .Facility (each as defined in the Eighth Amendment). Subtenant shall have the right to bring bicycles into the Subleased Premises, provided that Subtenant does so in a c9mme~cially reasonable manner. · [Signatures Appear on Following Page] 20' 153255914 vll 02266\170A\807i922..vl2 IN WITNESS WHEREOF, the parties· hereto hereby execute this Sublease as of the Effective.bate. · SUBLANDLORD: AMERICA., INC., ration By: Print Name: · Michae Bangs Title: Vice President, Americas R al Estate & Facilities, HQ · SUBTENANT: .NESTGSV SILICON VALLEY, LLC, a California limited liability company . ' By:, Print Name: title: By: Print Nrune: Title: . ·. 21 . 153255914 vl l . 02266\l ?OA\8072922.v 12. EXHIBIT A Subleased Premises ., , • • _ _,,. , , .., .1 · •• ••· ! • - ••"'T•. ' I i••~'ll '"°''~ l'!11'1'Ul~'l'fo' tt•t .I._ l 'l • IU!o o')o:1 o~ri lolH'tf , .. , .. l•liol o \ \ - ---, I ~I 11 I - ~ 1 n1 I A-1 153255914 vl l 02266\l70A\8072922.v 12 ~ .......... , •.~ ... . . .... t.,,.,.,, . ,.,.., ~,._ ,,. , .. ,,..of• J '4·• ••14rv-•tYW • .._.. .....,;_i. ••• Joll ... . .. ~,~ ..1i..,,1 ._ A-2 153255914 vll 02266\l ?OA\8072922.vl2 EXHIBITB Commencement Date Letter Agreement Date ________ , 2018 Subtenant Address Re: CornmencemeJ;1.t Date Letter Agreement with respect to that certain Sublease dated as of March 2018, by and between ORACLE AMERICA, INC., a Delaware corporation, as Sublandlord, and NESTGSV SILICON VALLEY, LLC, a California limited liability company, as Subtenant, for 48,884 rentable square feet on ·the first (1st) and third (3rd) floors of the building located at 2955 Campus Drive, Sari Mateo, California Dear In accordance with the terms and conditions of the above referenced Sublease, Subtenant accepts possession of the Subleased Premises and agrees: I. The Commencement Date is _ _ _ _ ___, 2018; 2. The Abate ment Period is the period commencing as of _ _ ___,. 2018 and expiring as of 2018; 3. The Expiration Date is May 31, 2022, subject to Section 2(b)(ii) of the Sublease. Please acknowledge your acceptance of possession and agreement to the terms set forth above by signing this Commencement Letter in the space provided and returning a fully executed counterpart (a scanned signature sent in PDF or similar format will suffice) to my attention. Sincerely, Sublandlord Authorized Signatory Agreed and Accepted: Subtenant: NESTGSV SILICON VALLEY, LLC By: lEXl:IlBIT - - DO NOT SIGN] Name: Title; Date: 1S32S.S914 vl 1 02266\170A\8072922.vl2 EXlllBITC Furniture Suite #150 ITEM DESCRIPTION QUANTITY : Grey Chair with Wood Legs 1 Floor Lamp 1 XL Wood Rectangular Table 1 Microwave 1 2dr Lat File Cabinet 2 4dr Lat File Cabinet 2 Sdr Lat File· Cabinet 9 4' Maple Bookshelves 3 wo·o l Side Chairs 30 Black Side Chair 3 Appx. 3' Maple Bookshelves 5 B.ackless Counter Height Grey Metal Stools 9 Mesh Conf Side