\n Tenant’s Address for Notice: Digital Microwave Corporation
\n 170 Rose Orchard Way
\n San Jose, California 95134 <\/p>\n Tenant’s Representative: Sandy Johnson, Facility Manager
\n Ed Rockwell, Director of Finance<\/p>\n
Landlord’s Address for Notices: c\/o Menlo Equities LLC
\n 525 University Avenue
\n Suite 100
\n Palo Alto, California 94301 <\/p>\n
Landlord’s Representative: Henry Bullock\/Richard Holmstrom
\n Phone Number: (650) 326-9300 <\/p>\n
Intended Commencement Date: January 1, 2001 <\/p>\n
Intended Term: Ten (10) years <\/p>\n
Lease Expiration Date: Ten (10) years from the Actual Lease Commencement Date, unless
\n earlier terminated by Landlord in accordance with the terms of
\n this Lease, or extended by Tenant pursuant to Article 15.<\/p>\n
Options to Renew: 2 option(s) to renew, each for a term of five (5) years etc. <\/p>\n
First Month’s Prepaid Rent: $99,792.00 <\/p>\n
Tenant’s Security Deposit: $130,032.00 <\/p>\n
Late Charge Amount: Five Percent (5%) of the Delinquent Amount<\/p>\n
Tenant’s Required Liability Coverage: $10,000,000 Combined Single Limit<\/p>\n
Tenant’s Broker(s): Martin Morici of Colliers International<\/p>\n
1.<\/p>\n
Project: That certain real property situated in the City of San
\n Jose, County of Santa Clara, State of California, as
\n presently improved with 5 building(s), which real property
\n is shown on the Site Plan attached hereto as Exhibit “A.”<\/p>\n
Property: That certain real property situated in the City of San
\n Jose, County of Santa Clara, State of California, as
\n presently improved with 1 building, which real property is
\n shown on the Site Plan attached hereto as Exhibit “A.”<\/p>\n
Building: That certain building on the Property in which the Leased
\n Premises are located commonly known as or otherwise described
\n as 170 Rose Orchard Way, California. (the “Building”)
\n located on Assessor’s Parcel No. 97-03-077, which Building is
\n shown outlined on Exhibit “A” hereto.<\/p>\n
Outside Areas: The “Outside Areas” shall mean all areas within Assessor’s
\n Parcel No. 97-03-077 which are located outside the Building,
\n such as pedestrian walkways, parking areas, landscaped areas,
\n open areas and enclosed trash disposal areas.<\/p>\n
Leased Premises: All the interior space within the Building, including
\n stairwells, connecting walkways, and atriums, consisting of
\n approximately 60,480 square feet and, for purposes of
\n this Lease, agreed to contain said number of square feet.<\/p>\n
Tenant’s Expense Share: The term “Tenant’s Expense Share” shall mean the percentage
\n obtained by dividing the rentable square footage of the
\n Leased Premises at the time of calculation by the rentable
\n square footage of the Building. Such percentage is currently
\n 100%.<\/p>\n
Tenant’s Project Share: The term “Tenant’s Project Share” shall mean the percentage
\n obtained by dividing the rentable square footage of the Leased
\n Premises at the time of calculation by the rentable square
\n footage of all buildings located on the Property at the time
\n of calculation. Such percentage is currently 19.42%. In the
\n event that any portion of the Property is sold by Landlord, or
\n the rentable square footage of the Leased Premises or the
\n Property is otherwise changed, Tenant’s Expense Share shall be
\n recalculated to equal the percentage described in the first
\n sentence of this paragraph, so that the aggregate Tenant’s
\n Expense Share of all tenants of the Property shall equal 100%.
\n Tenant’s Expense Share is subject to adjustment as set forth in
\n Paragraphs 13.12(b) and 13.12 (c).<\/p>\n
Base Monthly Rent: The term “Base Monthly Rent” shall mean the following:<\/p>\n
Period Base Monthly Rent
\n —— —————–<\/p>\n
1\/1\/01-12\/31\/01 $99,792.00
\n 1\/1\/02-12\/31\/02 $102,816.00
\n 1\/1\/03-12\/31\/03 $105,840.00
\n 1\/1\/04-12\/31\/04 $108,864.00
\n 1\/1\/05-12\/11\/05 $111,888.00
\n 1\/1\/06-12\/31\/06 $115,516.80
\n 1\/1\/07-12\/31\/07 $119,145.60
\n 1\/1\/08-12\/31\/08 $122,774.40
\n 1\/1\/09-12\/31\/09 $126,403.20
\n 1\/1\/10-12\/31\/10 $130,032.00<\/p>\n
Permitted Use: Office, research and development light manufacturing and
\n assembly.<\/p>\n
Exhibits: The term “Exhibits” shall mean the Exhibits of this Lease
\n which are described as follows:<\/p>\n
Exhibit “A” – Site Plan showing the Property and delineating
\n the Building in which the Leased Premises are located.<\/p>\n
Exhibit “B” – Work Letter<\/p>\n
Exhibit “C” – Form of Tenant Estoppel Certificate
\n<\/c><\/s><\/table>\n
2.<\/p>\n
ARTICLE 2<\/p>\n
LEASED PREMISES, TERM AND POSSESSION<\/p>\n
2.1 DEMISE OF LEASED PREMISES. Landlord hereby leases to Tenant and Tenant
\nhereby leases from Landlord for Tenant’s own use in the conduct of Tenant’s
\nbusiness and not for purposes of speculating in real estate, for the Lease Term
\nand upon the terms and subject to the conditions of this Lease, that certain
\ninterior space described in Article 1 as the Leased Premises, reserving and
\nexcepting to Landlord the right to fifty percent (50%) of all assignment
\nconsideration and excess rentals as provided in Article 7 below. Tenant’s lease
\nof the Leased Premises, together with the appurtenant right to use the Outside
\nAreas as described in Paragraph 2.2 below, shall be conditioned upon and be
\nsubject to the continuing compliance by Tenant with (i) all the terms and
\nconditions of this Lease, (ii) all Laws governing the use of the Leased Premises
\nand the Property, (iii) all Private Restrictions, easements and other matters
\nnow of public record respecting the use of the Leased Premises and Property, and
\n(iv) all reasonable rules and regulations from time to time established by
\nLandlord. Notwithstanding any provision of this Lease to the contrary, Landlord
\nhereby reserves to itself and its designees all rights of access, use and
\noccupancy of the Building roof, provided that Tenant may retain the antennae
\nexisting on the Building roof as of the Effective Date of this Lease and shall
\nhave a right to access the Building roof for maintenance of such antennae and
\nTenant’s other maintenance and repair obligations pursuant to this Lease.<\/p>\n
2.2 RIGHT TO USE OUTSIDE AREAS. As an appurtenant right to Tenant’s right to the
\nuse and occupancy of the Leased Premises, Tenant shall have the right to use the
\nOutside Areas in conjunction with its use of the Leased Premises solely for the
\npurposes for which they were designated and intended and for no other purposes
\nwhatsoever. Tenant’s right to so use the Outside Areas shall be subject to the
\nlimitations on such use as set forth in Article 1 and shall terminate
\nconcurrently with any termination of this Lease.<\/p>\n
2.3 LEASE COMMENCEMENT DATE AND LEASE TERM. The term of this Lease shall begin,
\nand the Lease Commencement Date shall be deemed to have occurred, on the Lease
\nCommencement Date, as set forth in Article 1 (the “Lease Commencement Date”).
\nThe term of this Lease shall in all events end on the Lease Expiration Date (as
\nset forth in Article 1). The Lease Term shall be that period of time commencing
\non the Lease Commencement Date and ending on the Lease Expiration Date (the
\n“Lease Term”).<\/p>\n
2.4 DELIVERY OF POSSESSION. Landlord and Tenant acknowledge that Tenant is
\ncurrently in possession of the Leased Premises. Tenant agrees to accept the
\nLeased Premises “as-is” WITH ALL FAULTS on the Lease Commencement Date.
\nLandlord hereby represents that Landlord has not received notice from any
\ngovernmental agencies that the Leased Premises or Building do not comply with
\nthe Americans With Disabilities Act of 1990.<\/p>\n
2.5 PERFORMANCE OF TENANT IMPROVEMENTS. Tenant shall, pursuant to the Work
\nLetter attached hereto as Exhibit B, construct the Tenant Improvements, as more
\nparticularly described therein.<\/p>\n
2.6 SURRENDER OF POSSESSION. Immediately prior to the expiration or upon the
\nsooner termination of this Lease, Tenant shall remove all of Tenant’s signs from
\nthe exterior of the Building and shall remove all of Tenant’s equipment, trade
\nfixtures, furniture, supplies, wall decorations and other personal property from
\nwithin the Leased Premises, the Building and the Outside Areas, and shall vacate
\nand surrender the Leased Premises, the Building, the Outside Areas and the
\nProperty to Landlord in the same condition, broom clean, when Tenant first took
\noccupancy of the Leased Premises, reasonable wear and tear excepted. Tenant
\nshall repair all damage to the Leased Premises, the exterior of the Building and
\nthe Outside Areas caused by Tenant’s removal of Tenant’s property. Tenant shall
\npatch and refinish, to Landlord’s reasonable satisfaction, all penetrations made
\nby Tenant or its employees to the floor, walls or ceiling of the Leased
\nPremises, whether such penetrations were made with Landlord’s approval or not.
\nTenant shall repair or replace all stained or damaged ceiling tiles, wall
\ncoverings and floor coverings to the reasonable satisfaction of Landlord. Tenant
\nshall repair all damage caused by Tenant to the exterior surface of the Building
\nand the paved surfaces of the Outside Areas and, where necessary, replace or
\nresurface same. Tenant shall remove all Specialized Improvements (as defined in
\nParagraph 6 hereof) identified by Landlord pursuant to the terms of this Lease
\nand shall repair all damage to the Leased Premises, the Building and the
\nProperty caused by such removal. Additionally, to the extent that Landlord shall
\nhave notified or is deemed to have notified Tenant in writing at the time the
\nimprovements were completed that it desired to have certain improvements made by
\nTenant or at the request of Tenant removed at the expiration or sooner
\ntermination of the Lease, Tenant shall, upon the expiration or sooner
\ntermination of the Lease, remove any such improvements constructed or installed
\nby Landlord or Tenant and repair all damage caused by such removal. If the
\nLeased Premises, the Building, the Outside Areas and the Property are not
\nsurrendered to Landlord in the condition required by this paragraph at the
\nexpiration or sooner termination of this Lease, Landlord may, at Tenant’s
\nexpense, so remove Tenant’s signs, property and\/or improvements not so removed
\nand make such repairs and replacements not so made or hire, at Tenant’s expense,
\nindependent contractors to perform such work. Tenant shall be liable to Landlord
\nfor all costs incurred by Landlord in returning the Leased Premises, the
\nBuilding and the Outside Areas to the required condition, together with interest
\non all costs so incurred from the date paid by Landlord at the then maximum rate
\nof interest not prohibited or made usurious by law until paid. Tenant shall pay
\nto Landlord the amount of all costs so incurred plus such interest thereon,
\nwithin ten (10) days of Landlord’s billing Tenant for same. Tenant shall
\nindemnify Landlord against loss or liability resulting from delay by Tenant in
\nsurrendering the Leased Premises, including, without limitation, any claims made
\nby any succeeding Tenant or any losses to Landlord with respect to lost
\nopportunities to lease to succeeding tenants.<\/p>\n
3.<\/p>\n
ARTICLE 3<\/p>\n
RENT, LATE CHARGES AND SECURITY DEPOSITS<\/p>\n
3.1 BASE MONTHLY RENT. Commencing on the Lease Commencement Date (as determined
\npursuant to Paragraph 2.3 above) and continuing throughout the Lease Term,
\nTenant shall pay to Landlord, without prior demand therefor, in advance on the
\nfirst day of each calendar month, the amount set forth as “Base Monthly Rent” in
\nArticle 1 (the “Base Monthly Rent”).<\/p>\n
3.2 ADDITIONAL RENT. Commencing on the Lease Commencement Date (as determined
\npursuant to Paragraph 2.3 above) and continuing throughout the Lease Term, in
\naddition to the Base Monthly Rent and to the extent not required by Landlord to
\nbe contracted for and paid directly by Tenant, Tenant shall pay to Landlord as
\nadditional rent (the “Additional Rent”) the following amounts:<\/p>\n
(a) An amount equal to all Property Operating Expenses (as defined in
\nArticle 13) incurred by Landlord. Payment shall be made by whichever of the
\nfollowing methods (or combination of methods) is (are) from time to time
\ndesignated by Landlord:<\/p>\n
(i) Landlord may forward invoices or bills for such expenses
\nto Tenant, and Tenant shall, no later than ten (10) days prior to the due date,
\npay such invoices or bills and deliver satisfactory evidence of such payment to
\nLandlord, and\/or<\/p>\n
(ii) Landlord may bill to Tenant, on a periodic basis not more
\nfrequently than monthly, the amount of such expenses (or group of expenses) as
\npaid or incurred by Landlord, and Tenant shall pay to Landlord the amount of
\nsuch expenses within thirty (30) days after receipt of a written bill therefor
\nfrom Landlord, and\/or<\/p>\n
(iii) Landlord may deliver to Tenant Landlord’s reasonable
\nestimate of any given expense (such as Landlord’s Insurance Costs or Real
\nProperty Taxes), or group of expenses, which it anticipates will be paid or
\nincurred for the ensuing calendar or fiscal year, as Landlord may determine, and
\nTenant shall pay to Landlord an amount equal to the estimated amount of such
\nexpenses for such year in equal monthly installments during such year with the
\ninstallments of Base Monthly Rent.<\/p>\n
Landlord reserves the right to change from time to time the methods of billing
\nTenant for any given expense or group of expenses or the periodic basis on which
\nsuch expenses are billed.<\/p>\n
(b) Landlord’s share of the consideration received by Tenant upon
\ncertain assignments and sublettings as required by Article 7.<\/p>\n
(c) Any legal fees and costs that Tenant is obligated to pay or
\nreimburse to Landlord pursuant to Article 13; and<\/p>\n
(d) Any other charges or reimbursements due Landlord from Tenant
\npursuant to the terms of this Lease.<\/p>\n
Notwithstanding the foregoing, Landlord may elect by written notice to Tenant
\nto have Tenant pay Real Property Taxes or any Portion thereof directly to the
\napplicable taxing authority, in which case Tenant shall make such payments
\nand deliver satisfactory evidence of payment to Landlord no later than ten
\n(10) days before such Real Property Taxes become delinquent.<\/p>\n
3.3 YEAR-END ADJUSTMENTS. If Landlord shall have elected to bill Tenant for
\nthe Property Operating Expenses (or any group of such expenses) on an
\nestimated basis in accordance with the provisions of Paragraph 3.2(a)(iii)
\nabove, Landlord shall furnish to Tenant within three months following the end
\nof the applicable calendar or fiscal year, as the case may be, a statement
\nsetting forth (i) the amount of such expenses paid or incurred during the
\njust ended calendar or fiscal year, as appropriate, and (ii) the amount that
\nTenant has paid to Landlord for credit against such expenses for such period.
\nIf Tenant shall have paid more than its obligation for such expenses for the
\nstated period, Landlord shall, at its election, either (i) credit the amount
\nof such overpayment toward the next ensuing payment or payments of Additional
\nRent that would otherwise be due or (ii) refund in cash to Tenant the amount
\nof such overpayment. If such year-end statement shall show that Tenant did
\nnot pay its obligation for such expenses in full, then Tenant shall pay to
\nLandlord the amount of such underpayment within ten days from Landlord’s
\nbilling of same to Tenant. The provisions of this Paragraph shall survive the
\nexpiration or sooner termination of this Lease.<\/p>\n
3.4 LATE CHARGE, AND INTEREST ON RENT IN DEFAULT. Tenant acknowledges that
\nthe late payment by Tenant of any monthly installment of Base Monthly Rent or
\nany Additional Rent will cause Landlord to incur certain costs and expenses
\nnot contemplated under this Lease, the exact amounts of which are extremely
\ndifficult or impractical to fix Such costs and expenses will include without
\nlimitation, administration and collection costs and processing and accounting
\nexpenses. Therefor, if any installment of Base Monthly Rent is not received
\nby Landlord from Tenant within five (5) calendar days after the same becomes
\ndue, Tenant shall immediately pay to Landlord a late charge in an amount
\nequal to the amount set forth in Article 1 as the “Late Charge Amount,” and
\nif any Additional Rent is not received by Landlord when the same becomes due,
\nTenant shall immediately pay to Landlord a late charge in an amount equal to
\n5% of the Additional Rent not so paid. Landlord and Tenant agree that this
\nlate charge represents a reasonable estimate of such costs and expenses and
\nis fair compensation to Landlord for the anticipated loss Landlord would
\nsuffer by reason of Tenant’s failure to make timely payment. In no event
\nshall this provision for a late charge be deemed to grant to Tenant a grace
\nperiod or extension of time within which to pay any rental installment or
\nprevent Landlord from exercising any right or remedy available to Landlord
\nupon Tenant’s failure to<\/p>\n
4.<\/p>\n
pay each rental installment due under this Lease when due, including the right
\nto terminate this Lease. If any rent remains delinquent for a period in excess
\nof five (5) calendar days, then, in addition to such late charge, Tenant shall
\npay to Landlord interest on any rent that is not so paid from said tenth day at
\nthe then maximum rate of interest not prohibited or made usurious by Law until
\npaid.<\/p>\n
3.5 PAYMENT OF RENT. Except as specifically provided otherwise in this Lease,
\nall rent shall be paid in lawful money of the United States, without any
\nabatement, reduction or offset for any reason whatsoever, to Landlord at such
\naddress as Landlord may designate from time to time. Tenant’s obligation to
\npay Base Monthly Rent and all Additional Rent shall be appropriately prorated
\nat the commencement and expiration of the Lease Term. The failure by Tenant
\nto pay any Additional Rent as required pursuant to this Lease when due shall
\nbe treated the same as a failure by Tenant to pay Base Monthly Rent when due,
\nand Landlord shall have the same rights and remedies against Tenant as
\nLandlord would have had Tenant failed to pay the Base Monthly Rent when due.<\/p>\n
3.6 PREPAID RENT. Tenant shall, upon execution of this Lease, pay to Landlord
\nthe amount set forth in Article 1 as “First Month’s Prepaid Rent” as
\nprepayment of rent for credit against the first payment of Base Monthly Rent
\ndue hereunder.<\/p>\n
3.7 SECURITY DEPOSIT. Tenant has deposited or shall deposit concurrently with
\nTenant’s execution of this Lease, with Landlord the amount set forth in
\nArticle I as the “Security Deposit” (LESS any unapplied security deposit held
\nby Landlord under the Original Lease, which shall be applied to the amount of
\nthe Security Deposit) as security for the performance by Tenant of the terms
\nof this Lease to be performed by Tenant, and not as prepayment of rent.
\nTenant hereby grants to Landlord a security interest in the Security Deposit,
\nincluding but not limited to replenishments thereof. Landlord may apply such
\nportion or portions of the Security Deposit as are reasonably necessary for
\nthe following purposes: (i) to remedy any default by Tenant in the payment of
\nBase Monthly Rent or Additional Rent or a late charge or interest on
\ndefaulted rent, or any other monetary payment obligation of Tenant under this
\nLease; (ii) to repair damage to the Leased Premises, the Building or the
\nOutside Areas caused or permitted to occur by Tenant; (iii) to clean and
\nrestore and repair the Leased Premises, the Building or the Outside Areas
\nfollowing their surrender to Landlord if not surrendered in the condition
\nrequired pursuant to the provisions of Article 2, and (iv) to remedy any
\nother default of Tenant to the extent permitted by Law including, without
\nlimitation, paying in full on Tenant’s behalf any sums claimed by materialmen
\nor contractors of Tenant to be owing to them by Tenant for work done or
\nimprovements made at Tenant’s request to the Leased Premises. In this regard,
\nTenant hereby waives any restriction on the uses to which the Security
\nDeposit may be applied as contained in Section 1950.7(c) of the California
\nCivil Code and\/or any successor statute. In the event the Security Deposit or
\nany portion thereof is so used, Tenant shall pay to Landlord, promptly upon
\ndemand, an amount in cash sufficient to restore the Security Deposit to the
\nfull original sum. If Tenant fails to promptly restore the Security Deposit
\nand if Tenant shall have paid to Landlord any sums as “Last Month’s Prepaid
\nRent,” Landlord may, in addition to any other remedy Landlord may have under
\nthis Lease, reduce the amount of Tenant’s Last Month’s Prepaid Rent by
\ntransferring all or portions of such Last Month’s Prepaid Rent to Tenant’s
\nSecurity Deposit until such Security Deposit is restored to the amount set
\nforth in Article 1. Landlord shall not be deemed a trustee of the Security
\nDeposit. Landlord may use the Security Deposit in Landlord’s ordinary
\nbusiness and shall not be required to segregate it from Landlord’s general
\naccounts. Tenant shall not b e entitled to any interest on the Security
\nDeposit. If Landlord transfers the Building or the Property during the Lease
\nTerm, Landlord may pay the Security Deposit to any subsequent owner in
\nconformity with the provisions of Section 1950.7 of the California Civil Code
\nand\/or any successor statute, in which event the transferring landlord shall
\nbe released from all liability for the return of the Security Deposit. Tenant
\nspecifically grants to Landlord (and Tenant hereby waives the provisions of
\nCalifornia Civil Code Section 1950.7 to the contrary) a period of ninety days
\nfollowing a surrender of the Leased Premises by Tenant to Landlord within
\nwhich to inspect the Leased Premises, make required restorations and repairs,
\nreceive and verify workmen’s billings therefor, and prepare a final
\naccounting with respect to the Security Deposit. In no event shall the
\nSecurity Deposit or any portion thereof, be considered prepaid rent.<\/p>\n
ARTICLE<\/p>\n
USE OF LEASED PREMISES AND OUTSIDE AREA<\/p>\n
4.1 PERMITTED USE. Tenant shall be entitled to use the Leased Promises solely
\nfor the “Permitted Use” as set forth in Article 1 and for no other purpose
\nwhatsoever. Tenant shall continuously and without interruption use the Leased
\nPremises for such purpose for the entire Lease Term. Any discontinuance of
\nsuch use for a period of sixty consecutive calendar days shall be, at
\nLandlord’s election, a default by Tenant under the terms of this Lease.
\nTenant shall have the right to use the Outside Areas in conjunction with its
\nPermitted Use of the Leased Premises solely for the purposes for which they
\nwere designed and intended and for no other purposes whatsoever.<\/p>\n
4.2 GENERAL LIMITATIONS ON USE. Tenant shall not do or permit anything to be
\ndone in or about the Leased Premises, the Building, the Outside Areas or the
\nProperty which does or could (i) jeopardize the structural integrity of the
\nBuilding or (ii) cause damage to any part of the Leased Premises, the
\nBuilding, the Outside Areas or the Property. Tenant shall not operate any
\nequipment within the Leased Premises which does or could (i) injure, vibrate
\nor shake the Leased Premises or the Building, (ii) damage, overload or impair
\nthe efficient operation of any electrical, plumbing, heating, ventilating or
\nair conditioning systems within or servicing the Leased Premises or the
\nBuilding, or (iii) damage or impair the efficient operation of the sprinkler
\nsystem (if any) within or servicing the Leased Premises or the Building.
\nExcept as set forth in Paragraph 2.1 hereof, Tenant shall not install any
\nequipment or antennas on or make any penetrations of the exterior walls or
\nroof of the Building. Tenant shall not affix any equipment to or make any
\npenetrations or cuts in the floor, ceiling, walls or roof of the Leased
\nPremises. Tenant shall not place any loads upon the floors, walls, ceiling or
\nroof systems which could endanger the structural integrity of the Building or
\ndamage its floors, foundations or supporting structural components. Tenant
\nshall not place any explosive, flammable or harmful fluids or other waste
\nmaterials in the drainage systems of the Leased Premises, the<\/p>\n
5.<\/p>\n
Building, the Outside Areas or the Property. Tenant shall not drain or
\ndischarge any fluids in the landscaped areas or across the paved areas of the
\nProperty. Tenant shall not use any of the Outside Areas for the storage of
\nits materials, supplies, inventory or equipment and all such materials,
\nsupplies, inventory or equipment shall at all times be stored within the
\nLeased Premises. Tenant shall not commit nor permit to be committed any waste
\nin or about the Leased Premises, the Building, the Outside Areas or the
\nProperty.<\/p>\n
4.3 NOISE AND EMISSIONS. All noise generated by Tenant in its use of the
\nLeased Premises shall be confined or muffled so that it does not interfere
\nwith the businesses of or annoy the occupants and\/or users of adjacent
\nproperties. All dust, fumes, odors and other emissions generated by Tenant’s
\nuse of the Leased Premises shall be sufficiently dissipated in accordance
\nwith sound environmental practice and exhausted from the Leased Premises in
\nsuch a manner so as not to interfere with the businesses of or annoy the
\noccupants and\/or users of adjacent properties, or cause any damage to the
\nLeased Premises, the Building, the Outside Areas or the Property or any
\ncomponent part thereof or the property of adjacent property owners.<\/p>\n
4.4 TRASH DISPOSAL. Tenant shall provide trash bins or other adequate garbage
\ndisposal facilities within the trash enclosure areas provided or permitted by
\nLandlord outside the Leased Premises sufficient for the interim disposal of
\nall of its trash, garbage and waste. All such trash, garbage and waste
\ntemporarily stored in such areas shall be stored in such a manner so that it
\nis not visible from outside of such areas, and Tenant shall cause such trash,
\ngarbage and waste to be regularly removed from the Property. Tenant shall
\nkeep the Leased Premises and the Outside Areas in a clean, safe and neat
\ncondition free and clear of all of Tenant’s trash, garbage, waste and\/or
\nboxes, pallets and containers containing same at all times.<\/p>\n
4.5 PARKING. Tenant shall have the non-exclusive use of approximately 157
\nparking spaces on the Property, as shown on the Site Plan attached as Exhibit
\nA. Tenant shall not, at any time, park or permit to be parked any
\nrecreational vehicles, inoperative vehicles or equipment in the Outside Areas
\nor on any portion of the Property. Tenant agrees to assume responsibility for
\ncompliance by its employees and invitees with the parking provisions within
\ncontained herein. If Tenant or its employees park any vehicle within the
\nProperty in violation of these provisions, then Landlord may, upon prior
\nwritten notice to Tenant giving Tenant one (1) day (or any applicable
\nstatutory notice period, if longer than one (1) day) to remove such
\nvehicle(s), in addition to any other remedies Landlord may have under this
\nLease, charge Tenant, as Additional Rent, and Tenant agrees to pay, as
\nAdditional Rent, One Hundred Dollars ($100) per day for each day or partial
\nday that each such vehicle is so parked within the Property. Landlord
\nreserves the right to grant easements and access rights to others for use of
\nthe parking areas on the Property, provided that such grants do not
\nmaterially interfere with Tenant’s use of the parking areas.<\/p>\n
4.6 SIGNS. Tenant shall not place or install on or within any portion of the
\nLeased Premises, the exterior of the Building, the Outside Areas or the
\nProperty any sign, advertisement, banner, placard, or picture which is
\nvisible from the exterior of the Leased Premises. Tenant shall not place or
\ninstall on or within any portion of the Leased Premises, the exterior of the
\nBuilding, the Outside Areas or the Property any business identification sign
\nwhich is visible from the exterior of the Leased Promises until Landlord
\nshall have approved in writing and in its sole discretion the location, size,
\ncontent, design, method of attachment and material to be used in the making
\nof such sign. Any signs installed by Tenant shall not adversely impact the
\nsignage rights of other tenants of the Project. Landlord may remove any signs
\n(which have not been approved in writing by Landlord), advertisements,
\nbanners, placards or pictures so placed by Tenant on or within the Leased
\nPremises, the exterior of the Building, the Outside Areas or the Property and
\ncharge to Tenant the cost of such removal, together with any costs incurred
\nby Landlord to repair any damage caused thereby, including any cost incurred
\nto restore the surface (upon which such sign was so affixed) to its original
\ncondition. Tenant shall remove all of Tenant’s signs, repair any damage
\ncaused thereby, and restore the surface upon which the sign was affixed to
\nits original condition, all to Landlord’s reasonable satisfaction, upon the
\ntermination of this Lease.<\/p>\n
4.7 COMPLIANCE WITH LAWS AND PRIVATE RESTRICTIONS. Tenant shall abide by and
\nshall promptly observe and comply with, at its sole cost and expense, all
\nLaws and Private Restrictions respecting the use and occupancy of the Leased
\nPremises, the Building, the Outside Areas or the Property including, without
\nlimitation, all Laws governing the use and\/or disposal of hazardous
\nmaterials, and shall defend with competent counsel, indemnify and hold
\nLandlord harmless from any claims, damages or liability resulting from
\nTenant’s failure to so abide, observe, or comply. Tenant’s obligations
\nhereunder shall survive the expiration or sooner termination of this Lease.<\/p>\n
4.8 COMPLIANCE WITH INSURANCE REQUIREMENTS. With respect to any insurance
\npolicies required or permitted to be carried by Landlord in accordance with
\nthe provisions of this Lease, Tenant shall not conduct nor permit any other
\nperson to conduct any activities nor keep, store or use (or allow any other
\nperson to keep, store or use) any item or thing within the Leased Premises,
\nthe Building, the Outside Areas or the Property which (i) is prohibited under
\nthe terms of any such policies, (ii) could result in the termination of the
\ncoverage afforded under any of such policies, (iii) could give to the
\ninsurance carrier the right to cancel any of such policies, or (iv) could
\ncause an increase in the rates (over standard rates) charged for the coverage
\nafforded under any of such policies. Tenant shall comply with all
\nrequirements of any insurance company, insurance underwriter, or Board of
\nFire Underwriters which are necessary to maintain, at standard rates, the
\ninsurance coverages carried by either Landlord or Tenant pursuant to this
\nLease.<\/p>\n
4.9 LANDLORD’S RIGHT TO ENTER. Landlord and its agents shall have the right
\nto enter the Leased Premises during normal business hours after giving Tenant
\nreasonable notice and subject to Tenant’s reasonable security measures for
\nthe purpose of (i) inspecting the same; (ii) showing the Leased Premises to
\nprospective purchasers, mortgagees or tenants; (iii) making necessary
\nalterations, additions or repairs; and (iv) performing any of Tenant’s
\nobligations when Tenant has failed to do so. Landlord shall have the right to
\nenter the Leased Premises during normal business hours (or as otherwise
\nagreed), subject to Tenant’s reasonable security measures, for purposes of
\nsupplying any maintenance or services agreed to be supplied by Landlord.
\nLandlord shall have the right to enter the Outside Areas<\/p>\n
6.<\/p>\n
during normal business hours for purposes of (i) inspecting the exterior of
\nthe Building and the Outside Areas; (ii) posting notices of nonresponsibility
\n(and for such purposes Tenant shall provide Landlord at least thirty days’
\nprior written notice of any work to be performed on the Leased Premises); and
\n(iii) supplying any services to be provided by Landlord. Any entry into the
\nLeased Premises or the Outside Areas obtained by Landlord in accordance with
\nthis paragraph shall not under any circumstances be construed or deemed to be
\na forcible or unlawful entry into, or a detainer of, the Leased Premises, or
\nan eviction, actual or constructive of Tenant from the Leased Premises or any
\nportion thereof.<\/p>\n
4.10 USE OF OUTSIDE AREAS. Tenant, in its use of the Outside Areas, shall at
\nall times keep the Outside Areas in a safe condition free and clear of all
\nmaterials, equipment, debris, trash (except within existing enclosed trash
\nareas), inoperable vehicles, and other items which are not specifically
\npermitted by Landlord to be stored or located thereon by Tenant. If, in the
\nopinion of Landlord, unauthorized persons are using any of the Outside Areas
\nby reason of, or under claim of, the express or implied authority or consent
\nof Tenant, then Tenant, upon demand of Landlord, shall restrain, to the
\nfullest extent then allowed by Law, such unauthorized use, and shall initiate
\nsuch appropriate proceedings as may be required to so restrain such use.
\nLandlord reserves the right to grant easements and access rights to others
\nfor use of the Outside Areas and shall not be liable to Tenant for any
\ndiminution in Tenant’s right to use the Outside Areas as a result.<\/p>\n
4.11 ENVIRONMENTAL PROTECTION. Tenant’s obligations under this Paragraph 4.11
\nshall survive the expiration or termination of this Lease.<\/p>\n
(a) As used herein, the term “Hazardous Materials” shall mean any
\ntoxic or hazardous substance, material or waste or any pollutant or
\ninfectious or radioactive material, including but not limited to those
\nsubstances, materials or wastes regulated now or in the future under any of
\nthe following statutes or regulations and any and all of those substances
\nincluded within the definitions of “hazardous substances,” “hazardous
\nmaterials,” “hazardous waste,” “hazardous chemical substance or mixture,”
\n“imminently hazardous chemical substance or mixture,” “toxic substances,”
\n“hazardous air pollutant,” “toxic pollutant,” or “solid waste” in the (a)
\nComprehensive Environmental Response, Compensation and Liability Act of 1990
\n(“CERCLA” or “Superfund”), as amended by the Superfund Amendments and
\nReauthorization Act of 1986 (“SARA”), 42 U.S.C. Section 9601 ET SEQ., (b)
\nResource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. Section
\n6901 ET SEQ., (c) Federal Water Pollution Control Act (“FSPCA”), 33 U.S.C.
\nSection 1251 ET SEQ., (d) Clean Air Act (“CAA”), 42 U.S.C. Section 7401 ET
\nSEQ., (e) Toxic Substances Control Act (“TSCA”), 14 U.S.C. Section 2601 ET
\nSEQ., (f) Hazardous Materials Transporation Act, 49 U.S.C. Section 1801, ET
\nSEQ., (g) Carpenter-Presley-Tanner Hazardous Substance Account Act
\n(“California Superfund”), Cal. Health & Safety Code Section 25300 ET SEQ.,
\n(h) California Hazardous Waste Control Act, Cal. Health & Safety code Section
\n25100 ET SEQ., (i) Porter Cologne Water Quality Control Act (“Porter-Cologne
\nAct”), Cal. Water Code Section 13000 ET SEQ., (j) Hazardous Waste Disposal
\nLand Use Law, Cal. Health & Safety codes Section 25220 ET SEQ., (k) Safe
\nDrinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”), Cal.
\nHealth & Safety code Section 25249.5 ET SEQ., (l) Hazardous Substances
\nUnderground Storage Tank Law, Cal. Health & Safety code Section 25280 ET
\nSEQ., (m) Air Resources Law, Cal. Health & Safety Code Section 39000 ET SEQ.,
\nand (n) regulations promulgated pursuant to said laws or any replacement
\nthereof, or as similar terms are defined in the federal, state and local
\nlaws, statutes, regulations, orders or rules. Hazardous Materials shall also
\nmean any and all other biohazardous wastes and substances, materials and
\nwastes which are, or in the future become, regulated under applicable Laws
\nfor the protection of health or the environment, or which are classified as
\nhazardous or toxic substances, materials or wastes, pollutants or
\ncontaminants, as defined, listed or regulated by any federal, state or local
\nlaw, regulation or order or by common law decision, including, without
\nlimitation, (i) trichloroethylene, tetrachloroethylene, perchloroethylene and
\nother chlorinated solvents, (ii) any petroleum products or fractions thereof,
\n(iii) asbestos, (iv) polychlorinted biphenyls, (v) flammable explosives, (vi)
\nurea formaldehyde, (vii) radioactive materials and waste, and (viii)
\nmaterials and wastes that are harmful to or may threaten human health,
\necology or the environment.<\/p>\n
(b) Notwithstanding anything to the contrary in this Lease, Tenant,
\nat its sole cost, shall comply with all Laws relating to the storage, use and
\ndisposal of Hazardous Materials; PROVIDED, HOWEVER, that Tenant shall not be
\nresponsible for contamination of the Leased Premises by Hazardous Materials
\nexisting as of the date the Leased Premises were originally occupied by
\nTenant (whether before or after the Lease Commencement Date) unless caused by
\nTenant. Tenant shall not store, use or dispose of any Hazardous Materials
\nexcept for those Hazardous Materials listed in a Hazardous Materials
\nmanagement plan (“HMMP”)which Tenant shall deliver to Landlord upon execution
\nof this Lease and update at least annually with Landlord (“Permitted
\nMaterials”) which may be used, stored and disposed of provided (i) such
\nPermitted Materials are used, stored, transported, and disposed of in strict
\ncompliance with applicable laws, (ii) such Permitted Materials shall be
\nlimited to the materials listed on and may be used only in the quantities
\nspecified in the HMMP, and (iii) Tenant shall provide Landlord with copies of
\nall material safety data sheets and other documentation required under
\napplicable Laws in connection with Tenant’s use of Permitted Materials as and
\nwhen such documentation is provided to any regulatory authority having
\njurisdiction, in no event shall Tenant cause or permit to be discharged into
\nthe plumbing or sewage system of the Building or onto the land underlying or
\nadjacent to the Building any Hazardous Materials. Tenant shall be solely
\nresponsible for and shall defend, indemnify, and hold Landlord and its agents
\nharmless from and against all claims, costs and liabilities, including
\nattorneys’ fees and costs, arising out of or in connection with Tenant’s
\nstorage, use and\/or disposal of Hazardous Materials. If the presence of
\nHazardous Materials on the Leased Premises caused or Permitted by Tenant
\nresults in contamination or deterioration of water or soil, then Tenant shall
\npromptly take any and all action necessary to clean up such contamination,
\nbut the foregoing shall in no event be deemed to constitute permission by
\nLandlord to allow the presence of such Hazardous Materials. At any time prior
\nto the expiration of the Lease Term if Tenant has a reasonable basis to
\nsuspect that there has been any release or the presence of Hazardous
\nMaterials in the ground or ground water on the Leased Premises which did not
\nexist upon commencement of the Lease Term, Tenant shall have the right to
\nconduct appropriate tests of water and soil and to deliver to Landlord the
\nresults of such tests to demonstrate that no contamination in excess of
\npermitted levels has occurred as a result of Tenant’s use of the Leased
\nPremises. Tenant shall further be solely responsible for, and shall<\/p>\n
7.<\/p>\n
defend, indemnify, and hold Landlord and its agents harmless from and against
\nall claims, costs and liabilities, including attorneys’ fees and costs, arising
\nout of or in connection with any removal, cleanup and restoration work and
\nmaterials required hereunder to return the Leased Premises and any other
\nproperty of whatever nature to their condition existing prior to the appearance
\nof the Hazardous Materials.<\/p>\n
(c) Upon termination or expiration of the lease, Tenant at its sole
\nexpense shall cause all Hazardous Materials placed in or about the Leased
\nPremises, the Building and\/or the Property by Tenant, its agents, contractors,
\nor invitees, and all installations (whether interior or exterior) made by or on
\nbehalf of Tenant relating to the storage, use, disposal or transportation of
\nHazardous Materials to be removed from the property and transported for use,
\nstorage or disposal in accordance and compliance with all Laws and other
\nrequirements respecting Hazardous Materials used or permitted to be used by
\nTenant. Tenant shall apply for and shall obtain from all appropriate regulatory
\nauthorities (including any applicable fire department or regional water quality
\ncontrol board) all permits, approvals and clearances necessary for the closure
\nof the Property and shall take all other actions as may be required to complete
\nthe closure of the Building and the Property. In addition, prior to vacating the
\nLeased Premises, Tenant shall undertake and submit to Landlord an environmental
\nsite assessment from an environmental consulting company reasonably acceptable
\nto Landlord which site assessment shall evidence Tenant’s compliance with this
\nParagraph 4.11.<\/p>\n
(d) At any time prior to expiration of the Lease term, subject to
\nreasonable prior notice (not less than forty-eight (48) hours) and Tenant’s
\nreasonable security requirements and provided such activities do not
\nunreasonably interfere with the conduct of Tenant’s business at the Leased
\nPremises, Landlord shall have the right to enter in and upon the Property,
\nBuilding and Leased Premises in order to conduct appropriate tests of water
\nand soil to determine whether levels of any Hazardous Materials in excess of
\nlegally permissible levels has occurred as a result of Tenant’s use thereof.
\nLandlord shall furnish copies of all such test results and reports to Tenant
\nand, at Tenant’s option and cost, shall permit split sampling for testing and
\nanalysis by Tenant. Such testing shall be at Tenant’s expense if Landlord has
\na reasonable basis for suspecting and confirms the presence of Hazardous
\nMaterials in the soil or surface or ground water in, on, under, or about the
\nProperty, the Building or the Leased Premises, which has been caused by or
\nresulted from the activities of Tenant, its agents, contractors, or invitees.<\/p>\n
(e) Landlord may voluntarily cooperate in a reasonable manner with the
\nefforts of all governmental agencies in reducing actual or potential
\nenvironmental damage. Tenant shall not be entitled to terminate this Lease or to
\nany reduction in or abatement of rent by reason of such compliance or
\ncooperation. Tenant agrees at all times to cooperate fully with the requirements
\nand recommendations of governmental agencies regulating, or otherwise involved
\nin, the protection of the environment.<\/p>\n
4.12 RULES AND REGULATIONS. In the event Digital Microwave Corporation is no
\nlonger the sole tenant of the Leased Premises, Landlord shall have the right
\nfrom time to time to establish reasonable rules and regulations and\/or
\namendments or additions thereto respecting the use of the Leased Premises and
\nthe Outside Areas for the care and orderly management of the Property. Upon
\ndelivery to Tenant of a copy of such rules and regulations or any amendments
\nor additions thereto, Tenant shall comply with such rules and regulations. A
\nviolation by Tenant of any of such rules and regulations shall constitute a
\ndefault by Tenant under this Lease. If there is a conflict between the rules
\nand regulations and any of the provisions of this Lease, the provisions of
\nthis Lease shall prevail. Landlord shall not be responsible or liable to
\nTenant for the violation of such rules and regulations by any other tenant of
\nthe Property.<\/p>\n
4.13 RESERVATIONS. Landlord reserves the right from time to time to grant,
\nwithout the consent or joinder of Tenant, such easements, rights of way and
\ndedications that Landlord deems necessary, and to cause the recordation of
\nparcel maps and restrictions, so long as such easements, rights of way and
\ndedications do not unreasonably interfere with the use of the Leased Premises
\nby Tenant. Tenant agrees to execute any documents reasonably requested by
\nLandlord to effectuate any such easement rights, dedications, maps or
\nrestrictions.<\/p>\n
ARTICLE 5<\/p>\n
REPAIRS, MAINTENANCE, SERVICES AND UTILITIES<\/p>\n
5.1 REPAIR AND MAINTENANCE. Except in the case of damage to or destruction of
\nthe Leased Premises, the Building, the Outside Areas or the Property caused by
\nan act of God or other peril, in which case the provisions of Article 10 shall
\ncontrol, the parties shall have the following obligations and responsibilities
\nwith respect to the repair and maintenance of the Leased Premises, the Building,
\nthe Outside Areas, and the Property.<\/p>\n
(a) TENANT’S OBLIGATIONS. Tenant shall, at all times during the
\nLease Term and at its sole cost and expense, regularly clean and continuously
\nkeep and maintain in good order, condition and repair the Leased Premises and
\nevery part thereof including, without limiting the generality of the
\nforegoing, (i) all interior walls, floors and ceilings, (ii) all windows,
\ndoors and skylights, (iii) all electrical wiring, conduits, connectors and
\nfixtures, (iv) all plumbing, pipes, sinks, toilets, faucets and drains, (v)
\nall lighting fixtures, bulbs and lamps and all heating ventilating and air
\nconditioning equipment, and (vi) all entranceways to the Leased Premises.
\nTenant, if requested to do so by Landlord, shall hire, at Tenant’s sole cost
\nand expense, a licensed heating, ventilating and air conditioning contractor
\nto regularly and periodically (not less frequently than every three months)
\ninspect and perform required maintenance on the heating, ventilating and air
\nconditioning equipment and systems serving the Leased Premises, or
\nalternatively, Landlord may, at its election, contract in its own name for
\nsuch regular periodic inspections of and maintenance on such heating,
\nventilating and air conditioning equipment and systems and charge to Tenant,
\nas Additional Rent, the cost thereof. Tenant shall, at all times during the
\nLease Term, keep in a clean and safe condition the Outside Areas. Tenant
\nshall regularly and periodically sweep and clean the driveways and parking
\nareas. Tenant shall, at its sole cost and expense, repair all damage to the
\nLeased Premises, the Building,<\/p>\n
8.<\/p>\n
the Outside Areas or the Property caused by the activities of Tenant, its
\nemployees, invitees or contractors promptly following written notice from
\nLandlord to so repair such damages. If Tenant shall fail to perform the
\nrequired maintenance or fail to make repairs required of it pursuant to this
\nparagraph within a reasonable period of time following notice from Landlord
\nto do so, then Landlord may, at its election and without waiving any other
\nremedy it may otherwise have under this Lease or at law, perform such
\nmaintenance or make such repairs and charge to Tenant, as Additional Rent,
\nthe costs so incurred by Landlord for same. All glass within or a part of the
\nLeased Premises, both interior and exterior, is at the sole risk of Tenant
\nand any broken glass shall promptly be replaced by Tenant at Tenant’s expense
\nwith glass of the same kind, size and quality.<\/p>\n
(b) LANDLORD’S OBLIGATION. Landlord shall, at Landlord’s sole cost
\nand expense, maintain in good condition and repair the foundation, roof
\nstructure, load-bearing and exterior walls of the Building (other than
\nexterior painting) (except to the extent any of the foregoing are caused by
\nthe actions or inactions of Tenant, or result from the failure of Tenant to
\ncomply with the terms of the Lease, in which case such maintenance and
\nrepairs shall be made at Tenant’s sole cost and expense). Subject
\nreimbursement pursuant to Article 3 hereof, Landlord shall maintain the
\nOutside Areas and the following base building systems and elements: roof
\nmembrane, standard HVAC, non-distributed plumbing, non-distributed electrical
\nand sprinkler\/ fire suppression systems unless such systems or elements were
\ninstalled by Tenant or are specific to Tenant’s activities or the Improvement
\nWorks. Except as set forth in the first sentence of this Paragraph 5.1(b),
\nLandlord shall charge to Tenant, as Additional Rent pursuant to Article 3,
\nall costs incurred by Landlord for all repairs, replacements and maintenance
\n(including exterior painting) for the Building, the Property and the Outside
\nAreas.<\/p>\n
5.2 UTILITIES. Tenant shall arrange at its sole cost and expense and in its
\nown name, for the supply of gas and electricity to the Leased Premises. In
\nthe event that such services are not separately metered, Tenant shall, at its
\nsole expense, cause such meters to be installed. Landlord shall maintain the
\nwater meter(s) in its own name; provided, however, that if at any time during
\nthe Lease Term Landlord shall require Tenant to put the water service in
\nTenant’s name, Tenant shall do so at Tenant’s sole cost. Tenant shall be
\nresponsible for determining if the local supplier of water, gas and
\nelectricity can supply the needs of Tenant and whether or not the existing
\nwater, gas and electrical distribution systems within the Building and the
\nLeased Premises are adequate for Tenant’s needs. Tenant shall be responsible
\nfor determining if the existing sanitary and storm sewer systems now
\nservicing the Leased Premises and the Property are adequate for Tenant’s
\nneeds. Tenant shall pay all charges for water, gas, electricity and storm and
\nsanitary sewer services as so supplied to the Leased Premises, irrespective
\nof whether or not the services are maintained in Landlord’s or Tenant’s name.<\/p>\n
5.3 SECURITY. Tenant acknowledges that Landlord has not undertaken any duty
\nwhatsoever to provide security for the Leased Premises, the Building, the
\nOutside Areas or the Property and, accordingly, Landlord is not responsible
\nfor the security of same or the protection of Tenant’s property or Tenant’s
\nemployees, invitees or contractors. To the extent Tenant determines that such
\nsecurity or protection services are advisable or necessary, Tenant shall
\narrange for and pay the costs of providing same.<\/p>\n
5.4 ENERGY AND RESOURCE CONSUMPTION. Landlord may voluntarily cooperate in a
\nreasonable manner with the efforts of governmental agencies and\/or utility
\nsuppliers in reducing energy or other resource consumption within the Property.
\nTenant shall not be entitled to terminate this Lease or to any reduction in or
\nabatement of rent by reason of such compliance or cooperation. Tenant agrees at
\nall times to cooperate fully with Landlord and to abide by all reasonable rules
\nestablished by Landlord (i) in order to maximize the efficient operation of the
\nelectrical, heating, ventilating and air conditioning systems and all other
\nenergy or other resource consumption systems with the Property and\/or (ii) in
\norder to comply with the requirements and recommendations of utility suppliers
\nand governmental agencies regulating the consumption of energy and\/or other
\nresources.<\/p>\n
5.5 LIMITATION OF LANDLORD’S LIABILITY. Landlord shall not be liable to Tenant
\nfor injury to Tenant, its employees, agents, invitees or contractors, damage to
\nTenant’s property or loss of Tenant’s business or profits, nor shall Tenant be
\nentitled to terminate this Lease or to any reduction in or abatement of rent by
\nreason of (i) Landlord’s failure to provide security services or systems within
\nthe Property for the protection of the Leased Premises, the Building or the
\nOutside Areas, or the protection of Tenant’s property or Tenant’s employees,
\ninvitees, agents or contractors, or (ii) Landlord’s failure to perform any
\nmaintenance or repairs to the Leased Premises, the Building, the Outside Areas
\nor the Property until Tenant shall have first notified Landlord, in writing, of
\nthe need for such maintenance or repairs, and then only after Landlord shall
\nhave had a reasonable period of time following its receipt of such notice within
\nwhich to perform such maintenance or repairs, or (iii) any failure,
\ninterruption, rationing or other curtailment in the supply of water, electric
\ncurrent, gas or other utility service to the Leased Premises, the Building, the
\nOutside Areas or the Property from whatever cause (other than Landlord’s sole
\nactive negligence or willful misconduct), or (iv) the unauthorized intrusion or
\nentry into the Leased Premises by third parties (other than Landlord).<\/p>\n
ARTICLE 6<\/p>\n
ALTERATIONS AND IMPROVEMENTS<\/p>\n
6.1 BY TENANT. Tenant shall not make any alterations to or modifications of the
\nLeased Premises or construct any improvements within the Leased Premises until
\nLandlord shall have first approved, in writing, the plans and specifications
\ntherefor, which approval may be withheld in Landlord’s sole discretion.
\nLandlord’s approval shall be deemed given if not denied by Landlord in a written
\nnotice to Tenant delivered within fifteen (15) days following receipt of
\nTenant’s written request. Tenant’s written request shall also contain a request
\nfor Landlord to elect whether or not it will require Tenant to remove the
\nsubject alterations, modifications or improvements at the expiration or earlier
\ntermination of this Lease. If such additional request is not included, Landlord
\nmay make such election at the expiration or earlier termination of this Lease
\n(and for purposes of Tenant’s removal obligations set forth in Paragraph 2.6
\nabove, Landlord shall be deemed to have made the election at the time the
\nalterations,<\/p>\n
9.<\/p>\n
modifications or improvements were completed). Landlord shall have the right to
\nrequire Tenant to remove all nonstandard Tenant Improvements and other
\nalterations, modifications and improvements to the Leased Premises, including
\nwithout limitation, raised floors, additional interior offices, cabling (all
\nsuch non-standard modifications, alterations and improvements are referred to
\nherein as “Specialized Improvements”). All such modifications, alterations or
\nimprovements, once so approved, shall be made, constructed or installed by
\nTenant at Tenant’s expense (including all permit fees and governmental charges
\nrelated thereto), using a licensed contractor first approved by Landlord, in
\nsubstantial compliance with the Landlord-approved plans and specifications
\ntherefor. All work undertaken by Tenant shall be done in accordance with all
\nLaws and in a good and workmanlike manner using new materials of good quality.
\nTenant shall not commence the making of any such modifications or alterations or
\nthe construction of any such improvements until (i) all required governmental
\napprovals and permits shall have been obtained, (ii) all requirements regarding
\ninsurance imposed by this Lease have been satisfied, (iii) Tenant shall have
\ngiven Landlord at least five (5) business days prior written notice of its
\nintention to commence such work so that Landlord may post and file notices of
\nnon-responsibility, and (iv) if requested by Landlord, Tenant shall have
\nobtained contingent liability and broad form builder’s risk insurance in an
\namount satisfactory to Landlord in its reasonable discretion to cover any perils
\nrelating to the proposed work not covered by insurance carried by Tenant
\npursuant to Article 9. In no event shall Tenant make any modification,
\nalterations or improvements whatsoever to the Outside Areas or the exterior or
\nstructural components of the Building including, without limitation, any cuts or
\npenetrations in the floor, roof or exterior walls of the Leased Premises. As
\nused in this Article, the term “modifications, alterations and\/or improvements”
\nshall include, without limitation, the installation of additional electrical
\noutlets, overhead lighting fixtures, drains, sinks, partitions, doorways, or the
\nlike. Notwithstanding the foregoing, Tenant, without Landlord’s prior written
\nconsent, shall be permitted to make non-structural alterations to the Building,
\nprovided that: (a) such alterations do not exceed $25,000 individually, (b)
\nTenant shall timely provide Landlord the notice required pursuant to Paragraph
\n4.9 above, (c) Tenant shall notify Landlord in writing within thirty (30) days
\nof completion of the alteration and deliver to Landlord a set of the plans and
\nspecifications therefor, either “as built” or marked to show construction
\nchanges made, (d) Tenant shall, upon Landlord’s request, remove the alteration
\nat the termination of the Lease and restore the Leased Premises to their
\ncondition prior to such alteration, and (e) Tenant shall otherwise comply with
\nthe terms of this Article 6 regarding alterations and improvements.<\/p>\n
6.2 OWNERSHIP OF IMPROVEMENTS. All modifications, alterations and improvements
\nmade or added to the Leased Premises by Tenant (other than Tenant’s inventory,
\nequipment, movable furniture, wall decorations and trade fixtures) shall be
\ndeemed real property and a part of the Leased Premises, but shall remain the
\nproperty of Tenant during the Lease, and Tenant hereby covenants and agrees not
\nto grant a security interest in any such items to any party other than
\nLandlord. Any such modifications, alterations or improvements, once completed,
\nshall not be altered or removed from the Leased Premises during the Lease Term
\nwithout Landlord’s written approval first obtained in accordance with the
\nprovisions of Paragraph 6.1 above. At the expiration or sooner termination of
\nthis Lease, all such modifications, alterations and improvements other than
\nTenant’s inventory, equipment, movable furniture, wall decorations and trade
\nfixtures, shall automatically become the property of Landlord and shall be
\nsurrendered to Landlord as part of the Leased Premises as required pursuant to
\nArticle 2, unless Landlord shall require Tenant to remove any of such
\nmodifications, alterations or improvements in accordance with the provisions of
\nArticle 2, in which case Tenant shall so remove same. Landlord shall have no
\nobligations to reimburse Tenant for all or any portion of the cost or value of
\nany such modifications, alterations or improvements so surrendered to Landlord.
\nAll modifications, alterations or improvements which are installed or
\nconstructed on or attached to the Leased Premises by Landlord and\/or at
\nLandlord’s expense shall be deemed real property and a part of the Leased
\nPremises and shall be property of Landlord. All lighting, plumbing,
\nelectrical, heating, ventilating and air conditioning fixtures, partitioning,
\nwindow coverings, wall coverings and floor coverings installed by Tenant shall
\nbe deemed improvements to the Leased Premises and not trade fixtures of Tenant.<\/p>\n
6.3 ALTERATIONS REQUIRED BY LAW. Tenant shall make all modifications,
\nalterations and improvements to the Leased Premises, at its sole cost, that are
\nrequired by any Law because of (i) Tenant’s use or occupancy of the Leased
\nPremises, the Building, the Outside Areas or the Property, (ii) Tenant’s
\napplication for any permit or governmental approval, or (iii) Tenant’s making of
\nany modifications, alterations or improvements to or within the Leased Premises.
\nIf Landlord shall, at any time during the Lease Term, be required by any
\ngovernmental authority to make any modifications, alterations or improvements to
\nthe Building or the Property, the cost incurred by Landlord in making such
\nmodifications, alterations or improvements, including interest at a rate equal
\nto the greater of (a) 12%, or (b) the sum of that rate quoted by Wells Fargo
\nBank, N.T. & S.A. from time to time as its prime rate, plus two percent (2%)
\n(“Wells Prime Plus Two”) (but in no event more than the maximum rate of interest
\nnot prohibited or made usurious), shall be amortized by Landlord over the
\nuseful life of such modifications, alterations or improvements, as determined in
\naccordance with generally accepted accounting principles, and the monthly
\namortized cost of such modifications, alterations and improvements as so
\namortized shall be considered a Property Maintenance Cost.<\/p>\n
6.4 LIENS. Tenant shall keep the Property and every part thereof free from any
\nlien, and shall pay when due all bills arising out of any work performed,
\nmaterials furnished, or obligations incurred by Tenant, its agents, employees or
\ncontractors relating to the Property. If any such claim of lien is recorded
\nagainst Tenant’s interest in this Lease, the Property or any part thereof,
\nTenant shall bond against, discharge or otherwise cause such lien to be entirely
\nreleased within ten days after the same has been recorded. Tenant’s failure to
\ndo so shall be conclusively deemed a material default under the terms of this
\nLease.<\/p>\n
10.<\/p>\n
ARTICLE 7<\/p>\n
ASSIGNMENT AND SUBLETTING BY TENANT<\/p>\n
7.1 BY TENANT. Tenant shall not sublet the Leased Premises or any portion
\nthereof or assign its interest in this Lease, whether voluntarily or by
\noperation of Law, without Landlord’s prior written consent which shall not be
\nunreasonably withheld. Any attempted subletting or assignment without Landlord’s
\nprior written consent, at Landlord’s election, shall constitute a default by
\nTenant under the terms of this Lease. The acceptance of rent by Landlord from
\nany person or entity other than Tenant, or the acceptance of rent by Landlord
\nfrom Tenant with knowledge of a violation of the provisions of this paragraph,
\nshall not be deemed to be a waiver by Landlord of any provision of this Article
\nor this Lease or to be a consent to any subletting by Tenant or any assignment
\nof Tenant’s interest in this Lease. Without limiting the circumstances in which
\nit may be reasonable for Landlord to withhold its consent to an assignment or
\nsubletting, Landlord and Tenant acknowledge that it shall be reasonable for
\nLandlord to withhold its consent in the following instances:<\/p>\n
(a) the proposed assignee or sublessee is a governmental agency;<\/p>\n
(b) in Landlord’s reasonable judgment, the use of the Leased Premises
\nby the proposed assignee or sublessee would involve occupancy by other than for
\na Permitted Use, would entail any alterations which would lessen the value of
\nthe leasehold improvements in the Leased Premises, or would require increased
\nservices by Landlord;<\/p>\n
(c) in Landlord’s reasonable judgment, the financial worth of the
\nproposed assignee does not meet the credit standards applied by Landlord;<\/p>\n
(d) the proposed assignee or sublessee (or any of its affiliates) has
\nbeen in material default under a lease, has been in litigation with a
\nprevious landlord, or in the ten years prior to the assignment or sublease
\nhas filed for bankruptcy protection, has been the subject of an involuntary
\nbankruptcy, or has been adjudged insolvent;<\/p>\n
(e) Landlord has experienced a previous default by or is in litigation
\nwith the proposed assignee or sublessee;<\/p>\n
(f) in Landlord’s reasonable judgment, the Leased Premises, or the
\nrelevant part thereof, will be used in a manner that will violate any negative
\ncovenant as to use contained in this Lease;<\/p>\n
(g) the use of the Leased Premises by the proposed assignee or
\nsublessee will violate any applicable law, ordinance or regulation;<\/p>\n
(h) the proposed assignee or sublessee is, as of the date of this
\nLease, a tenant in the Building;<\/p>\n
(i) the proposed assignment or sublease fails to include all of the
\nterms and provisions required to be included therein pursuant to this Article 7;<\/p>\n
(j) Tenant is in default of any obligation of Tenant under this Lease,
\nor Tenant has defaulted under this Lease on three or more occasions during the
\n12 months preceding the date that Tenant shall request consent; or<\/p>\n
(k) in the case of a subletting of less than the entire Leased
\nPremises, if the subletting would result in the division of the Leased Premises
\ninto more than three subparcels or would require improvements to be made outside
\nof the Leased Premises.<\/p>\n
7.2 MERGER, REORGANIZATION, OR SALE OF ASSETS. Any dissolution, merger,
\nconsolidation or other reorganization of Tenant, or the sale or other transfer
\nin the aggregate over the Lease Term of a controlling percentage of the capital
\nstock of Tenant, or the sale or transfer of all or a substantial portion of the
\nassets of Tenant, shall be deemed a voluntary assignment of Tenant’s interest in
\nthis Lease. The phrase “controlling percentage” means the ownership of and the
\nright to vote stock possessing more than fifty percent of the total combined
\nvoting power of all classes of Tenant’s capital stock issued, outstanding and
\nentitled to vote for the election of directors. If Tenant is a partnership, a
\nwithdrawal or change, voluntary, involuntary or by operation of Law, of any
\ngeneral partner, or the dissolution of the partnership, shall be deemed a
\nvoluntary assignment of Tenant’s interest in this Lease. Upon Landlord’s request
\nfrom time to time, Tenant shall promptly provide Landlord with a statement
\ncertified by the Tenant’s chief operating officer, which shall provide the
\nfollowing information: (a) the names of all of Tenant’s shareholders and their
\nownership interests at the time thereof, provided Tenant’s shares are not
\npublicly traded; (b) the state in which Tenant is incorporated; (c) the location
\nof Tenant’s principal place of business; (d) information regarding a material
\nchange in the corporate structure of Tenant, including, without limitation, a
\nmerger or consolidation; and (e) any other information regarding Tenant’s
\nownership that Landlord reasonably requests. Notwithstanding the foregoing,
\nTenant may, without Landlord’s prior written consent, sublet the Leased
\nPremises or assign this Lease to a subsidiary, affiliate, division, corporation
\nor joint venture controlling, controlled by or under common control with Tenant,
\nprovided that Tenant shall remain primarily liable under the Lease<\/p>\n
7.3 LANDLORD’S ELECTION. If Tenant shall desire to assign its interest under the
\nLease or to sublet the Leased Premises, Tenant must first notify Landlord, in
\nwriting, of its intent to so assign or sublet, at least thirty (30) days in
\nadvance of the date it intends to so assign its interest in this Lease or sublet
\nthe Leased Premises but not sooner than one hundred eighty days in advance of
\nsuch date, specifying in detail the terms of such proposed assignment or
\nsubletting, including the name of the proposed assignee or sublessee, the
\nproperty assignee’s or sublessee’s intended<\/p>\n
11.<\/p>\n
use of the Leased Premises, current financial statements (including a balance
\nsheet, income statement and statement of cash flow, all prepared in accordance
\nwith generally accepted accounting principles) of such proposed assignee or
\nsublessee, the form of documents to be used in effectuating such assignment or
\nsubletting and such other information as Landlord may reasonably request.
\nLandlord shall have a period of ten (10) business days following receipt of such
\nnotice and the required information within which to do one of the following: (i)
\nconsent to such requested assignment or subletting subject to Tenant’s
\ncompliance with the conditions set forth in Paragraph 7.4 below, or (ii) refuse
\nto so consent to such requested assignment or subletting, provided that such
\nconsent shall not be unreasonably refused, or (iii) terminate this Lease as to
\nthe portion of the Leased Premises that is the subject of the proposed
\nassignment or subletting. During such ten (10) business day period, Tenant
\ncovenants and agrees to supply to Landlord, upon request, all necessary or
\nrelevant information which Landlord may reasonably request respecting such
\nproposed assignment or subletting and\/or the proposed assignee or sublessee.<\/p>\n
7.4 CONDITIONS TO LANDLORD’S CONSENT. If Landlord elects to consent, or shall
\nhave been ordered to so consent by a court of competent jurisdiction, to such
\nrequested assignment or subletting, such consent shall be expressly conditioned
\nupon the occurrence of each of the conditions below set forth, and any purported
\nassignment or subletting made or ordered prior to the full and complete
\nsatisfaction of each of the following conditions shall be void and, at the
\nelection of Landlord, which election may be exercised at any time following such
\na purported assignment or subletting but prior to the satisfaction of each of
\nthe stated conditions, shall constitute a material default by Tenant under this
\nLease until cured by satisfying in full each such condition by the assignee or
\nsublessee. The conditions are as follows:<\/p>\n
(a) Landlord having approved in form and substance the assignment or
\nsublease agreement and any ancillary documents, which approval shall not be
\nunreasonably withheld by Landlord if the requirements of this Article 7 are
\notherwise complied with.<\/p>\n
(b) Each such sublessee or assignee having agreed, in writing
\nsatisfactory to Landlord and its counsel and for the benefit of Landlord, to
\nassume, to be bound by, and to perform the obligations of this Lease to be
\nperformed by Tenant which relate to space being subleased.<\/p>\n
(c) Tenant having fully and completely performed all of its obligations
\nunder the terms of this Lease through and including the date of such assignment
\nor subletting.<\/p>\n
(d) Tenant having reimbursed to Landlord all reasonable costs and
\nreasonable attorneys’ fees incurred by Landlord in conjunction with the
\nprocessing and documentation of any such requested subletting or assignment.<\/p>\n
(e) Tenant having delivered to Landlord a complete and fully-executed
\nduplicate original of such sublease agreement or assignment agreement (as
\napplicable) and all related agreements.<\/p>\n
(f) Tenant having paid, or having agreed in writing to pay as to future
\npayments, to Landlord fifty percent (50%) of all assignment consideration or
\nexcess rentals to be paid to Tenant or to any other on Tenant’s behalf or for
\nTenant’s benefit for such assignment or subletting as follows:<\/p>\n
(i) If Tenant assigns its interest under this Lease and if all
\nor a portion of the consideration for such assignment is to be paid by the
\nassignee at the time of the assignment, that Tenant shall have paid to Landlord
\nand Landlord shall have received an amount equal to fifty percent (50%) of the
\nassignment consideration so paid or to be paid (whichever is the greater) at the
\ntime of the assignment by the assignee; or<\/p>\n
(ii) If Tenant assigns its interest under this Lease and if
\nTenant is to receive all or a portion of the consideration for such assignment
\nin future installments, that Tenant and Tenant’s assignee shall have entered
\ninto a written agreement with and for the benefit of Landlord satisfactory to
\nLandlord and its counsel whereby Tenant and Tenant’s assignee jointly agree to
\npay to Landlord an amount equal to fifty percent (50%) of all such future
\nassignment consideration installments to be paid by such assignee as and when
\nsuch assignment consideration is so paid.<\/p>\n
(iii) If Tenant subleases the Leased Premises, that Tenant and
\nTenant’s sublessee shall have entered into a written agreement with and for the
\nbenefit of Landlord satisfactory to Landlord and its counsel whereby Tenant and
\nTenant’s sublessee jointly agree to pay to Landlord fifty percent (50%) of all
\nexcess rentals to be paid by such sublessee as and when such excess rentals are
\nso paid.<\/p>\n
7.5 ASSIGNMENT CONSIDERATION AND EXCESS RENTALS DEFINED. For purposes of this
\nArticle, including any amendment to this Article by way of addendum or other
\nwriting, the term “assignment consideration” shall mean all consideration to be
\npaid by the assignee to Tenant or to any other party on Tenant’s behalf or for
\nTenant’s benefit as consideration for such assignment, after deduction for
\nreasonable leasing commissions actually paid by Tenant but without deduction for
\nany other costs or expenses (including, without limitation, tenant improvements,
\ncapital improvements, building upgrades, permit fees, attorneys’ fees, and
\nother consultants’ fees) incurred by Tenant in connection with such assignment,
\nand the term “excess rentals” shall mean all consideration to be paid by the
\nsublessee to Tenant or to any other party on Tenant’s behalf or for Tenant’s
\nbenefit for the sublease of all or any portion of the Leased Premises in excess
\nof the rent due to Landlord under the terms of this Lease for the portion so
\nsubleased for the same period, after deduction for reasonable leasing
\ncommissions actually paid by Tenant but without deduction for any other costs or
\nexpenses (including, without limitation, tenant improvements, capital
\nimprovements, building upgrades, permit fees, attorneys’ fees, and other
\nconsultants’ fees) incurred by Tenant in connection with such sublease. Tenant
\nagrees that the portion of any assignment consideration and\/or excess rentals<\/p>\n
12.<\/p>\n
arising from any assignment or subletting by Tenant which is to be paid to
\nLandlord pursuant to this Article now is and shall then be the property of
\nLandlord and not the property of Tenant.<\/p>\n
7.6 PAYMENTS. All payments required by this Article to be made to Landlord shall
\nbe made in cash in full as and when they become due. At the time Tenant,
\nTenant’s assignee or sublessee makes each such payment to Landlord, Tenant or
\nTenant’s assignee or sublessee, as the case may be, shall deliver to Landlord an
\nitemized statement in reasonable detail showing the method by which the amount
\ndue Landlord was calculated and certified by the party making such payment as
\ntrue and correct.<\/p>\n
7.7 GOOD FAITH. The rights granted to Tenant by this Article are granted in
\nconsideration of Tenant’s express covenant that all pertinent allocations which
\nare made by Tenant between the rental value of the Leased Premises and the value
\nof any of Tenant’s personal property which may be conveyed or leased generally
\nconcurrently with and which may reasonably be considered a part of the same
\ntransaction as the permitted assignment or subletting shall be made fairly,
\nhonestly and in good faith. If Tenant shall breach this covenant, Landlord may
\nimmediately declare Tenant to be in default under the terms of this Lease and
\nterminate this Lease and\/or exercise any other rights and remedies Landlord
\nwould have under the terms of this Lease in the case of a material default by
\nTenant under this Lease.<\/p>\n
7.8 EFFECT OF LANDLORD’S CONSENT. No subletting or assignment, even with the
\nconsent of Landlord, shall relieve Tenant of its personal and primary obligation
\nto pay rent and to perform all of the other obligations to be performed by
\nTenant hereunder. Consent by Landlord to one or more assignments of Tenant’s
\ninterest in this Lease or to one or more sublettings of the Leased Premises
\nshall not be deemed to be a consent to any subsequent assignment or subletting.
\nIf Landlord shall have been ordered by a court of competent jurisdiction to
\nconsent to a requested assignment or subletting, or such an assignment or
\nsubletting shall have been ordered by a court of competent jurisdiction over the
\nobjection of Landlord, such assignment or subletting shall not be binding
\nbetween the assignee (or sublessee) and Landlord until such time as all
\nconditions set forth in Paragraph 7.4 above have been fully satisfied (to the
\nextent not then satisfied) by the assignee or sublessee, including, without
\nlimitation, the payment to Landlord of all agreed assignment considerations
\nand\/or excess rentals then due Landlord.<\/p>\n
ARTICLE 8<\/p>\n
LIMITATION ON LANDLORD’S LIABILITY AND INDEMNITY<\/p>\n
8.1 LIMITATION ON LANDLORD’S LIABILITY AND RELEASE. Landlord shall not be liable
\nto Tenant for, and Tenant hereby releases Landlord and its partners, principals,
\nmembers, officers, agents, employees, lenders, attorneys, and consultants from,
\nany and all liability, whether in contract, tort or on any other basis, for any
\ninjury to or any damage sustained by Tenant, Tenant’s agents, employees,
\ncontractors or invitees, any damage to Tenant’s property, or any loss to
\nTenant’s business, loss of Tenant’s profits or other financial loss of Tenant
\nresulting from or attributable to the condition of, the management of, the
\nrepair or maintenance of, the protection of, the supply of services or utilities
\nto, the damage in or destruction of the Leased Premises, the Building, the
\nProperty or the Outside Areas, including without limitation (i) the failure,
\ninterruption, rationing or other curtailment or cessation in the supply of
\nelectricity, water, gas or other utility service to the Property, the Building
\nor the Leased Premises; (ii) the vandalism or forcible entry into the Building
\nor the Leased Premises; (iii) the penetration of water into or onto any portion
\nof the Leased Premises; (iv) the failure to provide security and\/or adequate
\nlighting in or about the Property, the Building or the Leased Premises, (v) the
\nexistence of any design or construction defects within the Property, the
\nBuilding or the Leased Premises; (vi) the failure of any mechanical systems to
\nfunction properly (such as the HVAC systems); (vii) the blockage of access to
\nany portion of the Property, the Building or the Leased Premises, except that
\nTenant does not so release Landlord from such liability to the extent such
\ndamage was proximately caused by Landlord’s active negligence, willful
\nmisconduct, or Landlord’s failure to perform an obligation expressly undertaken
\npursuant to this Lease after a reasonable period of time shall have lapsed
\nfollowing receipt of written notice from Tenant to so perform such obligation.
\nIn this regard, Tenant acknowledges that it is fully apprised of the provisions
\nof Law relating to releases, and particularly to those provisions contained in
\nSection 1542 of the California Civil Code which reads as follows:<\/p>\n
“A general release does not extend to claims which the creditor does
\n not know or suspect to exist in his favor at the time of executing the
\n release, which if known by him must have materially affected his
\n settlement with the debtor.”<\/p>\n
Notwithstanding such statutory provision, and for the purpose of implementing a
\nfull and complete release and discharge, Tenant hereby (i) waives the benefit of
\nsuch statutory provision and (ii) acknowledges that, subject to the exceptions
\nspecifically set forth herein, the release and discharge set forth in this
\nparagraph is a full and complete settlement and release and discharge of all
\nclaims and is intended to include in its effect, without limitation, all claims
\nwhich Tenant, as of the date hereof, does not know of or suspect to exist in its
\nfavor. <\/p>\n
8.2 TENANT’S INDEMNIFICATION OF LANDLORD. Tenant shall defend with competent
\ncounsel satisfactory to Landlord any claims made or legal actions filed or
\nthreatened against Landlord with respect to the violation of any Law, or the
\ndeath, bodily injury, personal injury, property damage, or interference with
\ncontractual or property rights suffered by any third party occurring within the
\nLeased Premises or resulting from Tenant’s use or occupancy of the Leased
\nPremises, the Building or the Outside Areas, or resulting from Tenant’s
\nactivities in or about the Leased Premises, the Building, the Outside Areas or
\nthe Property, and Tenant shall indemnify and hold Landlord, Landlord’s partners,
\nprincipals, members, employees, agents and contractors harmless from any loss
\nliability, penalties, or expense whatsoever (including any loss attributable to
\nvacant space which otherwise would have been leased, but for such activities)
\nresulting therefrom, except to the extent proximately caused by the active
\nnegligence or willful misconduct of Landlord. This indemnity agreement shall
\nsurvive the expiration or sooner termination of this Lease.<\/p>\n
13.<\/p>\n
ARTICLE 9<\/p>\n
INSURANCE<\/p>\n
9.1 TENANT’S INSURANCE. Tenant shall maintain insurance complying with all of
\nthe following:<\/p>\n
(a) Tenant shall procure, pay for and keep in full force and effect, at
\nall times during the Lease Term, the following:<\/p>\n
(i) Commercial general liability insurance insuring Tenant
\nagainst liability for personal injury, bodily injury, death and damage to
\nproperty occurring within the Leased Premises, or resulting from Tenant’s use or
\noccupancy of the Leased Premises, the Building, the Outside Areas or the
\nProperty, or resulting from Tenant’s activities in or about the Leased Premises
\nor the Property, with coverage in an amount equal to Tenant’s Required Liability
\nCoverage (as set forth in Article 1), which insurance shall contain “blanket
\ncontractual liability” and “broad form property damage” endorsements insuring
\nTenant’s performance of Tenant’s obligations to indemnify Landlord as contained
\nin this Lease.<\/p>\n
(ii) Fire and property damage insurance in “special form”
\ncoverage insuring Tenant against loss from physical damage to Tenant’s personal
\nproperty, inventory, trade fixtures and improvements within the Leased Premises
\nwith coverage for the full actual replacement cost thereof;<\/p>\n
(iii) Business income\/extra expense insurance sufficient to
\npay Base Monthly Rent and Additional Rent for a period of not less than twelve
\n(12) months;<\/p>\n
(iv) Plate glass insurance, at actual replacement cost;<\/p>\n
(v) Boiler and machinery insurance, to limits sufficient to
\nrestore the Building;<\/p>\n
(vi) Product liability insurance (including, without
\nlimitation, if food and\/or beverages are distributed, sold and\/or consumed
\nwithin the Leased Premises, to the extent obtainable, coverage for liability
\narising out of the distribution, sale, use or consumption of food and\/or
\nbeverages (including alcoholic beverages, if applicable) at the Leased Premises
\nfor not less than Tenant’s Required Liability Coverage (as set forth in Article
\n1);<\/p>\n
(vii) Workers’ compensation insurance (statutory coverage)
\nwith employer’s liability in amounts not less than $1,000,000 insurance
\nsufficient to comply with all laws; and<\/p>\n
(viii) With respect to making of any alterations or
\nmodifications or the construction of improvements or the like undertaken by
\nTenant, course of construction, commercial general liability, automobile
\nliability and workers’ compensation (to be carried by Tenant’s contractor), in
\nan amount and with coverage reasonably satisfactory to Landlord.<\/p>\n
(b) Each policy of liability insurance required to be carried by Tenant
\npursuant to this paragraph or actually carried by Tenant with respect to the
\nLeased Premises or the Property: (i) shall, except with respect to insurance
\nrequired by subparagraph (a)(vii) above, name Landlord, and such others as are
\ndesignated by Landlord, as additional insureds; (ii) shall be primary insurance
\nproviding that the insurer shall be liable for the full amount of the loss, up
\nto and including the total amount of liability set forth in the declaration of
\ncoverage, without the right of contribution from or prior payment by any other
\ninsurance coverage of Landlord (iii) shall be in a form satisfactory to
\nLandlord; (iv) shall be carried with companies reasonably acceptable to Landlord
\nwith Best’s ratings of at least A and XI; (v) shall provide that such policy
\nshall not be subject to cancellation, lapse or change except after at least
\nthirty (30) days prior written notice to Landlord, and (vi) shall contain a
\nso-called “severability” or “cross liability” endorsement. Each policy of
\nproperty insurance maintained by Tenant with respect to the Leased Premises or
\nthe Property or any property therein (i) shall provide that such policy shall
\nnot be subject to cancellation, lapse or change except after at least thirty
\n(30) days prior written notice to Landlord and (ii) shall contain a waiver
\nand\/or a permission to waive by the insurer of any right of subrogation against
\nLandlord, its partners, principals, members, officers, employees, agents and
\ncontractors, which might arise by reason of any payment under such policy or by
\nreason of any act or omission of Landlord, its partners, principals, members,
\nofficers, employees, agents and contractors.<\/p>\n
(c) Prior to the time Tenant or any of its contractors enters the
\nLeased Premises, Tenant shall deliver to Landlord, with respect to each
\npolicy of insurance required to be carried by Tenant pursuant to this
\nArticle, a copy of such policy (appropriately authenticated by the insurer as
\nhaving been issued, premium paid) or a certificate of the insurer certifying
\nin form satisfactory to Landlord that a policy has been issued, premium paid,
\nproviding the coverage required by this Paragraph and containing the
\nprovisions specified herein. With respect to each renewal or replacement of
\nany such insurance, the requirements of this Paragraph must be complied with
\nnot less than thirty days prior to the expiration or cancellation of the
\npolicies being renewed or replaced. Landlord may, at any time and from time
\nto time, inspect and\/or copy any and all insurance certificates required to
\nbe carried by Tenant pursuant to this Article. If Landlord’s Lender,
\ninsurance broker, advisor or counsel reasonably determines at any time that
\nthe amount of coverage set forth in Paragraph 9.1(a) for any policy of
\ninsurance Tenant is required to carry pursuant to this Article is not
\nadequate, then Tenant shall increase the amount of coverage for such
\ninsurance to such greater amount as Landlord’s Lender, insurance broker,
\nadvisor or counsel reasonably deems adequate.<\/p>\n
9.2 LANDLORD’S INSURANCE. With respect to insurance maintained by Landlord:<\/p>\n
14.<\/p>\n
(a) Landlord shall maintain, as the minimum coverage required of it by
\nthis Lease, fire and property damage insurance in so-called special form
\ncoverage insuring Landlord (and such others as Landlord may designate) against
\nloss from physical damage to the Building with coverage of not less than one
\nhundred percent (100%) of the full actual replacement cost thereof and against
\nloss of rents for a period of not less than six months. Such fire and property
\ndamage insurance, at Landlord’s election but without any requirements on
\nLandlord’s behalf to do so, (i) may be written in so-called “all risk” form,
\nexcluding only those perils commonly excluded from such coverage by Landlord’s
\nthen property damage insurer; (ii) may provide coverage for physical damage to
\nthe improvements so insured for up to the entire full actual replacement cost
\nthereof; (iii) may be endorsed to cover loss or damage caused by any additional
\nperils against which Landlord may elect to insure, including earthquake and\/or
\nflood; and\/or (iv) may provide coverage for loss of rents for a period of up to
\ntwelve months. Landlord shall not be required to cause such insurance to cover
\nany of Tenant’s personal property, inventory, and trade fixtures, or any
\nmodifications, alterations or improvements made or constructed by Tenant to or
\nwithin the Leased Premises. Landlord shall use commercially reasonable efforts
\nto obtain such insurance at competitive rates.<\/p>\n
(b) Landlord shall maintain commercial general liability insurance
\ninsuring Landlord (and such others as are designated by Landlord) against
\nliability for personal injury, bodily injury, death, and damage to property
\noccurring in, on or about, or resulting from the use or occupancy of the
\nProperty, or any portion thereof, with combined single limit coverage of at
\nleast Ten Million Dollars ($10,000,000). Landlord may carry such greater
\ncoverage as Landlord or Landlord’s Lender, insurance broker, advisor or counsel
\nmay from time to time determine is reasonably necessary for the adequate
\nprotection of Landlord and the Property.<\/p>\n
(c) Landlord may maintain any other insurance which in the opinion of
\nits insurance broker, advisor or legal counsel is prudent in carry under the
\ngiven circumstances, provided such insurance is commonly carried by owners of
\nproperty similarly situated and operating under similar circumstances.<\/p>\n
9.3 MUTUAL WAIVER OF SUBROGATION. Landlord hereby releases Tenant, and Tenant
\nhereby releases Landlord and its respective partners, principals, members,
\nofficers, agents, employees and servants, from any and all liability for
\nloss, damage or injury to the property of the other in or about the Leased
\nPremises or the Property which is caused by or results from a peril or event
\nor happening which is covered by insurance actually carried and in force at
\nthe time of the loss by the party sustaining such loss; PROVIDED, HOWEVER,
\nthat such waiver shall be effective only to the extent permitted by the
\ninsurance covering such loss and to the extent such insurance is not
\nprejudiced thereby.<\/p>\n
ARTICLE 10<\/p>\n
DAMAGE TO LEASED PREMISES<\/p>\n
10.1 LANDLORD’S DUTY TO RESTORE. If the Leased Premises, the Building or the
\nOutside Area are damaged by any peril after the Effective Date of this Lease,
\nLandlord shall restore the same, as and when required by this paragraph, unless
\nthis Lease is terminated by Landlord pursuant to Paragraph 10.3 or by Tenant
\npursuant to Paragraph 10.4. If this Lease is not so terminated, then upon the
\nissuance of all necessary governmental permits, Landlord shall commence and
\ndiligently prosecute to completion the restoration of the Leased Premises, the
\nBuilding or the Outside Area, as the case may be, to the extent then allowed by
\nlaw, to substantially the same condition in which it existed as of the date the
\nLeased Premises were originally occupied by Tenant. Landlord’s obligation to
\nrestore shall be limited to the improvements constructed by Landlord. Landlord
\nshall have no obligation to restore any alterations, modifications or
\nimprovements made by Tenant to the Leased Premises or any of Tenant’s personal
\nproperty, inventory or trade fixtures. Upon completion of the restoration by
\nLandlord, Tenant shall forthwith replace or fully repair all of Tenant’s
\npersonal property, inventory, trade fixtures and other improvements constructed
\nby Tenant to like or similar conditions as existed at the time immediately prior
\nto such damage or destruction.<\/p>\n
10.2 INSURANCE PROCEEDS. All insurance proceeds available from the fire and
\nproperty damage insurance carried by Landlord shall be paid to and become the
\nproperty of Landlord. If this Lease is terminated pursuant to either
\nParagraph 10.3 or 10.4, all insurance proceeds available from insurance
\ncarried by Tenant which cover loss of property that is Landlord’s property or
\nwould become Landlord’s property on termination of this Lease shall be paid
\nto and become the property of Landlord, and the remainder of such proceeds
\nshall be paid to and become the property of Tenant. If this Lease is not
\nterminated pursuant to either Paragraph 10.3 or 10.4, all insurance proceeds
\navailable from insurance carried by Tenant which cover loss to property that
\nis Landlord’s property shall be paid to and become the property of Landlord,
\nand all proceeds available from such insurance which cover loss to property
\nwhich would only become the property of Landlord upon the termination of this
\nLease shall be paid to and remain the property of Tenant. The determination
\nof Landlord’s property and Tenant’s property shall be made pursuant to
\nParagraph 6.2.<\/p>\n
10.3 LANDLORD’S RIGHT TO TERMINATE. Landlord shall have the option to terminate
\nthis Lease in the event any of the following occurs, which option may be
\nexercised only by delivery to Tenant of a written notice of election to
\nterminate within thirty days after the date of such damage or destruction:<\/p>\n
(a) The Building is damaged by any peril covered by valid and
\ncollectible insurance actually carried by Landlord and in force at the time of
\nsuch damage or destruction (an “insured peril”) to such an extent that the
\nestimated cost to restore the Building exceeds the lesser of (i) the insurance
\nproceeds available from insurance actually carried by Landlord, or (ii) fifty
\npercent of the then actual replacement cost thereof;<\/p>\n
(b) The Building is damaged by an uninsured peril, which peril Landlord
\nwas not required to insure against pursuant to the provisions of Article 9 of
\nthis Lease.<\/p>\n
15.<\/p>\n
(c) The Building is damaged by any peril and, because of the laws then
\nin force, the Building (i) cannot be restored at reasonable cost or (ii) if
\nrestored, cannot be used for the same use being made thereof before such damage.<\/p>\n
10.4 TENANT’S RIGHT TO TERMINATE. If the Leased Premises, the Building or the
\nOutside Area are damaged by any peril and Landlord does not elect to terminate
\nthis Lease or is not entitled to terminate this Lease pursuant to this Article,
\nthen as soon as reasonably practicable, Landlord shall furnish Tenant with the
\nwritten opinion of Landlord’s architect or construction consultant as to when
\nthe restoration, work required of Landlord may be complete. Tenant shall have
\nthe option to terminate this Lease in the event any of the following occurs,
\nwhich option may be exercised only by delivery to Landlord of a written notice
\nof election to terminate within seven days after Tenant receives from Landlord
\nthe estimate of the time needed to complete such restoration:<\/p>\n
(a) If the time estimated to substantially complete the restoration
\nexceeds nine (9) months from and after the date the architect’s or construction
\nconsultant’s written opinion is delivered; or<\/p>\n
(b) If the damage occurred within twelve months of the last day of the
\nLease Term and the time estimated to substantially complete the restoration
\nexceeds one hundred eighty days from and after the date such restoration is
\ncommenced.<\/p>\n
10.5 TENANT’S WAIVER. Landlord and Tenant agree that the provisions of Paragraph
\n10.4 above, captioned “Tenant’s Right To Terminate”, are intended to supersede
\nand replace the provisions contained in California Civil Code, Section 1932,
\nSubdivision 2, and California Civil Code, Section 1934, and accordingly, Tenant
\nhereby waives the provisions of such Civil Code Sections and the provisions of
\nany successor Civil Code Sections or similar laws hereinafter enacted.<\/p>\n
10.6 ABATEMENT OF RENT. In the event of damage to the Leased Premises which does
\nnot result in the termination of this Lease, the Base Monthly Rent (and any
\nAdditional Rent) shall be temporarily abated during the period of restoration in
\nproportion in the degree to which Tenant’s use of the Leased Premises is
\nimpaired by such damage.<\/p>\n
ARTICLE 11<\/p>\n
CONDEMNATION<\/p>\n
11.1 TENANT’S RIGHT TO TERMINATE. Except as otherwise provided in Paragraph 11.4
\nbelow regarding temporary takings, Tenant shall have the option to terminate
\nthis Lease if as a result of any taking, (i) all of the Leased Premises is
\ntaken, or (ii) twenty-five percent (25%) or more of the Leased Premises is taken
\nand the part of the Leased Premises that remains cannot, within a reasonable
\nperiod of time, be made reasonably suitable for the continued operation of
\nTenant’s business. Tenant must exercise such option within a reasonable period
\nof time, to be effective on the later to occur of (i) the date that possession
\nof that portion of the Leased Premises that is condemned is taken by the
\ncondemnor or (ii) the date Tenant vacated the Leased Premises.<\/p>\n
11.2 LANDLORD’S RIGHT TO TERMINATE. Except as otherwise provided in Paragraph
\n11.4 below regarding temporary takings, Landlord shall have the option to
\nterminate this Lease if, as a result of any taking, (i) all of the Leased
\nPremises is taken, (ii) twenty-five percent (25%) or more of the Leased
\nPremises is taken and the part of the Leased Premises that remains cannot,
\nwithin a reasonable period of time be made reasonably suitable for the
\ncontinued operation of Tenant’s business, or (iii) because of the laws then
\nin force, the Leased Premises may not be used for the same use being made
\nbefore such taking, whether or not restored as required by Paragraph 11.3
\nbelow. Any such option to terminate by Landlord must be exercised within a
\nreasonable period of time, to be effective as of the date possession is taken
\nby the condemnor.<\/p>\n
11.3 RESTORATION. If any part of the Leased Premises or the Building is taken
\nand this Lease is not terminated, then Landlord shall, to the extent not
\nprohibited by laws then in force, repair any damage occasioned thereby to the
\nremainder thereof to a condition reasonably suitable for Tenant’s continued
\noperations and otherwise, to the extent practicable, in the manner and to the
\nextent provided in Paragraph 10.1.<\/p>\n
11.4 TEMPORARY TAKING. If a portion of the Leased Premises is temporarily taken
\nfor a period of one year or less and such period does not extend beyond the
\nLease Expiration Date, this Lease shall remain in effect. If any portion of the
\nLeased Premises is temporarily taken for a period which exceeds one year or
\nwhich extends beyond the Lease Expiration Date, then the rights of Landlord and
\nTenant shall be determined in accordance with Paragraphs 11.1 and 11.2 above.<\/p>\n
11.5 DIVISION OF CONDEMNATION AWARD. Any award made for any taking of the
\nProperty, the Building, or the Leased Premises, or any portion thereof, shall
\nbelong to and be paid to Landlord, and Tenant hereby assigns to Landlord all of
\nits right, title and interest in any such award; PROVIDED, HOWEVER, that Tenant
\nshall be entitled to receive any portion of the award that is made specifically
\n(i) for the taking of personal property, inventory or trade fixtures belonging
\nto Tenant, (ii) for the interruption of Tenant’s business or its moving costs,
\nor (iii) for the value of any leasehold improvements installed and paid for by
\nTenant. The rights of Landlord and Tenant regarding any condemnation shall be
\ndetermined as provided in this Article, and each party hereby waives the
\nprovisions of Section 1265.130 of the California Code of Civil Procedure, and
\nthe provisions of any similar law hereinafter enacted, allowing either party to
\npetition the Supreme Court to terminate this Lease and\/or otherwise allocate
\ncondemnation awards between Landlord and Tenant in the event of a taking of the
\nLeased Premises.<\/p>\n
16.<\/p>\n
11.6 ABATEMENT OF RENT. In the event of a taking of the Leased Premises which
\ndoes not result in a termination of this Lease (other than a temporary taking),
\nthen, as of the date possession is taken by the condemning authority, the
\nBase Monthly Rent shall be reduced in the same proportion that the area of
\nthat part of the Leased Premises so taken (less any addition to the area of
\nthe Leased Premises by reason of any reconstruction) bears to the area of the
\nLeased Premises immediately prior to such taking.<\/p>\n
11.7 TAKING DEFINED. The term “taking” or “taken” as used in this Article 11
\nshall mean any transfer or conveyance of all or any portion of the Property to a
\npublic or quasi-public agency or other entity having the power of eminent domain
\npursuant to or as a result of the exercise of such power by such an agency,
\nincluding any inverse condemnation and\/or any sale or transfer by Landlord of
\nall or any portion of the Property to such an agency under threat of
\ncondemnation or the exercise of such power.<\/p>\n
ARTICLE 12<\/p>\n
DEFAULT AND REMEDIES<\/p>\n
12.1 EVENTS OF TENANT’S DEFAULT. Tenant shall be in default of its obligations
\nunder this Lease if any of the following events occur:<\/p>\n
(a) Tenant shall have failed to pay Base Monthly Rent or any Additional
\nRent when due; or<\/p>\n
(b) Tenant shall have done or permitted to be done any act, use or
\nthing in its use, occupancy or possession of the Leased Premises or the Building
\nor the Outside Areas which is prohibited by the terms of this Lease; or<\/p>\n
(c) Tenant shall have failed to perform any term, covenant or condition
\nof this Lease (except those requiring the payment of Base Monthly Rent or
\nAdditional Rent, which failures shall be governed by subparagraph (a) above)
\nwithin thirty (30) days after written notice from Landlord to Tenant specifying
\nthe nature of such failure and requesting Tenant to perform same; or<\/p>\n
(d) Tenant shall have sublet the Leased Premises or assigned or
\nencumbered its interest in this Lease in violation of the provisions contained
\nin Article 7, whether voluntarily or by operation of law; or<\/p>\n
(e) Tenant shall have abandoned the Leased Premises; or<\/p>\n
(f) Tenant or any Guarantor of this Lease shall have permitted or
\nsuffered the sequestration or attachment of, or execution on, or the appointment
\nof a custodian or receiver with respect to, all or any substantial part of the
\nproperty or assets of Tenant (or such Guarantor) or any property or asset
\nessential to the conduct of Tenant’s (or such Guarantor’s) business, and Tenant
\n(or such Guarantor) shall have failed to obtain a return or release of the same
\nwithin thirty days thereafter, or prior to sale pursuant to such sequestration,
\nattachment or levy, whichever is earlier; or<\/p>\n
(g) Tenant or any Guarantor of this Lease shall have made a general
\nassignment of all or a substantial part of its assets for the benefit of its
\ncreditors; or<\/p>\n
(h) Tenant or any Guarantor of this Lease shall have allowed (or
\nsought) to have entered against it a decree or order which: (i) grants or
\nconstitutes an order for relief, appointment of a trustee, or condemnation or
\na reorganization plan under the bankruptcy laws of the United States; (ii)
\napproves as properly filed a petition seeking liquidation or reorganization
\nunder said bankruptcy laws or any other debtor’s relief law or similar
\nstatute of the United States or any state thereof, or (iii) otherwise directs
\nthe winding up or liquidation of Tenant; provided, however, if any decree or
\norder was entered without Tenant’s consent or over Tenant’s objection,
\nLandlord may not terminate this Lease pursuant to this Subparagraph if such
\ndecree or order is rescinded or reversed within thirty days after its
\noriginal entry; or<\/p>\n
(i) Tenant or any Guarantor of this Lease shall have availed itself of
\nthe protection of any debtor’s relief law, moratorium law or other similar law
\nwhich does not require the prior entry of a decree or order.<\/p>\n
(j) Tenant shall be in default of its obligations under any other Lease
\nbetween Landlord and Tenant.<\/p>\n
12.2 LANDLORD’S REMEDIES. In the event of any default by Tenant, and without
\nlimiting Landlord’s right to indemnification as provided in Article 8.2,
\nLandlord shall have the following remedies, in addition to all other rights and
\nremedies provided by law or otherwise provided in this Lease to which Landlord
\nmay resort cumulatively, or in the alternative:<\/p>\n
(a) Landlord may, at Landlord’s election, keep this Lease in effect
\nand enforce, by an action at law or in equity, all of its rights and remedies
\nunder this Lease including, without limitation, (i) the right to recover the
\nrent and other sums as they become due by appropriate legal action, (ii) the
\nright to make payments required by Tenant, or perform Tenant’s obligations
\nand be reimbursed by Tenant for the cost thereof with interest at the then
\nmaximum rate of interest not prohibited by law from the date the sum is paid
\nby Landlord until Landlord is reimbursed by Tenant, and (iii) the remedies of
\ninjunctive relief and specific performance to prevent Tenant from violating
\nthe terms of this Lease and\/or to compel Tenant to perform its obligations
\nunder this Lease, as the case may be.<\/p>\n
(b) Landlord may, at Landlord’s election, terminate this Lease by
\ngiving Tenant written notice of termination, in which event this Lease shall
\nterminate on the date set forth for termination in such notice, in which<\/p>\n
17.<\/p>\n
event Tenant shall immediately surrender the Leased Premises to Landlord, and
\nif Tenant fails to do so, Landlord may, without prejudice to any other remedy
\nwhich it may have for possession or arrearages in rent, enter upon and take
\npossession of the Leased Premises and expel or remove Tenant and any other
\nperson who may be occupying the Leased Premises or any part thereof, without
\nbeing liable for prosecution or any claim or damages therefor. Any
\ntermination under this subparagraph shall not relieve Tenant from its
\nobligation to pay to Landlord all Base Monthly Rent and Additional Rent then
\nor thereafter due, or any other sums due or thereafter accruing to Landlord,
\nor from any claim against Tenant for damages previously accrued or then or
\nthereafter accruing. In no event shall any one or more of the following
\nactions by Landlord, in the absence of a written election by Landlord to
\nterminate this Lease constitute a termination of this Lease:<\/p>\n
(i) Appointment of a receiver or keeper in order to protect
\nLandlord’s interest hereunder;<\/p>\n
(ii) Consent to any subletting of the Leased Premises or
\nassignment of this Lease by Tenant, whether pursuant to the provisions hereof or
\notherwise; or<\/p>\n
(iii) Any action taken by Landlord or its partners,
\nprincipals, members, officers, agents, employees, or servants, which is intended
\nto mitigate the adverse effects of any breach of this Lease by Tenant,
\nincluding, without limitation, any action taken to maintain and preserve the
\nLeased Premises on any action taken to relet the Leased Premises or any portion
\nthereof for the account at Tenant and in the name of Tenant.<\/p>\n
(c) In the event Tenant breaches this Lease and abandons the Leased
\nPremises, Landlord may terminate this Lease, but this Lease shall not terminate
\nunless Landlord gives Tenant written notice of termination. If Landlord does not
\nterminate this Lease by giving written notice of termination, Landlord may
\nenforce all its rights and remedies under this Lease, including the right and
\nremedies provided by California Civil Code Section 1951.4 (“lessor may continue
\nlease in effect after lessee’s breach and abandonment and recover rent as it
\nbecomes due, if lessee has right to sublet or assign, subject only to reasonable
\nlimitations”), as in effect on the Effective Date of this Lease.<\/p>\n
(d) In the event Landlord terminates this Lease, Landlord shall be
\nentitled, at Landlord’s election, to the rights and remedies provided in
\nCalifornia Civil Code Section 1051.2, as in effect on the Effective Date of
\nthis Lease. For purposes of computing damages pursuant to Section 1951.2, an
\ninterest rate equal to the maximum rate of interest then not prohibited by
\nlaw shall be used where permitted. Such damages shall include, without
\nlimitation:<\/p>\n
(i) The worth at the time of the award of the unpaid rent
\nwhich had been earned at the time of termination;<\/p>\n
(ii) The worth at the time of award of the amount by which
\nthe unpaid rent for the balance of the term after the time of award exceeds
\nthe amount of such rental loss that Tenant proves could be reasonably
\navoided, computed by discounting such amount at the discount rate of the
\nFederal Reserve Bank of San Francisco, at the time of award plus one percent;
\nand<\/p>\n
(iii) Any other amount necessary to compensate Landlord for
\nall detriment proximately caused by Tenant’s failure to perform Tenant’s
\nobligations under this Lease, or which in the ordinary course of things would
\nbe likely to result therefrom, including without limitation, the following:
\n(i) expenses for cleaning, repairing or restoring the Leased Premises, (ii)
\nexpenses for altering, remodeling or otherwise improving the Leased Premises
\nfor the purpose of reletting, including removal of existing leasehold
\nimprovements and\/or installation of additional leasehold improvements
\n(regardless of how the same is funded, including reduction of rent, a direct
\npayment or allowance to a new tenant, or otherwise), (iii) broker’s fees
\nallocable to the remainder of the term of this Lease, advertising costs and
\nother expenses of reletting the Leased Premises; (iv) costs of carrying and
\nmaintaining the Leased Premises, such as taxes, insurance premiums, utility
\ncharges and security precautions, (v) expenses incurred in removing,
\ndisposing of and\/or storing any of Tenant’s personal property, inventory or
\ntrade fixtures remaining therein; (vi) reasonable attorney’s fees, expert
\nwitness fees, court costs and other reasonable expenses incurred by Landlord
\n(but not limited to taxable costs) in retaking possession of the Leased
\nPremises, establishing damages hereunder, and releasing the Leased Premises;
\nand (vii) any other expenses, costs or damages otherwise incurred or suffered
\nas a result of Tenant’s default.<\/p>\n
12.3 LANDLORD’S DEFAULT AND TENANT’S REMEDIES. In the event Landlord fails to
\nperform its obligations under this Lease, Landlord shall nevertheless not be
\nin default under the terms of this Lease until such time as Tenant shall have
\nfirst given Landlord written notice specifying the nature of such failure to
\nperform its obligations, and then only after Landlord shall have had thirty
\n(30) days following its receipt of such notice within which to perform such
\nobligations; provided that, if longer than thirty (30) days following its
\nreceipt of such notice within which to perform such obligations; PROVIDED
\nTHAT, if longer than thirty (30) days is reasonably required in order to
\nperform such obligations, Landlord shall have such longer period. In the
\nevent of Landlord’s default as above set forth, then, and only then, Tenant
\nmay then proceed in equity or at law to compel Landlord to perform its
\nobligations and\/or to recover damages proximately caused by such failure to
\nperform (except as and to the extent Tenant has waived its right to damages
\nas provided in this Lease).<\/p>\n
12.4 LIMITATION OF TENANT’S RECOURSE. Tenant’s sole recourse against Landlord
\nshall be to Landlord’s interest in the Building and the Outside Areas. If
\nLandlord is a corporation, trust, partnership, joint venture, limited liability
\ncompany, unincorporated association, or other form of business entity, Tenant
\nagrees that (i) the obligations of Landlord under this Lease shall not
\nconstitute personal obligations of the officers, directors, trustees, partners,
\njoint venturers, members, owners, stockholders, or other principals of such
\nbusiness entity, and (ii) Tenant shall have recourse only to the interest of
\nsuch corporation, trust, partnership, joint venture, limited liability company,
\nunincorporated association, or other form of business entity in the Building and
\nthe Outside Areas for the<\/p>\n
18.<\/p>\n
satisfaction of such obligations and not against the assets of such officers,
\ndirectors, trustees, partners, joint venturers, members, owners, stockholders or
\nprincipals. Additionally, if Landlord is a partnership or limited liability
\ncompany, then Tenant covenants and agrees:<\/p>\n
(a) No partner or member of Landlord shall be sued or named as a party
\nin any suit or action brought by Tenant with respect to any alleged breach of
\nthis Lease (except to the extent necessary to secure jurisdiction over the
\npartnership and then only for that sole purpose);<\/p>\n
(b) No service of process shall be made against any partner or member
\nof Landlord except for the sole purpose of securing jurisdiction over the
\npartnership; and<\/p>\n
(c) No writ of execution will ever be levied against the assets of any
\npartner or member of Landlord other than to the extent of his or her interest in
\nthe assets of the partnership or limited liability company constituting
\nLandlord.<\/p>\n
Tenant further agrees that each of the foregoing covenants and agreements shall
\nbe enforceable by Landlord and by any partner or member of Landlord and shall be
\napplicable to any actual or alleged misrepresentation or nondisclosure made
\nregarding this Lease or the Leased Premises or any actual or alleged failure,
\ndefault or breach of any covenant or agreement either expressly or implicitly
\ncontained in this Lease or imposed by statute or at common law.<\/p>\n
12.5 TENANT’S WAIVER. Landlord and Tenant agree that the provisions of
\nParagraph 12.3 above are intended to supersede and replace the provisions of
\nCalifornia Civil Code Sections 1932(1), 1941 and 1942, and accordingly, Tenant
\nhereby waives the provisions of California Civil Code Sections 1932(1), 1941 and
\n1942 and\/or any similar or successor law regarding Tenant’s right to terminate
\nthis Lease or to make repairs and deduct the expenses of such repairs from the
\nrent due under this Lease.<\/p>\n
ARTICLE 13<\/p>\n
GENERAL PROVISIONS<\/p>\n
13.1 TAXES ON TENANT’S PROPERTY. Tenant shall pay before delinquency any and
\nall taxes, assessments, license fees, use fees, permit fees and public
\ncharges of whatever nature or description levied, assessed or imposed against
\nTenant or Landlord by a governmental agency arising out of, caused by reason
\nof or based upon Tenant’s estate in this Lease, Tenant’s ownership of
\nproperty, improvements made by Tenant to the Leased Premises or the Outside
\nAreas, improvements made by Landlord for Tenant’s use within the Leased
\nPremises or the Outside Areas, Tenant’s use (or estimated use) of public
\nfacilities or services or Tenant’s consumption (or estimated consumption) of
\npublic utilities, energy, water or other resources (collectively, “Tenant’s
\nInterest”). Upon demand by Landlord, Tenant shall furnish Landlord with
\nsatisfactory evidence of these payments. If any such taxes, assessments, fees
\nor public charges are levied against Landlord, Landlord’s property, the
\nBuilding or the Property, or if the assessed value of the Building or the
\nProperty is increased by the inclusion therein of a value placed upon
\nTenant’s Interest, regardless of the validity thereof, Landlord shall have
\nthe right to require Tenant to pay such taxes, and if not paid and
\nsatisfactory evidence of payment delivered to Landlord at least ten days
\nprior to delinquency, then Landlord shall have the right to pay such taxes on
\nTenant’s behalf and to invoice Tenant for the same. Tenant shall, within the
\nearlier to occur of (a) thirty (30) days of the date it receives an invoice
\nfrom Landlord setting forth the amount of such taxes, assessments, fees, or
\npublic charge so levied, or (b) the due date of such invoice, pay to
\nLandlord, as Additional Rent, the amount set forth in such invoice. Failure
\nby Tenant to pay the amount so invoiced within such time period shall be
\nconclusively deemed a default by Tenant under this Lease. Tenant shall have
\nthe right to bring suit in any court of competent jurisdiction to recover
\nfrom the taxing authority the amount of any such taxes, assessments, fees or
\npublic charges so paid.<\/p>\n
13.2 HOLDING OVER. This Lease shall terminate without further notice on the
\nLease Expiration Date (as set forth in Article 1). Any holding over by Tenant
\nafter expiration of the Lease Term shall neither constitute a renewal nor
\nextension of this Lease nor give Tenant any rights in or to the Leased
\nPremises except as expressly provided in this Paragraph. Any such holding
\nover to which Landlord has consented shall be construed to be a tenancy from
\nmonth to month, on the same terms and conditions herein specified insofar as
\napplicable, except that the Base Monthly Rent shall be increased to an amount
\nequal to one hundred fifty percent (150%) of the Base Monthly Rent payable
\nduring the last full month immediately preceding such holding over. Tenant
\nacknowledges that if Tenant holds over without Landlord’s consent, such
\nholding over may compromise or otherwise affect Landlord’s ability to enter
\ninto new leases with prospective tenants regarding the Leased Promises.
\nTherefore, if Tenant fails to surrender the Leased Premises upon the
\nexpiration or termination of this Lease, in addition to any other liabilities
\nto Landlord accruing therefrom, Tenant shall protect, defend, indemnify and
\nhold Landlord harmless from and against all claims resulting from such
\nfailure, including, without limiting the foregoing, any claims made by any
\nsucceeding tenant founded upon such failure to surrender, and any losses
\nsuffered by Landlord, including lost profits, resulting from such failure to
\nsurrender.<\/p>\n
13.3 SUBORDINATION TO MORTGAGES. This Lease is subject to and subordinate to all
\nground leases, mortgages and deeds of trust which affect the Building or the
\nProperty and which are of public record as of the Effective Date of this Lease,
\nand to all renewals, modifications, consolidations, replacements and extensions
\nthereof. However, if the lessor under any such ground lease or any lender
\nholding any such mortgage or deed of trust shall advise Landlord that it desires
\nor requires this Lease to be made prior and superior thereto, then, upon written
\nrequest of Landlord to Tenant, Tenant shall promptly execute, acknowledge and
\ndeliver any and all customary or reasonable documents or instruments which
\nLandlord and such lessor or lender deems necessary or desirable to make this
\nLease prior thereto. Tenant hereby consents to Landlord’s ground leasing the
\nland underlying the Building or the Property and\/or <\/p>\n
19.<\/p>\n
encumbering the Building or the Property as security for future loans on such
\nterms as Landlord shall desire, all of which future ground leases, mortgages
\nor deeds of trust shall be subject to and subordinate to this Lease. However,
\nif any lessor under any such future ground lease or any lender holding such
\nfuture mortgage or deed of trust shall desire or require that this Lease be
\nmade subject to and subordinate to such future ground lease, mortgage or deed
\nof trust, then Tenant agrees, within ten days after Landlord’s written
\nrequest therefor, to execute, acknowledge and deliver to Landlord any and all
\ndocuments or instruments requested by Landlord or by such lessor or lender as
\nmay be necessary or proper to assure the subordination of this Lease to such
\nfuture ground lease, mortgage or deed of trust, but only if such lessor or
\nlender agrees to recognize Tenant’s rights under this Lease and agrees not to
\ndisturb Tenant’s quiet possession of the Leased Premises so long as Tenant is
\nnot in default under this Lease. If Landlord assigns the Lease as security
\nfor a loan, Tenant agrees to execute such documents as are reasonably
\nrequested by the lender and to provide reasonable provisions in the Lease
\nprotecting such lender’s security interest which are customarily required by
\ninstitutional lenders making loans secured by a deed of trust. Landlord
\nagrees to use commercially reasonable efforts to obtain a subordination,
\nnondisturbance and attornment agreement from the current holder of a
\nmortgage, deed of trust, and\/or ground lease within thirty (30) days of
\nmutual execution of this Lease.<\/p>\n
13.4 TENANT’S ATTORNMENT UPON FORECLOSURE. Tenant shall, upon request, attorn
\n(i) to any purchaser of the Building or the Property at any foreclosure sale or
\nprivate sale conducted pursuant to any security instruments encumbering the
\nBuilding or the Property, (ii) to any grantee or transferee designated in any
\ndeed given in lieu of foreclosure of any security interest encumbering the
\nBuilding or the Property, or (iii) to the lessor under an underlying ground
\nlease of the land underlying the Building or the Property, should such ground
\nlease be terminated; provided that such purchaser, grantee or lessor recognizes
\nTenant’s rights under this Lease.<\/p>\n
13.5 MORTGAGEE PROTECTION. In the event of any default on the part of Landlord,
\nTenant will give notice by registered mail to any Lender or lessor under any
\nunderlying ground lease who shall have requested, in writing, to Tenant that it
\nbe provided with such notice, and Tenant shall offer such Lender or lessor a
\nreasonable opportunity to cure the default, including time to obtain possession
\nof the Leased Premises by power of sale or judicial foreclosure or other
\nappropriate legal proceedings if reasonably necessary to effect a cure.<\/p>\n
13.6 ESTOPPEL CERTIFICATE. Tenant will, following any request by Landlord,
\npromptly execute and deliver to Landlord an estoppel certificate
\nsubstantially in form attached as Exhibit B, (i) certifying that this Lease
\nis unmodified and in full force and effect, or, if modified, stating the
\nnature of such modification and certifying that this Lease, as so modified,
\nis in full force and effect, (ii) stating the date to which the rent and
\nother charges are paid in advance, if any, (iii) acknowledging that there are
\nnot, to Tenant’s knowledge, any uncured defaults on the part of Landlord
\nhereunder, or specifying such defaults if any are claimed, and (iv)
\ncertifying such other information about this Lease as may be reasonably
\nrequested by Landlord, its Lender or prospective lenders, investors or
\npurchasers of the Building or the Property. Tenant’s failure to execute and
\ndeliver such estoppel certificate within ten days after Landlord’s request
\ntherefor shall be a material default by Tenant under this Lease, and Landlord
\nshall have all of the rights and remedies available to Landlord as Landlord
\nwould otherwise have in the case of any other material default by Tenant,
\nincluding the right to terminate this Lease and sue for damages proximately
\ncaused thereby, it being agreed and understood by Tenant that Tenant’s
\nfailure to so deliver such estoppel certificate in a timely manner could
\nresult in Landlord being unable to perform committed obligations to other
\nthird parties which were made by Landlord in reliance upon this covenant of
\nTenant. Landlord and Tenant intend that any statement delivered pursuant to
\nthis paragraph may be relied upon by any Lender or purchaser or prospective
\nLender or purchaser of the Building, the Property, or any interest in them.<\/p>\n
13.7 TENANT’S FINANCIAL INFORMATION. Tenant shall, within ten business days
\nafter Landlord’s request therefor, deliver to Landlord a copy of Tenant’s
\n(and any guarantor’s) current financial statements (including a balance
\nsheet, income statement and statement of cash flow, all prepared in
\naccordance with generally accepted accounting principles) and any such other
\ninformation reasonably requested by Landlord regarding Tenant’s financial
\ncondition. Landlord shall be entitled to disclose such financial statements
\nor other information to its Lender, to any present or prospective principal
\nof or investor in Landlord, or to any prospective Lender or purchaser of the
\nBuilding, the Property, or any portion thereof or Interest therein. Any such
\nfinancial statement or other information which is marked “confidential” or
\n“company secrets” (or is otherwise similarly marked by Tenant) shall be
\nconfidential and shall not be disclosed by Landlord to any third party except
\nas specifically provided in this paragraph, unless the same becomes a part of
\nthe public domain without the fault of Landlord.<\/p>\n
13.8 TRANSFER BY LANDLORD. Landlord and its successors in interest shall have
\nthe right to transfer their interest in the Building, the Property, or any
\nportion thereof at any time and to any person or entity. In the event of any
\nsuch transfer, the Landlord originally named herein (and in the case of any
\nsubsequent transfer, the transferor), from the date of such transfer, (i) shall
\nbe automatically relieved, without any further act by any person or entity, of
\nall liability for the performance of the obligations of the Landlord hereunder
\nwhich may accrue after the date of such transfer and (ii) shall be relieved of
\nall liability for the performance of the obligations of the Landlord hereunder
\nwhich have accrued before the date of transfer if its transferee agrees to
\nassume and perform all such prior obligations of the Landlord hereunder. Tenant
\nshall attorn to any such transferee. After the date of any such transfer, the
\nterm “Landlord” as used herein shall mean the transferee of such interest in the
\nBuilding or the Property.<\/p>\n
13.9 FORCE MAJEURE. The obligations of each of the parties under this Lease
\n(other than the obligations to pay money) shall be temporarily excused if such
\nparty is prevented or delayed in performing such obligations by reason of any
\nstrikes, lockouts or labor disputes; government restrictions, regulations,
\ncontrols, action or inaction; civil commotion; Or extraordinary weather, fire or
\nother acts of God.<\/p>\n
20.<\/p>\n
13.10 NOTICES. Any notice required or permitted to be given under this Lease
\nshall be in writing and (i) personally delivered, (ii) sent by United States
\nmail, registered or certified mail, postage prepaid, return receipt requested,
\n(iii) sent by Federal Express or similar nationally recognized overnight courier
\nservice, or (iv) transmitted by facsimile with a hard copy sent within one (1)
\nbusiness day by any of the foregoing means, and in all cases addressed as
\nfollows, and such notice shall be deemed to have been given upon the date of
\nactual receipt or delivery (or refusal to accept delivery) at the address
\nspecified below (or such other addresses as may be specified by notice in the
\nforegoing manner) as indicated on the return receipt or air bill:<\/p>\n
IF TO LANDLORD: Corporate Technology Centre Associates II LLC
\n c\/o Menlo Equities LLC
\n 525 University Avenue
\n Suite 100
\n Palo Alto, California 94301
\n Attention: Henry Bullock\/Richard Holmstrom
\n Facsimile: (650) 326-9333<\/p>\n
with a copy to: Cooley Godward LLP
\n One Maritime Plaza
\n 20th Floor
\n San Francisco, California 94111
\n Attention: Paul Churchill\/ Elizabeth Willes
\n Facsimile: (415) 951-3699<\/p>\n
IF TO TENANT: Digital Microwave Corporation
\n 170 Rose Orchard Way
\n San Jose, California 95134
\n Attention: Chief Financial Officer<\/p>\n
with a copy to: Digital Microwave Corporation
\n 170 Rose Orchard Way
\n San Jose, California 95134
\n Attention: Legal Department<\/p>\n
Any notice given in accordance with the foregoing shall be deemed received upon
\nactual receipt or refusal to accept delivery.<\/p>\n
13.11 ATTORNEYS’ FEES. In the event any party shall bring any action,
\narbitration proceeding or legal proceeding alleging a breach of any provision of
\nthis Lease, to recover rent, to terminate this Lease, or to enforce, protect,
\ndetermine or establish any term or covenant of this Lease or rights or duties
\nhereunder of either party, the prevailing party shall be entitled to recover
\nfrom the non-prevailing party as a part of such action or proceeding, or in a
\nseparate action for that purpose brought within one year from the determination
\nof such proceeding, reasonable attorneys’ fees, expert witness fees, court costs
\nand other reasonable expenses incurred by the prevailing party.<\/p>\n
13.12 DEFINITIONS. Any term that is given a special meaning by any provision in
\nthis Lease shall, unless otherwise specifically stated, have such meaning
\nwherever used in this Lease or in any Addenda or amendment hereto. In addition
\nto the terms defined in Article 1, the following terms shall have the following
\nmeanings:<\/p>\n
(a) REAL PROPERTY TAXES. The term “Real Property Tax” or “Real Property
\nTaxes” shall each mean Tenant’s Expense Share of (i) all taxes, assessments,
\nlevies and other charges of any kind or nature whatsoever, general and special,
\nforeseen and unforeseen (including all instruments of principal and interest
\nrequired to pay any general or special assessments for public improvements and
\nany increases resulting from reassessments caused by any change in ownership or
\nnew construction), now or hereafter imposed by any governmental or quasi-
\ngovernmental authority or special district having the direct or indirect power
\nto tax or levy assessments, which are levied or assessed for whatever reason
\nagainst the Property or any portion thereof, or Landlord’s interest herein, or
\nthe fixtures, equipment and other property of Landlord that is an integral part
\nof the Property and located thereon, or Landlord’s business of owning, leasing
\nor managing the Property or the gross receipts, income or rentals from the
\nProperty, (ii) all charges, levies or fees imposed by any governmental
\nauthority against Landlord by reason of or based upon the use of or number of
\nparking spaces within the Property, the amount of public services or public
\nutilities used or consumed (e.g. water, gas, electricity, sewage or waste water
\ndisposal) at the Property, the number of person employed by tenants of the
\nProperty, the size (whether measured in area, volume, number of tenants or
\nwhatever) or the value of the Property, or the type of use or uses conducted
\nwithin the Property, and all costs and fees (including attorneys’ fees)
\nreasonably incurred by Landlord in contesting any Real Property Tax and in
\nnegotiating with public authorities as to any Real Property Tax. If, at any time
\nduring the Lease Term, the taxation or assessment of the Property prevailing as
\nof the Effective Date of this Lease shall be altered so that in lieu of or in
\naddition to any the Real Property Tax described above there shall be levied,
\nawarded or imposed (whether by reason of a change in the method of taxation or
\nassessment, creation of a new tax or charge, or any other cause) an alternate,
\nsubstitute, or additional use or charge (i) on the value, size, use or occupancy
\nof the Property or Landlord’s interest therein or (ii) on or measured by the
\ngross receipts, income or rentals from the Property, or on Landlord’s business
\nof owning, leasing or managing the Property or (iii) computed in any manner with
\nrespect to the operation of the Property, then any such tax or charge, however
\ndesignated, shall be included within the meaning of the terms “Real Property
\nTax” or “Real Property Taxes” for purposes of this Lease. If any Real Property
\nTax is partly based upon property or rents unrelated to the Property, then only
\nthat part of such Real Property Tax that is fairly allocable to the Property
\nshall be included within the meaning of the terms “Real Property Tax” or “Real
\nProperty Taxes.”<\/p>\n
21.<\/p>\n
Notwithstanding the foregoing, the terms “Real Property Tax” or “Real Property
\nTaxes” shall not include estate, inheritance, transfer, gift or franchise taxes
\nof Landlord or the federal or state income tax imposed on Landlord’s income from
\nall sources.<\/p>\n
(b) LANDLORD’S INSURANCE COSTS. The term “Landlord’s Insurance Costs”
\nshall mean Tenant’s Project Share of the costs to Landlord to carry and maintain
\nthe policies of fire and property damage insurance for the Building and the
\nProperty and general liability and any other insurance required or permitted to
\nbe carried by Landlord pursuant to Article 9, together with any deductible
\namounts paid by Landlord upon the occurrence of any insured casualty or loss.<\/p>\n
(c) PROPERTY MAINTENANCE COSTS. The term “Property Maintenance
\nCosts” shall mean Tenant’s Project Share of all costs and expenses (except
\nLandlord’s Insurance Costs and Real Property Taxes) paid or incurred by
\nLandlord in protecting, operating, maintaining, repairing and preserving the
\nProperty and all parts thereof, including without limitation, (i) market rate
\nprofessional management fees, (ii) the amortizing portion of any costs
\nincurred by Landlord in the making of any modifications, alterations or
\nimprovements required by any governmental authority as set forth in Paragraph
\n6.3, which are so amortized during the Lease Term, and (iii) such other costs
\nas may be paid or incurred with respect to operating, maintaining, and
\npreserving the Property, such as repairing and resurfacing the exterior
\nsurfaces of the Building (including roofs), repairing and resurfacing paved
\nareas, and repairing and replacing, when necessary, electrical, plumbing,
\nheating, ventilating and air conditioning systems serving the Building. With
\nrespect to any capital improvement made to electrical, plumbing, heating,
\nventilating and air conditioning systems serving the Building by Landlord
\nafter the date of this Lease which under generally accepted accounting
\nprinciples (“GAAP”) should be capitalized and amortized rather than expensed,
\nLandlord shall capitalize any such improvement and amortize it over its
\nuseful life (which shall in no event exceed the useful life for such
\nimprovement set forth in any schedule or listing of useful lives, if any,
\nspecified by GAAP or the Financial Accounting Standards Board). In such
\nevent, such amortizing portion of the capital improvement shall, during the
\nLease Term, constitute a Property Maintenance Cost.<\/p>\n
(d) PROPERTY OPERATING EXPENSES. The term “Property Operating Expenses”
\nshall mean and include all Real Property Taxes, plus all Landlord’s Insurance
\nCosts, plus all Property Maintenance Costs.<\/p>\n
(e) LAW. The term “Law” shall mean any judicial decisions and any
\nstatute, constitution, ordinance, resolution, regulation, rule,
\nadministrative order, or other requirements of any municipal, county, state,
\nfederal, or other governmental agency or authority having jurisdiction over
\nthe parties to this Lease, the Leased Premises, the Building or the Property,
\nor any of them, in effect either at the Effective Date of this Lease or at
\nany time during the Lease Term, including, without limitation, any
\nregulation, order, or policy of any quasi-official entity or body (e.g. a
\nboard of fire examiners or a public utility or special district).<\/p>\n
(f) LENDER. The term “Lender” shall mean the holder of any promissory
\nnote or other evidence of indebtedness secured by the Property or any portion
\nthereof.<\/p>\n
(g) PRIVATE RESTRICTIONS. The term “Private Restrictions” shall mean
\n(as they may exist from time to time) any and all covenants, conditions and
\nrestrictions, private agreements, easements, and any other recorded documents
\nor instruments affecting the use of the Property, the Building, the Leased
\nPremises, or the Outside Areas.<\/p>\n
(h) RENT. The term “Rent” shall mean collectively Base Monthly Rent
\nand all Additional Rent.<\/p>\n
13.13 GENERAL WAIVERS. One party’s consent to or approval of any act by the
\nother party requiring the first party’s consent or approval shall not be deemed
\nto waive or render unnecessary the first party’s consent to or approval of any
\nsubsequent similar act by the other party. No waiver of any provision hereof,
\nor any waiver of any breach of any provision hereof, shall be effective unless
\nin writing and signed by the waiving party. The receipt by Landlord of any rent
\nor payment with or without knowledge of the breach of any other provision hereof
\nshall not be deemed a waiver of any such breach. No waiver of any provision of
\nthis Lease shall be deemed a continuing waiver unless such waiver specifically
\nstates so in writing and is signed by both Landlord and Tenant. No delay or
\nomission in the exercise of any right or remedy accruing to either party upon
\nany breach by the other party under this Lease shall impair such right or remedy
\nor be construed as a waiver of any such breach theretofore or thereafter
\noccurring. The waiver by either party of any breach of any provision of this
\nLease shall not be deemed to be a waiver of any subsequent breach of the same or
\nany other provisions herein contained.<\/p>\n
13.14 MISCELLANEOUS. Should any provisions of this Lease prove to be invalid
\nor illegal, such invalidity or illegality shall in no way affect, impair or
\ninvalidate any other provisions hereof, and such remaining provisions shall
\nremain in full force and effect. Time is of the essence with respect to the
\nperformance of every provision of this Lease in which time of performance is
\na factor. Any copy of this Lease which is executed by the parties shall be
\ndeemed an original for all purposes. This Lease shall, subject to the
\nprovisions regarding assignment, apply to and bind the respective heirs,
\nsuccessors, executors, administrators and assigns of Landlord and Tenant. The
\nterm “party” shall mean Landlord or Tenant as the context implies. If Tenant
\nconsists of more than one person or entity, then all members of Tenant shall
\nbe jointly and severally liable hereunder. Submission of this Lease for
\nreview, examination or signature by Tenant does not constitute an offer to
\nlease, a reservation of or an option for lease, and notwithstanding any
\ninconsistent language contained in any other document, this Lease is not
\neffective as a lease or otherwise until execution and delivery by both
\nLandlord and Tenant. This Lease shall be construed and enforced in accordance
\nwith the Laws of the State in which the Leased Premises are located. The
\ncaptions in this Lease are for convenience only and shall not be construed in
\nthe construction or interpretation of any provision hereof. When the context
\nof this Term requires, the neuter gender includes the masculine, the
\nfeminine, a partnership, corporation, limited liability company, joint
\nventure, or other form of business entity, and the singular includes the
\nplural. The terms “must,” “shall,” and “agree” are mandatory. The term “may”
\nis permissive. When a party is required<\/p>\n
22.<\/p>\n
to do something by this Lease, it shall do so at its sole cost and expense
\nwithout right of reimbursement from the other party unless specific provision is
\nmade therefor. Where Landlord’s consent is required hereunder, the consent of
\nany Lender shall also be required. Landlord and Tenant shall both be deemed to
\nhave drafted this Lease, and the rule of construction that a document is to be
\nconstrued against the drafting party shall not be employed in the construction
\nor interpretation of this Lease. Where Tenant is obligated not to perform any
\nact or is not permitted to perform any act, Tenant is also obligated to restrain
\nany others reasonably within its control, including agents, invitees,
\ncontractors, subcontractors and employees, from performing such act. Landlord
\nshall not become or be deemed a partner or a joint venturer with Tenant by
\nreason of any of the provisions of this Lease.<\/p>\n
ARTICLE 14<\/p>\n
CORPORATE AUTHORITY
\n BROKERS AND ENTIRE AGREEMENT<\/p>\n
14.1 CORPORATE AUTHORITY. If Tenant is a corporation, each individual executing
\nthis Lease on behalf of such corporation represents and warrants that Tenant is
\nvalidly formed and duly authorized and existing, that Tenant is qualified to do
\nbusiness in the State in which the Leased Premises are located, that Tenant has
\nthe full right and legal authority to enter into this Lease, and that he or she
\nis duly authorized to execute and deliver this Lease on behalf of Tenant in
\naccordance with its terms. Tenant shall, within thirty days after execution of
\nthis Lease, deliver to Landlord a certified copy of the resolution of its board
\nof directors authorizing or ratifying the execution of this Lease and if Tenant
\nfails to do so, Landlord at its sole election may elect to terminate this Lease.<\/p>\n
14.2 BROKERAGE COMMISSIONS. Tenant represents, warrants and agrees that it has
\nnot had any dealings with any real estate broker(s), leasing agent(s), finder(s)
\nor salesmen, other than the Brokers (as named in Article 1) with respect to
\nthe lease by it of the Leased Promises pursuant to this that it will indemnify,
\ndefend with competent counsel, and hold Landlord harmless from any liability for
\nthe payment of any real estate brokerage commissions, leasing commissions or
\nfinder’s fees claimed by any other real estate broker(s), leasing agent(s),
\nfinder(s), or salesmen to be earned or due and payable by reason of Tenant’s
\nagreement or promise (implied or otherwise) to pay (or to have Landlord pay)
\nsuch a commission or finder’s fee by reason of its leasing the Leased Premises
\npursuant to this Lease.<\/p>\n
14.3 ENTIRE AGREEMENT. This Lease and the Exhibits (as described in Article 1),
\nwhich Exhibits are by this reference incorporated herein, constitute the entire
\nagreement between the parties, and there are no other agreements,
\nunderstandings or representations between the parties relating to the lease by
\nLandlord of the Leased Premises to Tenant, except as expressed herein. No
\nsubsequent changes, modifications or additions to this Lease shall be binding
\nupon the parties unless in writing and signed by both Landlord and Tenant,<\/p>\n
14.4 LANDLORD’S REPRESENTATIONS. Tenant acknowledges that neither Landlord nor
\nany of its agents made any representations or warranties respecting the
\nProperty, the Building or the Leased Premises, upon which Tenant relied in
\nentering into the Lease, which are not expressly set forth in this Lease. Tenant
\nfurther acknowledges that neither Landlord nor any of its agents made any
\nrepresentations as to (i) whether the Leased Premises may be used for Tenant’s
\nintended use under existing Law, or (ii) the suitability of the Leased Premises
\nfor the conduct of Tenant’s business, or (iii) the exact square footage of the
\nLeased Premises, and that Tenant relies solely upon its own investigations with
\nrespect to such matters. Tenant expressly waives any and all claims for damage
\nby reason of any statement, representation, warranty, promise or other agreement
\nof Landlord or Landlord’s agent(s), if any, not contained in this Lease or in
\nany Exhibit attached hereto.<\/p>\n
ARTICLE 15<\/p>\n
OPTIONS TO EXTEND<\/p>\n
15.1 So long as Digital Microwave Corporation is the Tenant hereunder and
\noccupies the entirety of the Leased Premises, and subject to the condition set
\nforth in clause (b) below, Tenant shall have two options to extend the term of
\nthis Lease with respect to the entirety of the Leased Premises; the flat for a
\nperiod of five (5) years from the expiration of the tenth year of the Lease Term
\n(the “First Extension Period”), and the second (the “Second Extension Period”)
\nfor a period of five (5) years from the expiration of the first Extension
\nPeriod, subject to the following conditions:<\/p>\n
(a) Each option to extend shall be exercised, if at all, by notice of
\nexercise given to Landlord by Tenant not more than twelve months nor less than
\nnine months prior to the expiration of the tenth year of the Lease Term or the
\nexpiration of the First Extension Period, as applicable;<\/p>\n
(b) Anything herein to the contrary notwithstanding, if Tenant is in
\ndefault under any of the terms, covenants or conditions of this Lease, either at
\nthe time Tenant exercises either extension option or on the commencement date of
\nthe First Extension Period or the Second Extension Period, as applicable,
\nLandlord shall have, in addition to all of Landlord’s other rights and remedies
\nprovided in this Lease, the right to terminate such option(s) to extend upon
\nnotice to Tenant.<\/p>\n
15.2 In the event the applicable option is exercised in a timely, fashion, the
\nLease shall be extended for the term of the applicable extension period upon all
\nof the terms and conditions of this Lease, provided that the Base Monthly Rent
\nfor each extension period shall be the “Fair Market Rent” for the Leased
\nPremises, increased as set forth below. For purposes hereof, “Fair Market Rent”
\nshall mean the Base Monthly Rent determined pursuant to the process described
\nbelow. In no event, however, shall any adjustment of Base Monthly Rent pursuant
\nto this paragraph result in a decrease of the Base Monthly Rent for the Leased
\nPremises below the amount due from Tenant for the<\/p>\n
23.<\/p>\n
preceding portion of the initial Lease Term (or the First Extension Period, if
\napplicable) for which Base Monthly Rent had been fixed. At the end of the first
\n12 MONTH period of the extension Period, Base Monthly Rent shall be increased to
\nby 3% per annum compounded annually for such 12 month period. Base Monthly Rent
\nshall be so adjusted at the end of each subsequent 12-month period during the
\napplicable Extension Period.<\/p>\n
15.3 Within thirty (30) days after receipt of Tenant’s notice of exercise,
\nLandlord shall notify Tenant in writing of Landlord’s estimate of the Base
\nMonthly Rent for the applicable extension period, based on the provisions of
\nParagraph 15.2 above. Within thirty (30) days after receipt of such notice from
\nLandlord, Tenant shall have the right either to (i) accept Landlord’s statement
\nof Base Monthly Rent as the Base Monthly Rent for the applicable extension
\nperiod; or (ii) elect to arbitrate Landlord’s estimate of Fair Market Rent, such
\narbitration to be conducted pursuant to the provisions hereof. Failure on the
\npart of Tenant to require arbitration of Fair Market Rent within such 30-day
\nperiod shall constitute acceptance of the Base Monthly Rent for the applicable
\nextension period as calculated by Landlord. If Tenant elects arbitration, the
\narbitration shall be concluded within 90 days after the date of Tenant’s
\nelection, subject to extension for an additional 30-day period if a third
\narbitrator is required and does not act in a timely manner. To the extent that
\narbitration has not been completed prior to the expiration of any preceding
\nperiod for which Base Monthly Rent has been determined, Tenant shall pay Base
\nMonthly Rent at the rate calculated by Landlord, with the potential for an
\nadjustment to be made once Fair Market Rent is ultimately determined by
\narbitration.<\/p>\n
15.4 In the event of arbitration, the judgment or the award rendered in any such
\narbitration may be entered in any court having jurisdiction and shall be final
\nand binding between the parties. The arbitration shall be conducted and
\ndetermined in the City and County of Santa Clara in accordance with the then
\nprevailing rules of the American Arbitration Association or its successor for
\narbitration of coilimercial disputes except to the extent that the procedures
\nmandated by such rules shall be modified as follows:<\/p>\n
(a) Tenant shall make demand for arbitration in writing within thirty
\n(30) days after service of Landlord’s determination of Fair Market Rent given
\nunder Paragraph 15.3 above, specifying therein the name and address of the
\nperson to act as the arbitrator on its behalf. The arbitrator shall be qualified
\nas a real estate appraiser familiar with the Fair Market Rent of similar
\nindustrial, research and development, or office space in the Silicon Valley area
\nwho would qualify as an expert witness over objection to give opinion testimony
\naddressed to the issue in a court of competent jurisdiction. Failure on the part
\nof Tenant to make a proper demand in a timely manner for such arbitration shall
\nconstitute a waiver of the right thereto. Within fifteen (15) days after the
\nservice of the demand for arbitration, Landlord shall give notice to Tenant,
\nspecifying the name and address of the person designated by Landlord to act as
\narbitrator on its behalf who shall be similarly qualified. If Landlord fails to
\nnotify Tenant of the appointment of its arbitrator, within or by the time above
\nspecified, then the arbitrator appointed by Tenant shall be the arbitrator to
\ndetermine the issue.<\/p>\n
(b) In the event that two arbitrators are chosen pursuant to Paragraph
\n15.4(a) above, the arbitrators so chosen shall, within fifteen (15) days after
\nthe second arbitrator is appointed determine the Fair Market Rent. If the two
\narbitrators shall be unable to agree upon a determination of Fair Market Rent
\nwithin such 15-day period, they, themselves, shall appoint a third arbitrator,
\nwho shall be a competent and impartial person with qualifications similar to
\nthose required of the first two arbitrators pursuant to Paragraph 15.4(a) In the
\nevent they are unable to agree upon such appointment within seven days after
\nexpiration of such 15-day period, the third arbitrator shall be selected by the
\npanics themselves, if they can agree thereon, within a further period of
\nfifteen (15) days. If the parties do not so agree, then either party, on behalf
\nof both, may request appointment of such a qualified person by the then Chief
\nJudge of the United States District Court having jurisdiction over the County of
\nSanta Clara, acting in his private and not in his official capacity, and the
\nother party shall not raise any question as to such Judge’s full power and
\njurisdiction to entertain the application for and make the appointment. The
\nthree arbitrators shall decide the dispute if it has not previously been
\nresolved by following the procedure set forth below.<\/p>\n
(c) Where an issue cannot be resolved by agreement between the two
\narbitrators selected by Landlord and Tenant or settlement between the parties
\nduring the course of arbitration, the issue shall be resolved by the three
\narbitrators within 15 days of the appointment of the third arbitrator In
\naccordance with the following procedure. The arbitrator selected by each of the
\nparties shall state in writing his determination of the Fair Market Rent
\nsupported by the reasons therefor with counterpart copies to each party. The
\narbitrators shall arrange for a simultaneous exchange of such proposed
\nresolutions. The role of the third arbitrator shall be to select which of the
\ntwo proposed resolutions most closely approximates his determination of Fair
\nMarket Rent. The third arbitrator shall have no right to propose a middle ground
\nor any modification of either of the two proposed resolutions. The resolution
\nhe chooses as most closely approximating his determination shall constitute the
\ndecision of the arbitrators and be final and binding upon the panics.<\/p>\n
(d) In the event of a failure, refusal or inability of any arbitrator
\nto act, his successor shall be appointed by him, but in the case of the third
\narbitrator, his successor shall be appointed in the same manner as provided for
\nappointment of the third arbitrator. The arbitrators shall decide the issue
\nwithin fifteen (15) days after the appointment of the third arbitrator. Any
\ndecision in which the arbitrator appointed by Landlord and the arbitrator
\nappointed by Tenant concur shall be binding and conclusive upon the parties.
\nEach party shall pay the fee and expenses of its respective arbitrator and both
\nshall share the fee and expenses of the third arbitrator, if any, and the
\nattorneys’ fees and expenses of counsel for the respective panics and of
\nwitnesses shall be paid by the respective party engaging such counsel or calling
\nsuch witnesses,<\/p>\n
(e) The arbitrators shall have the right to consult experts and
\ncompetent authorities to obtain factual information or evidence pertaining to a
\ndetermination of Fair Market Rent, but any such consultation shall be made in
\nthe presence of both parties with full right on their part to cross-examine. The
\narbitrators shall render their<\/p>\n
24.<\/p>\n
decision and award in writing with counterpart copies to each party. The
\narbitrators shall have no power to modify the provisions of this Lease.<\/p>\n
ARTICLE 16<\/p>\n
TELEPHONE SERVICE<\/p>\n
Notwithstanding any other provision of this Lease to the contrary:<\/p>\n
(a) So long as the entirety of the Leased Premises is leased to Tenant:<\/p>\n
(i) Landlord shall have no responsibility for providing to
\nTenant any telephone equipment, including wiring, within the Leased Premises or
\nfor providing telephone service or connections from the utility to the Leased
\nPremises; and<\/p>\n
(ii) Landlord makes no warranty as to the quality, continuity
\nor availability of the telecommunications services in the Building, and Tenant
\nhereby waives any claim against Landlord for any actual or consequential damages
\n(including damages for loss of business) in the event Tenant’s
\ntelecommunications services in any way are interrupted, damaged or rendered less
\neffective, except to the extent caused by the grossly negligent or willful act
\nor omission by Landlord, its agents or employees, Tenant accepts the telephone
\nequipment (including, without limitation, the INC, as defined below) in its
\n“AS-IS” condition, and Tenant shall be solely responsible for contracting with a
\nreliable third party vendor to assume responsibility for the maintenance and
\nrepair thereof (which contract shall contain provisions requiring such vendor to
\ninspect the INC periodically (the frequency of such inspections to be determined
\nby such vendor based on its experience and professional judgment), and requiring
\nsuch vendor to meet local and federal requirements for telecommunications
\nmaterial and workmanship). Landlord shall not be liable to Tenant and Tenant
\nwaives all claims against Landlord whatsoever, whether for personal injury,
\nproperty damage, loss of use of the Leased Premises, or otherwise, due to the
\ninterruption or failure of telephone services to the Leased Premises. Tenant
\nhereby holds Landlord harmless and agrees to indemnify, protect and defend
\nLandlord from and against any liability for any damage, loss or expense due to
\nany failure or interruption of telephone service to the Leased Premises for any
\nreason. Tenant agrees to obtain loss of rental insurance adequate to cover any
\ndamage, loss or expense occasioned by the interruption of telephone service.<\/p>\n
(b) At such time as the entirety of the Leased Premise is no longer
\nleased to Tenant, Landlord shall in its sole discretion have the right, by
\nwritten notice to Tenant, to elect to assume limited responsibility for INC, as
\nprovided below, and upon such assumption of responsibility by Landlord, this
\nsubparagraph (b) shall apply prospectively.<\/p>\n
(i) Landlord shall provide Tenant access to such quantity of
\npairs in the Building intrabuilding network cable (“INC”) as is determined to be
\navailable by Landlord in its reasonable discretion. Tenant’s access to the INC
\nshall be solely by arrangements made by Tenant, as Tenant may elect, directly
\nwith Pacific Bell or Landlord (or such vendor as Landlord may designate), and
\nTenant shall pay all reasonable charges as may be imposed in connection
\ntherewith. Pacific Bell’s charges shall be deemed to be reasonable. Subject to
\nthe foregoing, Landlord shall have no responsibility for providing to Tenant any
\ntelephone equipment, including wiring, within the Leased Promises or for
\nproviding telephone service or connections from the utility to the Leased
\nPremises, except as required by law.<\/p>\n
(ii) Tenant shall not alter, modify, add to or disturb any
\ntelephone wiring in the Leased Premises or elsewhere in the Building without the
\nLandlord’s prior written consent. Tenant shall be liable to Landlord for any
\ndamage to the telephone wiring in the Building due to the act, negligent or
\notherwise, of Tenant or any employee, contractor or other agent of Tenant.
\nTenant shall have no access to the telephone closets within the Building, except
\nin the manner and under procedures established by Landlord. Tenant shall
\npromptly notify Landlord of any actual or suspected failure of telephone service
\nto the Leased Premises.<\/p>\n
(iii) All costs incurred by Landlord for the installation,
\nmaintenance, repair and replacement of telephone wiring in the Building shall be
\na Property Maintenance Cost.<\/p>\n
(iv) Landlord makes no warranty as to the quality, continuity
\nor availability of the telecommunications services in the Building, and Tenant
\nhereby waives any claim against Landlord for any actual or consequential damages
\n(including damages for loss of business) in the event Tenant’s
\ntelecommunications services in any way are interrupted, damaged or rendered less
\neffective, except to the extent caused by the grossly negligent or willful act
\nor omission by Landlord, its agents or employees. Tenant acknowledges that
\nLandlord meets its duty of care to Tenant with respect to the Building INC by
\ncontracting with a reliable third party vendor to assume responsibility for the
\nmaintenance and repair thereof (which contract shall contain provisions
\nrequiring such vendor to inspect the INC periodically (the frequency of such
\ninspections to be determined by such vendor based on its experience and
\nprofessional judgment), and requiring such vendor to meet local and federal
\nrequirements for telecommunications material and workmanship). Subject to the
\nforegoing, Landlord shall not be liable to Tenant and Tenant waives all claims
\nagainst Landlord whatsoever, whether for personal injury, property damage, loss
\nof use of the Leased Premises, or otherwise, due to the interruption or failure
\nof telephone services to the Leased Premises. Tenant hereby holds Landlord
\nharmless and agrees to indemnify, protect and defend Landlord from and against
\nany liability for any damage, loss or expense due to any failure or interruption
\nof telephone service to the Leased Premises for any reason. Tenant agrees to
\nobtain loss of rental insurance adequate to cover any damage, loss or expense
\noccasioned by the interruption of telephone service.<\/p>\n
25.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
\nthe respective dates below set forth with the intent to be legally bound
\nthereby as of the Effective Date of this Lease first above set forth.<\/p>\n
LANDLORD:<\/p>\n
CORPORATE TECHNOLOGY CENTRE ASSOCIATES II LLC, a
\n California limited liability company<\/p>\n
By: Corporate Technology Centre Partners II LLC,
\n a California limited liability company, its
\n Managing Member<\/p>\n
By: Menlo Equities LLC, a California
\n limited liability company, its Managing
\n Member<\/p>\n
By: Diamant Investments LLC, a
\n Delaware limited liability
\n company, Member<\/p>\n
By: \/s\/ Richard J. Holmstrom
\n ——————————-
\n Richard J. Holmstrom, Manager<\/p>\n
Dated: 2-16-00
\n —————-<\/p>\n
TENANT:<\/p>\n
DIGITAL MICROWAVE CORPORATION, a
\n Delaware corporation<\/p>\n
Dated: 2-17-00 By: \/s\/ Carl A. Thomson
\n —————- ————————————
\n Title: SR VP & CFO
\n ———————————<\/p>\n
Dated: 2-17-00 By: \/s\/ [ILLEGIBLE]
\n —————- ————————————
\n Title: CEO
\n ———————————<\/p>\n
26.<\/p>\n
EXHIBIT A<\/p>\n
SITE PLAN<\/p>\n
1.<\/p>\n
EXHIBIT B<\/p>\n
WORK LETTER<\/p>\n
THIS WORK LETTER dated February 16, 2000, is entered into by and between
\nCORPORATE TECHNOLOGY CENTRE ASSOCIATES II LLC (“Landlord”) and DIGITAL MICROWAVE
\nCORPORATION (“Tenant”). On or about the date hereof, Landlord and Tenant entered
\ninto that certain Lease (the “Lease”) for the Leased Premises, as defined in the
\nLease. This Work Letter sets forth the agreement of Landlord and Tenant with
\nrespect to the improvements to be constructed in the Leased Premises. In the
\nevent of any inconsistency between the terms of this Work Letter and the terms
\nof the Lease, the terms of the Lease shall control. All defined terms used
\nherein shall have the meanings set forth in the Lease, unless otherwise defined
\nin this Work Letter.<\/p>\n
1. TENANT IMPROVEMENTS. Tenant shall replace the HVAC system serving
\nthe Leased Premises and shall construct, furnish or install all improvements,
\nequipment or fixtures, that are necessary for Tenant’s use and occupancy of the
\nLeased Premises (the “Tenant Improvements”). Tenant shall also be responsible
\nfor the cost of any alterations to the Building required as a result of the
\nTenant Improvements. The Tenant Improvements shall be in conformity with
\ndrawings and specifications submitted to and approved by Landlord and shall be
\nperformed in accordance with the following provisions:<\/p>\n
(a) Tenant shall prepare and submit to Landlord for its
\napproval two sets of fully dimensioned scale drawings (suitable for submission
\nwith a building permit application) for the Tenant Improvements (including
\nplans, elevations, critical sections and details) and a specification of
\nTenant’s utility requirements. Tenant shall cause all drawings and
\nspecifications for the Tenant Improvements to be prepared by licensed architects
\nand where appropriate, mechanical, electrical and structural engineers.<\/p>\n
(b) Within 10 days after receipt of Tenant’s drawings Landlord
\nshall return one set of prints thereof with Landlord’s approval and\/or suggested
\nmodifications noted thereon. If Landlord has approved Tenant’s drawings subject
\nto modifications, such modifications shall be deemed to be acceptable to and
\napproved by Tenant unless Tenant shall prepare and resubmit revised drawings for
\nfurther consideration by Landlord. If Landlord has suggested modifications
\nwithout approving Tenant’s drawings Tenant shall prepare and resubmit revised
\ndrawings within seven days for consideration by Landlord. All revised drawings
\nshall be submitted, with changes highlighted, to Landlord within seven days
\nfollowing Landlord’s return to Tenant of the drawings originally submitted, and
\nLandlord shall approve or disapprove such revised drawings within seven days
\nfollowing receipt of the same.<\/p>\n
(c) Tenant shall obtain all building and other permits
\nnecessary in connection with the Tenant Improvements prior to the commencement
\nof such work. The Tenant Improvements shall (i) be constructed in compliance
\nwith all of the terms and conditions of the Lease and with all applicable laws
\nand regulations, (ii) not involve changes to structural components of the
\nBuilding nor involve any floor, roof, or wall penetrations unless approved by
\nLandlord, and (iii) not require any material modifications of the Building’s
\nmechanical or electrical systems unless approved by Landlord.<\/p>\n
(d) Prior to commencing construction, Tenant shall deliver to
\nLandlord the following:<\/p>\n
(i) The address of Tenant’s general contractor, and
\nthe names of the primary subcontractors Tenant’s contractor intends to engage
\nfor the construction of the Leased Premises.<\/p>\n
(ii) The actual commencement date of construction and
\nthe estimated date of completion of the work, including fixturization.<\/p>\n
(iii) Evidence of Insurance as called for herein-
\nbelow.<\/p>\n
(iv) An executed copy of the applicable building
\npermit for such work.<\/p>\n
(e) After final approval of Tenant’s drawings by Landlord, Tenant shall
\nproceed promptly to commence performance of the Tenant Improvements. Tenant’s
\ncontractors and subcontractors shall be acceptable to and approved in writing by
\nLandlord, which approval shall not be unreasonably withheld or delayed, and
\nshall, at Landlord’s option, be subject to administrative supervision by
\nLandlord in their use of the Building. Tenant shall furnish to Landlord a copy
\nof the executed contract between Tenant and Tenant’s general contractor covering
\nall of Tenant’s obligations under this Work Letter. Tenant shall use
\ncommercially reasonable efforts to cause such work to be performed in as
\nefficient a manner as is commercially reasonable. Tenant shall reimburse
\nLandlord on demand for the cost of repairing any damage to the Building caused
\nby Tenant or its contractors during performance of the Tenant Improvements.
\nTenant’s contractors shall conduct their work and employ labor in such manner as
\nto maintain harmonious labor relations. Tenant’s general contractor
\n(“Contractor”) shall obtain a builder’s risk policy of insurance in an amount
\nand form and issued by a carrier reasonably satisfactory to Landlord, and
\nTenant’s general contractor and subcontractors shall carry worker’s compensation
\ninsurance for their employees as required by law. The builder’s risk policy of
\ninsurance shall name Landlord as an additional insured and shall not be
\ncancelable without at least 30 days’ prior written notice to Landlord.<\/p>\n
(f) Any changes in the Tenant Improvements from the final drawings
\napproved by Landlord shall be subject to Landlord’s prior written approval,
\nwhich shall not be unreasonably withheld. Any deviation in construction from the
\ndesign specifications and criteria set forth herein or from Tenant’s plans and
\nspecifications as approved by Landlord shall constitute a default for which
\nLandlord may, within ten (10) days after giving written<\/p>\n
1.<\/p>\n
notice to Tenant, elect to exercise the remedies available in the event of
\ndefault under the provisions of this Lease, unless such default is cured within
\nsuch ten (10) day period, or, if the cure reasonably requires more than ten (10)
\ndays, unless such default is cured as soon as reasonably practicable but in no
\nevent later than thirty (30) days after Landlord’s notice to Tenant. Only new
\nmaterials shall be used in the construction of the Tenant Improvements, except
\nwith the written consent of Landlord.<\/p>\n
(g) During the construction of the Tenant Improvements, Tenant
\nshall provide and pay for temporary connections for all utilities brought to the
\nBuilding. Trash removal will be done continually at Tenant’s sole cost and
\nexpense. No trash, or other debris, or other waste may be deposited at any time
\noutside the Building. If so, Landlord may remove it at Tenant’s expense, which
\nexpense shall equal the cost of removal plus twenty-five percent (25%) of such
\ncosts as a management fee.<\/p>\n
(h) Storage of Tenant’s contractors’ construction materials,
\ntools and equipment shall be confined within the Building, and in no event shall
\nany materials or debris be stored outside of the Building.<\/p>\n
(i) Tenant acknowledges that it has engaged its architects and
\nshall be solely responsible for the actions and omissions of its architects and
\nfor any loss, liability, claim, cost, damage or expense suffered by Landlord or
\nany other entity or person as a result of the acts or omissions of its
\narchitects or for delays caused by its architects. Landlord’s approval of any of
\nTenant’s architects or engineers and of any documents prepared by any of them
\nshall not be for the benefit of Tenant or any third party, and Landlord shall
\nhave no duty to Tenant or to any third parties for the actions or omissions of
\nTenant’s architects or engineers. Tenant shall indemnify and hold harmless
\nLandlord against any and all losses, costs, damages, claims and liabilities
\narising from the actions or omissions of Tenant’s architects and engineers.<\/p>\n
(j) Landlord shall have the right to post in a conspicuous
\nlocation on the Building or the Leased Premises, as well as record with the
\nCounty of Santa Clara, a Notice of Non-responsibility.<\/p>\n
(k) Without limiting the generality of the foregoing, any work
\nto be performed outside of the Building shall be coordinated with Landlord, and
\nshall be subject to reasonable scheduling requirements of Landlord.<\/p>\n
(l) Tenant shall, upon completion of its work, submit to
\nLandlord two (2) complete sets of plans (one (1) reproducible) and
\nspecifications covering all of the Tenant Improvements, including
\narchitectural, electrical, and plumbing, as built.<\/p>\n
2. PAYMENT OF COSTS OF THE TENANT IMPROVEMENTS.<\/p>\n
(a) Unless specified otherwise herein, Landlord shall bear
\nand pay the cost of the Improvement Work (which cost shall include, without
\nlimitation, the costs of construction, the cost of permits and permit
\nexpediting, and all architectural and engineering services obtained by Landlord
\nin connection with the Tenant Improvements, the Contractor’s fees, Landlord’s
\nfee for construction administration in an amount equal to the amount charged by
\nLandlord’s construction manager (the “Construction Manager”), and any Property
\nMaintenance Costs from the date of this Work Letter until the Lease Commencement
\nDate) up to a maximum of $423,360 (the “Improvement Allowance). The Improvement
\nAllowance shall be utilized only for building improvements to the Building, and
\nnot for signage, furniture costs, any third party consulting or contracting fees
\n(except for Tenant’s architect’s fees), any telecom\/cabling costs, or any other
\npurpose. Tenant shall bear and pay the cost of the Improvement Work (including
\nbut not limited to all of the foregoing fees and costs) in excess of the
\nImprovement Allowance, if any. The cost of the Improvement Work shall exclude
\nthe cost of furniture, fixtures and inventory.<\/p>\n
(b) No less than the amount of $120,960.00 out of the
\nImprovement Allowance must be utilized by Tenant for replacement of the HVAC
\nsystem serving the Leased Premises and for no other purpose. The remainder of
\nthe Improvement Allowance shall be utilized only for building improvements to
\nthe Building or the other buildings in the Project leased to Tenant by Landlord,
\nand not for signage, furniture costs, any third party consulting or
\ncontracting fees (except for Tenant’s architect’s fees), any telecom\/cabling
\ncosts, or any other purpose. Tenant shall bear and pay the cost of the Tenant
\nImprovements (including but not limited to all of the foregoing fees and costs)
\nin excess of the Improvement Allowance, if any.<\/p>\n
(c) Not later than the 25th day of each month Tenant shall
\nsubmit applications for payment to Landlord in a form reasonably acceptable to
\nLandlord, certified as correct by an officer of Tenant and by Tenant’s
\narchitect, for payment of that portion of the cost of the Tenant Improvements
\nallocable to labor, materials and equipment incorporated in the Building during
\nthe period from the first day of the same month projected through the last day
\nof the month. Each application for payment shall set forth such information and
\nshall be accompanied by such supporting documentation as shall be reasonably
\nrequested by Landlord, including the following:<\/p>\n
(i) Invoices and canceled checks.<\/p>\n
(ii) Fully executed conditional lien releases in the
\nform prescribed by law from the Contractor and all subcontractors and suppliers
\nfurnishing labor or materials during such period and fully executed
\nunconditional lien releases from all such entities covering the prior payment
\nperiod.<\/p>\n
(iii) Contractor’s worksheets showing percentages of
\ncompletion.<\/p>\n
(iv) Contractor’s certification as follows:<\/p>\n
2.<\/p>\n
“There are no known mechanics’ or materialmen’s liens outstanding at
\n the date of this application for payment, all due and payable bills
\n with respect to the Building have been paid to date or shall be paid
\n from the proceeds of this application for payment, and there is no
\n known basis for the filing of any mechanics’ or materialmen’s liens
\n against the Building or the Property, and, to the best of our
\n knowledge, waivers from all subcontractors are valid and constitute an
\n effective waiver of lien under applicable law to the extent of
\n payments that have been made or shall be made concurrently herewith.”<\/p>\n
(d) Tenant shall submit with each application for payment all
\ndocuments necessary to effect and perfect the transfer of title to the
\nmaterials or equipment for which application or payment is made.<\/p>\n
(e) On or before the 15th day of the month following
\nsubmission of the application for payment, Landlord shall pay a share of such
\npayment determined by multiplying the amount of such payment by a fraction, the
\nnumerator of which is the amount of the Improvement Allowance, and the
\ndenominator of which is the sum of (i) estimated construction cost of all
\nTenant Improvements, and (ii) the estimated cost of all professional
\nservices, fees and permits in connection therewith. Tenant shall pay the
\nbalance of such payment, provided that at such time as Landlord has paid the
\nentire Improvement Allowance on account of such Tenant Improvements, all
\nbillings shall be paid entirely by Tenant. If upon completion of the Tenant
\nImprovements and payment in full to the Contractor, the architect and
\nengineer, and payment in full of all fees and permits, the portion of the
\ncost of the Tenant Improvements, architects’ and engineers’ fees, permits and
\nfees theretofore paid by Landlord is less than the Improvement Allowance,
\nLandlord shall reimburse Tenant for costs expended by Tenant for Tenant
\nImprovements up to the amount by which the Improvement Allowance exceeds the
\nportion of such cost theretofore paid by Landlord. Landlord shall have no
\nobligation to advance the Improvement Allowance to the extent it exceeds the
\ntotal cost of the Tenant Improvements. In no event shall Landlord have any
\nresponsibility for the cost of the Tenant Improvements in excess of the
\nImprovement Allowance. Landlord shall have no obligation to make any payments
\nto Contractor’s material suppliers or subcontractors or to determine whether
\namounts due them from Contractor in connection with the Tenant Improvements
\nhave, in fact, been paid.<\/p>\n
3. EVIDENCE OF COMPLETION OF TENANT IMPROVEMENTS. Upon the completion
\nof the Tenant Improvements, Tenant shall:<\/p>\n
(a) Submit to Landlord a detailed breakdown of Tenant’s final
\nand total construction costs, together with receipted evidence showing payment
\nthereof, satisfactory to Landlord.<\/p>\n
(b) Submit to Landlord all evidence reasonably available from
\ngovernmental authorities showing compliance with any and all other laws, orders
\nand regulations of any and all governmental authorities having jurisdiction over
\nthe Building, including, without limitation, authorization for physical
\noccupancy of the Building.<\/p>\n
(c) Submit to Landlord the as-built plans and specifications
\nreferred to above.<\/p>\n
4. ASSIGNMENT OF RIGHTS AGAINST ARCHITECT AND CONTRACTOR. Tenant hereby
\nassigns to Landlord on a non-exclusive basis any and all rights Tenant may have
\nagainst Tenant’s architects and contractors relating to the Tenant Improvements,
\nwithout in any way obligating Landlord to pursue or prosecute such rights.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Work Letter
\nas of the respective dates indicated below.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
\nthe respective dates below set forth with the intent to be legally bound thereby
\nas of the Effective date of this Lease first above set forth.<\/p>\n
LANDLORD:<\/p>\n
CORPORATE TECHNOLOGY CENTRE ASSOCIATES II LLC, a
\n California limited liability company<\/p>\n
By: Corporate Technology Centre Partners II LLC,
\n a California limited liability company, its
\n Managing Member<\/p>\n
By: Menlo Equities LLC, a California
\n limited liability company, its Managing
\n Member<\/p>\n
By: Diamant Investments LLC, a
\n Delaware limited liability
\n company, Member<\/p>\n
By: \/s\/ Richard J. Holmstrom
\n ——————————-
\n Richard J. Holmstrom, Manager<\/p>\n
Dated: 2-16-00<\/p>\n
3.<\/p>\n
TENANT:<\/p>\n
DIGITAL MICROWAVE CORPORATION, a
\n Delaware corporation<\/p>\n
Dated: 2-17-00 By: \/s\/ [ILLEGIBLE]
\n ————————————
\n Title: SR VP – CFO
\n ———————————<\/p>\n
Dated: 2-17-00 By: \/s\/ [ILLEGIBLE]
\n ————————————
\n Title: CEO
\n ———————————<\/p>\n
4.<\/p>\n
EXHIBIT C<\/p>\n
FORM OF ESTOPPEL CERTIFICATE<\/p>\n
———————, 2000<\/p>\n
———————————–
\n———————————–
\n———————————–
\n———————————–<\/p>\n
Re 170 Rose Orchard Way
\n San Jose, California<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is made to that certain Lease, dated as of February __, 2000
\nbetween CORPORATE TECHNOLOGY CENTRE ASSOCIATES II LLC, a California limited
\nliability company (“Landlord”), and the undersigned (herein referred to as
\nthe “Lease”). A copy of the Lease [and all amendment thereto] is[are] attached
\nhereto as EXHIBIT A. At the request of Landlord in connection with
\n[ State reasons for request for estoppel certificate], the undersigned hereby
\ncertifies to Landlord and to [ State names of other parties requiring
\ncertification ] and each of your respective successors and assigns as follows:<\/p>\n
1. The undersigned is the tenant under the Lease.<\/p>\n
2. The Lease is in full force and effect and has not been amended,
\nmodified, supplemented or superseded except as indicated in Exhibit A.<\/p>\n
3. There is no defense, offset, claim or counterclaim by or in
\nfavor of the undersigned against Landlord under the Lease or against the
\nobligations of the undersigned under the Lease. The undersigned has no
\nrenewal, extension or expansion option, no right of first offer or right of
\nfirst refusal and no other similar right to renew or extend the term of the
\nLease or expand the property demised thereunder except as may be expressly
\nset forth in the Lease.<\/p>\n
4. The undersigned is not aware of any default now existing of the
\nundersigned or of Landlord under the Lease, nor of any event which with
\nnotice or the passage of time or both would constitute a default of the
\nundersigned or of Landlord under the Lease.<\/p>\n
5. The undersigned has not received notice of a prior transfer,
\nassignment, hypothecation or pledge by Landlord of any of Landlord’s interest
\nin the Lease.<\/p>\n
6. The monthly rent due under the Lease is $ and has been
\n ———–
\npaid through , and all additional rent due and payable under
\n —————
\nthe Lease has been paid through ——————-.<\/p>\n
7. The term of the Lease commenced on , and
\n ——————
\nexpires on , unless sooner terminated pursuant to the
\n —————–
\nprovisions of the Lease. Landlord has performed all work required by the
\nLease for the undersigned’s initial occupancy of the demised property.<\/p>\n
8. The undersigned has deposited the sum of $ with
\n ———–
\nLandlord as security for the performance of its obligations as tenant under
\nthe Lease, and no portion of such deposit has been applied by Landlord to any
\nobligation under the Lease.<\/p>\n
9. There is no free rent period pending, nor is Tenant entitled to
\nany Landlord’s contribution.<\/p>\n
The above certifications are made to Landlord and Lender knowing that
\nLandlord and Lender will rely thereon in accepting an assignment of the Lease.<\/p>\n
Very truly yours,<\/p>\n
DIGITAL MICROWAVE CORPORATION<\/p>\n
By:
\n ————————————
\nName:
\n ———————————-
\nTitle:
\n ———————————<\/p>\n
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