\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,
\n unless earlier terminated by Landlord in accordance with
\n the terms of this Lease, or extended by Tenant pursuant to
\n 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: $20,151.45<\/p>\n
Tenant’s Security Deposit: $26,257.95<\/p>\n
Late Charge Amount: Five Percent (5%) of the Delinquent Amount<\/p>\n
Tenant’s Required Liability
\n 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 Jose,
\n County of Santa Clara, State of California, as presently
\n improved with 5 building(s), which real property is shown on
\n the Site Plan attached hereto as Exhibit “A.”<\/p>\n
Property: That certain real property situated in the City of San Jose,
\n County of Santa Clara, State of California, as presently
\n improved with 1 building, which real property is shown on the
\n 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
\n described as 180 Rose Orchard Way, California. (the “Building”)
\n located on Assessor’s Parcel No. 97-03-078, 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. 97-03-078 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: Certain interior space within the Building, consisting of
\n approximately 12,213 square feet and, for purposes of this
\n 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 Leased
\n Premises at the time of calculation by the rentable square
\n footage of the Building. Such percentage is currently 21.61%.<\/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 of
\n calculation. Such percentage is currently 3.92%. In the event
\n that any portion of the Property is sold by Landlord, or the
\n rentable square footage of the Leased Premises or the Property
\n is otherwise changed, Tenant’s Expense Share shall be recalculated
\n to equal the percentage described in the first sentence of this
\n paragraph, so that the aggregate Tenant’s Expense Share of all
\n tenants of the Property shall equal 100%. Tenant’s Expense Share
\n is subject to adjustment as set forth in Paragraphs 13.12(b) and
\n 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 $20,151.45
\n 1\/1\/02-12\/31\/02 $20,762.10
\n 1\/1103-12\/31\/03 $21,372.75
\n 1\/1\/04-12\/31\/04 $21,983.40
\n 1\/1\/05-12\/31\/05 $22,594.05
\n 1\/1\/06-12\/31\/06 $23,326.83
\n 1\/1\/07-12\/31\/07 $24,059.61
\n 1\/1\/08-12\/31\/08 $24,792.39
\n 1\/1\/09-12\/31\/09 $25,525.17
\n 1\/1\/10-12\/31\/10 $26,257.95<\/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 the
\n 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. Landlord
\nhereby represents that Landlord has not received notice from any governmental
\nagencies that the Leased Premises or Building do not comply with the Americans
\nWith 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 Loan 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 subletting 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 to
\nhave Tenant pay Real Property Taxes or any portion thereof directly to the
\napplicable taxing authority, in which case Tenant shall make such payments and
\ndeliver satisfactory evidence of payment to Landlord no later than ten (10) days
\nbefore 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
\nend of the applicable calendar or fiscal year, as the case may be, a
\nstatement setting forth (i) the amount of such, expenses paid or incurred
\nduring the just ended calendar or fiscal year, as appropriate, and (ii) the
\namount that Tenant has paid to Landlord for credit against such expenses for
\nsuch period. If Tenant shall have paid more than its obligation for such
\nexpenses for the stated period, Landlord shall, at its election, either (i)
\ncredit the amount of such overpayment toward the next ensuing payment or
\npayments of Additional Rent that would otherwise be due or (ii) refund in
\ncash to Tenant the amount of such overpayment. If such year-end statement
\nshall show that Tenant did not pay its obligation for such expenses in full,
\nthen Tenant shall pay to Landlord the amount of such underpayment within ten
\ndays from Landlord’s billing of same to Tenant. The provisions of this
\nParagraph shall survive the expiration 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
\nright to terminate this Lease. If any rent remains delinquent for a period in
\nexcess of five (5) calendar days, then, in addition to such late charge,
\nTenant shall pay to Landlord interest on any rent that is not so paid from
\nsaid tenth day at the then maximum rate of interest not prohibited or made
\nusurious by Law until paid.<\/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 Tern. 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 the
\namount set forth in Article 1 as “First Month’s Prepaid Rent” as prepayment of
\nrent for credit against the first payment of Base Monthly Rent due 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 1 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 be 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 Lremises, 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 4<\/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 Of impair
\nthe efficient operation of any electrical, plumbing, heating, ventilating or
\nair conditioning systems within or by 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 discharge
\nany fluids in the landscaped areas or across the paved areas of the Property.
\nTenant shall not use any of the Outside Areas for the storage of its materials,
\nsupplies, inventory or equipment and all such materials, supplies, inventory or
\nequipment shall at all times be stored within the Leased Premises. Tenant shall
\nnot commit nor permit to be committed any waste in or about the Leased Premises,
\nthe Building, the Outside Areas or the Property,<\/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 all
\nof its trash, garbage and waste. All such trash, garbage and waste temporarily
\nstored in such areas shall be stored in such a manner so that it is not visible
\nfrom outside of such areas, and Tenant shall cause such trash, garbage and waste
\nto be regularly removed from the Property. Tenant shall keep the Leased Premises
\nand the Outside Areas in a clean, safe and neat condition free and clear of all
\nof Tenant’s trash, garbage, waste and\/or boxes, pallets and containers
\ncontaining 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 A.
\nTenant shall not, at any time, park or permit to be parked any recreational
\nvehicles, inoperative vehicles or equipment in the Outside Areas or on any
\nportion of the Property. Tenant agrees to assume responsibility for compliance
\nby its employees and invitees with the parking provisions contained herein. If
\nTenant or its employees park any vehicle within the Property in violation of
\nthese provisions, then Landlord may, upon prior written notice to Tenant giving
\nTenant one (1) day (or any applicable statutory notice period, if longer than
\none (1) day) to remove such vehicle(s), in addition to any other remedies
\nLandlord may have under this Lease, charge Tenant, as Additional Rent, and
\nTenant agrees to pay, as Additional Rent, One Hundred Dollars ($100) per day for
\neach day or partial day that each such vehicle is so parked within the Property.
\nLandlord reserves the right to grant casements and access rights to others for
\nuse of the 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 Premises 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 the
\nprovisions of this Lease, Tenant shall not conduct nor permit any other person
\nto conduct any activities nor keep, store or use (or allow any other person to
\nkeep, store or use) any item or thing within the Leased Premises, the Building,
\nthe Outside Areas or the Property which (i) is prohibited under the terms of any
\nsuch policies, (ii) could result in the termination of the coverage afforded
\nunder any of such policies, (iii) could give to the insurance carrier the right
\nto cancel any of such policies, or (iv) could cause an increase in the rates
\n(over standard rates) charged for the coverage afforded under any of such
\npolicies. Tenant shall comply with all requirements of any insurance company,
\ninsurance underwriter, or Board of Fire Underwriters which are necessary to
\nmaintain, at standard rates, the insurance coverages carried by either Landlord
\nor Tenant pursuant to this Lease.<\/p>\n
4.9 LANDLORD’S RIGHT TO ENTER. Landlord and its agents shall have the right to
\nenter the Leased Premises during normal business hours after giving Tenant
\nreasonable notice and subject to Tenant’s reasonable security measures for the
\npurpose 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 agreed),
\nsubject to Tenant’s reasonable security measures, for purposes of supplying any
\nmaintenance or services agreed to be supplied by Landlord. Landlord shall have
\nthe right to enter the Outside Areas<\/p>\n
6.<\/p>\n
during normal business hours for purposes of (i) inspecting the exterior of the
\nBuilding and the Outside Areas; (ii) posting notices of nonresponsibility (and
\nfor such purposes Tenant shall provide Landlord at least thirty days’ prior
\nwritten notice of any work to be performed on the Leased Premises); and (iii)
\nsupplying any services to be provided by Landlord. Any entry into the Leased
\nPremises or the Outside areas obtained by Landlord in accordance with this
\nparagraph shall not under any circumstances be construed or deemed to be a
\nforcible or unlawful entry into, or a detainer of, the Leased Premises, or an
\neviction, 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 all
\ntimes 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 by
\nreason of, or under claim of, the express or implied authority or consent of
\nTenant, then Tenant, upon demand of Landlord, shall restrain, to the fullest
\nextent then allowed by Law, such unauthorized use, and shall initiate such
\nappropriate proceedings as may be required to so restrain such use. Landlord
\nreserves the right to grant easements and access rights to others for use of the
\nOutside Areas and shall not be liable to Tenant for any diminution in Tenant’s
\nright 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 toxic
\nor hazardous substance, material or waste or any pollutant or infectious or
\nradioactive material, including but not limited to those substances, materials
\nor wastes regulated now or in the future under any of the following statutes or
\nregulations and any and all of those substances included within the definitions
\nof “hazardous substances,” “hazardous materials,” “hazardous waste” “hazardous
\nchemical substance or mixture,” “imminently hazardous chemical substance or
\nmixture,” “toxic substances,” “hazardous air pollutant,” “toxic pollutant,” or
\n“solid waste” in the (a) Comprehensive Environmental Response, Compensation and
\nLiability Act of 1990 (“CERCLA” or “Superfund”), as amended by the Superfund
\nAmendments and Reauthorization Act of 1986 (“SARA”), 42 U.S.C. Section 9601 ET
\nSEQ., (b) Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C.
\nSection 6901 ET SEQ., (c) Federal Water Pollution Control Act (“FSPCA”), 33
\nU.S.C. SECTION 1251 ET SEQ., (d) Clean Air Act (“CAA”), 42 U.S.C. Section 7401
\nET SEQ., (e) Toxic Substances Control Act (“TSCA”), 14 U.S.C. Section 2601 ET
\nSEQ., (f) Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, ET
\nSEQ., (g) Carpenter-Presley-Tanner Hazardous Substance Account Act (“California
\nSuperfund”), Cal. Health & Safety Code SECTION 25300 ET SEQ., (h) California
\nHazardous Waste Control Act, Cal. Health & Safety code Section 25100 ET SEQ.,
\n(i) Porter-Cologne Water Quality Control Act (“Porter-Cologne Act”), Cal. Water
\nCode Section 13000 ET SEQ., (j) Hazardous Waste Disposal Land Use Law, Cal.
\nHealth & Safety codes Section 25220 ET SEQ., (k) Safe Drinking Water and Toxic
\nEnforcement Act of 1986 (“Proposition 65”), Cal. Health & Safety code Section
\n25249.5 ET SEQ., (1) Hazardous Substances Underground Storage Tank Law, Cal.
\nHealth & Safety code Section 25280 ET SEQ., (m) Air Resources Law, Cal. Health & Safety Code Section 39000 ET SEQ., and (n) regulations promulgated pursuant to
\nsaid laws or any replacement thereof, or as similar terms are defined in the
\nfederal, state and local laws, statutes, regulations, orders or rules.
\nhazardous Materials shall also mean any and all other biohazardous wastes and
\nsubstances, materials and wastes which are, or in the future become, regulated
\nunder applicable Laws for the protection of health or the environment, or which
\nare classified as hazardous or toxic substances, materials or wastes, pollutants
\nor contaminants, 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) materials
\nand wastes that are harmful to or may threaten human health, ecology or the
\nenvironment.<\/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
\nexecution of this Lease and update at least annually with Landlord
\n(“Permitted Materials”) which may be used, stored and disposed of provided
\n(i) such Permitted Materials are used stored, transported, and disposed of in
\nstrict compliance with applicable laws, (ii) such Permitted Materials shall
\nbe limited 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 demonsate 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 and
\nsoil to determine whether levels of any Hazardous Materials in excess of legally
\npermissible levels has occurred as a result of Tenant’s use thereof. Landlord
\nshall furnish copies of all such test results and reports to Tenant and, at
\nTenant’s option and cost, shall permit split sampling for testing and analysis
\nby Tenant. Such testing shall be at Tenant’s expense if Landlord has a
\nreasonable basis for suspecting and confirms the presence of Hazardous Materials
\nin the soil or surface or ground water in, on, under, or about the Property, the
\nBuilding or the Leased Premises, which has been caused by or resulted from the
\nactivities 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 or
\nadditions 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 this Lease. If there is a conflict between the rules and
\nregulations and any of the provisions of this Lease, the provisions of this
\nLease shall prevail. Landlord shall not be responsible or liable to Tenant for
\nthe violation of such rules and regulations by any other tenant of the 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 deem necessary, and to cause the recordation of parcel
\nmaps and restrictions, so long as such easements, rights of way and dedications
\ndo not unreasonably interfere with the use of the Leased Premises by Tenant.
\nTenant agrees to execute any documents reasonably requested by Landlord to
\neffectuate any such easement rights, dedications, maps or restrictions.<\/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 Lease
\nTerm and at its sole cost and expense, regularly clean and continuously keep and
\nmaintain in good order, condition and repair the Leased Premises and every part
\nthereof including, without limiting the generality of the foregoing, (i) all
\ninterior walls, floors and ceilings, (ii) all windows, doors and skylights,
\n(iii) all electrical wiring, conduits, connectors and fixtures, (iv) all
\nplumbing, pipes, sinks, toilets, faucets and drains, (v) all lighting fixtures,
\nbulbs and lamps and all heating, ventilating and air conditioning equipment, and
\n(vi) all entranceways to the Leased Premises. Tenant, if requested to do so by
\nLandlord, shall hire, at Tenant’s sole cost and expense, a licensed heating,
\nventilating and air conditioning contractor to regularly and periodically (not
\nless frequently than every three months) inspect and perform required
\nmaintenance on the heating, ventilating and air conditioning equipment and
\nsystems serving the Leased Premises, or alternatively, Landlord may, at its
\nelection, contract in its own name for such regular and periodic inspections of
\nand maintenance on such heating, ventilating and air conditioning equipment and
\nsystems and charge to Tenant, as Additional Rent, the cost thereof. Tenant
\nshall, at all times during the Lease Term, keep in a clean and safe condition
\nthe Outside Areas. Tenant shall regularly and periodically sweep and clean the
\ndriveways and parking areas. Tenant shall, at its sole cost and expense, repair
\nall damage to the Leased 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 required
\nmaintenance or fail to make repairs required of it pursuant to this paragraph
\nwithin a reasonable period of time following notice from Landlord to do so, then
\nLandlord may, at its election and without waiving arty other remedy it may
\notherwise have under this Lease or at law, perform such Maintenance or make such
\nrepairs and charge to Tenant, as Additional Rent, the costs so incurred by
\nLandlord for same. All glass within or a part of the Leased Premises, both
\ninterior and exterior, is at the sole risk of Tenant and any broken glass shall
\npromptly be replaced by Tenant at Tenant’s expense with glass of the same kind,
\nsize 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 own
\nname, for the supply of gas and electricity to the Leased Premises. In the event
\nthat such services are not separately metered, Tenant shall, at its sole
\nexpense, cause such meters to be installed. Landlord shall maintain the water
\nmeter(s) in its own name; provided, however, that if at any time during the
\nLease Term Landlord shall require Tenant to put the water service in Tenant’s
\nname, Tenant shall do so at Tenant’s sole cost. Tenant shall be responsible for
\ndetermining if the local supplier of water, gas and electricity can supply the
\nneeds of Tenant and whether or not the existing water, gas and electrical
\ndistribution systems within the Building and the Leased Premises are adequate
\nfor Tenant’s needs. Tenant shall be responsible for determining if the existing
\nsanitary and storm sewer systems now servicing the Leased Premises and the
\nProperty are adequate for Tenant’s needs. Tenant shall pay all charges for
\nwater, gas, electricity and storm and sanitary sewer services as so supplied to
\nthe Leased Premises, irrespective of whether or not the services are maintained
\nin 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 for
\nthe 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
\nTenant for injury to Tenant, its employees, agents, invitees or contractors,
\ndamage to Tenant’s property or loss of Tenant’s business or profits, nor
\nshall Tenant be entitled to terminate this Lease or to any reduction in or
\nabatement of rent by reason of (i) Landlord’s failure to provide security
\nservices or systems within the property for the protection of the Leased
\nPremises, the Building or the Outside Areas, or the protection of Tenant’s
\nproperty or Tenant’s employees, invitees, agents or contractors, or (ii)
\nLandlord’s failure to perform any maintenance or repairs to the Leased
\nPremises, the Building, the Outside Areas or the Property until Tenant shall
\nhave first notified Landlord, in writing, of the need for such maintenance or
\nrepairs, and then only after Landlord shall have had a reasonable period of
\ntime following its receipt of such notice within which to perform such
\nmaintenance or repairs, or (iii) any failure, interruption, rationing or
\nother curtailment in the supply of water, electric current, gas or other
\nutility service to the Leased Premises, the Building, the Outside Areas or
\nthe Property from whatever cause (other than Landlord’s sole active
\nnegligence 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 alteration 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
\nto require Tenant to remove all non-standard 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
\ncharges related thereto), using a licensed contractor first approved by
\nLandlord, in substantial compliance with the Landlord-approved plans and
\nspecifications therefor. All work undertaken by Tenant shall be done in
\naccordance with all Laws and in a good and workmanlike manner using new
\nmaterials of good quality. Tenant shall not commence the making of any such
\nmodifications or alterations or the construction of any such improvements
\nuntil (i) all required governmental approvals and permits shall have been
\nobtained, (ii) all requirements regarding insurance imposed by this Lease
\nhave been satisfied, (iii) Tenant shall have given Landlord at least five (5)
\nbusiness days prior written notice of its intention to commence such work so
\nthat Landlord may post and file notices of non-responsibility, and (iv) if
\nrequested by Landlord, Tenant shall have obtained contingent liability and
\nbroad form builder’s risk insurance in an amount satisfactory to Landlord in
\nits reasonable discretion to cover any perils relating to the proposed work
\nnot covered by insurance carried by Tenant pursuant to Article 9. In no event
\nshall Tenant make any modification, alterations or improvements whatsoever to
\nthe Outside Areas or the exterior or structural components of the Building
\nincluding, without limitation, any cuts or penetrations in the floor, roof or
\nexterior walls of the Leased Premises. As used in this Article, the term
\n“modifications, alterations and\/or improvements” shall include, without
\nlimitation, the installation of additional electrical outlets, overhead
\nlighting fixtures, drains, sinks, partitions, doorways, or the like.
\nNotwithstanding the foregoing, Tenant, without Landlord’s prior written
\nconsent, shall be permitted to make non-structural alterations to the
\nBuilding, provided that: (a) such alterations do not exceed $25,000
\nindividually, (b) Tenant shall timely provide Landlord the notice required
\npursuant to Paragraph 4.9 above, (c) Tenant shall notify Landlord in writing
\nwithin thirty (30) days of completion of the alteration and deliver to
\nLandlord a set of the plans and specifications therefor, either “as built” or
\nmarked to show construction changes made, (d) Tenant shall, upon Landlord’s
\nrequest, remove the alteration at the termination of the Lease and restore
\nthe Leased Premises to their condition prior to such alteration, and (e)
\nTenant shall otherwise comply with the terms of this Article 6 regarding
\nalterations and improvements.<\/p>\n
6.2 OWNERSHIP OF IMPROVEMENTS. All modifications, alterations and
\nimprovements made or added to the Leased Premises by Tenant (other than
\nTenant’s inventory, equipment, movable furniture, wall decorations and trade
\nfixtures) shall be deemed real property and a part of the Leased Premises,
\nbut shall remain the property of Tenant during the Lease, and Tenant hereby
\ncovenants and agrees not to grant a security interest in any such items to
\nany party other than Landlord. Any such modifications, alterations or
\nimprovements, once completed, shall not be altered or removed from the Leased
\nPremises during the Lease Term without Landlord’s written approval first
\nobtained in accordance with the provisions of Paragraph 6.1 above. At the
\nexpiration or sooner termination of this Lease, all such modifications,
\nalterations and improvements other than Tenant’s inventory, equipment,
\nmovable furniture, wall decorations and trade fixtures, shall automatically
\nbecome the property of Landlord and shall be surrendered to Landlord as part
\nof the Leased Premises as required pursuant to Article 2, unless Landlord
\nshall require Tenant to remove any of such modifications, alterations or
\nimprovements in accordance with the provisions of Article 2, in which case
\nTenant shall so remove same. Landlord shall have no obligations to reimburse
\nTenant for all or any portion of the cost or value of any such modifications,
\nalterations or improvements so surrendered to Landlord. All modifications,
\nalterations or improvements which are installed or constructed on or attached
\nto the Leased Premises by Landlord and\/or at Landlord’s expense shall be
\ndeemed real property and a part of the Leased Premises and shall be property
\nof Landlord. All lighting, plumbing, electrical, heating, ventilating and air
\nconditioning fixtures, partitioning, window coverings, wall coverings and
\nfloor coverings installed by Tenant shall be deemed improvements to the
\nLeased 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
\nare required by any Law because of (i) Tenant’s use or occupancy of the
\nLeased Premises, the Building, the Outside Areas or the Property, (ii)
\nTenant’s application for any permit or governmental approval, or (iii)
\nTenant’s making Of any modifications, alterations or improvements to or
\nwithin the Leased Premises. If Landlord shall, at any time during the Lease
\nTerm, be required by any governmental authority to make any modifications,
\nalterations or improvements to the Building or the Property, the cost
\nincurred by Landlord in making such modifications, alterations or
\nimprovements, including interest at a rate equal to the greater of (a) 12%,
\nor (b) the sum of that rate quoted by Wells Fargo Bank, N.T. & S.A. from time
\nto time as its prime rate, plus two percent (2%) (“Wells Prime Plus Two”)
\n(but in no event more than the maximum rate of interest not prohibited or
\nmade usurious), shall be amortized by Landlord over the useful life of such
\nmodifications, alterations or improvements, as determined in accordance with
\ngenerally accepted accounting principles, and the monthly amortized cost of
\nsuch modifications, alterations and improvements as so amortized shall be
\nconsidered a Property Maintenance Cost.<\/p>\n
6.4 LIENS. Tenant shall keep the Property and every part thereof free from
\nany lien, and shall pay when due all bills arising out of any work performed,
\nmaterials furnished, or obligations incurred by Tenant, its agents, employees
\nor contractors relating to the Property. If any such claim of lien is
\nrecorded against Tenant’s interest in this Lease, the Property or any part
\nthereof, Tenant shall bond against, discharge or otherwise cause such lien to
\nbe entirely released within ten days after the same has been recorded.
\nTenant’s failure to do so shall be conclusively deemed a material default
\nunder the terms of this Lease.<\/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)
\nhas been 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
\nlitigation with 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 inprovements 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 isof 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
\nterminate this Lease in the event any of the following occurs, which option
\nmay be exercised only by delivery to Tenant of a written notice of election
\nto terminate 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
\nLandlord was not required to insure against pursuant to the provisions of
\nArticle 9 of this 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 the
\noption to terminate this Lease in the event any of the following occurs, which
\noption may be exercised only by delivery to Landlord of a written notice of
\nelection to terminate within seven days after Tenant receives from Landlord the
\nestimate 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
\nconstruction consultant’s written opinion is delivered; or<\/p>\n
(b) If the damage occurred within twelve months of the last day of
\nthe Lease Term and the time estimated to substantially complete the
\nrestoration exceeds one hundred eighty days from and after the date such
\nrestoration is commenced.<\/p>\n
10.5 TENANT’S WAIVER. Landlord and Tenant agree that the provisions of
\nParagraph 10.4 above, captioned “Tenant’s Right To Terminate”, are intended
\nto supersede and replace the provisions contained in California Civil Code,
\nSection 1932, Subdivision 2, and California Civil Code, Section 1934, and
\naccordingly, Tenant hereby waives the provisions of such Civil Code Sections
\nand the provisions of any successor Civil Code Sections or similar laws
\nhereinafter enacted.<\/p>\n
10.6 ABATEMENT OF RENT. In the event of damage to the Leased Premises which
\ndoes not result in the termination of this Lease, the Base Monthly Rent (and
\nany Additional Rent) shall be temporarily abated during the period of
\nrestoration in proportion in the degree to which Tenant’s use of the Leased
\nPremises is impaired 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
\n11.4 below regarding temporary takings, Tenant shall have the option to
\nterminate this Lease if, as a result of any taking, (i) all of the Leased
\nPremises is taken, or (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. Tenant must exercise such option
\nwithin a reasonable period of time, to be effective on the later to occur of
\n(i) the date that possession of that portion of the Leased Premises that is
\ncondemned is taken by the condemnor or (ii) the date Tenant vacated the
\nLeased 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
\nof its right, title and interest in any such award; PROVIDED, HOWEVER, that
\nTenant shall be entitled to receive any portion of the award that is made
\nspecifically (i) for the taking of personal property, inventory or trade
\nfixtures belonging to Tenant, (ii) for the interruption of Tenant’s business
\nor its moving costs, or (iii) for the value of any leasehold improvements
\ninstalled and paid for by Tenant. The rights of Landlord and Tenant regarding
\nany condemnation shall be determined as provided in this Article, and each
\nparty hereby waives the provisions of Section 1265.130 of the California Code
\nof Civil Procedure, and the provisions of any similar law hereinafter
\nenacted, allowing either party to petition the Supreme Court to terminate
\nthis Lease and\/or otherwise allocate condemnation awards between Landlord and
\nTenant in the event of a taking of the Leased 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 Base
\nMonthly Rent shall be reduced in the same proportion that the area of that part
\nof the Leased Promises so taken (less any addition to the area of the Leased
\nPremises by reason of any reconstruction) bears to the area of the Leased
\nPremises 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 a
\nreorganization 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 statute
\nof the United States or any state thereof; or (iii) otherwise directs the
\nwinding up or liquidation of Tenant; provided, however, if any decree or order
\nwas entered without Tenant’s consent or over Tenant’s objection, Landlord
\nmay not terminate this Lease pursuant to this Subparagraph if such decree order
\nis rescinded or reversed within thirty days after its original 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 and
\nenforce, by an action at law or in equity, all of its rights and remedies under
\nthis Lease including, without limitation, (i) the right to recover the rent and
\nother sums as they become due by appropriate legal action, (ii) the right to
\nmake payments required by Tenant, or perform Tenant’s obligations and be
\nreimbursed by Tenant for the cost thereof with interest at the then maximum rate
\nof interest not prohibited by law from the date the sum is paid by Landlord
\nuntil Landlord is reimbursed by Tenant, and (iii) the remedies of injunctive
\nrelief and specific performance to prevent Tenant from violating the terms of
\nthis Lease and\/or to compel Tenant to perform its obligations under this Lease,
\nas 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 1951.2, as in effect on the Effective Date of this
\nLease. For purposes of computing damages pursuant to Section 1951.2, an interest
\nrate equal to the maximum rate of interest then not prohibited by law shall be
\nused where permitted. Such damages shall include, without limitation: <\/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 the
\nunpaid rent for the balance of the term after the time of award exceeds the
\namount of such rental loss that Tenant proves could be reasonably avoided,
\ncomputed by discounting such amount at the discount rate of the Federal Reserve
\nBank of San Francisco, at the time of award plus one percent; and<\/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 be
\nlikely to result therefrom, including without limitation, the following: (i)
\nexpenses for cleaning, repairing or restoring the Leased Premises, (ii) expenses
\nfor altering, remodeling or otherwise improving the Leased Premises for the
\npurpose of reletting, including removal of existing leasehold improvements
\nand\/or installation of additional leasehold improvements (regardless of how the
\nsame is funded, including reduction of rent, a direct payment or allowance to a
\nnew tenant, or otherwise), (iii) broker’s fees allocable to the remainder of the
\nterm of this Lease, advertising costs and other expenses of reletting the Leased
\nPremises; (iv) costs of carrying and maintaining the Leased Premises, such as
\ntaxes, insurance premiums, utility charges and security precautions, (v)
\nexpenses incurred in removing, disposing of and\/or storing any of Tenant’s
\npersonal property, inventory or trade fixtures remaining therein; (vi)
\nreasonable attorney’s fees, expert witness fees, court costs and other
\nreasonable expenses incurred by Landlord (but not limited to taxable costs) in
\nretaking possession of the Leased Premises, establishing damages hereunder, and
\nreleasing the Leased Premises; and (vii) any other expenses, costs or damages
\notherwise incurred or suffered as 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 in
\ndefault under the terms of this Lease until such time as Tenant shall have first
\ngiven Landlord written notice specifying the nature of such failure to perform
\nits obligations, and then only after Landlord shall have had thirty (30) days
\nfollowing its receipt of such notice within which to perform such obligations;
\nPROVIDED THAT, if longer than thirty (30) days is reasonably required in order
\nto perform such obligations, Landlord shall have such longer period. In the
\nevent of Landlord’s default as above set forth, then, and only then, Tenant may
\nthen proceed in equity or at law to compel Landlord to perform its obligations
\nand\/or to recover damages proximately caused by such failure to perform
\n(except as and to the extent Tenant has waived its right to damages as provided
\nin 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
\nor principals. Additionally, if Landlord is a partnership or limited
\nliability company, 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 Paragraph
\n12.3 above are intended to supersede and replace the provisions of California
\nCivil Code Sections 1932(1), 1941 and 1942, and accordingly, Tenant hereby
\nwaives the provisions of California Civil Code Sections 1932(1), 1941 and 1942
\nand\/or any similar or successor law regarding Tenant’s right to terminate this
\nLease or to make repairs and deduct the expenses of such repairs from the rent
\ndue 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 all
\ntaxes, assessments, license fees, use fees, permit fees and public charges of
\nwhatever nature or description levied, assessed or imposed against Tenant or
\nLandlord by a governmental agency arising out of, caused by reason of or based
\nupon Tenant’s estate in this Lease, Tenant’s ownership of property, improvements
\nmade by Tenant to the Leased Premises or the Outside Areas, improvements made by
\nLandlord for Tenant’s use within the Leased Premises or the Outside Areas,
\nTenant’s use (or estimated use) of public facilities or services or Tenant’s
\nconsumption (or estimated consumption) of public utilities, energy, water or
\nother resources (collectively, “Tenant’s Interest”). Upon demand by Landlord,
\nTenant shall furnish Landlord with satisfactory evidence of these payments. If
\nany such taxes, assessments, fees or public charges are levied against Landlord,
\nLandlord’s property, the Building or the Property, or if the assessed value of
\nthe Building or the Property is increased by the inclusion therein of a value
\nplaced upon Tenant’s Interest, regardless of the validity thereof, Landlord
\nshall have the right to require Tenant to pay such taxes, and if not paid and
\nsatisfactory evidence of payment delivered to Landlord at least ten days prior
\nto delinquency, then Landlord shall have the right to pay such taxes on Tenant’s
\nbehalf and to invoice Tenant for the same. Tenant shall, within the earlier to
\noccur of (a) thirty (30) days of the date it receives an invoice from Landlord
\nsetting forth the amount of such taxes, assessments, fees, or public charge so
\nlevied, or (b) the due date of such invoice, pay to Landlord, as Additional
\nRent, the amount set forth in such invoice. Failure by Tenant to pay the amount
\nso invoiced within such time period shall be conclusively deemed a default by
\nTenant under this Lease. Tenant shall have the right to bring suit in any court
\nof competent jurisdiction to recover from the taxing authority the amount of any
\nsuch taxes, assessments, fees or public 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 Premises.
\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
\nall ground leases, mortgages and deeds of trust which affect the Building or
\nthe Property and which are of public record as of the Effective Date of this
\nLease, and to all renewals, modifications, consolidations, replacements and
\nextensions thereof. However, if the lessor under any such ground lease or any
\nlender holding any such mortgage or deed of trust shall advise Landlord that
\nit desires or requires this Lease to be made prior and superior thereto,
\nthen, upon written request of Landlord to Tenant, Tenant shall promptly
\nexecute, acknowledge and deliver any and all customary or reasonable
\ndocuments or instruments which Landlord and such lessor or lender deems
\nnecessary or desirable to make this Lease prior thereto. Tenant hereby
\nconsents to Landlord’s ground leasing the land underlying the Building or the
\nProperty 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 or
\ndeeds of trust shall be subject to and subordinate to this Lease. However, if
\nany lessor under any such future ground lease or any lender holding such future
\nmortgage or deed of trust shall desire or require that this Lease be made
\nsubject to and subordinate to such future ground lease, mortgage or deed of
\ntrust, then Tenant agrees, within ten days after Landlord’s written request
\ntherefor, to execute, acknowledge and deliver to Landlord any and all documents
\nor instruments requested by Landlord or by such lessor or lender as may be
\nnecessary or proper to assure the subordination of this Lease to such future
\nground lease, mortgage or deed of trust, but only if such lessor or lender
\nagrees to recognize Tenant’s rights under this Lease and agrees not to disturb
\nTenant’s quiet possession of the Leased Premises so long as Tenant is not in
\ndefault under this Lease. If Landlord assigns the Lease as security for a loan,
\nTenant agrees to execute such documents as are reasonably requested by the
\nlender and to provide reasonable provisions in the Lease protecting such
\nlender’s security interest which are customarily required by institutional
\nlenders making loans secured by a deed of trust. Landlord agrees to use
\ncommercially reasonable efforts to obtain a subordination, nondisturbance and
\nattornment agreement from the current holder of a mortgage, deed of trust,
\nand\/or ground lease within thirty (30) days of mutual 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, (h) 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 is
\nunmodified and in full force and effect, or, if modified, stating the nature
\nof such modification and certifying that this Lease, as so modified, is in
\nfull force and effect, (ii) stating the date to which the rent and other
\ncharges are paid in advance, if any, (iii) acknowledging that there are not,
\nto 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 which have
\naccrued before the date of transfer if its transferree agrees to assume and
\nperform all such prior obligations of the Landlord hereunder. Tenant shall
\nattorn to any such transferee. After the date of any such transfer, the term
\n“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
\nrequested, (iii) sent by Federal Express or similar nationally recognized
\novernight courier service, or (iv) transmitted by facsimile with a hard copy
\nsent within one (1) business day by any of the foregoing means, and in all
\ncases addressed as follows, and such notice shall be deemed to have been
\ngiven upon the date of actual receipt or delivery (or refusal to accept
\ndelivery) at the address specified below (or such other addresses as may be
\nspecified by notice in the foregoing manner) as indicated on the return
\nreceipt 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
\nProperty Taxes” shall each mean Tenant’s Expense Share of (i) all taxes,
\nassessments, levies and other charges of any kind or nature whatsoever,
\ngeneral and special, foreseen and unforeseen (including all instruments of
\nprincipal and interest required to pay any general or special assessments for
\npublic improvements and any increases resulting from reassessments caused by
\nany change in ownership or new construction), now or hereafter imposed by any
\ngovernmental or quasi-governmental authority or special district having the
\ndirect or indirect power to tax or levy assessments, which are levied or
\nassessed for whatever reason against the Property or any portion thereof, or
\nLandlord’s interest herein, or the fixtures, equipment and other property of
\nLandlord that is an integral part of the Property and located thereon, or
\nLandlord’s business of owning, leasing or managing the Property or the gross
\nreceipts, income or rentals from the Property, (ii) all charges, levies or
\nfees imposed by any governmental authority against Landlord by reason of or
\nbased upon the use of or number of parking spaces within the Property, the
\namount of public services or public utilities used or consumed (E.G. water,
\ngas, electricity, sewage or waste water disposal) at the Property, the number
\nof person employed by tenants of the Property, the size (whether measured in
\narea, volume, number of tenants or whatever) or the value of the Property, or
\nthe type of use or uses conducted within the Property, and all costs and fees
\n(including attorneys’ fees) reasonably incurred by Landlord in contesting
\nany Real Property Tax and in negotiating with public authorities as to any
\nReal Property Tax. If, at any time during the Lease Term, the taxation or
\nassessment of the Property prevailing as of the Effective Date of this Lease
\nshall be altered so that in lieu of or in addition to any the Real Property
\nTax described above there shall be levied, awarded or imposed (whether by
\nreason of a change in the method of taxation or assessment, creation of a new
\ntax or charge, or any other cause) an alternate, substitute, or additional
\nuse or charge (i) on the value, size, use or occupancy of the Property or
\nLandlord’s interest therein or (ii) on or measured by the gross receipts,
\nincome or rentals from the Property, or on Landlord’s business of owning,
\nleasing or managing the Property or (iii) computed in any manner with respect
\nto 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
\nProperty Tax is partly based upon property or rents unrelated to the
\nProperty, then only that part of such Real Property Tax that is fairly
\nallocable to the Property shall be included within the meaning of the terms
\n“Real Property Tax” or “Real Property 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 Costs”
\nshall mean Tenant’s Project Share of all costs and expenses (except Landlord’s
\nInsurance Costs and Real Property Taxes) paid or incurred by Landlord in
\nprotecting, operating, maintaining, repairing and preserving the Property and
\nall parts thereof, including without limitation, (i) market rate professional
\nmanagement fees, (H) the amortizing portion of any costs incurred by Landlord in
\nthe making of any modifications, alterations or improvements required by any
\ngovernmental authority as set forth in Paragraph 6.3, which are so amortized
\nduring the Lease Term, and (iii) such other costs as may be paid or incurred
\nwith respect to operating, maintaining, and preserving the Property, such as
\nrepairing and resurfacing the exterior surfaces of the Building (including
\nroofs), repairing and resurfacing paved areas, and repairing and replacing, when
\nnecessary, electrical, plumbing, heating, ventilating and air conditioning
\nsystems serving the Building. With respect to any capital improvement made to
\nelectrical, plumbing, heating, ventilating and air conditioning systems serving
\nthe Building by Landlord after the date of this Lease which under generally
\naccepted accounting principles (“GAAP”) should be capitalized and amortized
\nrather than expensed, Landlord shall capitalize any such improvement and
\namortize it over its useful life (which shall in no event exceed the useful life
\nfor such improvement set forth in any schedule or listing of useful lives, if
\nany, specified 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, administrative
\norder, or other requirements of any municipal, county, state, federal, or other
\ngovernmental agency or authority having jurisdiction over the parties to this
\nLease, the Leased Premises, the Building or the Property, or any of them, in
\neffect either at the Effective Date of this Lease or at any time during the
\nLease Term, including, without limitation, any regulation, order, or policy of
\nany quasi-official entity or body (e.g. a board of fire examiners or a public
\nutility 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
\nany subsequent similar act by the other party. No waiver of any provision
\nhereof, or any waiver of any breach of any provision hereof, shall be effective
\nunless in writing and signed by the waiving party. The receipt by Landlord of
\nany rent or payment with or without knowledge of the breach of any other
\nprovision hereof shall not be deemed a waiver of any such breach. No waiver of
\nany provision of this Lease shall be deemed a continuing waiver unless such
\nwaiver specifically states so in writing and is signed by both Landlord and
\nTenant. No delay or omission in the exercise of any right or remedy accruing to
\neither party upon any breach by the other party under this Lease shall impair
\nsuch right or remedy or be construed as a waiver of any such breach theretofore
\nor thereafter occurring. The waiver by either party of any breach of any
\nprovision of this Lease shall not be deemed to be a waiver of any subsequent
\nbreach of the same or any other provisions herein contained.<\/p>\n
13.14 MISCELLANEOUS. Should any provisions of this Lease prove to be invalid or
\nillegal, 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 a
\nfactor. Any copy of this Lease which is executed by the parties shall be deemed
\nan original for all purposes. This Lease shall, subject to the provisions
\nregarding assignment, apply to and bind the respective heirs, successors,
\nexecutors, administrators and assigns of Landlord and Tenant. The term “party”
\nshall mean Landlord or Tenant as the context implies. If Tenant consists of more
\nthan one person or entity, then all members of Tenant shall be jointly and
\nseverally liable hereunder. Submission of this Lease for review, examination or
\nsignature by Tenant does not constitute an offer. to lease, a reservation of or
\nan option for lease, and notwithstanding any inconsistent language contained in
\nany document, this Lease is not effective as a lease or otherwise until
\nexecution and delivery by both Landlord and Tenant. This Lease shall be
\nconstrued and enforced in accordance with the Laws of the State in which the
\nLeased Premises are located. The captions in this Lease are for convenience only
\nand shall not be construed in the construction or interpretation of any
\nprovision hereof. When the context of this Lease requires, the neuter gender
\nincludes the masculine, the feminine, a partnership, corporation, limited
\nliability company, joint venture, or other form of business entity, and the
\nsingular includes the plural, The terms “must” “shall” “will” and “agree” are
\nmandatory. The term “may” is 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 duty 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 the
\nlease by it of the Leased Premises pursuant to this Lease, and that it will
\nindemnify, defend with competent counsel, and hold Landlord harmless from any
\nliability for the payment of any real estate brokerage commissions, leasing
\ncommissions or finder’s fees claimed by any other real estate broker(s), leasing
\nagent(s), finder(s), or salesmen to be earned or due and payable by reason of
\nTenant’s agreement or promise (implied or otherwise) to pay (or to have Landlord
\npay) such a commission or finder’s fee by reason of its leasing the Leased
\nPremises pursuant 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, understandings
\nor representations between the parties relating to the lease by Landlord of the
\nLeased Premises to Tenant, except as expressed herein. No subsequent changes,
\nmodifications or additions to this Lease shall be binding upon the parties
\nunless 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 Promises, 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 first 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 rive (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
\nof exercise given to Landlord by Tenant not more than twelve months nor less
\nthan nine months prior to the expiration of the tenth year of the Lease Term
\nor the expiration 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
\nat the time tenant exercises either extension option or on the commencement
\ndate of the First Extension Period or the Second Extension Period, as
\napplicable, Landlord shall have, in addition to all of Landlord’s other
\nrights and remedies provided in this Lease, the right to terminate such
\noption(s) to extend upon notice 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
\nall of the terms and conditions of this Lease, provided that the Base Monthly
\nRent for each extension period shall be the “Fair Market Rent” for the Leased
\nPremises, increased as set forth below. For purposes hereof, “Fair Market
\nRent” shall mean the Base Monthly Rent determined pursuant to the process
\ndescribed below. In no event, however, shall any adjustment of Base Monthly
\nRent pursuant to this paragraph result in a decrease of the Base Monthly Rent
\nfor the Leased Premises 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
\nfrom Landlord, Tenant shall have the right either to (i) accept Landlord’s
\nstatement of Base Monthly Rent as the Base Monthly Rent for the applicable
\nextension period; or (ii) elect to arbitrate Landlord’s estimate of Fair
\nMarket Rent, such arbitration to be conducted pursuant to the provisions
\nhereof. Failure on the part of Tenant to require arbitration of Fair Market
\nRent within such 30-day period shall constitute acceptance of the Base
\nMonthly Rent for the applicable extension period as calculated by Landlord.
\nIf Tenant elects arbitration, the arbitration shall be concluded within 90
\ndays after the date of Tenant’s election, subject to extension for an
\nadditional 30-day period if a third arbitrator is required and does not act
\nin a timely manner. To the extent that arbitration has not been completed
\nprior to the expiration of any preceding period for which Base Monthly Rent
\nhas been determined, Tenant shall pay Base Monthly Rent at the rate
\ncalculated by Landlord, with the potential for an adjustment to be made once
\nFair Market Rent is ultimately determined by arbitration.<\/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 commercial 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
\nthirty (30) days after service of Landlord’s determination of Fair Market
\nRent given under Paragraph 15.3 above, specifying therein the name and
\naddress of the person to act as the arbitrator on its behalf The arbitrator
\nshall be qualified as a real estate appraiser familiar with the Fair Market
\nRent of similar industrial, research and development, or office space in the
\nSilicon Valley area who would qualify as an expert witness over objection to
\ngive opinion testimony addressed to the issue in a court of competent
\njurisdiction. Failure on the part of Tenant to make a proper demand in a
\ntimely manner for such arbitration shall constitute a waiver of the right
\nthereto. Within fifteen (15) days after the service of the demand for
\narbitration, Landlord shall give notice to Tenant, specifying the name and
\naddress of the person designated by Landlord to act as arbitrator on its
\nbehalf who shall be similarly qualified. If Landlord fails to notify Tenant
\nof the appointment of its arbitrator, within or by the time above specified,
\nthen the arbitrator appointed by Tenant shall be the arbitrator to determine
\nthe issue.<\/p>\n
(b) In the event that two arbitrators are chosen pursuant to
\nParagraph 15.4(a) above, the arbitrators so chosen shall, within fifteen (15)
\ndays after the second arbitrator is appointed determine the Fair Market Rent.
\nIf the two arbitrators shall be unable to agree upon a determination of Fair
\nMarket Rent within such 15-day period, they, themselves, shall appoint a
\nthird arbitrator, who shall be a competent and impartial person with
\nqualifications similar to those required of the first two arbitrators
\npursuant to Paragraph 15.4(a). In the event they are unable to agree upon
\nsuch appointment within seven days after expiration of such 15-day period,
\nthe third arbitrator shall be selected by the parties themselves, if they can
\nagree thereon, within a further period of fifteen (15) days. If the parties
\ndo not so agree, then either party, on behalf of both, may request
\nappointment of such a qualified person by the then Chief Judge of the United
\nStates District Court having jurisdiction over the County of Santa Clara,
\nacting in his private and not in his official capacity, and the other party
\nshall not raise any question as to such Judge’s full power and jurisdiction
\nto entertain the application for and make the appointment, The three
\narbitrators shall decide the dispute if it has not previously been resolved
\nby 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
\nthe parties 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
\nground or any modification of either of the two proposed resolutions. The
\nresolution he chooses as most closely approximating his determination shall
\nconstitute the decision of the arbitrators and be final and binding upon the
\nparties.<\/p>\n
(d) In the event of a failure, refusal or liability 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 parties 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.
\nThe arbitrators 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
\nTenant:<\/p>\n
(i) Landlord shall have no responsibility for providing to
\nTenant any telephone equipment, including wiring, within the Leased Premises
\nor for providing telephone service or connections from the utility to the
\nLeased Premises; and<\/p>\n
(ii) Landlord makes no warranty as to the quality,
\ncontinuity or availability of the telecommunications services in the
\nBuilding, and Tenant hereby waives any claim against Landlord for any actual
\nor consequential damages (including damages for loss of business) in the
\nevent Tenant’s telecommunications services in any way are interrupted,
\ndamaged or rendered less effective, except to the “extent caused by the
\ngrossly negligent or willful act or omission by Landlord, its agents or
\nemployees. Tenant accepts the telephone equipment (including, without
\nlimitation, the INC, as defined below) in its “AS-IS” condition, and Tenant
\nshall be solely responsible for contracting with a reliable third party
\nvendor to assume responsibility for the maintenance and repair thereof (which
\ncontract shall contain provisions requiring such vendor to inspect the INC
\nperiodically (the frequency of such inspections to be determined by such
\nvendor based on its experience and professional judgment) and requiring such
\nvendor to meet local and federal requirements for telecommunications material
\nand workmanship). Landlord shall not be liable to Tenant and Tenant waives
\nall claims against Landlord whatsoever, whether for personal injury, property
\ndamage, 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
\nto any failure or interruption of telephone service to the Leased Premises
\nfor any reason. Tenant agrees to obtain loss of rental insurance adequate to
\ncover any damage, loss or expense occasioned by the interruption of telephone
\nservice.<\/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
\nof pairs in the Building intra-building network cable (“INC”) as is
\ndetermined to be available by Landlord in its reasonable discretion. Tenant’s
\naccess to the INC shall be solely by arrangements made by Tenant, as Tenant
\nmay elect, directly with Pacific Bell or Landlord (or such vendor as Landlord
\nmay designate), and Tenant shall pay all reasonable charges as may be imposed
\nin connection therewith. Pacific Bell’s charges shall be deemed to
\nbereasonable. Subject to the foregoing, Landlord shall have no responsibility
\nfor providing to Tenant any telephone equipment, including wiring, within the
\nLeased Premises or for providing telephone service or connections from the
\nutility to the Leased Premises, 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
\nthe Landlord’s prior written consent Tenant shall be liable to Landlord for
\nany damage to the telephone wiring in the Building due to the act, negligent
\nor otherwise, of Tenant or any employee, contractor or other agent of Tenant.
\nTenant shall have no access to the telephone closets within the Building,
\nexcept in the manner and under procedures established by Landlord. Tenant
\nshall promptly notify Landlord of any actual or suspected failure of
\ntelephone service to 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,
\ncontinuity or availability of the telecommunications services in the
\nbuilding, and Tenant hereby waives any claim against Landlord for any actual
\nor consequential damages (including damages for loss of business) in the
\nevent Tenant’s telecommunications services in any way are interrupted,
\ndamaged or rendered less effective, except to the extent caused by the
\ngrossly negligent or willful act or omission by Landlord, its agents or
\nemployees. Tenant acknowledges that Landlord meets its duty of care to Tenant
\nwith respect to the Building INC by contracting with a reliable third party
\nvendor to assume responsibility for the maintenance and repair thereof (which
\ncontract shall contain provisions requiring such vendor to inspect the INC
\nperiodically (the frequency of such inspections to be determined by such
\nvendor based on its experience and professional judgment), and requiring such
\nvendor to meet local and federal requirements for telecommunications material
\nand workmanship). Subject to the foregoing, Landlord shall not be liable to
\nTenant and Tenant waives all claims against Landlord whatsoever, whether for
\npersonal injury, property damage, loss of use of the Leased Premises, or
\notherwise, due to the interruption or failure of telephone services to the
\nLeased Premises. Tenant hereby holds Landlord harmless and agrees to
\nindemnify, protect and defend Landlord from and against any liability for any
\ndamage, loss or expense due to any failure or interruption of telephone
\nservice to the Leased Premises for any reason. Tenant agrees to obtain loss
\nof rental insurance adequate to cover any damage, loss or expense occasioned
\nby the interruption of telephone service.<\/p>\n
25.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
\nrespective dates below set forth with the intent to be legally bound thereby as
\nof 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: 2-16-00 By: \/s\/ Carl A. Thomson
\n —————- ————————————
\n Title: SR. VP & CFO
\n ———————————<\/p>\n
Dated: 2-16-00 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 _, 2000, is entered into by and
\nbetween CORPORATE TECHNOLOGY CENTRE ASSOCIATES II LLC (“Landlord”) and DIGITAL
\nMICROWAVE CORPORATION (“Tenant”). On or about the, date hereof, Landlord and
\nTenant entered into that certain Lease (the “Lease”) for the Leased Premises, as
\ndefined in the Lease. This Work Letter sets forth the agreement of Landlord and
\nTenant with respect to the improvements to be constructed in the Leased
\nPremises. In the event of any inconsistency between the terms of this Work
\nLetter and the terms of the Lease, the terms of the Lease shall control. All
\ndefined terms used herein shall have the meanings set forth in the Lease, unless
\notherwise defined in 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
\nhereinbelow.<\/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,
\nTenant shall proceed promptly to commence performance of the Tenant
\nImprovements. Tenant’s contractors and subcontractors shall be acceptable to
\nand approved in writing by Landlord, which approval shall not be unreasonably
\nwithheld or delayed, and shall, at Landlord’s option, be subject to
\nadministrative supervision by Landlord in their use of the Building. Tenant
\nshall furnish to Landlord a copy of the executed contract between Tenant and
\nTenant’s general contractor covering all of Tenant’s obligations under this
\nWork Letter. Tenant shall use commercially reasonable efforts to cause such
\nwork to be performed in as efficient a manner as is commercially reasonable.
\nTenant shall reimburse Landlord on demand for the cost of repairing any
\ndamage to the Building caused by Tenant or its contractors during performance
\nof the Tenant Improvements. Tenant’s contractors shall conduct their work and
\nemploy labor in such manner as to maintain harmonious labor relations.
\nTenant’s general contractor (“contractor”) shall obtain a builder’s risk
\npolicy of insurance in an amount and form and issued by a carrier reasonably
\nsatisfactory to Landlord, and Tenant’s general contractor and subcontractors
\nshall carry worker’s compensation insurance for their employees as required
\nby law. The builder’s risk policy of insurance shall name Landlord as an
\nadditional insured and shall not be cancelable without at least 30 days’
\nprior written notice to Landlord.<\/p>\n
(f) Any changes in the Tenant improvements from the final
\ndrawings approved by Landlord shall be subject to Landlord’s prior written
\napproval, which shall not be unreasonably withheld. Any deviation in
\nconstruction from the design specifications and criteria set forth herein or
\nfrom Tenant’s plans and specifications as approved by Landlord shall constitute
\na default for which Landlord 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 ton (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
\nand shall be solely responsible for the actions and omissions of its architects
\nand for any loss, liability, claim, cost, damage or expense suffered by Landlord
\nor any 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 and
\npay 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 $85,491.00 (the “Improvement Allowance”). The
\nImprovement Allowance shall be utilized only for building improvements to the
\nBuilding, and not for signage, furniture costs, any third party consulting or
\ncontracting fees (except for Tenant’s architect’s fees), my telecom\/cabling
\ncosts, or any other purpose. Tenant shall bear and pay the cost of the
\nImprovement Work (including but not limited to all of the foregoing fees and
\ncosts) in excess of the Improvement Allowance, if any, The cost of the
\nImprovement Work shall exclude the cost of furniture, fixtures and inventory.<\/p>\n
(b) No less than the amount of $24,426.00 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
\nLandlord, and 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
\ncosts) in 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 with
\n respect to the Building have been paid to date or shall be paid from
\n the proceeds of this application for payment, and there is no known
\n basis for the filing of any mechanics’ or materialmen’s liens against
\n the Building or the Property, and, to the best of our knowledge,
\n waivers from all subcontractors are valid and constitute an effective
\n waiver of lien under applicable law to the extent of payments that have
\n 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 materials
\nor equipment for which application for 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 Tenant
\nImprovements, and (ii) the estimated cost of all professional services, fees and
\npermits in connection therewith. Tenant shall pay the balance of such payment,
\nprovided that at such time as Landlord has paid the entire Improvement Allowance
\non account of such Tenant Improvements, all billings shall be paid entirely by
\nTenant. If upon completion of the Tenant Improvements and payment in full to the
\nContractor, the architect and engineer, and payment in full of all fees and
\npermits, the portion of the cost of the Tenant Improvements, architects’ and
\nengineers’ fees, permits and fees theretofore paid by Landlord is less than the
\nImprovement Allowance, Landlord shall reimburse Tenant for costs expended by
\nTenant for Tenant Improvements up to the amount by which the Improvement
\nAllowance exceeds the portion of such cost theretofore paid by Landlord.
\nLandlord shall have no obligation to advance the Improvement Allowance to the
\nextent it exceeds the total cost of the Tenant Improvements. In no event shall
\nLandlord have any responsibility for the cost of the Tenant Improvements in
\nexcess of the Improvement Allowance. Landlord shall have no obligation to make
\nany payments to Contractor’s material suppliers or subcontractors or to
\ndetermine whether amounts due them from Contractor in connection with the Tenant
\nImprovements have, 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
\nover the 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
\n executed this Lease as of the respective dates
\n below set forth with the intent to be legally
\n bound thereby as of 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
3.<\/p>\n
DIGITAL MICROWAVE CORPORATION, a
\n Delaware corporation<\/p>\n
Dated: 2-16-00 By: \/s\/ Carol A. Thomas
\n ———————————–
\n Title: SR. VP – CFO
\n ———————————<\/p>\n
Dated: 2-16-00 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 180 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]
\nattached hereto as EXHIBIT A. At the request of Landlord in connection with
\n[___________STATE REASONS FOR REQUEST FOR ESTOPPEL CERTIFICATE], the
\nundersigned hereby certifies to Landlord and to [___________STATE NAMES
\nOF OTHER PARTIES REQUIRING CERTIFICATION] and each of your respective
\nsuccessors 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 favor
\nof 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 paid
\nthrough ___, and all additional rent due and payable under the Lease has been
\npaid through ___.<\/p>\n
7. The term of the Lease commenced on ___, and expires on ___,
\nunless sooner terminated pursuant to the provisions of the Lease. Landlord
\nhas performed all work required by the Lease for the undersigned’s initial
\noccupancy of the demised property.<\/p>\n
8. The undersigned has deposited the sum of $___, with Landlord as
\nsecurity for the performance of its obligations as tenant under the Lease,
\nand no portion of such deposit has been applied by Landlord to any obligation
\nunder the Lease.<\/p>\n
9. There is no free rent period pending, nor is Tenant entitled to any
\nLandlord’s contribution.<\/p>\n
The above certifications are made to Landlord and Lender knowing that Landlord
\nand 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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