{"id":41752,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/750-tasman-drive-milpitas-ca-lease-agreement-peery-arrillaga.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"750-tasman-drive-milpitas-ca-lease-agreement-peery-arrillaga","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/750-tasman-drive-milpitas-ca-lease-agreement-peery-arrillaga.html","title":{"rendered":"750 Tasman Drive (Milpitas, CA) Lease Agreement &#8211; Peery\/Arrillaga and Com21 Inc."},"content":{"rendered":"<pre>\n                                 LEASE AGREEMENT\n\n        THIS LEASE, made this 10th day of May, 1996, between JOHN ARRILLAGA,\nTrustee, or his Successor Trustee, UTA dated 7\/20\/77 (ARRILLAGA FAMILY TRUST) as\namended, and RICHARD T. PEERY, Trustee, or his Successor Trustee, UTA dated\n7\/20\/77 (RICHARD T. PEERY SEPARATE PROPERTY TRUST) as amended, hereinafter\ncalled Landlord, and COM21, INC., a Delaware corporation, hereinafter called\nTenant\n\n                                   WITNESSETH\n\n        Landlord hereby leases to Tenant and Tenant hereby hires and takes from\nLandlord those certain premises (the 'Premises') outlined in red on Exhibit 'A',\nattached hereto and incorporated herein by this reference thereto more\nparticularly described as follows\n\n\nAll of that certain 44,624+\/- square foot, one-story building located at 750\nTasman Drive, Milpitas, California 95035. Said Premises is more particularly\nshown within the area outlined in Red on Exhibit A attached hereto. The entire\nparcel, of which the Premises is a part is shown within the area outlined in\nGreen on Exhibit A attached. The Premises shall be improved as shown on Exhibit\nB to be attached hereto, and is leased an 'as-is' basis, in its present\ncondition, and in the configuration as shown in Red on Exhibit B to be attached\nhereto.\n\nAs used herein the Complex shall mean and include all of the land outlined in\nGreen and described in Exhibit 'A' attached hereto, and all of the buildings,\nimprovements, fixtures and equipment now or hereafter situated on said land.\n\nSaid letting and hiring is upon and subject to the terms, covenants and\nconditions hereinafter set forth and tenant covenants as a material part of the\nconsideration for this Lease to perform and observe each and all of said terms,\ncovenants and conditions hereinafter set forth and Tenant covenants as a\nmaterial part of the consideration for this Lease to perform and observe each\nand all of said terms, covenants and conditions. This Lease is made upon the\nconditions of such performance and observance\n\n\n1. USE Tenant shall use the Premises only in conformance with applicable\ngovernmental laws, regulations, rules and ordinances for the purposes of general\noffice, light manufacturing, research and development, and storage and other\nuses necessary for Tenant to conduct Tenant's business, provided that such uses\nshall be in accordance with all applicable governmental laws and ordinances and\nfor no other purpose. Tenant shall not do or permit to be done in or about the\nPremises or the Complex nor bring or keep or permit to be brought or kept in or\nabout the Premises or the Complex anything which is prohibited by or will in any\nway increase the existing rate of (or otherwise affect) fire or any insurance\ncovering the Complex or any part thereof,or any of its contents, or will cause a\ncancellation of any insurance covering the Complex or any part thereof, or any\nof its contents. Tenant shall not do or permit to be done anything in, on or\nabout the Premises or the Complex which will in any way obstruct or interfere\nwith the rights of other tenants or occupants of the Complex or injure or annoy\nthem, or use or allow the Premises to be used by for any improper, immoral,\nunlawful or objectionable purpose, nor shall Tenant cause, maintain or permit\nany nuisance in, on or about the Premises or the Complex. No sale by auction\nshall be permitted on the Premises. Tenant shall not place nay loads upon the\nfloors, walls, or ceiling, which endanger the structure, or place any harmful\nfluids or other materials in the drainage system of the building, or overloading\nexisting electrical or other mechanical systems. No waste materials or refuse\nshall be dumped upon or permitted to remain upon any part of the Premises or\noutside of the building in which the Premises are a part, except in trash\ncontainers placed inside exterior enclosures designated by Landlord for that\npurpose or inside of the building proper where designated by Landlord. No\nmaterials, supplies, equipment, finished products or semi-finished products, raw\nmaterials or articles of any nature shall be stored upon or permitted to remain\noutside the Premises or on any portion of common area of the Complex. No\nloudspeaker or other device, system or apparatus which can be heard outside the\nPremises shall be used in or at the Premises without the prior written consent\nof Landlord. Tenant shall not commit or suffer to be committed any\n\n\n\n\n\n\nwaste in or upon the Premises. Tenant shall indemnify, defend and hold Landlord\nharmless against any loss, expense, damage, attorneys' fees, or liability\narising out of failure of Tenant to comply with any applicable law. Tenant shall\ncomply with any covenant, condition, or restriction (CC&amp;R's) affecting the\nPremises. The provisions of this paragraph are for the benefit of Landlord only\nand shall not be construed to be for the benefit of any tenant or occupant of\nthe Complex.\n\n2.      TERM*\n\n        A. The term of this Lease shall be for a period of Eight (8) years\n(unless sooner terminated as hereinafter provided) and, subject to Paragraphs\n2(B) and 3, shall commence on the 1st day of August, 1996 and end on the 31st\nday of July of 2004.\n\n        B. Possession of the Premises shall be deemed tendered and the term of\nthis Lease shall commence when the first of the following occurs:\n\n               (a) One day after of Certificate of Occupancy is granted by the\nproper governmental agency, or if the governmental agency having jurisdiction\nover the area in which the Premises are situated does not issue certificates of\noccupancy, then the same number of days after certification by Landlord's\narchitect or contractor that Landlord's construction work has been completed; or\n\n               (b) Upon the occupancy of the Premises by any of Tenant's\noperating personnel; or\n\n               (c) When the Tenant Improvements have been substantially\ncompleted for Tenant's use and occupancy, in accordance and compliance with\nExhibit B of this Lease Agreement; or\n\n               (d) As otherwise agreed in writing.\n\n\n3. POSSESSION If Landlord, for any reason whatsoever, cannot deliver possession\nof said premises to Tenant at the commencement of the said term, as hereinbefore\nspecified, this Lease shall not be void or voidable; no obligation of Tenant\nshall be affected thereby; nor shall Landlord or Landlord's agents be liable to\nTenant for any loss or damage resulting therefrom; but in that event the\ncommencement and termination dates of the Lease, and all other dates affected\nthereby shall be revised to conform to the date of Landlord's delivery of\npossession, as specified in Paragraph 2(b), above. The above is, however,\nsubject to the provision that the period of delay, of delivery of the premises\nshall not exceed 90 days from the commencement date herein (except those delays\ncaused by Acts of God, strikes, war, utilities, governmental bodies, weather,\nunavailable materials, and delays beyond Landlord's control shall be excluded in\ncalculating such period) in which instance Tenant, at its option, may, by\nwritten notice to Landlord, terminate this Lease.\n\n\n4.      RENT\n\n        A. Basic Rent. Tenant agrees to pay to Landlord at such place as\nLandlord may designate without deduction, offset, prior notice or demand, and\nLandlord agrees to accept the Basic Rent for the leased Premises the total sum\nof SIX MILLION THREE HUNDRED SEVENTY SEVEN THOUSAND FORTY FOUR AND 80\/100\n($6,377,044.80) Dollars in lawful money of the United States of America, payable\nas follows:\n\n--------\n* It is agreed in the event said Lease commences on a date other than the first\nday of the month the term of the Lease will be extended to account for the\nnumber of days in the partial month. The Basic Rent during the resulting partial\nmonth will be pro-rated (for the number of days in the partial month) at the\nBasic Rent scheduled for the projected commencement date as shown in Paragraph\n43.\n\n\n\n\n\n\n        See Paragraph 43 for Basic Rent Schedule\n\n        B. Time for Payment. In the event that the term of this Lease commences\non a date other than the first day of a calendar month, on the date of\ncommencement of the term hereof Tenant shall pay to Landlord as rent for the\nperiod from such date of commencement to the first day of the next succeeding\ncalendar month that proportion of the monthly rent hereunder which the number of\ndays between such date of commencement and the first day of the next succeeding\ncalendar month bears to thirty (30) days. In the event that the term of this\nLease for any reason ends on a date other than the last day of a calendar month,\non the first day of the last calendar month of the term hereof Tenant shall pay\nto Landlord as rent for the period from said first day of said last calendar\nmonth to and including the last day of the term hereof that proportion of the\nmonthly rent hereunder which the number of days between said first day of said\nlast calendar month and the last day of the term hereof bears to thirty (30).\n\n        C. Late Charge. Notwithstanding any other provision of this Lease, if\nTenant is in default in the payment of rental as set forth in this Paragraph 4\nwhen due, or any part thereof, Tenant agrees to pay Landlord, in addition to the\ndelinquent rental due, a late charge for each rental payment in default ten (10)\ndays. Said late charge shall equal ten (10%) percent of each rental payment so\nin default.\n\n        D. Additional Rent. Beginning with the commencement date of the term of\nthis Lease, Tenant shall pay to Landlord in addition to the Basic Rent and as\nAdditional Rent the following:\n\n               (a) Tenant's proportionate share of Taxes relating to the Complex\nas set forth in Paragraph 12, and\n\n               (b) Tenant's proportionate share of all insurance premiums\nrelating to the Complex, as set forth in Paragraph 15, and\n\n               (c) Tenant's proportionate share of expenses for the operation,\nmanagement, maintenance and repair of the Building (including common areas of\nthe Building) and Common Areas of the Complex in which the Premises are located\nas set forth in Paragraph 7, and\n\n               (d) All charges, costs and expenses, which Tenant is required to\npay hereunder, together with all interest and penalties, costs and expenses,\nincluding attorneys; fees and legal expenses, that may accrue thereto in the\nevent of Tenants failure to pay such amounts, nd all damages, reasonable costs\nand expenses which Landlord may incur by reason of default of Tenant or failure\non Tenant's part to comply with the terms of this Lease. In the event of\nnonpayment by Tenant of Additional Rent, Landlord shall have all the rights and\nremedies with respect thereto as Landlord has for nonpayment of rent. The\nAdditional Rent due hereunder shall be paid to Landlord or Landlord's agent (i)\nwithin five days for taxes and insurance and within thirty (30) days for all\nother Additional Rent items after presentation of invoice from Landlord or\nLandlord's agent setting forth such Additional Rent and\/or (ii) at the option of\nlandlord, Tenant shall pay to Landlord monthly, in advance, Tenant's prorata\nshare os an amount estimated by Landlord to be Landlord's approximate average\nmonthly expenditure for such Additional Rent items, which estimated amount shall\nbe reconciled within 120 days of the end of each calendar year as compared to\nLandlord's actual expenditure for said Additional Rent items, with Tenant paying\nto Landlord, upon demand, any amount of actual expenses expended by Landlord n\nexcess of said estimated amount, or Landlord refunding to Tenant (providing\nTenant is not in default in the performance of any of the terms, covenants and\nconditions of this Lease) any amount of estimated payments made by Tenant in\nexcess of Landlord's actual expenditures for said Additional Rent items. The\nrespective obligations of Landlord and Tenant under this paragraph shall survive\nthe expiration or other termination of the term of this Lease, wand if the term\nhereof shall expire or shall otherwise terminate on a day other than the last\nday of a calendar year, the actual Additional Rent incurred for the calendar\nyear in which the term hereof express or otherwise terminates hall be determine\nand settles on the basis of the statement of actual Additional Rent for such\ncalendar year and shall be prorated in the proportion which the number of days\nin such calendar year preceding such expiration or termination bears to 365.\n\n        E. Fixed Management Fee. Beginning with the Commencement Date of the\nTerm of this Lease,\n\n\n\n\n\n\nTenant shall pay to landlord, in addition to the Basic Rent and Additional Rent,\na fixed monthly management fee equal to 1% of the Basic Rent due for each month\nduring the Lease Term ('Management Fee').\n\n        F. Place of Payment of Rent and Additional Rent. All Basic Rent\nhereunder and all payments hereunder for Additional Rent shall be paid to\nLandlord at the office of Landlord at Peery\/Arrillaga, File 1504, Box 60000, San\nFrancisco, CA 94160 or to such other person or to such other place as Landlord\nmay from time to time designate in writing.\n\n        G. Security Deposit. Concurrently with Tenant's execution of this Lease,\nTenant shall deposit with Landlord the sum of One Hundred Fifty Thousand Seven\nHundred Twenty One and 60\/100 ($151,721.60) Dollars. Said sum shall be held by\nLandlord as a Security Deposit for the faithful performance by Tenant of all of\nthe terms, covenants, and conditions of this Lease to be kept and performed by\nTenant during the term hereof. If Tenant defaults with respect to any provision\nof this Lease, including, but not limited to, the provisions relating to the\npayment of rent and any of the monetary sums due herewith. Landlord may (but\nshall not be require to) use, apply or retain [all] or any part of this Security\nDeposit for the payment of any other amount which Landlord may spend by reason\nof default or to compensate landlord for any other [ ] damage which Landlord may\nsuffer by reason of Tenant's default. If any portion of said Deposit is so used\nor applied, Tenant shall, within ten (10) days after written [demand] therefor,\ndeposit cash with Landlord in the amount sufficient to restore the Security\nDeposit to its original amount. Tenant's failure to do so shall be a material\nbreach of this Lease. Landlord shall not be required to keep this security\nDeposit separate from its general funds, and Tenant shall not be entitled to\ninterest on such Deposit [ ] Tenant fully and faithfully performs every\nprovision of this Lease to be performed by it, the Security Deposit or any\nbalance thereof shall be returned to Tenant for (or at Landlord's option, to the\nlast assignee of Tenant's interest hereunder) at the expiration of the Lease\nterm and after Tenant has vacated the Premises. In the event of [termination] of\nLandlord's interest in this Lease, Landlord shall transfer said deposit to\nLandlord's successor in interest whereupon Tenant agrees to release Landlord\nfrom [liability] for the return of such Deposit or the accounting therefor.\n\n5. RULES AND REGULATIONS AND COMMON AREA Subject to the terms and conditions of\nthis Lease and such Rules and Regulations as Landlord may from time to time\nprescribe, Tenant and Tenant's employees, invitees and customers, shall, in\ncommon with other occupants of the Complex in which the Premises are located,\ntheir respective employees, invitees and customers, and others entitled to the\nuse thereof, have the non-exclusive right to use the access roads, parking\nareas, and facilities provided and designated by Landlord for the general use\nand convenience of the occupants of the complex in which the Premises are\nlocated, which areas and facilities are referred to herein as 'Common Area'.\nThis right shall terminate upon the termination of this Lease. Landlord reserves\nthe right from time to time to make changes in the shape, size, location, amount\nand extent of Common Area. Landlord further reserves the right to promulgate\nsuch reasonable rules and regulations relating to use of the Common Area, and\nany part or parts thereof, as Landlord may deem appropriate for the best\ninterests of the occupants of the Complex. The Rules and Regulations shall be\nbinding upon Tenant upon delivery of a copy of them to Tenant, and Tenant shall\nabide by them and cooperate in their observance. Such Rules and Regulations may\nbe amended by Landlord from time to time, with or without advance notice, and\nall amendments shall be effective upon delivery of a copy to Tenant. Landlord\nshall not be responsible to Tenant for the non-performance by any other tenant\nor occupant of the Complex of any of said Rules and Regulations. Landlord shall\noperate, manage and maintain the Common Area. The manner in which the Common\nArea shall be maintained and the expenditures for such maintenance shall be at\nthe discretion of the Landlord.\n\n[ ],860.80 Due upon Lease execution.\n[ ],860.80 Promissory Note due August 1, 1997.\n\n6. PARKING Tenant shall have the right to use with other tenants or occupants of\nthe Complex 177 parking spaces in the common parking areas of the Complex.\nTenant agrees, that Tenant, Tenant's employees, agents, representatives and\/or\ninvitees shall no use parking spaces in excess of said 177 spaces allocated to\nTenant hereunder. Landlord shall have the right, at Landlord's sole discretion,\nto specifically designate the location of Tenant's parking spaces within the\ncommon parking areas of the Complex in the event of a dispute among the tenants\noccupying the\n\n\n\n\n\n\nbuilding and\/or Complex referred to herein, in which event Tenant agrees that\nTenant, Tenant's employees, agents, representatives and\/or invitees shall not\nuse any parking spaces other than those parking spaces specifically designated\nby Landlord for Tenant's use. Said parking spaces, if specifically designated by\nLandlord to Tenant, may be relocated by Landlord at any time, and from time to\ntime. Landlord reserves the right, at Landlord's sole discretion , to rescind\nany specific designation of parking spaces, thereby returning Tenant's parking\nspaces to the common parking area. Landlord shall give Tenant written notice of\nany change in Tenant's parking spaces. Tenant shall not, at any time, park or\npermit to be parked, any trucks or vehicles adjacent to the loading areas so as\nto interfere in any way with the use of such ares, nor shall Tenant at any time\npark, or permit the parking of Tenant's trucks or other vehicles or the trucks\nand vehicles of Tenant's suppliers or others, in any portion of the common\nparking area not designated by Landlord for such use by Tenant. Tenant shall not\npark nor permit to be parked, any inoperative vehicles or equipment on any\nportion of the common parking area or other common areas of the Complex. Tenant\nagrees to assume responsibility for compliance by its employees with the parking\nprovision contained herein. If Tenant or its employees park in other than such\ndesignated parking areas, then Landlord may charge Tenant, as an additional\ncharge, and Tenant agrees to pay , ten ($10) Dollars per day for each day or\npartial day each such vehicle is parked in any area other than that designated.\nTenant hereby authorizes Landlord at Tenant's sole expense to tow away from the\nComplex any vehicle belonging to Tenant or Tenant's employees parked in\nviolation of these provisions, or to attach violation stickers or notices to\nsuch vehicles. Tenant shall use the parking areas for vehicle parking only, and\nshall not use the parking areas for storage.\n\n7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS\nOF THE COMPLEX As Additional Rent and in accordance with Paragraph 4D of this\nLease, Tenant shall pay to Landlord Tenant's proportionate share (calculated on\na square footage or other equitable basis as calculated by Landlord) of all\nexpenses of operation, maintenance and repair of the Common Areas of the Complex\nincluding, but not limited to, license, permit, and inspection fees; security;\nutility charges associated with exterior landscaping and lighting (including\nwater and sewer charges); all charges incurred in the maintenance of landscaped\nareas, lakes, parking lots, sidewalks, driveways; maintenance, repair and\nreplacement of all fixtures and electrical, mechanical, and plumbing systems,\nstructural elements and exterior surfaces of the buildings; salaries and\nemployee benefits of personnel and payroll taxes applicable thereto; supplies,\nmaterials, equipment and tools; the cost of capital expenditures which have the\neffect of reducing operating expenses, provided, however that in the event\nLandlord makes such capital improvements, Landlord may amortize its investment\nin said improvements (together with interest at the rate of fifteen (15%)\npercent per annum on the unamortized balance) as an operating expense in\naccordance with standard accounting practices, provided, that such amortization\nis not at a rate greater than the anticipated savings in the operating expenses.\n        'Additional Rent' as used herein shall not include Landlord's debt\nrepayments; interest on charges; expenses directly or indirectly incurred by\nLandlord for the benefit of any other tenant; cost for the installation of\npartioning or any other tenant improvements; cost of attracting tenants;\ndepreciation; interest, or executive salaries.\n\n8. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts the\nPremises as being in good and sanitary order, condition and repair and accepts\nthe building and improvements included in the Premises in their present\ncondition and without representation or warranty by Landlord as to the condition\nof such building or as to the use or occupancy which may be made thereof. Any\nexceptions to the foregoing must be by written agreement executed by Landlord\nand Tenant. Tenant agrees on the last day of the Lease term, or on the sooner\ntermination of this Lease, to surrender the Premises promptly and peaceably to\nLandlord in good condition and repair (damage by Acts of God, fire, normal wear\nand tear excepted), with all interior walls painted, or cleaned so that they\nappear freshly painted, and repaired and replaced, if damaged; all floors\ncleaned and waxed; all carpets cleaned and shampooed; the airconditioning and\nheating equipment serviced by a reputable and licensed service firm and in good\noperating condition (provided the maintenance of such equipment has been\nTenant's responsibility during the term of this Lease) together with all\nalterations additions, and improvements which may have been made in, to, or on\nthe Premises (except movable trade fixtures installed at the expense of Tenant)\nexcept that Tenant shall ascertain from Landlord within thirty (30) days before\nthe end of the term of this Lease whether Landlord desires to have the Premises\nor any part or parts thereof restored to their condition and configuration was\nwhen the Premises were delivered to Tenant and if Landlord shall so desire, then\nTenant shall restore said Premises or such part or parts thereof before the end\nof this Lease at Tenant's sole cost and expense. Tenant, on or before the end of\nthe term or sooner termination of this Lease, shall remove all of Tenant's\npersonal property and trade fixtures from the\n\n\n\n\n\n\nPremises, and all property not so removed on or before the end of the term or\nsooner termination of this Lease shall be deemed abandoned by Tenant and title\nto same shall thereupon pass to Landlord without compensation to Tenant.\nLandlord may, upon termination of this Lease remove all moveable furniture and\nequipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage\ncaused by such removal at Tenant;s sole cost. If the Premises be not surrendered\nat the end of the term or sooner termination of this Lease, Tenant shall\nindemnify Landlord against loss or liability resulting from the delay by Tenant\nin so surrendering the Premises including without limitation, any claims made by\nany succeeding tenant founded on such delay. Nothing contained herein shall be\nconstrued as an extension of the term hereof or as a consent of Landlord to any\nholding over by Tenant. The voluntary or other surrender of this Lease or the\nPremises by Tenant or a mutual cancellation of this Lease shall not work as a\nmerger and, at the option of Landlord, shall either terminate all or any\nexisting subleases or subtenancies or operate as an assignment to Landlord of\nall or any such subleases or subtenancies.\n\n9. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any\nalteration or addition to the Premises, or any part thereof, without the written\nconsent of Landlord first had and obtained by Tenant, but at the cost of Tenant,\nand any addition to, or alteration of, the Premises, except moveable furniture\nand trade fixtures, shall at once become a part of the Premises and belong to\nLandlord. Landlord reserved the right to approve all contractors and mechanics\nproposed by Tenant to airconditioning, floor to ceiling partioning, drapery,\ncarpeting, and floor installations made by Tenant, together with all property\nthat has become an integral part f the Premises, shall not be deemed trade\nfixtures. Tenant agrees that it will not proceed to make such alternation or\nadditions, without having obtained consent from Landlord to do so, and until\nfive (5) days from the receipt of such consent, in order that Landlord may post\nappropriate notices to avoid any liability to contractors or material suppliers\nfor payment for Tenant's improvements. Tenant will at all times permit such\nnotices to be posted and to remain posted until the completion of work. Tenant\nshall, if required by Landlord, secure at Tenant's own cost and expense, a\ncompletion and lien indemnity bond, satisfactory to Landlord, for such work.\nTenant further covenants and agrees that any mechanic's lien filed against the\nPremises or against the Complex for work claimed to have been done for, or\nmaterials claimed to have been furnished to Tenant, will be discharged by\nTenant, by bond or otherwise, within ten (10) days after the filing thereof, at\nthe cost and expense of Tenant. Any exceptions to the foregoing must be made in\nwriting and executed by both Landlord and Tenant.\n\n10. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and\nmaintain the Premises (including appurtenances) and every part thereof,\nexcluding any damage caused by the negligence or willful misconduct of Landlord\nor Landlord's agents, employees, invitees or licensees), in a high standard of\nmaintenance and repair, and in good and sanitary condition. Tenant maintenance\nand repair responsibilities herein referred to include, but are not limited to\nall windows, window frames, plate glass, glazing, truck doors, plumbing systems\n(such as water and drain lines, sinks, toilets, faucets, drains, showers and\nwater fountains), electrical systems (such as panels, conduits, outlets,\nlighting fixtures, lamps, bulbs, tubes, ballasts), heating and air-conditioning\nsystems (such as compressors, fans, air handlers, ducts, mixing boxes,\nthermostats, time clocks, boilers, heaters, supply and return grills), store\nfronts, roofs, downspout, all interior improvements within the premises\nincluding but not limited to wall coverings, window coverings, carpet, floor\ncoverings, partitioning, ceiling, doors (both interior and exterior, including\nclosing mechanisms, latches, locks, skylights (if any), automatic fire\nextinguishing systems, and elevators and all other interior improvements of any\nnature whatsoever. Tenant agrees to provide carpet shields under all rolling\nchairs or to otherwise be responsible for wear and tear of the carpet caused by\nsuch rolling chairs if such wear and tear exceeds that caused by normal foot\ntraffic in surrounding areas. Areas of excessive wear shall be replaced at\nTenant's sole expense upon termination. Tenant hereby waives all rights under,\nand benefits of, subsection 1 of Section 1932 and Section 1941 and 1942 of the\nCalifornia Civil Code and under any similar law, statute or ordinance now or\nhereafter in effect.\n\n11. UTILITIES Tenant shall pay promptly, as the same become due, all charges for\nwater, gas, electricity, telephone, telex and other electronic communications\nservice, sewer service, waste pick-up and any other utilities, materials or\nservices furnished directly to or used by Tenant on or about the Premises during\nthe term of this Lease, including, without limitation, any temporary or\npermanent utility surcharge or other exactions whether or not hereinafter\nimposed.\n        Landlord shall not be liable for and Tenant shall not be entitled to any\nabatement or reduction of rent by reason of any interruption or failure of\nutility services to the Premises when such failure is caused by accident,\n\n\n\n\n\n\nbreakage, repair, strikes, lockouts, or other labor disturbances or labor\ndisputes of any nature, or by any other cause, similar or dissimilar, beyond the\nreasonable control of Landlord.\n\n12.     TAXES\n\n        A. As Additional Rent and in accordance with Paragraph 4D and this\nLease, Tenant shall pay to Landlord Tenant's proportionate share of all Real\nProperty Taxes, which prorata share shall be allocated to the leased Premises by\nsquare footage or other equitable basis, as calculated by Landlord. The term\n'Real Property Taxes', as used herein, shall mean (i) all taxes, assessments,\nlevies and other charges of any kind or nature whatsoever, general and special,\nforeseen (including all installments of principal and interest required to pay\nany general or special assessments for public improvements and any increases\nresulting from reassessments caused by any change in ownership of the Complex)\nnow or hereafter imposed by any governmental or quasi governmental authority or\nspecial district having the direct or indirect power to tax or levy assessments,\nwhich are levied or assessed against, or with respect to the value occupancy or\nuse of, all or any portion of the Complex (as now constructed or as may at any\ntime hereafter be construed, altered, or otherwise changed) or Landlord's\ninterest therein, any improvements located within the Complex (regardless of\nownership); the fixtures, equipment and other property of Landlord, real or\npersonal, that are an integral part of and located in the Complex; or parking\nareas, public utilities, or energy within the Complex; (ii) all charges, levies\nor fees imposed by reason of environmental regulation or other governmental\ncontrol of the Complex and (iii) all costs and fees (including attorneys' fees)\nincurred by Landlord in contesting any Real Property Tax and negotiating with\npublic authorities as to any Real Property Tax. If at any time during the term\nof this Lease the taxation or assessment of the Complex prevailing as of the\ncommencement date of this Lease shall be altered so that in lieu of or in\naddition to any Real Property Tax described above there shall be levied,\nassessed or imposed (whether by reason of a change in the method of taxation or\nassessment creation of a new tax or charge, or any other cause) an alternate or\nadditional tax or charge (i) on the value, use or occupancy of the Complex or\nLandlord's interest therein or (ii) on or measured by the gross receipts, income\nor rentals from the Complex, then any such tax or charge, however designated,\nshall be included within the meaning of the term 'Real Property Taxes' for\npurposes of this Lease. If any Real Property Tax is based upon property or rents\nunrelated to the Complex, then only that part of such real Property tax that is\nfairly allocable to the Complex shall be included within the meaning of the term\n'Real Property Taxes'. Notwithstanding the foregoing, the term 'Real Property\nTaxes' shall not include estate, inheritance gift or franchise taxes of Landlord\nor the federal or state net income tax imposed on Landlord's income from all\nsources.\n\n        B. Taxes on Tenant's Property\n\n               (a) Tenant shall be liable for and shall pay ten days before\ndelinquency, taxes levied against any personal property or trade fixtures placed\nby Tenant in or about the Premises. If any such taxes on Tenant's personal\nproperty or trade fixtures are levied against Landlord or Landlord's property or\nif the assessed value of the Premises in increased by the inclusion therein of a\nvalue placed upon such personal property or trade fixtures of Tenant and if\nlandlord, after written notice to Tenant, pays the taxes based on such increased\nassessment, which Landlord shall have the right to do regardless of the validity\nthereof, but only under proper protest if requested by Tenant, Tenant shall upon\ndemand, as the case may be, repay to Landlord the taxes so levied against\nLandlord, or the proportion of such taxes resulting from such increase in the\nassessment; provided that in any such event Tenant shall have the right, in the\nname of Landlord and with Landlord's full cooperation to bring suit in any court\nof competent jurisdiction to recover the amount of any such taxes so paid under\nprotest and any amount so recovered shall belong to Tenant.\n\n               (b) if the Tenant improvements in the Premises, whether\ninstalled, and\/or paid for by Landlord or Tenant and whether or not affixed to\nthe real property so as to become a part thereof, are assessed for real property\ntax purposes at a valuation higher than the valuation at which standard office\nimprovements in other space in the Complex are assessed, then the real property\ntaxes and assessments levied against Landlord or the Complex by reason of such\nexcess assessed valuation shall be deemed to be taxes levied against personal\nproperty of Tenant and shall be governed by the provisions of 12Ba above. If the\nrecords of the County Assessor are available and sufficiently detailed to serve\nas a basis for determining whether said Tenant improvements are assessed at a\nhigher\n\n\n\n\n\n\nvaluation than standard office improvements in other space in the Complex, such\nrecords shall be binding on both the Landlord and the Tenant. If the records of\nthe County Assessor are not available or sufficiently detailed to serve as a\nbasis for making said determination, the actual cost of construction shall be\nused.\n\n13. LIABILITY INSURANCE Tenant at Tenant's expense, agrees to keep in force\nduring the term of this Lease a policy of commercial general insurance with\ncombined single limit coverage of not less than Two Million Dollars ($2,000,000)\nfor injuries to or death of persons occurring in, on or about the Premises or\nthe Complex, and property damage insurance with limits of $550,000. The policy\nor policies affecting such insurance, certificates of insurance of which shall\nbe furnished to Landlord shall name Landlord as an additional insureds, and\nshall insure any liability of Landlord, contingent or otherwise, as respects\nacts or omissions of Tenant, its agents, employees or invitees or otherwise by\nany conduct or transactions of any of said persons in or about or concerning the\nPremises, including any failure of Tenant to observe or perform any of its\nobligations hereunder, shall be issued by an insurance company admitted to\ntransact business in the Sate of California, and shall provide that the\ninsurance effected thereby shall not be canceled, except upon thirty (30) days\nprior written notice to Landlord. If during the term of this Lease, in the\nconsidered opinion of Landlord's Lender, insurance advisor, or counsel, the\namount of insurance described in this paragraph 13 is not adequate. Tenant\nagrees to increase and coverage to such reasonable amount as Landlord's lender,\ninsurance advisor, or counsel shall deem adequate.\n\n14. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMAN'S COMPENSATION\nINSURANCE Tenant shall maintain a policy or policies of fire and property damage\ninsurance in 'all risk' form with a sprinkler leakage endorsement insuring the\npersonal property, inventory, trade fixtures, and leasehold improvements within\nthe leased Premises for the full replacements value thereof. The proceeds from\nany of such policies shall be used for the repair or replacement of such items\nso insured.\n        Tenant shall also maintain a policy or policies of workman's\ncompensation insurance and any other employee benefit insurance sufficient to\ncomply with all laws.\n\n15. PROPERTY INSURANCE Landlord shall purchase and keep in force and as\nAdditional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall\npay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's\nproportionate share (calculated on a square footage or other equitable basis as\ncalculated by Landlord) of the deductibles on insurance claims and the cost of\npolicy or policies of insurance covering loss or damage to the Premises and\nComplex in the amount of the full replacement value thereof, providing\nprotection against those perils included within the classification of 'all\nrisks' insurance and flood and\/or earthquake insurance, if available, plus a\npolicy of rental income insurance in the amount of one hundred (100%) percent of\ntwelve (12) months Basic Rent, plus sums paid as Additional Rent and any\ndeductibles related thereto. If such insurance cost is increased due to Tenant's\nuse of the Premises or the Complex, Tenant agrees to pay to Landlord the full\ncost of such increase. Tenant shall have no interest in nor any right to the\nproceeds of any insurance procured by Landlord for the Complex. Landlord and\nTenant do each hereby respectively release the other, to the extent of insurance\ncoverage of the releasing party, from any liability for loss or damage caused by\nfire or any of the extended coverage casualties included in the releasing\nparty's insurance policies, irrespective of the cause of such fire or casualty;\nprovided, however, prohibited, the insured party affected shall promptly notify\nthe other party thereof.\n\n16. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby\nwaives all claims against Landlord for any injury to or death of any person or\ndamage to or destruction of property in or about eh Premises or the Complex by\nor from any cause whatsoever, including, without limitation, gas, fire, oil,\nelectricity or leakage of any character from the roof, walls, basements or other\nportion of the Premises or the Complex but excluding, however, the willful\nmisconduct or negligence of Landlord, its agents, servants, employees, invitees,\nor contractors of which negligence Landlord has knowledge and reasonable time to\ncorrect. Except as to injury to persons or damage to property the negligence of\nLandlord, [its agents, servants, employees, invitees, or contractors to the\nextent arising from the willful misconduct or] Tenant shall hold Landlord\nharmless from and defend Landlord against any and all expenses, including\nreasonable attorneys' fees, in connection therewith, arising out of any injury\nto or death of any person or damage to or destruction of property occurring in,\non or about the Premises, or any part thereof, from any cause whatsoever.\n\n\n\n\n\n\n\n17. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply with\nall laws, statutes, ordinances and governmental rules, regulations or\nrequirements now or hereafter in effect; with the requirements of any board of\nthe underwriters or other similar body now or hereafter constituted, and with\nany direction or occupancy certificate issued pursuant to law by any public\nofficer, provided, however, that no such failure shall be deemed a breach of the\nprovisions if Tenant immediately upon notification, commences to remedy or\nrectify said failure. The judgement of any court of competent jurisdiction or\nthe admission of Tenant in any action against Tenant. Whether Landlord be a\nparty thereto or not, that Tenant has violated any such law, statute, ordinance\nor governmental rule, regulation, requirement, direction or provision, shall be\nconclusive of that fact as between Landlord and Tenant. The paragraph shall not\nbe interpreted as requiring Tenant to make structural changes or improvements,\nexcept to the extent such changes or improvements are required as a result of\nTenant's use of the Premises. Tenant shall, at its sole cost and expense, comply\nwith any and all requirements pertaining to said Premises, of any insurance\norganization or company, necessary for the maintenance of reasonable fire and\npublic liability insurance covering the Premises.\n\n18. LIENS Tenant shall keep the Premises and the Complex free from any liens\narising out of any work performed, materials furnished or obligations incurred\nby Tenant in the event that Tenant shall not, within ten (10) days following the\nimposition of such lien, cause the same to be released of record, Landlord shall\nhave, in addition to all other remedies provided herein and by law, the right,\nbut no obligation, to cause the same to be released by such means as it shall\ndeem proper, including payment of the claim giving rise to such lien. All sums\npaid by Landlord for such purpose, and all expenses incurred by it in connection\ntherewith, shall be payable to Landlord by Tenant on demand with interest at the\nprime rate of interest as quoted by the Bank of America.\n\n19. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or hypothecate\nthe leasehold estate under this Lease, or any interest therein, and shall not\nsublet the Premises, or any part thereof, or any right or privilege appurtenant\nthereto, or suffer any other person or entity to occupy or use the Premises, or\nany portion thereof, without, in each case, the prior written consent of\nLandlord which consent will not be unreasonably withheld. As a condition for\ngranting this consent to any assignment, transfer or subletting, Landlord may\nrequire that Tenant agrees to pay to Landlord, as additional rent 50% of all\nrents or additional consideration received by Tenant from its assignees,\ntransferees, or subtenants in excess of the rent payable by Tenant to Landlord\nhereunder. [...any reasonable leasing commissions paid by Tenant to third\nparties not affiliated with Tenant.] Tenant shall by thirty (30) days written\nnotice advise Landlord of its intent to assign or transfer Tenant's interest in\nthe Lease or sublet the Premises or any portion thereof for any part of the term\nhereof. Within thirty (30) days after receipt of said written notice, Landlord\nmay, in its sole discretion, elect to terminate this Lease as to the portion of\nthe Premises described in Tenant's notice on the date specified in Tenant's\nnotice by giving written notice of such election to terminate. If no such notice\nto terminate is given to Tenant within said thirty (30) day period, Tenant may\nproceed to locate an acceptable sublessee, assignee, or other transferee for\npresentment to Landlord for Landlord's approval, all in accordance with the\nterms, covenants, and conditions of this paragraph 19. If Tenant intends to\nsublet the entire Premises and Landlord elects to terminate this Lease, this\nLease shall be terminated on the date specified in Tenant's notice. If, however,\nthis Lease shall terminate pursuant to the foregoing with respect to less than\nall of the Premises, the rent, as defined and reserved hereinabove shall be\nadjusted on a pro rata basis to the number of square feet retained by Tenant,\nand this Lease as so amended shall continue in full force and effect. In the\nevent Tenant is allowed to assign, transfer or sublet the whole or any part, of\nthe Premises, with the prior written consent of Landlord, no assignee,\ntransferee or subtenant shall assign or transfer this Lease, either in whole or\nin part, or sublet the whole or any part of the Premises, without also having\nobtained the prior written consent of Landlord which consent shall not be\nunreasonably withheld. A consent of Landlord to one assignment, transfer,\nhypothecation, subletting, occupation or use by any other person. Any such\nassignment transfer, hypothecation, subletting, occupation or use without such\nconsent shall be void and shall constitute a breach of this Lease by Tenant and\nshall, at the option of Landlord exercised by written notice to Tenant,\nterminate this Lease. The leasehold estate under this Lease shall not, nor shall\nany interest therein, be assignable for any purpose by operation of law without\nthe written consent of Landlord which consent shall not be unreasonably\nwithheld. As a condition to its consent, Landlord may require Tenant to pay all\nexpenses in connection with the assignment, and Landlord may require Tenant's\nassignee or transferee (or other assignees or transferees) to assume in writing\nall of the obligations under this Lease and for Tenant to remain liable to\nLandlord under the Lease. See Paragraph 50.\n\n\n\n\n\n\n20. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold\ninterest is now or hereafter encumbered by a deed of trust, upon the interest of\nLandlord in the land and buildings in which the demised Premises are located, to\nsecure a loan from a lender (hereinafter referred to as 'Lender') to Landlord,\nTenant shall, at the request of Landlord or Lender, execute in writing an\nagreement subordinating its rights under this Lease to the lien of such deed of\ntrust, or, if so requested, agreeing that the lien of Lender's deed of trust\nshall be or remain subject and subordinate to the rights of Tenant under this\nLease [and provided Lender executes a reasonable nondisturbance agreement].\nNotwithstanding any such subordination, Tenant's possession under this Lease\nshall not be disturbed if Tenant is not in default and so long as tenant shall\npay all rent and observe and perform all of the provisions set forth in this\nlease.\n\n21. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times after\nat least 24 hours notice (except in emergencies) have, the right to enter the\nPremises to inspect them; to perform any services to be provided by Landlord\nhereunder; to submit the Premises to prospective purchasers, mortgagers or\ntenants; to post notices of nonresponsibility; and to alter, improve or repair\nthe Premises and any portion of the Complex, all without abatement of rent; and\nmay erect scaffolding and other necessary structures in or through the Premises\nwhere reasonably required by the character of the work to be performed;\nprovided, however that the business of Tenant shall be interfered with to the\nleast extent that is reasonably practical. For each of the foregoing purposes,\nLandlord shall at all times have and retain a key with which to unlock all of\nthe doors in an emergency in order to obtain entry to the Premises, and any\nentry to the Premises obtained by Landlord by any of said means, or otherwise,\nshall not under any circumstances be construed or deemed to be a forcible or\nunlawful entry into or a detainer of the premises or an eviction, actual or\nconstructive, of Tenant from the Premises or any portion thereof. Landlord shall\nalso have the right at any time to change the arrangement or location of\nentrances or passageways, doors and doorways, and corridors, elevators, stairs,\ntoilets or other public parts of the Complex and to change the name, number or\ndesignation by which the Complex is commonly known, and none of the foregoing\nshall be deemed an actual or constructive eviction of Tenant, or shall entitle\nTenant to any reduction of rent hereunder.\n\n22. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or\nliquidation action or reorganization action or insolvency action or an\nassignment of or by Tenant for the benefit of creditors, or any similar action\nundertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,\nconstitute a breach of this Lease by Tenant. If the trustee or receiver\nappointed to serve during a bankruptcy liquidation, reorganization, insolvency\nor similar action elects to reject Tenant's unexpired Lease, the trustee or\nreceiver shall notify Landlord in writing of its election within thirty (30)\ndays after an order for relief in a liquidation action or within thirty (30)\ndays after the commencement of any action.\n        Within thirty (30) days after court approval of the assumption of this\nLease, the trustee or receiver shall cure (or provide adequate assurance to the\nreasonable satisfaction of Landlord that the trustee or receiver shall cure) any\nand all previous defaults under the unexpired Lease and shall compensate\nLandlord for all actual pecuniary loss and shall provide adequate assurance of\nfuture performance under said Lease to the reasonable satisfaction of Landlord.\nAdequate assurance of future performance, as used herein, includes, but shall\nnot be limited to: (i) assurance of source and payment of rent, and other\nconsideration due under this Lease; (ii) assurance that the assumption or\nassignment of this Lease will not breach substantially any provision, such as\nradius, location, use, or exclusivity provision, in any agreement relating to\nthe above described Premises.\n        Nothing contained in this section shall affect the existing right of\nLandlord to refuse to accept an assignment upon commencement of or in connection\nwith a bankruptcy, liquidation, reorganization or insolvency action or an\nassignment of Tenant for the benefit of creditors or other similar act. Nothing\ncontained in this Lease shall be construed as giving or granting or creating an\nequity in the demised Premises to Tenant. In no event shall the leasehold estate\nunder this Lease, or any interest therein, be assigned by Tenant under any\nbankruptcy, insolvency or reorganization proceedings.\n        The failure to perform or honor any covenant, condition or\nrepresentation made under this Lease shall constitute a default hereunder by\nTenant upon expiration of the appropriate grace period hereinafter provided.\nTenant shall have a period of five (5) days from the date of written notice from\nLandlord within which to cure any default in the payment of rental or adjustment\nthereto. Tenant shall have a period of thirty (30) days from the date of written\nnotice from Landlord within which to cure any other default under this Lease [].\nUpon an uncured default of this Lease by Tenant Landlord shall have the\nfollowing rights and remedies in addition to any other rights or remedies\navailable to Landlord at law or in equity.\n\n\n\n\n\n\n\n        (a) The rights and remedies provided for by California Civil Code\nSection 1951.2, including but not limited to, recovery of the worth at the time\nof award of the amount by which the unpaid rent for the balance of the term\nafter the time of award exceeds the amount of rental loss for the same period\nthat Tenant proves could be reasonably avoided, as computed pursuant to\nsubsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs\n(2) and (3) of Section 1951.2 of the California Civil Code of the amount of\nrental loss that could be reasonable avoided shall be made in the following\nmanner: Landlord and Tenant shall each select a licensed real estate broker in\nthe business of renting property of the same type and use as the Premises and in\nthe same geographic vicinity. Such two real estate brokers shall select a third\nlicensed real estate broker, and the three licensed real estate brokers so\nselected shall determine the amount of the rental loss that could be reasonably\navoided from the balance of the term of this Lease after the time of award. The\ndecision of the majority of said licensed real estate brokers shall be final and\nbinding upon the parties hereto.\n\n        (b) The rights and remedies provided by California Civil Code Section\nwhich allows Landlord to continue the Lease in effect and to enforce all of its\nrights and remedies under this Lease, including the right to recover rent as it\nbecomes due, for so long as Landlord does not terminate Tenant's right to\npossession; acts of maintenance or preservation, efforts to relet the Premises,\nor the appointment of a receiver upon Landlord's initiative to protect its\ninterest under this Lease shall not constitute a termination of Tenant's right\nto possession.\n\n        (c) The right to terminate this Lease by giving notice to Tenant in\naccordance with applicable law.\n\n        (d) [] The right and power to enter the Premises and remove therefrom\nall persons and property, to store such property in a public warehouse or\nelsewhere at the cost of and for the account of Tenant, and to sell such\nproperty and apply such proceeds therefrom pursuant to applicable California\nlaw. Landlord may from time to time sublet the Premises or any part thereof for\nsuch term or terms (which may extend beyond the term of this Lease) and at such\nrent and such other terms as Landlord in its sole discretion may deem advisable,\nwith the right to make alterations and repairs to the Premises. Upon each\nsubletting, (i) Tenant shall be immediately liable to pay Landlord, in addition\nto indebtedness other than rent due hereunder, the cost of such subletting,\nincluding, but not limited to, reasonable attorneys' fees, and any real estate\ncommission actually paid, and the cost of such alterations and repairs incurred\nby Landlord and the amount, if any, by which the rent hereunder for the period\nof such subletting (to the extent such period does not exceed the term hereof)\nexceeds the amount to be paid as rent for the Premises for such period or (ii)\nat the option of Landlord, rents received from such subletting shall be applied\nfirst to payment of indebtedness other than rent due hereunder from Tenant to\nLandlord; second, to the payment of any cost of such subletting and of such\nalterations and repairs; third to payment of rent due and unpaid hereunder; and\nthe residue, if any, shall be held by Landlord and applied in payment of future\nrent as the same becomes due hereunder. If Tenant has been credited with any\nrent to be received by such subletting under option (i) and such rent shall not\nbe promptly paid to Landlord by the subtenant(s), or is such rentals received\nfrom such subletting under option (ii) during any month be less than that to be\npaid during that month by Tenant hereunder. Tenant shall pay any such deficiency\nto Landlord. Such deficiency shall be calculated and paid monthly, provided,\nhowever, that if the nature of Tenant's failure is such that more than thirty\n(30) days is reasonably required to cure the same, Tenant shall not be in\ndefault so long as Tenant commences performance within such thirty (30) day\nperiod and thereafter prosecutes the same to completion. No taking possession of\nthe Premises by Landlord shall be construed as an election on its part to\nterminate this Lease unless a written notice of such intention to Tenant.\nNotwithstanding any such subletting without termination, Landlord may at any\ntime hereafter elect to terminate this Lease for such previous breach.\n\n        (e) The right to have a receiver appointed for Tenant upon application\nby Landlord, to take possession of the Premises and to apply any rental\ncollected from the Premises and to exercise all other rights and remedies\ngranted to Landlord pursuant to subparagraph d above (except that Tenant may\nvacate so long as it pays rent, provides and on-site security guard during\nnormal business hours from Monday through Friday, and otherwise performs its\nobligations hereunder.\n\n23. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time\nduring the term of this Lease and if Tenant shall abandon, vacate or surrender\nsaid Premises, or be dispossessed by the process of law, or otherwise, any\npersonal property belonging to Tenant and left on the Premiss shall be deemed to\nbe abandoned, at the option of Landlord, except such property as may be\nmortgaged to Landlord.\n\n\n\n\n\n\n24. DESTRUCTION In the event the Premises are destroyed in whole or in part from\nany cause, except for routine maintenance and repairs and incidental damage and\ndestruction caused from vandalism and accidents for which Tenant is responsible\nfor under Paragraph 10. Landlord, may at its option:\n\n        (a) Rebuild or restore the Premises to their condition prior to the\n        damage or destruction, or\n\n        (b) Terminate this Lease. (providing that the Premises is damaged to the\n        extent of 33 1\/3% of the replacement cost).\n\nIf Landlord does not give Tenant notice in writing within thirty (30) days from\nthe destruction of the Premises of its election to either rebuild or restore the\nPremises to their condition prior to the damage or destruction. Tenant shall be\nentitled to a reduction in rent while such repair is being made in the\nproportion that the area of the Premises rendered untenable by such damage bears\nto the total area of the Premises. [...that the rebuilding or restoration will\nexceed days or] If Landlord does not complete the rebuilding or restoration\nwithin one hundred eighty (180) days following the date of destruction (such\nperiod of time to be extended for delays caused by the fault or neglect of\nTenant or because of Acts of God, acts of public agencies, labor disputes,\nstrikes, fires, freight embargoes, rainy or stormy weather, inability to obtain\nmaterials, supplies or fuels, acts of contractors or subcontractors, or delay of\nthe contractors or subcontractors due to such causes or other contingencies\nbeyond the control of Landlord), then Tenant shall have the right to terminate\nthis Lease by giving fifteen (15) days prior written notice to Landlord.\nNotwithstanding anything herein to the contrary, Landlord's obligation to\nrebuild or restore shall be limited to the building and interior improvements\nconstructed by Landlord as they existed as of the commencement date of the Lease\nand shall not include restoration of Tenant's trade fixtures, equipment,\nmerchandise, or any improvements, alterations or additions made by Tenant to the\nPremises, which Tenant shall forthwith replace or fully repair at Tenant's sole\ncost and expense provided this Lease is not cancelled according to the\nprovisions above.\n        Unless this Lease is terminated pursuant to the foregoing provisions,\nthis Lease shall remain in full force and effect. Tenant hereby expressly waives\nthe provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of\nthe California Civil Code.\n        In the event that the building in which the Premises are situated is\ndamaged or destroyed to the extent of not less than 33 1\/3% of the replacement\ncost thereof. Landlord may elect to terminate this Lease, whether the Premises\nbe injured or not.\n\n25. EMINENT DOMAIN If all or any part of the Premises shall be taken by any\npublic authority under the power of eminent domain or conveyance in lieu\nthereof, this Lease shall terminate as to any portion of the Premises so taken\nor conveyed on the date when title vests in the condemnor, and Landlord shall be\nentitled to any and all payment, income, rent, award, or any interest therein\nwhatsoever which may be paid or made in connection with such taking or\nconveyance, and Tenant shall have no claim against Landlord or otherwise for the\nvalue of any unexpired term of this Lease. Notwithstanding the foregoing\nparagraph, any compensation specifically awarded Tenant for loss of business.\nTenant's personal property, moving cost or loss of goodwill, shall be and remain\nthe property of Tenant.\n\nIf (i) any action or proceeding is commenced for such taking of the Premises or\nany part thereof, or if Landlord is advised in writing by any entity or body\nhaving the right or power of condemnation of its intention to condemn the\npremises or any portion thereof, or (ii) any of the foregoing events occur with\nrespect to the taking of any space in the Complex not leased hereby, or if any\nsuch spaces so taken or conveyed in lieu of such taking and Landlord shall\ndecide to discontinue the use and operation of the Complex, or decide to\ndemolish, alter or rebuild the Complex, then, in any of such events Landlord\nshall have the right to terminate this Lease by giving Tenant written notice\nthereof within sixty (60) days of the date of receipt of said written advice, or\ncommencement of said action or proceeding, or taking conveyance, which\ntermination shall take place as the first to occur of the last day of the\ncalendar month next following the month in which such notice is given or the\ndate on which title to the Premises shall vest in the condemner.\n        In the event of such a partial taking or conveyance of the Premises, if\nthe portion of the Premises taken or conveyed is so substantial that the Tenant\ncan no longer reasonably conduct its business, Tenant shall have the privilege\nof terminating this Lease within sixty (60) days from the date of such taking or\nconveyance, upon written notice to Landlord of its intention so to do, and upon\ngiving of such notices this Lease shall terminate on the last day of the\ncalendar month next following the month in which such notice is given, upon\npayment by Tenant of the\n\n\n\n\n\n\nrent from the date of such taking or conveyance to the date of termination.\n        If a portion of the Premises to be taken by condemnation or conveyance\nin lieu thereof and neither Landlord nor Tenant shall terminate this Lease as\nprovided herein, this Lease shall continue in full force and effect as to the\npart of the Premises not so taken or conveyed, and the rent herein shall be\napportioned as of the date of such taking or conveyance so that thereafter the\nrent to be paid by Tenant shall be in the ratio that the area of the portion of\nthe Premises not so taken or conveyed bears to the total area of the Premises\nprior to such taking.\n\n26. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of the\nComplex or any interest therein, by any owner of the reversion then\nconstituting, the transferor shall thereby be released from any further\nliability upon any of the terms, covenants or conditions (express or implied)\ncontained in favor of Tenant, and in such event, insofar as such transfer is\nconcerned, Tenant agrees to look solely to the responsibility of the successor\nin interest of such transferor in and to the Complex and this Lease. This Lease\nshall not be affected by any such sale or conveyance, and Tenant agrees to\nattorn to the successor in interest of such transferor.\n\n27. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord in\nthe land and buildings in which the leased Premises are located whether such\ninterest of Landlord is a fee title interest or a leasehold interest is\nencumbered by deed of trust, and such interest is acquired by the lender or any\nthird party through judicial foreclosure or by exercise of a power of sale at\nprivate trustee's foreclosure sale. Tenant hereby agrees to attorn to the\npurchaser at any such foreclosure sale and to recognize such purchaser as the\nLandlord under this Lease. In the event the lien of the deed of trust securing\nthe loan from a Lender to Landlord is prior and paramount [ ] the Lease, this\nLease shall nonetheless continue in full force and effect for the remainder of\nthe unexpired term hereof, at the same rental herein reserved and upon all the\nother terms, conditions and covenants herein contained.\n\n28. HOLDING OVER Any holding over by Tenant after expiration or other\ntermination of the term of this Lease with the written consent of Landlord\ndelivered to Tenant shall not constitute a renewal or extension of the Lease or\ngive Tenant any rights in or to the leased Premises except as expressly provided\nin this Lease. Any holding over after the expiration or other termination of the\nterm of this Lease, with the consent of Landlord, shall be construed to be a\ntenancy from month to month, on the same terms and conditions herein specified\ninsofar as applicable except that the month Basic Rent shall be increased to an\namount equal to one hundred fifty (150%) percent of monthly Basic Rent required\nduring the last month of the Lease term.\n\n29. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten (10)\ndays' prior written notice to Landlord execute, acknowledge and deliver to\nLandlord a statement in writing (i) certifying that this Lease is unmodified and\nin full force and effect (or, if modified, stating the nature of such\nmodification and certifying this Lease, as so modified, is in full force and\neffect) and the date to which the rent, and other charges are paid in advance,\nif any, and (ii) acknowledging that there are to Tenant's knowledge, any uncured\ndefaults on the part of the Landlord hereunder, or specifying such defaults, if\nany, are claimed. Any such statement may be exclusively relied upon by any\nprospective purchaser or encumbrancer of the Premises. Tenant's failure to\ndeliver such statement within such time shall be conclusive upon Tenant that\nthis Lease is in full force and effect, without modification except as may be\nrepresented by Landlord; that there are no uncured defaults in Landlord's\nperformance, and that not more than one month's rent has been paid in advance.\n\n30. CONSTRUCTION CHANGES It is understood that the description of the Premises\nand the location of ductwork, plumbing and other facilities therein are subject\nto [] minor changes as Landlord or Landlord's architect determines to be\ndesirable in the course of construction of the Premises, and no such changes, or\nany changes in [] for any other portions of the Complex shall affect this Lease\nor entitle Tenant to any reduction of rent hereunder or result in any liability\nof Landlord to Tenant. Landlord does not guarantee the accuracy of any drawings\nsupplied to Tenant and verification of the accuracy of such drawings rests with\nTenant.\n\n31. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this\nLease to be performed or observed by Tenant shall be performed or observed []\nTenant at Tenant's sole cost and expense and without any reduction of rent. If\nTenant shall fail to pay any sum of money, or other rent, required to be paid by\nit hereunder [] fail to perform any other term or covenant hereunder on its part\nto be performed, and such failure shall continue\n\n\n\n\n\n\nfor five (5) days after written notice thereof by Landlord, Landlord, without\nwaiving or releasing Tenant from any obligation of Tenant hereunder, may, but\nshall not be obligated to, make any such payment or perform any such other term\nor covenant on Tenant's part to be performed. All sums so paid by Landlord and\nall necessary costs of such performance by Landlord together with interest\nthereon at the rate of the prime rate of interest per annum as quoted by the\nBank of America from the date such payment or performance by Landlord, shall be\npaid (and Tenant covenants to make such payment) to Landlord on demand by\nLandlord, and Landlord shall have (in addition to any other right or remedy of\nLandlord) the same rights and remedies in the event of nonpayment by Tenant as\nin the case of failure by Tenant in the payment of rent hereunder\n\n32.     ATTORNEYS' FEES\n\n        A. In the event that either Landlord or Tenant should bring suit for the\npossession of the Premises, for the recovery of any sum due under this Lease, or\nbecause of the breach of any provision of this Lease, or for any other relief\nagainst the other party hereunder, then all costs and expenses, including\nreasonable attorneys' fees, incurred by the prevailing party therein shall be\npaid by the other party, which obligations on the part of the other party shall\nbe deemed to have accrued on the date of the commencement of such action and\nshall be enforceable whether or not the action is prosecuted to judgement.\n\n        B. Should Landlord be named as a defendant in any suit brought against\nTenant in connection with or arising out of Tenant's occupancy hereunder, Tenant\nshall pay to Landlord its costs and expenses incurred in such suit, including a\nreasonable attorneys' fee.\n\n33. WAIVER The waiver by either party of the other party's failure to perform or\nobserve any term, covenant or condition herein contained to be performed or\nobserved by such waiving party shall not be deemed to be a waiver of such term,\ncovenant or condition or of any subsequent failure of the party failing to\nperform or observe the same or any other such term, covenant or condition\ntherein contained, and no custom or practice which may develop between the\nparties hereto during the term hereto during the term hereof shall be deemed a\nwaiver of, or in any way affect, the right of either party to insist upon\nperformance and observance by the other party in strict accordance with the\nterms hereof.\n\n34. NOTICES All notices, demands, requests, advices or designations which may be\nor are required to be given by either party to the other hereunder shall be in\nwriting. All notices, demands, requests, advices or designations by Landlord to\nTenant shall be sufficiently given, made or delivered if personally served on\nTenant by leaving the same at the Premises or if sent by United States certified\nor registered mail, postage prepaid, addressed to Tenant at the Premises. All\nnotices, demands, requests, advices, or designations by Tenant to Landlord shall\nbe sent by United States certified or registered mail, postage prepaid,\naddressed to Landlord at its offices at Peery\/Arrillaga, 2560 Mission College\nBlvd., Suite 101, Santa Clara, CA 95054. Each notice, request, demand, advice or\ndesignation referred to in this paragraph shall be deemed received on the date\nof the personal service or mailing thereof in the manner herein provided, as the\ncase may be.\n\n35. EXAMINATION OF LEASE Submission of this instrument for examination or\nsignature by Tenant does not constitute a reservation of or option for a lease,\nand this instrument is not effective as a lease or otherwise until its execution\nand delivery by both Landlord and Tenant.\n\n36. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails\nto perform obligations required of Landlord within a reasonable time, but in no\nevent earlier than thirty (30) days after written notice by Tenant to Landlord\nand to the holder of any first mortgage or deed of trust covering the Premises\nwhose name and address shall have heretofore been furnished to Tenant in\nwriting, specifying wherein Landlord has failed to perform such obligations,\nprovided, however, that if the nature of Landlord's obligations is such that\nmore than thirty (30) days are required for performance, then Landlord shall not\nbe in default if Landlord commences performance within such thirty (30) day\nperiod and thereafter diligently prosecutes the same to completion.\n\n37. CORPORATE AUTHORITY If Tenant is a corporation, (or a partnership) each\nindividual executing this Lease on behalf of said corporation (or partnership)\nrepresents and warrants that he is duly authorized to execute and\n\n\n\n\n\n\ndeliver this Lease on behalf of said corporation (or partnership) in accordance\nwith the by-laws of said corporation (or partnership in accordance with the\npartnership agreement) and that this lease is binding upon said corporation (or\npartnership) in accordance with its terms. If Tenant is a corporation, Tenant\nshall, within thirty (30) days after execution of this Lease, deliver to\nLandlord a certified copy of the resolution of the Board of Directors of said\ncorporation authorizing or ratifying the execution of this Lease.\n\n[Section 38 BASIC RENT ADJUSTMENT deleted]\n\n39. LIMITATION OF LIABILITY In consideration of the benefits accruing hereunder,\nTenant and all successors and assigns covenant and agreed that, in the even of\nany actual or alleged failure, breach or default hereunder by Landlord:\n\n        (i) the sole and exclusive remedy shall be against Landlord and\nLandlord's assets;\n        (ii) no partner of Landlord shall be sued or named as a party in any\nsuit or action; (except as may be necessary to secure jurisdiction of the\npartnership);\n        (iii) no service of process shall be made against any partner of\nLandlord (except as may be necessary to secure jurisdiction of the partnership);\n        (iv) no partner of Landlord shall be required to answer or otherwise\nplease to any service of process;\n        (v) no judgement will be taken against any partner of Landlord;\n        (vi) any judgment taken against any partner of Landlord may be vacated\nand set aside at any time without hearing;\n        (vii) no writ of execution will ever be levied against the assets of any\npartner of Landlord;\n        (viii) these covenants and agreements are enforceable both by Landlord\nand also by any partner of Landlord.\nTenant agrees that each of the foregoing covenants and agreements shall be\napplicable to any covenant or agreement either expressly contained in this Lease\nor imposed by statute or common law.\n\n40.     MISCELLANEOUS AND GENERAL PROVISIONS\n\n        a. Tenant shall not, without the written consent of Landlord, use the\nname of the building for any purpose other than as the address of the business\nconducted by Tenant in the Premises.\n\n        b. This Lease shall in all respects be governed by and construed in\naccordance with the laws of the State of California. If any provision of this\nLease shall be invalid, unenforceable or ineffective for any reason whatsoever,\nall other provisions hereof shall be and remain in full force and effect.\n\n        c. The term 'Premises' includes the space leased hereby and any\nimprovements now or hereafter installed therein or attached thereto. The term\n'Landlord' or any pronoun used in place thereof includes the plural as well as\nthe singular and the successors and assigns of Landlord. The term 'Tenant' or\nany pronoun used in place thereof includes the plural as well as the singular\nand individuals, firms, associations, partnerships and corporations, and their\nand each of their respective heirs, executors, administrators, successors and\npermitted assigns.\n        The term 'person' includes the plural as well as the singular and\nindividuals, firms, associations, partnerships and corporations. Words used in\nany gender include other genders. If there be more than one Tenant the\nobligations of Tenant hereunder are joint and several. The paragraph headings of\nthis Lease are for convenience of reference only and shall have no effect upon\nthe construction or interpretation of any provision hereof.\n\n        d. Time is of the essence of this Lease and of each and all of its\nprovisions.\n\n        e. At the expiration or earlier termination of this Lease, Tenant shall\nexecute, acknowledge and deliver to Landlord, within ten (10) days after written\ndemand from Landlord to Tenant, any quitclaim deed or other document required by\nany reputable title company, license to operate in the State of California, to\nremove the cloud or encumbrance created by this Lease from the real property at\nwhich Tenant's Premises are a part.\n\n        f. This instrument along with any exhibits and attachments hereto\nconstitutes the entire agreement\n\n\n\n\n\n\nbetween Landlord and Tenant relative to the Premises and this agreement and the\nexhibits and attachments may be altered amended or revoked only by an instrument\nin writing signed by both Landlord and Tenant. Landlord and Tenant agree hereby\nthat all prior or contemporaneous oral agreements between and among themselves\nand their agents or representatives relative to the leasing of the Premises are\nmerged in or revoked by this agreement.\n\n        g. Neither Landlord nor Tenant shall record this Lease or a short form\nmemorandum hereof without the written consent of the other.\n\n        h. Tenant further agrees to execute any amendments, required by a lender\nto enable Landlord to obtain financing, so long as Tenant's rights hereunder are\nnot substantially affected.\n\n        i. Paragraphs 43 through 53 are added hereto and are included as a part\nof this lease.\n\n        j. Clauses, plats and riders, if any, signed by Landlord and Tenant and\nendorsed on or affixed to this Lease are a part hereof.\n\n        k. Tenant covenants and agrees that no diminution or shutting off of\nlight, air or view by any structure which may be hereafter erected (whether or\nnot by Landlord) shall in any way affect this Lease, entitle Tenant to any\nreduction of rent hereunder or result in any liability of Landlord to Tenant.\n\n41. BROKERS Tenant warrants that it had dealings with only the following real\nestate brokers or agents in connection with the negotiation of this Lease: none\nand that it knows of no other real estate broker or agent who is entitled to a\ncommission in connection with this Lease.\n\n42. SIGNS No sign, placard, picture, advertisement, name or notice shall be\ninscribed, displayed or [painted] or affixed on or to any part of the outside of\nthe Premises or any exterior windows of the Premises without the written consent\nof Landlord first had and obtained and Landlord shall have the right to remove\nany such sign, placard, picture, advertisement, name or notice without notice to\nand at the expense of Tenant. If Tenant is allowed to print or affix or in any\nway place a sign in, on, or about the Premises, upon expiration or other sooner\ntermination of this Lease, Tenant at Tenant's sole cost and expense shall both\nremove such sign and repair all damage in such a manner as to restore all\naspects of the appearance of the Premises to the condition prior to the\nplacement of said sign.\n\n        All approved signs or lettering on outside doors shall be printed,\npainted, affixed or inscribed at the expense of Tenant by a person approved of\nby Landlord. Tenant shall not place anything or allow anything to be placed near\nthe glass of any window, door partition or wall which may appear unsightly from\noutside the Premises.\n\n        IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this\nLease as of the day and year last written below.\n\nLANDLORD:                                   TENANT:\n\nARRILLAGA FAMILY TRUST              COM21, INC.\n                                            a Delaware corporation\n\nBy: \/s\/ John Arrillaga              By:     \/s\/ David L. Robertson\n   -------------------------------     -------------------------------\n        John Arrillaga, Trustee\n\nDated:  5\/22\/96                     Title:  Vice President of Finance\n     -----------------------------       -----------------------------\n\nRICHARD T. PEERY\n   SEPARATE PROPERTY TRUST          Print or Type Name  \/s\/ David L. Robertson\n                                                      -------------------------\n\nBy: \/s\/ Richard T. Peery  5\/23\/96   Dated:   May 20, 1996\n   ------------------------------         -------------------------------\n\n\n\n        Richard T. Peery, Trustee\n\n\n\n\n\n\nParagraphs 43 to 53 to Lease Agreement Dated May 10, 1996. By and Between the\nArrillga Family Trust and the Richard T. Peery Separate Property Trust, as\nLandlord, and Com21, Inc., a Delaware corporation, as Tenant for 44,624+\/-\nSquare Feet of Space Located at 750 Tasman Drive, Milpitas, California.\n\n43. BASIC RENT: In accordance with Paragraph 4A herein, the total aggregate sum\nof SIX MILLION THREE HUNDRED SEVENTY SEVEN THOUSAND FORTY FOUR AND 80\/100\nDOLLARS ($6,377,044.80), shall be payable as follows:\n\n        On August 1, 1996, the sum of FORTY SEVEN THOUSAND TWO HUNDRED FIFTY AND\nNO\/100 DOLLARS ($47,250.00) shall be due, and a like sum due on the first day of\neach month thereafter, through and including July 1, 1997.\n\n        On August 1, 1997, the sum of SIXTY TWO THOUSAND FOUR HUNDRED SEVENTY\nTHREE AND 60\/100 DOLLARS ($62,473.60) shall be due, and a like sum due on the\nfirst day of each month thereafter, through and including July 1, 1999.\n\n        On August 1, 1999, the sum of SIXTY SIX THOUSAND NINE HUNDRED THIRTY SIX\nAND NO\/100 DOLLARS ($66,936.00) shall be due and a like sum due on the first day\nof each month thereafter, through and including July 1, 2002.\n\n        On August 1, 2001, the sum of SEVENTY ONE THOUSAND THREE HUNDRED NINETY\nEIGHT AND 40\/100 DOLLARS ($71, 398.40) shall be due, and a like sum due on the\nfirst day of each month thereafter, through and including July 1, 2002.\n\n        On August 1, 2002, the sum of SEVENTY THREE THOUSAND SIX HUNDRED TWENTY\nNINE AND 60\/100 DOLLARS ($73,629.60) shall be due, and a like sum due on the\nfirst day of each month thereafter, through and including July 1, 2003.\n\n        On August 1, 2003, the sum of SEVENTY FIVE THOUSAND EIGHT HUNDRED SIXTY\nAND 80\/100 DOLLARS ($75,860.80) shall be due, and a like sum due on the first\nday of each month thereafter, through and including July 1, 2004; or until the\nentire aggregate sum of SIX MILLION THREE HUNDRED SEVENTY SEVEN THOUSAND FORTH\nFOUR AND 80\/100 DOLLARS ($6,377,044.80) has been paid.\n\n44. EARLY ENTRY: Tenant and its agents and contractors shall be permitted to\nenter the Premises prior to the Commencement Date for the purpose of installing\nat Tenant's sole cost and expense, Tenant's trade fixtures and equipment,\ntelephone equipment, security systems and cabling for computers. Such entry\nshall be subject to all of the terms and conditions of this Lease, except that\nTenant shall not be required to pay any Rent on account thereof. Any entry or\ninstallation work by Tenant and its agents in the Premises pursuant to this\nParagraph 44 shall (i) be undertaken at Tenant's sole risk, (ii) not interfere\nwith or delay Landlord's work in the Premises (if any), and (iii) not be deemed\noccupancy or possession of the Premises for purposes of the Lease. Tenant shall\nindemnify, defend, and hold Landlord harmless from any and all loss, damage,\nliability, expense (including reasonable attorney's fees), claim or demand of\nwhatsoever character, direct or consequential, including, but not limited\nthereby the generality of the\n\n\n\n\n\n\nforegoing; injury to or death of persons and damage to or loss of property\narising out of the exercise by Tenant of any early entry right granted\nhereunder. In the event Tenant's work in said Premises delays the completion of\nthe interior improvements to be provided by Landlord, if any, or in the event\nTenant has not completed construction of it's interior improvements by the\nscheduled Commencement Date, it is agreed between the parties that this Lease\nwill commence on the schedule Commencement Date of August 1, 1996 regardless of\nthe construction status of said interior improvements completed or to be\ncompleted by Tenant or Landlord. It is the intent of the parties hereto that the\ncommencement of Tenant's obligation to pay Rent under the Lease not be delayed\nby any of such causes or by any other act of Tenant (except as expressly\nprovided herein) and, in the event it is so delayed. Tenant's obligation to pay\nRent under the Lease shall commence as of the date it would otherwise have\ncommenced absent delay caused by Tenant.\n\n45. EARLY OCCUPANCY: In the event the Premises leased hereunder become available\nfor Tenant's use and occupancy prior to the scheduled Commencement Date hereof,\nTenant shall have the right to occupy the Premises as of the date Landlord so\ncompletes said Premises for Tenant's use and occupancy. This Lease shall\ncommence and Tenant shall pay to Landlord, effective as of the date Premises are\ndelivered to Tenant, all Additional Rent expenses which are Tenant's\nresponsibility hereunder (however, Tenant shall not be responsible for paying\nBase Rent during the early occupancy period), and Tenant shall be obligated to\nperform, and be bound by, each and every term, covenant, and condition of this\nLease. In the event Tenant occupies the Premises prior to August 1, 1996, the\nTerm of this Lease will be extended to include the early occupancy period (i.e.\nIf Tenant occupies said space on July 1, 1996, the Lease Term will be extended\nfor one (1) month from an eight (8) year Term to an eight (8) year one (1) month\nTerm).\n\n46. 'As-IS BASIS: Subject only Paragraphs 52 ('Maintenance of the Premises') and\n53 ('Punch List'), and to Landlord making the improvements shown on Exhibit B to\nbe attached hereto, it is hereby agreed that the Premises leased hereunder is\nleased strictly on an 'as-is' basis and in its present condition, and in the\nconfiguration as shown on Exhibit B to be attached hereto, and by reference made\na part hereof. Except as specified in Paragraphs 52 ('Maintenance of the\nPremises') and 53 ('Punch List'), it is specifically agreed between the parties\nthat after Landlord makes the interior improvements as shown on Exhibit B,\nLandlord shall not be required to make, nor be responsible for any cost, in\nconnection with any repair, restoration, and\/or improvement to the Premises in\norder for this Lease to commence, or thereafter, throughout the Term of this\nLease. Landlord makes no warranty or representation of any kind or nature\nwhatsoever as to the condition or repair of the Premises, nor as to the use or\noccupancy which may be made thereof.\n\n47. CONSENT: Whenever the consent of one party to the other is required\nhereunder, such consent shall not be unreasonably withheld.\n\n48. CHOICE OF LAW; SEVERABILITY: This Lease shall in all respects be governed by\nand construed in accordance with the laws of the State of California. If any\nprovisions of this Lease shall be invalid, unenforceable, or ineffective for any\nreason whatsoever, all other provisions hereof shall be and remain in full force\nand effect.\n\n49. ASSESSMENT CREDITS: The demised property herein is subject to a special\n\n\n\n\n\n\nassessment levied by the City of Milpitas in Improvement District No. 9. As part\nof said special assessment proceedings, additional bonds were sold and\nassessments levied to provide for construction contingencies and reserve funds.\nInterest will be earned on such funds created for contingencies and on reserve\nfunds which will be credited for the benefit of said assessment district. To the\nextent surpluses are created in said district through unused contingency funds,\ninterest earnings or reserve funds, such surpluses shall be deemed the property\nof Landlord. Notwithstanding that such surpluses may be credited on assessments\notherwise due against the demised premises. Tenant shall pay to Landlord, as\nadditional rent, if and at the time of any such credit of surpluses, an amount\nequal to all such surpluses so credited.\n\n50. ASSIGNMENT AND SUBLETTING (CONTINUED): Any and all sublease agreement(s)\nbetween Tenant and any and all subtenant(s) (which agreements must be consented\nto by Landlord, pursuant to the requirements of this Lease) shall contain the\nfollowing language:\n\n        If Landlord and Tenant jointly and voluntarily elect, for any reason\nwhatsoever, to terminate the Master Lease prior to the scheduled Master Lease\ntermination date, then this Sublease (if then still in effect) shall terminate\nconcurrently with the termination of the Master Lease. Subtenant expressly\nacknowledges and agrees that (1) the voluntary termination of the master Lease\nby Landlord and Tenant and the resulting termination of this Sublease shall not\ngive Subtenant any right or power to make any legal or equitable claim against\nLandlord or Tenant, including without limitation any claim for interference with\ncontract or interference with prospective economic advantage, and (2) Subtenant\nhereby waives any and all rights it may have under law or at equity to challenge\nsuch an early termination of the Sublease, and unconditionally releases and\nrelieves Landlord and Tenant, and their officers, directors, employees and\nagents, from any and all claims, demands, and\/or causes of action whatsoever\n(collectively, 'Claims'), whether such matters are known or unknown, latent or\napparent, suspected or unsuspected, foreseeable or unforeseeable, which\nSubtenant may have arising out of or in connection with any such early\ntermination of this Sublease. Subtenant knowingly and intentionally waives any\nand all protection which is or may be given by Section 1542 of the California\nCivil Code which provides as follows: 'A general release does not extend to\nclaims which the creditor does not know or suspect to exist in his favor at the\ntime of executing the release, which if known by him must have materially\naffected his settlement with debtor.'\n\n        The term of this Sublease is therefore subject to early termination.\nSubtenant's initials here below evidence (a) Subtenant's consideration of an\nagreement to this early termination provision, (b) Subtenant's acknowledgement\nthat, in determining the net benefits to be derived by Subtenant under the terms\nof this Sublease, Subtenant has anticipated the potential for early termination,\nand (c) Subtenant's agreement to the general waiver and release of Claims above.\n\n               Initials:______________      Initials:____________\n                          Subtenant                    Tenant\n\n\n51. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect to\nthe existence or use of 'Hazardous Materials' (as defined herein) on, in, under\nor about the Premises and real property located beneath said Premises\n(hereinafter collectively referred to as the\n\n\n\n\n\n\n'Property') and the Complex.\n\nAs used herein, the term 'Hazardous Materials' shall mean any hazardous or toxic\nsubstance, material or waste which is or becomes subject to or regulated by any\nlocal governmental authority, the Sate of California, or the United States\nGovernment. The term 'Hazardous Materials' includes, without limitation any\nmaterial or hazardous substance which is (i) listed under Article 9 or defined\nas 'hazardous' or 'extremely hazardous' pursuant to Article 11 of Title 22 of\nthe California Administrative Code, Division 4, Chapter 30, (ii) listed or\ndefined as a 'hazardous waste' pursuant to the Federal Resource Conservation and\nRecovery Act, Section 42 U.S.C. Section 6901 et. seq., (iii) listed or defined\nas a 'hazardous substance' pursuant to the Comprehensive Environmental Response,\nCompensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42 U.S.C.\nSection 9601), (iv) petroleum or any derivative of petroleum, or (v) asbestos.\n\nSubject to the terms of this Paragraph 51, Tenant shall have no obligation to\n'clean up', reimburse, release, indemnify, or defend Landlord with respect to\nany Hazardous Materials or wastes which Tenant (prior to and during the Term of\nthe Lease) did not store, dispose, or transport in, use, or cause to be on the\nProperty or which Tenant, its agents, employees, contractors, vendors, invitees,\nvisitors or its future subtenants and\/or assignees (if any) (during the Term of\nthis Lease), did not store, dispose, or transport in, use or cause to be on the\nComplex in violation of applicable law.\n\nTenant shall be 100 percent liable and responsible for: (i) any and all\n'investigation and cleanup' of said Hazardous Materials contamination which\nTenant, its agents, employees, contractors, vendors, invitees, visitors or its\nfuture subtenants and\/or assignees (if any), or other parties on the Property,\ndoes store, dispose, or transport in, use or cause to be on the Property, and\nwhich Tenant, its agents, employees, contractors, vendors, invitees, visitors or\nits future subtenants and\/or assignees (if any) does store, dispose, or\ntransport in, use or cause to be on the Complex and (ii) any claims, including\nthird party claims, resulting from such Hazardous Materials contamination.\nTenant shall indemnify Landlord and hold Landlord harmless from any liabilities,\ndemands, costs, expenses and damages, including, without limitation, attorney\nfees incurred as a result of any claims resulting from such Hazardous Materials\ncontamination.\n\nTenant also agrees not to use or dispose of any Hazardous Materials on the\nProperty or the Complex without first obtaining Landlord's written consent.\nTenant agrees to complete compliance with governmental regulations regarding the\nuse or removal or remediation of Hazardous Materials used, stored, disposed of,\ntransported or cause to be on the Property or the Complex as stated above, and\nprior to the termination of said Lease Tenant agrees to follow the proper\nclosure procedures and will obtain a clearance from the local fire department\nand\/or the appropriate governing agency. If Tenant uses Hazardous Materials,\nTenant also agrees to install, at Tenant's expense, such Hazardous Materials\nmonitoring devices as Landlord deems reasonably necessary. It is agreed that the\nTenant's responsibilities related to Hazardous Materials will survive the\ntermination date of the Lease and that Landlord may obtain specific performance\nof Tenant's responsibilities under this Paragraph 51.\n\n52. MAINTENANCE OF THE PREMISES: In addition to, and notwithstanding anything to\n\n\n\n\n\nthe contrary in Paragraph 10, Landlord shall repair damage to the structural\nshelf, foundation, and roof structure (but not the interior improvements, roof\nmembrane, or glazing) of the building leased hereunder at Landlord's cost and\nexpense provided Tenant has not caused such damage, in which event Tenant shall\nbe responsible for 100 percent of any such costs for repair or damage so caused\nby the Tenant. Notwithstanding the foregoing, a crack in the foundation, or\nexterior walls that does not endanger the structural integrity of the building,\nor which is not life- threatening, shall not be considered material, nor shall\nLandlord be responsible for repair of same.\n\n53. PUNCH LIST: In addition to and notwithstanding anything to the contrary in\nParagraphs 8 ('Acceptance and Surrender of Premises') and 46 (As-Is Basis') of\nthis Lease, Tenant shall have thirty (30) days after the Commencement Date to\nprovide Landlord with a written 'punch list' pertaining to defects in the\nBuilding, the roof membrane, the HVAC system, and in the interior improvements\nconstructed by Landlord for Tenant. As soon as reasonably possible thereafter,\nLandlord, or one of Landlord's representatives (if so approved by Landlord), and\nTenant shall conduct a joint walk-through of the Premises (if Landlord so\nrequires), and inspect such Tenant Improvements, using their best efforts to\nagree on the incomplete or defective construction related to the Tenant\nImprovements installed by Landlord. After such inspection as been completed,\nLandlord shall prepare, and both parties shall sign, a list of all 'punch list'\nitems which the parties reasonably agree are to be corrected by Landlord (but\nwhich shall exclude any damage or defects caused by Tenant, its employees,\nagents or parties Tenant has contracted with to work on the Premises). Landlord\nshall have thirty (30) days thereafter (or longer if necessary, provided\nLandlord is diligently pursuing the completion of the same) to complete, at\nLandlord's expense, the 'punch list' items without the Commencement Date of the\nLease and Tenant's obligation to pay Rental thereunder being affected.\nNotwithstanding the foregoing, a crack in the foundation, or exterior walls that\ndoes not endanger the structural integrity of the building, or which is not\nlife-threatening, shall not be considered material, nor shall Landlord be\nresponsible for repair of same. This Paragraph shall be of no force and effect\nif Tenant shall fail to give any such notice to Landlord within thirty (30) days\nafter the Commencement Date of this Lease.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7151],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9583,9579],"class_list":["post-41752","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-com21-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41752","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41752"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41752"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41752"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41752"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}