{"id":41758,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/855-branham-lane-east-san-jose-ca-standard-form-lease.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"855-branham-lane-east-san-jose-ca-standard-form-lease","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/855-branham-lane-east-san-jose-ca-standard-form-lease.html","title":{"rendered":"855 Branham Lane East (San Jose, CA) Standard Form lease – Mission West Properties LP and LynuxWorks Inc."},"content":{"rendered":"--------------------------------------------------------------------------------\n STANDARD FORM LEASE\n--------------------------------------------------------------------------------\n\n\nParties: This Lease, executed in duplicate at Cupertino, California, on October\n2, 2000, by and between Mission West Properties, L.P., a Delaware Limited\nPartnership, and LynuxWorks, Inc., a California Corporation, hereinafter called\nrespectively Lessor and Lessee, without regard to number or gender.\n\nUse: Witnesseth: That Lessor hereby leases to Lessee, and Lessee hires from\nLessor, the Premises for the purpose of conducting therein office, research and\ndevelopment, light manufacturing, and warehouse activities, and any other legal\nactivity; and for no other purpose without obtaining the prior written consent\nof Lessor.\n\nPremises: The real property with appurtenances as shown on Exhibit A, (the\n\"Premises\") situated in the City of San Jose, County of Santa Clara, State of\nCalifornia, and more particularly described as follows:\n \n The Premises includes a 67,912 square feet of building, including all\n improvements thereto as shown on Exhibit A.1 with the exclusive right to\n use up to 238 unreserved parking spaces. The address for the Premises is\n 855 Branham Lane East, San Jose, California.\n\nTerm: The term shall be for sixty (60) months unless extended pursuant to\nSection 35 of this Lease (the \"Lease Term\"), commencing on the Commencement Date\nas defined in Section 1 and ending on the fifth anniversary of said Commencement\nDate.\n\nBase Rent: Subject to adjustment for changes in the TI Allowance as provided in\nSection 2.1.2, below, base rent shall be payable in monthly installments as\nfollows:\n\n Replacements Total\n Monthly Rent\n Estimated CAC**\n--------------------------------------------------------------------------------\nMonth 1-12 $152,802* $2,307 $17,659** $172,768\n \n \n \n Monthly base rent to increase by 4% on the annual anniversary of the\n Commencement Date each year during the Lease Term over the prior year's\n rent. Base Monthly Rent shall be adjusted as provided in Section 2.1 to\n reflect any unused amount of the Lessor's TI Allowance and for any\n Additional TI Allowance. For the purposes of the foregoing, \"Month 1\" is\n the first full lease month after the Commencement Date. If the Commencement\n Date is not the first day of a month, then the first month shall be a\n partial month (prorated), and shall be added to the Lease Term. Base\n Monthly Rent for the partial month shall five thousand ninety three and\n 00\/100 dollars ($5,093.00) per day. Month 1 shall commence on the first day\n of the first full month of the Lease Term.\n\n ** CAC charges to be adjusted per Common Area Charges Section below.\n\nBase rent and CAC shall be payable in advance on the first day of each calendar\nmonth during the Lease Term. The term \"Rent,\" as used herein shall be deemed to\nbe and to mean the base monthly rent and all other sums required to be paid by\nLessee pursuant to the terms of this Lease. Rent shall be paid in lawful money\nof the United States of America, without offset or deduction, and\n\n \nshall be paid to Lessor at such place or places as may be designated from time\nto time by Lessor. Rent for any period less than a calendar month shall be a pro\nrata portion of the monthly installment. Upon execution of this Lease, Lessee\nshall deposit with Lessor the total first month's rent of One Hundred Seventy\nTwo Thousand Seven Hundred Sixty Eight Dollars ($172,768).\n\nSecurity Deposit: Lessee shall deposit with Lessor the sum of One Hundred\nSeventy Two Thousand Seven Hundred Sixty Eight Dollars ($172,768).] (the\n\"Security Deposit\"). The Security Deposit shall be held by Lessor as security\nfor the faithful performance by Lessee of all of the terms, covenants, and\nconditions of this Lease applicable to Lessee. If Lessee commits a default as\nprovided for herein, including but not limited to a default with respect to the\nprovisions contained herein relating to the condition of the Premises, Lessor\nmay (but shall not be required to) use, apply or retain all or any part of the\nSecurity Deposit for the payment of any amount which Lessor may spend by reason\nof default by Lessee. If any portion of the Security Deposit is so used or\napplied, Lessee shall, within ten days after written demand therefor, deposit\ncash with Lessor in an amount sufficient to restore the Security Deposit to its\noriginal amount. Lessee's failure to do so shall be a default by Lessee. Any\nattempt by Lessee to transfer or encumber its interest in the Security Deposit\nshall be null and void. Upon execution of this Lease, Lessee shall deposit with\nLessor the Security Deposit. Notwithstanding the above, Lessor agrees to waive\nthe requirement for Lessee to make a security deposit provided Lessee's\nshareholder's equity exceeds $50 million. If at any time during this Lease and\nfor so long as, Lessee's shareholder's equity is less than $50 million, Lessee\nshall deposit with Lessor the Security Deposit referenced above within ten days\nafter the issuance of Lessee's financial statements indicating the reduction in\nshareholder's equity below $50 million. If Lessee fails to make the Security\nDeposit as required, Lessee shall be deemed to be in default per Section 14.1\n(a) of this Lease.\n\nWarrants: Lessor to receive a five year warrant to purchase 25,000 common shares\nat fair market value upon execution of lease, on standard warrant terms\nincluding a net exercise provision.\n\nCommon Area Charges: Lessee shall pay to Lessor, as additional Rent, an amount\nequal to Lessee's pro-rate share of the total common area charges of the\nPremises (\"CAC\"). Lessee shall pay to Lessor as Rent, on or before the first day\nof each calendar month during the Lease Term, subject to adjustment and\nreconciliation as provided herein below, the sum of Nineteen Thousand Nine\nHundred Sixty Six Dollars ($19,966), said sum representing Lessee's estimated\nmonthly payment of Lessee's percentage share of CAC. It is understood and agreed\nthat Lessee's obligation under this paragraph shall be prorated to reflect the\nCommencement Date and the end of the Lease Term.\n\nLessee's estimated monthly payment of CAC payable by Lessee during the calendar\nyear in which the Lease commences is set forth above. At or prior to the\ncommencement of each succeeding calendar year term (or as soon as practical\nthereafter), Lessor shall provide Lessee with Lessee's estimated monthly payment\nfor CAC which Lessee shall pay to Lessor as Rent. Within 120 days of the end of\nthe calendar year and the end of the Lease Term, Lessor shall provide Lessee a\nstatement of actual CAC incurred for the preceding year or other applicable\nperiod in the case of a termination year. If such statement shows that Lessee\nhas paid less than its actual percentage, then Lessee shall on demand pay to\nLessor the amount of such deficiency. If such statement shows that Lessee has\npaid more than its actual percentage, then Lessor shall, promptly refund such\nexcess to Lessee or credit the amount thereof to the Rent next becoming due from\nLessee. Lessor reserves the right to revise the monthly estimate for CAC if the\nactual or projected CAC show an increase or decrease in excess of 10% from an\nearlier estimate for the same period. In such event, Lessor shall provide a\nrevised estimate to Lessee, together with an explanation of the reasons\ntherefor, and Lessee shall revise its monthly payments accordingly. Lessor's\nand Lessee's obligation with respect to adjustments at the end of the Lease Term\nor earlier expiration of this Lease shall survive the Lease Term or earlier\nexpiration. As part of the CAC payment set forth in the preceding paragraph,\nLessee shall pay to Lessor $2,307 per month for HVAC, roof, and parking lot\nreplacement, which means new HVAC units, new roof, and new parking lot\n(\"Replacements\").\n\nPage 2\n\n \nAs used in this Lease, CAC shall exclude the cost of Replacements and shall\ninclude but is not limited to: (i) items as specified in Sections 5(b), 6, 16\nand 31; (ii) all costs and expenses including but not limited to supplies,\nmaterials, equipment and tools used or required in connection with the operation\nand maintenance of the Premises; (iii) licenses, permits and inspection fees;\n(iv) all other costs incurred by Lessor in maintaining and operating the\nPremises; (v) Required Capital Repairs for the Premises; and (vi) an amount\nequal to two percent (2%) of the aggregate of total rent including all CAC, as\ncompensation for Lessor's overhead, accounting and processing services in the\nmanner noted in Exhibit C. Lessee shall have the right to review the basis and\ncomputation analysis, which shall be based on reasonable commercial standards in\nthe industry used to derive the CAC applicable to this Lease annually. Lessor's\nmonthly estimate of Lessee's CAC for the first twelve months of the Lease Term\nis set forth on Exhibit C.\n\nNotwithstanding anything to the contrary set forth in this Lease, in no event\nshall Lessee have any obligation to perform or to pay directly, or to reimburse\nLessor for (as CAC or otherwise), all or any portion of the following repairs,\nmaintenance, improvements, replacements, premiums, claims, losses, fees,\ncharges, costs and expenses (collectively, \"Costs\"), nor shall any portion of\nthe TI Allowance or Additional TI Allowance be applied to, any of the following:\n\n A. Losses Caused By Others: Costs occasioned by the act, omission or\n ----------------------- \n violation of any law, rule, regulation, ordinance, covenant,\n condition, by any other occupant of the Premises, or their respective\n agents, employees or contractors, and Costs occasioned by the sole\n negligence, willful misconduct or breach of this Lease or applicable\n Law by Lessor or Lessor's Agents.\n\n B. Casualties and Condemnations: Except as expressly required by this\n ---------------------------- \n Lease to be paid by Lessee under another provision of this Lease.\n\n C. Capital Improvements: Except as expressly provided in Section 5(b),\n -------------------- \n below, Costs relating to repairs, alterations, improvements, equipment\n and tools which could properly be capitalized under generally accepted\n accounting principles, unless and except to the extent that (i) such\n Costs reduce the expenses that would otherwise be incurred by Lessee\n under the Lease and (ii) Lessee's share of such Cost during any\n twelve-month period of the Lease is equitably determined and amortized\n over the useful life of the capital item in question.\n\n D. Reimbursable Expenses: Costs for which Lessor has a right of\n --------------------- \n reimbursement from others.\n\n E. Taxes: Taxes, assessments, all other governmental levies, and any\n ----- \n increases in the foregoing occasioned by or relating to (i) land and\n improvements not reserved for Lessee's exclusive or nonexclusive use,\n (ii) assessments and other fees for improvements and services which do\n not benefit the Premises, or (iii) construction of improvements for\n other occupants of the Premises, except as required under Section 16\n of this Lease.\n\n F. Construction Defects: Costs to correct any construction defect in the\n -------------------- \n Premises, to comply with any law, rule, regulation, covenant,\n condition, or restrictions, applicable to the Premises on the\n Commencement Date, or to bring the Premises into compliance with\n Section 2.1.8 as of the Commencement Date.\n\nPage 3\n\n \n G. Utilities or Services: Costs (i) arising from the disproportionate use\n ---------------------\n of any utility or service supplied by Lessor to any other occupant of\n the Premises, or (ii) associated with utilities and services of a type\n not provided to Lessee, except as expressly required under this Lease.\n\n H. Interior Improvements: The cost of any renovation, improvement,\n --------------------- \n painting or redecorating of any portion of the Premises not made\n available for Lessee's use.\n\n I. Leasing Expenses: Fees, commissions, attorneys' fees, Costs or other\n ---------------- \n disbursements incurred in connection with negotiations, disputes with,\n or the breach of a lease by, any other occupant of the Premises.\n\n J. Reserves: Depreciation, amortization or other expense reserves,\n -------- \n except for Replacements.\n\n K. Mortgages: Interest, charges and fees incurred on debt, payments on\n --------- \n mortgages and rent under ground leases.\n\n L. Capital Leases: Lease payments and Costs for capital machinery and\n ------------- \n equipment, such as air conditioners, elevators, and the like, except\n as expressly required under this Lease.\n\n M. Art: Costs of sculptures, fountains, paintings and other art objects.\n --- \n\n N. Insurance: Insurance Costs for coverage not required to be carried by\n --------- \n Lessor under this Lease, increases in insurance Costs caused by the\n activities of another occupant of the Premises, except as expressly\n provided under this Lease.\n\n O. Management: Wages, salaries, compensation, and labor burden for any\n ---------- \n time when such employee is not actually working at the Premises or any\n fee, profit or compensation retained by Lessor or its affiliates for\n management and administration of the Premises in excess of the 2%\n management and accounting fee specified above.\n\n P. Duplication: Costs which Lessee pays directly to a third person.\n ----------- \n\n Q. Hazardous Materials: Costs related to the presence of Hazardous\n -------------------\n Materials on the Premises except to the extent released or emitted by\n Lessee.\n\nLate Charges: Lessee hereby acknowledges that a late payment made by Lessee to\nLessor of Rent and other sums due hereunder will cause Lessor to incur costs not\ncontemplated by this Lease, the exact amount of which will be extremely\ndifficult to ascertain. Such costs include, but are not limited to, processing\nand accounting charges, and late charges, which may be imposed on Lessor\naccording to the terms of any mortgage or trust deed covering the Premises.\nAccordingly, if any installment of base monthly rent or monthly estimate of CAC\nis not received by Lessor or Lessor's designee within five (5) days after such\namount is due or if any other Rent or other sum payable to Lessor is not\nreceived by Lessor or Lessor's designee within ten (10) days after Lessor\ndelivers a written notice to Lessee, the Lessee shall pay to Lessor a late\ncharge equal to five (5%) percent of such overdue amount. The parties hereby\nagree that such late charge represents a fair and reasonable estimate of the\ncosts Lessor will incur by reason of late payments made by Lessee. Acceptance of\nsuch late charges by Lessor shall in no event constitute a waiver of\n\nPage 4\n\n \nLessee's default with respect to such overdue amount, nor shall it prevent\nLessor from exercising any of the other rights and remedies granted hereunder.\nNotwithstanding the above, Lessor agrees to waive one late charge per any twelve\nmonth period if it is the result of a non-recurring unusual event such as an\naccounting error.\n\nQuiet Enjoyment: Lessor covenants and agrees with Lessee that upon Lessee paying\nRent and performing its covenants and conditions under this Lease, Lessee shall\nand may peaceably and quietly have, hold and enjoy the Premises for the Lease\nTerm, subject, however, to the rights reserved by Lessor hereunder. Lessee' duty\nto subordinate this Lease to any present or future lease of the Premises is\nconditioned upon Lessor providing to Lessee, and Lessor shall provide Lessee\nwith, a Recognition and Non-Disturbance Agreement in a commercially reasonable\nform acceptable to Lessee and a major national lender.\n\nIt Is Further Mutually Agreed Between The Parties As Follows:\n\n1. Possession: Possession shall be deemed tendered and the term shall commence\nupon the first to occur of the following (the \"Commencement Date\"): (i)The\nBuilding Shell and the Lessee Interior Improvements are Substantially Complete\nor (ii) Lessee occupies the Building and commences to conduct business\noperations or (iii) if Lessor is prevented from or delayed in completing its\nwork under this Lease due to Lessee Delays, such work will be deemed\nSubstantially Complete as of the date on which it would have been Substantially\nComplete had it not been for such Lessee Delays. Subject to the foregoing, it is\nthe intention of Lessee and Lessor that April 27, 2001 shall be the Substantial\nCompletion Date and the Commencement Date. \"Substantially Complete\" shall mean\nthat: (i) Lessor has tendered possession of the Premises to Lessee, (ii) Lessor\nhas met all legal requirements for occupancy of the Premises (including the\nLessee's Improvements to be constructed therein by Lessor) and Lessor has\nobtained all related city and fire marshal approvals for such occupancy,\nincluding a certificate of occupancy, (iii) The Lessee Interior Improvements\nhave been completed in accordance with the Lessee Improvement Plans (as defined\nin Section 2) except for punchlist items which would not materially and\nadversely affect Lessee's intended use of the Premises, and (iv) said interior\nof the building is in a \"broom clean\" condition.\n\n1.1 Commencement Date Memorandum: When the actual Commencement Date is\ndetermined, the parties shall execute a Commencement Date Memorandum setting\nforth the Commencement Date, the expiration date of the Lease Term, but failure\nto do so shall not affect the continuing validity and enforceability of this\nLease, which shall remain in full force and effect. Lessee's execution of the\nCommencement Date Memorandum and\/or acceptance of the Premises on the\nCommencement Date shall not be deemed a waiver of any of Lessor's obligations to\nconstruct the Lessee Improvements in accordance with this Lease. Upon execution\nof such memorandum, Lessor shall also be deemed to have assigned to Lessee all\nwarranties with respect to the Premises, which would reduce Lessee's maintenance\nand surrender obligations hereunder and shall cooperate with Lessee to enforce\nall such warranties.\n\n2. Lessee's Improvements\n\n2.1 Lessee's Improvements: The \"Lessee Interior Improvements\" shall be defined\nas all items not part of the Building Shell (the \"Building Shell\" is defined on\nattached Exhibit B, which shall be constructed by Lessor at its sole expense)\nand shall be constructed by independent contractors to be employed by and under\nthe supervision of Lessor, in accordance with this Lease and the plans and\nspecifications prepared by Lessor for submission to the City of San Jose\n(\"Lessee Improvement Plans\"), complete with all mechanical and electrical\ndesign, approved in writing by Lessee, and then to be attached hereto as Exhibit\nD. Lessee and its designated representatives, shall at all times during the\nconstruction of the Lessee Interior Improvements have access to the Premises to\nmonitor the progress of construction and Lessor's compliance with its obligation\nhereunder; provided however, that such access shall not unreasonably interfere\nwith the activities of Lessor or its contractors. Lessor hereby approves \n\nPage 5\n\n \nof Lessee's conceptual plan of the Lessee Interior Improvements attached hereto\nas Exhibit D.1 and shall not withhold consent to the Lessee Improvement Plans to\nthe extent consistent therewith.\n\n2.1.1 Budget: Before entering into any contract with a contractor furnishing\nlabor or materials in connection with the construction of the Lessee Interior\nImprovements where the payment due under such contract is estimated by Lessor to\nbe in excess of Fifty Thousand Dollars ($50,000), Lessor shall request bids from\nat least three (3) qualified contractors selected by Lessor and approved by\nLessee (which approval shall not be unreasonably withheld) for bidding. Unless\nLessor and Lessee mutually agree otherwise, Lessor will accept the lowest bid.\nLessee shall have the opportunity to review and approve the bidders list\nprepared by Lessor, which approval shall not be unreasonable withheld, and may\nselect a bidder of their choice for the bid, provided the bidder, meets the\nLessor's reasonable requirements.\n\n2.1.2 Lessor's TI Allowance: Lessor shall contribute up to One Million Six\nHundred Eighty Thousand Four Hundred Seventy Five Dollars ($1,680,475) towards\nconstruction of the Lessee Interior Improvements (the \"TI Allowance\"), which\ncost is reflected in the Base Monthly Rent. In addition, if Lessee so requests,\nLessor shall also contribute up to an additional Six Hundred Seventy Nine\nThousand One Hundred Twenty Dollars ($679,120) (the \"Additional TI Allowance\")\ntoward construction of the Lessee's Interior Improvements, in which case the\nAdditional TI Allowance expended by Lessor shall result in an increase in\nmonthly base rent for each month during the term of this Lease equal to $16.60\nfor each $1,000 of Additional TI Allowance so expended. If any portion of the TI\nAllowance is not expended by Lessor, then the monthly base rent for each month\nduring the term of this Lease shall be reduced by $14 for each $1,000 of TI\nAllowance not expended.\n\n2.1.3 Cost Statement & Lessee's Contribution: Lessor has prepared and Lessee has\napproved the cost statement substantially in the form attached as Exhibit F (the\n\"Cost Statement\"), showing the expected construction cost and the actual items\nto be constructed by Lessor of the Lessee Interior Improvements, the TI\nAllowance, and the maximum cost Lessee must pay for construction of the Lessee\nInterior Improvements. Lessor may include in the Cost Statement, a construction\nmanagement fee, covering all of its overhead, accounting, , profit, and other\nsimilar costs not otherwise expressly indicated on the Cost Statement, equal to\nsix percent (6%) of the cost of the Lessee Interior Improvements . General\nCondition expense shall be reflected in the Cost Statement. Lessee's Cost\nStatement indicates that Lessee's share of the construction cost of Lessee\nInterior Improvements will not exceed $339,560 (the \"Lessee's Maximum\nContribution\"). After the bids for construction of the Lessee's Improvements, as\nspecified above are obtained, the indicated amount of Lessee's share of the\nconstruction cost of Lessee Interior Improvements based on such bids is more\nthan 5% in excess of the Lessee's Maximum Contribution as shown on the Lessee's\nCost Statement, then Lessee may either (a) proceed with the Lease and the\nLessee's Maximum Contribution shall be increased to the higher number\nestablished by the bidding, or (b) Lessee shall have the right to modify the\nLessee's Improvement Plans or to remove items from such Plans, until the maximum\namount to be paid by Lessee is acceptable to Lessee. In all events, Lessor and\nLessee shall negotiate in good faith to reduce the total bid for construction of\nthe Lessee Interior Improvements for by modifying the plans or taking other\nappropriate actions Lessor shall not exceed above without approval of Lessee.\nLessee shall pay its approved share of the cost for construction of the Lessee\nInterior Improvements, up to an aggregate amount not exceeding the Lessee's\nMaximum Contribution, within fifteen (15) days after the Commencement Date. All\ncosts payable by Lessee for construction of the Lessee Interior Improvements\nshall be reasonably documented and subject to verification by Lessee.\nNotwithstanding anything to the contrary in this Lease, in no event shall the\nLessee's Cost Statement including the TI Allowance (or Additional TI Allowance)\nbe used to pay, nor shall Lessee be required to pay, any of the following costs\nin connection with the construction of Lessee Improvements: (a) the cost of\nconstructing the Building Shell or any other construction work which is not\ndescribed on the Lessee Improvement Plans attached hereto as Exhibit D.1, as the\nsame may be modified in accordance with this Lease, (b) the cost resulting from\nthe default by Lessor, or any architect, contractor or supplier in constructing\nthe Lessee Interior Improvements, the Premises in accordance with this Lease and\nany agreement entered into by such parties in connection\n\nPage 6\n\n \nwith the construction of the Lessee Interior Improvements, (c) costs that are\nrecoverable by the Lessor from a third party (e.g., insurers, warrantors,\ntortfeasors), (d) costs for overtime or expediting not authorized by Lessee in\nwriting, (e) profit, overhead, and administrative expenses in excess of the fee\ndescribed herein, (f) the cost incurred to construct and complete the Building\nShell, and\/or (g) any costs of a type not budgeted on the Cost Statement.\n\n2.1.4 Change Orders: No change made to the plans for the Lessee Interior\nImprovements and Cost Statement after the final approval by the parties thereof\nshall be effective, unless such change is approved in writing by Lessor and\nLessee, which approval shall not be unreasonably withheld. In this regard,\nLessor shall not be required to approve any change(s) which will increase its\ncost contribution above the TI Allowance (unless Lessee agrees to increase the\nLessee's Maximum Contribution by such increase), structurally impair the\nPremises, or materially and adversely effect the outside appearance of the\nsubject building, and Lessee shall not be required to approve any change which\nwill increase its cost contribution above the Lessee's Maximum Contribution,\ninterfere with the conduct of Lessee's business, or materially detract from the\ninside appearance of the Premises. Change orders shall be written and shall\ndescribe the nature of the change and the reasonably determined increase or\ndecrease in each item of the Cost Statement (including the Lessor's management\nfee) occasioned by the change. No increase in the Cost Statement shall be made\nfor any change caused by the default of Lessor or its architects, contractors,\nand suppliers or any error in the plans for the Lessee Interior Improvements and\nthe actual increase in the cost of constructing the Lessee's Improvements shall\nbe the sole responsibility of the Lessor. If Lessee requests a change which will\ndelay the Substantial Completion of the Lessee Interior Improvements beyond the\nScheduled Completion Date (defined below), the maximum amount of Lessee delay\nthat can be attributed to the change shall also be specified in the change\norder.\n\n2.1.5 Inability to Obtain Materials: If Lessor notifies Lessee that any\nfittings, finished or other materials specified by Lessee for the Lessee\nInterior Improvements cannot be obtained within forty five (45) days after\nplacing an order therefore and Lessor reasonably determines that such extended\ndelivery time will prohibit Lessor from Substantially Completing the Lessee\nInterior Improvements by the Scheduled Completion Date, and Lessor provides\nLessee with an estimate of such delay and the information that will permit\nLessee reasonably to select an alternative fitting, finish, or material,\nincluding, without limitation any expected delays in the Scheduled Completion\nDate associated with each alternative, then within three (3) business days,\nLessee shall either (i) execute a change order in accordance with the foregoing\nrequirements selecting an alternative presented by Lessor or developed by Lessee\nand approved by Lessor, which approval shall not be unreasonably withheld, or\n(ii) agree that any delay in the Substantial Completion of the Lessee Interior\nImprovements as a consequence of the inability to obtain the item, up to the\nmaximum amount of delay estimated by Lessor in its notice, will be a Lessee\nDelay.\n\n2.1.6 Time Periods For Approval: Lessee shall approve or disapprove any\npreliminary plan or change order on or before the fifth (5th) business day\nfollowing submission to Lessee of the plan and or change order to Lessee. Lessee\nshall approve or disapprove on or before the fifth (5th) business day following\nsubmission to Lessee of any final plans. If plans or change orders are\ndisapproved, Lessee shall state the reason for disapproval and Lessor and Lessee\nshall act in good faith to resolve any issues.\n\n2.1.7 Completion of the Work & Delay: Lessor shall use its best efforts to\nSubstantially Complete the Building Shell and the Lessee Interior Improvements\n(collectively the \"Improvements\") on or before April 27, 2001 (the \"Scheduled\nCompletion Date\"). Lessor and Lessee agree that Substantial Completion of the\nLessee Interior Improvements after the Scheduled Completion Date, provided\nLessee meets the deadlines for providing Lessee information and approvals set\nforth in Exhibit E will cause Lessee and Lessor to incur costs not contemplated\nby this Lease, the exact amount of which will be extremely difficult to\nascertain. Accordingly, in addition to the Rent abatement provided herein until\nthe Commencement Date does occur, if the Lessee Interior Improvements are not\nSubstantially Completed on or before May 27, 2001, then Lessor agrees to reduce\nthe base monthly rental first payable by Lessee under this Lease by an\nadditional amount equal to Five Thousand Ninety Three\n\nPage 7\n\n \nDollars($5,093) for each day of delay on and after May 27, 2001. The parties\nagree that the abatement of base monthly rent and the right of termination in\nthe event of prolonged delay (as provided below) specified herein represents a\nfair and reasonable settlement for both parties and neither party shall have\nfurther liability to the other for any damages associated with delay in\nSubstantial Completion of the Lessee Interior Improvements. If the Lessee\nInterior Improvements are not Substantially Completed on or before June 27,\n2001, the (\"Required Completion Date\"), Lessee may as its sole option, by\ndelivery of written notice to Lessor at any time after the Required Completion\nDate, until the Substantial Completion of the Lessee Interior Improvements,\nterminate this Lease. Notwithstanding the foregoing, the Scheduled Completion\nDate and the Required Completion Date shall be extended one date for each day\nLessor's Substantial Completion of the Improvements is actually delayed due to\n(i) governmental action after receipt of the building permits for the Lessee\nInterior Improvements (other than governmental refusal to approve work which\nfails to comply with the approved Lessee Improvement Plans or applicable Law or\nthe building permit), (ii) acts of God, (iii) due to circumstances beyond\nLessor's control and (iv) \"Lessee Delay\" (which means an actual delay in\nSubstantial Completion of the Lessee Interior Improvements resulting from (a)\nthe Lessee's failure (through no fault of Lessor) to meet Lessee's deadlines for\napproval of the plans for the Lessee Interior Improvements as set forth above,\n(b) any change in the work requested by Lessee (up to the maximum delay\nspecified in the change order), and (c) any delay Lessee agrees in writing to\nbear because of the inability to obtain any fitting, finish or material pursuant\nto Subsection 2.1.5, above) up to the maximum such Lessee Delay specified in the\nChange Order for such work. \n\n2.1.8 Standard of Performance: Lessor shall be responsible for ensuring that the\nBuilding Shell and the Lessee Interior Improvements conform to all applicable\nlaws and the approved plans for the Lessee Interior Improvements. Neither\nLessee's approval of the plans for the Lessee Interior Improvements, the Cost\nEstimate, or any contractor or architect, nor Lessee's recommendation of any\ncontractor or architect for the work, shall relieve Lessor of its obligations\nunder this Lease nor make Lessee liable to Lessor or any contractor or\narchitect, or their subcontractors with respect to the work.\n\n2.1.9 Identification Of Lessee's Property: If Lessee pays a portion of the cost\nfor construction of the Lessee Interior Improvements, then as soon as reasonably\npracticable after Substantial Completion of the Lessee Interior Improvements,\nLessor and Lessee shall designate as Lessee's property Lessee Interior\nImprovements that have a cost approximately equal to the construction cost\namount paid by Lessee. Lessee shall be entitled to all investment tax credit,\ndepreciation and other tax and ownership attributes associated with the\nimprovements so designated as Lessee's property, including the right to remove\nsuch items from the Premises at any time. Items designated as Lessee's property\nshall not include any basic systems necessary for reasonable building operation.\n\nLessee shall be permitted during the installation of Lessee Improvements by\nLessor to install Lessee items such as telephone and security and other Lessee\nrelated work provided it does not interfere with or delay Lessor's work or final\napprovals (\"Lessee's Work\").\n\n2.3 Acceptance And Covenants To Surrender: Lessor represents that the Lessee\nInterior Improvements, and the Premises shall comply with the approved plans\ntherefor and shall be in good working order and repair, and shall comply with\nall requirements for occupancy as of the Commencement Date. Lessee agrees on the\nlast day of the Lease Term, or upon any sooner termination of the Lease as a\nconsequence of Lessee's default to surrender the Premises to Lessor in Good\nCondition and Repair except for insured casualties, condemnations, and Hazardous\nMaterials which are not the responsibility of the Lessee under Section 33, and\nthe Substitutions and other alterations and additions that Lessor has stated in\nwriting may be surrendered. Good Condition and Repair (\"Good Condition and\nRepair\") shall not mean original condition, nor a condition as bad as would\nexist, if ordinary wear and tear was not addressed by performance of\ncommercially reasonable maintenance. Instead, \"Good Condition and Repair\" shall\ngenerally mean that the leased premises are in the condition that one would\nexpect such premises (as Substantially\n\nPage 8\n\n \nCompleted by Lessor) to be in, if throughout the Lease Term Lessee uses and\nmaintains said premises in a commercially reasonable manner and in accordance\nwith the requirements of this Lease. \"Required Repairs and Replacements\" are the\nrepair or replacement to worn-out equipment, fixtures and improvements that a\ncommercially reasonable owner-user would make, which are not required to be\ncapitalized as provided in Section 5. All of the following are to be in Good\nCondition and Repair; (i) the interior walls and floors of all offices and other\ninterior areas, (ii) all suspended ceilings and any carpeting are to be cleaned,\n(iii) all glazing, windows, doors, door closures, and plate glass if not covered\nby insurance or subject to the deductible and (iv) all electrical systems\nincluding light fixtures and ballasts, plumbing and HVAC including temperature\ncontrol systems. Lessee, on or before the end of the Lease Term or sooner\ntermination of this Lease, shall remove all its personal property and trade\nfixtures from the Premises, and all such property not so removed on or before\nthe last day of the Lease Term, upon any sooner termination of the Lease as a\nconsequence of Lessee's default shall be deemed to be abandoned by Lessee.\nLessee shall reimburse Lessor for all disposition costs incurred by Lessor\nrelative to Lessee's abandoned property. If the Premises are not surrendered at\nthe end of the Lease Term or earlier termination of this Lease, Lessee shall\nindemnify Lessor against loss or liability resulting from any delay caused by\nLessee in surrendering the Premises including, without limitation, any claims\nmade by any succeeding Lessee founded on such delay.\n\n3. Uses Prohibited: Lessee shall not commit, or suffer to be committed, any\nwaste upon the Premises, or any nuisance, or other act or thing which may\ndisturb the quiet enjoyment of any other Lessee in or around the Premises or\nallow any sale by auction in, or allow the Premises to be used for any improper,\nimmoral, unlawful or objectionable purpose, or place any loads upon the floor,\nwalls, or ceiling which may endanger the structure, or use any machinery or\napparatus which will in any manner vibrate or shake the Premises, or place any\nharmful liquids in the drainage system of the building. No waste materials or\nrefuse shall be dumped upon or permitted to remain upon any part of the\nPremises, except as provided in the following sentence. No materials, supplies,\nequipment, finished products or semi-finished products, raw materials or\narticles of any nature shall be stored upon or permitted to remain on any\nportion of the Premises outside of the building structure, except to the extent\napproved by the local, state federal or other applicable governing authority.\nLessor consents to Lessee's use of materials which are incidental to the normal,\nday-to-day operations of any office user, such as copier fluids, cleaning\nmaterials, etc. and to the use of the other Hazardous Materials required for the\nconduct of Lessee's business, but this does not relieve Lessee of any of its\nobligations not to contaminate the Premises and related real property or violate\nany Hazardous Materials Laws applicable to such use.\n\n4. Alterations And Additions: Lessee shall not make, or suffer to be made, any\nalteration or addition to said Premises, or any part thereof, without the\nexpress, advance written consent of Lessor. All alterations and improvements\nmade to the Premises by Lessee shall be Lessee's property and Lessee may remove\nsuch alterations and improvements, other than replacements or substitutions of\nthe improvements constructed at Lessor's expense (herein \"Substitutions\"), at\nany time. Lessee shall be entitled to all investment tax credit, depreciation,\nother tax attributes, insurance proceeds, and condemnation proceeds for the\nalterations and improvements made by Lessee which are not Substitutions. Lessee\nagrees that it will not proceed to make such alterations or additions until all\nrequired government permits have been obtained and after having obtained consent\nfrom Lessor to do so, until five (5) days from the receipt of such consent, so\nthat Lessor may post appropriate notices to avoid any liability to contractors\nor material suppliers for payment for Lessee's improvements. Lessee shall at all\ntimes permit such notices to be posted and to remain posted until the completion\nof work. Subject to the requirements concerning the surrender condition of the\nPremises pursuant to Section 2.3 of the Lease, at the end of the Lease Term or\nearlier termination of this Lease, Lessee may be required by Lessor to remove\nLessee's equipment, trade fixtures, and furniture, and any additions or\nalterations installed by Lessee at or during the Lease Term and Lessee shall\nreturn the Premises to the condition that existed before the installation of\nLessee alterations and additions. Notwithstanding the above, Lessor agrees to\nallow any reasonable alterations and improvements and will notify Lessee at the\ntime of approval if such improvements or alterations are to be removed at the\nend of the Lease Term or earlier termination of this Lease. Lessee may make\nnonstructural improvements up to $20,000 in any calendar\n\nPage 9\n\n \nyear without approval of Lessor subject to other terms stated herein. Lessee may\ninstall or furnish in and to the Premises all furniture, furnishings, fixtures,\ntrade fixtures, equipment, supplies, shelving, racking, bins and inventory which\nit requires for its use , and all of same will remain Lessee's property and may\nbe removed by Lessee at any time before expiration of the term provided that\nLessee will repair any damage caused by such removal. Lessor shall have no lien\nor other interest whatsoever in any of Lessee's alteration improvements or items\nof personal property located in the Premises (other than the Substitutions), or\nany portion thereof or interest therein, and Lessor hereby waives all such liens\nand interests. Within ten (10) days following Lessee's request, Lessor shall\nexecute documents in the form attached as Exhibit G to evidence Lessor's waiver\nof any right, title, lien or interest in Lessee's Property located on or in the\nPremises.\n\n5. Maintenance Of Premises:\n\n(a) Subject to Section 5(b), 9, 19, and 21 of this Lease, Lessee shall at its\n sole cost and expense keep, repair, and maintain the interior of the\n Premises, including, but not limited to, all electrical, lighting systems,\n HVAC, process piping, other special improvements, temperature control\n systems, and plumbing systems in Good Condition and Repair, including any\n required replacements which are not required to be capitalized for in\n accordance with general accounting principles. Lessee shall maintain all\n wall surfaces and floor coverings in Good Condition and Repair, free of\n holes, gouges, or defacements and provide interior and exterior window\n washing as needed.\n\n(b) Subject to the \"Common Area Charges\" provision of this Lease, above, Lessor\nshall keep, repair, and maintain in Good Condition and Repair including\nreplacements the following, which shall be included in the monthly CAC as\nprovided below:\n\n 1. The exterior of the building, any appurtenances and every part\n thereof, including but not limited to, glazing, sidewalks, parking\n areas, roof membrane, and painting of exterior walls.\n 2. The landscaping by a landscape contractor to water, maintain, trim\n and replace, when necessary, any shrubbery and landscaping at the \n Premises.\n 3. The roof membrane by a service contract with a licensed reputable\n roofing contractor which contract shall provide for a minimum of \n semi-annual maintenance, cleaning of storm gutters, drains, removing\n of debris, and trimming overhanging trees, repair of the roof and\n application of a finish coat every five years to the Premises.\n 4. Exterior pest control. \n 5. Fire monitoring services and on request, Lessor will provide\n Lessee with evidence of 24 hour monitoring.\n 6. Parking lot sweeping.\n 7. The HVAC is to be maintained by a service contract carried by\n Lessor or, at Lessee's option, by Lessee, with a licensed air\n conditioning and heating contractor, which contract shall provide for\n a minimum of quarterly maintenance of all air conditioning and\n heating equipment at the Premises, including HVAC repairs and\n Required Capital Repairs and Replacements which are either excluded\n from such service contract or any existing equipment warranties and\n are not Replacements.\n 8. Elevator\n\nLessee shall reimburse Lessor for the reasonable cost incurred by Lessor in\nperforming the foregoing maintenance and repairs and in making any alterations,\nrepairs, or improvement to comply with applicable Law pursuant to Section 9,\nbelow, or to comply with any insurance organization with respect to the Premises\npursuant to Section 6.A, below, as follows: Lessee shall reimburse Lessor (i)\nits prorata portion of such cost, based on square footage or other equitable\nmeans for work that benefits several tenant spaces, and (ii) the entire amount\nof such cost which are directly related to Lessee's use of the Premises;\nprovided, however, that\n\nPage 10\n\n \nif the work performed by Lessor is a Required Repair or Replacement, and the\ncost of an such item items of work exceeds for any lease year Fifteen Thousand\nDollars ($ 15, 000), then during the Lease Term the amount reimbursable by\nLessee to Lessor shall be amortized (calculated in terms of months) over the\nestimated useful life of the repair, replacement, alteration or improvement\ncommencing when the work is substantially complete, at an interest rate equal to\nWells Fargo's prime rate on the date the same is completed plus 1% and Lessee\nshall pay to Lessor the monthly amortized amount so derived as part of CAC\nduring the Lese Term.\n\n(c) To the extent inconsistent with the terms of this Lease, Lessee hereby\nwaives any and all rights to make repairs at the expense of Lessor as provided\nin Section 1942 of the Civil Code of the State of California, and all rights\nprovided for by Section 1941 of said Civil Code.\n\n(d) Lessor, at its sole cost and expense, shall be responsible for the repair of\nany structural defects in the Premises including the roof structure (not\nmembrane), exterior walls and foundation during the Lease Term.\n\n6. Insurance:\n\nA) Hazard Insurance: Lessee shall not use, or permit said Premises, or any part\nthereof, to be used, for any purpose other than that for which the Premises is\nhereby leased; and no use shall be made or permitted to be made of the Premises,\nnor acts done, which may cause a cancellation of any insurance policy covering\nthe Premises, or any part thereof, nor shall Lessee sell or permit to be kept,\nused or sold, in or about the Premises any article which may be prohibited by a\nfire and extended coverage insurance policy. Lessee shall comply with any and\nall reasonable requirements, pertaining to the Premises, of any insurance\norganization or company, necessary for the maintenance of reasonable fire and\nextended coverage insurance, covering the Premises, which relate to Lessee's\nparticular use and occupancy of the Premises. Lessor shall comply with all other\nsuch insurance organization requirements applicable to the condition of the\nPremises, subject to reimbursement by Lessee of the costs so incurred by Lessor\nin accordance with Section 5, above. Lessor shall, at Lessee's sole cost and\nexpense, purchase and keep in force fire and extended coverage insurance,\ncovering loss or damage to the Premises in an amount equal to the full\nreplacement cost of the Premises, as determined by Lessor, with proceeds payable\nto Lessor. In the event of a loss per the insurance provisions of this paragraph\nto the Premises, Lessee shall be responsible for deductibles up to a maximum of\n$5,000 per occurrence. Lessee acknowledges that the insurance referenced in this\nparagraph does not include coverage for Lessee's personal property.\n\nB) Loss of Rents Insurance: Lessor shall, at Lessee's sole cost and expense,\npurchase and maintain in full force and effect, a policy of rental loss\ninsurance, in an amount equal to the amount of Rent payable by Lessee commencing\nwithin sixty (60) days of date of loss (or on date of loss, if reasonably\navailable) for the next ensuing one (1) year, as reasonably determined by Lessor\nwith proceeds payable to Lessor (\"Loss of Rents Insurance\").\n\nC) Liability and Property Damage Insurance: Lessee, as a material part of the\nconsideration to be rendered to Lessor, hereby waives all claims against Lessor\nand Lessor's Agents for damages to goods, wares and merchandise, and all other\npersonal property in, upon, or about the Premises, and for injuries to persons\nin, upon, or about the Premises, from any cause arising at any time, and Lessee\nwill hold Lessor and Lessor's Agents exempt and harmless from any damage or\ninjury to any person, or to the goods, wares, and merchandise and all other\npersonal property of any person, arising from the use or occupancy of the\nPremises by Lessee (except to the extent due to the gross negligence or willful\nmisconduct of Lessor or Lessor's Agents), or from the failure of Lessee to keep\nthe Premises in Good Condition and Repair, as herein provided. Lessee shall, at\nLessee's sole cost and expense, purchase and keep in force a standard policy of\ncommercial general liability insurance and property damage liability policy for\nthe Premises, and for Lessee's and Lessee's Agents' use and occupancy of the\nPremises, insuring the Lessee having a\n\nPage 11\n\n \ncombined single limit for both bodily injury, death and property damage in an\namount not less than five million dollars ($5,000,000.00). The limits of said\ninsurance shall not, however, limit the liability of Lessee hereunder. Lessee\nshall, at its sole cost and expense, comply with all of the legal insurance\nrequirements of all local, municipal, state and federal authorities now in\nforce, or which may hereafter be in force, pertaining to Lessee's use and\noccupancy of the Premises.\n\nD) Personal Property Insurance: Lessee shall obtain, at Lessee's sole cost and\nexpense, a policy of fire and extended coverage insurance including coverage for\ndirect physical loss special form, and a sprinkler leakage endorsement insuring\nthe personal property of Lessee. The proceeds from any personal property damage\npolicy shall be payable to Lessee.\n\nE) General Requirements: All insurance policies required in 6 C) and 6 D) above\nshall: (i) provide for a certificate of insurance evidencing the insurance\nrequired herein, being deposited with Lessor ten (10) days prior to the\nCommencement Date, and upon each renewal, such certificates shall be provided 30\ndays prior to the expiration date of such coverage, (ii) be in a form reasonably\nsatisfactory to Lessor and shall provide the coverage required of Lessee in this\nLease, (iii) be carried with companies with a Best Rating of A minimum, (iv)\nspecifically provide that such policies shall not be subject to cancellation,\nreduction of coverage, or other change except after 30 days prior written notice\nto Lessor, and (v) with respect to the policy required by Section 6 C), name\nLessor, Lessor's lender, and any other party with an insurable interest in the\nPremises identified to Lessee in writing as additional insureds by endorsement\nto said policy.\n\nF) Lessee's Reimbursement: Lessee agrees to pay to Lessor, as additional Rent,\non demand, the full cost of the insurance polices referenced in 6 A) and 6 B)\nabove as evidenced by insurance billings to Lessor which shall be included in\nthe CAC. If Lessee does not occupy the entire property covered by any such\npolicy, the insurance premiums shall be allocated to the portion of the Premises\noccupied by Lessee on a pro-rata square footage or other equitable basis, as\ndetermined by Lessor and the liable party shall pay the deductible unless it\napplies to all Lessee's. It is agreed that Lessee's obligation under this\nparagraph shall be prorated to reflect the Commencement Date and the end of the\nLease Term.\n\nG) Waivers and Subrogation: Notwithstanding anything to the contrary in this\nLease Lessor and Lessee, hereby waive any rights each may have against the other\nand their respective agents, employees, officers, directors, assigns, and\nsubtenant under this Lease, related to any loss or damage caused to Lessor or\nLessee as the case may be, or to the Premises or its contents, and which may\narise from any insured risk covered or to be covered by fire and extended\ncoverage insurance or Lessee's personal property coverage as required under this\nLease. The parties shall provide that their respective insurance policies\ninsuring the property or the personal property include a waiver of any right of\nsubrogation, which said insurance company may have against Lessor or Lessee, as\nthe case may be.\n\n7. Abandonment: Lessee shall not vacate or abandon the Premises at any time\nduring the Lease Term; and if Lessee shall abandon, vacate or surrender the\nPremises, or be dispossessed by process of law, or otherwise, any personal\nproperty belonging to Lessee and left on the Premises shall be deemed to be\nabandoned, at the option of Lessor. Notwithstanding the above, the Premises\nshall not be considered vacated or abandoned if Lessee maintains the Premises in\nGood Condition and Repair, provides security and is not in default.\n\n8. Free From Liens: Lessee shall keep the subject Premises free from any and all\nliens including but not limited to liens arising out of any work performed,\nmaterials furnished, or obligations incurred by Lessee. However, the Lessor\nshall allow Lessee to contest a lien claim, so long as the claim is discharged\nprior to any foreclosure proceeding being initiated against the property and\nprovided Lessee provides Lessor a bond if the lien exceeds $5,000.\n\nPage 12\n\n \n9. Compliance With Governmental Regulations: Lessee shall, at its sole cost and\nexpense, comply with all of the requirements of all local, municipal, state and\nfederal authorities which may be enacted after the Commencement Date, pertaining\nto the Premises, and shall faithfully observe in the use and occupancy of the\nPremises all local and municipal ordinances and state and federal statutes now\nin force or which may hereafter be in force. Notwithstanding the foregoing,\nLessee shall not be required to pay for the construction of any single\nimprovement required under this paragraph in excess of $15,000, unless such\nimprovement is required to comply with Lessee's particular use of the Premises;\nif such improvement is not required due to Lessee's particular use of the\nPremises and such improvement cost exceeds $15,000, such improvement cost shall\nbe amortized over the estimated useful life of the improvement at Wells Fargo\nprime rate on the date such improvement is completed plus one percent (1%).\nLessee shall pay to Lessor the amortized costs of such improvement on a monthly\nbasis over the Lease Term as part of the CAC.\n\n10. Intentionally Omitted.\n\n11. Advertisements And Signs: Subject to Lessor's approval of the\nspecifications therefor and Lessee's compliance with laws, Lessee shall be\nentitled to install a monument sign on the Premises. Lessee agrees to pay for\nany sign monument Lessee desires to be installed on the Premises. Lessee shall\nnot place or permit to be placed, in, upon or about the Premises any unusual or\nextraordinary signs, or any signs not approved by the city, local, state,\nfederal or other applicable governing authority. Subject to the first sentence\nof this paragraph, Lessee shall not place, or permit to be placed upon the\nPremises, any signs, advertisements or notices without the written consent of\nthe Lessor, and such consent shall not be unreasonably withheld. A sign so\nplaced on the Premises shall be so placed upon the understanding and agreement\nthat Lessee will remove same at the end of the Lease Term or earlier termination\nof this Lease and repair any damage or injury to the Premises caused thereby,\nand if not so removed by Lessee, then Lessor may have the same removed at\nLessee's expense.\n\n12. Utilities: Lessee shall pay for all water, gas, heat, light, power,\ntelephone and other utilities supplied to the Premises. Any charges for sewer\nusage, PG&E and telephone site service or related fees shall be the obligation\nof Lessee and paid for by Lessee. If any such services are not separately\nmetered to Lessee, Lessee shall pay a reasonable proportion of all charges which\nare jointly metered, the determination to be made by Lessor acting reasonably\nand on any equitable basis. Lessor and Lessee agree that Lessor shall not be\nliable to Lessee for any disruption in any of the utility services to the\nPremises.\n\n13. Attorney's Fees: In case suit should be brought relating to the Premises,\nfor the recovery of any sum due hereunder, because of the breach of any other\ncovenant herein, or to enforce, protect, or establish any term, conditions, or\ncovenant of this Lease or the right of either party hereunder, the losing party\nshall pay to the Prevailing Party reasonable attorney's fees which shall be\ndeemed to have accrued on the commencement of such action and shall be\nenforceable whether or not such action is prosecuted to judgment. The term\n\"Prevailing Party\" shall mean the party that received substantially the relief\nrequested, whether by settlement, dismissal, summary judgment, judgment, or\notherwise.\n\n14. Default and Remedies:\n\n14.1 Default: The occurrence of any of the following shall constitute a default\n and breach of this Lease by Lessee: a) Any failure by Lessee to pay Rent or\n to make any other payment required to be made by Lessee hereunder when due\n if not cured within ten (10) days after written notice thereof by Lessor to\n Lessee; b) The abandonment of the Premises by Lessee except as provided in\n Section 7; c) Failure by Lessee to observe or perform any other provision\n of this Lease to be observed or performed by Lessee, where such failure\n continues for thirty days after written notice thereof by Lessor to Lessee;\n provided, however, that if the nature of such default is such that the same\n cannot be reasonably cured within such thirty (30) day period, Lessee shall\n not be deemed to be in default if Lessee shall, within such period,\n commence such cure and thereafter diligently prosecute the same to\n completion; d) The making by Lessee of any general assignment for the\n benefit of creditors;\n\nPage 13\n\n \n the filing by or against Lessee of a petition to have Lessee adjudged a\n bankrupt or of a petition for reorganization or arrangement under any law\n relating to bankruptcy which persists for more than 60 days; e) The\n appointment of a trustee or receiver to take possession of substantially\n all of Lessee's assets or Lessee's interest in this Lease, or the\n attachment, execution or other judicial seizure of substantially all of\n Lessee's assets located at the Premises or of Lessee's interest in this\n Lease. Failure by Lessor to observe or perform any provision of this Lease\n to be observed or performed by Lessor, where such failure continues for\n thirty days after written notice thereof by Lessee to Lessor, shall\n constitute a breach of this Lease by Lessor; provided, however, that if the\n nature of such default is such that the same cannot be reasonably cured\n within such thirty day period, Lessor shall not be deemed to be in default\n if Lessor shall, within such period, commence such cure and thereafter\n diligently prosecute the same to completion.\n\n14.2 Default Surrender Of Lease: In the event of any such default by Lessee,\nthen in addition to any other remedies available to Lessor at law or in equity,\nLessor shall have the immediate option to terminate this Lease before the end of\nthe Lease Term and all rights of Lessee hereunder, by giving written notice of\nsuch intention to terminate. In the event that Lessor terminates this Lease due\nto a default of Lessee, then Lessor may recover from Lessee: a) the worth at the\ntime of award of any unpaid Rent which had been earned at the time of such\ntermination; plus b) the worth at the time of award of unpaid Rent which would\nhave been earned after termination until the time of award exceeding the amount\nof such rental loss that the Lessee proves could have been reasonably avoided;\nplus c) the worth at the time of award of the amount by which the unpaid Rent\nfor the balance of the Lease Term after the time of award exceeds the amount of\nsuch rental loss that the Lessee proves could have been reasonably avoided; plus\nd) any other amount necessary to compensate Lessor for all the detriment\nproximately caused by Lessee's failure to perform his obligations under this\nLease or which in the ordinary course of things would be likely to result\ntherefrom; and e) at Lessor's election, such other amounts in addition to or in\nlieu of the foregoing as may be permitted from time to time by applicable\nCalifornia law. As used in (a) and (b) above, the \"worth at the time of award\"\nis computed by allowing interest at the rate of Wells Fargo's prime rate plus\ntwo percent (2%) per annum. As used in (c) above, the \"worth at the time of\naward\" is computed by discounting such amount at the discount rate of the\nFederal Reserve Bank of San Francisco at the time of award plus one percent\n(1%).\n\n14.3 Right of Entry and Removal: In the event of any such default by Lessee,\nLessor shall also have the right, with or without terminating this Lease, to re-\nenter the Premises and remove all persons and property therefrom; such property\nmay be removed and stored in a public warehouse or elsewhere at the cost of and\nfor the account of Lessee.\n\n14.4 Abandonment: In the event of the abandonment, except as provided in Section\n7, of the Premises by Lessee or in the event that Lessor shall elect to re-enter\nas provided in paragraph 14.3 above or shall take possession of the Premises\npursuant to legal proceeding or pursuant to any notice provided by law, and\nLessor does not elect to terminate this Lease as provided in Section 14.2 above,\nthen Lessor may from time to time, without terminating this Lease, either\nrecover all Rent as it becomes due or relet the Premises or any part thereof for\nsuch term or terms and at such rental rates and upon such other terms and\nconditions as Lessor, in its sole discretion, may deem advisable with the right\nto make alterations and repairs to the Premises. In the event that Lessor elects\nto relet the Premises, then any Rent received by Lessor from such reletting\nshall be applied; first, to the payment of any indebtedness other than Rent due\nhereunder from Lessee to Lessor; second, to the payment of any cost of such\nreletting; third, to the payment of the cost of any alterations and repairs to\nthe Premises; fourth, to the payment of Rent due and unpaid hereunder; and the\nresidue, if any, shall be held by Lessor and applied to the payment of future\nRent as the same may become due and payable hereunder. Should that portion of\nsuch Rent received from such reletting during any month, which is applied by the\npayment of Rent hereunder according to the application procedure outlined above,\nbe less than the Rent payable during that month by Lessee hereunder, then Lessee\nshall pay such deficiency to Lessor immediately upon demand therefor by Lessor.\nSuch deficiency shall be calculated and paid monthly. Lessee shall also pay to\nLessor, as soon as ascertained, any costs and expenses \n\nPage 14\n\n \nincurred by Lessor in such reletting or in making such alterations and repairs\nnot covered by the rentals received from such reletting.\n\n14.5 No Implied Termination: No re-entry or taking possession of the Premises by\nLessor pursuant to Section 14.3 or Section 14.4 of this Lease shall be construed\nas an election to terminate this Lease unless a written notice of such intention\nis given to Lessee or unless the termination thereof is decreed by a court of\ncompetent jurisdiction. Notwithstanding any reletting without termination by\nLessor because of any default by Lessee, Lessor may at any time after such\nreletting elect to terminate this Lease for any such default.\n\n14.6 Habitual Default: Lessor and Lessee agree that if Lessee shall have\ndefaulted in the payment of base monthly rent or estimated CAC for three or more\ntimes during any twelve month period during the Lease Term, then such conduct\nshall, at the option of the Lessor, represent a separate event of default which\ncannot be cured by Lessee. Lessee acknowledges that the purpose of this\nprovision is to prevent repetitive defaults by the Lessee under the Lease, which\nconstitute a hardship to the Lessor and deprive the Lessor of the timely\nperformance by the Lessee hereunder.\n\n15. Surrender Of Lease: The voluntary or other surrender of this Lease by\nLessee, or a mutual cancellation thereof, shall not work a merger, and shall, at\nthe option of Lessor, terminate all or any existing subleases or sub tenancies,\nor may, at the option of Lessor, operate as an assignment to him of any or all\nsuch subleases or sub tenancies.\n\n16. Taxes: Lessee shall pay and discharge punctually and when the same shall\nbecome due and payable without penalty, its share (as herein provided) of all\nreal estate taxes, personal property taxes, taxes based on vehicles, consultant\nand invitees utilizing parking areas in the Premises, taxes computed or based on\nrental income (other than federal, state and municipal net income taxes),\nEnvironmental Surcharges, privilege taxes, excise taxes, business and occupation\ntaxes, school fees or surcharges, gross receipts taxes, sales and\/or use taxes,\nemployee taxes, occupational license taxes, water and sewer taxes, assessments\n(including, but not limited to, assessments for public improvements or benefit),\nassessments for local improvement and maintenance districts, and all other\ngovernmental impositions and charges of every kind and nature whatsoever,\nregardless of whether now customary or within the contemplation of the parties\nhereto and regardless of whether resulting from increased rate and\/or valuation,\nor whether extraordinary or ordinary, general or special, unforeseen or\nforeseen, or similar or dissimilar to any of the foregoing (all of the foregoing\nbeing hereinafter collectively called \"Tax\" or \"Taxes\") which, at any time\nduring the Lease Term, shall be applicable to Lessee or which shall be a lien\nagainst the Premises, or shall become due and payable and a lien or charge upon\nthe Premises under or by virtue of any present or future laws, statutes,\nordinances, regulations, or other requirements of any governmental authority\nwhatsoever. Lessee shall only be responsible for the Taxes assessed against the\nPremises. All taxes shall be prorated to the term of the Lease and only sums\napplicable to the term of the Lease shall be included therein. Notwithstanding\nanything to the contrary in this Lease, Lessee's obligation to pay or reimburse\nLessor for Taxes will not mean the following: fines, interest, penalties (except\nas a result of actions of Lessee); franchise, estate, gift, inheritance,\nsuccessorship, capital levy, capital stock or transfer taxes: income, excess\nprofits, or other similar revenue tax, assessment, charge or levy on rent;\ninstallments of taxes other than the then current installment; installments\nwhich are not applicable to the term of the Lease; cost and expenses associated\nwith contesting Taxes (provided that Lessee's share of any refund as a result of\nsuch contest may be reduced by Lessee's share of Lessor's reasonable costs and\nexpenses of obtaining such refund), Taxes associated with the property or\nvehicles of other tenants of the Premises or their respective employees,\ncontractors and invitees, and Taxes of the type described in the second sentence\nhereafter, to the extent that such Taxes are attributable to any other occupant\nof the Premises or their space or activities. The term \"Environmental\nSurcharge\" shall include any and all expenses, taxes, charges or penalties\nimposed by the Federal Department of Energy, Federal Environmental Protection\nAgency, the Federal Clean Air Act, or any regulations promulgated thereunder, or\nany other local, state or federal governmental agency or entity now or hereafter\nvested \n\nPage 15\n\n \nwith the power to impose taxes, assessments or other types of surcharges as a\nmeans of controlling or abating environmental pollution or the use of energy in\nregard to the use, operation or occupancy of the Premises, but will not include\ncosts directly related to investigation or remediation of environmental\nconditions or Hazardous Materials, unless related to actions or omissions of\nLessee as provided in Section 33 or as a result of an area wide assessment not\nrelated to a specific lessee. The term \"Tax\" shall include, without limitation,\nall taxes, assessments, levies, fees, impositions or charges levied, imposed,\nassessed, measured, or based in any manner whatsoever (i) in whole or in part on\nthe Rent payable by Lessee under this Lease, (ii) upon or with respect to the\nuse, possession, occupancy, leasing, operation or management of the Premises,\n(iii) upon this transaction or any document to which Lessee is a party creating\nor transferring an interest or an estate in the Premises, (iv) upon Lessee's\nbusiness operations conducted at the Premises, (v) upon, measured by or\nreasonably attributable to the cost or value of Lessee's equipment, furniture,\nfixtures and other personal property located on the Premises or the cost or\nvalue of any leasehold improvements made in or to the Premises by or for Lessee,\nregardless of whether title to such improvements shall be in Lessor or Lessee,\nor (vi) in lieu of or equivalent to any Tax set forth in this Section 16. In the\nevent any such Taxes are payable by Lessor and it shall not be lawful for Lessee\nto reimburse Lessor for such Taxes, then the Rent payable thereunder shall be\nincreased to net Lessor the same net rent after imposition of any such Tax upon\nLessor as would have been payable to Lessor prior to the imposition of any such\nTax. It is the intention of the parties that Lessor shall be free from all such\nTaxes and all other governmental impositions and charges of every kind and\nnature whatsoever. However, nothing contained in this Section 16 shall require\nLessee to pay any Federal or State income, franchise, estate, inheritance,\nsuccession, transfer or excess profits tax imposed upon Lessor. If any general\nor special assessment is levied and assessed against all or any portion of the\nPremises, Lessor agrees to use its best reasonable efforts to cause the\nassessment to become a lien on the Premises securing repayment of a bond sold to\nfinance the improvements to which the assessment relates which is payable in\ninstallments of principal and interest over the maximum term allowed by law. It\nis understood and agreed that Lessee's obligation under this paragraph will be\nprorated to reflect the Commencement Date and the end of the Lease Term. It is\nfurther understood that if Taxes cover more than the Premises and Lessee does\nnot occupy the entire property to which such taxes shall apply, the Taxes will\nbe allocated to the portion of the Premises occupied by Lessee based on a pro-\nrata square footage or other equitable basis, as reasonably determined by\nLessor. All tax payment by Lessee required herein shall be paid as part of the\nmonthly CAC.\n\nSubject to any limitations or restrictions imposed by any deeds of trust or\nmortgages now covering or affecting the Premises, Lessee shall have the right to\ncontest or review the amount or validity of any Tax by appropriate legal\nproceedings but which is not to be deemed or construed in any way as relieving,\nmodifying or extending Lessee's covenant to pay such Tax at the time and in the\nmanner as provided in this Section 16. However, as a condition of Lessee's\nright to contest, if such contested Tax is not paid before such contest and if\nthe legal proceedings shall not operate to prevent or stay the collection of the\nTax so contested, Lessee shall, before instituting any such proceeding, protect\nthe Premises and the interest of Lessor and of the beneficiary of a deed of\ntrust or the mortgagee of a mortgage affecting the Premises against any lien\nupon the Premises by a surety bond, issued by an insurance company acceptable to\nLessor and in an amount equal to one and one-half (1 1\/2) times the amount\ncontested or, at Lessor's option, the amount of the contested Tax and the\ninterest and penalties in connection therewith. Any contest as to the validity\nor amount of any Tax, whether before or after payment, shall be made by Lessee\nin Lessee's own name, or if required by law, in the name of Lessor or both\nLessor and Lessee. Lessee shall defend, indemnify and hold harmless Lessor from\nand against any and all costs or expenses, including attorneys' fees, in\nconnection with any such proceedings brought by Lessee, whether in its own name\nor not. Lessee shall be entitled to retain any refund of any such contested\nTax and penalties or interest thereon, which have been paid by Lessee. Nothing\ncontained herein shall be construed as affecting or limiting Lessor's right to\ncontest any Tax at Lessor's expense.\n\n17. Notices: Unless otherwise provided for in this Lease, any and all written\nnotices or other communication (the \"Communication\") to be given in connection\nwith this Lease shall be given in writing and shall be given by personal\ndelivery, \n\nPage 16\n\n \nfacsimile transmission (for any notices other than default notices) or by\nmailing by registered or certified mail with postage thereon or recognized\novernight courier, fully prepaid, in a sealed envelope addressed to the intended\nrecipient as follows:\n\n(a) to the Lessor at: 10050 Bandley Drive\n Cupertino, California 95014 \n Attention: Carl E. Berg \n Facsimile No.: 408.725.1626 \n \n \n(b) to the Lessee at: 855 Branham Lane East\n San Jose, California \n Attention: C.F.O. \n Facsimile No. 408.879.3920 \n\nor such other addresses, or individual as may be designated by a Communication\ngiven by a party to the other parties as aforesaid. Any Communication given by\npersonal delivery shall be conclusively deemed to have been given and received\non a date it is so delivered at such address provided that such date is a\nbusiness day, otherwise on the first business day following its receipt, and if\ngiven by registered or certified mail, on the day on which delivery is made or\nrefused or if given by recognized overnight courier, on the first business day\nfollowing deposit with such overnight courier and if given by facsimile\ntransmission, on the day on which it was transmitted provided such day is a\nbusiness day, failing which, on the next business day thereafter.\n\n18. Entry By Lessor: Lessee shall permit Lessor and its agents to enter into and\nupon the Premises at all reasonable times using the minimum amount of\ninterference and inconvenience to Lessee and Lessee's business, subject to any\nsecurity regulations of Lessee, for the purpose of inspecting the same or for\nthe purpose of maintaining said building, or for the purpose of making repairs,\nalterations or additions to any other portion of said building, including the\nerection and maintenance of such scaffolding, canopies, fences and props as may\nbe required, without any rebate of Rent and without any liability to Lessee for\nany loss of occupation or quiet enjoyment of the Premises; and shall permit\nLessor and his agents, at any time within ninety (90) days prior to the end of\nthe Lease Term, to place upon said Premises any usual or ordinary \"For Sale\" or\n\"For Lease\" signs and exhibit the Premises to prospective lessees at reasonable\nhours.\n\n19. Destruction Of Premises: In the event of a destruction of the Premises\nduring the Lease Term from any cause which is required to be covered by Lessor's\nproperty insurance, Lessor shall forthwith repair the same to the condition\nexisting immediately prior to the destruction, but such destruction shall in no\nway annul or void this Lease, except that Lessee shall be entitled to a\nproportionate reduction of Rent while such repairs are being made to the extent\nof payments received by Lessor under its Loss of Rents Insurance coverage\n(coverage shall last up to twelve (12) months after start). With respect to any\ndestruction which Lessor is obligated to repair or may elect to repair under the\nterms of this paragraph, the provision of Section 1932, Subdivision 2, and of\nSection 1933, Subdivision 4, of the Civil Code of the State of California are\nwaived by Lessee. Notwithstanding the above, Lessor is only obligated to repair\nor rebuild to the extent of the total of (i) insurance proceeds which are\npayable pursuant to the insurance Lessor is required to carry under the terms of\nthis Lease, plus (ii) any deductible amount which Lessee is required to pay\nunder the terms of this Lease, plus (iii) any other funds Lessee may elect in\nits discretion to contribute. Should Lessor determine that insufficient or no\ninsurance proceeds (together with the deductible and any other contributed\nfunds) are available for repair or reconstruction of the Premises (for any\nreason other than Lessor's failure to carry the insurance required by Section\n6), Lessor, at its sole option, may terminate the Lease. Notwithstanding such\nLessor termination Lessee shall have the option of continuing this Lease by\nagreeing to pay all repair costs to the Premises which are not \n\nPage 17\n\n \nrequired to be covered by Lessor's insurance. If the Premises is so damaged or\nmade unusable by fire or casualty that same cannot be restored and made suitable\nand safe within 180 days from such damage or destruction, or if the restoration\nof the Premises is not substantially completed within said one hundred eighty\nday (180) period, Lessee may terminate the Lease effective as of the date of\nsuch fire or casualty by written notice given to Lessor, whereupon the Lease\nwill terminate and all rent and other charges then due under the lease will be\napportioned as of the date of such fire casualty, subject to a one day delay for\neach day of delay due to (i) governmental action after receipt of the building\npermits for the Lessee Interior Improvements (other than governmental refusal to\napprove work which fails to comply with the approved Lessee Improvement Plans or\napplicable Law or the building permit), (ii) acts of God, (iii) due to\ncircumstances beyond Lessor's reasonable control and (iv) Lessee Delay.\n\n20. Assignment And Subletting: Lessee shall not assign this Lease, or any\ninterest therein, and shall not sublet the Premises or any part thereof, or any\nright or privilege appurtenant thereto, or cause any other person or entity (a\nbona fide successor in interest, subsidiary or affiliate of Lessee excepted) to\noccupy or use the Premises, or any portion thereof, without the advance written\nconsent of Lessor, which consent shall not be unreasonably withheld or delayed.\nAny such assignment or subletting without such consent shall be void, and shall,\nat the option of the Lessor, terminate this Lease. This Lease shall not, or\nshall any interest therein, be assignable, as to the interest of Lessee, by\noperation of law, without the written consent of Lessor; provided, however, the\nsale of Lessee's stock through a public exchange shall not be deemed to be an\nassignment by operation of law. Notwithstanding the foregoing, Lessee may sublet\nor assign this Lease to a legal entity which controls, is controlled by, or is\nunder common control with Lessee, or to a successor in interest, whether by\nmerger or acquisition (each of the foregoing shall be referred to herein as an\n\"Excepted Party\"), provided there is no substantial reduction in the net worth\nof the resulting entity, or to the purchaser of substantially all of the Lessees\nbusiness conducted in the Premises. Whether or not Lessor's consent to a\nsublease or assignment is required, in the event of any sublease or assignment,\nLessee shall be and shall remain primarily liable for the performance of all\nconditions, covenants, and obligations of Lessee hereunder and, in the event of\na default by an assignee or sublessee, Lessor may proceed directly against the\noriginal Lessee hereunder and\/or any other predecessor of such assignee or\nsublessee without the necessity of exhausting remedies against said assignee or\nsublessee. If Lessee desires to assign its rights under this Lease or to sublet\nall or any part of the Premises for substantially the remainder of the Lease\nTerm to a party other than an Excepted Party, Lessee shall first notify Lessor\nof the proposed terms and conditions of such assignment or subletting. Lessor\nshall have the right of first refusal to enter into a direct Lessor-lessee\nrelationship with such party under such proposed terms and conditions (by\ndelivering written notice thereof to Lessee within ten (10) business days of\nLessee's delivery of notice to Lessor), in which event Lessee shall be relieved\nof its obligations hereunder to the extent of the Lessor-lessee relationship\nentered into between Lessor and such third party.\n\n21. Condemnation: If any part of the Premises shall be taken for any public or\nquasi-public use, under any statute or by right of eminent domain or private\npurchase in lieu thereof, and a part thereof remains which is susceptible of\noccupation hereunder, this Lease shall as to the part so taken, terminate as of\nthe date title vests in the condemnor or purchaser, and the Rent payable\nhereunder shall be adjusted so that the Lessee shall be required to pay for the\nremainder of the Lease Term only that portion of Rent as the value of the part\nremaining. The rental adjustment resulting will be computed at the same base\nmonthly rental rate for the remaining part not taken. If all of the Premises,\nor such part thereof be taken so that there does not remain a portion\nsusceptible for occupation hereunder, this Lease shall thereupon terminate, for\nthe purposes hereof, a portion susceptible for occupancy shall mean a portion of\nthe Premises in excess of 85% thereof. If a part or all of the Premises be\ntaken, all compensation awarded upon such taking shall be payable to the Lessor.\nLessee may file a separate claim and be entitled to any award granted to Lessee\nfor condemnation proceeds (whether by award or payment under threat of\ncondemnation) based on: (i) the value of the condemned improvements Lessee has\nthe right to remove from the Premises; (ii) Lessee's moving cost; (iii) loss to\nLessee's goodwill as a consequence of the condemnation; and (iv) Lessee's trade\nfixtures.\n\nPage 18\n\n \n22. Effects Of Conveyance: The term \"Lessor\" as used in this Lease, means only\nthe owner for the time being of the land and buildings constituting the\nPremises, so that, in the event of any sale of said land or building, or in the\nevent of a ground lease of said building, Lessor shall be and hereby is entirely\nfreed and relieved of all covenants and obligations of Lessor hereunder, and it\nshall be deemed and construed, without further agreement between the parties and\nthe purchaser of any such sale, or the Lessor of the building, that the\npurchaser or lessor of the building has assumed and agreed to carry out any and\nall covenants and obligations of the Lessor hereunder. If any security is given\nby Lessee to secure the faithful performance of all or any of the covenants of\nthis Lease on the part of Lessee, Lessor shall transfer and deliver the\nsecurity, as such, to the purchaser at any such sale of the building, and\nthereupon the Lessor shall be discharged from any further liability.\n\n23. Subordination: This Lease, in the event Lessor notifies Lessee in writing,\nshall be subordinate to any ground lease, deed of trust, or other hypothecation\nfor security now or hereafter placed upon the real property at which the\nPremises is a part and to any and all advances made on the security thereof and\nto renewals, modifications, replacements and extensions thereof. Lessee agrees\nto promptly execute any commercially reasonable documents which may be required\nto effectuate such subordination. Notwithstanding such subordination, if Lessee\nis not in default and so long as Lessee shall pay the Rent and observe and\nperform all of the provisions and covenants required under this Lease, Lessee's\nright to quiet possession of the Premises and Lessee's right and remedies under\nthis Lease shall not be disturbed or effected by any subordination, and each\nsuccessor to Lessor's interest in the Lease (by foreclosure, deed-in-lieu of\nforeclosure, or otherwise) shall be bound by and shall perform the obligations\nof the Lessor to be performed after the date it acquires the Lessor's interest\nin the Lease (except that the successor shall not be liable for any prior\ndefaults of the Lessor, the return of any security deposit not transferred to\nthe successor, nor for the cost of restoring the Premises following a peril or\ncondemnation in excess of the insurance and condemnation proceeds actually\nreceived). Prior to the Commencement Date, Lessor shall deliver to Lessee a\nnondisturbance agreement on commercially reasonable terms from the holder of any\nexisting security instruments or ground leases.\n\n24. Waiver: The waiver by Lessor or Lessee of any breach of any term, covenant\nor condition, herein contained shall not be construed to be a waiver of such\nterm, covenant or condition or any subsequent breach of the same or any other\nterm, covenant or condition therein contained. The subsequent acceptance of\nRent hereunder by Lessor shall not be deemed to be a waiver of Lessee's breach\nof any term, covenant, or condition of the Lease.\n\n25. Holding Over: Any holding over after the end of the Lease Term requires\nLessor's written approval prior to the end of the Lease Term, which,\nnotwithstanding any other provisions of this Lease, Lessor may withhold. Such\nholding over shall be construed to be a tenancy at sufferance from month to\nmonth. Lessee shall pay to Lessor monthly base rent equal to one and one-\nquarter (1.25) times the monthly base rent installment due in the last month of\nthe Lease Term and all other additional rent and all other terms and conditions\nof the Lease shall apply, so far as applicable. Holding over by Lessee without\nwritten approval of Lessor shall subject Lessee to the liabilities and\nobligations provided for in this Lease and by law, including, but not limited to\nthose in Section 2 of this Lease. Lessee shall indemnify and hold Lessor\nharmless against any loss or liability resulting from any delay caused by Lessee\nin surrendering the Premises, including without limitation, any claims made or\npenalties incurred by any succeeding lessee or by Lessor. No holding over shall\nbe deemed or construed to exercise any option to extend or renew this Lease in\nlieu of full and timely exercise of any such option as required hereunder.\n\n26. Lessor's Liability: If Lessee should recover a money judgment against Lessor\narising in connection with this Lease, the judgment shall be satisfied only out\nof the Lessor's interest in the Premises and neither Lessor or any of its\npartners shall be liable personally for any deficiency.\n\nPage 19\n\n \n27. Estoppel Certificates: Lessee or Lessor shall at any time during the Lease\nTerm, upon not less than ten (10) business days prior written notice, execute\nand deliver a statement in writing certifying that, this Lease is unmodified and\nin full force and effect (or, if modified, stating the nature of such\nmodification) and the dates to which the Rent and other charges have been paid\nin advance, if any, and acknowledging that there are not, to their knowledge,\nany uncured defaults on the part of Lessor hereunder or specifying such defaults\n(if they are claimed). Any such statement may be conclusively relied upon by\nany prospective purchaser or encumbrancer of the Premises. Failure to deliver\nsuch a statement within such time shall be conclusive upon the Lessee that (a)\nthis Lease is in full force and effect, without modification except as may be\nrepresented in the certificate presented for execution; by Lessor, and (b) there\nare no uncured defaults in performance.\n\n28. Time: Time is of the essence of the Lease.\n\n29. Captions: The headings on titles to the paragraphs of this Lease are not a\npart of this Lease and shall have no effect upon the construction or\ninterpretation of any part thereof. This instrument contains all of the\nagreements and conditions made between the parties hereto and may not be\nmodified orally or in any other manner than by an agreement in writing signed by\nall of the parties hereto or their respective successors in interest.\n\n30. Party Names: Lessor and Lessee may be used in various places in this Lease\nas a substitute for Lessor and Lessee respectively.\n\n31. Earthquake Insurance: As a condition of Lessor agreeing to waive the\nrequirement for earthquake insurance, Lessee agrees that it will pay, as\nadditional Rent, which shall be included in the monthly CAC, an amount not to\nexceed Twenty-Six Thousand Eight Hundred Dollars ($26,800) per year for\nearthquake insurance if Lessor desires to obtain some form of earthquake\ninsurance in the future, if and when available, on terms acceptable to Lessor as\ndetermined in the sole and absolute discretion of Lessor.\n\n32. Intentionally Omitted.\n\n33. Hazardous Materials\n\n33.1 Definitions: As used in this Lease, the following terms shall have the\nfollowing meaning:\n\n a. The term \"Hazardous Materials\" shall mean (i) polychlorinated biphenyls;\n (ii) radioactive materials and (iii) any chemical, material or substance\n now or hereafter defined as or included in the definitions of \"hazardous\n substance\" \"hazardous water\", \"hazardous material\", \"extremely hazardous\n waste\", \"restricted hazardous waste\" under Section 25115, 25117 or 15122.7,\n or listed pursuant to Section 25140 of the California Health and Safety\n Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined\n as \"hazardous substance\" under Section 25316 of the California Health and\n Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous\n Substances Account Act), (iii) defined as \"hazardous material\", \"hazardous\n substance\", or \"hazardous waste\" under Section 25501 of the California\n Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials\n Release, Response, Plans and Inventory), (iv) defined as a \"hazardous\n substance\" under Section 25181 of the California Health and Safety Code,\n Division 20l, Chapter 6.7 (Underground Storage of Hazardous Substances),\n (v) petroleum, (vi) asbestos, (vii) listed under Article 9 or defined as\n \"hazardous\" or \"extremely hazardous\" pursuant to Article II of Title 22 of\n the California Administrative Code, Division 4, Chapter 20, (viii) defined\n as \"hazardous substance\" pursuant to Section 311 of the Federal Water\n Pollution Control Act, 33 U.S.C. 1251 et seq. or listed pursuant to Section\n 1004 of the Federal Water Pollution Control Act (33 U.S.C. 1317), (ix)\n defined as a \"hazardous waste\", pursuant to Section 1004 of the Federal\n Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., (x) defined\n as \"hazardous substance\" pursuant to \n\nPage 20\n\n \n Section 101 of the Comprehensive Environmental Responsibility\n Compensations, and Liability Act, 42 U.S.C. 9601 et seq., or (xi) regulated\n under the Toxic Substances Control Act, 156 U.S.C. 2601 et seq.\n\n b. The term \"Hazardous Materials Laws\" shall mean any local, state and\n federal laws, rules, regulations, or ordinances relating to the use,\n generation, transportation, analysis, manufacture, installation, release,\n discharge, storage or disposal of Hazardous Material.\n\n c. The term \"Lessor's Agents\" shall mean Lessor's agents, representatives,\n employees, contractors, subcontractors, directors, officers, partners,\n tenants, and invitees.\n\n d. The term \"Lessee's Agents\" shall mean Lessee's agents, representatives,\n employees, contractors, subcontractors, directors, officers, partners,\n former employees who have not been employed by any other occupant of the\n Premises, relatives of employees or such former employees, and invitees.\n\n33.2 Lessee's Right to Investigate: Lessee shall be entitled to cause such\ninspection, soils and ground water tests, and other evaluations to be made of\nthe Premises as Lessee deems necessary regarding (i) the presence and use of\nHazardous Materials in or about the Premises, and (ii) the potential for\nexposure to Lessee's employees and other persons to any Hazardous Materials used\nand stored by previous occupants in or about the Premises. Lessee shall provide\nLessor with copies of all inspections, tests and evaluations. Lessee shall\nindemnify, defend and hold Lessor harmless from any cost, claim or expense\narising from such entry by Lessee or from the performance of any such\ninvestigation by such Lessee.\n\n33.3 Lessor's Representations: Lessor hereby represents and warrants to the best\nof Lessor's knowledge that the Premises are, as of the date of this Lease, in\ncompliance with all Hazardous Material Laws.\n\n33.4 Lessee's Obligation to Indemnify: Lessee, at its sole cost and expense,\nshall indemnify, defend, protect and hold Lessor and Lessor's Agents harmless\nfrom and against any and all cost or expenses, including those described under\nsubparagraphs i, ii and iii herein below set forth, to the extent arising from\nor caused in whole or in part, directly or indirectly by:\n\n a. Lessee's or Lessee's Agents' use, analysis, storage, transportation,\n disposal, release, threatened release, discharge or generation of Hazardous\n Material to, in, on, under, about or from the Premises (\"Hazardous\n Materials Activities\") in violation of applicable Hazardous Material Laws;\n or\n\n b. Lessee's or Lessee's Agents failure to comply with Hazardous Material\n Laws applicable to their Hazardous Material Activities; or\n\nThe cost and expenses so indemnified against include, but are not limited to the\nfollowing:\n\n i. Any and all claims, actions, suits, proceedings, losses, damages,\n liabilities, deficiencies, forfeitures, penalties, fines, punitive damages,\n cost or expenses;\n\n ii. Any claim, action, suit or proceeding for personal injury (including\n sickness, disease, or death), tangible or intangible property damage,\n compensation for lost wages, business income, profits or other economic\n loss, damage to the natural resources of the environment, nuisance,\n pollution, contamination, leaks, spills, release or other adverse effects\n on the environment;\n\n iii. The cost of any repair, clean-up, treatment or detoxification of the\n Premises necessary to bring the Premises into compliance with all Hazardous\n Material Laws, including the preparation and implementation of any closure,\n disposal, remedial action, or other actions with regard to the Premises,\n and expenses (including, without limitation, reasonable attorney's fees and\n consultants fees, investigation and laboratory fees, court cost and\n litigation expenses) relating thereto.\n\nPage 21\n\n \n33.5 Lessee's Obligation to Remediate Contamination: Lessee shall, at its sole\ncost and expense, promptly take any and all action necessary as required by\napplicable Hazardous Materials Laws to remediate contamination of the Premises\nby Hazardous Materials for which Lessee is responsible under Article 33.4.\n\n33.6 Lessor's Waiver and Obligation to Remediate Contamination: If required by a\ngovernmental agency having jurisdiction and after Lessor has exhausted all its\nother legal remedies, Lessor shall, at its sole cost and expense, promptly take\nany and all action necessary to remediate repair, clean-up, treatment or\ndetoxification of the Premises necessary to bring the Premises into compliance\nwith all Hazardous Material Laws, other than remedial actions required to be\ncompleted by Lessee pursuant to Section 33.4 & 33.5.\n\n33.7 Obligation to Notify: Lessor and Lessee shall each give written notice to\nthe other as soon as reasonably practical of any contamination of the Premises\nby Hazardous Materials which constitutes a violation of any Hazardous Material\nLaws.\n\n33.8 Survival: The obligations of Lessee under this Section 33 shall survive the\nLease Term or earlier termination of this Lease.\n\n33.9 Certification and Closure: On or before the end of the Lease Term or\nearlier termination of this Lease, Lessee shall deliver to Lessor a\ncertification executed by Lessee stating that, to the best of Lessee's\nknowledge, there exists no violation of Hazardous Material Laws resulting from\nLessee's obligation in Paragraph 33. If pursuant to local ordinance, state or\nfederal law, Lessee is required, at the expiration of the Lease Term, to submit\na closure plan for the Premises to a local, state or federal agency, then Lessee\nshall, at its sole cost and expense, comply with all agency requirements\nconcerning such plan and furnish to Lessor a copy of such plan and proof of\ncompliance.\n\n33.10 Prior Hazardous Materials: Notwithstanding anything to the contrary in\nthis Lease, and except for any Environmental Surcharges (as defined in Section\n16), Lessee shall have no obligation to clean up or comply with any Hazardous\nMaterials Laws or to hold Lessor harmless or reimburse Lessor (as a CAC charge\nor otherwise) with respect to any Hazardous Material or wastes discovered on the\nPremises which were introduced into, in, on, about, from or under the Premises\nprior or subsequent to the Lease Term or any Hazardous Materials originating\nfrom any source off Premises or caused by any release or disposal of Hazardous\nMaterial by Lessor, Lessor's Agents, any other occupant of the Premises or their\nrespective agents, employees, contractors or invitees; provided, however, that\nthe foregoing shall not release Lessee or Lessee's Agents from its obligations\nunder Section 33.4, above.\n\n34. Brokers: Lessor and Lessee represent that they have not utilized or\ncontacted a real estate broker or finder with respect to this Lease and Lessee\nagrees to indemnify and hold Lessor harmless against any claim, cost, liability\nor cause of action asserted by any broker or finder claiming through Lessee .\nLessor represents and warrants that it has not utilized or contacted a real\nestate broker or finder with respect to this Lease and Lessor agrees to\nindemnify and hold Lessee harmless against any claim, cost, liability or cause\nof action asserted by any broker or finder claiming through Lessor.\n\n35. Option to Extend: A. Option: Lessor hereby grants to Lessee one (1) option\n ------- \nto extend the Lease Term, each for a period of five (5) years, on the following\nterms and conditions, which shall apply separately to each option to extend:\n\n (i) Lessee shall give Lessor written notice of its exercise of one of its\n options to extend no earlier than twenty-four (24) calendar months, nor\n later than six (6) calendar months before the Lease Term would end but for\n said exercise. Lessee must provide Lessor written notice of its exercise of\n its options as provided hereunder at least six (6) months before the Lease\n Term would end but for said exercise for purposes of negotiating rental\n terms. Lessee may withdraw its notice of \n\nPage 22\n\n \n exercise of an extension option for any reason prior to six (6) months\n before the Lease Term would end but for said exercise. Lessor shall provide\n Lessee with Lessor's proposed base monthly rent for the option period\n within twenty (20) days of Lessee's request. Lessee may rescind its notice\n of exercise at any time, but only provided it delivers and rescission\n notice in writing to Lessor at least six (6) months before the Lease Term\n would end but for said exercise and, subject to the provisions of this\n Section 35, such notice shall operate to rescind Lessee's election to\n extend the Lease Term. Upon any extension of the Lease Term pursuant to\n this Section 35, the term \"Lease Term\" as used in this Lease shall\n thereafter include the then extended term. Time is of the essence.\n\n (ii) Lessee may not extend the Lease Term pursuant to any option granted\n by this section 35 if Lessee is in default as of the date of the exercise\n of its option. If Lessee has committed a monetary or material non-monetary\n default as defined in Section 14 that has not been cured or waived by\n Lessor in writing by the date that any extended term is to commence, then\n Lessor may elect not to allow the Lease Term to be extended,\n notwithstanding any notice given by Lessee of an exercise of this option to\n extend by exercising its remedy to declare termination of this Lease on\n account of such default.\n\n (iii) Lessee must exercise each option consecutively, and if it fails to\n exercise any one option, it waives the right to exercise the subsequent\n option and the Lease Term shall not be extended further.\n\n (iv) All terms and conditions of this Lease shall apply during each\n extended term, except that the base monthly rent and base month rent\n increases for each extended term shall be determined as provided in Section\n 35 (B) below\n\n (v) Upon any extension of the Lease Term pursuant to this Section 35, the\n term \"Lease Term\" as used in this Lease shall thereafter include the then\n extended term.\n\n (vi) The option rights of LynuxWorks Inc. granted under this Section 35\n are granted for LynuxWorksInc. personal benefit and may not be assigned or\n transferred by LynuxWorks Inc. except to a permitted assignee of this Lease\n pursuant to Section 20. Option rights may not be exercised if LynuxWorks\n Inc. (or such permitted assignee) is not occupying the Premises at the time\n of exercise.\n\nB. Extended Term Rent - Option Period: The monthly base Rent for the Premises\n ----------------------------------- \nduring the extended term shall equal (a) the fair market monthly base rent for\nthe Premises as of the commencement date of the extended term, including\nperiodic rental increases, if applicable, but in no case, less than (b) the base\nmonthly rent payable under this Lease during the last month of the prior Lease\nterm. Promptly upon Lessee's exercise of the option to extend, Lessee and Lessor\nshall meet and attempt to agree on the fair market monthly base rent for the\nPremises as of the commencement date of the extended term. In the event the\nparties fail to agree upon the amount of the monthly base rent for the extended\nterm prior to commencement thereof, the monthly base rent for the extended term\nshall be determined by appraisal in the manner hereafter set forth; provided,\nhowever, that in no event shall the monthly base rent for the extended term be\nless than in the immediate preceding period. In the event it becomes necessary\nunder this paragraph to determine the fair market monthly base Rent of the\nPremises by appraisal, Lessor and Lessee each shall appoint a real estate\nappraiser who shall be a member of the American Institute of Real Estate\nAppraiser (\"AIREA\") and such appraisers shall each determine said fair market\nmonthly Rent taking into account the rental value of the Premises and the\namenities provided by the outside areas, the common areas, and the Premises, the\nother terms and conditions of this Lease (as compared to the terms of the\ncomparable leases used for comparison), and prevailing comparable rentals in the\narea. Such appraisers shall, within twenty (20) business days after their\nappointment, complete their appraisals and submit their appraisal reports to\nLessor and Lessee. If the fair market monthly base rent established in the two\n(2) appraisals varies by five percent\n\nPage 23\n\n \n(5%) or less of the higher appraisal, the average of the two shall be\ncontrolling. If said fair market monthly base rent varies by more than five\npercent (5%) of the higher appraisal, said appraisers, within ten (10) days\nafter submission of the last appraisal, shall appoint a third appraiser who\nshall be a member of the AIREA and who shall also be experienced in the\nappraisal of rent values and adjustment practices for commercial properties in\nthe vicinity of the Premises. Such third appraiser shall, within twenty (20)\nbusiness days after his appointment, determine by evaluating the first two\nappraisals which more accurately reflects the fair market monthly base rent\ntaking into account the same factors referred to above, and submit his appraisal\nreport to Lessor and Lessee. If the two appraisers appointed by Lessor and\nLessee are unable to agree upon a third appraiser within the required period in\naccordance with the foregoing, application shall be made within twenty (20) days\nthereafter by either Lessor or Lessee to AIREA, which shall appoint a member of\nsaid institute willing to serve as appraiser. The cost of all appraisals under\nthis subparagraph shall be borne equally be Lessor and Lessee. If rent is not\ndetermined at least ten (10) days before the date which is six (6) months prior\nto expiration of the Lease Term, the deadline for Lessee's right to rescind its\nelection to renew will be extended ten (10) days after the parties shall agree\nupon the base rent for the renewal term or ten (10) days after Lessee receives\nnotice of determination of the third appraiser.\n\n36. Approvals & Reimbursement Requests: Whenever in this Lease the Lessor's or\nLessee's consent is required, such consent shall not be unreasonably or\narbitrarily withheld or delayed. In the event that the Lessor or Lessee does not\nrespond to a request for any consents which may be required of it in this Lease\nwithin ten business days of the request of such consent in writing by the Lessee\nor Lessor, such consent shall be deemed to have been given by the Lessor or\nLessee. Any expenditure by a party permitted or required under the Lease, for\nwhich such party is entitled to demand and does demand reimbursement from the\nother party, shall be limited to the fair market value of the goods and services\ninvolved, shall be reasonably incurred, and shall be substantiated by\ndocumentary evidence available for inspection and review by the other party or\nits representative during normal business hours.\n\n37. Authority: Each party executing this Lease represents and warrants that he\nor she is duly authorized to execute and deliver the Lease. If executed on\nbehalf of a corporation, that the Lease is executed in accordance with the by-\nlaws of said corporation (or a partnership that the Lease is executed in\naccordance with the partnership agreement of such partnership), that no other\nparty's approval or consent to such execution and delivery is required, and that\nthe Lease is binding upon said individual, corporation (or partnership) as the\ncase may be in accordance with its terms.\n\n38. Indemnification:\n\n38.1 Of Lessor: Except to the extent caused by the sole negligence or willful\nmisconduct of Lessor or Lessor's Agents or Lessor's breach of this Lease or\napplicable Law, Lessee shall defend, indemnify and hold Lessor harmless from and\nagainst any and all obligations, losses, costs, expenses, claims, demands,\nattorney's fees, investigation costs or liabilities on account of, or arising\nout of the use or occupancy of the Premises, Lessee's or Lessee's Agents' use or\noccupancy of the Premises, or any acts or omissions to act of Lessee or Lessee's\nAgents, including, without limitation, any of the foregoing provisions arising\nout of the use, generation, manufacture, installation, release, discharge,\nstorage, or disposal of Hazardous Materials by Lessee or Lessee's Agents in\nviolation of applicable Hazardous Material Laws. It is understood that Lessee is\nand shall be in control and possession of the Premises and that Lessor shall in\nno event be responsible or liable for any injury or damage or injury to any\nperson whatsoever, happening on, in, or in connection with the Premises, or for\nany injury or damage to the Premises or any part thereof caused by Lessee's or\nLessee's Agents' use or occupancy thereof, except to the extent caused by the\nsole negligence or willfulness conduct of Lessor or Lessor's Agents, and Lessee\nreleases and indemnifies Lessor from all other liability arising out of the\ncondition, use or occupancy of the Premises, and of Lessee's or Lessee's Agents'\nuse or occupancy of the Premises. This Lease is entered into on the express\ncondition that Lessor shall not be liable for, or suffer loss by reason of\ninjury to person or \n\nPage 24\n\n \nproperty, from whatever cause, which in any way may be connected with the use,\ncondition or occupancy of the Premises or personal property located therein, or\nLessee's or Lessee's Agents' use or occupancy of the Premises, except to the\nextent caused by the sole negligence or willfulness conduct of Lessor or\nLessor's Agents. Except to the extent caused by the sole negligence or willful\nmisconduct of Lessor or Lessor's Agents or Lessor's breach of this Lease or\napplicable Law, Lessee releases and indemnifies Lessor from all other liability\narising out of the Lessee's use or occupancy of the Premises. The provisions of\nthis Lease permitting Lessor to enter and inspect the Premises are for the\npurpose of enabling Lessor to become informed as to whether Lessee is complying\nwith the terms of this Lease and Lessor shall be under no duty to enter, inspect\nor to perform any of Lessee's covenants set forth in this Lease. Lessee shall\nfurther indemnify, defend and hold harmless Lessor from and against any and all\nclaims arising from any breach or default in the performance of any obligation\non Lessee's part to be performed under the terms of this Lease. The provisions\nof Section 38.1 shall survive the Lease Term or earlier termination of this\nLease with respect to any damage, injury or death occurring during the Lease\nTerm.\n\n38.2 Of Lessee: Lessor shall defend, indemnify and hold Lessee harmless from and\nagainst any and all obligations, losses, costs, expenses, claim, demands,\nattorney's fees, investigation costs or liabilities on account of, or arising\nout of the sole negligence or willful misconduct of Lessor or Lessor's Agents or\nan incurred breach by Lessor of its obligations as provided for under this\nLease. The provisions of Section 38.2 shall survive the Lease Term or earlier\ntermination of this Lease with respect to any damage, injury or death occurring\nduring the Lease Term.\n\n39. Successors And Assigns: The covenants and conditions herein contained\nshall, subject to the provisions as to assignment, apply to and bind the heirs,\nsuccessors, executors, administrators and assigns of all of the parties hereto;\nand all of the parties hereto shall be jointly and severally liable hereunder.\n\n40. Miscellaneous Provisions: All rights and remedies hereunder are cumulative\nand not alternative to the extent permitted by law and is in addition to all\nother rights or remedies in law and in equity.\n\n41. Choice of Law: This lease shall be construed and enforced in accordance\nwith the substantive laws of the State of California. The language of all parts\nof this lease shall in all cases be construed as a whole according to its fair\nmeaning and not strictly for or against either Lessor or Lessee.\n\n42. Lease Cancellation: Lessee shall have option to cancel lease at anytime\nduring Lease Term if Lessee signs a new Lease with Lessor for 85,000 sq. ft. or\nmore.\n\n43. Entire Agreement: This Lease is the entire agreement between the parties,\nand there are no agreements or representations between the parties except as\nexpressed herein. Except as otherwise provided for herein, no subsequent change\nor addition to this Lease shall be binding unless in writing and signed by the\nparties hereto.\n\n [Signatures on Next Page]\n\nPage 25\n\n \n Exhibit A\n\n NNN DEFINITION\n\n\nA Berg & Berg Net, Net, Net Lease generally includes the following:\n\nA. Lessor has financial and actual responsibility for structural defects in the \nbuilding foundation, bearing walls, and roof structure.\n\n\nB. Lessee has financial and actual responsibilities for everything else, \nincluding but not limited to the following:\n\n 1. Taxes - all real property and personal property taxes and or anything \nequivalent during term of lease, including assessments.\n\n 2. Maintenance, repair and\/or replacement of everything on the Premises \nexcept for structural defects in A above.\n\n 3. Insurance - public liability, property damage and loss of rents, \ninsurance plus all deductibles resulting from any and all claims (Lessee to be \nresponsible for Earthquake insurance on commercially reasonable terms.)\n\n 4. Compliance with law - Lessee, at Lessee's sole expense, shall promptly \ncomply with all laws, ordinances, codes, rules, orders, directions, and \nregulations of any lawful governmental authority after commencement date of \nLease, relating to or affecting the condition, use or occupancy of the Premises.\n\n 5. Hazardous materials - Lessee shall not permit the illegal use, analysis,\nstorage, transportation, disposal, release, threatened release, discharge or \ngeneration of any Hazardous Material, and will indemnify Lessor regarding same.\n\n 6. Indemnification - Lessee indemnifies Lessor from and against all claims \nnow or hereafter arising from any act, work or things done or permitted to be \ndone or otherwise suffered or any omission to act, in or about the Premises, \nother than those caused by the sole gross negligence or willful misconduct of \nthe Lessor.\n\n 7. Utilities - Utilities and services to the building are the sole \nresponsibility of Lessee, except as a result of Lessor's sole gross negligence \nor willful misconduct.\n\nPage 26\n\n \nIn Witness Whereof, Lessor and Lessee have executed this Lease effective, the\nday and year first above written.\n\n<\/pre>\n
\n\n
\nLessor Lessee
\nMission West Properties, L.P. LynuxWorks, Inc.
\nBy: Mission West Properties, Inc.
\n General Partner <\/p>\nBy: \/s\/ Carl E. Berg By: \/s\/ Bhupi Singh
\n ———————————————– ———————————————–
\nsignature of authorized representative signature of authorized representative <\/p>\n
Carl E. Berg
\n————————————————— _____________________________________________________
\nprinted name printed name: Bhupi Singh <\/p>\n
Pres
\n————————————————— _____________________________________________________
\nTitle Title: Vice President Finance & CFO <\/p>\n
2\/Oct\/2000 2 October 2000
\n————————————————— —————————————————–
\nDate date
\n<\/c><\/s><\/caption>\n<\/table>\n
Page 26<\/p>\n
Exhibit B<\/p>\n
BUILDING SHELL<\/p>\n
Mission West Properties (“Building Shell”) includes the following items in
\ncustomary quantities and quality. Final list to be attached.<\/p>\n
Exterior walls
\nFoundations
\nFloors Slabs
\nRoof structures and membrane
\nGlazing
\nExit doors
\nTruck doors
\nLandscaping
\nParking and paving
\nStorm sewer line to building
\nSanitary sewer line to building
\nWater line to building
\nPaint of exterior walls
\nShell architecture and engineering (Mission West staff)
\nAll permits for the above items<\/p>\n
Page 27<\/p>\n
Exhibit C<\/p>\n
Building Shell plans to be attached.<\/p>\n
Page 28<\/p>\n
Exhibit D<\/p>\n
Lessee Interior Improvement Plans to be attached.<\/p>\n
Page 29<\/p>\n
Exhibit E
\n Lessee Approval Deadlines<\/p>\n
\n
\nLease signed 10\/02\/00<\/p>\nApproval of site plan Approved<\/p>\n
Approval of building elevation Approved<\/p>\n
Approval of restroom, stairs and underground plumbing Approved<\/p>\n
Approval of preliminary floor plan, single line 09\/30\/00<\/p>\n
Approval of interior plans and specifications 10\/20\/00<\/p>\n
Final selection of all material and interior finishes for construction such as
\nCarpet, ceramic tile, paint, and any other lessee selected materials and finishes 10\/30\/00
\n<\/c><\/s><\/table>\n
The foregoing dates assume that Lessor provides Lessee all of the information
\nfor Lessee to take the required action not less than ten (10) business days
\nprior to such dates.<\/p>\n
Lessee shall not unreasonably withhold approval of final shell or interior plans
\nif they conform in general to the preliminary site plan, preliminary elevation,
\nand floor plans.<\/p>\n
The Commencement Date shall be extended one day for each day Lessee does not
\nmeet each deadline set forth on this Exhibit E and Lessee shall pay Rent for any
\ndelays that effect the Substantial Completion Date which shall be considered a
\nLessee Delay.<\/p>\n
Page 30<\/p>\n
Exhibit F
\n Cost Statement to be attached<\/p>\n
Page 31<\/p>\n
Exhibit G
\n Form of Lien Waiver to be attached<\/p>\n
Page 32<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8098,8240],"corporate_contracts_industries":[9510,9488],"corporate_contracts_types":[9583,9579],"class_list":["post-41758","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-lynuxworks-inc","corporate_contracts_companies-mission-west-properties-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-real__operators","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\/41758","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=41758"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41758"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41758"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41758"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}