\nSection 21 1.16 Notices:<\/p>\nTo Landlord: Tech Center Partners
\n c\/o Redding Management, Inc.
\n 1411 Harbor Bay Parkway, Ste. 1000
\n Alameda, CA 94502<\/p>\n
To Tenant: UT Starcom, Inc.
\n 1275 Harbor Bay Parkway
\n Alameda, CA 94502<\/p>\n
Section 29 1.17 Broker(S): CB COMMERCIAL
\n ——————————-
\n 155 Grand Avenue, Suite 100
\n ——————————-
\n Oakland, CA 94612
\n ——————————-<\/p>\n
REDDING MANAGEMENT, INC.
\n ————————————-
\n 1411 Harbor Bay Parkway, Suite 1000
\n ————————————-
\n Alameda, CA 94502
\n ————————————-<\/p>\n
1.18 Broker’s Fee or Commission,
\n if any, paid by: Landlord
\n ————–
\n 1.19 Riders to Lease: N\/A
\n ————–
\n<\/c><\/c><\/s><\/table>\n
3<\/p>\n
2. PREMISES AND COMMON AREA.<\/p>\n
2.1 PREMISES. The approximate location of premises leased hereunder
\n(“Premises”) is shown on the drawing attached hereto as Exhibit A. The Premises
\nconsist of the approximate rentable square footage as specified in Section 1.2
\nin “Building” described in Section 1.3. As used in this Lease, the term
\n“rentable” or “rentable square footage” means the entire area of the Premises,
\nincluding any utility and public areas, measured from the exterior of exterior
\nwalls, and from the center line of interior demising walls.<\/p>\n
2.2 LANDLORD’S RESERVED RIGHTS. Landlord reserves the right to: (1) Use
\nthe roof, exterior walls and the area beneath and above the Premises, together
\nwith the right to install, use, maintain and replace equipment, machinery,
\npipes, conduits and wiring through the Premises, which serve other parts of the
\nProject, in a manner and in locations which do not unreasonably interfere with
\nTenant’s use of the Premises; (2) Alter, replace or change the appearance of the
\nBuilding interior and exterior and any portion of the Common Area or Project and
\nto make such other use of or changes to Common Area and Project as Landlord
\nreasonably deems appropriate; and (3) Grant easements on the Project and
\ndedicate for public use portions of the Project without Tenant’s consent;
\nProvided that no such grant or dedication shall substantially interfere with
\nTenant’s use of the Premises. Upon Landlord’s demand, Tenant shall execute,
\nacknowledge and deliver to Landlord documents, instruments, maps and plats
\nnecessary to effectuate Tenant’s covenants hereunder.<\/p>\n
2.3 COMMON AREA. The Premises are (or when constructed will be) a part
\nof a business\/commercial complex consisting of other buildings, landscaping,
\nparking facilities and other improvements described as the “Project” in Section
\n1.4 hereof. Landlord may in its sole discretion change the size, shape,
\nlocation, number and extent of any or all of the improvements in the Project
\nwithout any liability to or consent of Tenant. Tenant does not rely on the fact
\nnor does Landlord represent that any specific tenant or number of tenants shall
\noccupy any space in the Project. Tenant shall have the non-exclusive right to
\nuse in common with other tenants in the Project the areas appurtenant to the
\nPremises (“Common Area”), described as all areas and facilities within the
\nProject, exclusive of the interior of the Building and any other buildings on
\nthe Project, now or hereafter designated by Landlord for the general use and
\nconvenience of Tenant and other tenants of the Project, including without
\nlimitation the parking areas, access and perimeter roads, sidewalks, landscaped
\nareas, service areas, trash disposal facilities, and similar areas and
\nfacilities.<\/p>\n
2.3.1 PARKING. Tenant shall have the right to park on the Project’s
\nparking facilities in common with other tenants of the Project upon terms and
\nconditions, including imposition of a reasonable parking charge, as may from
\ntime to time be established by Landlord. The planned parking ratio available for
\nall tenants in the Project is 3.3 parking spaces per one thousand rentable<\/p>\n
4<\/p>\n
square feet of space leased. Tenant agrees not to overburden the parking
\nfacilities and agrees to cooperate with Landlord and other tenants in the use
\nof the parking facilities. Landlord reserves the right in its discretion to
\ndetermine whether the parking facilities are becoming crowded and to allocate
\nand assign parking spaces among Tenant and other tenants The use of said
\nparking area shall be at the sole risk of Tenant. Unless caused by the
\nwrongful act of Landlord, its agents or employees, Tenant hereby agrees to
\nindemnify and hold Landlord harmless against any liability, loss, cost or
\nexpense for any damage to or loss or theft of any vehicle or property within
\nany vehicle or any other property, or injury to or death of any person,
\narising directly or indirectly out of or in connection with the use by Tenant
\nor such other persons of the parking area or any part thereof.<\/p>\n
3. TERM.<\/p>\n
The “Term” of this Lease shall be for the period set forth in Section
\n1.7, (plus the partial month, if any, immediately following the commencement
\nDate of the Term), and ending on the expiration of such period, unless the Term
\nis sooner terminated as hereinafter provided.<\/p>\n
3.1 COMMENCEMENT DATE. The “Commencement Date” shall be the earlier of
\nthe following dates: (a) the date stipulated in Section 1.8 of this Lease, or
\n(b) the date Tenant assumes beneficial occupancy of the Premises. The date
\ncurrently estimated to be the Commencement Date is specified in Section 1.8
\n(“Anticipated Commencement Date”). Notwithstanding the above, if the
\nCommencement Date has not occurred on or before the Anticipated Commencement
\nDate due to the fault of Tenant, the Commencement Date of this Lease shall be
\nthe date specified as the Anticipated Commencement Date. Tenant shall then
\ncommence payment to Landlord of the Monthly Rent and Additional Rent due
\nhereunder. Once the actual Commencement Date has been determined, the parties
\nshall execute a Commencement Date Memorandum in the form attached as Exhibit C.<\/p>\n
3.2 DELIVERY OF POSSESSION. Landlord shall use its best efforts to
\nsubstantially complete Landlord’s work (re-painting of the premises only) on or
\nbefore the Anticipated Commencement Date. Tenant understand and agrees that the
\nmodifications per Exhibit A will be constructed during Tenant’s occupancy. If
\nLandlord is unable to deliver possession of the Premises, through no fault of
\nTenant, on the Anticipated Commencement Date, Landlord shall not be subject to
\nliability therefore, nor shall such failure effect the validity of this Lease,
\nthe obligation of Tenant, or extend the Term. In such case, Tenant shall not be
\nobligated to pay Rent or perform any other obligations of Tenant under this
\nLease, except as may be otherwise provided herein, until possession of the
\nPremises is tendered to Tenant. If Landlord has not delivered possession of the
\nPremises within ninety (90) days from the Anticipated Commencement Date (plus
\nthe period of delays by reason of any of the matters described in Section
\n26.12), either party may, by notice to the other party given within ten (10)
\ndays after such date, elect to cancel this Lease. Such cancellation shall be the
\nsole and exclusive remedy of such party and shall extinguish all<\/p>\n
5<\/p>\n
obligations under this Lease. If neither party elects to cancel within such
\nperiod, its right to do so thereafter, by reason of the delay in the
\nCommencement Date, shall terminate.<\/p>\n
3.3 EARLY ENTRY. If Tenant is permitted to occupy the Premises prior to
\nthe Commencement Date for the purpose of fixturing or any other purpose
\npermitted by Landlord, such early entry shall be at Tenant’s sole risk and
\nsubject to all the terms and provisions hereof, except for the payment of
\nmonthly Rent which shall commence on the Commencement Date. Landlord shall have
\nthe right to impose such additional conditions on Tenant’s early entry as
\nLandlord shall deem appropriate, and shall further have the right to require
\nthat Tenant execute an early entry agreement containing such conditions prior to
\nTenant’s early entry.<\/p>\n
4. RENT.<\/p>\n
4.1 BASE RENT. Tenant shall pay to Landlord in lawful money of the
\nUnited States, beginning on the Commencement Date and continuing on the first
\nday of each calendar month thereafter throughout the Term, the Monthly Base
\nRent, set forth in section 1.9. Monthly Base Rent shall be payable in advance,
\nwithout abatement, deduction, claim, offset, prior notice or demand. Monthly
\nBase Rent for any partial month shall be prorated.<\/p>\n
4.1.1 PREPAID RENT. Tenant shall pay to Landlord upon execution the
\namount set forth in Section 1.10 as payment for the first month that Monthly
\nBase Rent is due under this Lease.<\/p>\n
4.2 ADDITIONAL RENT. “Additional Rent” shall include all monies, in
\naddition to Monthly Base Rent, required to be paid by Tenant to Landlord under
\nthe Lease, including without limitation, any late payments, interest, and
\npayments required to be made by Tenant to Landlord on account of costs incurred
\nby Landlord for “Operating Expenses” (specified in Section 4.2.2) or “Tenant
\nExpenses” (specified in Sections 9 and 10.1).<\/p>\n
4.2.1 TENANT’S PERCENTAGES. “Tenant’s Building Percentage”
\nshall be determined by dividing the appropriate rental square footage of the
\nPremises by the appropriate total rentable square footage of the Building.
\nTenant’s Building Percentage is agreed to be the percentage set forth in Section
\n1.5. “Tenant’s Project Percentage” shall be determined by dividing the
\napproximate rental square footage of the Premises by the approximate total
\nrentable square footage of all buildings on the Project. Tenant’s Project
\nPercentage is agreed to be the percentage set forth in Section 1.6.<\/p>\n
4.2.2 OPERATING EXPENSES. For each calendar year during the
\nterm subsequent to the year specified in Section 1.13 as the Base Year, Tenant
\nshall pay Tenant’s Project Percentage of the increase in Operating Expenses for
\nsuch calendar year over “Base Operating Expenses”. As reasonably determined by
\nLandlord, Tenant’s Building Percentage may be substituted for Tenant’s Project
\nPercentage for those Operating Expenses that relate to the Building only and
\nsaid expenses shall be limited to alterations or improvements required by
\ngovernmental authority or Association, and<\/p>\n
6<\/p>\n
the cost of maintaining, repairing and repairing exterior walls and the roof
\nmembrane of the Building. Base Operating Expenses shall mean Operating Expenses
\nincurred by Landlord during the Base Year and shall exclude those expenses
\nspecifically referred to in Paragraph 33 of this Lease. Operating Expenses may
\ninclude, as permitted by Generally Accepted Accounting Principles, the cost of
\nany policies of insurance covering the Building and the Common Area, Real
\nProperty Taxes, Association assessments, Assessment Bond payments, property
\nmanagement fees, amortization on Project furnishings, cost of labor, materials
\nand services used or consumed in operating, maintaining, repairing and replacing
\nthe Common Area, including landscaping and sprinkler systems, hardscape,
\nwalkways and paved parking areas, signs and site lighting, exterior window
\ncleaning, alterations or improvements required by governmental authority or
\nAssociation, and the cost of maintaining, repairing and replacing exterior walls
\nand the roof membrane of the Building. Utilities included in Operating Expenses
\nare electricity for parking lot and Common Area lighting and sprinkler systems,
\nand water for irrigation. Operating Expenses for both the Base Year and each
\nsubsequent calendar year shall be adjusted to equal Landlord’s reasonable
\nestimate of Operating Expenses had the total rentable area of the Project been
\noccupied.<\/p>\n
4.2.3 MONTHLY PAYMENTS. Commencing with the first day of the
\ncalendar year following the Base Year, Tenant shall pay to Landlord each month,
\nat the same time and in the same manner as Monthly Base Rent 1\/12th of
\nLandlord’s estimate of Tenant’s Percentage of the increase in Operating Expenses
\nfor the then current calendar year. Within 90 days after the close of each
\ncalendar year, or as soon after such 90-day period as practical, Landlord shall
\ndeliver to Tenant a statement of the actual increases in Operating Expenses for
\nsuch calendar year over the Base Year. If on the basis of such statement Tenant
\nowes an amount that is less than the estimated payments for such calendar year
\npreviously made by Tenant, Landlord shall either offset the excess against the
\nOperating Expenses next thereafter to become due to Landlord or shall refund the
\namount of the overpayment to Tenant, as Landlord shall elect. If on the basis of
\nsuch statement, Tenant owes an amount that is more than the estimated payments
\nfor such calendar year previously made by Tenant, Tenant shall pay the
\ndeficiency to Landlord within ten (10) days after delivery of statement. The
\nobligations of Landlord and Tenant under this subparagraph with respect to the
\nreconciliation between estimated payments and the actual increases in Operating
\nExpenses for the last year of the term shall survive the termination of the
\nLease. Notwithstanding any other provision hereof, if Landlord incurs costs,
\nincluding Landlord’s administrative costs which relate only to the Premises
\nor Tenant’s use of the Premises or the Project, such costs shall be payable
\nsolely by Tenant. Landlord may either bill such costs directly to Tenant, in
\nwhich case Tenant shall pay such costs within ten (10) days of receipt of a
\nstatement therefore, or Landlord may include such costs on the statement of
\nOperating Expenses payable by Tenant.<\/p>\n
4.2.4 TENANT’S AUDIT RIGHTS: Tenant shall have the right, to
\nbe exercised not more than once during any calendar year,<\/p>\n
7<\/p>\n
to audit Operating Expenses, any taxes, utilities or any other assessments or
\ncharges made against Tenant, and to examine Landlord’s records relating to the
\nsame. Tenant’s audit shall be conducted by a C.P.A. mutually acceptable to
\nLandlord and Tenant. The Landlord shall submit the backup data to Tenant within
\nten (10) business days of a written notice from Tenant. The costs of any such
\naudit shall be borne by Tenant, provided, however, that in the event such audit
\nreveals a discrepancy greater than three percent (3%) more than the amount
\ncharged to Tenant, Landlord shall pay the costs of that audit. Landlord shall
\npay to Tenant within fifteen (15) days of notice thereof, any amounts determined
\nto be owed to Tenant as a result of such audit, with interest thereon, from the
\ndate any overpayment was made or Landlord failed to make the appropriate refund
\nor deduction from Tenant’s obligations, provided, however, the Tenant may, at
\nits own option and without limiting its rights hereunder, deduct amounts it is
\nowed by Landlord from any future payment due to Landlord of any kind whatsoever.<\/p>\n
5. LATE PAYMENT CHARGES.<\/p>\n
Tenant acknowledges that late payment by Tenant to Landlord of Rent and
\nother charges provided for under this Lease will cause Landlord to incur costs
\nnot contemplated by this Lease, the exact amount of such costs being extremely
\ndifficult or impracticable to fix. Therefore, if any installment of Rent or any
\nother charge due from Tenant is not received by Landlord within five (5) days
\nafter such payment is due and without any requirement for notice to Tenant,
\nTenant shall pay to Landlord an additional sum equal to eight percent (8%) of
\nthe amount overdue as a late charge. The parties agree that this late charge
\nrepresents a fair and reasonable estimate of the costs that Landlord will incur
\nby reason of the late payment by Tenant.<\/p>\n
6. SECURITY DEPOSIT.<\/p>\n
Upon Tenant’s execution of this Lease, Tenant shall deposit with
\nLandlord the sum specified in Section 1.14, for the Security Deposit, which
\nshall be held by Landlord as security for the faithful performance by Tenant of
\nall of the terms, covenants, and conditions of this Lease, it being expressly
\nunderstood and agreed that the Security Deposit is not an advance deposit for
\nrent or a measure of Landlord’s damages in case of Tenant’s default. The
\nSecurity Deposit may be retained, used or applied by Landlord to remedy and
\ndefault by Tenant, to repair damage caused by Tenant to any part of the Premises
\nor the Building, and to clean the Premises upon expiration or earlier
\ntermination of this Lease, as well as to reimburse Landlord for any amount which
\nLandlord may spend by reason of Tenant’s default or to compensate Landlord for
\nany other loss or damage which Landlord may suffer by reason of Tenant’s
\ndefault. If any portion of the Security Deposit is so used or applied, Tenant
\nshall, within ten (10) days after written demand therefore, deposit cash with
\nLandlord in an amount sufficient to restore the security Deposit to the full
\namount required hereunder, and Tenant’s failure to do so shall be a material
\nbreach of this<\/p>\n
8<\/p>\n
Lease. Landlord shall not be required to keep the Security Deposit separate
\nfrom its general funds, and Tenant shall not be entitled to interest on such
\ndeposit. Tenant may not elect to apply any portion of said Security Deposit
\ntoward payment of Base Rent or any other amounts payable by Tenant under this
\nLease, although Landlord may elect to do so in the event Tenant is in default
\nor is insolvent. If Tenant shall fully and faithfully perform every provision
\nof this Lease, the Security Deposit or any balance thereof shall be returned
\nto Tenant at Tenant’s last known address (or, at Landlord’s option, to the
\nlast assignee of Tenant’s interest hereunder) within thirty (30) days after
\nthe Term has ended and the Premises have been vacated by Tenant.<\/p>\n
7. REAL PROPERTY TAXES.<\/p>\n
7.1 REAL PROPERTY TAXES. Real Property Taxes shall mean all real
\nproperty taxes and assessments, personal property taxes, (other than those
\nwithin Section 7.2,) and all other assessments, dues or charges against the
\nProject on which the Building is located shall be paid by Landlord. The
\namount so paid shall be included within Operating Expenses under Section
\n4.2.2. Such taxes and assessments shall include, without limitation, any
\nassessment or improvement district or other district, now existing or
\nhereafter established or imposed, having a lien or claim against the Building
\nor the Project; license fees, business taxes, commercial rental taxes, levy,
\npenalty, tax or similar imposition imposed by any authority having the power
\nto tax. Such taxes, shall include without limitation, any tax on Landlord’s
\nright to Rent or income from the Premises (excluding state and federal income
\ntaxes), any charge in substitution, partially or totally, of any assessment,
\ntax or charge previously included in the definition of property tax;
\nassessments for such services as fire protection, police protection street,
\nlandscape, sidewalk and road maintenance, refuse removal, sewer assessments
\nand for other governmental services formerly provided without charge to
\nproperty owners or occupants; any assessment, tax, or charge allocable to or
\nmeasured by the area of the Premises or the Rent payable hereunder; and any
\nexpenses, including attorneys’ fees reasonably incurred by Landlord in
\nseeking reduction by the taxing authority of such taxes, less tax refunds
\nobtained as a result of Landlord’s application for review.<\/p>\n
7.2 TAXES ON ALTERATIONS AND PERSONAL PROPERTY. Notwithstanding any
\nother provision hereof, Tenant shall pay the full amount of any increase in Real
\nProperty Taxes during the Term resulting from any and all alterations of any
\nkind whatsoever placed in, on or about the Premises and the Project for the
\nbenefit of, at the request of, or by Tenant. Tenant shall pay prior to
\ndelinquency all taxes assessed or levied against Tenant’s personal property in,
\non or about the Premises. When possible, Tenant shall cause its personal
\nproperty to be assessed and billed separately from the real or personal property
\nof Landlord.<\/p>\n
7.3 PRORATION. Tenant’s liability to pay increases in Real Property
\nTaxes shall be prorated on the basis of a 365-day year to account for any
\nfractional portion of a fiscal tax year included at the commencement or
\nexpiration of the Term.<\/p>\n
9<\/p>\n
8. INSURANCE<\/p>\n
8.1 INDEMNIFICATION. Tenant hereby agrees to defend, indemnify and hold
\nharmless Landlord and its agents, partners, officers and employees from and
\nagainst any and all damage, loss, liability or expense including without
\nlimitation, attorneys’ fees and legal costs suffered directly or by reason of
\nany claim, suit or judgment brought by or in favor of any person or persons for
\ndamage, loss or expense due to, but not limited to, bodily injury and property
\ndamage sustained by such person or persons which arises out of, is occasioned
\nby, or in any way attributable to the use or occupancy of the Premises, the
\nBuilding or the Project or any part thereof and adjacent areas by the Tenant,
\nthe acts or omissions of the Tenant, its agents, employees or any contractors
\nbrought onto the Premises, the Building or the Project by Tenant, except to the
\nextend caused by the negligence or willful misconduct of Landlord or its agents,
\npartners, officers or employees.<\/p>\n
8.2 TENANT’S INSURANCE. Tenant agrees to maintain in full force and
\neffect at all times during the Term, at its own expense, for the protection of
\nTenant and Landlord, as their interests may appear, policies of insurance which
\nafford the following coverages:<\/p>\n
8.2.1 LIABILITY. Comprehensive general liability insurance in
\nan amount not less that One Million and no\/100ths Dollars ($1,000,000.00)
\ncombined single limit for both bodily injury and property damage which includes
\nblanket contractual liability broad form property damage, personal injury,
\ncompleted operations, products liability, and fire legal (in an amount not less
\nthan Fifty Thousand Dollars ($50,000), naming Landlord and any mortgagee of
\nLandlord as additional insureds.<\/p>\n
8.2.2 PERSONAL PROPERTY. “All Risk” property insurance
\n(including without limitation, vandalism, malicious mischief, inflation
\nendorsement, and sprinkler leakage endorsement) on Tenant’s personal property,
\nlocated on or in the Premises, including alterations and improvements to
\nPremises installed by Tenant. Such insurance shall be in the full amount of the
\nreplacement cost, as the same may from time to time increase as a result of
\ninflation or otherwise, and shall be in a form providing coverage comparable to
\nthe coverage provided in the standard ISO All-Risk form.<\/p>\n
8.3 ALL-RISK INSURANCE. During the Term, Landlord shall maintain “All
\nRisk” property insurance (including, at Landlord’s option, inflation
\nendorsement, sprinkler leakage endorsement and earthquake and flood coverage) on
\nthe Building, excluding coverage of all Tenant’s personal property located on or
\nin the Premises, but including Tenant Improvements installed by Landlord. Such
\ninsurance shall also include insurance against loss of rents, on an “All Risk”
\nbasis, in an amount equal to the Monthly Rent and Additional Rent, and any other
\nsums payable under the Lease, for a period of at least twelve (12) months
\ncommencing on the date of loss. Such insurance shall name Landlord and any
\nmortgagee of Landlord as named insureds and include a tender’s loss payable
\nendorsement in favor of Landlord’s lender.<\/p>\n
10<\/p>\n
8.3.1 PAYMENT BY TENANT. If above insurance premiums are
\nincreased after the Commencement Date due to Tenant’s use of the Premises or any
\nother cause solely attributable to Tenant, Tenant shall pay the full amount of
\nthe increase within ten (10) days notice of such increase.<\/p>\n
8.4 CO-INSURER. If, due to Tenant’s failure to comply with the
\nforegoing provisions, Landlord is adjudged a co-insurer by its insurance
\ncarrier, then, any loss or damage Landlord sustains by reason thereof, including
\nattorneys fees and costs, shall be borne by Tenant and shall be immediately paid
\nby Tenant upon receipt of a bill therefore and evidence of such loss.<\/p>\n
8.5 INSURANCE REQUIREMENTS. All insurance carried by Tenant shall be in
\na form satisfactory to Landlord and shall be carried with companies that have a
\ngeneral policy holder’s rating of not less than “A” in the most current edition
\nof Best’s Insurance Reports, shall provide that such policies shall not be
\nsubject to material alteration or cancellation except after at least thirty (30)
\ndays prior written notice to Landlord, and shall be primary as to Landlord. The
\npolicy or policies, or duly executed certificates for them together with
\nsatisfactory evidence of payment of the premium thereon shall be deposited with
\nLandlord prior to the Commencement Date, and upon renewal of such policies, not
\nless than thirty (30) days prior to the expiration of the term of such coverage.
\nThe certificates shall expressly provide that the interest of Landlord therein
\nshall not be affected by any breach of Tenant of any policy provision for which
\nsuch certificates evidence coverage. If Tenant fails to procure and maintain the
\ninsurance required hereunder, Landlord may, upon written notice to Tenant, order
\nsuch insurance at Tenant’s expense and Tenant shall reimburse Landlord upon
\ndemand. Such reimbursement shall include all sums incurred by Landlord,
\nincluding Landlord’s reasonable attorneys’ fees and costs with interest thereon
\nat the maximum rate permitted by law.<\/p>\n
8.6 LANDLORD’S DISCLAIMER. Landlord and its agents, partners, officers
\nand employees shall not be liable for any loss or damage to persons or property
\nresulting from fire, explosion, falling plaster, glass, tile or sheetrock,
\nsteam, gas, electricity, water or rain which may leak from any part of the
\nBuilding, or from the pipes, appliances or plumbing works therein or from the
\nroof, street or subsurface or whatsoever, unless caused by or due to the
\nnegligence or willful acts of Landlord. Landlord and its agents, partners,
\nofficers and employees shall not be liable for interference with the light, air,
\nor any latent defect in the Premises. Tenant shall give prompt written notice to
\nLandlord in case of a casualty, accident or repair needed in the Premises.<\/p>\n
8.6 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waive all
\nrights of recovery against the other on account of loss and damage occasioned to
\nsuch waiving party for its property or the property of others under its control
\nto the extent that such loss or damage is insured against under any insurance
\npolicies which may be in force at the time of such loss or damage. Tenant and
\nLandlord shall, upon obtaining policies of insurance required hereunder, give
\nnotice to the insurance carrier that the foregoing<\/p>\n
11<\/p>\n
mutual waiver of subrogation is contained in this Lease and Tenant and
\nLandlord shall cause each insurance policy obtained by such party to provide
\nthat the insurance company waives all right of recovery by way of subrogation
\nagainst either Landlord or Tenant in connection with any damage covered by
\nsuch policy.<\/p>\n
9. UTILITIES AND SERVICES.<\/p>\n
Tenant shall be responsible for and shall pay promptly all charges for
\nwater, gas electricity, sewer, telephone, refuse pickup, janitorial service and
\nall other utilities, materials and services furnished directly to or used by
\nTenant in, on or about the Premises, or Project, during the Term, together with
\nany taxes thereon. These costs shall be considered “Tenant Expenses” (along with
\nthose specified in Section 10.1 below) which are separate and apart from those
\nOperating Expenses described in Section 4.2.2. Landlord shall not be liable for
\ndamages or otherwise for any failure or interruption of any utility service or
\nother service furnished to the Premises, except that resulting from the willful
\nact or negligence of Landlord. Any utilities which are not separately metered,
\n(e.g. domestic and fire service water) or services which are not separately
\nbilled to the Premises (e.g. refuse pickup), shall be charged to Tenant on an
\nequitable basis as determined by Landlord. Tenant shall pay directly, or
\nreimburse Landlord for, the costs thereof, as and when billed by vendor or
\nLandlord.<\/p>\n
With regard to refuse pickup, Tenant must store within Premises such
\nrefuse as pallets or metal drums, and arrange for their separate disposal. If
\nHazardous Materials are involved, Tenant must comply with Section 12.4. Tenant
\nmust collapse any cardboard shipping containers prior to disposal in Landlord
\nprovided dumpsters. Tenant will be billed for excessive use of refuse disposal
\nthat require oversized dumpsters or extra pickups. At all times, Tenant will not
\nbe permitted to store refuse or goods outside of Premises if unsightly or in
\nviolation of Covenants, Conditions and Restrictions (“C,C&R’s”).<\/p>\n
10. REPAIRS AND MAINTENANCE.<\/p>\n
10.1 LANDLORD’S OBLIGATIONS. Landlord shall keep in good order,
\ncondition and repair the structural parts of the Buildings, which structural
\nparts include only the Foundation, exterior walls (excluding the interior of all
\nexterior walls), roof structure and subflooring of the Premises, except for any
\ndamage thereto caused by the negligence or willful acts or omissions of Tenant
\nor of Tenant’s agents, employees or invitees, or by reason of the failure of
\nTenant to perform or comply with any terms, conditions or covenants in this
\nLease, or caused by alterations made by Tenant or by Tenant’s agents, employees
\nor contractors which shall be Tenant’s responsibility. Except for repairs
\nreadily discernable by visual inspection of exterior, it is a condition
\nprecedent to all obligations of Landlord to repair and maintain under this
\nSection 10.1.1 that Tenant shall have notified Landlord in writing of the need
\nfor such repairs or maintenance.<\/p>\n
Landlord shall also maintain, repair and replace the HVAC<\/p>\n
12<\/p>\n
system for the Premises and Tenant shall pay directly or reimburse Landlord for
\nthe costs thereof, as and when billed by vendor or landlord. If such HVAC system
\nis not separately metered to the Premises, Tenant shall be billed for its
\nproportionate share of such cost as reasonably determined by Landlord. Landlord
\nshall obtain an HVAC system preventive maintenance contract with monthly service
\nwhich shall be paid for by Tenant and which shall provide for and include
\nreplacement of filters, oiling and lubricating of machinery, parts replacement,
\nadjustment of drive belts, oil changes and other preventive maintenance. Tenant
\nshall have the benefit of all warranties available to Landlord regarding such
\nequipment.<\/p>\n
10.1.2 TENANT’S OBLIGATIONS. Tenant shall at all times and at
\nits own expense clean, keep and maintain in good, safe and sanitary order,
\ncondition and repair every part of the Premises which is not within Landlord’s
\nobligation pursuant to Section 10.1.1. Tenant’s repair rand maintenance
\nobligations shall include, without limitation, all plumbing and sewage
\nfacilities within the Premises, fixtures, interior walls, floors, ceilings,
\ninterior windows, store front, doors, entrances, plate glass, showcases,
\nskylights, all electrical facilities and equipment, including lighting fixtures,
\nlamps fans and any exhaust equipment and systems, any fire extinguisher
\nequipment within the Premises, electrical motors and all other appliances and
\nequipment of every kind and nature located in, upon or about the Premises.
\nTenant shall also be responsible for all pest control within the Premises. All
\nglass is at the sole risk of Tenant, and any broken glass shall promptly be
\nreplaced by Landlord, at Tenant’s expense, with glass of the same kind, size and
\nquality.<\/p>\n
10.2 COMMON AREA. Landlord shall maintain and repair the Common Area,
\nincluding the membrane and exterior walls of the Building, in a good, safe and
\nsanitary manner. Landlord shall at all times have exclusive control of the
\nCommon Area and may, at any reasonable time, temporarily close any part thereof,
\nexclude and restrain anyone from any part thereof, except the bona fide
\ncustomers, employees and invitees of Tenant who use such areas in accordance
\nwith the reasonable rules and regulations as Landlord may from time to time
\nestablish. In addition, Landlord may reasonably change the configuration or
\nlocation of the Common Area. In exercising any such rights, Landlord shall use
\ndiligent efforts to minimize any disruption of Tenant’s business. Landlord shall
\nhave the right to reconfigure the parking area and ingress to and egress from
\nthe parking area, and to modify the directional flow of traffic of the parking
\narea.<\/p>\n
10.3 WAIVER. Landlord and Tenant agree that the terms of this Lease
\nshall govern the respective obligations of Landlord and Tenant with respect to
\nrepairs and maintenance. Accordingly, Tenant waives the provisions of Sections
\n1941 and 1942 of the California Civil Code and any similar or successor law
\nregarding Tenant’s right to make repairs and deduct the expenses of such repairs
\nfrom the Rent due under this Lease.<\/p>\n
11. CONDITION OF PREMISES.<\/p>\n
13<\/p>\n
Tenant acknowledges that Tenant has inspected the Premises and accepts
\nthe Premises as of the Commencement Date in their “as is” condition with the
\nunderstanding and agreement that Landlord will construct only those Tenant
\nImprovements outlined on the attached Exhibit “B”, Tenant Improvement
\nSpecifications. Tenant acknowledges that neither Landlord nor its agents have
\nmade any representations or warranties as to the suitability or fitness of the
\nPremises for the conduct of Tenant’s business or for any other purpose, nor has
\nLandlord or its agents agreed to undertake any alterations or construct any
\nTenant Improvements to the Premises except as expressly provided in this Lease.
\nTo the extent Landlord is required to perform Tenant Improvements to the
\nPremises pursuant to Exhibit B, Tenant Improvement Specifications and Exhibit A,
\nPremises and Building Plan, Landlord shall use reasonable diligence to complete
\nsuch work in a timely manner. If Tenant Improvements are to be constructed by
\nLandlord; then, within ten (10) days after completion of the Tenant
\nImprovements, Tenant shall conduct a walk-through inspection of the Premises
\nwith Landlord and complete a punch-list of items needing additional work by
\nLandlord and pertaining to the Landlord’s Tenant Improvement work as outlined on
\nExhibits A and B. Other than the items specified in the punch-list, by taking
\npossession of the Premises, Tenant shall be deemed to have accepted the Premises
\nand Tenant Improvements in good, clean and completed Condition and repair,
\nSubject to all applicable laws, codes and ordinances.<\/p>\n
12. USE OF PREMISES.<\/p>\n
12.1 TENANT’S USE. Tenant shall use the Premises solely for the use
\nspecified in Section 1.15 and shall not use the Premises for any other purpose
\nwithout obtaining the prior written consent of Landlord.<\/p>\n
12.2 RULES AND REGULATIONS. Tenant shall abide by the Rules and
\nRegulations respecting use of the Premises, Building, Common Areas and Project.
\nThe provisions of the Rules and Regulations attached hereto as Exhibit “D” are
\nincorporated herein by this reference. Landlord reserves the right to amend
\nRules and Regulations as are reasonably necessary or appropriate to the
\noperation or use of the Premises, Building, Common Areas or Project. Tenant
\nshall comply with any such amendments or supplements.<\/p>\n
12.3 COMPLIANCE. Tenant shall not use the Premises or suffer or permit
\nanything to be done in or about the Project which will in any way conflict with
\nany law, statute, zoning restriction, ordinance or governmental law, rule,
\nregulation or requirement of duly constituted public authorities now in force or
\nwhich may hereafter be in force, or the requirements of the Board of Fire
\nUnderwriters or other similar body now or hereafter constituted relating to or
\naffecting the condition, use or occupancy of the Premises or the Project. Tenant
\nshall, at its cost, comply with all present and future regulations, rules, laws,
\nordinances, and requirements of all governmental authorities including any
\ntransportation systems management program adopted by the County, City or
\nAssociation, arising from governing Tenant’s use or<\/p>\n
14<\/p>\n
occupancy of or applicable to the Premises or the Project or privileges
\nappurtenant thereto. Tenant shall not commit any public or private nuisance or
\nany other act or thing which might or would disturb the quiet enjoyment of any
\nother tenant of Landlord or any occupant of nearby property. Tenant shall place
\nno loads upon the floors, walls or ceilings in excess of the maximum designed
\nload determined by Landlord or which endanger the structure, nor place any
\nharmful liquids in the drainage systems, nor dump or store waste materials or
\nrefuse or allow such to remain outside the Building proper, except in the
\nenclosed trash areas provided.<\/p>\n
12.4 HAZARDOUS MATERIAL. Tenant shall strictly comply with all
\nstatutes, laws, ordinances, rules, regulations, and precautions now or hereafter
\nmandated or advised by any federal, state, local or other governmental agency
\nwith respect to the use, generation, storage, or disposal of hazardous, toxic,
\nor radioactive materials “Hazardous Materials”) Tenant shall not cause, or
\n(collectively, allow anyone else to cause any Hazardous Materials to be used,
\ngenerated, stored, or disposed of on or about the Premises, Building, or
\nProject, without the prior written consent of Landlord, which consent may be
\nwithheld in the sole discretion of Landlord, and which consent may be revoked at
\nany time. Tenant’s indemnification of Landlord pursuant to Section 8.1 shall
\nextend to all liability, including all foreseeable and unforeseeable
\nconsequential damages, directly or indirectly arising out of the use,
\ngeneration, storage, or disposal of Hazardous Materials by Tenant or any person
\nclaiming under Tenant, including, without limitation, the cost of any required
\nor necessary repair, cleanup, or detoxification and the preparation of any
\nclosure or other required plans, whether such action is required or necessary
\nprior to or following the termination of this Lease, to the full extent that
\nsuch action is attributable, directly or indirectly, to the use, generation,
\nstorage, or disposal of Hazardous Materials by Tenant or any person claiming
\nunder Tenant. Neither the written consent by Landlord to the use, generation,
\nstorage, or disposal of Hazardous Materials nor the strict compliance by Tenant
\nwith all statutes, laws, ordinances, rules, regulations, and precautions
\npertaining to Hazardous Materials shall excuse Tenant from Tenant’s obligation
\nof indemnification pursuant to this subsection. Tenant’s obligations pursuant to
\nthe foregoing indemnity shall survive the termination of this Lease.<\/p>\n
12.5 BUSINESS PARK COVENANTS, CONDITIONS AND RESTRICTIONS. Tenant
\nacknowledges that the Premises are subject to the Business Park C,C&R’s. Tenant
\nhereby accepts the Lease, use and occupancy of the Premises subject to such
\nC,C&R’s and agrees to comply with C,C&R’s throughout the term of this Lease.<\/p>\n
13. ALTERATIONS AND LIENS.<\/p>\n
13.1 ALTERATIONS. Tenant shall not make or permit to be made any
\nalterations, additions or improvements to the Premises, Building, Project, or
\nCommon Areas, without obtaining Landlord’s prior written consent. When applying
\nfor such consent, Tenant shall, if required by Landlord, furnish complete plans
\nand specifications of such alterations, additions or improvements. Tenant may,
\nwithout Landlord’s prior approval, make improvements to<\/p>\n
15<\/p>\n
the interior of the Premises which do not affect the structure of the Building
\nand which do not exceed a cost of Five Thousand Dollars ($5,000). All
\nalterations, additions or improvements to the Premises shall be performed by
\ncontractors approved or selected by Landlord for Tenant’s account and at
\nTenant’s sole cost and expense. Within ten (10) days after receipt of a written
\nstatement from Landlord, Tenant shall reimburse Landlord for all costs arising
\nin connection with Landlord’s review of plans and specifications and supervision
\nof contractors. Landlord shall have the right to require that any contractor
\nperforming alterations, improvements or additions to the Premises shall, prior
\nto commencement of any work, provide Landlord with a performance bond and labor
\nand materials payment bond in the amount of the contract price for the work,
\nnaming Landlord or Tenant, shall at once belong to Landlord and become part of
\nthe Premises and shall remain on the Premises without compensation of any kind
\nto Tenant. Tenant shall carry insurance as required by Section 8 covering any
\nalterations, additions or improvements to the Premises made by Tenant under the
\nprovisions of this Section 13, it being understood and agreed that none of such
\nalterations, additions or improvements shall be insured by Landlord nor shall
\nLandlord be required under any provision for reconstruction to reinstall any
\nsuch alteration, additions or improvements. Movable furniture and equipment
\nwhich are removable without material damage to the Building or the Premises
\nshall remain the property of Tenant. Tenant shall be responsible for the
\nmaintenance and repair of any alterations made by it to the Premises.<\/p>\n
13.2 LIENS. Tenant shall keep the Premises, Building, Project, and
\nCommon Areas free from any liens arising out of work performed, materials
\nfurnished, or obligations incurred by Tenant and shall indemnify, hold harmless
\nand defend Landlord from any liens and encumbrances arising out of any work
\nperformed or materials furnished by or at the direction of Tenant. In the event
\nthat Tenant shall not, within twenty (20) days following imposition of any such
\nlien, cause such lien to be released of record by payment or posting of a proper
\nbond, Landlord shall have, in addition to all other remedies provided in this
\nLease and by law, the right, but no obligation, to cause the same to be released
\nby such means as it shall deem proper, including payment of the claim giving
\nrise to such lien. All such sums paid by Landlord and all expenses incurred by
\nit in connection therewith, including attorneys’ fees and administrative costs,
\nshall be payable to Landlord by Tenant on demand with interest at the maximum
\nrate permitted by law from the date such sums are paid or expenses incurred by
\nLandlord. Landlord shall have the right at all times to post and keep posted on
\nthe Premises any notices permitted or required b y law, or which Landlord shall
\ndeem proper, for the protection of Landlord and the premises, and any other
\nparty having an interest therein, from mechanics and materialmen’s liens, and
\nTenant shall give to Landlord at least ten (10) business days prior written
\nnotice of the expected date of commencement of any work relating to alterations,
\nadditions or improvements in or to the Premises.<\/p>\n
14. LANDLORD’S RIGHT TO ENTER THE PREMISES.<\/p>\n
Landlord and its authorized representatives shall have the<\/p>\n
16<\/p>\n
right to enter the Premises at all reasonable times during normal business hours
\nand at any time in case of any emergency (i) to determine whether the Premises
\nare in good condition and whether Tenant is complying with its obligations under
\nthis lease, (ii) to maintain or to make any repair or restoration to the
\nBuilding or Premises that Landlord has the right or obligation to perform,(iii)
\nto install any meters or other equipment which Landlord may have the right to
\ninstall, (iv) to protect the Premises, the Building and adjacent areas from
\ndamage or destruction, (v) to serve, post, or keep posted any notices required
\nor allowed under the provisions of this Lease, to post “for sale” signs at any
\ntime during the term, and to post “for rent” or “for lease” signs during the
\nlast four (4) months of the term or during any period while Tenant is in
\ndefault, (vi) to show the Premises to prospective brokers, lenders, agents,
\nbuyers, tenants, or persons interested in an exchange, (vii) to shore the
\nfoundations, footings, and walls of the Building and to erect scaffolding and
\nprotective barricades around and about the Building or the Premises, but not so
\nas to prevent entry into the Premises, and (viii) to do any other act or thing
\nnecessary for the safety or preservation of the Premises or the Building.
\nLandlord shall at all times have and retain a key with which to unlock all doors
\nin, upon and about the Premises, excluding Tenant’s vaults and safes, and
\nLandlord shall have the right to use any and all means which Landlord may deem
\nproper to gain entry in an emergency. Entry to the premises by Landlord by any
\nof said means shall not be construed or deemed to be a forcible or unlawful
\nentry into, or a detainer of, the Premises, or an eviction of Tenant from the
\nPremises or any portion thereof. Tenant hereby waives any claim for damages for
\nany injury or inconvenience to or interference with Tenant’s business and any
\nloss of occupancy or quiet enjoyment of the Premises by reason of Landlord’s
\nexercise of its rights of entry in accordance with this Section, and Tenant
\nshall not be entitled to an abatement or reduction of Rent or Expenses in
\nconnection therewith.<\/p>\n
15. SIGNS.<\/p>\n
Landlord shall provide space for Tenant’s identification sign (s) as
\nper the approved Tenant Sign Design Guidelines (“Guidelines”) as set forth in
\nExhibit E. Tenant shall have no right to maintain a Tenant identification sign
\nin any other location in, on or about the Premises, the Building or the Project
\nand shall not display or erect any other Tenant identification signs, display or
\nother advertising material that is visible from the exterior of the Building.
\nThe size, design, color and other physical aspects of any sign, advertisement or
\nnotice, whether temporary or permanent, shall be subject to: Guidelines,
\nArchitectural Review Committee approval in accordance with C,C&R’S, and
\nappropriate municipal or other governmental approvals. The cost of the sign and
\nits installation, maintenance and removal shall be Tenant’s sole expense. If
\nTenant fails to maintain its sign or, if Tenant fails to remove such sign upon
\ntermination of this Lease, Landlord may do so at Tenant’s expense and Tenant’s
\nreimbursement to Landlord for such amounts shall be deemed Additional Rent.<\/p>\n
16. DAMAGE OR DESTRUCTION<\/p>\n
17<\/p>\n
16.1 PARTIAL DAMAGE – INSURED. If the Premises are damaged by any
\ncasualty which is covered under the “All Risk” insurance carried by Landlord
\npursuant to Section 8.3, then Landlord shall restore such damage, provided
\ninsurance proceeds are available to pay at least ninety percent (90%) or more of
\nthe cost of restoration and provided such restoration can be completed within
\none hundred twenty (120) days after the commencement of the work in the
\nreasonable opinion of a registered architect or engineer appointed by Landlord
\nfor such determination. In such event, this Lease shall continue in full force
\nand effect, except that Tenant shall be entitled to a proportionate reduction in
\nMonthly Base Rent to be based upon the extent to which the restoration efforts
\ninterfere with Tenant’s use of the Premises, as reasonably agreed upon between
\nTenant and Landlord.<\/p>\n
16.2 PARTIAL DAMAGE – UNINSURED. If the Premises or the Building is
\ndamaged by a risk not covered by Landlord’s insurance, or the proceeds of
\navailable insurance are less than ninety percent (90%) of the cost of
\nrestoration, or the restoration cannot be completed within one hundred twenty
\n(120 ) days after the commencement of work in the reasonable opinion of the
\nregistered architect or engineer appointed by Landlord for such determination,
\nthen Landlord shall have the option either to: (1) repair or restore such
\ndamage, this Lease continuing in full force and effect, but the Monthly Base
\nRent to be proportionately abated as provided in Section 16.1 or (2) give notice
\nto Tenant at any time within thirty (30) days after such damage terminating this
\nLease as of a date to be specified in such notice which date shall be not less
\nthan thirty (30) nor more than sixty (60) days after giving such notice. If
\nnotice of termination is given, this Lease shall expire and all interest of
\nTenant in the Premises shall terminate on such date so specified in such notice
\nand the Monthly Base Rent, reduced by any proportionate reduction based upon the
\nextent, if any, to which such damage interfered with the use of the Premises by
\nTenant, shall be paid to the date of such termination.<\/p>\n
16.3 TOTAL DESTRUCTION. If the Premises or Building is damaged or
\ndestroyed to the extent that Landlord determines that the Premises or Building
\ncannot, with reasonable diligence, be fully repaired or restored by Landlord
\nwithin one hundred eighty (180) days after the date of the damage or
\ndestruction, notwithstanding the fact that the Premises have not been damaged or
\ndestroyed, the sole right of both Landlord and Tenant shall be the option to
\nterminate this Lease. Landlord’s determination with respect to the extent of
\ndamage or destruction shall be conclusive on Tenant. Landlord shall notify
\nTenant of Landlord’s determination, in writing, within thirty (30) days after
\nthe date of the damage or destruction. If Landlord determines that the Premises
\nor Building can be fully repaired or restored within the one hundred eighty
\n(180) day period, or if Landlord determines that such repair or restoration
\ncannot be made within said period but neither party elects to terminate within
\nthirty (30) days from the date of said determination, this Lease shall remain in
\nfull force and effect and Landlord shall diligently repair and restore the
\ndamage as soon as reasonably possible.<\/p>\n
16.4 LANDLORD’S OBLIGATIONS. Landlord shall not be required<\/p>\n
18<\/p>\n
to repair any injury or damage by fire or any other cause of to make any
\nrestoration of replacement to any paneling, decorations, partitions,
\nrailings, floor coverings, office fixtures which are alterations or personal
\nproperty installed in the Premises by Tenant or at the expense of Tenant.
\nExcept for abatement of Monthly Base Rent, if any, Tenant shall have no claim
\nagainst Landlord for any damage suffered by reason of any such damage,
\ndestruction, repair or restoration nor shall Tenant have the right to
\nterminate this Lease as the result of any statutory provision now or
\nhereafter in effect pertaining to the damage and destruction of the Premises,
\nexcept as expressly provided herein.<\/p>\n
16.5 DAMAGE NEAR END OF TERM. Anything herein to the contrary
\nnotwithstanding, if the Premises or the Building is destroyed or damaged during
\nthe last twelve (12) months of the Term, then Landlord may cancel and terminate
\nthis Lease as of the date of the occurrence of such damage. If Landlord does not
\nelect to so terminate this Lease the repair of such damage shall be governed by
\nthe other provisions of this Section 16.<\/p>\n
17. CONDEMNATION.<\/p>\n
If title to all of the Premises, the Building or the Project or so much
\nthereof, is taken or appropriated for any public or quasi-public use under any
\nstatute or by right of eminent domain so that reconstruction of the Premises or
\nthe Building will not, in Landlord’s and Tenant’s mutual reasonable judgment,
\nresult in the Premises being suitable for Tenant’s continued occupancy for the
\nuses and purposes permitted by this Lease, this Lease shall terminate as of the
\ndate that possession of the Premises or Building or part thereof is taken. A
\nsale by Landlord to any authority having the power of eminent domain, either
\nunder threat of condemnation or while condemnation proceedings are pending,
\nshall be deemed a taking under the power of eminent domain for all purposes of
\nthis Section. If any part of the Premises, the Building or the Project is taken
\nand the remaining part is reasonably suitable for Tenant’s continued occupancy
\nfor the purposes and uses permitted by the Lease, this Lease shall, as to the
\npart so taken, terminate as of the date that possession of such part of the
\nPremises or Building is taken. If the Premises are partially taken, the Rent and
\nother sums payable hereunder shall be reduced in the same proportion that
\nTenant’s use and occupancy of the Premises is reduced. No award for any partial
\nor entire taking shall be apportioned. Tenant assigns to Landlord its interest
\nin any award which may be made in such taking or condemnation, together with any
\nand all rights of Tenant arising in or to the same or any part thereof. Nothing
\ncontained herein shall be deemed to give Landlord any interest in or require
\nTenant to assign to Landlord any separate award made to Tenant for the taking of
\nTenant’s personal property, for the interruption of Tenant’s business, or its
\nmoving costs, or for the loss of its goodwill. No temporary taking of the
\nPremises shall terminate this Lease or give Tenant any right to any abatement of
\nRent. Any award made to Tenant, by reason of such temporary taking shall belong
\nentirely to Tenant. Each party agrees to execute and deliver to the other all<\/p>\n
19<\/p>\n
instruments that may be required to effectiveness the provisions of this
\nSection.<\/p>\n
18. ASSIGNMENT AND SUBLETTING.<\/p>\n
18.1 DEFINITIONS.<\/p>\n
18.1.1 SUBLET. Any transfer, sublet, assignment, license or
\nconcession agreement, change of ownership, hypothecation of this Lease or the
\nTenant’s interest in the Lease or in a portion of the Premises.<\/p>\n
18.1.2 SUBRENT. Any consideration of any kind received, or to
\nbe received, by Tenant from a Subtenant if such sums are related to received for
\nTenant’s interest in this Lease or in the Premises.<\/p>\n
18.1.3 SUBTENANT. The person or entity with whom a Sublet
\nagreement is proposed to be or is made.<\/p>\n
18.2 LANDLORD’S CONSENT. Tenant shall not enter into a Sublet without
\nLandlord’s prior written consent, which consent shall not be unreasonably
\nwithheld or delayed. Any attempted or purported Sublet without Landlord’s prior
\nwritten consent shall be void and confer no rights upon any third person and
\nshall be deemed a material default of this Lease. Each subtenant shall agree in
\nwriting, for the benefit of Landlord, to assume, to be bound by, and to perform
\nthat its subtenancy will be subject to the terms, conditions and covenants of
\nthis Lease to be performed by Tenant. Notwithstanding anything contained herein,
\nTenant shall not be released from personal liability for the performance of each
\nterm, condition and covenant of this Lease by reason of Landlord’s consent to a
\nsublet unless Landlord specifically grants such release in writing.<\/p>\n
18.3 INFORMATION TO BE FURNISHED. If Tenant desires at any time to
\ntransfer this Lease (which transfer shall in no event be for less than its
\nentire interest in this Lease) or to sublet the Premises or any portion thereof,
\nTenant shall submit to Landlord at least sixty (60) thirty (30) days prior to
\nthe proposed effective date of the transfer or sublease (“Proposed Effective
\nDate”), in writing: (1) a notice of intent to transfer or sublease, setting
\nforth the Proposed Effective Date, which shall be no less than sixty (60) nor
\nmore than ninety (90) days after the sending of such notice; (2) the name of the
\nproposed subtenant or transferee; (3) the nature of the proposed subtenant’s or
\ntransferee’s business to be carried on in the Premises; (4) the terms and
\nprovisions of the proposed sublease or transfer; (5) such certified financial
\ninformation as Landlord may reasonably request concerning the proposed subtenant
\nor transferee, including recent financial statements and bank references; and
\n(6) evidence satisfactory to Landlord that the proposed subtenant or transferee
\nwill immediately occupy and thereafter use the affected portion of the Premises
\nfor the entire term of the sublease or transfer agreement.<\/p>\n
18.4 LANDLORD’S ALTERNATIVES. At any time within thirty (30) days
\nafter Landlord’s receipt of the information specified in<\/p>\n
20<\/p>\n
Section 18.3, Landlord may, by written notice to Tenant, elect upon any terms
\ndesired by Landlord, (1) to consent to the Sublet by Tenant; or (2) to refuse
\nits consent to the Sublet. If Landlord consents to the Sublet, Tenant may
\nthereafter enter into a valid Sublet of the Premises or portion thereof, upon
\nthe terms and conditions and with the proposed Subtenant set forth in the
\ninformation furnished by Tenant to Landlord pursuant to Section 18.3, subject,
\nhowever, to the condition that Fifty Percent (50%) of any excess of the Subrent
\nover the Rent and Additional Rent required to be paid by Tenant hereunder shall
\nbe paid to Landlord as and with the Monthly Base Rent.<\/p>\n
18.5 REQUIRED SUBLEASE PROVISIONS. Any and all transfer or sublease
\nagreements shall (1) contain such terms as are described under this Section or
\nas otherwise agreed by Landlord; (2) prohibit further assignments, transfers, or
\nsubleases; (3) impose the same obligations and conditions on the transferee or
\nsublessee as are imposed on Tenant by this Lease (except as to Rent and Term or
\nas otherwise agreed by Landlord); (4) be expressly subject and subordinate to
\neach and every provision of this Lease; (5) have a term that expires on or
\nbefore the expiration of the Term of this Lease; and (6) provide that Tenant
\nand\/or transferee or sublessee shall pay Landlord the amount of any additional
\ncosts or expenses incurred by Landlord for repairs, maintenance or otherwise as
\na result of any change in the nature of occupancy caused by the transfer or
\nsublease.<\/p>\n
18.6 FEES FOR REVIEW. Tenant shall pay to Landlord or Landlord’s
\ndesignee, together with the notice described in Section 18.3, a non-refundable
\nfee as reimbursement for expenses incurred by Landlord in connection with
\nreviewing each such transaction (including any administrative expenses for
\nLandlord’s property manager), in the amount of Five Hundred Dollars ($500.00).
\nIn addition to such reimbursement, if Landlord retains the services of an
\nattorney to review the transaction, Tenant shall pay to Landlord all attorneys’
\nfees incurred by Landlord in connection therewith, up to a maximum amount of
\nFifteen Hundred and no\/100 Dollars ($1,500.00). Tenant shall pay such attorneys’
\nfees to Landlord within thirty (30) days after written request therefor.<\/p>\n
18.7 PRORATION. If a portion of the Premises is Sublet, the pro rata
\nshare of the Rent attributable to such partial area of the Premises shall be
\ndetermined by Landlord by dividing the Rent payable by Tenant hereunder by the
\ntotal square footage of the Premises and multiplying the resulting quotient (the
\nper square foot rent) by the number of square feet of the Premises which are
\nsublet.<\/p>\n
18.8 EXECUTED COUNTERPART. No Sublet shall be valid nor shall any
\nSubtenant take possession of the Premises until an executed counterpart of the
\nSublet agreement has been delivered to and acknowledged by Landlord.<\/p>\n
21<\/p>\n
18.9 EXEMPT SUBLETS. Notwithstanding the above, Landlord’s prior
\nwritten consent shall not be required for a sublet an assignment of this Lease
\nto a subsidiary, affiliate, joint venture or parent corporation of Tenant, or a
\ncorporation into which Tenant merges or consolidates, if Tenant gives Landlord
\nprior written notice of the name of any such assignee, and if the assignee
\nassumes, in writing, all of Tenant’s obligations under the Lease. An assignment
\nor other transfer of this Lease to a purchaser of all or substantially all of
\nthe assets of Tenant shall be deemed a Sublet requiring Landlord’s prior written
\nconsent.<\/p>\n
19. DEFAULT.<\/p>\n
19.1 TENANT’S DEFAULT. A default under this Lease by Tenant shall exist
\nif any of the following events shall occur:<\/p>\n
19.1.1 If Tenant fails to pay Rent or any other sum required
\nto be paid hereunder within five (5) days of when due; or<\/p>\n
19.1.2 The failure by Tenant to observe or perform any of
\nthe terms, covenants, conditions or provisions of the Lease to be observed or
\nperformed by Tenant, if such failure is not cured within ten (10) days after
\nwritten notice thereof from Landlord to Tenant, provided, however, that if
\nthe nature of Tenant’s default is such that it cannot be cured solely by
\npayment of money and that more than then (10) days are reasonably required
\nfor its cure, then Tenant shall not be deemed to be in default if Tenant
\ncommences such cure within the ten (10) day period and thereafter diligently
\nprosecutes such cure to completion, and provided, further, that violations by
\nTenant of the Rules and Regulations described in Exhibit “D” shall be cured
\nby Tenant within forty-eight (48) hours after written notice thereof from
\nLandlord, failing which Landlord may (but need not) cure same at Tenant’s
\nsole cost; or<\/p>\n
19.1.3 If Tenant assigns its assets for the benefit of its
\ncreditors; or<\/p>\n
19.1.4 If the sequestration or attachment of or execution on
\nany material part of Tenant’s personal property essential to the conduct of
\nTenant’s business occurs, and Tenant fails to obtain a return or release of such
\npersonal property within thirty (30) days thereafter, or prior to sale pursuant
\nto such sequestration, attachment or levy, whichever is earlier; or<\/p>\n
19.1.5 If a court shall make or enter any decree or order
\nother than under the bankruptcy laws of the United States adjudging Tenant to be
\ninsolvent; or approving as property filed a petition seeking reorganization of
\nTenant; or directing the winding up or liquidation of Tenant and such decree or
\norder shall have continued for a period of thirty (30) days; or<\/p>\n
19.1.6 Chronic delinquency by Tenant in the payment of Rent or
\nany other periodic payments required to be paid by Tenant under this lease shall
\nconstitute a separate default. “Chronic delinquency” shall mean the failure by
\nTenant to pay the Rent or any other periodic payments required to be paid by
\nTenant under this Lease when due for any three (3) months (consecutive or<\/p>\n
22<\/p>\n
nonconsecutive) in any twelve (12) month period. In the event of a chronic
\ndelinquency, Landlord shall have the right to require Tenant to pay Rent
\nquarterly, in advance.<\/p>\n
19.2 LANDLORD’S REMEDIES. Upon a default, Landlord shall have the
\nfollowing remedies, in addition to all other rights and remedies provided by law
\nor otherwise provided in this Lease to which Landlord may resort cumulatively or
\nin the alternative:<\/p>\n
19.2.1 Landlord may continue this Lease in full force and
\neffect, and this Lease shall continue in full force and effect as long as
\nLandlord does not terminate this Lease and Landlord shall have the right to
\ncollect Rent when due.<\/p>\n
19.2.2 Landlord may terminate Tenant’s right to possession
\nof the Premises at any time by giving written notice to that effect, and
\nrelet the Premises or any part thereof. Tenant shall be liable immediately to
\nLandlord for all costs Landlord incurs in reletting the Premises or any part
\nthereof, including, without limitation, brokerage commissions, expenses of
\ncleaning and redecorating the Premises required by the reletting and like
\ncosts. Reletting may be for a period shorter or longer than the remaining
\nTerm of this Lease. No act by Landlord other than giving written notice to
\nTenant shall terminate this Lease. Maintenance efforts to relet the Premises
\nor the appointment of a receiver on Landlord’s initiative to protect
\nLandlord’s interest under this Lease shall not constitute a termination of
\nTenant’s right to possession. On termination, Landlord has the right to
\nremove all Tenant’s personal property and store same at Tenant’s cost and to
\nrecover from Tenant as damages:<\/p>\n
(a) The worth at the time of award of unpaid Rent
\nand other sums due and payable which had been earned at the time of
\ntermination; plus<\/p>\n
(b) The worth at the time of award of the amount by
\nwhich the unpaid Rent and other sums due and payable which would have been
\npayable after termination until the time of award exceeds the amount of such
\nRent loss that Tenant proves could have been reasonably avoided; plus<\/p>\n
(c) The worth at the time of award of the amount by
\nwhich the unpaid Rent and other sums due and payable for the balance of the Term
\nafter the time of award exceeds the amount of such Rent loss that Tenant proves
\ncould be reasonably avoided; plus<\/p>\n
(d) Any other amount necessary which is to compensate
\nLandlord for all the detriment proximately caused by Tenant’s failure to perform
\nTenant’s obligations under this Lease or which, in the ordinary course of
\nthings, would be likely to result therefrom, including, without limitation, any
\ncosts or expenses incurred by Landlord (1) in retaking possession of the
\nPremises; (2) in maintaining, repairing, preserving, restoring, replacing,
\ncleaning, altering or rehabilitating the Premises or any portion thereof,
\nincluding such acts for reletting to a new tenant or tenants; (3) for leasing
\ncommissions; or (4) for any other costs necessary or appropriate to relet the
\nPremises; plus<\/p>\n
23<\/p>\n
(e) At Landlord’s election, such other amounts in
\naddition to or in lieu of the foregoing as may be permitted from time to time by
\nthe laws of the State of California.<\/p>\n
The “worth at the time of award” of the amounts referred to in Sections
\n19.2.2 (a) and 19.2.2 (b) is computed by allowing interest at the maximum rate
\npermitted by law on the unpaid rent and other sums due and payable from the
\ntermination date through the date of award. The “worth at the time of award” of
\nthe amount referred to in Section 19.2.2 (c) is computed by discounting such
\namount at the discount rate of the Federal Reserve Bank of San Francisco at the
\ntime of award.<\/p>\n
19.2.3 Landlord may, with or without terminating this Lease,
\nre-enter the Premises and remove all persons and property from the Premises;
\nsuch property may be removed and stored in a public warehouse or elsewhere at
\nthe cost of and for the account of Tenant. No re-entry or taking possession of
\nthe Premises by Landlord pursuant to this section shall be construed as an
\nelection to terminate this Lease unless a written notice os such intention is
\ngiven to Tenant.<\/p>\n
19.2.4 If Tenant fails to make any payment or perform any
\nother act on its part to be made or performed under this Lease, Landlord may,
\nbut shall not be obligated to and without waiving or releasing Tenant from any
\nobligation of Tenant under this Lease, make such payment or perform such other
\nact to the extent Landlord may deem desirable, and in connection therewith, pay
\nexpenses and employ counsel. All sums so paid by Landlord, and all penalties,
\ninterest and costs in connection therewith, shall be due and payable by Tenant
\non the next day after any such payment by Landlord, together with interest
\nthereon at the maximum rate permitted by law from such date to the date of
\npayment by Tenant to Landlord, plus collection costs and attorneys’ fees.
\nLandlord shall have the same rights and remedies for the nonpayment thereof as
\nin the case of default in the payment of Rent.<\/p>\n
19.3 LANDLORD’S DEFAULT. Landlord shall not be deemed to be in default
\nin the performance of any obligation under this Lease unless and until it has
\nfailed to perform such obligation within thirty (30) days after receipt of
\nwritten notice by Tenant to Landlord specifying such failure; provided, however,
\nthat if the nature of Landlord’s default is such that more than thirty (30) days
\nare required for its cure, then Landlord shall not be deemed to be in default if
\nit commences such cure within the thirty (30) day period and thereafter
\ndiligently prosecutes such cure to completion.<\/p>\n
19.4 TENANT’S REMEDY. If, as a consequence of a default by Landlord
\nunder this Lease, Tenant recovers a money judgment against Landlord, such
\njudgment shall be satisfied only out the of the proceeds of sale receiving upon
\nexecution of such judgment and levied thereon against the right, title and
\ninterest of Landlord in the Building or Project and out of Rent or other income
\nfrom the Building or Project receivable by Landlord or out of consideration
\nreceived by Landlord from the sale or other disposition of all or<\/p>\n
24<\/p>\n
any part of Landlord’s right, title or interest in the Building, and neither
\nLandlord nor its agents, partners, officers or employees shall be liable for any
\ndeficiency.<\/p>\n
19.5 MORTGAGEE PROTECTION. If Landlord defaults under this Lease,
\nTenant will notify any beneficiary of a deed of trust or mortgagee of a mortgage
\ncovering the Building or the Project, and offer such beneficiary or mortgagee a
\nreasonable opportunity to cure the default, including time to obtain possession
\nof the Building or the Project by power of sale or a judicial foreclosure, if
\nsuch should prove necessary to effect a cure.<\/p>\n
20. SUBORDINATION, ESTOPPEL AND ATTORNMENT.<\/p>\n
20.1 SUBORDINATION. This Lease is subject and subordinate to ground and
\nunderlying leases, mortgages and deeds of trust (collectively “Encumbrances”)
\nwhich may now affect the Premises, the Building, or the Project, and to all
\nrenewals, modifications, consolidations, replacements and extensions thereof;
\nprovided, however, if the holder or holders (“Holder”) of any such Encumbrances
\nshall require this Lease to be prior and superior thereto, within ten (10) days
\nafter written request from Landlord, Tenant shall execute, have acknowledged and
\ndeliver any and all documents or instruments, in the from presented to Tenant,
\nwhich Landlord or Holder deems necessary and desirable for such purposes.
\nLandlord shall have the right to cause this Lease to be and become and remain
\nsubject and subordinate to any and all Encumbrances which are now or may
\nhereafter be executed covering the Premises, the Building, or the Project, or
\nany renewals, modifications, consolidations, replacements or extensions thereof,
\nfor the full amount of all advances made or to be made thereunder, together with
\ninterest thereon and subject to all the terms and provisions thereof; provided
\nonly, that in the event of termination of any such lease or upon the foreclosure
\nof any such mortgage or deed of trust, Holder agrees to recognize Tenant’s
\nrights under this Lease as long as Tenant is not then in default and continues
\nto pay the Rent and observe and perform all the provisions of this Lease. Within
\nten (10) days after Landlord’s written request, Tenant shall execute any and all
\nthe documents required by Landlord or the Holder to make this Lease subordinate
\nto any lien of the Encumbrances. If Tenant fails to do so, it shall be deemed
\nthat this Lease is so subordinated.<\/p>\n
20.2 ESTOPPEL CERTIFICATES. Tenant shall execute and deliver to
\nLandlord any documents, including estoppel certificates in the form prepared by
\nLandlord (1) certifying that this Lease is unmodified and in full force and
\neffect or, if modified, stating the nature of such modification and certifying
\nthat this Lease, as so modified, is in full force and effect, and the date to
\nwhich the Rent and other charges are paid in advance, if any; and (2)
\nacknowledging that there are not, to Tenant’s knowledge, any uncured defaults on
\nthe part of Landlord, or, if there are uncured defaults on the part of the
\nLandlord, stating the nature of such uncured defaults; and (3) evidencing the
\nstatus of the Lease as may be required either by a lender making a loan to
\nLandlord to be secured by deed of trust or mortgage covering the Building or the
\nProject or a purchaser of the Building or the Project from<\/p>\n
25<\/p>\n
Landlord. Tenant’s failure to deliver an estoppel certificate within seven
\n(7) days after delivery of Landlord’s written request therefor shall be
\nconclusive upon Tenant (1) that this Lease is in full force and effect,
\nwithout modification except as may be represented by Landlord; (2) that there
\nare no uncured defaults in Landlord’s performance; and (3) that no Rent has
\nbeen paid in advance.<\/p>\n
20.3 ATTORNMENT. Tenant shall, if requested, attorn to the purchaser of
\nthe Building or Project, and recognize such purchases as Landlord under this
\nLease in the event of (1) foreclosure proceeding or grant of deed in lieu of
\nforeclosure; (2) the exercise of the power of sale under any mortgage or deed of
\ntrust, made by Landlord or Landlord’s successors or assigns, which encumbers the
\nPremises, or any part thereof; (3) the termination of a ground lease; or (4) a
\nsale of the Building or Project.<\/p>\n
21. NOTICES.<\/p>\n
Any notice or demand required or desired to be given under this Lease
\nshall be in writing and shall be personally served, or in lieu of personal
\nservice, may be given by mail. If given by mail, such notice shall be deemed to
\nhave been given seventy-two (72) hours after deposit in the United States mail,
\nregistered or certified, postage prepaid, and addressed to the party to be
\nserved. At the date of execution of this Lease, the addresses of Landlord and
\nTenant are as set forth in Section 1.16 of this Lease. After the Commencement
\nDate, the address of Tenant shall be the address of the Premises. Either party
\nmay change its address by giving written notice of same in accordance with this
\nSection.<\/p>\n
22. SURRENDER OF THE PREMISES.<\/p>\n
On expiration or termination of this Lease, Tenant shall surrender to
\nLandlord the Premises and all Tenant’s improvements and alterations in good
\ncondition and repair (ordinary wear and tear excepted), and shall remove all of
\nits personal property including any signs, notices and displays. Tenant agrees
\nthat is shall, upon Landlord’s written request made prior to or within thirty
\n(30) days following the expiration or termination of this Lease, at Tenant’s
\nsole cost and expense promptly remove any alterations, additions, fixtures or
\nimprovements designated by Landlord to be removed and repair any damage to the
\nPremises resulting from such removal. Landlord may, in connection with any such
\nremoval which might in Landlord’s judgment involve damage to the Premises,
\nrequire that such removal be performed by a bonded contractor or other person
\nfrom whom a bond satisfactory to Landlord has been furnished covering the cost
\nof repairing the anticipated damage. Landlord may retain or dispose of, in any
\nmanner, any such improvements or alterations or Tenant’s personal property that
\nTenant does not remove from the Premises on expiration or termination of the
\nTerm as allowed or required by this Lease. Title to any such improvements or
\nalterations or Tenant’s personal property that Landlord so elects to retain, or
\ndispose of, shall vest in Landlord. Tenant waives all claims against Landlord
\nfor any damage or loss to Tenant arising out of Landlord’s retention or
\ndispositions of any such improvements,<\/p>\n
26<\/p>\n
removing and disposing of any such improvements, alterations or Tenant’s
\npersonal property. If Tenant fails to surrender the Premises to Landlord on
\nexpiration or termination of the Lease as required by this Section, Tenant shall
\nindemnify, defend and hold Landlord harmless from all damages, loss, cost and
\nexpense (including attorneys’ fees) arising out of or in connection with
\nTenant’s failure to do so, including, without limitation, any claims made by a
\nsucceeding tenant resulting from Tenant’s failure to surrender the Premises.<\/p>\n
23. COST OF SUIT.<\/p>\n
If either party brings action for relief against the other, declaratory
\nor otherwise, arising out of this Lease, including any suit by Landlord for the
\nrecovery of Rent or possession of the Premises, the losing party shall pay the
\nsuccessful party its costs incurred in connection with and in preparation for
\nsaid action, including its attorneys’ fees (which costs shall be deemed to have
\naccrued on the commencement of such action and shall be paid whether or not such
\naction is prosecuted to judgment). If Landlord, without fault on Landlord’s
\npart, is made a party to any action instituted by Tenant or any third party
\nagainst Tenant, or by or against any person holding under or using the Premises
\nby License of Tenant, or for the foreclosure of any lien for labor or material
\nfurnished to or for Tenant or of any such other person, or otherwise arising out
\nof or resulting from any action or omission of Tenant or of any such other
\nperson, Tenant shall indemnify, defend and hold Landlord harmless from any
\njudgment rendered in connection therewith and all costs and expenses (including
\nattorneys’ fees) incurred by Landlord in connection with such action.<\/p>\n
24. TRANSFER OF THE BUILDING BY LANDLORD.<\/p>\n
In the event of any conveyance of the Building or the Project and
\nassignment by Landlord of this Lease, Landlord shall be entirely released from
\nall liability under any and all of its covenants and obligations contained in
\nfrom this Lease occurring after the date of such conveyance and assignment
\nprovided such transferee assumes Landlord’s obligations under this Lease.<\/p>\n
25. AIRPORT NOISE.<\/p>\n
Tenant acknowledges that Landlord has informed Tenant that noise
\nproduced by aircraft using Metropolitan Oakland International Airport
\n(“Airport”) which adjoins the Business Park may be heard at the Building of
\nwhich the Premises form a part. Tenant further acknowledges that Landlord has
\ninformed Tenant that the real property on which the building and the Premises
\nare located is subject to a recorded Noise Easement and Release whereby the
\nowners of the Airport are released from any claims or law suits for damages by
\nany persons using the property, including Tenant, with respect to Airport
\noperations, including aircraft related noise. Tenant shall indemnify and hold
\nLandlord harmless from any and all claims, damages, causes of action or
\nliability, including legal fees and costs, arising from or in any way related to
\naircraft-related noise perceived by Tenant, its employees, agents or<\/p>\n
27<\/p>\n
invitees at the Premises or in any way connected with the Premises.<\/p>\n
26. GENERAL.<\/p>\n
26.1 CAPTIONS. With the exception of Section 1, the captions and
\nheadings used in this Lease are for the purpose of convenience only and shall
\nnot be construed to limit or extend the meaning of any part of this Lease.<\/p>\n
26.2 EXECUTED COPY. Any fully executed copy of this Lease shall be
\ndeemed an original for all purposes.<\/p>\n
26.3 TIME. Time is of the essence for the performance of each term,
\ncondition and covenant of this Lease.<\/p>\n
26.4 SEPARABILITY. If one or more of the provisions contained herein,
\nexcept for the payment of Rent, is for any reason held to be invalid, illegal or
\nunenforceable in any respect, such invalidity, illegality, or unenforceability
\nshall not effect any other provision of this Lease, but this Lease shall be
\nconstrued as if such invalid, illegal or unenforceable provision had not been
\ncontained herein.<\/p>\n
26.5 CHOICE OF LAW. This Lease shall be construed and enforced in
\naccordance with the laws of the State of California. The language in 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 Landlord or Tenant.<\/p>\n
26.6 GENDER; SINGULAR, PLURAL. When the context of this Lease requires,
\nthe neuter gender includes the masculine, the feminine, a partnership or
\ncorporation or joint venture, and the singular includes the plural.<\/p>\n
26.7 BINDING EFFECT. The covenants and agreement contained in this
\nLease shall be binding on the parties hereto and on their respective successors
\nand assigns to the extent this Lease is assignable.<\/p>\n
26.8 WAIVER. The waiver by Landlord of any breach of any term,
\ncondition or covenant of this Lease shall not be deemed to be a waiver os such
\nprovision or any subsequent breach of the same or any other term, condition or
\ncovenant of this Lease. The subsequent acceptance of Rent hereunder by Landlord
\nshall not be deemed to be a waiver of any preceding breach at the time of
\nacceptance of such payment. No covenant, term or condition of this Lease shall
\nbe deemed to have been waived by Landlord unless such waiver is in writing
\nsigned by Landlord.<\/p>\n
26.9 ENTIRE AGREEMENT. This Lease is the entire agreement between the
\nparties, and there are no agreements or representations between the parties
\nexcept as expressed herein. Except as otherwise provided herein, no subsequent
\nchange or addition to this Lease shall be binding unless in writing and signed
\nby the parties hereto.<\/p>\n
26.10 AUTHORITY. If Tenant is a corporation or a partnership,<\/p>\n
28<\/p>\n
each individual executing this Lease on behalf of said corporation or
\npartnership, as the case may be, represents and warrants that he is duly
\nauthorized to execute and deliver this Lease on behalf of said entity in
\naccordance with its corporate bylaws, statement of partnership or certificate of
\nlimited partnership, as the case may be, and that this Lease is binding upon
\nsaid entity in accordance with its terms. Landlord, at its option, may require a
\ncopy of such written authorization to enter into this Lease. The failure of
\nTenant to deliver the same to Landlord within seven (7) days of Landlord’s
\nrequest therefore shall be deemed a default under this Lease.<\/p>\n
26.11 RECORDING. Neither party shall record this Lease nor a short form
\nmemorandum thereof.<\/p>\n
26.12 FORCE MAJEURE. Any construction, repairs or rebuilding of any
\nbuilding, improvement or other structure herein shall be excused or postponed
\nfor the duration of delay occasioned by the other party (including, without
\nlimitations, delays caused by change orders requested or required by Tenant and
\ndelays in Tenant’s approval of Plans and Specifications), strikes, threats of
\nstrikes, blackouts, war, threats of war, acts of God, violent action of the
\nelements, fire, act or regulations of or obtaining of any necessary permits or
\napprovals from any governmental authority, impossibility of obtaining materials
\nor energy, earthquakes, or other matters beyond the reasonable control of the
\nobligated party.<\/p>\n
26.13 SUBSTITUTED PREMISES. Upon providing Tenant sixty (60) days’
\nnotice in writing, Landlord reserves the right during the term of the Lease, at
\nits sole cost, to substitute for the Premises a comparable area within the
\nBuilding or Project. The substituted area shall have substantially equivalent
\narea, location and interior improvements as the Premises and thereupon such
\nother area shall be deemed to be the premises governed by this Lease. If the
\nsubstituted area is smaller than the Premises, the Monthly Base Rent, Security
\nDeposit and Tenant’s Percentage specified in this Lease shall be adjusted
\nproportionately.<\/p>\n
26.14 HOLDING OVER. If Tenant remains in possession of all or any part
\nof the Premises after the expiration of the Term, with or without the express or
\nimplied consent of Landlord, such tenancy shall be from month-to-month only and
\nnot a renewal hereof or any extension for any further term, and in such case,
\nMonthly Base Rent shall be payable at a rate equal to one hundred fifty percent
\n(150%) of the Monthly Base Rent in effect at the time of expiration, and such
\nmonth-to-month tenancy shall be subject to every other term, covenant and
\nagreement of this Lease.<\/p>\n
26.15 QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing
\nthe terms, conditions and covenants of this Lease, shall have quiet and peaceful
\npossession of the Premises as against any person claiming the same by, through
\nor under Landlord.<\/p>\n
26.16 LIMITATION OF RECOURSE. Each of the obligations of any Partner of
\nLandlord under this Lease and the agreements related thereto is hereby expressly
\nlimited so that in the event any action is brought to enforce any obligations
\nreflected herein, any<\/p>\n
29<\/p>\n
judgment or decree so obtained shall be enforceable only against the assets of
\nthe Partnership, and the interest of each partner in such Partnership, and no
\nwrit of execution shall be levied against any other assets of any Partner of
\nLandlord.<\/p>\n
27. ACCEPTANCE.<\/p>\n
Delivery of this Lease, duly executed by Tenant, constitutes an offer
\nto lease the Premises, and under no circumstances shall such delivery be deemed
\nto create an option or reservation to lease the Premises for the benefit of
\nTenant. This Lease shall only become effective and binding upon approval by
\nHolder, execution hereof by Landlord and delivery of a signed copy to Tenant.<\/p>\n
28. LANDLORD’S CONDITION.<\/p>\n
Notwithstanding any other provision hereof, this Lease and Landlord’s
\nobligation to lease the Premises to Tenant shall be subject to the condition
\nprecedent that Landlord’s lender shall approve this Lease within ten (10)
\nfifteen (15) days from the date of its full execution. If Landlord’s lender
\nfails to so approve this Lease, Landlord shall have the right, upon notice to
\nTenant to terminate this Lease, and, if so terminated, the parties’ rights and
\nobligations hereunder shall be discharged.<\/p>\n
29. BROKERS.<\/p>\n
Landlord and Tenant warrant and represent, each to the other, that they
\nhave had no dealings with any real estate broker or agent in connection with the
\nnegotiation of this Lease except for the broker(s) named in Section 1.17 and
\nthat they know of no other real estate broker or agent who is or might be
\nentitled to a commission in connection with this Lease. Tenant agrees to defend,
\nindemnify and hold harmless Landlord and its agents, partners, officers and
\nemployees from and against any and all liabilities or expenses, including
\nattorneys’ fees and costs, arising out of or in connection with claims made by
\nany other broker or individual for commissions or fees resulting from Tenant’s
\nexecution of this Lease.<\/p>\n
30. OPTION TO EXTEND<\/p>\n
Landlord grants Tenant one option to extend the Term of the Lease, for
\none five-year period (the “Extension Term”), on all the provisions contained in
\nthe Lease, subject to the following terms, conditions and exceptions:<\/p>\n
Tenant shall notify Landlord in writing of Tenant’s exercise of said option at
\nleast twelve (12) months, prior to the expiration of the Term then in effect.<\/p>\n
Tenant shall pay to Landlord during the Extension Term Monthly Base Rent equal
\nto the Fair Market Rental Value (as that term is hereinafter defined) of the
\nPremises as of the commencement of the Extension Term. The term Fair Market
\nRental Value shall mean the prevailing market rental rate (determined by actual
\ntransaction for new leases) for properties similar to the Premises located
\nwithin<\/p>\n
30<\/p>\n
the Harbor Bay Business and Research Park. For the purposes hereof, the fair
\nmarket rental value of the premises shall be the monthly rental rate per square
\nfoot of rentable area then prevailing for comparable office tech space including
\nstandard office improvements in the Harbor Bay project site, that is then being
\noffered for lease to prospective tenants, multiplied by the rentable area of the
\npremises. If Tenant in good faith disputes Landlord’s determination of fair
\nmarket rental value, Tenant shall so notify Landlord and the parties shall
\nnegotiate in good faith to resolve the dispute. If such dispute is not resolved
\nby negotiations between the parties within 30 days, then fair market rental
\nvalue shall be determined by appraisal. Tenant shall pay monthly Base Rent when
\ndue based upon Landlord’s determination of fair market rental value, subject to
\nretroactive adjustment between the parties if the determination by appraisal is
\ndifferent from Landlord’s determination.<\/p>\n
When fair market rental value is to be determined by appraisal, within ten (10)
\ndays after the expiration of the 30-day negotiation period, Landlord and Tenant
\nshall each appoint as an appraiser, a real estate appraiser or broker with at
\nleast five (5) years of experience in appraising commercial real property in
\nAlameda County, and give notice of such appointment to the other. If either
\nLandlord or Tenant shall fail to appoint an appraiser within ten (10) days after
\nreceiving notice of the identity of the other party’s appointed appraiser, then
\nthe single appraiser appointed shall be the sole appraiser and determine the
\nfair market value of the premises. In the event each party appoints an
\nappraiser, such appraisers shall, within thirty (30) days after the appointment
\nof the last of them to be appointed, complete their determination of fair market
\nrental value and furnish the same to Landlord and Tenant. If the low appraisal
\nvaries from the higher appraisal by 5% or less, the fair market rental value
\nshall be the average of the two valuations. If the low appraisal varies from the
\nhigh appraisal by more than 5%, the two appraisers shall, within ten (10) days
\nafter submission of the last appraisal report, appoint a third appraiser who
\nshall meet the qualifications set forth in this paragraph. If the two appraisers
\nshall be unable to agree on the selection of a third appraiser in a timely
\nmanner then either Landlord or Tenant may request such appointment by the
\npresiding judge of the Superior Court of Alameda County. The third appraiser,
\nhowever selected, shall be a person who has not previously acted in any capacity
\nfor or against either party. Such third appraiser shall, within 30 days after
\nappointment, make a determination of fair market rental value and submit an
\nappraisal report to Landlord and Tenant. The fair market rental value of the
\npremises shall be as determined by the third appraiser, unless it is less than
\nthe valuation set forth in the lower appraisal previously obtained, in which
\ncase the valuation set forth in the lower prior appraisal shall be controlling,
\nor unless it is greater than the valuation set forth in the higher appraisal
\npreviously obtained, in which case the valuation set forth in the higher prior
\nappraisal shall be controlling. All fees and costs incurred in connection with
\nthe determination of fair market rental value by appraisal shall be paid
\none-half by Landlord and one-half by Tenant. Prior to the commencement of an
\noption period, Tenant and Landlord shall execute an amendment to this Leasing
\nsetting forth<\/p>\n
31<\/p>\n
the option period and revised monthly Base Rent amounts.<\/p>\n
31. ADA CODE COMPLIANCE<\/p>\n
The Premises, to the best of Landlord’s knowledge, is substantially in
\ncompliance with the Americans with Disabilities Act. If, following lease
\ncommencement, any Tenant alterations of Tenant’s specific use of the Premises
\ntrigger additional code compliance, then Tenant shall be solely responsible for
\nany costs associated with same (assuming Tenant proceeds with its proposed
\nalterations). If, during Tenant’s Lease Term, a new law or ordinance is
\nestablished, in regard to the Americans with Disabilities Act, requiring
\ncompliance, and not triggered by Tenant’s alterations or specific use, then any
\ncosts to comply with said new law or ordinance shall be borne by Landlord.
\nLandlord reserves the right to make alterations only as required by law, within
\nthe time limits imposed by said new law or ordinance.<\/p>\n
32. ASCEND TERMINATION<\/p>\n
Landlord and Tenant understand and agree that this Lease and the Ascend
\nTermination Agreement attached hereto as Exhibit G must be signed by both
\nparties (UT Starcom and Ascend Communications) simultaneously to be valid and
\naccepted by Landlord for execution.<\/p>\n
33. ITEMS EXCLUDED FROM OPERATING EXPENSES AND TAXES<\/p>\n
1. Leasing commissions, attorneys’ fees, costs, disbursements and other expenses
\nincurred in connection with negotiations or disputes with Tenants or leasing,
\nrenovating or improving space for Tenants or other occupant or prospective
\nTenants or the occupants of the Building.<\/p>\n
2. Costs, including permits, licenses and inspection fees incurred in renovating
\nor otherwise improving or decorating, painting or redecorating vacant space or
\nspace for Tenants or other occupants.<\/p>\n
3. Landlord’s cost of any service sold to Tenant’s or other occupants for which
\nLandlord is entitled to be reimbursed as an additional charge or rental over and
\nabove the basic rent and escalations payable under the Lease with that Tenant or
\nother occupant.<\/p>\n
4. Costs incurred by Landlord for alterations or additions that are considered
\ncapital improvements and replacements under generally accepted accounting
\nprinciples, capital repairs, capital equipment and capital tools, except those
\ncapital items required by a governmental authority or items that result in a
\nreduction of the Operating Expenses.<\/p>\n
5. Any depreciation and amortization on the building.<\/p>\n
6. Costs incurred due to violation by Landlord of any of the terms and
\nconditions of this Lease or any other Lease relating to the Building.<\/p>\n
32<\/p>\n
7. Overhead and profit increments paid to subsidiaries affiliates of Landlord
\nfor management or other services on or to the building or for supplies or other
\nmaterials to the extent that the cost of the services, supplies or materials
\nexceed the cost that would have been paid had the services, supplies or
\nmaterials been provided by unaffiliated parties on a competitive basis.<\/p>\n
8. Interest on debt or amortization payments or increases in interest or debt on
\nany mortgages and rental under any ground or underlying lease or changes in
\ndeeds of trust or any other debt for borrowed money.<\/p>\n
9. Any compensation paid to clerks, attendants or other persons in commercial
\nconcessions operated by Landlord.<\/p>\n
10. Rentals and other related expenses incurred in leasing air conditioning
\nsystems, elevators or other equipment ordinarily considered to be of a capital
\nnature, except equipment used in providing janitorial services that is not
\naffixed to any building in the complex.<\/p>\n
11. Advertising and promotional expenditure except those costs involved with the
\nmaintenance and repair of the complex signage.<\/p>\n
12. Repairs and other work occasioned by fire, windstorm or other casualty of an
\ninsurable nature to the extent that the costs are paid by insurance or
\ncondemnation proceeds.<\/p>\n
13. Costs incurred in operating the parking facilities for the building except
\nrepair and maintenance of the parking areas.<\/p>\n
14. Any costs, fines or penalties incurred due to violations by Lessor of any
\ngovernmental rule or authority.<\/p>\n
15. Management costs unless they are included in the computation for the expense
\nbase year and so long as they are considered reasonable for like projects within
\nthe Harbor Bay Business Park.<\/p>\n
16. Costs for sculpture, paintings or other objects of art.<\/p>\n
17. Wages, salaries or other compensation paid to any executive employee above
\nthe grade of building manager shall be limited to Landlord’s general overhead
\nnot to exceed ten percent (10%) of any such expense.<\/p>\n
18. The cost of correcting any code violations, including environmental issues,
\nwhich were violations prior to the commencement of the term.<\/p>\n
19. Any other expense that, under generally accepted accounting principles and
\npractice, would not be considered a normal maintenance or operating expense,
\nexcept those capital costs which result in a reduction of Operating Expenses or
\nwhich are required by governmental authority.<\/p>\n
33<\/p>\n
34. EXHIBITS.<\/p>\n
All exhibits, amendments, riders and addenda attached hereto are hereby
\nincorporated within this Lease.<\/p>\n
EXHIBIT A The Premises and Building Plan
\n EXHIBIT B Tenant Improvement Specifications
\n EXHIBIT C Commencement Date Memorandum
\n EXHIBIT D Rules & Regulations
\n EXHIBIT E Tenant Sign Design Guidelines
\n EXHIBIT F Ascend Termination Agreement<\/p>\n
This Lease is effective as of the date the last signatory necessary to execute
\nthe Lease. shall have executed this Lease.<\/p>\n
LANDLORD TENANT<\/p>\n
TECH CENTER PARTNERS
\nREDDING MANAGEMENT INC. AS AGENT \/s\/ E.A. Supplee Jr.
\n ——————————<\/p>\n
By: \/s\/ [Illegible] By: E.A. SUPPLEE JR.
\n ——————— —————————–
\nIts: CFO Its: VP
\n ——————— —————————–<\/p>\n
By: By:
\n ——————— —————————–
\nIts: Its:
\n ——————— —————————–
\nDated Dated 1\/14\/98
\n ——————— —————————–<\/p>\n
34<\/p>\n
EXHIBIT A – PREMISES AND BUILDING PLAN<\/p>\n
[FLOOR PLAN IMAGE]<\/p>\n
EXHIBIT A – PREMISES AND BUILDING PLAN<\/p>\n
[CLOSE UP DESCRIPTION OF
\n FLOOR PLAN IMAGE – A]<\/p>\n
EXHIBIT A – PREMISES AND BUILDING PLAN<\/p>\n
[CLOSE UP DESCRIPTION OF
\n FLOOR PLAN IMAGE – B]<\/p>\n
EXHIBIT B<\/p>\n
TENANT IMPROVEMENT SPECIFICATIONS<\/p>\n
Landlord shall provide the following tenant improvements to the Premises.
\nLandlord and Tenant understand and agree that the only work Landlord is required
\nto complete PRIOR TO THE LEASE COMMENCEMENT is re-painting the currently
\nunoccupied area. The remainder of the work will be provided in a timely fashion,
\ntaking into consideration the City of Alameda permit approval processing time
\nrequirements.<\/p>\n
1) Re-paint all existing painted areas with one coat of paint to
\n match currently occupied portions of Premises. Cross-hatched
\n areas on Exhibit A will not be painted per Tenant’s request<\/p>\n
2) Provide wall\/door modifications per Exhibit A. Details of
\n modification are listed on Exhibit A. Landlord shall have the
\n option to re-use existing inventory of doors stored in
\n warehouse. Carpet shall be patched and new walls shall be
\n given two coats of paint.<\/p>\n
3) Landlord shall provide a reasonable alternative to the current
\n air supply in the southwest corner office. Landlord shall not
\n be required to spend more than Five Thousand and no\/100
\n Dollars ($5,000.00) for this alternative.<\/p>\n
4) Landlord shall provide all architectural drawings required by
\n the City of Alameda as well as provide for the total cost of
\n the construction permit.<\/p>\n
B-1<\/p>\n
SCHEDULE A
\n TO
\n EXHIBIT B<\/p>\n
APPROVED WORKING DRAWINGS AND SPECIFICATIONS (“PLANS”)<\/p>\n
To become a material part of this Lease when completed and signed by Landlord
\nand Tenant.<\/p>\n
B-2<\/p>\n
EXHIBIT C
\n COMMENCEMENT DATE MEMORANDUM<\/p>\n
This Acknowledgement is made as of ____________________with
\nreference to that certain lease Agreement (hereinafter referred to as the
\n“Lease”) dated __________________ by and between TECH CENTER PARTNERS, a
\nCalifornia General Partnership (“Landlord”) and _______________________
\n_______________________________________________________________(“Tenant”).<\/p>\n
The undersigned hereby confirms the following:<\/p>\n
1. That the Tenant accepted possession of the Premises (as described
\nin said Lease) on _________________________, and acknowledges that the
\nPremises are as represented by Landlord and in good order, condition and
\nrepair; and that the improvements, if any, required to be constructed for
\nTenant by Landlord under this Lease have been so constructed and are
\nsatisfactorily completed in all respects, excepting, if applicable, minor
\npunch-list items.<\/p>\n
2. That all conditions of said Lease have been satisfied and that
\nLandlord has fulfilled all of its obligations.<\/p>\n
3. That in accordance with the provisions of Section 3 of said
\nLease, the Commencement Date of the Term is ____________________ and that,
\nunless sooner terminated, the original Term thereof expires on
\n______________________.<\/p>\n
4. That said Lease is in full force and effect and that the same
\nrepresents the entire agreement between Landlord and Tenant concerning said
\nLease.<\/p>\n
5. That there are no existing defenses which Tenant has against the
\nenforcement of said Lease by Landlord, and no offsets or credits against
\nrentals.<\/p>\n
6. That the minimum rental obligation of said Lease is presently in
\neffect, including all rentals, charges and other obligations on the part of
\nTenant under said Lease.<\/p>\n
7. That the undersigned Tenant has not made any prior assignment,
\nhypothecation or pledge of said Lease or of the rents thereunder.<\/p>\n
TENANT:<\/p>\n
By
\n ————————————–
\n Signature<\/p>\n
————————————–
\n Name: Please Print<\/p>\n
————————————–
\n Title<\/p>\n
C-1<\/p>\n
EXHIBIT D<\/p>\n
LANDLORD’S RULES AND REGULATIONS (OFFICE\/FLEX)<\/p>\n
HARBOR BAY BUSINESS PARK<\/p>\n
1. SIGNS<\/p>\n
No sign, placard, picture, advertisement, curtain, shade or window
\ncovering, name or notice shall be installed on any part of the outside or inside
\nof the building without the prior written consent of Landlord. Landlord shall
\nhave the right to remove, at Tenant’s expense and without notice, any sign
\ninstalled or displayed in violation of this rule. All approved signs or
\nlettering on doors and walls shall be printed, painted, affixed or inscribed at
\nTenant’s expense by a person chosen or approved by Landlord.<\/p>\n
2. WINDOW TREATMENTS<\/p>\n
No curtain, blind, shade, screen, awning, hanging plant or window covering
\nor other object shall be installed or displayed on any part of the inside or
\noutside of the building without prior written consent of Landlord. If Landlord
\nobject in writing to any such installation, tenant shall immediately discontinue
\nsuch use and remove the item at Tenant’s sole cost. Tenant shall not place
\nanything against or near glass partitions or doors or windows which in the
\nopinion of Landlord appear unsightly from outside the Premises.<\/p>\n
3. CLEANING<\/p>\n
A. Cleaning and janitorial services for the Premises may be provided by
\neither Tenant, Tenant’s janitorial contractor, or Landlord.<\/p>\n
B. Tenant shall not cause any unnecessary labor by carelessness or
\nindifference to the good order and cleanliness of the Premises or the Building
\nor the Parcel upon which the Building is located.<\/p>\n
4. SECURITY<\/p>\n
A. Landlord shall not in any way be responsible to any Tenant for any loss
\nof property on the Premises, however occurring, or for any damage to any
\nTenant’s property by janitor or any other person, including maintenance
\npersonnel.<\/p>\n
B. Tenant shall not alter any lock or install a new additional lock or bolt
\non any door of its Premises without permission of Landlord, which shall not be
\nunreasonably withheld. Locks installed by Tenant shall be subordinate to the
\nBuilding master key for fire protection. Tenant, upon termination of its
\ntenancy, shall deliver to Landlord the keys of all doors which have been
\nfurnished to Tenant.<\/p>\n
C. Tenant shall close and lock the doors of Premises and<\/p>\n
D-1<\/p>\n
entirely shut off all water faucets or other water apparatus, and electricity,
\ngas or air outlets before Tenant and its employees leave the Premises. Tenant
\nshall be responsible for any damage or injuries sustained by other tenants or
\noccupants of the Building or by Landlord for noncompliance with this rule.
\nTenant assumes any and all responsibility for protecting Premises from theft,
\nrobbery and pilferage, which includes keeping doors locked and other means of
\nentry to the Premises closed.<\/p>\n
D. Canvassing, soliciting and distribution of handbills or any other
\nwritten materials, and peddling in the Building are prohibited, and each Tenant
\nshall cooperate to prevent same.<\/p>\n
E. Landlord reserve the right to exclude or expel from the Building any
\nperson who, in Landlord’s judgment, is intoxicated or under the influence of
\nliquor or drugs or who is in violation of any of the Rules and Regulations of
\nthe Building.<\/p>\n
F. Tenant shall comply with all safety, fire protection and evacuation
\nprocedures and regulations established by Landlord or any governmental agency.
\nTenant will observe all posted No Smoking Areas.<\/p>\n
5. USE OF PREMISES<\/p>\n
A. Without Landlord approval, Tenant shall not use or keep in the Premises
\nany kerosene, gasoline or other inflammable or combustible fluid or material
\nother than those limited quantities necessary for the operation or maintenance
\nof office equipment. Tenant shall not use or permit to be used in the Premises
\nany foul or noxious gas or substance, or permit or allow the Premises to be
\noccupied or used in a manner offensive or objectionable to Landlord or other
\noccupants of the Building by reason of noise, odors or vibrations.<\/p>\n
B. No animals may be kept within or brought onto the Premises.<\/p>\n
C. Tenant shall not use the Premises for any business or activity other
\nthan that specifically provided for in Tenant’s Lease.<\/p>\n
D. Tenant shall not mark, drive nails, screw or drill into the partitions,
\nwoodwork or plaster or in any way deface the Premises or any part thereof.
\nLandlord reserves the right to direct where and how telephone and
\ntelecommunications wires, cables, conductors and conduit are to be introduced to
\nthe Premises. Tenant shall not cut or bore holes for wires and cables. Tenant
\nshall not affix any floor covering to the floor of the Premises in any manner
\nexcept as approved by Landlord. Tenant shall repair any damage resulting from
\nnoncompliance with this rule.<\/p>\n
E. Tenant shall not place in any trash box or receptacle any material which
\ncannot be disposed of in the ordinary and customary manner of trash and garbage
\ndisposal. All garbage and refuse disposal shall be made in accordance with
\ndirections issued from time to time by Landlord.<\/p>\n
D-2<\/p>\n
F. The Premises shall not be used for any improper, immoral or
\nobjectionable purpose. No cooking shall be done or permitted by Tenant in the
\nPremises, except in a facility designed therefore and approved by Landlord.
\nHowever, use by Tenant of Underwriters’ Laboratory-approved equipment for
\nbrewing coffee, soup, tea, hot chocolate and similar beverages shall be
\npermitted, provided that such equipment and use are in accordance with all
\napplicable federal, state, county and city laws, codes, ordinances, rules and
\nregulations. Outdoor cooking for social or business entertainment shall be
\nprohibited unless approved by Landlord in advance and Tenant is adequately
\ninsured and in compliance to fire codes and other applicable governmental
\nregulations.<\/p>\n
6. DELIVERIES\/SHIPMENTS<\/p>\n
A. Tenant shall be responsible for all damage to Building or Premises
\ncaused by Tenant in any delivery activity.<\/p>\n
B. Delivery trucks to Premises, or goods and equipment dropped off by
\ndelivery trucks, shall not block parking spaces or ingress or egress by other
\nvehicles in Common Area.<\/p>\n
7. FLOOR LOADING<\/p>\n
Tenant shall not place a load upon any floor of the Premises which exceeds
\nthe load per square foot which such floor was designed to carry and which is
\nallowed by law. Landlord shall have the right to prescribe the weight, size and
\nposition of all equipment, materials, furniture or other property brought into
\nthe Building. Heavy objects shall, if considered necessary by Landlord, stand on
\nsuch platforms as determined by Landlord to be necessary to properly distribute
\nthe weight.<\/p>\n
8. MECHANICAL EQUIPMENT, HVAC, ENERGY USE<\/p>\n
A. Business machines and mechanical equipment belonging to Tenant which
\ncause noise or vibration that may be transmitted to the structure of the
\nBuilding or to any space therein to such a degree as to be objectionable to
\nLandlord or to any tenants in the Building, shall be placed and maintained by
\nTenant, at Tenant’s expense, on vibration eliminators or other devices
\nsufficient to eliminate noise or vibration.<\/p>\n
B. Tenant shall not use any method of heating or air conditioning other
\nthan that supplied or approved by Landlord, or expressly permitted or required
\nunder the Lease.<\/p>\n
9. PARKING<\/p>\n
A. Tenant shall not obstruct any sidewalks, bike paths, parking areas,
\nhalls, passages, exits, entrances, elevators, or stairways of the Building. The
\nhalls, passages, exits, entrances, any elevators, and stairways are not open to
\nthe general public. Landlord shall in all cases retain the right to control and
\nprevent access thereto for all persons whose presence, in the judgment of
\nLandlord, would be prejudicial to the safety, character, reputation and interest
\nof the Building and its Tenants provided that nothing<\/p>\n
D-3<\/p>\n
herein contained shall be construed to prevent such access to persons with whom
\nany Tenant normally deals in the ordinary course of its business, unless such
\npersons are engaged in illegal or disruptive activities or unreasonably
\ninterfere with the use or occupancy of the Building by Landlord or Tenants. No
\nTenant and no employee or invitee of any Tenant shall go upon the roof of the
\nBuilding.<\/p>\n
B. Tenant’s non-exclusive right to use parking spaces within the parking
\nfacilities located within the parcel on which the Building is located shall be
\nsubject to such Rules and Regulations as Landlord may, from time to time,
\nestablish.<\/p>\n
C. Landlord may restrict certain portions or spaces within the parking area
\nfor the exclusive use of one or more Tenants of the Building, and may designate
\nother areas to be used at large only by licensees, customers and invitees of
\ntenants of the Building.<\/p>\n
D. Landlord shall have the right to require employees of Tenant to display
\nidentification badges, stickers or other markings at a place visible from the
\nexterior of all vehicles using such parking spaces, in order to ensure that only
\nauthorized persons are using the parking areas, or designated portions thereof.
\nAt Landlord’s request, Tenant shall supply Landlord with a list of all license
\nplates of its employees who are authorized to park in the parking area.<\/p>\n
E. Landlord shall have the right to remove any vehicle not parked within a
\nmarked parking space, or parked in violation of any of Landlord’s Rules and
\nRegulations. In the event any vehicle so removed has been parked by an employee
\nof Tenant, Tenant agrees to reimburse Landlord, upon demand, for the cost of
\nsuch removal and any storage charges.<\/p>\n
F. Landlord reserves the right to designate certain parking spaces for use
\nonly by compact or small cars and all vehicles shall be parked within the lines
\nmarked upon the pavement delineating parking spaces.<\/p>\n
G. Parking areas shall be used solely for the parking of automobiles,
\nmotorcycles, motor driven or non-motor driven bicycles, and four-wheeled trucks
\nor automobile sized trailers.<\/p>\n
H. Tenant and its employees shall observe all directional and other signs
\nplaced on or adjacent to the parking areas designating means of ingress or
\negress, or limiting driveways for ingress or egress of particular types of
\nvehicles.<\/p>\n
10. MISCELLANEOUS<\/p>\n
A. Landlord reserves the right, exercisable with reasonable notice and
\nwithout liability to Tenant, to change the name and street address of the
\nBuilding.<\/p>\n
B. Tenant shall not install any telephone, telecommunications, satellite,
\nmicrowave, radio or television antenna, dish, wire, loudspeaker or other device
\non the roof or exterior walls of the<\/p>\n
D-4<\/p>\n
Building. Tenant shall not interfere with telephone, telecommunications,
\nsatellite, video conferencing, microwave, radio or television broadcasting from,
\nor reception in, the Building or elsewhere within the Business Park.<\/p>\n
C. Without the written consent of Landlord, Tenant shall not use the name
\nof the Building in connection with or in promoting or advertising the business
\nof Tenant except as Tenant’s address.<\/p>\n
D. Landlord may waive any one or more of these Rules and Regulations for
\nthe benefit of Tenant or any other tenant, but no such waiver by Landlord shall
\nbe construed as a continuous waiver of such Rules and Regulations in favor of
\nTenant or any other tenant, nor prevent Landlord from thereafter enforcing any
\nsuch Rules and Regulations against any or all of the tenants of the Building.<\/p>\n
E. These Rules and Regulations are in addition to, and shall not be
\nconstrued to in any way modify or amend, in whole or in part, the terms,
\ncovenants, agreements and conditions of Tenant’s Lease of Premises in the
\nBuilding.<\/p>\n
F. Landlord reserves the right to make such other reasonable Rules and
\nRegulations as, in its judgment, may from time to time be needed or appropriate
\nfor safety and security, for care and cleanliness of the Building and for the
\npreservation of good order therein. Tenant agrees to abide by all such Rules and
\nRegulations, hereinabove stated, and any additional Rules and Regulations which
\nare adopted.<\/p>\n
G. Tenant shall be responsible for the observance of all of the foregoing
\nrules by Tenant’s employees, agents, clients, customers, invitees and guests.<\/p>\n
D-5<\/p>\n
EXHIBIT E
\n TENANT SIGN
\n DESIGN GUIDELINES<\/p>\n
(SIGN LOCATION MAP)<\/p>\n
SIGN LOCATION<\/p>\n
E-1<\/p>\n
(SUITE SIGN LOCATION MAP)<\/p>\n
SUITE SIGN<\/p>\n
E-3<\/p>\n
(TENANT SIGN LOCATION MAP)<\/p>\n
TENANT SIGN<\/p>\n
E-4<\/p>\n
(EXTERIOR DIRECTORY LOCATION MAP)<\/p>\n
EXTERIOR DIRECTORY<\/p>\n
E-5<\/p>\n
EXHIBIT F
\n Ascend Termination Agreement<\/p>\n
TERMINATION AGREEMENT<\/p>\n
This Termination Agreement is made this ___ day of _____________,
\n1998 by and between TECH CENTER PARTNERS, a California general partnership
\n(hereinafter referred to as “Landlord”), and ASCEND COMMUNICATIONS, INC., a
\nDelaware corporation (hereinafter referred to as “Tenant”).<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS Landlord and Tenant entered into a Lease dated August 8, 1991
\nfor the premises described as follow: a portion of 1275 Harbor Bay Parkway,
\nAlameda, California, hereinafter referred to as the “Lease” for a term of five
\n(5) years commencing on December 16, 1991, upon the terms and conditions set
\nforth in said Lease; and<\/p>\n
WHEREAS Landlord and Tenant entered into a First Addendum to Lease
\ndated August 8, 1991, whereby giving the Tenant an option to expand into the
\nentire building known as 1275 Harbor Bay Parkway, a set tenant improvement
\nallowance for said expansion, and an option to extend the Lease; and<\/p>\n
WHEREAS Landlord and Tenant entered into a Second Addendum to Lease
\ndated February 25, 1994 whereby exercising Tenants option to expand into the
\nentire 1275 Harbor Bay Parkway building, extending the Lease to terminate on
\nNovember 30, 2000 and allowing the Tenant an option to cancel the Lease
\nAgreement on May 31, 1998; and<\/p>\n
WHEREAS Landlord and Tenant entered into a Third Addendum to Lease
\ndated June 20, 1994 whereby outlining the Tenant’s tenant improvement allowance
\namortization; and<\/p>\n
WHEREAS, the parties desire to cancel and terminate said Lease upon the
\nterms and conditions herein provided:<\/p>\n
1. SURRENDER: Tenant will surrender possession of the premises described in the
\nLease to Landlord and Landlord will accept the surrender thereof, on January 15,
\n1998, and the said Lease shall be and the same will be, canceled and terminated
\nas of that date.<\/p>\n
2. CONSIDERATION: For and in consideration of the foregoing surrender and
\nacceptance and cancellation of the Lease, Tenant shall make a payment in the
\namount of Thirty Nine Thousand Three Hundred Thirty-Nine and no\/100 Dollars
\n($39,339.00) to Landlord upon Tenant’s signing of this Termination Agreement.<\/p>\n
3. SECURITY DEPOSIT\/LAST MONTH’S RENT: Tenant has paid full Base Rent through
\nthe termination date of January 15, 1998. In addition, Tenant has paid Base
\nRent in the amount of $19,997.96 for the dates of January 16, 1998 through
\nJanuary 31, 1998. Landlord and Tenant understand and agree that the full
\nJanuary Base Rent amount of $39,995.92 shall be credited<\/p>\n
1<\/p>\n
EXHIBIT F
\n Ascend Termination Agreement<\/p>\n
toward the final termination consideration so long as the date of termination
\nremains January 15, 1998. Landlord has no security deposit held for Tenant.<\/p>\n
4. UT STARCOM RENT: Landlord and Tenant understand and agree that, in addition
\nto the Consideration paid to Landlord by Tenant, Tenant shall also forward the
\nrent paid to Tenant by UT Starcom for January 1, 1998 through January 14, 1998.
\nThis amount of $5,994.39 shall be paid at termination by Tenant to Landlord.<\/p>\n
5. UTILITIES: Landlord and Tenant understand and agree that any change of
\nresponsible parties’ names for the payment of utilities serving the premises
\nshall be the responsibility of Tenant.<\/p>\n
6. RELEASE: The respective parties hereby agree that the Lease is hereby
\nterminated as of the date hereof and that each party is relieved from any and
\nall rights and responsibilities set forth in said Lease.<\/p>\n
7. UT STARCOM LEASE: This Termination Agreement shall only be considered binding
\nand valid upon its full execution by Landlord and Tenant and upon the full
\nexecution of the UT Starcom lease.<\/p>\n
8. ENTIRE AGREEMENT: This Termination Agreement constitutes the entire agreement
\nbetween the parties relating to the matters discussed herein and supersedes any
\nand all oral discussions and\/or written correspondence or agreement between the
\nparties.<\/p>\n
LANDLORD: TENANT:
\nTECH CENTER PARTNERS ASCEND COMMUNICATIONS, INC.
\na California general partnership a Delaware corporation<\/p>\n
By: By:
\n ————————- —————————–<\/p>\n
Title: Title:
\n ————————- —————————–<\/p>\n
By: By:
\n ————————- —————————–<\/p>\n
Title: Title:
\n ————————- —————————–<\/p>\n
2<\/p>\n
[LOGO]<\/p>\n
ESTOPPEL CERTIFICATE<\/p>\n
LESSEE: UT STARCOM, INC. A DELAWARE CORPORATION<\/p>\n
Tech Center Partners, a California
\nGeneral Partnership
\nand its successors and assigns<\/p>\n
Re: Lease of space at 1275 Harbor Bay Parkway, Suite C-100, Alameda, California,
\nBy and between UT Starcom, Inc., a Delaware Corporation, as Tenant (“Lessee”)
\nAnd Tech Center Partners, as Landlord (“Lessor”)<\/p>\n
Ladies\/Gentlemen:<\/p>\n
Lessee understands that Financial Institutional Partners Mortgage Company
\n(“Lender”) may be making a loan, the repayment of which would be secured by a
\ndeed of trust (the “Deed of Trust”) on the above-referenced building (the
\n“Building”) and an assignment of the Lease, and that Lender will be relying upon
\nthis letter in connection with such loan. Therefore, with respect to the Lease,
\nLessee hereby certifies to and agrees with Lessor and Lender as follows:<\/p>\n
1. A complete, true and accurate copy of the Lease and all amendments or
\n modifications thereto is attached hereto as Exhibit A.<\/p>\n
2. The Lease is in good standing and in full force and effect and has not
\n been modified or amended, except as follows: NA<\/p>\n
3. Lessee has accepted the premises demised under the Lease (“Premises”),
\n and Lessor has completed all requirements under the terms of the Lease
\n to be completed by Lessor.<\/p>\n
4. The Premises is comprised of 25,576 square feet of space [located on
\n the Ground floor of the Building] [comprising the entire Building].<\/p>\n
5. The term of the Lease commenced on January 15, 1998 and will terminate
\n on January 14, 2003 Lessee has no options to renew or extend the term
\n of the Lease except as follows: Option to extend for one five-year
\n period at fair market value.<\/p>\n
6. Lessee has paid Lessor a security deposit under the Lease in the amount
\n of $38,806.40. (Lessee agrees that Lender shall have no responsibility
\n or liability for any security deposit, except to the extent such
\n security deposit has been actually received by Lender).<\/p>\n
7. (a) Base monthly rent under the Lease is $32,723.28, and is adjusted as
\n follows: January 15, 2000 = $34,527.60, January 15, 2002 = $35,806.40
\n Base monthly rent in the amount of $32,723.28 has been paid through and
\n including March 31, 1999.<\/p>\n
(b) Percentage rent is payable under the Lease as follows: NA, and has
\n been paid through and including __________________________.<\/p>\n
(c) In addition to base monthly rent and percentage rent, the Lease
\n provides for Lessee to pay its proportionate share of property taxes,
\n insurance premiums, and<\/p>\n
common area expenses, all as defined in the Lease, incurred by Lessor.
\n Lessee’s proportionate share of such expenses is 36.40 percent.<\/p>\n
8. There are no defaults of Lessor under the Lease nor any existing
\n conditions which upon the giving of notice or lapse of time or both
\n would constitute a default by Lessor under the Lease except as follows:
\n ____________________________.<\/p>\n
9. Lessee has not received any rental concession which is presently in
\n effect or will in the future be in effect in connection with renting
\n the Premises and there are no offsets or credits against the payment of
\n rent due under the Lease, except as follows: _________________________
\n ____________________________________.<\/p>\n
10. Lessee has no options or rights of first offer or refusal with respect
\n to renting additional space or acquiring any additional interest in the
\n Building, except as follows: None.<\/p>\n
11. Lessee has no notice of any prior assignment, hypothecation or pledge
\n of the Lease or the rents due thereunder.<\/p>\n
12. From the date hereof until the Deed of Trust is reconveyed, the
\n Lessee will not consent to or enter into any modification or
\n termination of the Lease without the prior written consent of Lender.<\/p>\n
13. From the date hereof until the Deed of Trust is reconveyed, in the
\n event of a default by Lessor under the Lease, Lessee shall give prompt
\n written notice thereof to Lender at the address set forth above and
\n Lender shall have the right (but not the obligation) to cure any
\n default of Lessor under the Lease (the cure period to include such time
\n as may be required for Lender to cure the default, including taking
\n possession of the Building, by foreclosure, through deed in lieu of
\n foreclosure or otherwise). Lessee shall accept such cure by Lender as
\n that of Lessor under the Lease and, if Lender elects to cure said
\n default and prosecutes such cure to completion as herein provided, and
\n Lessee will not exercise any right or remedy under the Lease upon a
\n default by Lessor.<\/p>\n
14. Lender (and any successor or assign of Lender) shall not be (i) liable
\n for any act or omission of Lessor or any predecessor-in-interest, (ii)
\n subject to any offsets, counterclaims or defenses which Lessee may have
\n against Lessor or any predecessor-in-interest, (iii) liable for any
\n security deposit or payment of rent (for more than one (1) month in
\n advance of the date due under the Lease) made by Lessee to Lessor or
\n predecessor-in-interest, except to the extent actually received by
\n Lender or (iv) obligated to expand the Project, construct additional
\n improvements or otherwise expend funds which are capital in nature
\n except for items of ordinary maintenance and repair.<\/p>\n
15. Upon foreclosure under the Deed of Trust, or deed-in-lieu thereof,
\n Lessee shall attorn to Lender or any other purchaser or transferee at
\n foreclosure or deed-in-lieu thereof and recognize such party as
\n landlord under the Lease and, so long as Tenant is not in default in
\n the payment or performance of any of the terms, covenants or conditions
\n of the Lease, (a) Tenant’s possession of the Premises shall not be
\n interfered with by Lender, and (b) Lender will not join Tenant in any
\n action or proceeding foreclosing the Deed of Trust unless such joinder
\n is necessary to foreclose the Deed of Trust and then only for such
\n purpose and not for the purpose of terminating the Lease.<\/p>\n
16. Notwithstanding any term of the Lease, upon foreclosure of the Deed of
\n Trust or acceptance of a deed in lieu thereof or other similar
\n transfer, any environmental\/hazardous materials indemnity and\/or
\n reimbursement provisions under the Lease shall<\/p>\n
2<\/p>\n
not be applicable to, or enforceable against, Lender, any successor in
\n interest to or assigns of Lender and\/or any purchaser at foreclosure
\n and any transferee thereof.<\/p>\n
Dated: April 9 , 1999.
\n ——————<\/p>\n
—————————–<\/p>\n
——————————<\/p>\n
By \/s\/ RUSSELL BOLTWOOD
\n ——————————–<\/p>\n
Its: HR Director\/Corporate Counsel
\n ——————————–<\/p>\n
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