{"id":41812,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/2830-de-la-cruz-boulevard-santa-clara-lease-atp-associates-lp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"2830-de-la-cruz-boulevard-santa-clara-lease-atp-associates-lp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/2830-de-la-cruz-boulevard-santa-clara-lease-atp-associates-lp.html","title":{"rendered":"2830 De La Cruz Boulevard (Santa CLara) Lease – ATP Associates LP and United Defense LP"},"content":{"rendered":"\n LEASE\n\n BY AND BETWEEN\n\n ATP ASSOCIATES L.P.\n\n a Delaware limited partnership, as Landlord\n\n and\n\n UNITED DEFENSE L.P.\n\n a Delaware limited partnership,\n\n as Tenant\n\n for\n\n BUILDING C\n\n \n LEASE\n\n (Building C)\n\n This Lease, dated April __, 1999 for reference purposes only, is made\nby and between ATP Associates L.P., a Delaware limited partnership (\"Landlord\"),\nand United Defense L.P., a Delaware limited partnership (\"Tenant\").\n\n Recitals\n\n A. The Equitable Life Assurance Society of the United States\n(\"Equitable\") and FMC Corporation (\"FMC\") entered into a lease dated June 1,\n1989 (the \"Original Lease\"), for the Premises (as defined below);\n\n B. On or about August 11, 1995, Landlord acquired the fee simple\ninterest in certain real property, including the Premises, from Equitable and\nsucceeded to the interest of Equitable as Landlord under the Lease;\n\n C. Tenant is now occupying the Premises pursuant to the Original\nLease, as if the Original Lease had been assigned by FMC to Tenant; and\n\n D. Landlord and Tenant have agreed to enter into this new Lease\ninstead of extending the Old Lease, and Tenant has agreed to assume the\nobligations under the Original Lease as if the Original Lease had been assigned\nto Tenant and the term extended.\n\n Agreement\n\nNow Therefore, for good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, Landlord and Tenant hereby agree as follows:\n\n ARTICLE 1\n\n Definitions\n\n 1.1 Commencement Date. The term \"Commencement Date\" shall mean\nNovember 1, 1999.\n\n 1.2 Rent Start Date. The term \"Rent Start Date\" shall mean November\n1, 1999 provided, however, that if the Landlord is unable to so deliver\npossession of the Leased Premises to Tenant in the agreed condition on or before\nthe Commencement Date, rent shall not commence and Landlord shall not be in\ndefault under this Lease, nor shall this Lease be void, voidable or cancelable\nby Tenant until the lapse of ninety (90) days after the Commencement Date.\n\n 1.3 Lease Term. The Lease Term shall commence on the Commencement\nDate and shall continue until the second (2nd) anniversary of the Rent Start\nDate (unless the Lease Term is extended pursuant to paragraph 2.4 hereof).\n\n 1.4 Property. The term \"Property\" shall mean that real property\nshown on the site plan attached hereto as Exhibit \"A\" and all improvements now\nor hereafter located thereon, including, without limitation, the five (5)\nbuildings presently located thereon, the aggregate gross leaseable area of which\nis approximately 295,271 square feet (the \"Property Gross Leaseable Area\"),\nallocated among the five buildings as shown on the attached Exhibit \"A\";\nprovided, however, that Landlord may change the boundaries and composition of\nthe Property by removing or adding land and\/or buildings and thereafter the term\n\"Property\" shall refer to such real property so enlarged or reduced and the\namount of the \"Property Gross Leaseable Area\" shall be appropriately adjusted.\n\n 1.\n\n \n 1.5 Premises. The term \"Premises\" shall mean the building structure\nsituated on the Property commonly known as Building C of Airport Technology\nPark, 2830 De La Cruz Boulevard, Santa Clara, California, containing\napproximately 86,785 square feet of gross leaseable area (the \"Premises Gross\nLeaseable Area\") located as shown on Exhibit \"A\". Landlord and Tenant agree\nthat (i) all measurements of gross leaseable area contained in this lease are\nconclusively agreed to be correct and binding upon the parties, even if a\nsubsequent measurement of any one of these areas determines that it is more or\nless than the amount of area reflected in this Lease; and (ii) any such\nsubsequent determination that the area is more or less than shown in this Lease\nshall not result in a change in any of the computations of rent, improvement\nallowances, or other matters described in this Lease where gross leaseable area\nis a factor.\n\n 1.6 Permitted Use. The term \"Permitted Use\" shall mean the use of\nthe Premises for (i) research and development, production, sales, and general\nadministrative offices and other legal uses incidental thereto, and (ii) any\nother legal use first approved in writing by Landlord.\n\n 1.7 Tenant's Minimum Liability Insurance Coverage. The term\n\"Tenant's Minimum Liability Insurance Coverage\" shall mean Two Million Five\nHundred Thousand Dollars ($2,500,000).\n\n 1.8 Tenant's Allocated Parking Stalls. The term \"Tenant's Allocated\nParking Stalls\" shall mean 338 parking stalls for the non-exclusive use of\nTenant.\n\n 1.9 Retained Real Estate Brokers. The term \"Retained Real Estate\nBrokers\" shall mean Thomas Smith of CB Richard Ellis and Richard Kimball of\nColliers Parrish.\n\n 1.10 Address for Notices. The term \"Address for Notices\" shall mean\nthe following:\n\n A. In the case of Landlord, such term shall mean c\/o Menlo\nEquities LLC, 525 University Avenue, Suite 100, Palo Alto, California 94301,\nAttention: Henry D. Bullock\/Richard J. Holmstrom.\n\n B. In the case of Tenant, such term shall mean the address of\nthe Premises which is 2830 De La Cruz Boulevard, Santa Clara, California 95050.\n\n 1.11 Lease. The term \"Lease\" shall mean this printed lease, Exhibits\n\"A\" (site plan), \"B\" (Approved Plans for Interior Improvements), \"C\" (Interior\nImprovement Agreement), \"D\" (form of subordination agreement), all of which are\nattached hereto and incorporated herein by this reference.\n\n 1.12 Building A Lease. The term \"Building A Lease\" shall mean that\nlease dated as of April __, 1999 between Landlord and Tenant, pursuant to which\nTenant leases from Landlord that certain building identified as Building A on\nthe site plan attached hereto as Exhibit \"A' and which contains approximately\n68,708 square feet, the address of which is 2890 De La Cruz Boulevard, Santa\nClara, California.\n\n 1.13 Tenant's Allocated Share. The term \"Tenant's Allocated Share\"\nshall mean one hundred percent (100%).\n\n 1.14 Continuing Tenant Default. A \"Continuing Tenant Default\" shall\nbe deemed to exist when an \"Event of Tenant's Default\" (as defined in paragraph\n13.1) has occurred, and the underlying default or breach by Tenant of its\nobligations which resulted in such Event of Tenant's Default has not been\ncompletely cured.\n\n 1.15 Additional Definitions. As used in this Lease or any addendum\nor amendment thereto, the following terms shall have the meanings set forth in\nparagraph 15.12: \"Agreed Interest Rate\", \"Common Area\", \"Law\", \"Leasehold\nImprovements\", \"Lender\", \"Private Restrictions\" and \"Trade Fixtures\".\n\n 2.\n\n \n ARTICLE 2\n\n Demise And Acceptance\n\n 2.1 Demise of Premises. Landlord hereby leases to Tenant, and Tenant\nleases from Landlord, for the Lease Term upon the terms and conditions of this\nLease, the Premises together with (i) the non-exclusive right to use no more\nthan the number of Tenant's Allocated Parking Stalls within the Common Area\n(subject to the limitations set forth in paragraph 4.7), and (ii) the non-\nexclusive right to use the Common Area for ingress to and egress from the\nPremises. Tenant's lease of the Premises shall be subject to (i) all Laws, (ii)\nall Private Restrictions, easements, and other matters of public record, and\n(iii) the reasonable and non-discriminatory rules and regulations from time to\ntime promulgated by Landlord pursuant to paragraph 4.6.\n\n 2.2 Delivery and Acceptance of Possession. Landlord shall deliver to\nTenant possession of the Premises on the Commencement Data in their presently\nexisting condition, broom clean. Tenant shall accept possession of the Premises\nin its presently existing condition, \"as-is\" (except for latent defects in the\nstructural elements of the Premises), acknowledging that Tenant intends to do\nrenovation work and construct interior improvements pursuant to paragraph 2.3\nhereof and the Interior Improvement Agreement attached as Exhibit \"C\".\n\n 2.3 Construction of Interior Improvements. Tenant shall construct\ncertain improvements for Tenant's use in the Premises pursuant to the terms of\nthe Interior Improvement Agreement executed concurrently with this Lease by\nLandlord and Tenant and attached hereto an Exhibit \"C\".\n\n 2.4 Options to Extend Lease Term. Landlord hereby grants to Tenant\none option to extend the Lease Term for a period of two (2) years and one option\nto extend the Lease Term for a period of three (3) years thereafter (each right\nto extend referred to as the \"Option\" and each period referred to as the \"Option\nTerm\"), on the following terms and conditions:\n\n A. Tenant must give Landlord notice in writing of its exercise\nof the Option before the later to occur of (i) the two hundred fortieth (240th)\nday before the date the initial Lease Term (or the then extended Lease Term, as\nthe case may be) would and but for said exercise, or (ii) the seventh (7th) day\nfollowing the establishment of the fair market rent for the Premises by\nappraisal pursuant to subparagraph 2.4F if such appraisal process is commenced\npursuant to subparagraphs 2.4E and 2.4F.\n\n B. Tenant may not exercise the option at any time that either of\nthe following is true: (i) a Continuing Tenant Default exists under this Lease\n(unless caused by a subtenant of the original Tenant under this Lease and such\noriginal Tenant is using reasonable efforts to cause such default to be cured);\nor (ii) a Continuing Tenant Default exists under the Building A Lease (unless\ncaused by a subtenant or assignee of the original Tenant under this Lease and\nsuch original Tenant is using reasonable efforts to cause such default to be\ncured) and the same person or entity is the owner of record of both the Premises\nand the real property leased pursuant to the Building A Lease.\n\n C. All terms and conditions of this Lease shall apply during the\nOption Term, except that the Base Monthly Rent for the Option Term shall be\ndetermined as provided in subparagraph 2.4D below.\n\n D. The Base Monthly Rent for the Option Term with respect to the\nPremises shall be the ninety-five percent (95%) of the fair market rent for the\nPremises for the Option Term on the terms contained in this Lease as of the\ncommencement of the Option Term, determined pursuant to subparagraphs 2.4E and\n2.4F. For purposes of this Lease, the term \"fair market rent for the Premises\"\nshall mean the projected going market rent for the Premises as of the\ncommencement of the Option Term in question, including a provision for periodic\nincreases of such rent during the Option Term (which increases shall be\nestablished as part of such fair market rent), taking into account the value of\nall improvements in the Premises, regardless of whether made by Landlord or\nTenant (except for those Leasehold Improvements that Tenant has the right to\nremove at the expiration of the Lease Term), but in no event shall fair market\nrent be less than the rent in effect during the immediately prior period.\n\n 3.\n\n \n E. Tenant may not exercise the Option in question unless Tenant has\ndelivered to Landlord a written request (a \"Rent Quote Request\") that Landlord\nstate in writing Landlord's opinion of the fair market rent for the Premises for\nthe upcoming Option Term in question, which Rent Quote Request may only be\ndelivered and shall only be effective if delivered (i) no sooner than fifteen\n(15) months before the expiration of the Lease Term, and (ii) no later than\nthirteen (13) months prior to the expiration of the Lease Term. After receipt\nof a Rent Quote Request and no later than twelve (12) months prior to the\nexpiration of the Lease Term, Landlord shall deliver to Tenant a written\nstatement setting forth Landlord's opinion of the fair market rent for the\nPremises for the Option Term in question (a \"Landlord's Rent Quote\"). For a\nperiod of thirty (30) days following delivery to Tenant of Landlord's Rent Quote\n(the \"Negotiation Period\"), Landlord and Tenant shall confer to attempt to reach\nagreement upon the fair market rent for the Premises for the Option Term in\nquestion. If Landlord and Tenant are unable to reach agreement in writing\nwithin the Negotiation Period, for purposes of establishing the Base Monthly\nRent for the Option Term in question, the fair market rent for the Premises\nshall be deemed to be the amount stated in Landlord's Rent Quote unless Tenant\ndelivers to Landlord during the Negotiation Period a written notice which states\nthe following: (i) Tenant requires that the fair market rent for the Premises\nfor the option Term in question be established by the appraisal process\ndescribed in subparagraph 2.4F; and (ii) the name, address, and qualifications\nof the appraiser selected by Tenant for purposes of the appraisal process\ndescribed in subparagraph 2.4F (\"Tenant's Appraisal Demand\"). If Tenant so\ntimely delivers to Landlord a Tenant's Appraisal Demand, the Base Monthly Rent\nfor the Option Term in question shall be established based on the result of the\nappraisal process described in subparagraph 2.4F.\n\n F. If Tenant delivers to Landlord a Tenant's Appraisal Demand during\nthe Negotiation Period, then the fair market rent for the Premises shall be\ndetermined by three (3) real estate appraisers, all of whom shall be members of\nthe American Institute of Real Estate Appraisers with not less than five (5)\nyears experience appraising real property (other than residential or\nagricultural property) located in Santa Clara County, California, in accordance\nwith the following procedures:\n\n (1) One of the appraisers shall be the appraiser identified in\nTenant's Appraisal Demand. Within ten (10) days of receipt of Tenant's\nAppraisal Demand, Landlord shall select its appraiser and notify Tenant, in\nwriting, of the name, address and qualifications of an appraiser selected by it.\nFailure by Landlord to select a qualified appraiser within said ten (10) day\nperiod shall be deemed a waiver of its right to select a second appraiser on its\nown behalf and Tenant shall select a second appraiser on behalf of Landlord\nwithin five (5) days after the expiration of said ten (10) day period. Within\nten (10) days from the date the second appraiser shall have been appointed, the\ntwo (2) appraisers selected by the parties shall appoint a third appraiser. If\nthe two appraisers fail to select a third qualified appraiser, the third\nappraiser shall be selected by the American Arbitration Association at the\nrequest of either party or, if there is then no American Arbitration Association\nor if it refuses to perform this function, then at the request of either\nLandlord or Tenant, the third appraiser shall be appointed by the then Presiding\nJudge of the Superior Court of the State of California for the County of Santa\nClara.\n\n (2) The three (3) appraisers so selected shall meet in San Jose,\nCalifornia, not later than twenty (20) days following the selection of the third\nappraiser. At said meeting the appraisers shall attempt to determine the fair\nmarket rent for the Premises for the Option Term in question.\n\n (3) If the appraisers are unable to complete their determinations\nin one meeting, they may continue to consult at such times as they deem\nnecessary for a fifteen (15) day period from the date of their first meeting, in\nan attempt to have at least two (2) of them agree. If, at the initial meeting or\nat any time during said fifteen (15) day period, two (2) or more of the\nappraisers agree on the fair market rent for the Premises, such agreement shall\nbe determinative and binding on the parties hereto, and the agreeing appraisers\nshall, in simple letter form executed by the agreeing appraisers, forthwith\nnotify both Landlord and Tenant of the amount set by such agreement.\n\n (4) If two (2) or more appraisers do not agree within said fifteen\n(15) day period as set forth above, then each appraiser shall, within five (5)\ndays after the expiration of said fifteen (15) day period, submit his\nindependent appraisal in simple letter form to Landlord and Tenant stating his\ndetermination of the fair market rent for the Premises for the Option Term in\nquestion. Landlord and Tenant shall then determine the fair market rent for the\nPremises for the Option Term by determining the average of the fair market rent\nset by each of \n\n 4.\n\n \nthe appraisers; provided, however, if the lowest appraisal is less than eighty-\nfive percent (85%) of the middle appraisal then such lowest appraisal shall be\ndisregarded, and\/or if the highest appraisal is greater than one hundred fifteen\npercent (115%) of the middle appraisal then such highest appraisal shall be\ndisregarded. If any appraisal in disregarded, then the average shall be\ndetermined by computing the average set by the other appraisals that have not\nbeen disregarded. For purposes of determining the relative amount of the\nappraisals to implement the provisions of this subparagraph requiring that an\nappraisal be disregarded if it is too high or too low, the amount of an\nappraisal that calls for periodic rent increases based upon an index (e.g., the\nConsumer Price Index) shall be determined by assuming that such index will\nincrease at the same average annual rate during the option period in question\nthat such index increased on an average annual basis during the five (5) year\nperiod preceding the commencement of the option period in question.\n\n (5) Each party shall bear the fees and expenses of the\nappraisers selected by or for it, and the fees and expenses of the third\nappraiser shall be borne fifty percent (50%) by Landlord and fifty percent (50%)\nby Tenant.\n\n ARTICLE 3\n\n Rent\n\n 3.1 Base Monthly Rent. Commencing on the Rent Start Date and\ncontinuing thereafter throughout the initial Lease Term, Tenant shall pay to\nLandlord a monthly rent (which rent is referred to as the \"Base Monthly Rent\"),\nwhich shall be the following:\n\n A. The Base Monthly Rent for the period beginning on the Rent\nStart Date and ending on the last day of the twelfth (12th) month of the Lease\nTerm is One Hundred Twenty-Four Thousand Nine Hundred Seventy Dollars ($124,970)\n(i.e., $1.44 per square foot per month).\n\n B. The Base Monthly Rent for the period beginning on the first\nday of the thirteenth (13th) month of the Lease Term and ending on the last day\nof the twenty-fourth (24th) month of the Lease Term is One Hundred Twenty-Nine\nThousand Three Hundred Ten Dollars ($129,310) (i.e., $1.49 per square foot per\nmonth).\n\n C. Base Monthly Rent payable during the second Option Term (if\nsuch Option is exercised by Tenant) shall be payable as follows\n\n (1) The Base Monthly Rent for the period beginning an the\nfirst day of the twenty-fifth (25th) month of the Lease Term and ending on the\nlast day of the thirty-sixth (36th) month of the Lease Term is One Hundred\nThirty-Three Thousand Six Hundred Forty-Nine Dollars ($133,649) (i.e., $1.54 per\nsquare foot per month).\n\n (2) The Base Monthly Rent for the period beginning on the\nfirst day of the thirty-seventh (37th) month of the Lease Term and ending on the\nlast day of the forty-eighth (48th) month of the Lease Term is One Hundred\nThirty-Seven Thousand Nine Hundred Eighty-Eight Dollars ($137,988) (i.e., $1.59\nper square foot per month).\n\n D. For purposes of applying the provisions of this paragraph\n3.1, the term \"month of the Lease Term\" shall mean that period which begins on\nthat day of the calendar month in question which corresponds to the Rent Start\nDate and which continues for thirty (30) or thirty-one (31) days until the day\nof the next calendar month which precedes the day in that calendar month which\ncorresponds to the Rent Start Date. By way of example only, if it is assumed\nthat the Rent Start Date is November 1, 1999, then for purposes of this\nparagraph 3.1 (i) the first month of the Lease Term would commence November 1\nand end on November 30, 1999.\n\n 3.2 Additional Rent. Commencing on the Rent Start Date and\ncontinuing thereafter throughout the Lease Term, Tenant shall pay, as additional\nrent (the \"Additional Rent\"), (i) Tenant's share of Common Operating Expenses as\nrequired by paragraph 6.3, (ii) Tenant's share of Real Property Taxes as\nrequired by paragraph 8.2, \n\n 5.\n\n \n(iii) Landlord's share of the net consideration received by Tenant upon certain\nassignments and sublettings as required by paragraph 14.1, (iv) any late charges\nor interest due Landlord pursuant to paragraph 3.4, (v) Tenant's share of the\namortized cost of certain additional improvements as provided in paragraph 5.4,\nand (vi) any other charges due Landlord pursuant to this Lease.\n\n 3.3 Payment of Rent. All rent required to be paid in monthly\ninstallments shall be paid in advance on the first day of each calendar month\nduring the Lease Term. All rent shall be paid in lawful money of the United\nStates, without any abatement, deduction or offset whatsoever (except as\npermitted by paragraphs 11.4 and 12.2), and without any prior demand therefor,\nto Landlord at its address set forth above or at such other place as Landlord\nmay designate from time to time. Tenant's obligation to pay rent shall be\nprorated as of the Rent Start Date and at expiration or earlier termination of\nthe Lease Term such that Tenant shall not be required to pay Base Monthly Rent\nor Additional Rent for any period preceding the Rent Start Date or following the\nexpiration or earlier termination of the Lease Term (except in the case of a\ntermination of this Lease an a result of an Event of Tenant's Default).\n\n 3.4 Late Charge and Interest on Rent in Default. Tenant acknowledges\nthat the late payment by Tenant of any monthly installment of Base Monthly Rent\nor any Additional Rent will cause Landlord to incur certain costs and expenses\nnot contemplated under this Lease, the exact amount of which are extremely\ndifficult or impractical to fix. Such costs and expenses will include, without\nlimitation, administration and collection costs and processing and accounting\nexpenses. Therefore, if any such Base Monthly Rent or Additional Rent is not\nreceived by Landlord from Tenant within five (5) days after Landlord delivers\nwritten notice to Tenant that such amount is delinquent, Tenant shall\nimmediately pay to Landlord a late charge equal to five percent (5%) of such\ndelinquent rent. Landlord and Tenant agree that this late charge represents a\nreasonable estimate of such costs and expenses and is fair compensation to\nLandlord for its loss suffered by Tenant's failure to make timely payment. In\nno event shall this provision for a late charge be deemed to grant to Tenant a\ngrace period or extension of time within which to pay any rent or prevent\nLandlord from exercising any right or remedy available to Landlord upon Tenant's\nfailure to pay any rent due under this Lease in a timely fashion, including the\nright to terminate this Lease. If any rent remains delinquent for a period in\nexcess of thirty (30) days after Landlord delivers written notice to Tenant that\nsuch amount is delinquent, in addition to such late charge, Tenant shall pay to\nLandlord interest on any rent that is not paid when due at the Agreed Interest\nRate following the date such amount became due until paid.\n\n ARTICLE 4\n\n Use Of Premises\n\n 4.1 Limitation on Type. Tenant shall use the Premises solely for the\nPermitted Use (as described in paragraph 1.6). Tenant shall not do or permit\nanything to be done in or about the Premises or Common Area which will (i)\ninterfere with the rights of other occupants of the Property, (ii) cause\nstructural damage to the Premises and Tenant fails to promptly commence and\ndiligently pursue to completion the repair of such damage, or (iii) cause damage\nto any part of the Premises or Property except to the extent reasonably\nnecessary for the installation of Tenant's equipment and trade fixtures and\nTenant fails to promptly commence and diligently pursue to completion the repair\nof such damage. Tenant shall not operate any equipment within the Premises\nwhich will (i) injure, vibrate or shake the Premises, (ii) overload existing\nelectrical system or other mechanical equipment servicing the Premises, or (iii)\nimpair the efficient operation of the sprinkler system or the heating,\nventilating or air conditioning (\"HVAC\") equipment servicing the Premises, or\n(iv) damage, overload or corrode the sanitary sewer system. Tenant shall not\nattach, hang or suspend anything from the ceiling, roof, walls or columns of the\nPremises or set any load on the floor in excess of approved structural limits as\ndefined by Landlord's architect. Any dust, fumes, or waste products generated\nby Tenant's use of the Premises shall be contained and disposed so that they do\nnot (i) create a fire or health hazard, (ii) damage the Premises, or (iii)\ninterfere with the businesses of other tenants of the Property. All noise or\nodors generated by Tenant's use of the Premises shall be contained or muffled so\nthat they do not interfere with the businesses of other tenants of the Property.\nTenant shall not (i) change the exterior of the Premises (subject to Tenant's\nright to install signs pursuant to paragraph 4.5), or (ii) install any equipment\nor antennas on or make any penetrations of the exterior or roof of the Premises\nwithout the prior written consent of Landlord. Tenant shall not commit nor\npermit to be committed any waste in or about the Premises, and Tenant shall keep\nthe Premises in a neat, clean, attractive and orderly condition, free of any\nobjectionable noises, odors, dust or nuisances which may \n\n 6.\n\n \ndisturb the quiet enjoyment of other tenants or occupants of the Property.\nNotwithstanding the foregoing restrictions, the parties agree as follows:\n\n A. Tenant may bring military fighting vehicles onto the first\nfloor of the Premises so long an (i) Tenant puts into place such reinforcing as\nis reasonably necessary to upgrade the floor load capacity so that it will\naccept such fighting vehicles; and (ii) Tenant repairs any damage to the\nPremises caused by the entry of such vehicles.\n\n B. Tenant may install antennas, radio \"dishes\" or other\nelectronic equipment reasonably necessary for the conduct of Tenant's business\nupon the roof of the Premises so long as (i) such installations are done in\ncompliance with all Laws and Private Restrictions; (ii) such installations are\naccomplished in a manner which does not compromise the watertight integrity of\nthe roof; (iii) all damage to the Premises caused by such installation is\nrepaired by Tenant; and (iv) any such equipment is properly and effectively\nscreened from view in a manner reasonably acceptable to Landlord.\n\n C. In the event Tenant desires to operate equipment within the\nPremises that will or may overload existing mechanical, electrical, or other\nsystems, Tenant may do so only if it first installs, at its sole cost, all\nnecessary modifications, repairs or upgrades of existing systems so that such\nequipment may be operated without overloading such systems as so modified by\nTenant.\n\n 4.2 Compliance with Laws and Private Restrictions. Tenant shall not\nuse or permit any person to use the Premises in any manner which violates any\nLaws or Private Restrictions. Tenant shall abide by and promptly observe and\ncomply with all Laws and Private Restrictions and shall indemnify and hold\nLandlord harmless from any liability resulting from Tenant's failure to do so.\n\n 4.3 Insurance Requirements. Tenant shall not use or permit any\nperson to use the Premises or Common Area in any manner which will cause a\ncancellation of any Insurance policy covering the Premises. Tenant shall not\nsell, or permit to be kept, used, or sold in or about the Premises any article\nwhich may be prohibited by the standard form of fire insurance policy; provided,\nhowever, that Tenant may bring military fighting vehicles onto the first floor\nof the Premises as permitted pursuant to subparagraph 4.1A. Tenant shall comply\nwith all reasonable requirements of any insurance company, insurance\nunderwriter, or Board of Fire Underwriters which are necessary to maintain, at\nreasonable rates, the insurance coverage carried by Landlord pursuant to this\nLease.\n\n 4.4 Outside Areas. No materials, supplies, storage tanks or\ncontainers, equipment, finished products or semi-finished products, raw\nmaterials, inoperable vehicles or articles of any nature shall be stored upon or\npermitted to remain outside of the Premises except in fully fenced and screened\nareas outside the Premises which have been designed for such purpose and have\nbeen approved in writing by Landlord for such use by Tenant; provided, however,\nthat Tenant may bring military fighting vehicles onto the first floor of the\nPremises as permitted pursuant to subparagraph 4.1A.\n\n 4.5 Signs. Tenant shall not place on any portion of the Premises or\nthe Property any sign, placard, lettering in or on windows, banner, displays or\nother advertising or communicative material which is visible from the exterior\nof the Premises without the prior written approval of Landlord. All such\napproved signs shall strictly conform to all Laws and Private Restrictions and\nshall be installed at the expense of Tenant. If Landlord so elects, Tenant\nshall, at the expiration or sooner termination of this Lease, remove all signs\ninstalled by it and repair any damage caused by such removal. Tenant shall at\nall times maintain such signs in good condition and repair. Upon Tenant's\nwritten request and at Tenant's cost and expense, Landlord shall remove both of\nthe Airport Technology Park monument signs located on De La Cruz Boulevard.\nSubject to Landlord's prior written approval of Tenant's specific design plan,\n(i) Tenant shall have the right to install a monument sign at the entrance to\nthe Premises, and at the two entrances to Airport Technology Park, and (ii)\nTenant shall have the right to install signs on the exterior of the Premises.\nApproved signs installed by Tenant may be illuminated in compliance with the\nprovisions of applicable Laws and Private Restriction.\n\n 7.\n\n \n 4.6 Rules and Regulations. Landlord may from time to time promulgate\nreasonable and nondiscriminatory rules and regulations applicable to all\noccupants of the Property for the care and orderly management of the Property\nand the safety of its tenants and invitees. Such rules and regulations shall be\nbinding upon Tenant upon delivery of a copy thereof to Tenant, and Tenant agrees\nto abide by such rules and regulations. If there in a conflict between the\nrules and regulations and any of the provisions of this Lease, the provisions of\nthis Lease shall prevail. Landlord shall not be responsible for the violation\nby any other tenant of the Property of any such rules and regulations.\n\n 4.7 Parking. Tenant is allocated and shall have the non-exclusive\nright to use (without charge in addition to the Base Monthly Rent) no more than\nthe number of parking spaces contained within the Property described in\nparagraph 2.1 for its use and the use of its employees and invitees, the\nlocation of which may be designated from time to time by Landlord but shall be\non the Property and within reasonable proximity to the Premises. Tenant shall\nnot at any time use or permit its employees or invitees to use more parking\nspaces than the number so allocated to Tenant or to park or permit the parking\nof its vehicles or the vehicles of others in any portion of the Property not\ndesignated by Landlord as a non-exclusive parking area. Landlord shall not\noversubscribe the parking within the Property, and shall assure that the total\nnumber of spaces committed to the non-exclusive use of all tenants of the\nProperty shall not exceed the total number of spaces within the Common Area. Of\nthe parking spaces allotted to Tenant pursuant to paragraph 2.1, Tenant shall\nhave the right to designate a reasonable number of such spaces as reserved\nspaces for its executives, which shall not exceed ten percent (10%) of the total\nof spaces and which shall be in immediate proximity to the Premises. If\nLandlord grants to any other tenant the exclusive right to use any particular\nparking space(s), neither Tenant nor its employees or invitees shall use such\nspaces. Within ten (10) business days after written request therefor from\nLandlord, Tenant shall furnish Landlord with a list of its and its employees\nvehicle license numbers and Tenant shall thereafter notify Landlord of any\nchange in such list within five (5) days after each such change occurs. Tenant\nshall have the right, at Tenant's option, to provide its employees with stickers\nor other identification markers or tags to be affixed to or on the employees'\nautomobiles or other vehicles, evidencing the right of such employees to use the\nparking areas. Such stickers shall be subject to prior review and approval by\nLandlord, which shall not be unreasonably withheld or delayed. Tenant shall\nfurnish to Landlord a list of identifying numbers for the stickers distributed\nfrom time to time by Tenant to its employees. If Tenant elects to use such\nstickers as provided herein, Tenant shall not be obligated to furnish Landlord\nwith a list of vehicle license numbers for its employees, for as long as Tenant\nmaintains such sticker system of identification. Landlord reserves the right,\nafter having given Tenant reasonable notice, to have any vehicles owned by\nTenant or its employees or invitees utilizing parking spaces in excess of the\nparking spaces allowed for Tenant's use to be towed away at Tenant's cost. All\ntrucks and delivery vehicles shall be (i) parked at the rear of the Premises,\n(ii) loaded and unloaded in a manner which does not interfere with the\nbusinesses of other occupants of the Property, and (iii) permitted to remain on\nthe Property only so long as is reasonably necessary to complete loading and\nunloading. In the event Landlord elects or is required by any Law to limit or\ncontrol parking in the Property, whether by validation of parking tickets or any\nother method of assessment, Tenant agrees to participate in such validation or\nassessment program under such reasonable rules and regulations as are from time\nto time established by Landlord, so long as such participation does not result\nin any increase in costs to Tenant.\n\n 4.8 Window Coverings. To the extent Tenant elects to use window\ncoverings visible from the exterior of the Premises, Tenant shall use the same\nwindow covering to cover all windows Tenant so elects to cover in the Premises\nto maintain a consistent and uniform exterior appearance.\n\n 4.9 Outside Sales. Tenant shall not conduct or permit to be\nconducted on any portion of the Common Area any sale of any kind, including (i)\nany public or private auction, fire sale, going-out-of-business sale, distress\nsale or other liquidation sale, or (ii) any so-called \"flea market\", open-air\nmarket or any other similar activity. Notwithstanding the foregoing, Tenant\nshall be allowed to conduct occasional sales outside of the Premises on that\npart of the Common Area that is in close proximity to the Premises so long as\neach of the following conditions is satisfied with respect to each such sale:\n(i) Landlord is given at least two (2) business days prior written notice of the\ndate of any such sale; (ii) such sale does not violate any Laws; (iii) such sale\nis conducted in a manner that does not interfere with the rights of other\noccupants of the Property; (iv) Tenant provides all necessary security, cleans\nup all debris, and repairs any damage caused by such sale; and (v) the purpose\nof such sale is to permit employees of Tenant to purchase or to receive free of\ncharge property of Tenant.\n\n 8.\n\n \n ARTICLE 5\n\n Trade Fixtures And Leasehold Improvements.\n\n 5.1 Trade Fixtures. Throughout the Lease Term, Tenant shall provide,\ninstall, and maintain in good condition all Trade Fixtures required in the\nconduct of its business in the Premises. All Trade Fixtures shall remain\nTenant's property.\n\n 5.2 Leasehold Improvements. The following provisions govern\nLeasehold Improvements constructed by Tenant:\n\n A. Tenant shall not construct any Leasehold Improvements or\notherwise alter the Premises without Landlord's prior approval if such action\nresults in the demolition, removal, or material alteration of existing\nImprovements (including partitions, wall and floor coverings, ceilings, lighting\nfixtures or other utility installations) and if the cost of such construction or\nalteration exceeds Fifteen Thousand Dollars ($15,000) per work of improvement or\nif the cost of Leasehold Improvements done, under construction, or for which\napproval is sought during any calendar quarter exceeds Twenty-Five Thousand\nDollars ($25,000). With respect to any Leasehold Improvements which must be\napproved by Landlord pursuant to the immediately preceding sentence, Tenant\nshall not commence construction of such Leasehold Improvements until Landlord\nshall have first approved the plans and specifications therefor, which approval\nshall be deemed given if not denied in writing within ten (10) working days\nafter Landlord shall have received Tenant's request for such approval. In no\nevent shall Tenant make any alterations to the Premises which could\nsignificantly affect the structural integrity or the exterior design of the\nPremises without Landlord's prior approval.\n\n B. All Leasehold Improvements requiring Landlord's approval\nshall be installed by Tenant in substantial compliance with the approved plans\nand specifications therefor. All construction undertaken by Tenant shall be done\nin accordance with all Laws and in a good and workmanlike manner using materials\nof good quality. Tenant shall not commence construction of any Leasehold\nImprovements until (i) all required governmental approvals and permits shall\nhave been obtained, (ii) all requirements regarding insurance imposed by this\nLease have been satisfied, and (iii) if reasonably requested by Landlord, Tenant\nshall have obtained contingent liability and broad form builders risk insurance\nin an amount reasonably satisfactory to Landlord if there are any perils\nrelating to the proposed construction not covered by insurance carried pursuant\nto Article 9. If Landlord so requests in writing with respect to Leasehold\nImprovements requiring Landlord's prior approval, Tenant shall inform Landlord\nof Tenant's scheduled date for commencement of construction at least five (5)\ndays prior to such date of commencement.\n\n C. At all times during the Lease Term, (i) Tenant shall maintain\nall plans and change orders prepared in connection with the construction of any\nLeasehold Improvements which required a building permit or other governmental\napproval, and (ii) Tenant shall provide to Landlord copies of such plans and\nchange orders (and, to the extent Tenant causes such to be prepared for its own\nuse, \"As-Built\" plans) at any time that Landlord requests copies thereof.\n\n D. All Leasehold Improvements shall remain the property of\nTenant during the Lease Term. Tenant shall have the right to remove only the\nfollowing kinds of Leasehold Improvements so long as it repairs all damage\ncaused by the installation thereof and returns the Premises to the condition\nexisting prior to the installation of such Leasehold Improvements: (i) built-in\ncabinets, file drawers and bookcases; (ii) computer room air conditioning; (iii)\ncanteen equipment; (iv) office cubicle systems; and (v) ornamental statues. At\nthe expiration or sooner termination of the Lease Term, all Leasehold\nImprovements that Tenant does not remove shall be surrendered to Landlord as a\npart of the realty and shall then become Landlord's property, and Landlord shall\nhave no obligation to reimburse Tenant for all or any portion of the value or\ncost thereof. However, if Landlord so requires, at the expiration or earlier\ntermination of the Lease Term, Tenant shall remove any Leasehold Improvements\ndesignated for removal by Landlord and shall restore the Premises to the\ncondition existing prior to the installation of such Leasehold Improvements to\nthe extent necessary to return the Premises to substantially the\n\n 9.\n\n \nsame condition that existed on the completion of the Interior Improvements\nconstructed pursuant to Exhibit \"C\", ordinary wear and tear excepted.\nNotwithstanding the foregoing:\n\n (1) Tenant shall only be required to remove Leasehold\nImprovements for which either of the following is true: (i) such Leasehold\nImprovements were not approved in writing by Landlord; or (ii) at the time\napproval was given by Landlord, Landlord informed Tenant in writing that\nLandlord would require that such Leasehold Improvements be removed at the\ntermination of the Lease Term.\n\n (2) Tenant my cause interior partitions to be moved,\nreconfigured, or removed altogether, or cause interior offices to be deleted or\nadded, all without the obligation to restore such partitions or interior offices\nto any prior condition upon expiration or termination of the Lease.\n\n 5.3 Alterations Required by Law. Tenant shall make any alteration,\naddition or change of any sort, whether structural or otherwise, to the Premises\nthat is required by any Law because of (i) a specific use or change of use made\nof the Premises by Tenant (which alteration, addition or change is not generally\nrequired to be made by owners or tenants of other properties similar to the\nPremises), (ii) Tenant's application for any permit or governmental approval, or\n(iii) Tenant's construction or installation of any Leasehold Improvements or\nTrade Fixtures.\n\n 5.4 Landlord's Improvements. All fixtures, improvements or equipment\nwhich are installed, constructed on or attached to the Property by Landlord at\nits expense shall become a part of the realty and belong to Landlord. Tenant\nshall pay additional rent in the event Landlord, in its sole discretion, elects\nto make any of the following kinds of capital improvements to the Property: (i)\ncapital improvements required to be constructed in order to comply with any Law\nnot in affect or applicable to the Property as of the Commencement Date; (ii)\nmodification of existing or construction of additional capital improvements or\nbuilding service equipment for the purpose of reducing the consumption of\nutility services or Common Operating Expenses of the Property; (iii) replacement\nof capital improvements or building service equipment existing as of the\nCommencement Date when required because of normal wear and tear; and (iv) the\namount of \"deductibles\" paid by Landlord for the restoration of any part of the\nProperty that has been damaged to the extent such \"deductible\" is not included\nwithin Common Operating Expenses. With respect to any expenditure in excess of\nFifty Thousand Dollars ($50,000) for which Landlord seeks contribution pursuant\nto this paragraph 5.4 from Tenant, prior to incurring such expense, Landlord\nshall notify Tenant of the nature and estimated amount of such expenditure and,\nif Tenant so requests, shall provide Tenant with such information upon which\nsuch cost estimate is based for Tenant's approval. The amount of additional\nrent Tenant is to pay with respect to each such capital improvement shall be\ndetermined as follows:\n\n A. Tenant shall have the option to pay in cash an amount equal\nto Tenant's Allocated Share of all costs paid by Landlord to construct the\nimprovements in question fairly allocable to the Premises (including financing\ncosts) in cash within thirty (30) days after the improvement has been\nsubstantially completed and Landlord has notified Tenant of the cost of such\nimprovement and the amount of Tenant's required contribution. If Tenant does not\nexercise such option to pay such amount in cash, then the provisions of\nsubparagraph 5.4B shall apply.\n\n B. All costs paid by Landlord to construct such improvement\n(including financing costs) shall be amortized on a straight line basis over the\nuseful life of such improvement (determined in accordance with generally\naccepted accounting principles) with interest on the unamortized balance at the\nthen prevailing market rate Landlord would pay if it borrowed funds to construct\nsuch improvement from an institutional lender, and Landlord shall inform Tenant\nof the monthly amortization payment required to so amortize such costs, and\nshall also provide Tenant with the information upon which such determination is\nmade. As additional rent, Tenant shall pay an amount equal to Tenant's\nAllocated Share of that portion of such monthly amortization payment fairly\nallocable to the Promises (as reasonably determined by Landlord) for each month\nafter such improvement is completed until the first to occur of (i) the\nexpiration of the Lease Term (as the same may be extended), or (ii) the end of\nthe term over which such costs were amortized, which amount shall be due at the\nsame time the Base Monthly Rent is due.\n\n 10.\n\n \n C. Notwithstanding anything contained in this paragraph 5.4, the\nadditional rent Tenant is to pay with respect to any modification of existing or\nconstruction of additional capital improvements or building service equipment\nfor the purpose of reducing the consumption of utility expenses or Common\nOperating Expenses of the Property shall not for any period exceed the actual\namount of savings in Additional Rent realized by Tenant as a result of such\nmodification or construction.\n\n 5.5 Liens. Tenant shall keep the Premises and the Property free from\nany liens and shall pay when due all bills arising out of any work performed,\nmaterials furnished, or obligations incurred by Tenant, its agents, employees or\ncontractors relating to the Premises. If any claim of lien is recorded, Tenant\nshall bond against or discharge the same within thirty (30) days after the same\nhas been recorded against the Premises and\/or the Property. Should any lien be\nfiled against the Premises or any action commenced affecting title to the\nPremises, the party receiving notice of such lien or action shall immediately\ngive the other party written notice thereof.\n\n ARTICLE 6\n\n Repair And Maintenance\n\n 6.1 Tenant's Obligation to Maintain. Except as otherwise provided in\nparagraph 6.2 and in Article 11 regarding the restoration of damage caused by\nfire and other perils, Tenant shall, at all times during the Lease Term, clean,\nkeep, and maintain in good order, condition, and repair the Premises and every\npart thereof, through regular inspections and servicing, including, but not\nlimited to, (i) all plumbing and sewage facilities (including all sinks,\ntoilets, faucets and drains), and all ducts, pipes, vents or other parts of the\nHVAC or plumbing system, (ii) all fixtures, interior walls, floors, carpets and\nceilings, (iii) all windows, doors, entrances, plate glass, showcases and\nskylights (including cleaning both interior and exterior surfaces), (iv) all\nelectrical facilities and all HVAC equipment and other mechanical systems\n(including all lighting fixtures, lamps, bulbs, tubes, fans, vents, exhaust\nequipment and systems), (v) any automatic fire extinguisher equipment in the\nPremises, and (vi) the roof membrane (including any necessary resurfacing or\npatching to preserve the membrane or to repair leaks except that Tenant shall\nnot be required to make any repair to the extent such repair is required because\nof Landlord's repair or maintenance of the structural roof system). Tenant\nshall replace any damaged or broken glass in the Premises (including all\ninterior and exterior doors and windows) with glass of the same kind, size and\nquality. Tenant shall repair any damage to the Premises (including exterior\ndoors and windows) caused by vandalism or any unauthorized entry. Tenant shall\nmaintain continuously throughout the Lease Term a service contract for the\nmaintenance of all HVAC equipment serving the Premises with a licensed HVAC\nrepair and maintenance contractor, which contract provides for the periodic\ninspection and servicing of the HVAC equipment at least once every sixty (60)\ndays during the Lease Term. Tenant shall also maintain continuously throughout\nthe Lease Term a service contract for the washing of all windows (both interior\nand exterior surfaces) in the Premises with a contractor, which contract\nprovides for the periodic washing of all such windows on such basis as shall\nkeep the exterior appearance of the Premises in first class condition, but no\nless frequently than once, every calendar year. If and when Landlord so\nrequests in writing, Tenant shall furnish Landlord with copies of all such\nservice contracts. All repairs and replacements required of Tenant shall be\npromptly made with materials of good quality. If the work affects the\nstructural parts of the Premises or if the estimated cost of any item of repair\nor replacement is in excess of Fifteen Thousand Dollars ($15,000), then Tenant\nshall first obtain Landlord's written approval of the scope of work, plans\ntherefor, and materials to be used, except in the case of emergency in which\nevent Tenant shall within a reasonable period of time after performing the work,\nnotify Landlord of the scope of the work performed and the materials used, and\nshall furnish Landlord with the plans therefor.\n\n 6.2 Landlord's Obligation to Maintain. Landlord, at its cost without\nright of reimbursement from Tenant, shall be responsible for the maintenance,\nrepair, and replacement of the structural parts of the Premises (i.e.,\nfoundation, first and second story floor slab and second story floor deck, load-\nbearing walls, and structural roof system, but excluding roof membrane) except\nto the extent that (i) the same is necessitated by the wrongful or negligent\nact or omission of Tenant, its subtenants, or their respective agents,\nemployees, contractors, or invitees, or (ii) reimbursement is permitted pursuant\nto paragraph 5.4 hereof. Landlord at its cost without right of reimbursement\nfrom Tenant, shall repair damage to interior improvements and Leasehold\nImprovements that have been approved by Landlord pursuant to the terms hereof,\nor damage to the roof membrane of the Premises if caused by the maintenance work\nrequired to be performed by Landlord pursuant to the provisions of this\nparagraph. \n\n 11.\n\n \nLandlord shall repair, maintain, operate and replace when necessary the Common\nArea, with such right of reimbursement from Tenant as is specified in paragraphs\n5.4 and 6.3. The parties acknowledge that the air-conditioning units located on\nthe roof of the Premises were installed when the Building was constructed and\nsubsequently have not operated. Landlord agrees to make any repairs necessary to\nput such units in good operating condition, if within the six month period\nfollowing the Commencement Date, Tenant notifies Landlord in writing of the need\nfor such repairs. Landlord shall not be responsible for repairs required by an\naccident, fire or other peril except as otherwise required by Article 11, or for\ndamage caused to any part of the Property by any act, negligence or omission of\nTenant or its agents, contractors, employees or invitees. Landlord may engage\ncontractors of its choice to perform the obligations required of it by this\nArticle, and the necessity of any expenditure to perform such obligations shall\nbe at the sole discretion of Landlord.\n\n 6.3 Tenant's Obligation to Reimburse. As additional rent, commencing\non the Rent Start Date and continuing throughout the remainder of the Lease\nTerm, Tenant shall pay Tenant's Allocated Share of all Common Operating Expenses\nfairly allocable to the Premises including (i) all Common Operating Expenses\npaid with respect to the maintenance, repair, replacement and use of the\nPremises and (ii) a proportionate share (based on the Premises Gross Leaseable\nArea as a percentage of the Property Gross Leaseable Area) of all Common Area\nExpenses which relate to Property in general and are not fairly allocable to any\none building on the Property. Landlord agrees that it shall not recover from\nall tenants of the Property more than one hundred percent (100%) of the actual\nCommon Operating Expenses incurred by Landlord for the period in question. As\nprovided in paragraph 3.3, Tenant's obligation to pay Tenant's Allocated Share\nof Common Operating Expenses fairly allocable to the Premises shall be prorated\nas of the Rent Start Date and at the expiration or earlier termination of the\nLease Term, and if Tenant has paid any amount on account of Common Operating\nExpenses relating to a period that is not within the Lease Term (e.g.,\nprepayment of insurance premiums for one year), such amount shall be reimbursed\nto Tenant in connection with such proration. Payment shall be made by whichever\nof the following methods is from time to time designated by Landlord, and\nLandlord may change the method of payment at any time so long as (i) Landlord\ngives Tenant at least sixty (60) days prior written notice, and (ii) the method\nis not changed more than once in any calendar year. Tenant shall pay such share\nof the actual Common Operating Expenses incurred or paid by Landlord but not\ntheretofore billed to Tenant within thirty (30) days after receipt of a written\nbill therefor from Landlord, on such periodic basis as Landlord shall designate,\nbut in no event more frequently than once a month. Alternatively, (i) Landlord\nshall deliver to Tenant Landlord's reasonable estimate of the Common Operating\nExpenses it anticipates will be paid or incurred for the calendar year in\nquestion, (ii) during such calendar year, Tenant shall pay such share of the\nestimated Common Operating Expenses in advance in monthly installments as\nrequired by Landlord due with the installments of Base Monthly Rent, and (iii)\nwithin ninety (90) days after the end of each calendar year, Landlord shall\nfurnish to Tenant a statement in reasonable detail of the actual Common\nOperating Expenses paid or incurred by Landlord during the just ending calendar\nyear and thereupon there shall be an adjustment between Landlord and Tenant,\nwith payment to Landlord or credit by Landlord against the next installment of\nBase Monthly Rent, as the case may require, within thirty (30) days after\ndelivery by Landlord to Tenant of said statement, so that Landlord shall receive\nthe entire amount of Tenant's share of all Common Operating Expenses for such\ncalendar year and no more. Tenant and its agents (including accountants) shall\nhave the right at its expense, exercisable upon reasonable prior written notice\nto Landlord, to inspect at Landlord's office during normal business hours\nLandlord's books and records as they relate to Common Operating Expenses. Such\ninspection must be made within one hundred eighty (180) days of Tenant's receipt\nof Landlord's annual statement for the same, and shall be limited to\nverification of the charges contained in such statement. Tenant may not\nwithhold payment of such bill pending completion of such inspection.\n\n 6.4 Common Operating Expenses Defined. The term \"Common Operating\nExpenses\" shall mean the sum of the following:\n\n A. All costs and expenses paid or incurred by Landlord in doing\nthe following (including payments to independent contractors providing services\nrelated to the performance of the following): (i) maintaining, cleaning, and\nrepairing the exterior surfaces (including painting of exterior surfaces of\nbuildings not more than once every 5 years) of all buildings located on the\nProperty; (ii) maintenance of the liability, fire and property damage insurance\ncovering the Property carried by Landlord pursuant to paragraph 9.2 (including\nthe payment of commercially reasonable \"deductibles\" and the prepayment of\npremiums for coverage of up to one year); (iii) maintaining, repairing,\noperating and replacing when necessary HVAC equipment, utility facilities and\n\n 12.\n\n \nother building service equipment; (iv) providing utilities to the Common Area\n(including lighting, trash removal and water for landscaping irrigation); (v)\ncomplying with all applicable Laws and Private Restrictions; (vi) operating,\nmaintaining, repairing, cleaning, painting, restriping and resurfacing the\nCommon Area; (vii) replacement or installation of lighting fixtures, directional\nor other signs and signals, irrigation systems, tress, shrubs, ground cover and\nother plant materials, and all landscaping in the Common Area; and (viii)\ndepreciation and financing costs on maintenance and operating machinery and\nequipment (if owned) and rental paid for such machinery and equipment (if\nrented);\n\n B. All additional costs and expenses incurred by Landlord with\nrespect to the operation, protection, maintenance, repair and replacement of the\nProperty which pursuant to generally accepted accounting principles would be\nconsidered a current expense and not a capital expenditure;\n\n C. That portion of all compensation (including benefits and\npremium for workers' compensation and other insurance) paid to or on behalf of\nemployees of Landlord but only to the extent they are involved in the\nperformance of the work described by subparagraphs A and B above and that is\nfairly allocable to the Property;\n\n D. An additional amount equal to a commercially reasonable and\ncompetitive management fee that would be charged by an independent third party\nproperty manager for the management of the Property (except that Tenant's\nAllocated Share of such management fee for any period shall not exceed two\npercent (2%)of the Base Monthly Rent and Additional Rent payable by Tenant for\nthe same period); and\n\n E. Notwithstanding anything contained herein, the term \"Common\nOperating Expenses\" shall not include any of the following: (i) mortgage\nprinciple payments; (ii) ground rent and other payments made pursuant to any\nground lease affecting the Property; (iii) the cost of refinancing any loan\nSecured by the Property; (iv) interest and penalties imposed against Landlord\nfor late payments by Landlord; (v) legal fees incurred by Landlord in connection\nwith the negotiation or enforcement of, or litigation in connection with, any\nlease affecting the Property; (vi) the cost of any paintings, sculptures, or\nother art objects installed on the Property; (vii) any costs reimbursed to\nLandlord by insurance or other third party payments that are not reimbursements\nby tenants for their share of Common Operating Expenses; (viii) brokerage\ncommissions or other costs related to the leasing of space within the Property;\n(ix) the cost of any tenant improvements installed for the exclusive use of any\nother tenant of the Property.\n\n 6.5 Control of Common Area. Landlord shall at all times have\nexclusive control of the Common Area. Landlord shall have the right, without\nthe same constituting an actual or constructive eviction and without entitling\nTenant to any abatement of rent, to: (i) close any part of the Common Area to\nthe minimum extent reasonably necessary in the reasonable opinion of Landlord's\ncounsel to prevent a dedication thereof or the accrual of any prescriptive\nrights therein; (ii) temporarily close the Common Area to perform maintenance or\nfor any other reason deemed sufficient by Landlord; (iii) designate other\nproperty outside the boundaries of the Property to become part of the Property;\n(iv) construct multi-deck parking structures in any part of the Common Area; (v)\nchange the shape, size, location, number and extent of improvements on the\nCommon Area; (vi) select a third party to maintain and operate any of the Common\nArea at any time Landlord determines that the best interests of the Property\nwill be served by having the Common Area maintained and operated by that third\nparty so long as the fees and charges of such third party are reasonable and\ncompetitive with the fees of others in the marketplace providing the same\nservices; (vii) make changes to the Common Area including, without limitation,\nchanges in the location of driveways, parking spaces, parking areas, sidewalks\nor the direction of the flow of traffic and the site of the Common Area; and\/or\n(viii) voluntarily change the address of the Property. Landlord agrees not to\nchange the name of Airport Technology Park without the prior consent of Tenant.\nThe use of the Common Area shall be subject to such reasonable regulation and\nchanges therein as Landlord shall make from time to time. Landlord shall not\nexercise its rights to control the Common Area in a manner that would materially\ninterfere with Tenant's use of the Premises without first obtaining Tenant's\napproval. Tenant shall keep the Common Area free and clear of all obstructions\ncreated or permitted by Tenant. If in the opinion of Landlord unauthorized\npersons are using any of the Common Area by reason of the presence of Tenant in\nthe Premises, Tenant, upon demand of Landlord, shall restrain such unauthorized\nuse by appropriate proceedings. Nothing herein shall affect the right of\nLandlord at any time to remove such unauthorized person from the Common Area nor\nto prohibit the use of the Common Area by \n\n 13.\n\n \nunauthorized persons. In exercising any such rights described in this paragraph\n6.5 regarding the Common Area, Landlord shall make a reasonable effort to\nminimize any disruption to Tenant's business.\n\n 6.6 Tenant's Negligence. Anything in this Lease to the contrary\nnotwithstanding, Tenant shall pay for all damage to the Premises or the Property\ncaused by the negligent act or omission of Tenant, its employees, contractors,\nor invitees, or by the failure of Tenant to discharge promptly its obligations\nunder this Lease, or to comply with the terms of this Lease, but only to the\nextent such damage is not covered by insurance proceeds actually recovered by\nLandlord. Tenant shall make payment within thirty (30) days after demand\ntherefor by Landlord.\n\n ARTICLE 7\n\n Waste Disposal And Utilities\n\n 7.1 Waste Disposal. Tenant shall store its waste either inside the\nPremises or within outside trash enclosures that are (i) fully fenced and\nscreened in compliance with all Private Restrictions, (ii) designed for such\npurpose to be used either exclusively by Tenant or in common with other\noccupants of the Property, as designated by Landlord, and (iii) first approved\nby Landlord. All entrances to such outside trash enclosures shall be kept\nclosed, and waste shall be stored in such manner as not to be visible from the\nexterior of such outside enclosures. Tenant shall cause all of its waste to be\nregularly removed from the Property at Tenant's sole cost. Tenant shall keep\nall fire corridors and mechanical equipment rooms in the Premises free and clear\nof all obstructions at all times.\n\n 7.2 Hazardous Materials. Landlord and Tenant agree as follows with\nrespect to the existence or use of Hazardous Materials on the Property:\n\n A. Landlord hereby makes the following representations to Tenant\neach of which is made to the best of Landlord's knowledge as of the Commencement\nDate:\n\n (1) The soil and ground water on or under the Property does\nnot contain Hazardous Materials in amounts which violate any Hazardous Materials\nLaws to the extent that any governmental entity could require either Landlord or\nTenant to take any remedial action or impose any penalties with respect to such\nHazardous Materials.\n\n (2) During Landlord's period of ownership, no litigation or\nany administrative proceeding has been brought or threatened, nor any\nsettlements reached with any governmental or private party, concerning the\nactual or alleged presence of Hazardous Materials on or about the Property or\nany disposal, release or threatened release of Hazardous Materials in or about\nthe Property.\n\n (3) During the time that Landlord has owned the Property,\nLandlord has received no notice of (i) any violation, or alleged violation, of\nany Hazardous Material Law that has not been corrected to the satisfaction of\nthe appropriate authority, (ii) any pending claims relating to the presence of\nHazardous Material on the Property, or (iii) any pending investigation by any\ngovernmental agency concerning the Property relating to Hazardous Materials.\n\n (4) The Property does not contain any (i) equipment\ncontaining PCBs, or (ii) underground storage tanks.\n\n B. Any handling, transportation, storage, treatment, disposal or\nuse of Hazardous Materials by Tenant and Tenant's agents, employees,\ncontractors, invitees or subtenants after the Commencement Date in or about the\nProperty shall strictly comply with all applicable Hazardous Materials Laws.\nTenant shall indemnify, defend upon demand with counsel reasonably acceptable to\nLandlord, and hold harmless Landlord from and against any and all liabilities,\nlosses, claims, damages, interest, penalties, fines, monetary sanctions,\nattorneys' fees, experts' fees, court costs, remediation costs, investigation\ncosts, and other expenses which result from or arise in any manner whatsoever\nout of the use, storage, treatment, transportation, release, or disposal of\nHazardous Materials on or about\n\n 14.\n\n \nthe Property by Tenant or Tenant's agents, employees, contractors, invitees or\nsubtenants after the Commencement Date.\n\n C. If the presence of Hazardous Materials on the Property caused\nor permitted by Tenant or Tenant's agents, employees, contractors, invitees or\nsubtenants after the Commencement Date results in contamination or deterioration\nof water or soil resulting in a level of contamination greater than the levels\nestablished, is acceptable by any governmental agency having Jurisdiction over\nsuch contamination, then Tenant shall promptly take any and all action necessary\nto clean up such contamination if required by Law or as a condition to the\nissuance or continuing effectiveness of any governmental approval which relates\nto the use of the Property or any part thereof. Tenant shall further be solely\nresponsible for, and shall defend, indemnify and hold Landlord and its agents\nharmless from and against, all claims, costs and liabilities, including\nattorneys' fees and costs, arising out of or in connection with any removal,\nclean-up and restoration work and materials required hereunder to return the\nProperty to its condition existing prior to the appearance of such Hazardous\nMaterials.\n\n D. Landlord and Tenant shall each give written notice to the\nother as soon as reasonably practicable of (i) any communication received from\nany governmental authority concerning Hazardous Materials which relates to the\nProperty, and (ii) any contamination of the Property by Hazardous Materials\nwhich constitutes a violation of any Hazardous Materials Law. Landlord and\nTenant each agree to keep such information confidential, except for (i)\ndisclosures that are approved by the other party, (ii) disclosures required by\nLaw or court order, (iii) disclosures to any environmental consultant, lender,\npurchaser, prospective purchaser, attorneys for either Landlord or Tenant, or\nbrokers for either Landlord or Tenant, so long as an agreement of\nconfidentiality is obtained from a party to whom the disclosure is to be made,\nand (iv) disclosures in connection with any litigation or administrative\nproceeding in which either Landlord or Tenant is involved. Tenant and Tenant's\nagents, employees, contractors, invitees or subtenants shall not bring Hazardous\nMaterials onto the Property without first obtaining the written consent of\nLandlord; provided, however, Tenant may, without being required to obtain the\nprior written consent of Landlord, use at the Premises in small quantities\noffice supplies, cleaning materials and other maintenance materials that are\ncustomarily used in business offices, even though such supplies and materials\nmay fall within the definition of Hazardous Materials. At any time during the\nLease Term, Tenant shall, within five days after written request therefor\nreceived from Landlord, disclose in writing all Hazardous Materials that are\nbeing used by Tenant on the Property, the nature of such use, and the manner of\nstorage and disposal.\n\n E. Landlord may cause testing wells to be installed on the\nProperty, and may cause the ground water to be tested to detect the presence of\nHazardous Material by the use of such tests as are then customarily used for\nsuch purposes. Any such installation of wells or tests shall be done in a manner\nwhich minimizes the interference with Tenant's use of the Premises. If Tenant so\nrequests, Landlord shall supply Tenant with copies of such test results. The\ncost of such tests and of the installation, maintenance, repair and replacement\nof such wells shall be paid by Tenant if such tests disclose the existence of\nfacts which give rise to liability of Tenant pursuant to its indemnity given in\nsubparagraph 7.2B or 7.2C, and Tenant's liability is established in a judicial\nor administrative proceeding, or in an action for declaratory relief brought by\nLandlord.\n\n F. Landlord, at its sole cost, shall comply with all Hazardous\nMaterials Laws affecting the Property (without right of reimbursement from\nTenant) to the extent that (i) Landlord is legally obligated to do so by such\nLaws, and (ii) such compliance (or the cost of such compliance) is not made the\nresponsibility of Tenant pursuant to subparagraph 7.2B or subparagraph 7.2C.\nLandlord shall indemnify, defend upon demand with competent counsel, and hold\nharmless Tenant from and against any and all liability for response costs\nimposed upon Tenant by any governmental agency pursuant to the federal Law known\nas \"CERCLA\" (more particularly identified in subparagraph 7.2G) and the\ncomparable California statute (commonly known as the Carpenter-Presley-Tanner\nHazardous Substances Account Act, California Health and Safety Code Section\n25300 et seq.) that results from the presence of Hazardous Materials on the\nProperty not caused or contributed to by the use, storage, treatment, release or\ndisposal of Hazardous Materials on or about the Property by Tenant, its\nsubtenants, or their respective agents, employees, contractors, or invitees.\nNotwithstanding the foregoing, the indemnity given by Landlord in the\nimmediately preceding sentence shall not apply with respect to liability caused\nby any contamination of the Property by a Hazardous Material that is or has been\nused, stored, treated, released or disposed of on the Property by Tenant, its\nsubtenants, or their respective agents, employees, contractors, or invitees\nunless Tenant can prove such contamination was not caused or contributed to by\nany of such parties.\n\n 15.\n\n \n G. As used herein, the term \"Hazardous Material,\" means any\nhazardous or toxic substance, material or waste which is or becomes regulated by\nany local governmental authority, the State of California or the United States\nGovernment. The term \"Hazardous Material,\" includes, without limitation,\nasbestos, PCB's, petroleum and petroleum products, and any material or substance\nwhich in (i) listed under Article 9 or defined as hazardous or extremely\nhazardous pursuant to Article 11 of Title 22 of the California Administrative\nCode, Division 4, Chapter 20, (ii) defined as a \"hazardous waste\" pursuant to\nSection 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.\n(S)6901 et seq. (42 U.S.C. (S)6903), or (iii) defined as a \"hazardous substance\"\npursuant to Section 101 of the Comprehensive Environmental Response,\nCompensation and Liability Act (\"CERCLA\"), 42 U.S.C. (S)9601 et seq. (42 U.S.C.\n19601). As used herein, the term \"Hazardous Material Law\" shall mean any\nstatute, law, ordinance, or regulation of any governmental body or agency\n(including the U.S. Environmental Protection Agency, the California Regional\nWater Quality Control Board, and the California Department of Health Services)\nwhich regulates the use, storage, release or disposal of any Hazardous Material.\n\n H. The obligations of Landlord and Tenant under this paragraph\n7.2 shall survive the expiration or earlier termination of the Lease Term. The\nrights and obligations of Landlord and Tenant with respect to issues relating to\nHazardous Materials are exclusively established by this paragraph 7.2. In the\nevent of any inconsistency between any other part of this Lease and this\nparagraph 7.2, the terms of this paragraph 7.2 shall control.\n\n 7.3 Utilities. Tenant shall promptly pay, as the same become due,\nall charges for water, gas, electricity, telephone, sewer service, waste pick-up\nand any other utilities, materials or services furnished directly to or used by\nTenant on or about the Premises during the Lease Term, including, without\nlimitation, (i) meter, use and\/or connection fees, hook-up fees, standby fees,\nand (ii) penalties for discontinued or interrupted service.\n\n 7.4 Compliance with Governmental Regulations. Landlord and Tenant\nshall comply with all rules, regulations and requirements promulgated by\nnational, state or local governmental agencies or utility suppliers concerning\nthe use of utility services, including any rationing, limitation or other\ncontrol. Landlord may voluntarily cooperate in a reasonable manner with the\nefforts of all governmental agencies or utility suppliers in reducing energy or\nother resource consumption. Tenant shall not be entitled to terminate this\nLease nor to any abatement in rent by reason of such compliance or cooperation.\nTenant agrees at all times to cooperate fully with Landlord and to abide by all\nrules, regulations and requirements which Landlord may prescribe in order to\nmaximize the efficient operation of the HVAC system and all other utility\nsystems.\n\n ARTICLE 8\n\n Real Property Taxes\n\n 8.1 Real Property Taxes Defined. The term \"Real Property Taxes\" as\nused herein shall mean (i) all taxes, assessments, levies, and other charges of\nany kind or nature whatsoever, general and special, foreseen and unforeseen\n(including all installments of principal and interest required to pay any\nexisting or future general or special assessments for public improvements,\nservices or benefits, and any increases resulting from reassessments or\nresulting from a change in ownership or any other cause), now or hereafter\nimposed by any governmental or quasi-governmental authority or special district\nhaving the direct or indirect power to tax or levy assessments, which are levied\nor assessed against, or with respect to the value, occupancy or use of, all or\nany portion of the Property (as now constructed or as may at any time hereafter\nbe constructed, altered, or otherwise changed) or Landlord's interest therein,\nthe fixtures, equipment and other property of Landlord, real or personal, that\nare an integral part of and located on the Property, the gross receipts, income,\nor rentals from the Property, or the use of parking areas, public utilities, or\nenergy within the Property, (ii) all charges, levies or fees imposed by reason\nof environmental regulation or other governmental control of the Property\n(excluding costs and expenses for which Landlord is responsible pursuant to\nsubparagraph 7.2F), and (iii) all costs and fees (including attorneys' fees)\nincurred by Landlord in contesting any Real Property Tax and in negotiating with\npublic authorities as to any Real Property Tax. If at any time during the Lease\nTerm the method of taxation or assessment of the Property prevailing as of the\nCommencement Date shall be altered so that in lieu of or in addition to any Real\nProperty Tax described above there shall be levied, assessed or imposed (whether\nby reason of a change in the method of taxation or assessment, creation of a new\ntax or charge, or any other cause) an alternate or additional tax or charge (i)\non the value, use or \n\n 16.\n\n \noccupancy of the Property, (ii) on or measured by the gross receipts, income, or\nrentals from the Property, (iii) on Landlord's business of leasing the Property,\nor (iv) computed in any manner with respect to the operation of the Property,\nthen any such tax or charge, however designated, shall be included within the\nmeaning of the term \"Real Property Taxes\" for purposes of this Lease. If any\nReal Property Tax is based upon property or rents unrelated to the Property,\nthen only that part of such Real Property Tax that is fairly allocable to the\nProperty shall be included within the meaning of the term \"Real Property Taxes\".\nNotwithstanding the foregoing, the term \"Real Property Taxes\" shall not include\nestate, inheritance, transfer, gift or franchise taxes of Landlord or the\nfederal or state net income tax imposed on Landlord's income from all sources.\n\n 8.2 Tenant's Obligation to Reimburse. As Additional Rent, Tenant\nshall pay to Landlord Tenant's Allocated Share of all Real Property Taxes which\nbecome due after the Rent Start Date and during the Lease Term which are fairly\nallocable to the Premises, which include (i) all Real Property Taxes assessed\nwith respect to the value, use or occupancy of the Premises and the land beneath\nit, and (ii) a proportionate share (based on the Premises Gross Leaseable Area\nas a percentage of the Property Gross Leaseable Area) of all Real Property Taxes\nassessed with respect to the Common Area or with respect to the Property in\ngeneral which are not fairly allocable to any one building on the Property.\nTenant shall pay its share of Real Property Taxes (i) within thirty (30) days\nafter being billed for the same by Landlord, or (ii) no later than ten (10) days\nbefore such Real Property Tax becomes delinquent, whichever last occurs. If\nrequested by Tenant in writing within one year from receipt of a bill for\nTenant's Allocated Share of Real Property Taxes, Landlord shall furnish Tenant\nwith such evidence as is reasonably available to Landlord with respect to the\namount of any Real Property Tax which is part of such bill. Tenant may not\nwithhold payment of such bill pending receipt and\/or review of such evidence.\nUpon Landlord's election or if any Lender requires Landlord to impound Real\nProperty Taxes on a periodic basis during the Lease Term, then Tenant, on notice\nfrom Landlord indicating this requirement, shall pay a sum of money toward its\nliability under this Article to Landlord on the same periodic basis in\naccordance with the Lender's requirements (if any). Landlord shall impound the\nReal Property Tax payments received from Tenant in accordance with the\nrequirements of the Lender (if any). If any assessments are levied against the\nProperty, Landlord may elect either to pay the amount in full or to allow the\nassessment to go to bond. If Landlord pays the assessment in full, Tenant shall\npay to Landlord each time payment of Real Property Taxes is made a sum equal to\nthat which would have been payable (as both principal and interest) had Landlord\nallowed the assessment to go to bond. Notwithstanding anything to the contrary\ncontained in paragraphs 8.1 and 8.2, if there is an increase in Real Property\nTaxes resulting from a \"change in ownership\" (as that term is defined in\nCalifornia Revenue and Taxation Code Section 60 et seq.) which occurs prior to\nthe fourth (4th) anniversary of the Commencement Date, then Tenant shall not be\nobligated to pay any such increase that results from such \"change of ownership\".\n\n 8.3 Taxes on Tenant's Property. Tenant shall pay before delinquency\nany and all taxes, assessments, license fees and public charges levied, assessed\nor imposed against Tenant or Tenant's estate in this Lease or the property of\nTenant situated within the Premises which become due during the Lease Term.\nTenant shall furnish Landlord with satisfactory evidence of these payments\nwithin thirty (30) days after receipt of written request therefor from Landlord.\n\n ARTICLE 9\n\n Insurance\n\n 9.1 Tenant's Insurance. Tenant shall maintain insurance complying\nwith all of the following:\n\n A. Tenant shall procure, pay for and keep in full force and\naffect the following:\n\n (1) Commercial general liability insurance, including\nproperty damage, against liability for personal injury, bodily injury, death and\ndamage to property occurring in or about, or resulting from an occurrence in or\nabout, the Premises with combined single limit coverage of not less than the\namount of Tenant's Minimum Liability Insurance Coverage set forth in paragraph\n1.8, which insurance shall contain a \"contractual liability\" endorsement\ninsuring Tenant's performance of Tenant's obligation to indemnify Landlord\ncontained in paragraph 10.3;\n\n 17.\n\n \n (2) Plate-glass insurance, at actual replacement cost; and\n\n (3) Fire and property damage insurance against loss caused by\nfire, extended coverage perils including steam boiler insurance, sprinkler\nleakage, if applicable, vandalism, malicious mischief and such other additional\nperils as now are or hereafter may be included in a standard extended coverage\nendorsement from time to time in general use in the county in which, the\nProperty is located, insuring Tenant's personal property, inventory, Trade\nFixtures and Leasehold Improvements within the Premises for the full actual\nreplacement cost thereof.\n\n B. Where applicable and required by Landlord, each policy of\ninsurance required to be carried by Tenant pursuant to this paragraph (i) shall\nname Landlord and such other parties in interest as Landlord designates as\nadditional insureds; (ii) shall be primary insurance which provides that the\ninsurer shall be liable for the full amount of the loss up to and including the\ntotal amount of liability set forth in the declarations without the right of\ncontribution from any other insurance coverage of Landlord; (iii) shall be in a\nform satisfactory to Landlord; (iv) shall be carried with companies reasonably\nacceptable to Landlord; (v) shall provide that such policy shall not be subject\nto cancellation, lapse or change except after at least thirty (30) days prior\nwritten notice to Landlord; (vi) shall not have a \"deductible\" in excess of\n$500,000 or such greater amount as is approved by Landlord; (vii) shall (to the\nextent available) contain a waiver by the insurer of any right to subrogation\nagainst Landlord, its agents, employees and contractors which might arise by\nreason of any payment under such policy or by reason of any act or omission of\nLandlord, its agents, employees or contractors; and (viii) shall contain a\n\"severability\" clause. If Tenant has in force and affect a blanket policy of\nliability insurance with the same coverage for the Premises as described above,\nas well as other coverage of other premises and properties of Tenant, or in\nwhich Tenant has some interest, such blanket insurance shall satisfy the\nrequirements hereof.\n\n C. A certificate of each paid-up policy evidencing the insurance\nrequited to be carried by Tenant pursuant to this paragraph (appropriately\nauthenticated by the insurer), certifying that such policy has been issued,\nproviding the coverage required by this paragraph, and containing the provisions\nspecified herein, shall be delivered to Landlord prior to the time Tenant or any\nof its contractors enters the Premises and upon renewal of such policies, but\nnot less than five (5) days prior to the expiration of the term of such\ncoverage. If Landlord's insurance advisor reasonably determines at any time\nthat the amount of coverage required for any policy of insurance Tenant is to\nobtain pursuant to this paragraph is not adequate, then Tenant shall increase\nsuch coverage for such insurance to such amount as Landlord's insurance advisor\nreasonably deems adequate, not to exceed the level of coverage commonly carried\nby comparable businesses similarly situated for such insurance; provided,\nhowever, that Landlord may not require an adjustment pursuant to this sentence\nmore frequently than once every two (2) years during the Lease Term.\n\n 9.2 Landlord's Insurance. Landlord shall have the following\nobligations and options regarding insurance:\n\n A. Landlord shall maintain a policy or policies of fire and\nproperty damage insurance in so-called \"all risk\" form insuring Landlord (and\nsuch others as Landlord may designate) against loss of rents for a period of not\nless than six, (6) months and from physical damage to the Premises with coverage\nof not less than the full replacement cost of (i) the building of which the\nPremises are a part, including the structural elements thereof and all\nelectrical, mechanical, plumbing, and other systems, and (ii) all Interior\nImprovements constructed pursuant to the Interior Improvement Agreement attached\nas Exhibit \"C\". Landlord may so insure the Premises separately, or may insure\nthe Premises with other buildings and improvements within the Property and\/or\nother property owned by Landlord which Landlord elects to insure together under\nthe same policy or policies. Such fire and property damage insurance, at\nLandlord's election, (i) may be endorsed to cover loss caused by such additional\nperils against which Landlord may elect to insure, including earthquake and\/or\nflood, (ii) shall contain commercially reasonable \"deductibles\" which, in the\ncase of earthquake and flood insurance, may be up to ten percent (10%) of the\nreplacement value of the property insured or such higher amount as is then\ncommercially reasonable, (iii) may provide coverage for loss of rents for a\nperiod of up to twelve (12) months, and (iv) may contain additional endorsements\nor coverage reasonably required by Landlord or any Lender, including an \"agreed\namount\" endorsement, demolition insurance (covering the cost of demolishing\ndamaged improvements or improvements required by Law to be demolished), and\ndifference in condition coverage. Landlord shall not be required to cause\n\n 18.\n\n \nsuch insurance to cover any Trade Fixtures, Leasehold Improvements or any\ninventory or other personal property of Tenant.\n\n B. Landlord may maintain a policy or policies of commercial\ngeneral liability insurance insuring Landlord (and such others as are designated\nby Landlord) against liability for personal injury, bodily injury, death and\ndamage to property occurring or resulting from an occurrence in, on or about the\nProperty, with combined single limit coverage in such amount as Landlord may\nfrom time to time determine is reasonably necessary for its protection and with\ncommercially reasonable deductibles.\n\n 9.3 Tenant's Obligation to Reimburse. The cost of the insurance\ncarried by Landlord pursuant to paragraph 9.2 (and any commercially reasonable\n\"deductible\" amount paid by Landlord in connection with the restoration of any\nlose and excluded from the coverage of such insurance) shall be a Common\nOperating Expense and Tenant shall pay its share thereof as provided in\nparagraph 6.3. However, if Landlord's insurance rates for the Premises are\nincreased at any time during the Lease Term as a result of the nature of\nTenant's use of the Premises, Tenant shall reimburse Landlord for the full\namount of such increase immediately upon receipt of a bill from Landlord\ntherefor.\n\n 9.4 Release and Waiver of Subrogation. The parties hereto release\neach other, and their respective agents and employees, from any liability for\ninjury to any person or damage to property that is caused by or results from any\nrisk insured against under any valid and collectible insurance policy carried by\neither of the parties which contains a waiver of subrogation by the insurer and\nis in force at the time of such injury or damage, subject to the following\nlimitations: (i) the foregoing provisions shall not apply to the commercial\ngeneral liability insurance described by subparagraph 9.1A and 9.1B; and (ii)\nsuch release shall apply to liability resulting from any risk insured against or\ncovered by self-insurance maintained or provided by Tenant to satisfy the\nrequirements of paragraph 9.1. This release shall be in effect only so long as\nthe applicable insurance policy contains a clause to the effect that this\nrelease shall not affect the right of the insured to recover under such policy.\nEach party shall use reasonable efforts to cause each insurance policy obtained\nby it to provide that the insurer waives all right of recovery by way of\nsubrogation against the other party and its agents and employees in connection\nwith any injury or damage covered by such policy. However, if any insurance\npolicy cannot be obtained with such a waiver of subrogation, or if such waiver\nof subrogation is only available at additional cost and the party for whose\nbenefit the waiver is to be obtained does not pay such additional cost, then the\nparty obtaining such insurance shall notify the other party of that fact and\nthereupon shall be relieved of the obligation to obtain such waiver of\nsubrogation rights from the insurer with respect to the particular insurance\ninvolved.\n\n ARTICLE 10\n\n Limitation On Landlord's Liability And Indemnity\n\n 10.1 Limitation on Landlord's Liability. Landlord shall not be\nliable to Tenant, nor shall Tenant be entitled to terminate this Lease or to any\nabatement of rent, for any injury to Tenant, its agents, employees, contractors\nor invitees, damage to Tenant's property, or loss to Tenant's business resulting\nfrom any cause, including without limitation any (i) failure, interruption or\ninstallation of any HVAC or other utility system or service; (ii) failure to\nfurnish or delay in furnishing any utilities or services when such failure or\ndelay is caused by Acts of God or the elements, labor disturbances of any\ncharacter, any other accidents or other conditions beyond the reasonable control\nof Landlord; (iii) limitation, curtailment, rationing or restriction on the use\nof water or electricity, gas or any other form of energy or any services or\nutility serving the Premises; (iv) vandalism or forcible entry by unauthorized\npersons; or (v) penetration of water into or onto any portion of the Premises or\nthe Common Area through roof leaks or otherwise. Notwithstanding the foregoing:\n\n A. Subject to paragraph 9.4, Landlord shall be liable for any\nsuch injury, damage or loss which is proximately caused by Landlord's gross\nnegligence or willful misconduct, of which Landlord has actual notice and a\nreasonable opportunity to cure but which it fails to so cure.\n\n 19.\n\n \n B. Tenant shall have the option to terminate this Lease upon\nthe occurrence of the following: (i) water, electricity, or other utility\nservice essential to the conduct of Tenant's business in the Premises is\ninterrupted or substantially impaired for a period of more than two hundred\nseventy (270) consecutive days during which time the Premises are rendered\nsubstantially unusable for the conduct of Tenant's business (a \"Material\nInterruption\"); and (ii) the Material Interruption is not caused by the act or\nomission of Tenant, its agents, employees or contractors.\n\n 10.2 Limitation on Tenant's Recourse. So long as the Landlord is a\ncorporation, trust, partnership, joint venture, unincorporated association or\nother form of business entity, (i) the obligations of Landlord shall not\nconstitute personal obligations of the officers, directors, trustees, partners,\njoint venturers, members, owners, stockholders, or other principals or\nrepresentatives of such business entity, and (ii) Tenant shall have recourse\nonly to the assets of such business entity for the satisfaction of such\nobligations and not against the assets of such officers, directors, trustees,\npartners, joint venturers, members, owners, stockholders, principals or\nrepresentatives, except to the extent of their interests in the entity that is\nLandlord. If Landlord is a natural person or persons, Tenant shall have\nrecourse only to the interest of such natural persons in the Property for the\nsatisfaction of the obligations of Landlord and shall not have recourse to any\nother assets of such natural persons for the satisfaction of such obligations.\n\n 10.3 Indemnification of Landlord. Tenant shall hold harmless,\nindemnify and defend Landlord, and Its employees, agents and contractors, with\ncompetent counsel, from all liability, penalties, losses, damages, costs,\nexpenses, causes of action, claims and\/or judgments arising by reason of any\ndeath, bodily injury, personal injury or property damage (i) resulting from any\ncause or causes whatsoever (other than the negligence or willful misconduct of\nLandlord of which Landlord has had notice and a reasonable time to cure, but\nwhich Landlord has failed to cure) occurring in or about or resulting from an\noccurrence in or about the Premises, or (ii) resulting from the negligence or\nwillful misconduct of Tenant, its agents, employees and contractors, wherever\nthe same may occur, or (iii) resulting from an Event of Tenant's Default. The\nprovisions of this paragraph shall survive the expiration or sooner termination\nof this Lease.\n\n ARTICLE 11\n\n Damage To Premises\n\n 11.1 Landlord's Duty to Restore. If the Premises are damaged by any\nperil after the Commencement Date of this Lease, Landlord shall restore the\nPremises unless the Lease is terminated by Landlord pursuant to paragraph 11.2\nor by Tenant pursuant to paragraph 11.3. All insurance proceeds available from\nthe fire and property damage insurance carried by Landlord pursuant to paragraph\n9.2 shall be paid to and become the property of Landlord. If this Lease is\nterminated pursuant to either paragraphs 11.2 or 11.3, then all insurance\nproceeds available from insurance carried by Tenant which covers loss to\nproperty that is Landlord's property or would become Landlord's property on\ntermination of this Lease shall be paid to and become the property of Landlord.\nIf this Lease is not so terminated, then upon receipt of the insurance proceeds\n(if the loss is covered by insurance) and the issuance of all necessary\ngovernmental permits, Landlord shall commence and diligently prosecute to\ncompletion the restoration of the Premises, to the extent then allowed by Law,\nto substantially the same condition in which the Premises were immediately prior\nto such damage. Landlord's obligation to restore shall be limited to the\nPremises and interior improvements constructed by Tenant but financed by\nLandlord pursuant to the Interior Improvement Agreement as such improvements\nexisted upon completion thereof excluding any Leasehold Improvements, Trade\nFixtures and\/or personal property constructed or installed by Tenant in the\nPremises. To the extent that insurance proceeds recovered by Landlord from the\nInsurance carried pursuant to paragraph 9.2A exceed the amount needed by\nLandlord to discharge its restoration obligation pursuant to the immediately\npreceding sentence, Landlord shall make such excess insurance proceeds available\nto Tenant for the purpose of restoring interior improvements that were\nconstructed by Tenant and financed by Tenant pursuant to the Interior\nImprovement Agreement, so that such improvements may be restored to\nsubstantially the same condition existing as of the date such improvements were\ninitially completed.\n\n 20.\n\n \n 11.2 Landlord's Right to Terminate. Landlord shall have the right to\nterminate this Lease in the event any of the following occurs, which right may\nbe exercised only by delivery to Tenant of a written notice of election to\nterminate within thirty (30) days after the date of such damage:\n\n A. Either the Property or the Premises is damaged by an Insured\nPeril to such an extent that the estimated cost to restore equals or exceeds\neighty percent (80%) of the then actual replacement cost thereof and there\nremains less than three (3) years in the Lease Term; provided, however, that\nLandlord may not terminate this Lease pursuant to this subparagraph 11.2A if\nTenant at the time of such damage has a then valid written option to extend the\nLease Term and Tenant exercises such option to extend the Lease Term within\nfifteen (15) days after Tenant receives Landlord's notice of election to\nterminate and such action results in there being more than three (3) years\nremaining in the Lease Term (as it has been extended by the exercise of such\noption);\n\n B. Either the Property or the Premises is damaged by an\nUninsured Peril to such an extent that the estimated cost to restore exceeds two\npercent (2%) of the actual replacement cost thereof; provided, however, that\nLandlord may not terminate this Lease pursuant to this paragraph 11.2B if one or\nmore tenants of the Property agree in writing to pay the amount by which the\ncost to restore the damage exceeds such amount and subsequently deposit such\namount with Landlord within thirty (30) days after Landlord has notified Tenant\nof its election to terminate this Lease;\n\n C. The Premises are damaged by any peril within twelve (12)\nmonths of the last day of the Lease Term to such an extent that the estimated\ncost to restore equals or exceeds an amount equal to six (6) times the Base\nMonthly Rent then due; provided, however, that Landlord may not terminate this\nLease pursuant to this subparagraph 11.2C if Tenant, at the time of such damage,\nhas a then valid express written option to extend the Lease Term and Tenant\nexercises such option to extend the Lease Term within fifteen (15) days\nfollowing the date of such damage; or\n\n D. As used herein, the following terms shall have the following\nmeanings: (i) the term \"Insured Peril\" shall mean a peril actually insured\nagainst for which the insurance proceeds paid or made available to Landlord are\nsufficient (except for any \"deductible\" amount specified by such insurance) to\nrestore the Property under the then existing building codes to the condition\nexisting immediately prior to the damage; and (ii) the term \"Uninsured Peril\"\nshall mean and include any peril not actually insured against, any peril\nactually insured against but for which the insurance proceeds paid or made\navailable to Landlord are for any reason (except for any \"deductible\" amount\nspecified by such insurance) insufficient to restore the Property under then\nexisting building codes to the condition existing immediately prior to the\ndamage, and any peril actually insured against but for which the insurance\nproceeds are not paid or made available to Landlord.\n\n 11.3 Tenant's Right to Terminate. If the Premises are damaged by any\nperil and Landlord does not elect to terminate this Lease or is not entitled to\nterminate this Lease pursuant to paragraph 11.2, then as soon as reasonably\npracticable, Landlord shall furnish Tenant with the written opinion of\nLandlord's architect or construction consultant as to when the restoration work\nrequired of Landlord may be completed. Tenant shall have the right to terminate\nthis Lease in the event any of the following occurs, which right may be\nexercised only by delivery to Landlord of a written notice of election to\nterminate within thirty (30) days after Tenant receives from Landlord the\nestimate of the time needed to complete such restoration:\n\n A. The Premises are damaged by any peril and, in the reasonable\nopinion of Landlord's architect or construction consultant, the restoration of\nthe Premises cannot be substantially completed within two hundred seventy (270)\ndays after the date of such damage; or\n \n B. The Premises are damaged by any peril within twelve (12)\nmonths of the last day of the Lease Term and in the reasonable opinion of\nLandlord's architect or construction consultant the restoration of the Premises\ncannot be substantially completed within ninety (90) days after the date of such\ndamage; or\n\n C. The Premises are not restored within eighteen (18) months\nfollowing the date of such damage; provided, however, that if at the time\nrestoration of the \"shell\" of the building in which the Premises are \n\n 21.\n\n \nlocated is substantially completed (excluding Interior Improvements) Landlord\nreasonably estimates that Landlord will not be able to complete restoration of\nthe Premises within such eighteen (18) month period, then at that time Landlord\nmay offer in writing to Tenant the option to terminate this Lease, and if Tenant\ndoes not exercise such option to terminate the Lease so offered to Tenant by\nLandlord, then Tenant may not thereafter elect to terminate this Lease pursuant\nto this subparagraph 11.3C.\n\n 11.4 Abatement of Rent. In the event of damage to the Premises which\ndoes not result in the termination of this Lease, the Base Monthly Rent and the\nAdditional Rent shall be temporarily abated commencing on the date of damage and\ncontinuing through the period of restoration in proportion to the degree to\nwhich Tenant's use of the Premises is impaired by such damage. Tenant shall not\nbe entitled to any compensation or damages from Landlord for loss of Tenant's\nbusiness or property or for any inconvenience or annoyance caused by such damage\nor restoration. Tenant hereby waives the provisions of Section 1932,\nSubdivision 2, and Section 1933, Subdivision 4, of the California Civil Code,\nand the provisions of any similar law hereinafter enacted.\n\n ARTICLE 12\n\n Condemnation\n\n 12.1 Tenant's Termination Right. Tenant shall have the right to\nterminate this Lease if, as a result of any taking by means of the exercise of\nthe power of eminent domain (including any voluntary sale or transfer by\nLandlord to any condemnor under threat of condemnation), (i) ten percent (10%)\nor more of the Premises is so taken, or (ii) there is a taking affecting the\nCommon Area and, as a result of such taking, Landlord cannot provide parking\nspaces within reasonable walking distance of the Premises equal in number to at\nleast ninety percent (90%) of the number of spaces allocated to Tenant by\nparagraph 2.1, whether by rearrangement of the remaining parking areas in the\nCommon Area (including construction of multi-dock parking structures or\nrestriping for compact cars where permitted by Law) or by alternative parking\nfacilities on other land. Tenant must exercise such right within a reasonable\nperiod of time, to be effective on the date that possession of that portion of\nthe Premises or Common Area that is condemned is taken by the condemnor.\n\n 12.2 Restoration and Abatement of Rent. If any part of the Premises\nor the Common Area is taken by condemnation and this Lease is not terminated,\nthen Landlord shall restore the remaining portion of the Premises and Common\nArea to substantially the same condition in which the Premises and Common Area\nwere immediately prior to such taking, excluding any Leasehold Improvements,\nTrade Fixtures and\/or personal property constructed or installed by Tenant;\nprovided, however, that Landlord shall not be obligated to spend more for such\nrestoration than the amount of any condemnation award recovered by or pursuant\nto paragraph 12.3. Thereafter, except in the case of a temporary taking, (i) as\nof the date possession is taken the Base Monthly Rent (but not any Additional\nRent) shall be reduced in the same proportion that the floor area of that part\nof the Premises so taken (less any addition thereto by reason of any\nreconstruction) bears to the original floor area of the Premises, and (ii) to\nthe extent that Landlord is obligated to undertake any restoration work as a\nresult of such condemnation, the Base Monthly Rent shall be further abated in\nproportion to the extent to which such restoration work interferes with Tenant's\nability to use that part of the Premises which remains after the condemnation.\n\n 12.3 Temporary Taking. If any portion of the Premises is temporarily\ntaken for six (6) months or less, this Lease shall remain in effect and Tenant\nshall be entitled to recover any condemnation award that is made for such taking\nand shall be responsible for restoring the Premises to the condition existing\nimmediately prior to such temporary taking. If any portion of the Premises is\ntemporarily taken by condemnation for a period which exceeds six (6) months or\nwhich extends beyond the natural expiration of the Lease Term, and such taking\nmaterially and adversely affects Tenant's ability to use the Premises for the\nPermitted Use, then Tenant shall have the right to terminate this Lease,\neffective on the date possession is taken by the condemnor.\n\n 12.4 Division of Condemnation Award. Any award made as a result of\nany condemnation of the Premises or the Common Area shall belong to and be paid\nto Landlord, and Tenant hereby assigns to Landlord all of its right, title and\ninterest in any such award; provided, however, that Tenant shall be entitled to\nrecover out of any condemnation award made for a taking of all or part of the\nPremises an amount equal to the unamortized cost of all interior improvements\npaid for by Tenant constructed pursuant to the Interior Improvement Agreement\nand all \n\n 22.\n\n \nLeasehold Improvements constructed by Tenant (amortized on a straight line basis\nover the initial Lease Term for Interior Improvements, and over the period from\ncompletion of construction until expiration of the Lease Term for Leasehold\nImprovements); and provided further that Tenant shall be entitled to receive any\ncondemnation award that is made directly to Tenant for the following so long as\nthe award made to Landlord is not thereby reduced: (i) for the taking of\npersonal property or Trade Fixtures belonging to Tenant, (ii) for the\ninterruption of Tenant's business or its moving costs, (iii) for loss of\nTenant's goodwill, or (iv) for any temporary taking where this Lease is not\nterminated as a result of such taking. The rights of Landlord and Tenant\nregarding any condemnation shall be determined as provided in this Article, and\neach party hereby waives the provisions of Section 1265.130 of the California\nCode of Civil Procedure and the provisions of any similar law hereinafter\nenacted allowing either party to petition the Superior Court to terminate this\nLease in the event of a partial taking of the Premises.\n\n ARTICLE 13\n\n Default And Remedies\n \n 13.1 Events of Tenant's Default. Tenant shall be in default of its\nobligations under this Lease if any of the following events occurs (an \"Event of\nTenant's Default\"):\n\n A. Tenant shall have failed to pay Base Monthly Rent or any\nAdditional Rent when due and such failure is not cured within ten (10) days\nafter delivery of written notice from Landlord specifying such failure to pay;\nor\n\n B. Tenant shall have failed to perform any term, covenant, or\ncondition of this Lease except those requiring the payment of Base Monthly Rent\nor Additional Rent, and Tenant shall have failed to cure such breach within\nthirty (30) days after written notice from Landlord specifying the nature of\nsuch breach, or if such breach could not reasonably be cured within said thirty\n(30) day period, Tenant shall have failed to commence such cure within said\nthirty (30) day period and thereafter continue with due diligence to prosecute\nsuch cure to completion within such time period as is reasonably needed; or\n\n C. Tenant shall have made a general assignment of its assets\nfor the benefit of its creditors; or\n\n D. Tenant shall have sublet the Premises or assigned its\ninterest in the Lease in violation of the provisions contained in Article 14,\nwhether voluntarily or by operation of law; Landlord shall have notified Tenant\nin writing that such Transfer constitutes a violation of the provisions\ncontained in Article 14, and Tenant does not cause such Transfer to be rescinded\nor terminated and possession of the Premises affected by the Transfer recovered\nfrom the Transferee within ninety (90) days after receipt of such notice; or\n\n E. Tenant shall have permitted the sequestration or attachment\nof, or execution on, or the appointment of a custodian or receiver with respect\nto, all or any substantial part of the property of Tenant or any property\nessential to the conduct of Tenant's business, and Tenant shall have failed to\nobtain a return or release of such property within ninety (90) days thereafter\nor prior to sale pursuant to such sequestration, attachment or levy, whichever\nis earlier; or\n\n F. A court shall have made or entered any decree or order with\nrespect to Tenant, or Tenant shall have submitted to or sought a decree or order\n(or a petition or pleading shall have been filed in connection therewith) which:\n(i) grants or constitutes (or seeks) an order for relief, appointment of a\ntrustee, or confirmation of a reorganization plan under the bankruptcy laws of\nthe United States; (ii) approves as properly filed (or seeks such approval of) a\npetition seeking liquidation or reorganization under said bankruptcy laws or any\nother debtor's relief law or statute of the United States or any state thereof;\nor (iii) otherwise directs (or seeks) the winding up or liquidation of Tenant;\nand such petition, decree or order shall have continued in effect for a period\nof ninety (90) or more days; or\n\n 23.\n\n \n G. Tenant shall have failed to deliver documents as required of\nit pursuant to paragraph 15.4 or 15.7 within the time periods specified therein\nand Tenant shall have failed to cure such default within ten (10) days after\nLandlord has delivered to Tenant written notice that Tenant is in default of its\nobligations to deliver such documents pursuant to either paragraph 15.4 or 15.7;\nor;\n\n H. An Event of Tenant's Default has occurred under the Building\nA Lease (unless caused by a subtenant or assignee of the original Tenant under\nthis Lease and such original Tenant is using reasonable efforts to cause such\ndefault to be cured) and, at the time Tenant is so in default, the Premises and\nthe real property leased to Tenant pursuant to the Building A Lease are both\nowned of record by the same person or entity.\n\n 13.2 Landlord's Remedies. If an Event of Tenant's Default occurs,\nLandlord shall have the following remedies, in addition to all other rights and\nremedies provided by any Law or otherwise provided in this Lease, to which\nLandlord may resort cumulatively or in the alternative:\n\n A. Landlord may, at Landlord's election, keep this Lease in\neffect and enforce by an action at law or in equity all of its rights and\nremedies under this Lease, including (i) the right to recover the rent and other\nsums as they become due by appropriate legal action, (ii) the right to make\npayments required of Tenant or perform Tenant's obligations and be reimbursed by\nTenant for the cost thereof with interest at the Agreed Interest Rate from the\ndate the sum is paid by Landlord until Landlord is reimbursed by Tenant, and\n(iii) the remedies of injunctive relief and specific performance to compel\nTenant to perform its obligations under this Lease.\n\n B. Landlord may, at Landlord's election, terminate this Lease\nby giving Tenant written notice of termination, in which event this Lease shall\nterminate on the date set forth for termination in such notice. Any termination\nunder this subparagraph shall not relieve Tenant from its obligation to pay sums\nthen due Landlord or from any claim against Tenant for damages or rent\npreviously accrued or then accruing. In no event shall any one or more of the\nfollowing actions by Landlord, in the absence of a written election by Landlord\nto terminate this Lease, constitute a termination of this Lease:\n\n (1) Appointment of a receiver or keeper in order to protect\nLandlord's interest hereunder;\n\n (2) Consent to any subletting of the Premises or assignment\nof this Lease by Tenant, whether pursuant to the provisions hereof or otherwise;\nor\n\n (3) Any other action by Landlord or Landlord's agents\nintended to mitigate the adverse effects of any breach of this Lease by Tenant,\nincluding, without limitation, any action taken to maintain and preserve the\nPremises or any action taken to relet the Premises or any portions thereof, for\nthe account of Tenant and in the name of Tenant.\n\n C. In the event Tenant breaches this Lease and abandons the\nPremises, this Lease shall not terminate unless Landlord gives Tenant written\nnotice of its election to so terminate this Lease. No act by or on behalf of\nLandlord intended to mitigate the adverse effect of such breach, including those\ndescribed by subparagraphs 13.2B(l), (2) and (3) immediately preceding, shall\nconstitute a termination of Tenant's right to possession unless Landlord gives\nTenant written notice of termination. Should Landlord not terminate this Lease\nby giving Tenant written notice, Landlord may enforce all its rights and\nremedies under this Lease, including the right to recover the rent as it becomes\nduo under the Lease as provided in California Civil Code Section 1951.4 as in\neffect on the Commencement Date of this Lease.\n\n D. In the event Landlord terminates this Lease, Landlord shall\nbe entitled, at Landlord's election, to damages in an amount as set forth in\nCalifornia Civil Code Section 1951.2 as in effect on the Commencement Date of\nthis Lease. For purposes of computing damages pursuant to Section 1951.2, (i) an\ninterest rate equal to the Agreed Interest Rate shall be used where permitted\nand (ii) the term \"rent\" includes Base Monthly Rent and Additional Rent. Such\ndamages shall include without limitation:\n\n 24.\n\n \n (1) The worth at the time of award of the amount by which\nthe unpaid rent for the balance of the term after the time of award exceeds the\namount of such rental loss that Tenant proves could be reasonably avoided,\ncomputed by discounting such amount at the discount rate of the Federal Reserve\nBank of San Francisco at the time of award plus one percent (1%); and\n\n (2) Any other amount necessary to compensate Landlord for\nall detriment proximately caused by Tenant's failure to perform Tenant's\nobligations under this Lease, or which in the ordinary course of things would be\nlikely to result therefrom, including, without limitation, the following: (i)\nexpenses for cleaning, repairing or restoring the Premises; (ii) expenses for\naltering, remodeling or otherwise improving the Premises for the purpose of\nreletting, including installation of leasehold improvements (whether such\ninstallation be funded by a reduction of rent, direct payment or allowance to a\nnew tenant, or otherwise); (iii) broker's fees, advertising costs and other\nexpenses of reletting the Premises; (iv) costs of carrying the Premises, such as\ntaxes, insurance premiums, utilities and security precautions; (v) expenses in\nretaking possession of the Premises; and (vi) attorneys' fees and court costs\nincurred by Landlord in retaking possession of the Premises and in releasing the\nPremises or otherwise incurred as a result of Tenant's default.\n\n E. Nothing in this paragraph shall limit Landlord's right to\nindemnification from Tenant as provided in paragraph 7.2 and paragraph 10.3.\nAny notice given by Landlord in order to satisfy the requirements of\nsubparagraphs 13.1A or B above shall also satisfy the notice requirements of\nCalifornia Code of Civil Procedure Section 1161 regarding unlawful detainer\nproceedings.\n\n 13.3 Waiver by Tenant of Certain Remedies. Tenant waives the\nprovisions of Sections 1932(l), 1941 and 1942 of the California Civil Code\nand\/or any similar or successor law regarding Tenant's right to terminate this\nLease or to make repairs and deduct the expenses of such repairs from the rent\ndue under the Lease.\n\n 13.4 Waiver. One party's consent to or approval of any act by the\nother party requiring the first party's consent or approval shall not be deemed\nto waive or render unnecessary the first party's consent to or approval of any\nsubsequent similar act by the other party. The receipt by Landlord of any rent\nor payment with or without knowledge of the breach of any other provision hereof\nshall not be deemed a waiver of any such breach unless such waiver is in writing\nand signed by Landlord. No delay or omission in the exercise of any right or\nremedy accruing to either party upon any breach by the other party under this\nLease shall impair such right or remedy or be construed as a waiver of any such\nbreach theretofore or thereafter occurring. The waiver by either party of any\nbreach of any provision of this Lease shall not be deemed to be a waiver of any\nsubsequent breach of the same or of any other provisions herein contained.\n\n 13.5 Limitation on Exercise of Rights. At any time that an Event of\nTenant's Default has occurred and remains uncured, (i) it shall not be\nunreasonable for Landlord to deny or withhold any consent or approval requested\nof it by Tenant which Landlord would otherwise be obligated to give, and (ii)\nTenant may not exercise any option to extend, right to terminate this Lease, or\nother right granted to it by this Lease which would otherwise be available to\nit.\n\n ARTICLE 14\n\n Assignment And Subletting\n\n 14.1 By Tenant. The following provisions shall apply to any\nassignment, subletting or other transfer by Tenant or any subtenant or assignee\nor other successor in interest of the original Tenant (collectively referred to\nin this paragraph as \"Tenant\"):\n\n A. Tenant shall not do any of the following (collectively\nreferred to herein as a \"Transfer\"), whether voluntarily, involuntarily or by\noperation of laws, without the prior written consent of Landlord, which consent\nshall not be unreasonably withheld or delayed: (i) sublet all or any part of the\nPremises or allow it to be sublet, occupied or used by any person or entity\nother than Tenant; (ii) assign its interest in this Lease; (iii) transfer any\nright appurtenant to this Lease or the Premises; (iv) mortgage or encumber the\nLease (or otherwise use the Lease\n\n 25.\n\n \nas a security device) in any manner; or (v) terminate or materially amend or\nmodify an assignment, sublease or other transfer that has been previously\napproved by Landlord. Any Transfer so approved by Landlord shall not be\neffective until Tenant has delivered to Landlord an executed counterpart of the\ndocument evidencing the Transfer which (i) is in form approved by Landlord, (ii)\ncontains the same terms and conditions as stated in Tenant's notice given to\nLandlord pursuant to subparagraph 14.1B, and (iii) contains the agreement of the\nproposed transferee to assume all obligations of Tenant related to the Transfer\narising after the effective date of such Transfer and to remain jointly and\nseverally liable therefor with Tenant. Any attempted Transfer without Landlord's\nconsent shall be voidable at Landlord's option. Landlord's consent to any one\nTransfer shall not constitute a waiver of the provisions of this paragraph 14.1\nas to any subsequent Transfer nor a consent to any subsequent Transfer. No\nTransfer, even with the consent of Landlord, shall relieve Tenant of its\npersonal and primary obligation to pay the rent and to perform all of the other\nobligations to be performed by Tenant hereunder. The acceptance of rent by\nLandlord from any person shall not be deemed to be a waiver by Landlord of any\nprovision of this Lease nor to be a consent to any Transfer.\n\n B. Tenant shall give Landlord at least fifteen (15) days prior\nwritten notice of any desired Transfer and of the proposed terms of such\nTransfer including but not limited to (i) the name and legal composition of the\nproposed transferee; (ii) a current financial statement of the transferee,\nfinancial statements of the transferee covering the preceding three years if the\nsame exist, and (if available) an audited financial statement of the transferee\nfor a period ending not more than one year prior to the proposed effective date\nof the Transfer, all of which statements are prepared in accordance with\ngenerally accepted accounting principles; (iii) the nature of the proposed\ntransferee's business to be carried on in the Premises; (iv) all consideration\nto be given on account of the Transfer; (v) a current financial statement of\nTenant; and (vi) such other information as may be reasonably requested by\nLandlord. Tenant's notice shall not be deemed to have been served or given\nuntil such time as Tenant has provided Landlord with all information reasonably\nrequested by Landlord pursuant to this subparagraph 14.1B. Tenant shall\nimmediately notify Landlord of any modification to the proposed terms of such\nTransfer.\n\n C. In the event that Tenant seeks to make any Transfer, then\nLandlord, by giving Tenant written notice of its election within fifteen (15)\ndays after Tenant's notice of intent to Transfer has been deemed given to\nLandlord, shall have the right to elect (i) to withhold its consent to such\nTransfer, as permitted pursuant to subparagraph 14.1A, or (ii) to permit Tenant\nto so assign the Lease or sublease such part of the Premises, in which event\nTenant may do so, but without being released of its liability for the\nperformance of all of its obligations under the Lease, and the following shall\napply:\n\n (1) Subject to subparagraph 14.1C(5), if Tenant assigns its\ninterest in this Lease in accordance with this subparagraph 14.1C, then Tenant\nshall pay to Landlord fifty percent (50%) of all consideration received by\nTenant over and above (i) the assignee's agreement to assume the obligations of\nTenant under this Lease and (ii) all Permitted Transfer Costs related to such\nassignment.\n\n (2) Subject to subparagraph 14.1C(5), if Tenant sublets all\nor part of the Premises, then Tenant shall pay to Landlord fifty percent (50%)\nof the positive difference, if any, between (i) all rent and other consideration\npaid by the subtenant to Tenant, less (ii) all rent paid by Tenant to Landlord\npursuant to this Lease which is allocable to the area so sublet and all\nPermitted Transfer Costs related to such sublease. Such amount shall be paid to\nLandlord on the same basis, whether periodic or in lump sum, that such rent and\nother consideration is paid to Tenant by its subtenant, within seven (7) days\nafter it is received by Tenant.\n\n (3) Tenant's obligations under this subparagraph shall\nsurvive any assignment or sublease. At the time Tenant makes any payment to\nLandlord required by this subparagraph, Tenant shall deliver an itemized\nstatement of the method by which the amount to which Landlord is entitled was\ncalculated, certified by Tenant as true and correct. Landlord shall have the\nright to inspect Tenant's books and records relating to the payments due\npursuant to this subparagraph. Upon request therefor, Tenant shall deliver to\nLandlord copies of all bills, invoices or other documents upon which its\ncalculations are based. Landlord may condition its approval of any Transfer upon\nobtaining a certification from both Tenant and the proposed transferee of all\namounts that are to be paid to Tenant in connection with such Transfer.\n\n 26.\n\n \n (4) As used herein, the term \"consideration' shall mean any\nconsideration of any kind received, or to be received, by Tenant as a result of\nthe Transfer, if such sums are related to Tenant's interest in this Lease or in\nthe Premises, including payments (in excess of the fair market value thereof)\nfor Tenant's assets, fixtures, leasehold improvements, inventory, accounts,\ngoodwill, equipment, furniture, general intangibles and any capital stock or\nother equity ownership interest in Tenant. As used in this subparagraph, the\nterm \"Permitted Transfer Costs\" shall mean (i) all reasonable leasing\ncommissions paid to third parties not affiliated with Tenant in order to obtain\nthe Transfer in question, (ii) all reasonable attorneys' fees incurred by Tenant\nwith respect to the Transfer in question, (iii) the cost of tenant improvements\ninstalled for the use of the subtenant or assignee to the extent required by\nsuch party as a condition to the Transfer, and (iv) any payments made by Tenant\nto the transferee to induce it to enter into the Transfer (e.g., payment of\nmoving expenses).\n\n (5) Notwithstanding anything to the contrary contained in\nthe foregoing, Landlord shall not participate in excess consideration received\nby Tenant from an assignee or subtenant as provided for in subparagraphs\n14.1C(l) and l4.1C(2) unless such assignment or sublease occurs during an Option\nTerm or, in the case of a sublease, extends into an Option Term (in which latter\nevent Landlord shall be entitled to its share of the excess consideration paid\nduring the Option Term).\n\n D. If Tenant is a corporation, any dissolution, merger,\nconsolidation or other reorganization of Tenant, or the sale or transfer in the\naggregate over the Lease Term of a controlling percentage of the capital stock\nof Tenant, shall be deemed a voluntary assignment of Tenant's interest in this\nLease; provided, however, that the foregoing shall not apply to corporations the\ncapital stock of which is publicly traded. The phrase \"controlling percentage\"\nmeans the ownership of and the right to vote stock possessing more than fifty\npercent (50%) of the total combined voting power of all classes of Tenant's\ncapital stock issued, outstanding and entitled to vote for the election of\ndirectors. If Tenant is a partnership, any withdrawal or substitution (whether\nvoluntary, involuntary or by operation of law, and whether occurring at one time\nor over a period of time) of any partner(s) owning twenty-five percent (25%) or\nmore (cumulatively) of any interest in the capital or profits of the partnership\nor the dissolution of the partnership, shall be deemed a voluntary assignment of\nTenant's interest in this Lease.\n\n E. Notwithstanding anything contained in this paragraph 14.1,\nso long as Tenant otherwise complies with the provisions of paragraph 14.1\nTenant may enter into any one of the following transfers (a \"Permitted\nTransfer\") without Landlord's prior written consent, and Landlord shall not be\nentitled to receive any part of any excess rentals or other consideration\nresulting therefrom that would otherwise be due to it pursuant to paragraph\n14.C:\n\n (1) Tenant may sublease all or part of the Premises or\nassign its interest in this Lease to any corporation which controls, is\ncontrolled by, or is under common control with the original Tenant to this Lease\nby means of an ownership interest of more than fifty percent (50%);\n\n (2) Tenant may assign its interest in the Lease to a\ncorporation which results from a merger, consolidation or other reorganization\nin which Tenant is not the surviving corporation, so long as (i) Tenant\ndemonstrates to Landlord's reasonable satisfaction that the surviving\ncorporation will have sufficient creditworthiness to provide adequate assurance\nof future performance of all of Tenant's obligations under this Lease, or (ii)\nthe surviving corporation has a net worth at the time of such assignment that is\nequal to or greater than the net worth of Tenant immediately prior to such\ntransaction; and\n\n (3) Tenant may assign this Lease to a corporation which\npurchases or otherwise acquires all or substantially all of the assets of\nTenant, so long as (i) Tenant demonstrates to Landlord's reasonable satisfaction\nthat the acquiring corporation will have sufficient creditworthiness to provide\nadequate assurance of future performance of all of Tenant's obligations under\nthis Lease, or (ii) such acquiring corporation has a net worth at the time of\nsuch assignment that is equal to or greater than the net worth of Tenant\nimmediately prior to such transaction.\n\n 14.2 By Landlord. Landlord and its successors in interest shall have\nthe right to transfer their interest in the Premises and the Property at any\ntime and to any person or entity. In the event of any such transfer, the\n\n 27.\n\n \nLandlord originally named herein (and, in the case of any subsequent transfer,\nthe transferor) from the date of such transfer, (i) shall be automatically\nrelieved, without any further act by any person or entity, of all liability for\nthe performance of the obligations of the Landlord hereunder which may accrue\nafter the date of such transfer, and (ii) shall be relieved of all liability for\nthe performance of the obligations of the Landlord hereunder which have accrued\nbefore the date of transfer if its transferee agrees to assume and perform all\nsuch obligations of the Landlord hereunder. After the date of any such transfer,\nthe term \"Landlord\" as used herein shall mean the transferee of such interest in\nthe Premises and the Property.\n\n ARTICLE 15\n\n General Provisions\n\n 15.1 Landlord's Right to Enter. Landlord and its agents may enter\nthe Premises immediately in case of emergency and otherwise only at such time as\nis approved by Tenant which time of entry shall be within seven (7) days after\nLandlord delivers written notice to Tenant requesting approval of a time to\nenter, and Landlord may thereafter continue such entry for such reasonable\nperiod of time as is necessary to accomplish Landlord's permitted purpose for\nsuch entry. Landlord may so enter the Premises for the following purposes: (i)\ninspecting the same; (ii) posting notices of non-responsibility, (iii) supplying\nany service to be provided by Landlord to Tenant, (iv) showing the Premises to\nprospective purchasers or mortgagees, (v) making necessary alterations,\nadditions or repairs, (vi) performing Tenant's obligations when Tenant has\nfailed to do so after written notice from Landlord, (vii) placing upon the\nPremises ordinary \"for sale\" signs, (viii) responding to an emergency, and\/or\n(ix) during the last six (6) months of the Lease Term or at any time when there\nis a Continuing Tenant Default, showing the Premises to prospective tenants and\nplacing upon the Premises ordinary \"for lease\" signs. For each of the aforesaid\npurposes, Landlord may enter the Premises by means of a master key, and Landlord\nshall have the right to use any and all means Landlord may deem necessary and\nproper to open the doors of the Premises in an emergency. Any entry into the\nPremises or portions thereof obtained by Landlord by any of said means or\notherwise shall not under any circumstances be construed or deemed to be a\nforcible or unlawful entry into, or a detainer of, the Premises, or an eviction,\nactual or constructive, of Tenant from the Premises or any portion thereof.\n\n 15.2 Surrender of the Premises. Immediately prior to the expiration\nor upon the sooner termination of this Lease, Tenant shall remove all Tenant's\nTrade Fixtures and other personal property, and shall vacate and surrender the\nPremises to Landlord in the same condition as existed at the Commencement Date,\nexcept for (i) reasonable wear and tear, (ii) damage caused by any peril or\ncondemnation, and (iii) contamination by Hazardous Materials for which Tenant is\nnot responsible pursuant to subparagraphs 7.2B or 7.2C. In this regard\nreasonable wear and tear shall be construed to mean wear and tear caused to the\nPremises by the natural aging process which occurs in spite of prudent\napplication of reasonable standards for maintenance, repair and janitorial\npractices, and does not include items of neglected or deferred maintenance. If\nLandlord so requests, Tenant shall, prior to the expiration or sooner\ntermination of this Lease, remove any Leasehold Improvements designated by\nLandlord and repair all damage caused by such removal if such removal is\nrequired pursuant to paragraph 5.2. If the Premises are not so surrendered at\nthe termination of this Lease, Tenant shall be liable to Landlord for all costs\nincurred by Landlord in returning the Premises to the required condition, plus\ninterest on all costs incurred at the Agreed Interest Rate.\n\n 15.3 Holding Over. This Lease shall terminate without further notice\nat the expiration of the Lease Term. Any holding over by Tenant after\nexpiration of the Lease Term shall not constitute a renewal or extension of the\nLease or give Tenant any rights in or to the Premises except as expressly\nprovided in this Lease. Any holding over after such expiration with the consent\nof Landlord shall be construed to be a tenancy from month to month on the same\nterms and conditions herein specified insofar as applicable except that Base\nMonthly Rent shall be increased to an amount equal to one hundred twenty-five\npercent (125%) of the Base Monthly Rent required during the last month of the\nLease Term.\n\n 15.4 Subordination. The following provisions shall govern the\nrelationship of this Lease to any underlying lease, mortgage or dead of trust\nwhich now or hereafter affects the Property, and any renewal, modification,\nconsolidation, replacement or extension thereof (a \"Security Instrument\"):\n\n 28.\n\n \n A. This Lease is subject and subordinate to all Security\nInstruments existing as of the Commencement Date. However, if any Lender so\nrequires, this Lease shall become prior and superior to any such Security\nInstrument.\n\n B. At Landlord's election, this Lease shall become subject and\nsubordinate to any Security Instrument created after the Commencement Date.\nNotwithstanding such subordination, Tenant's right to quiet possession of the\nPremises shall not be disturbed and the terms of this Lease shall not be\nmodified so long so Tenant in not in default and performs all of its obligations\nunder this Lease, unless this Lease is otherwise terminated pursuant to its\nterms.\n\n C. No subordination of this Lease to a Security Instrument\npursuant to subparagraphs 15.4A or 15.4B shall be effective until the holder of\na Security Instrument executes a subordination and non-disturbance agreement in\nfavor of Tenant by which the Lender agrees to be bound by the immediately\npreceding sentence.\n\n D. Tenant shall execute any document or instrument required by\nLandlord or any Lender to make this Lease either prior or subordinate to a\nSecurity Instrument, which may include such other matters as the Lender\ncustomarily requires in connection with such agreements, including provisions\nthat (i) the Lender not be liable for any defaults on the part of Landlord\noccurring prior to the time the Lender takes possession of the Premises in\nconnection with the enforcement of its Security Instrument; (ii) the Lender not\nbe liable for the performance of any obligations contained in the Interior\nImprovement Agreement, for the completion of any improvements under construction\nor required to be constructed by Landlord; (iii) recourse against the Lender is\nlimited to its interest in the Premises; (iv) any notices given by Tenant to\nLandlord should also be delivered to the Lender; (v) Tenant shall attorn to any\npurchaser at a foreclosure sale or a grantee designated in a deed in lieu of\nforeclosure; (vi) the Lender shall not be bound by any rent which Tenant might\nhave paid in advance to any prior Landlord for a period in excess of one mouth;\n(vii) the Lender shall not be bound by any agreement or modification of the\nLease made without the written consent of the Lender; and (viii) upon request,\nTenant shall enter into a new lease with Lender of the Premises upon the same\nterm and conditions as the Lease between Landlord and Tenant, which lease shall\ncover any unexpired term of the Lease existing prior to a foreclosure, trustee's\nsale, or conveyance in lieu of foreclosure. Tenant's failure to execute any\nsuch document or instrument within ten (10) days after written demand therefor\nshall constitute a default by Tenant. Tenant approves as reasonable the form of\nsubordination and non-disturbance agreement attached to this Lease as Exhibit\n\"D\".\n\n 15.5 Tenant shall attorn (i) to any purchaser of the Premises or\nProperty at any foreclosure sale or private sale conducted pursuant to any\nsecurity instrument encumbering the Premises or the Property; (ii) to any\ngrantee or transferee designated in any deed given in lieu of foreclosure; or\n(iii) to the lessor under any underlying ground lease should such ground lease\nbe terminated.\n\n 15.6 Mortgagee Protection. In the event of any default on the part\nof the Landlord, Tenant will give notice by registered mail to any Lender or\nlessor under any underlying ground lease whose name has been provided to Tenant\nand shall offer such Lender or lessor a reasonable opportunity to cure the\ndefault, not to exceed thirty (30) days from the expiration of the time period\ngranted to Landlord to cure such default; provided, however, that if such Lender\nrequires additional time to cure a default on the part of Landlord or to obtain\npossession of the Premises by power of sale or judicial foreclosure or other\nappropriate legal proceedings if obtaining possession is necessary to effect a\ncure, the Lender shall be granted such opportunity, provided that the Lender\ngives reasonable assurances to Tenant that such default will be cured.\n\n 15.7 Estoppel Certificates and Financial Statements. At all times\nduring the Lease Term, Tenant agrees, following any request by Landlord,\npromptly to execute and deliver to Landlord an estoppel certificate, (i)\ncertifying that this Lease is unmodified and in full force and effect or, if\nmodified, stating the nature of such modification and certifying that this\nLease, as so modified, is in full force and effect, (ii) stating the date to\nwhich the rent and other charges are paid in advance, if any, (iii)\nacknowledging that there are not, to Tenant's knowledge, any uncured defaults on\nthe part of Landlord hereunder or, if there are uncured defaults, specifying the\nnature of such defaults and (iv) certifying such other information about the\nLease as may be reasonably required by Landlord. Tenant's failure to deliver an\nestoppel certificate within ten (10) days after delivery of Landlord's request\ntherefor \n\n 29.\n\n \nshall be a conclusive admission by Tenant that, as of the date of the request\nfor such statement, (i) this Lease is unmodified except as may be represented by\nLandlord in said request and is in full force and effect, (ii) there are no\nuncured defaults in Landlord's performance, and (iii) no rent has been paid in\nadvance. At any time during the Lease Term Tenant shall, upon ten (10) days'\nprior written notice from Landlord, provide Tenant's most recent financial\nstatement and financial statements covering the twenty-four (24) month period\nprior to the date of such most recent financial statement to any existing Lender\nor to any potential Lender or buyer of the Property; provided, however, that if\nTenant is a corporation whose stock is publicly traded, Tenant may satisfy the\nforegoing requirement by delivering to the appropriate parties copies of its\nmost recent annual report prepared to satisfy requirements of the federal\nsecurities laws. Such statements shall be prepared in accordance with generally\naccepted accounting principles and, if such is the normal practice of Tenant\nshall be audited by an independent certified public accountant.\n\n 15.8 Force Majeure. Any prevention, delay or stoppage due to\nstrikes, lockouts, inclement weather, labor disputes, inability to obtain labor,\nmaterials, fuels or reasonable substitutes therefor, governmental restrictions,\nregulations, controls, action or inaction, civil commotion, fire or other acts\nof God, and other causes beyond the reasonable control of the party obligated to\nperform (except financial inability) shall excuse the performance, for a period\nequal to the period of any said prevention, delay, or stoppage, of any\nobligation hereunder except the obligation of Tenant to pay rent or any other\nsums due hereunder.\n\n 15.9 Notices. Any notice required or desired to be given regarding\nthis Lease shall be in writing and may be given by personal delivery, by\nfacsimile telecopy, by courier service, or by mail. A notice shall be deemed to\nhave been given (i) on the third (3rd) business day after mailing if such notice\nwas deposited in the United States mail, certified or registered, postage\nprepaid, addressed to the party to be served at its address first above set\nforth, (ii) when delivered if given by personal delivery, and (iii) in all other\ncases when actually received. Either party may change its address by giving\nnotice of same in accordance with this paragraph.\n\n 15.10 Obligation to Act Reasonably. Whenever the consent or approval\nof a party to this Lease is required to be obtained before the other party to\nthis Lease may take an action, such consent or approval shall not be\nunreasonably withheld or delayed.\n\n 15.11 Corporate Authority. If Tenant is a corporation (or a\npartnership), each individual executing this Lease on behalf of said corporation\n(or partnership) represents and warrants that he is duly authorized to execute\nand deliver this Lease on behalf of said corporation in accordance with the\nbylaws of said corporation (or partnership in accordance with the partnership\nagreement of said partnership) and that this Lease is binding upon said\ncorporation (or partnership) in accordance with its terms. If Tenant is a\ncorporation, each of the persons executing this Lease on behalf of Tenant does\nhereby covenant and warrant that Tenant is a duly authorized and existing\ncorporation, that Tenant is qualified to do business in California and that the\ncorporation has full right and authority to enter into this Lease.\n\n 15.12 Additional Definitions. Any term that is given a special\nmeaning by a provision in this Lease shall have such meaning when used in this\nLease or any addendum or amendment hereto. As used herein, the following terms\nshall have the following meanings:\n\n A. Agreed Interest Rate. The term \"Agreed Interest Rate\" shall\nmean that interest rate determined as of the time it is to be applied that is\nequal to the lessor of (i) two percent (2%) in excess of the \"prime rate\",\n\"reference rate\", or \"base rate\" established by Bank of America (or if Bank of\nAmerica shall cease to exist, by the commercial bank with its headquarters in\nCalifornia that has the greatest net worth among commercial banks headquartered\nin California) as it may be adjusted from time to time, or (ii) the maximum\ninterest rate permitted by law.\n\n B. Common Area. The term \"Common Area\" shall mean all areas\nand facilities within the Property that are not designated by Landlord for the\nexclusive use of Tenant or any other lessee or other occupant of the Property,\nincluding the parking areas, access and perimeter roads, pedestrian sidewalk,\nlandscaped areas, trash enclosures, recreation areas and the like.\n\n 30.\n\n \n C. Law. The term \"Law\" shall mean any judicial decision,\nstatute, constitution, ordinance, resolution, regulation, rule, administrative\norder, or other requirement of any municipal, county, state, federal or other\ngovernment agency or authority having jurisdiction over the parties to this\nLease or the Premises, or both, in effect either at the Commencement Date of\nthis Lease or any time during the L ease Term, including, without limitation,\nany regulation, order or policy of any quasi-official entity or body (e.g.,\nboard of fire examiners, public utilities or special district).\n\n D. Leasehold Improvements. The term \"Leasehold Improvements\"\nshall mean all improvements, additions, alterations and fixtures installed in\nthe Premises by Tenant at its expense which are not Trade Fixtures.\n\n E. Lender. The term \"Lender\" shall mean any beneficiary,\nmortgagee, secured party, lessor, or other holder of any Security Instrument.\n\n F. Private Restrictions. The term \"Private Restrictions\" shall\nmean all recorded covenants, conditions and restrictions, reciprocal easement\nagreements, and any other recorded instruments affecting the use of the Premises\nas they may exist from time to time.\n\n G. Trade Fixtures. The term \"Trade Fixtures\" shall mean\nanything affixed to the Premises by Tenant at its expense for purposes of trade,\nmanufacture, ornament or domestic use (except replacement of similar work or\nmaterial originally installed by Landlord) which can be removed without injury\nto the Premises unless such thing has, by the manner in which it is affixed,\nbecome an integral part of the Premises; provided, however, that all of Tenant's\nsigns shall be Trade Fixtures regardless of how affixed to the Premises.\n\n 15.13 Miscellaneous. Should any provision of this Lease prove to be\ninvalid or illegal, such invalidity or illegality shall in no way affect, impair\nor invalidate any other provision hereof, and such remaining provisions shall\nremain in full force and effect. Time is of the essence with respect to the\nperformance of every provision of this Lease in which time of performance is a\nfactor. The captions used in this Lease are for convenience only and shall not\nbe considered in the construction or interpretation of any provision hereof.\nAny executed copy of this Lease shall be deemed an original for all purposes.\nThis Lease shall, subject to the provisions regarding assignment, apply to and\nbind the respective heirs, successors, executors, administrators and assigns of\nLandlord and Tenant. \"Party\" shall mean Landlord or Tenant, as the context\nimplies. If Tenant consists of more than one person or entity, then all members\nof Tenant shall be jointly and severally liable hereunder. This Lease shall be\nconstrued and enforced in accordance with the laws of the State of California.\nThe language in all parts of this Lease shall in all cases be construed as a\nwhole according to its fair meaning, and not strictly for or against either\nLandlord or Tenant. When the context of this Lease requires, the neuter gender\nincludes the masculine, the feminine, a partnership or corporation or joint\nventure, and the singular includes the plural. The terms \"shall\", \"will\" and\n\"agree\" are mandatory. The term \"may\" is permissive. When a party is required\nto do something by this Lease, it shall do so at its sole cost and expense\nwithout right of reimbursement from the other party unless specific provision is\nmade therefor. Where Tenant is obligated not to perform any act, Tenant is also\nobligated to use reasonable efforts to restrain any others within its control\nfrom performing said act, including Agents, invitees, contractors, and\nsubcontractors. Landlord shall not become or be deemed a partner nor a joint\nventurer with Tenant by reason of the provisions of this Lease.\n\n 15.14 Termination by Exercise of Right. If this Lease is terminated\npursuant to its terms by the proper exercise of a right to terminate\nspecifically granted to Landlord or Tenant by this Lease, then this Lease shall\nterminate thirty (30) days after the date the right to terminate is properly\nexercised (unless another date is specified in that part of the Lease creating\nthe right, in which event the date so specified for termination shall prevail),\nthe rent and all other charges due hereunder shall be prorated as of the date of\ntermination, and neither Landlord nor Tenant shall have any further rights or\nobligations under this Lease except for those that have accrued prior to the\ndate of termination. This paragraph does not apply to a termination of this\nLease by Landlord as a result of a default by Tenant.\n\n 31.\n\n \n 15.15 Brokerage Commissions. Tenant warrants that is has not had any\ndealings with any real estate brokers, leasing agents or salesmen, or incurred\nany obligations for the payment of real estate brokerage commissions or finder's\nfees which would be earned or due and payable by reason of the execution of this\nLease other than to the Retained Real Estate Brokers. Landlord shall be\nresponsible for the payment of any commission owed pursuant to a separate\nwritten commission agreement between Landlord and the Retained Real Estate\nBrokers for the payment of the commission as a result of the execution of this\nLease.\n\n 15.16 Entire Agreement. This Lease constitutes the entire agreement\nbetween the parties, and there are no binding agreements or representations\nbetween the parties except as expressed herein. Tenant acknowledges that\nneither Landlord nor Landlord's agent(s) has made any representation or warranty\nas to (i) whether the Premises may be used for Tenant's intended use under\nexisting Law or (ii) the suitability of the Premises or the Common Area for the\nconduct of Tenant's business or the condition of any improvements located\nthereon. Tenant expressly waives all claims for damage by reason of any\nstatement, representation, warranty, promise or other agreement of Landlord or\nLandlord's agent(a), if any, not contained in this Lease or in any addendum or\namendment hereto. No subsequent change or addition to this Lease shall be\nbinding unless in writing and signed by the parties hereto.\n\n 15.17 Old Lease; Assumption. In consideration for Landlord's\nagreement to enter into this Lease with Tenant in substantially the same form as\nthe Original Lease, Tenant hereby assumes FMC's obligations under the Original\nLease, including, without limitation, the obligation to restore the Premises\npursuant Section 5.6 of the Original Lease.\n\n 32.\n\n \n In Witness Whereof, Landlord and Tenant have executed this Lease with\nthe intent to be legally bound thereby, to be effective as of the Commencement\nDate of this Lease.\n\n<\/pre>\n
\n\nLANDLORD: TENANT:
\n
\nATP Associates, L.P., a Delaware limited partnership United Defense L.P.,
\n a Delaware limited partnership<\/p>\nBy: Menlo Equities Associates III Inc., a Delaware By: UDLP Holdings Corp., a Delaware corporation, its
\n corporation, Its General Partner General Partner<\/p>\n
By: \/s\/ Henry D. Bullock By: \/s\/ Peter C. Woglom
\n ————————————- ———————————————-<\/p>\n
Its: President Printed
\n ———————————— Name: Peter C. Woglom
\n ——————————————–
\n Title: Vice-President and General Manager, Ground
\n ——————————————-
\n Systems Division-UDLP
\n ————————————————–
\n<\/c><\/s><\/caption>\n<\/table>\n
33.<\/p>\n
Exhibit “A”<\/p>\n
1.<\/p>\n
Exhibit “B”<\/p>\n
PLANS AND SPECIFICATIONS<\/p>\n
FOR BUILDING “C”<\/p>\n
[Intentionally Deleted]<\/p>\n
1.<\/p>\n
Exhibit C<\/p>\n
INTERIOR IMPROVEMENT AGREEMENT
\n (Building C)<\/p>\n
This Interior Improvement Agreement is made part of that Lease dated for
\nreference purposes only April __, 1999 (the “Lease”), by and between ATP
\nAssociates L.P., a Delaware limited partnership (“Landlord”) and United Defense
\nL.P., a Delaware limited partnership (“Tenant”) of approximately 86,785 square
\nfeet of gross leaseable area located in that building commonly known as Building
\nC of Airport Technology Park, 2830 De La Cruz Boulevard, Santa Clara,
\nCalifornia.<\/p>\n
Landlord and Tenant agree that the following terms are hereby added to the
\nLease:<\/p>\n
1. Definitions. As used herein and in the Lease, the following terms
\nshall have the following meanings:<\/p>\n
A. Approved Plans. The term “Approved Plans” shall mean those final
\nplans, specifications and working drawings to be approved by Landlord.<\/p>\n
B. Interior Improvements. The term “Interior Improvements” shall
\nmean those improvements described by the Approved Plans that Tenant has the
\nright to construct in the Premises pursuant to paragraph 2 hereof.<\/p>\n
C. Interior Improvement Costs. The term “Interior Improvement
\nCosts” shall mean the following: (i) the total amount due pursuant to the
\nconstruction contract entered into by Tenant pursuant to subparagraph 2B hereof
\nto construct the Interior Improvements; (ii) the cost of all governmental
\napprovals, permits and fees required as a condition to the construction of the
\nInterior Improvements; (iii) all utility connection or use fees; (iv) fees of
\narchitects, designers, or engineers for services rendered in connection with the
\ndesign and construction of the Interior Improvements; (v) Tenant’s moving and
\nrelocation costs incurred in connection with the consolidation of its employees
\nat the Premises over the twelve (12) months prior to the date hereof (“Tenant’s
\nRelocation Costs”) and (vi) the cost of payment and performance bonds obtained
\nto assure completion of the Interior Improvements. There shall be excluded from
\nInterior Improvement Costs the following, to the extent not included in the
\nconstruction contract with the Prime Contractor referred to in subparagraph 2B
\nhereof: (i) any fee for Landlord’s review of Tenant’s plans for the Interior
\nImprovements; (ii) temporary electricity used during the construction period in
\nconnection with the construction of the Interior Improvements; and (iii) any
\nfees charged by Tenant or its agents or employees for supervising\/reviewing the
\nconstruction of the Interior Improvements (excluding overhead and profits of
\nprime contractor).<\/p>\n
D. Landlord’s Interior improvement Allowance. The term “Landlord’s
\nInterior Improvement Allowance” shall mean the maximum amount Landlord is
\nrequired to spend toward the payment of the Interior Improvement Costs, which
\namount is equal to One Hundred Ninety Thousand Dollars ($190,000).<\/p>\n
E. Substantially Completed. The Interior Improvements shall be
\ndeemed to be “Substantially Completed” when (i) Prime Contractor has issued its
\nwritten certificate stating that such improvements have been substantially
\ncompleted in accordance with the Approved Plans therefor, (ii) electrified
\noffice partitions are installed, and (iii) the Building Department of the City
\nof Santa Clara has completed its final inspection of such improvements and has
\n“signed off” the building inspection card approving such work as complete.<\/p>\n
F. Prime Contractor. The term “Prime Contractor” shall mean
\n________.<\/p>\n
2. Construction Of Interior improvements. Tenant shall have the right to
\nconstruct the Interior Improvements in accordance with the following:<\/p>\n
1.<\/p>\n
A. Tenant warrants that the Interior Improvements shall be
\nconstructed in a good and workmanlike manner substantially in accordance with
\nthe Approved Plans (as modified by any change orders approved by Landlord and
\nTenant pursuant to paragraph 3 hereof) and all Laws. All materials and
\nequipment furnished shall be fully paid for and be free of liens, chattel
\nmortgages, and security interests of any kind.<\/p>\n
B. The Interior Improvements shall be constructed by Prime
\nContractor pursuant to a construction contract between Tenant and Prime
\nContractor. Landlord shall have the right to review such form of construction
\ncontract before it is executed. Once the construction contract between Prime
\nContractor and Tenant has been executed, Tenant shall not materially amend,
\nmodify or alter the responsibilities of Prime Contractor thereunder without
\nLandlord’s written consent, except for change orders approved pursuant to
\nparagraph 3 hereof. In connection with the execution of such construction
\ncontract, Tenant shall use reasonable efforts to provide that all construction
\nor equipment warranties or guarantees obtained by Tenant shall, to the extent
\nobtainable, provide that such warranties and guaranties shall also run for the
\nbenefit of Landlord. Upon reasonable written advance request of Landlord,
\nTenant shall inform Landlord of all written construction and equipment
\nwarranties existing in favor of Tenant which affect the Interior Improvements.
\nTenant shall cooperate with Landlord in enforcing such warranties and in
\nbringing any suit that may be necessary to enforce liability with regard to any
\ndefects.<\/p>\n
C. Tenant shall use reasonable efforts to commence construction of
\nthe Interior Improvements as soon as reasonably practicable, and shall
\nthereafter continuously prosecute such construction to completion.<\/p>\n
D. Tenant shall properly obtain, comply with and keep in effect all
\npermits, licenses and other governmental approvals which are required to be
\nobtained from governmental bodies in order to construct the Interior
\nImprovements. Upon reasonable written advance request, Tenant shall promptly
\ndeliver copies of all such permits, licenses and approvals to Landlord.<\/p>\n
E. Tenant shall be solely responsible for all aspects of the
\nconstruction of the Interior Improvements, including the development and design
\nthereof as set forth in the Approved Plans, the supervision of the work of
\nconstruction, the qualification, financial condition, and performance of all
\narchitects, engineers, contractors, material suppliers, consultants, and the
\naccuracy of all applications for payment and the proper application of all
\ndisbursement. Landlord is not obligated to supervise, inspect or inform Tenant
\nor any third party of any aspect of the construction of the Interior
\nImprovements. Any inspection or review by Landlord, is to determine whether
\nTenant is properly discharging its obligations to Landlord and may not be relied
\nupon by Tenant or any third party. Landlord owes no duty of care to Tenant or
\nany third party to protect against or to inform Tenant or any third party of,
\nany negligence, faulty, inadequate or defective design or construction of the
\nInterior Improvements.<\/p>\n
3. Chances to Approved Plans for Interior Improvements. Neither Landlord
\nnor Tenant shall have the right to order extra work or change orders with
\nrespect to the Approved Plans or the construction of the Interior Improvements
\nwithout the prior written consent of the other. All extra work or change orders
\nrequested by either Landlord or Tenant shall be made in writing, shall specify
\nthe amount of delay or the time saved resulting therefrom, shall specify any
\nadded or reduced cost resulting therefrom, and shall become effective and a part
\nof the Approved Plans once approved in writing by both parties. Notwithstanding
\nthe foregoing, Tenant’s failure to obtain Landlord’s consent to an extra work or
\nchange order shall not be an Event of Tenant’s Default if Landlord would have
\nbeen required to consent to the change pursuant to the terms hereof.<\/p>\n
4. Payment of Interior Improvement Costs. The Interior Improvement Costs
\nshall be paid as follows:<\/p>\n
A. Landlord shall contribute to the payment of all Interior
\nImprovement Costs up to an amount equal to Landlord’s Interior Improvement
\nAllowance. An amount equal to 40% of the Landlord’s Interior Improvement
\nAllowance shall be applied to Tenant’s Relocation Costs (the “Tenant Relocation
\nAllowance”). If, at the time of completion of all Interior Improvements, (1)
\nTenant has not used the entire Tenant Relocation Allowance, Tenant shall receive
\nthe remainder of the Tenant Relocation Allowance as a credit against Base
\nMonthly Rent for the first month of the Lease Term, or at Tenant’s Option,
\nTenant can use such amount for the Interior Improvement Costs at Building A and
\n(2) Tenant has not used the entire Landlord’s Interior Improvement <\/p>\n
2.<\/p>\n
Allowance (other than the amount allocated to the Tenant Relocation Allowance),
\nTenant can use such amount for the Interior Improvement Costs at Building A.
\nExcept as expressly provided in the preceding sentence,, if any part of the
\nLandlord’s Interior Improvement Allowance is not used by Tenant, or Tenant does
\nnot qualify for a disbursement pursuant to the provisions of this paragraph 4
\nwith the result that the entire allowance is not disbursed, there shall
\nnonetheless be no adjustment in the Base Monthly Rent due from Tenant pursuant
\nto the Lease. If the Interior Improvement Costs exceed the maximum amount of
\nLandlord’s required contribution, then Tenant shall pay the entire amount of
\nsuch excess.<\/p>\n
B. Landlord and Tenant acknowledge that the construction contract
\nTenant will enter into for the construction of the interior Improvements will
\nprovide for progress payments to Prime Contractor in stages as the work is
\ncompleted. Landlord shall pay the full amount of each such progress payment
\nuntil all of Landlord’s Interior Improvement Allowance is expanded. Thereafter,
\nif the cost of the Interior Improvements exceeds the amount of Landlord’s
\nrequired contribution for such improvements, then Tenant shall pay the rest of
\nthe progress payments due to Prime Contractor. Landlord shall pay any progress
\npayment due from Landlord to Prime Contractor within thirty (30) days after
\nsatisfaction of all of the conditions precedent to such progress payment by
\nLandlord that has been requested by Tenant which are set forth in subparagraph
\n4D and 4E hereof. If Landlord fails to pay any such amount when due, then
\nTenant may (but without the obligation to do so) advance such funds on
\nLandlord’s behalf, and Landlord shall be obligated to reimburse Tenant for the
\namount of funds so advanced on its behalf and all costs incurred by Tenant in so
\ndoing, including all interest at the Agreed Interest Rate.<\/p>\n
C. If Tenant desires to obtain a disbursement from Landlord from the
\nLandlord’s Interior Improvement Allowance for the purpose of paying Interior
\nImprovement Costs, Tenant shall submit to Landlord a written itemized statement,
\nsigned by Tenant (an “Application for Payment”) setting forth the following:
\n(i) a description of the construction work performed, materials supplied, and\/or
\ncosts incurred or due for which disbursement is requested; and (ii) the total
\namount incurred, expended and\/or due for each requested item less prior
\ndisbursements; and (iii) the amount due to be paid by Landlord from Landlord’s
\nInterior Improvement Allowance.<\/p>\n
D. Landlord shall have no obligation to make any disbursement from
\nLandlord’s Interior Improvement Allowance at any time that there is a Continuing
\nTenant Default (as defined in paragraph 1.14 of the Lease), or there has
\noccurred an event, omission or failure of conditions which would constitute an
\nEvent of Tenant’s Default (as defined in paragraph 13.1 of the Lease) after
\nnotice or lapse of time, or both. In addition, Landlord shall have the right to
\ncondition any disbursement from Landlord’s Interior Improvement Allowance upon
\nLandlord’s receipt and approval of the following with respect to each
\nApplication for Payment:<\/p>\n
(1) The form of Application for Payment and the sufficiency of
\nthe information contained therein;<\/p>\n
(2) Bills and invoices and any other documents evidencing the
\ntotal amount expended, incurred, or due for any requested contribution to
\nInterior Improvement Costs;<\/p>\n
(3) Evidence of Tenant’s use of lien releases acceptable to
\nLandlord for payments or disbursements to any contractor, subcontractor,
\nmaterialmen, supplier, or lien claimant;<\/p>\n
(4) Architects, inspectors and\/or engineer’s periodic
\ncertification and the stage of construction that has been completed and its
\nconformance to the Approved Plans based upon any such architects, inspectors
\nand\/or engineers periodic, physical inspections of the Premises and Interior
\nImprovements;<\/p>\n
(5) Waivers and releases of mechanics’ lien, stop notice claim,
\nequitable lien claim or other lien claim rights or lien bonds in form and amount
\nreasonably satisfactory to Landlord;<\/p>\n
(6) Evidence of Tenant’s compliance with its obligations pursuant
\nto paragraph 2 hereof;<\/p>\n
(7) Any other document, requirement, evidence or information that
\nLandlord may reasonably request pursuant to any provision of this Interior
\nImprovement Agreement.<\/p>\n
3.<\/p>\n
E. Tenant agrees that all disbursements made to Tenant by Landlord
\nfrom Landlord’s Interior Improvement Allowance shall be used only for the
\npayment of Interior Improvement Costs and shall be applied as set forth, and for
\nthe purposes described in, the relevant Application for Payment based upon which
\nthe disbursement is made.<\/p>\n
5. Punchlist. Within a reasonable period of time after the Interior
\nImprovements are Substantially Completed, Landlord, Tenant and Tenant’s
\narchitect shall together walk through and inspect such improvements so
\ncompleted, using reasonable efforts to discover all uncompleted or defective
\nconstruction. After such inspection has been completed. Tenant shall use
\nreasonable efforts to complete and\/or repair all “punch list” items within
\nthirty (30) days thereafter.<\/p>\n
6. Construction Warranty for the Interior Improvements. Tenant warrants
\nthat the construction of the Interior Improvements will be performed in
\naccordance with the Approved Plans therefor and all Laws in a good and
\nworkmanlike manner, and that all materials and equipment furnished will conform
\nto said plans and shall be new and otherwise of good quality. Tenant shall
\npromptly commence the cure of any breach of such warranty and complete such cure
\nwith diligence at Tenant’s cost and expense.<\/p>\n
7. Ownership of the Interior Improvements. All of the Interior
\nImprovements which are constructed with funds of Landlord shall become the
\nproperty of Landlord upon installation and shall not be removed or altered by
\nTenant. Any part of the Interior Improvements which are constructed by Landlord
\nwith funds of Tenant shall become the property of Tenant upon installation and
\nTenant shall have the right to depreciate and claim and collect investment tax
\ncredits in such improvements; provided, however, that (i) Tenant shall not
\nremove or alter such improvements during the term of the Lease; (ii) such
\nimprovements shall be surrendered to Landlord, and title to such improvements
\nshall vest in Landlord, at the expiration or earlier termination of the Lease
\nTerm; and (iii) in no event shall Landlord have any obligation to pay Tenant for
\nthe cost or value of such improvements. Notwithstanding the foregoing, Tenant
\nshall have the right to remove only the following kinds of Interior Improvements
\nso long as it repairs all damage caused by the installation thereof and returns
\nthe Premises to the condition existing prior to the installation of such
\nInterior Improvements: (i) built-in cabinets, file drawers and bookcases; (ii)
\ncomputer room air conditioning; (iii) canteen equipment; (iv) office cubicle
\nsystems; and (v) ornamental statues. If both Landlord and Tenant contribute to
\nthe cost of constructing the Interior Improvements, Landlord and Tenant shall
\nagree in writing which of such improvements are to be constructed using
\nLandlord’s funds (and therefore are Landlord’s property) and which of them are
\nto be installed with Tenant’s funds (and therefore are Tenant’s property during
\nthe Lease Term).<\/p>\n
8. Documents. Within fifteen (15) days after receiving a written request
\nfrom Landlord, Tenant shall deliver to Landlord the most current version of the
\nfollowing: (i) a complete and correct list showing the name, address and
\ntelephone number of each contractor, subcontractor and principal materials
\nsupplier engaged in connection with the construction of the Interior
\nImprovements, and the total dollar amount of each contract and subcontract
\n(including any changes) together with the amounts paid through the date of the
\nlist; (ii) true and correct copies of all executed contracts and subcontracts
\nidentified in the list described in the immediately preceding clause, including
\nany changes; (iii) a construction progress schedule; and (iv) any update to any
\nitem described in the preceding clauses which Tenant may have previously
\ndelivered to Landlord. Tenant expressly authorizes Landlord to contact any
\ncontractor, subcontractor or materials supplier to verify any information
\ndisclosed in accordance with this paragraph. Within sixty (60) days after the
\nInterior Improvements have been Substantially Completed, Tenant shall cause the
\nfollowing to be delivered to Landlord:<\/p>\n
A. Statements from Tenant’s architect in form reasonably
\nsatisfactory to Landlord certifying that the Interior Improvements have been
\ncompleted substantially in accordance with the Approved Plans and all Laws;<\/p>\n
B. A copy of all permanent certificates of occupancy and other
\ngovernmental approvals which may be received by Tenant with respect to the
\nconstruction of the Interior Improvements.<\/p>\n
C. One (1) copy of the Approved Plans, one (1) copy of each extra
\nwork or change order, and one (1) copy of any “As-Built” plans and
\nspecifications for the Interior Improvements, which Tenant may have elected to
\ncause to be prepared;<\/p>\n
4.<\/p>\n
D. One (1) copy of all warranties, guaranties, and operational
\nmanuals relating to the Interior Improvements;<\/p>\n
E. A copy of a recorded notice of completion relating to the
\nconstruction of the Interior Improvements.<\/p>\n
9. Indemnity. Tenant agrees to indemnify and hold Landlord harmless from
\nand against all liabilities, claims, actions, damages, costs and expenses
\n(including attorneys’ fees incurred by Landlord in protecting its interest from
\nthe following) arising out of or resulting from construction of the Interior
\nImprovements, including any mechanics’ liens, defective workmanship or materials
\nand any claim or cause of action of any kind by any party that Landlord is
\nliable for any act or omission committed or made by Tenant, its agents,
\nemployees, or contractors in connection with the construction of the Interior
\nImprovements.<\/p>\n
10. Effect of Agreement. In the event of any inconsistency between this
\nAgreement and the Lease, the terms of this Agreement shall prevail.<\/p>\n
\n\nAS TENANT: AS LANDLORD:
\n
\nUnited Defense L.P., ATP Associates, L.P., a Delaware limited partnership
\na Delaware limited partnership<\/p>\nBy: UDLP Holdings Corp., a Delaware corporation, its By: Menlo Equities Associates III Inc., a Delaware
\n General Partner corporation, Its General Partner<\/p>\n
By: \/s\/ Peter C. Woglom By: \/s\/ Henry D. Bullock
\n ——————————————— ————————————–
\nPrinted Its: President
\nName: Peter C. Woglom ————————————-
\n ——————————————-
\nTitle: Vice-President and General Manager, Ground
\n ——————————————
\n Systems Division UDLP
\n————————————————-
\n<\/c><\/s><\/caption>\n<\/table>\n
5.<\/p>\n
Table of Contents<\/p>\n
\n\n Page
\n
\nARTICLE 1 DEFINITIONS……………………………………….. 1
\n 1.1 Commencement Date…………………………………… 1
\n 1.2 Rent Start Date…………………………………….. 1
\n 1.3 Lease Term…………………………………………. 1
\n 1.4 Property…………………………………………… 1
\n 1.5 Premises…………………………………………… 1
\n 1.6 Permitted Use………………………………………. 1
\n 1.7 Tenant’s Minimum Liability Insurance Coverage………….. 2
\n 1.8 Tenant’s Allocated Parking Stalls…………………….. 2
\n 1.9 Retained Real Estate Brokers…………………………. 2
\n 1.10 Address for Notices…………………………………. 2
\n 1.11 Lease……………………………………………… 2
\n 1.12 Building A Lease……………………………………. 2
\n 1.13 Tenant’s Allocated Share…………………………….. 2
\n 1.14 Continuing Tenant Default……………………………. 2
\n 1.15 Additional Definitions………………………………. 2
\nARTICLE 2 DEMISE AND ACCEPTANCE………………………………. 3
\n 2.1 Demise of Premises………………………………….. 3
\n 2.2 Delivery and Acceptance of Possession…………………. 3
\n 2.3 Construction of Interior Improvements…………………. 3
\n 2.4 Options to Extend Lease Term…………………………. 3
\nARTICLE 3 RENT……………………………………………… 6
\n 3.1 Base Monthly Rent…………………………………… 6
\n 3.2 Additional Rent…………………………………….. 6
\n 3.4 Late Charge and Interest on Rent in Default……………. 7
\nARTICLE 4 USE OF PREMISES……………………………………. 7
\n 4.1 Limitation on Type………………………………….. 7
\n 4.2 Compliance with Laws and Private Restrictions………….. 8
\n 4.3 Insurance Requirements………………………………. 8
\n 4.4 Outside Areas………………………………………. 9
\n 4.5 Signs……………………………………………… 9
\n 4.6 Rules and Regulations……………………………….. 9
\n 4.7 Parking……………………………………………. 9
\n 4.8 Window Coverings……………………………………. 10
\n<\/c><\/s><\/caption>\n<\/table>\n i.<\/p>\n
Table of Contents
\n (continued)<\/p>\n
\n\n Page
\n
\n 4.9 Outside Sales………………………………………. 10
\nARTICLE 5 TRADE FIXTURES AND LEASEHOLD IMPROVEMENTS…………….. 11
\n 5.1 Trade Fixtures……………………………………… 11
\n 5.2 Leasehold Improvements………………………………. 11
\n 5.3 Alterations Required by Law………………………….. 12
\n 5.4 Landlord’s Improvements……………………………… 12
\n 5.5 Liens……………………………………………… 13
\nARTICLE 6 REPAIR AND MAINTENANCE……………………………… 14
\n 6.1 Tenant’s Obligation to Maintain………………………. 14
\n 6.2 Landlord’s Obligation to Maintain…………………….. 14
\n 6.3 Tenant’s Obligation to Reimburse……………………… 15
\n 6.4 Common Operating Expenses Defined…………………….. 16
\n 6.5 Control of Common Area………………………………. 17
\n 6.6 Tenant’s Negligence…………………………………. 17
\nARTICLE 7 WASTE DISPOSAL AND UTILITIES………………………… 18
\n 7.1 Waste Disposal……………………………………… 18
\n 7.2 Hazardous Materials…………………………………. 18
\n 7.3 Utilities………………………………………….. 20
\n 7.4 Compliance with Governmental Regulations………………. 21
\nARTICLE 8 REAL PROPERTY TAXES………………………………… 21
\n 8.1 Real Property Taxes Defined………………………….. 21
\n 8.2 Tenant’s Obligation to Reimburse……………………… 22
\n 8.3 Taxes on Tenant’s Property…………………………… 22
\nARTICLE 9 INSURANCE…………………………………………. 22
\n 9.1 Tenant’s Insurance………………………………….. 22
\n 9.2 Landlord’s Insurance………………………………… 24
\n 9.3 Tenant’s Obligation to Reimburse……………………… 24
\n 9.4 Release and Waiver of Subrogation…………………….. 24
\nARTICLE 10 LIMITATION ON LANDLORD’S LIABILITY AND INDEMNITY………. 25
\n 10.1 Limitation on Landlord’s Liability……………………. 25
\n 10.2 Limitation on Tenant’s Recourse………………………. 26
\n 10.3 Indemnification of Landlord………………………….. 26
\nARTICLE 11 DAMAGE TO PREMISES…………………………………. 26
\n 11.1 Landlord’s Duty to Restore…………………………… 26
\n<\/c><\/s><\/caption>\n<\/table>\n ii.<\/p>\n
Table of Contents
\n (continued)<\/p>\n
\n\n Page
\n
\n 11.2 Landlord’s Right to Terminate………………………… 27
\n 11.3 Tenant’s Right to Terminate………………………….. 28
\n 11.4 Abatement of Rent…………………………………… 28
\nARTICLE 12 CONDEMNATION………………………………………. 28
\n 12.1 Tenant’s Termination Right…………………………… 28
\n 12.2 Restoration and Abatement of Rent…………………….. 29
\n 12.3 Temporary Taking……………………………………. 29
\n 12.4 Division of Condemnation Award……………………….. 29
\nARTICLE 13 DEFAULT AND REMEDIES……………………………….. 30
\n 13.1 Events of Tenant’s Default…………………………… 30
\n 13.2 Landlord’s Remedies…………………………………. 31
\n 13.3 Waiver by Tenant of Certain Remedies………………….. 32
\n 13.4 Waiver…………………………………………….. 33
\n 13.5 Limitation on Exercise of Rights……………………… 33
\nARTICLE 14 ASSIGNMENT AND SUBLETTING…………………………… 33
\n 14.1 By Tenant………………………………………….. 33
\n 14.2 By Landlord………………………………………… 36
\nARTICLE 15 GENERAL PROVISIONS…………………………………. 36
\n 15.1 Landlord’s Right to Enter……………………………. 36
\n 15.2 Surrender of the Premises……………………………. 37
\n 15.3 Holding Over……………………………………….. 37
\n 15.4 Subordination………………………………………. 37
\n 15.6 Mortgagee Protection………………………………… 38
\n 15.7 Estoppel Certificates and Financial Statements…………. 38
\n 15.8 Force Majeure………………………………………. 39
\n 15.9 Notices……………………………………………. 39
\n 15.10 Obligation to Act Reasonably…………………………. 39
\n 15.11 Corporate Authority…………………………………. 39
\n 15.12 Additional Definitions………………………………. 39
\n 15.13 Miscellaneous………………………………………. 40
\n 15.14 Termination by Exercise of Right……………………… 41
\n 15.15 Brokerage Commissions……………………………….. 41
\n 15.16 Entire Agreement……………………………………. 41
\n 15.17 Old Lease; Assumption……………………………….. 41
\n<\/c><\/s><\/caption>\n<\/table>\n iii.<\/p>\n
An extra section break has been inserted above this paragraph. Do not delete
\nthis section break if you plan to add text after the Table of
\nContents\/Authorities. Deleting this break will cause Table of
\nContents\/Authorities headers and footers to appear on any pages following the
\nTable of Contents\/Authorities.<\/p>\n
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