**Exhibit 10.6**

 

ONE BAY PLAZA

BURLINGAME, CALIFORNIA

 

 

OFFICE LEASE AGREEMENT

 

 

BETWEEN

 

 

CA-ONE BAY PLAZA LIMITED PARTNERSHIP, aDelaware limited partnership

(“LANDLORD”)

 

 

AND

 

 

Opta Corporation,a Delaware corporation

(“TENANT”)

 

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OFFICE LEASE AGREEMENT

 

THIS OFFICE LEASE AGREEMENT(the “Lease”) is made and entered into as of the 31st day of October, 2004, by and between CA-ONEBAY PLAZA LIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”) and Opta Corporation, a Delawarecorporation. (“Tenant”). The following exhibits and attachments areincorporated into and made a part of the Lease: Exhibit A (Outlineand Location of Premises), Exhibit B (Expenses and Taxes), Exhibit C(Work Letter), Exhibit C-1 (Depiction of Landlord Work), Exhibit D(Commencement Letter), Exhibit E (Building Rules and Regulations), Exhibit F(Additional Provisions), Exhibit G (Parking Agreement) and Exhibit H(Asbestos Notification).

 

# **1.**     Basic Lease Information.

#  

1.01         “Building”shall mean the building located at 1350 Old Bayshore Highway, Burlingame,California, commonly known as One Bay Plaza. “Rentable Square Footage of theBuilding” is deemed to be 176,533 square feet.

 

1.02         “Premises”shall mean the area shown on Exhibit A to this Lease. The Premises islocated on the 7th floor and known as suite no. 740. If the Premisesinclude one or more floors in their entirety, all corridors and restroom facilitieslocated on such full floor(s) shall be considered part of the Premises.The “Rentable Square Footage of the Premises” is deemed to be 3,196 squarefeet. Landlord and Tenant stipulate and agree that the Rentable Square Footageof the Building and the Rentable Square Footage of the Premises are correct.

 

1.03         “BaseRent”:

 
| **Period or Months of Term** | ** ** | **Annual Rate  Per Square Foot** | ** ** | **Monthly  Base Rent** | ** ** |
|------------------------------|------------|----------------------------------|------------|------------------------|------------|
| Months 1 – 12           |       | $                                | 18.00      |                   | $          | 4,794.00 |   |
|                              |            |                                  |            |                        |            |  |  |

 

1.04         “Tenant’sPro Rata Share”: 1.8104%.

 

1.05         “BaseYear” for Taxes (defined in Exhibit B): 2005; “Base Year” for Expenses (defined in Exhibit B):  2005. 

 

1.06         “Term”:A period of 12 months and 0 days. Subject to Section 3, the Term shallcommence on October 29, 2004 (the “Commencement Date”) and, unlessterminated early in accordance with this Lease, end on October 31, 2005(the “Termination Date”).

 

1.07         Allowance(s):None

 

1.08         “SecurityDeposit”:  $ 4,794 as more fully described in Section 6.

 

1.09         “Guarantor(s)”:  None

 

1.10         “Broker(s)”:  Jon Mackey of Cornish & Carey.

 

1.11         “PermittedUse”:  General office use.

 

1.12         “NoticeAddress(es)”:

 
| Landlord:                                                                                                                                                              |   | Tenant:                                                                  |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------------------------------------------------------------------------|
|                                                                                                                                                                   |   |                                                                     |
| CA-One Bay Plaza Limited Partnership  c/o Equity Office Management, L.L.C.  950 Tower Lane  Suite 950  Foster City, California 94404  Attention: Property Manager |   | Opta Corporation  2402 Michelson Drive  Suite 220  Irvine, CA 92612 |

 

A copy of any notices toLandlord shall be sent to Equity Office, One Market, Spear Street Tower, Suite 600,San Francisco, California 94105, Attn: San Francisco Regional Counsel.

 

1.13         “BusinessDay(s)” are Monday through Friday of each week, exclusive of New Year’s Day,Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day andChristmas Day (“Holidays”). Landlord may designate additional Holidaysthat are

 

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commonly recognized by otheroffice buildings in the area where the Building is located. “Building ServiceHours” are 8:00 a.m. to 6:00 p.m. on Business Days.

 

1.14         “LandlordWork” means the work, if any, that Landlord is obligated to perform in thePremises pursuant to a separate agreement (the “Work Letter”), if any, attachedto this Lease as Exhibit C.

 

1.15         “Property”means the Building and the parcel(s) of land on which it is located and, atLandlord’s discretion, the parking facilities and other improvements, if any,serving the Building and the parcel(s) of land on which they are located.

 

2.     LeaseGrant.

 

The Premises are hereby leasedto Tenant from Landlord, together with the right to use any portions of theProperty that are designated by Landlord for the common use of tenants andothers (the “Common Areas”).

 

3.     Adjustmentof Commencement Date; Possession.

 

3.01  If Landlord is required to perform LandlordWork prior to the Commencement Date: (a) the date set forth in Section 1.06as the Commencement Date shall instead be defined as the “Target CommencementDate”; (b) the actual Commencement Date shall be the date on which theLandlord Work is Substantially Complete (defined below); and (c) theTermination Date will be the last day of the Term as determined based upon a period of 12 months and 0 days from theactual Commencement Date. Landlord’s failure to Substantially Complete theLandlord Work by the Target Commencement Date shall not be a default byLandlord or otherwise render Landlord liable for damages. Promptly after thedetermination of the Commencement Date, Landlord and Tenant shall enter into acommencement letter agreement in the form attached as Exhibit D whichcommencement letter agreement shall be deemed accepted by Tenant if notexecuted and returned to Landlord by Tenant within 30 days after the date thatLandlord delivers the commencement letter agreement to Tenant for execution. Ifthe Termination Date does not fall on the last day of a calendar month,Landlord and Tenant may elect to adjust the Termination Date to the lastday of the calendar month in which Termination Date occurs by the mutualexecution of a commencement letter agreement setting forth such adjusted date.The Landlord Work shall be deemed to be “Substantially Complete” on the datethat all Landlord Work has been performed, other than any details ofconstruction, mechanical adjustment or any other similar matter, thenon-completion of which does not materially interfere with Tenant’s use of thePremises. If Landlord is delayed in the performance of the Landlord Work as aresult of the acts or omissions of Tenant, the Tenant Related Parties (definedin Section 13) or their respective contractors or vendors, including,without limitation, changes requested by Tenant to approved plans, Tenant’sfailure to comply with any of its obligations under this Lease, or thespecification of any materials or equipment with long lead times (a “TenantDelay”), the Landlord Work shall be deemed to be Substantially Complete on thedate that Landlord could reasonably have been expected to SubstantiallyComplete the Landlord Work absent any Tenant Delay.

 

3.02 Subject to Landlord’sobligation, if any, to perform Landlord Work, the Premises are accepted byTenant in “as is” condition and configuration without any representations orwarranties by Landlord. By taking possession of the Premises, Tenant agreesthat the Premises are in good order and satisfactory condition. Landlord shallnot be liable for a failure to deliver possession of the Premises or any otherspace due to the holdover or unlawful possession of such space by anotherparty, however Landlord shall use reasonable efforts to obtain possession ofthe space. The commencement date for the space, in such event, shall bepostponed until the date Landlord delivers possession of the Premises to Tenantfree from occupancy by any party. If Tenant takes possession of the Premisesbefore the Commencement Date, such possession shall be subject to the terms andconditions of this Lease and Tenant shall pay Rent (defined in Section 4.01)to Landlord for each day of possession before the Commencement Date. However,except for the cost of services requested by Tenant (e.g. freight elevatorusage), Tenant shall not be required to pay Rent for any days of possessionbefore the Commencement Date during which Tenant, with the approval ofLandlord, is in possession of the Premises for the sole purpose of performingimprovements or installing furniture, equipment or other personal property.

 

4.     Rent.

#  

4.01  Tenant shall pay Landlord, without any setoffor deduction, unless expressly set forth in this Lease, all Base Rent andAdditional Rent due for the Term (collectively referred to as “Rent”). “AdditionalRent” means all sums (exclusive of Base Rent) that Tenant is required to payLandlord under this Lease. Tenant shall pay and be liable for all rental, salesand use taxes (but excluding income taxes), if any, imposed upon or measured byRent. Base Rent and recurring monthly charges of Additional Rent shall be dueand payable in advance on the first day of each calendar month without noticeor demand, provided that the installment of Base Rent for the first fullcalendar month of the Term, and the first

 

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monthly installment of Additional Rent forExpenses and Taxes, shall be payable upon the execution of this Lease byTenant. All other items of Rent shall be due and payable by Tenant on or before30 days after billing by Landlord. Rent shall be made payable to the entity,and sent to the address, Landlord designates and shall be made by good andsufficient check or by other means acceptable to Landlord. Tenant shall payLandlord an administration fee equal to 5% of all past due Rent, provided thatTenant shall be entitled to a grace period of 5 days for the first 2 latepayments of Rent in a calendar year. In addition, past due Rent shall accrueinterest at 12% per annum. Landlord’s acceptance of less than the correctamount of Rent shall be considered a payment on account of the earliest Rentdue. Rent for any partial month during the Term shall be prorated. Noendorsement or statement on a check or letter accompanying payment shall beconsidered an accord and satisfaction. Tenant’s covenant to pay Rent isindependent of every other covenant in this Lease.

 

4.02  Tenant shall pay Tenant’s Pro Rata Share ofTaxes and Expenses in accordance with Exhibit B of this Lease.

 

5.     Compliancewith Laws; Use.

 

The Premises shall be used forthe Permitted Use and for no other use whatsoever. Tenant shall comply with allstatutes, codes, ordinances, orders, rules and regulations of anymunicipal or governmental entity whether in effect now or later, including theAmericans with Disabilities Act (“Law(s)”), regarding the operation of Tenant’sbusiness and the use, condition, configuration and occupancy of the Premises.In addition, Tenant shall, at its sole cost and expense, promptly comply withany Laws that relate to the “Base Building” (defined below), but only to theextent such obligations are triggered by Tenant’s use of the Premises, otherthan for general office use, or Alterations or improvements in the Premisesperformed or requested by Tenant. “Base Building” shall include the structuralportions of the Building, the public restrooms and the Building mechanical,electrical and plumbing systems and equipment located in the internal core ofthe Building on the floor or floors on which the Premises are located. Tenantshall promptly provide Landlord with copies of any notices it receivesregarding an alleged violation of Law. Tenant shall comply with the rules andregulations of the Building attached as Exhibit E and such otherreasonable rules and regulations adopted by Landlord from time to time,including rules and regulations for the performance of Alterations(defined in Section 9).

 

6.             SecurityDeposit.

 

The Security Deposit, if any,shall be delivered to Landlord upon the execution of this Lease by Tenant andheld by Landlord without liability for interest (unless required by Law) assecurity for the performance of Tenant’s obligations. The Security Deposit isnot an advance payment of Rent or a measure of damages. Landlord may useall or a portion of the Security Deposit to satisfy past due Rent or to cureany Default (defined in Section 18) by Tenant. If Landlord uses anyportion of the Security Deposit, Tenant shall, within 5 days after demand,restore the Security Deposit to its original amount. Landlord shall return anyunapplied portion of the Security Deposit to Tenant within 45 days after thelater to occur of: (a) determination of the final Rent due from Tenant; or(b) the later to occur of the Termination Date or the date Tenantsurrenders the Premises to Landlord in compliance with Section 25.Landlord may assign the Security Deposit to a successor or transferee and,following the assignment, Landlord shall have no further liability for thereturn of the Security Deposit. Landlord shall not be required to keep theSecurity Deposit separate from its other accounts. Tenant hereby waives theprovisions of Section 1950.7 of the California Civil Code, or any similaror successor Laws now or hereinafter in effect.

 

7.             BuildingServices.

 

7.01  Landlord shall furnish Tenant with thefollowing services: (a) water for use in the Base Building lavatories; (b) customaryheat and air conditioning in season during Building Service Hours. Tenant shallhave the right to receive HVAC service during hours other than Building ServiceHours by paying Landlord’s then standard charge for additional HVAC service andproviding such prior notice as is reasonably specified by Landlord; (c) standardjanitorial service on Business Days; (d) Elevator service; (e) Electricityin accordance with the terms and conditions in Section 7.02; and (f) suchother services as Landlord reasonably determines are necessary or appropriatefor the Property.

 

7.02  Electricity used by Tenant in the Premisesshall be paid for by Tenant through inclusion in Expenses (except as providedfor excess usage). Without the consent of Landlord, Tenant’s use of electricalservice shall not exceed, either in voltage, rated capacity, use beyondBuilding Service Hours or overall load, that which Landlord reasonably deems tobe standard for the Building. Landlord shall have the right to measureelectrical usage by commonly accepted methods. If it is determined that Tenantis using excess electricity, Tenant shall pay Landlord for the cost of suchexcess electrical usage as Additional Rent.

 

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7.03  Landlord’s failure to furnish, or anyinterruption, diminishment or termination of services due to the application ofLaws, the failure of any equipment, the performance of repairs, improvements oralterations, utility interruptions or the occurrence of an event of ForceMajeure (defined in Section 26.03) (collectively a “Service Failure”)shall not render Landlord liable to Tenant, constitute a constructive evictionof Tenant, give rise to an abatement of Rent, nor relieve Tenant from theobligation to fulfill any covenant or agreement. However, if the Premises, or amaterial portion of the Premises, are made untenantable for a period in excessof 3 consecutive Business Days as a result of a Service Failure that isreasonably within the control of Landlord to correct, then Tenant, as its soleremedy, shall be entitled to receive an abatement of Rent payable hereunderduring the period beginning on the 4th consecutive Business Day ofthe Service Failure and ending on the day the service has been restored. If theentire Premises have not been rendered untenantable by the Service Failure, theamount of abatement shall be equitably prorated.

 

8.             LeaseholdImprovements.

 

All improvements in and to thePremises, including any Alterations (collectively, “Leasehold Improvements”)shall remain upon the Premises at the end of the Term without compensation toTenant. Landlord, however, by written notice to Tenant at least 30 days priorto the Termination Date, may require Tenant, at its expense, to remove (a) anyCable (defined in Section 9.01) installed by or for the benefit of Tenant,and (b) any Landlord Work or Alterations that, in Landlord’s reasonablejudgment, are of a nature that would require removal and repair costs that arematerially in excess of the removal and repair costs associated with standardoffice improvements (collectively referred to as “Required Removables”).Required Removables shall include, without limitation, internal stairways,raised floors, personal baths and showers, vaults, rolling file systems andstructural alterations and modifications. The designated Required Removablesshall be removed by Tenant before the Termination Date. Tenant shall repairdamage caused by the installation or removal of Required Removables. If Tenantfails to perform its obligations in a timely manner, Landlord may perform suchwork at Tenant’s expense. Tenant, at the time it requests approval for aproposed Alteration, may request in writing that Landlord advise Tenantwhether the Alteration or any portion of the Alteration is a RequiredRemovable. Within 10 days after receipt of Tenant’s request, Landlord shalladvise Tenant in writing as to which portions of the Alteration are RequiredRemovables.

 

9.             Repairsand Alterations.

 

9.01 Tenant shall periodicallyinspect the Premises to identify any conditions that are dangerous or in needof maintenance or repair. Tenant shall promptly provide Landlord with notice ofany such conditions. Tenant shall, at its sole cost and expense, perform allmaintenance and repairs to the Premises that are not Landlord’s expressresponsibility under this Lease, and keep the Premises in good condition andrepair, reasonable wear and tear excepted. Tenant’s repair and maintenanceobligations include, without limitation, repairs to: (a) floor covering; (b) interiorpartitions; (c) doors; (d) the interior side of demising walls; (e) electronic,phone and data cabling and related equipment that is installed by or for theexclusive benefit of Tenant (collectively, “Cable”); (f) supplemental airconditioning units, kitchens, including hot water heaters, plumbing, andsimilar facilities exclusively serving Tenant; and (g) Alterations. To theextent Landlord is not reimbursed by insurance proceeds, Tenant shall reimburseLandlord for the cost of repairing damage to the Building caused by the acts ofTenant, Tenant Related Parties and their respective contractors and vendors. IfTenant fails to make any repairs to the Premises for more than 15 days afternotice from Landlord (although notice shall not be required in an emergency),Landlord may make the repairs, and Tenant shall pay the reasonable cost ofthe repairs, together with an administrative charge in an amount equal to 10%of the cost of the repairs.

 

9.02 Landlord shall keep andmaintain in good repair and working order and perform maintenance uponthe: (a) structural elements of the Building; (b) mechanical(including HVAC), electrical, plumbing and fire/life safety systems serving theBuilding in general; (c) Common Areas; (d) roof of the Building; (e) exteriorwindows of the Building; and (f) elevators serving the Building. Landlordshall promptly make repairs for which Landlord is responsible. Tenant herebywaives any and all rights under and benefits of subsection 1 of Section 1932,and Sections 1941 and 1942 of the California Civil Code, or any similar orsuccessor Laws now or hereinafter in effect.

 

9.03 Tenant shall not makealterations, repairs, additions or improvements or install any Cable(collectively referred to as “Alterations”) without first obtaining the writtenconsent of Landlord in each instance, which consent shall not be unreasonablywithheld or delayed. However, Landlord’s consent shall not be required for anyAlteration that satisfies all of the following criteria (a “Cosmetic Alteration”):  (a) is of a cosmetic nature such aspainting, wallpapering, hanging pictures and installing carpeting; (b) isnot visible from the exterior of the Premises or Building; (c) will notaffect the Base Building; and (d) does not require work to be performedinside the walls or above the ceiling of the Premises. Cosmetic Alterationsshall be subject to all the other provisions of this Section 9.03. Priorto starting work, Tenant shall furnish Landlord with plans and specifications;names of contractors reasonably acceptable to Landlord (provided that Landlord may designatespecific contractors with respect to Base Building); required permits andapprovals; evidence of contractor’s and subcontractor’s insurance in

 

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amounts reasonably required by Landlord andnaming Landlord as an additional insured; and any security for performance inamounts reasonably required by Landlord. Changes to the plans andspecifications must also be submitted to Landlord for its approval. Alterationsshall be constructed in a good and workmanlike manner using materials of aquality reasonably approved by Landlord. Tenant shall reimburse Landlord forany sums paid by Landlord for third party examination of Tenant’s plans fornon-Cosmetic Alterations. Upon completion, Tenant shall furnish “as-built”plans for non-Cosmetic Alterations, completion affidavits and full and finalwaivers of lien. Landlord’s approval of an Alteration shall not be deemed arepresentation by Landlord that the Alteration complies with Law.

 

10.           Entry by Landlord.

 

Landlord may enter thePremises to inspect, show or clean the Premises or to perform orfacilitate the performance of repairs, alterations or additions to the Premisesor any portion of the Building. Except in emergencies or to provide Buildingservices, Landlord shall provide Tenant with reasonable prior verbal notice ofentry and shall use reasonable efforts to minimize any interference with Tenant’suse of the Premises. If reasonably necessary, Landlord may temporarilyclose all or a portion of the Premises to perform repairs, alterations andadditions. However, except in emergencies, Landlord will not close the Premisesif the work can reasonably be completed on weekends and after Building ServiceHours. Entry by Landlord shall not constitute a constructive eviction orentitle Tenant to an abatement or reduction of Rent.

 

11.           Assignmentand Subletting.

 

11.01  Except in connection with a PermittedTransfer (defined in Section 11.04), Tenant shall not assign, sublease,transfer or encumber any interest in this Lease or allow any third party to useany portion of the Premises (collectively or individually, a “Transfer”)without the prior written consent of Landlord, which consent shall not beunreasonably withheld, conditioned or delayed if Landlord does not exercise itsrecapture rights under Section 11.02. If the entity which controls thevoting shares/rights of Tenant changes at any time, such change of ownership orcontrol shall constitute a Transfer unless Tenant is an entity whose outstandingstock is listed on a recognized securities exchange or if at least 80% of itsvoting stock is owned by another entity, the voting stock of which is solisted. Tenant hereby waives the provisions of Section 1995.310 of theCalifornia Civil Code, or any similar or successor Laws, now or hereinafter ineffect, and all other remedies, including, without limitation, any right at lawor equity to terminate this Lease, on its own behalf and, to the extentpermitted under all applicable Laws, on behalf of the proposed transferee. Anyattempted Transfer in violation of this Section is voidable by Landlord.In no event shall any Transfer, including a Permitted Transfer, release orrelieve Tenant from any obligation under this Lease.

 

11.02  Tenantshall provide Landlord with financial statements for the proposed transferee, afully executed copy of the proposed assignment, sublease or other Transferdocumentation and such other information as Landlord may reasonablyrequest. Within 15 Business Days after receipt of the required information anddocumentation, Landlord shall either: (a) consent to the Transfer byexecution of a consent agreement in a form reasonably designated byLandlord; (b) reasonably refuse to consent to the Transfer in writing; or (c) inthe event of an assignment of this Lease or subletting of more than 20% of theRentable Square Footage of the Premises for more than 50% of the remaining Term(excluding unexercised options), recapture the portion of the Premises thatTenant is proposing to Transfer. If Landlord exercises its right to recapture,this Lease shall automatically be amended (or terminated if the entire Premisesis being assigned or sublet) to delete the applicable portion of the Premiseseffective on the proposed effective date of the Transfer. Tenant shall payLandlord a review fee of $1,500.00 for Landlord’s review of any PermittedTransfer or requested Transfer.

 

11.03  Tenantshall pay Landlord 50% of all rent and other consideration which Tenantreceives as a result of a Transfer that is in excess of the Rent payable toLandlord for the portion of the Premises and Term covered by the Transfer.Tenant shall pay Landlord for Landlord’s share of the excess within 30 daysafter Tenant’s receipt of the excess. Tenant may deduct from the excess,on a straight-line basis, all reasonable and customary expenses directlyincurred by Tenant attributable to the Transfer. If Tenant is in Default,Landlord may require that all sublease payments be made directly toLandlord, in which case Tenant shall receive a credit against Rent in theamount of Tenant’s share of payments received by Landlord.

 

11.04 Tenant may assign this Lease to a successorto Tenant by purchase, merger, consolidation or reorganization (an “OwnershipChange”) or assign this Lease or sublet all or a portion of the Premises to anAffiliate without the consent of Landlord, provided that all of the followingconditions are satisfied (a “Permitted Transfer”):  (a) Tenant is not in Default; (b) inthe event of an Ownership Change, Tenant’s successor shall own substantiallyall of the assets of Tenant and have a net worth which is at least equal toTenant’s net worth as of the day prior to the proposed Ownership Change; (c) thePermitted Use does not allow the Premises to be used for retail purposes; and (d) Tenantshall give Landlord written notice at least 15 Business Days prior to theeffective date of the Permitted Transfer. Tenant’s notice to Landlord shallinclude information and documentation evidencing the Permitted Transfer andshowing

 

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that each of the above conditions has been satisfied. If requested byLandlord, Tenant’s successor shall sign a commercially reasonable form ofassumption agreement. “Affiliate” shall mean an entity controlled by,controlling or under common control with Tenant.

 

12.           Liens.

 

Tenant shall not permitmechanics’ or other liens to be placed upon the Property, Premises or Tenant’sleasehold interest in connection with any work or service done or purportedlydone by or for the benefit of Tenant or its transferees. Tenant shall giveLandlord notice at least 15 days prior to the commencement of any work in thePremises to afford Landlord the opportunity, where applicable, to post andrecord notices of non-responsibility. Tenant, within 10 days of notice fromLandlord, shall fully discharge any lien by settlement, by bonding or byinsuring over the lien in the manner prescribed by the applicable lien Law. IfTenant fails to do so, Landlord may bond, insure over or otherwisedischarge the lien. Tenant shall reimburse Landlord for any amount paid byLandlord, including, without limitation, reasonable attorneys’ fees.

 

13.           Indemnityand Waiver of Claims.

 

Tenant hereby waives all claimsagainst and releases Landlord and its trustees, members, principals,beneficiaries, partners, officers, directors, employees, Mortgagees (defined inSection 23) and agents (the “Landlord Related Parties”) from all claimsfor any injury to or death of persons, damage to property or business loss inany manner related to (a) Force Majeure, (b) acts of third parties, (c) thebursting or leaking of any tank, water closet, drain or other pipe, (d) theinadequacy or failure of any security services, personnel or equipment, or (e) anymatter not within the reasonable control of Landlord. Notwithstanding theforegoing, except as provided in Article 15 to the contrary, Tenant shallnot be required to waive any claims against Landlord (other than for loss ordamage to Tenant’s business) where such loss or damage is due to the negligenceor willful misconduct of Landlord or any Landlord Related Parties. Nothingherein shall be construed as to diminish the repair and maintenance obligationsof Landlord contained elsewhere in this Lease. Except to the extent caused bythe negligence or willful misconduct of Landlord or any Landlord RelatedParties, Tenant shall indemnify, defend and hold Landlord and Landlord RelatedParties harmless against and from all liabilities, obligations, damages, penalties,claims, actions, costs, charges and expenses, including, without limitation,reasonable attorneys’ fees and other professional fees (if and to the extentpermitted by Law) (collectively referred to as “Losses”), which may beimposed upon, incurred by or asserted against Landlord or any of the LandlordRelated Parties by any third party and arising out of or in connection with anydamage or injury occurring in the Premises or any acts or omissions (includingviolations of Law) of Tenant, the Tenant Related Parties or any of Tenant’stransferees, contractors or licensees. Except to the extent caused by thenegligence or willful misconduct of Tenant or any Tenant Related Parties,Landlord shall indemnify, defend and hold Tenant, its trustees, members, principals,beneficiaries, partners, officers, directors, employees and agents (“TenantRelated Parties”) harmless against and from all Losses which may beimposed upon, incurred by or asserted against Tenant or any of the TenantRelated Parties by any third party and arising out of or in connection with theacts or omissions (including violations of Law) of Landlord or the LandlordRelated Parties.

 

14.           Insurance.

 

Tenant shall maintain thefollowing insurance (“Tenant’s Insurance”): (a) Commercial General Liability Insurance applicable to thePremises and its appurtenances providing, on an occurrence basis, a minimumcombined single limit of $2,000,000.00; (b)  Property/BusinessInterruption Insurance written on an All Risk or Special Perils form, withcoverage for broad form water damage including earthquake sprinklerleakage, at replacement cost value and with a replacement cost endorsementcovering all of Tenant’s business and trade fixtures, equipment, movablepartitions, furniture, merchandise and other personal property within thePremises (“Tenant’s Property”) and any Leasehold Improvements performed by orfor the benefit of Tenant; (c) Workers’ Compensation Insurance in amountsrequired by Law; and (d) Employers Liability Coverage of at least$1,000,000.00 per occurrence. Any company writing Tenant’s Insurance shall havean A.M. Best rating of not less than A-VIII. All Commercial GeneralLiability Insurance policies shall name as additional insureds Landlord (or itssuccessors and assignees), the managing agent for the Building (or anysuccessor), EOP Operating Limited Partnership, Equity Office Properties Trustand their respective members, principals, beneficiaries, partners, officers,directors, employees, and agents, and other designees of Landlord and itssuccessors as the interest of such designees shall appear. All policies ofTenant’s Insurance shall contain endorsements that the insurer(s) shall giveLandlord and its designees at least 30 days’ advance written notice of anycancellation, termination, material change or lapse of insurance. Tenant shallprovide Landlord with a certificate of insurance evidencing Tenant’s Insuranceprior to the earlier to occur of the Commencement Date or the date Tenant isprovided with possession of the Premises, and thereafter as necessary to assurethat Landlord always has current certificates evidencing Tenant’s Insurance. Solong as the same is available at commercially reasonable rates, Landlord shallmaintain so called All Risk property insurance on the Building at replacementcost value as reasonably estimated by Landlord.

 

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15.           Subrogation.

 

Landlord and Tenant herebywaive and shall cause their respective insurance carriers to waive any and allrights of recovery, claims, actions or causes of action against the other forany loss or damage with respect to Tenant’s Property, Leasehold Improvements,the Building, the Premises, or any contents thereof, including rights, claims,actions and causes of action based on negligence, which loss or damage is (orwould have been, had the insurance required by this Lease been carried) coveredby insurance.

 

16.           CasualtyDamage.

 

16.01  If all or any portion of the Premises becomesuntenantable by fire or other casualty to the Premises (collectively a “Casualty”),Landlord, with reasonable promptness, shall cause a general contractor selectedby Landlord to provide Landlord and Tenant with a written estimate of theamount of time required using standard working methods to SubstantiallyComplete the repair and restoration of the Premises and any Common Areasnecessary to provide access to the Premises (“Completion Estimate”). If theCompletion Estimate indicates that the Premises or any Common Areas necessaryto provide access to the Premises cannot be made tenantable within 180 daysfrom the date the repair is started, then either party shall have the right toterminate this Lease upon written notice to the other within 10 days afterreceipt of the Completion Estimate. Tenant, however, shall not have the rightto terminate this Lease if the Casualty was caused by the negligence orintentional misconduct of Tenant or any Tenant Related Parties. In addition,Landlord, by notice to Tenant within 90 days after the date of the Casualty,shall have the right to terminate this Lease if:  (1) the Premises have been materiallydamaged and there is less than 2 years of the Term remaining on the date of theCasualty; (2) any Mortgagee requires that the insurance proceeds beapplied to the payment of the mortgage debt; or (3) a material uninsuredloss to the Building occurs. In addition, Tenant shall have the right toterminate this Lease if:  (a) asubstantial portion of the Premises has been damaged by fire or other casualtyand such damage cannot reasonably be repaired within 60 days after receipt ofthe Completion Estimate; (b) there is less than 1 year of the Termremaining on the date of such casualty; (c) the casualty was not caused bythe negligence or willful misconduct of Tenant or its agents, employees orcontractors; and (d) Tenant provides Landlord with written notice of itsintent to terminate within 30 days after the date of the fire or othercasualty.

 

16.02  If this Lease is not terminated, Landlordshall promptly and diligently, subject to reasonable delays for insuranceadjustment or other matters beyond Landlord’s reasonable control, restore thePremises and Common Areas. Such restoration shall be to substantially the samecondition that existed prior to the Casualty, except for modifications requiredby Law or any other modifications to the Common Areas deemed desirable byLandlord. Upon notice from Landlord, Tenant shall assign to Landlord (or to anyparty designated by Landlord) all property insurance proceeds payable to Tenantunder Tenant’s Insurance with respect to any Leasehold Improvements performedby or for the benefit of Tenant; provided if the estimated cost to repair suchLeasehold Improvements exceeds the amount of insurance proceeds received byLandlord from Tenant’s insurance carrier, the excess cost of such repairs shallbe paid by Tenant to Landlord prior to Landlord’s commencement of repairs.Within 15 days of demand, Tenant shall also pay Landlord for any additionalexcess costs that are determined during the performance of the repairs.Landlord shall not be liable for any inconvenience to Tenant, or injury toTenant’s business resulting in any way from the Casualty or the repair thereof.Provided that Tenant is not in Default, during any period of time that all or amaterial portion of the Premises is rendered untenantable as a result of aCasualty, the Rent shall abate for the portion of the Premises that isuntenantable and not used by Tenant.

 

16.03  The provisions of this Lease, including this Section 16,constitute an express agreement between Landlord and Tenant with respect to anyand all damage to, or destruction of, all or any part of the Premises orthe Property, and any Laws, including, without limitation, Sections 1932(2) and1933(4) of the California Civil Code, with respect to any rights orobligations concerning damage or destruction in the absence of an expressagreement between the parties, and any similar or successor Laws now orhereinafter in effect, shall have no application to this Lease or any damage ordestruction to all or any part of the Premises or the Property.

 

17.           Condemnation.

 

Either party may terminatethis Lease if any material part of the Premises is taken or condemned forany public or quasi-public use under Law, by eminent domain or private purchasein lieu thereof (a “Taking”). Landlord shall also have the right to terminatethis Lease if there is a Taking of any portion of the Building or Propertywhich would have a material adverse effect on Landlord’s ability to profitablyoperate the remainder of the Building. The terminating party shall providewritten notice of termination to the other party within 45 days after it firstreceives notice of the Taking. The termination shall be effective on the datethe physical taking occurs. If this Lease is not terminated, Base Rent andTenant’s Pro Rata Share shall be appropriately adjusted to account for anyreduction in the square footage of the Building or Premises. All compensationawarded for a Taking shall be the property of Landlord. The

 

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right to receive compensation or proceeds areexpressly waived by Tenant, however, Tenant may file a separate claim forTenant’s Property and Tenant’s reasonable relocation expenses, provided the filingof the claim does not diminish the amount of Landlord’s award. If only a part ofthe Premises is subject to a Taking and this Lease is not terminated, Landlord,with reasonable diligence, will restore the remaining portion of the Premisesas nearly as practicable to the condition immediately prior to the Taking.Tenant hereby waives any and all rights it might otherwise have pursuant to Section 1265.130of the California Code of Civil Procedure, or any similar or successor Laws.

 

18.           Eventsof Default.

 

Each of the followingoccurrences shall be a “Default”: (a) Tenant’s failure to pay any portionof Rent when due, if the failure continues for 3 days after written notice toTenant (“Monetary Default”); (b) Tenant’s failure (other than a MonetaryDefault) to comply with any term, provision, condition or covenant of thisLease, if the failure is not cured within 10 days after written notice toTenant provided, however, if Tenant’s failure to comply cannot reasonably becured within 10 days, Tenant shall be allowed additional time (not to exceed 60days) as is reasonably necessary to cure the failure so long as Tenant beginsthe cure within 10 days and diligently pursues the cure to completion; (c) Tenantor any Guarantor becomes insolvent, makes a transfer in fraud of creditors,makes an assignment for the benefit of creditors, admits in writing itsinability to pay its debts when due or forfeits or loses its right to conductbusiness; (d) the leasehold estate is taken by process or operation ofLaw; (e) in the case of any ground floor or retail Tenant, Tenant does nottake possession of or abandons or vacates all or any portion of the Premises;or (f) Tenant is in default beyond any notice and cure period under anyother lease or agreement with Landlord at the Building or Property. If Landlordprovides Tenant with notice of Tenant’s failure to comply with any specificprovision of this Lease on 3 separate occasions during any 12 month period,Tenant’s subsequent violation of such provision shall, at Landlord’s option, bean incurable Default by Tenant. All notices sent under this Section shallbe in satisfaction of, and not in addition to, notice required by Law.

 

19.           Remedies.

 

19.01  Upon theoccurrence of any Default under this Lease, whether enumerated in Section 18or not, Landlord shall have the option to pursue any one or more of thefollowing remedies without any notice (except as expressly prescribed herein)or demand whatsoever (and without limiting the generality of the foregoing,Tenant hereby specifically waives notice and demand for payment of Rent orother obligations, except for those notices specifically required pursuant tothe terms of Section 18 or this Section 19, and waives any and allother notices or demand requirements imposed by applicable law):

 

(a)           Terminatethis Lease and Tenant’s right to possession of the Premises and recover fromTenant an award of damages equal to the sum of the following:

 

(i)            TheWorth at the Time of Award of the unpaid Rent which had been earned at the timeof termination;

 

(ii)           TheWorth at the Time of Award of the amount by which the unpaid Rent which wouldhave been earned after termination until the time of award exceeds the amountof such Rent loss that Tenant affirmatively proves could have been reasonablyavoided;

 

(iii)          TheWorth at the Time of Award of the amount by which the unpaid Rent for thebalance of the Term after the time of award exceeds the amount of such Rentloss that Tenant affirmatively proves could be reasonably avoided;

 

(iv)          Anyother amount necessary to compensate Landlord for all the detriment eitherproximately caused by Tenant’s failure to perform Tenant’s obligationsunder this Lease or which in the ordinary course of things would be likely toresult therefrom; and

 

(v)           Allsuch other amounts in addition to or in lieu of the foregoing as may bepermitted from time to time under applicable law.

 

The “Worth at the Time of Award”of the amounts referred to in parts (i) and (ii) above, shall becomputed by allowing interest at the lesser of a per annum rate equal to: (A) thegreatest per annum rate of interest permitted from time to time underapplicable law, or (B) the Prime Rate plus 5%. For purposes hereof, the “PrimeRate” shall be the per annum interest rate publicly announced as its prime orbase rate by a federally insured bank selected by Landlord in the State ofCalifornia. The “Worth at the Time of Award” of the amount referred to in part (iii),above, shall be computed by discounting such amount at the discount rate of theFederal Reserve Bank of San Francisco at the time of award plus 1%;

 

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(b)           Employthe remedy described in California Civil Code § 1951.4 (Landlord may continuethis Lease in effect after Tenant’s breach and abandonment and recover Rent asit becomes due, if Tenant has the right to sublet or assign, subject only toreasonable limitations); or

 

(c)           NotwithstandingLandlord’s exercise of the remedy described in California Civil Code § 1951.4in respect of an event or events of default, at such time thereafter asLandlord may elect in writing, to terminate this Lease and Tenant’s rightto possession of the Premises and recover an award of damages as provided abovein Paragraph 19.01(a).

 

19.02  Thesubsequent acceptance of Rent hereunder by Landlord shall not be deemed to be awaiver of any preceding breach by Tenant of any term, covenant or condition ofthis Lease, other than the failure of Tenant to pay the particular Rent soaccepted, regardless of Landlord’s knowledge of such preceding breach at thetime of acceptance of such Rent. No waiver by Landlord of any breach hereofshall be effective unless such waiver is in writing and signed by Landlord.

 

19.03  TENANTHEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVILCODE OF CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OFCIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAWFROM TIME TO TIME IN EFFECT DURING THE LEASE TERM PROVIDING THAT TENANT SHALLHAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITSTERMINATION BY REASON OF TENANT’S BREACH. TENANT ALSO HEREBY WAIVES, TO THEFULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATIONARISING OUT OF OR RELATING TO THIS LEASE.

 

19.04  No rightor remedy herein conferred upon or reserved to Landlord is intended to beexclusive of any other right or remedy, and each and every right and remedyshall be cumulative and in addition to any other right or remedy givenhereunder or now or hereafter existing by agreement, applicable law or inequity. In addition to other remedies provided in this Lease, Landlord shall beentitled, to the extent permitted by applicable law, to injunctive relief, orto a decree compelling performance of any of the covenants, agreements,conditions or provisions of this Lease, or to any other remedy allowed toLandlord at law or in equity. Forbearance by Landlord to enforce one or more ofthe remedies herein provided upon an event of default shall not be deemed or construedto constitute a waiver of such default.

 

19.05  If Tenantis in Default of any of its non-monetary obligations under the Lease, Landlordshall have the right to perform such obligations. Tenant shall reimburseLandlord for the cost of such performance upon demand together with anadministrative charge equal to 10% of the cost of the work performed byLandlord.

 

19.06  This Section 19shall be enforceable to the maximum extent such enforcement is not prohibitedby applicable law, and the unenforceability of any portion thereof shall notthereby render unenforceable any other portion.

 

20.           Limitationof Liability.

 

NOTWITHSTANDING ANYTHING TO THECONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANYSUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE INTEREST OFLANDLORD IN THE PROPERTY, OR (B) THE EQUITY INTEREST LANDLORD WOULD HAVEIN THE PROPERTY IF THE PROPERTY WERE ENCUMBERED BY THIRD PARTY DEBT IN ANAMOUNT EQUAL TO 70% OF THE VALUE OF THE PROPERTY. TENANT SHALL LOOK SOLELY TOLANDLORD’S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARDAGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR ANYLANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT ORDEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY BELIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OFSPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGEDDEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) WHOMTENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 23 BELOW),NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.

 

21.           Relocation.Intentionally Omitted.

 

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22.           HoldingOver.

 

If Tenant fails to surrenderall or any part of the Premises at the termination of this Lease,occupancy of the Premises after termination shall be that of a tenancy atsufferance. Tenant’s occupancy shall be subject to all the terms and provisionsof this Lease, and Tenant shall pay an amount (on a per month basis withoutreduction for partial months during the holdover) equal to 150% of the sum ofthe Base Rent and Additional Rent due for the period immediately preceding theholdover. No holdover by Tenant or payment by Tenant after the termination ofthis Lease shall be construed to extend the Term or prevent Landlord fromimmediate recovery of possession of the Premises by summary proceedings orotherwise. If Landlord is unable to deliver possession of the Premises to a newtenant or to perform improvements for a new tenant as a result of Tenant’sholdover and Tenant fails to vacate the Premises within 15 days after noticefrom Landlord, Tenant shall be liable for all damages that Landlord suffersfrom the holdover.

 

23.           Subordinationto Mortgages; Estoppel Certificate.

 

Tenant accepts this Leasesubject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s)or other lien(s) now or subsequently arising upon the Premises, the Building orthe Property, and to renewals, modifications, refinancings and extensionsthereof (collectively referred to as a “Mortgage”). The party having thebenefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shallbe self-operative, but upon request from a Mortgagee, Tenant shall execute acommercially reasonable subordination agreement in favor of the Mortgagee. Asan alternative, a Mortgagee shall have the right at any time to subordinate itsMortgage to this Lease. Upon request, Tenant, without charge, shall attorn toany successor to Landlord’s interest in this Lease. Landlord and Tenant shalleach, within 10 days after receipt of a written request from the other, executeand deliver a commercially reasonable estoppel certificate to those parties asare reasonably requested by the other (including a Mortgagee or prospectivepurchaser). Without limitation, such estoppel certificate may include acertification as to the status of this Lease, the existence of any defaults andthe amount of Rent that is due and payable.

 

24.           Notice.

 

All demands, approvals,consents or notices (collectively referred to as a “notice”) shall be inwriting and delivered by hand or sent by registered or certified mail withreturn receipt requested or sent by overnight or same day courier service atthe party’s respective Notice Address(es) set forth in Section 1. Eachnotice shall be deemed to have been received on the earlier to occur of actualdelivery or the date on which delivery is refused, or, if Tenant has vacatedthe Premises or any other Notice Address of Tenant without providing a newNotice Address, 3 days after notice is deposited in the U.S. mail or with acourier service in the manner described above. Either party may, at any time,change its Notice Address (other than to a post office box address) by givingthe other party written notice of the new address.

 

25.           Surrenderof Premises.

 

At the termination of thisLease or Tenant’s right of possession, Tenant shall remove Tenant’s Propertyfrom the Premises, and quit and surrender the Premises to Landlord, broom clean,and in good order, condition and repair, ordinary wear and tear and damagewhich Landlord is obligated to repair hereunder excepted. If Tenant fails toremove any of Tenant’s Property within 2 days after termination of this Leaseor Tenant’s right to possession, Landlord, at Tenant’s sole cost and expense,shall be entitled (but not obligated) to remove and store Tenant’s Property.Landlord shall not be responsible for the value, preservation or safekeeping ofTenant’s Property. Tenant shall pay Landlord, upon demand, the expenses andstorage charges incurred. If Tenant fails to remove Tenant’s Property from thePremises or storage, within 30 days after notice, Landlord may deem all orany part of Tenant’s Property to be abandoned and title to Tenant’sProperty shall vest in Landlord.

 

26.           Miscellaneous.

 

26.01  This Lease shall be interpreted and enforcedin accordance with the Laws of the State of California and Landlord and Tenanthereby irrevocably consent to the jurisdiction and proper venue of such stateor commonwealth. If any term or provision of this Lease shall to any extent bevoid or unenforceable, the remainder of this Lease shall not be affected. Ifthere is more than one Tenant or if Tenant is comprised of more than one partyor entity, the obligations imposed upon Tenant shall be joint and severalobligations of all the parties and entities, and requests or demands from anyone person or entity comprising Tenant shall be deemed to have been made by allsuch persons or entities. Notices to any one person or entity shall be deemedto have been given to all persons and entities. Tenant represents and warrantsto Landlord that each individual executing this Lease on behalf of Tenant isauthorized to do so on behalf of Tenant and that Tenant is not, and theentities or individuals constituting Tenant or which may own or controlTenant or which may be owned or controlled by Tenant are not, among theindividuals or entities identified on any list compiled pursuant to ExecutiveOrder 13224 for

 

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the purpose of identifying suspectedterrorists.

 

26.02  If either party institutes a suit against theother for violation of or to enforce any covenant, term or condition of thisLease, the prevailing party shall be entitled to all of its costs and expenses,including, without limitation, reasonable attorneys’ fees. Landlord and Tenanthereby waive any right to trial by jury in any proceeding based upon a breachof this Lease. Either party’s failure to declare a default immediately upon itsoccurrence, or delay in taking action for a default, shall not constitute awaiver of the default, nor shall it constitute an estoppel.

 

26.03  Whenevera period of time is prescribed for the taking of an action by Landlord orTenant (other than the payment of the Security Deposit or Rent), the period oftime for the performance of such action shall be extended by the number of daysthat the performance is actually delayed due to strikes, acts of God, shortagesof labor or materials, war, terrorist acts, civil disturbances and other causesbeyond the reasonable control of the performing party (“Force Majeure”).

 

26.04  Landlord shall have the right to transfer andassign, in whole or in part, all of its rights and obligations under this Leaseand in the Building and Property. Upon transfer Landlord shall be released fromany further obligations hereunder and Tenant agrees to look solely to thesuccessor in interest of Landlord for the performance of such obligations,provided that, any successor pursuant to a voluntary, third party transfer (butnot as part of an involuntary transfer resulting from a foreclosure ordeed in lieu thereof) shall have assumed Landlord’s obligations under thisLease.

 

26.05  Landlord has delivered a copy of this Leaseto Tenant for Tenant’s review only and the delivery of it does not constitutean offer to Tenant or an option. Tenant represents that it has dealt directlywith and only with the Broker as a broker in connection with this Lease. Tenantshall indemnify and hold Landlord and the Landlord Related Parties harmlessfrom all claims of any other brokers claiming to have represented Tenant inconnection with this Lease. Landlord shall indemnify and hold Tenant and theTenant Related Parties harmless from all claims of any brokers claiming to haverepresented Landlord in connection with this Lease. Equity Office PropertiesManagement Corp. (“EOPMC”) is an affiliate of Landlord and represents only theLandlord in this transaction. Any assistance rendered by any agent or employeeof EOPMC in connection with this Lease or any subsequent amendment ormodification hereto has been or will be made as an accommodation to Tenantsolely in furtherance of consummating the transaction on behalf of Landlord,and not as agent for Tenant.

 

26.06 Time is of the essence with respect to Tenant’sexercise of any expansion, renewal or extension rights granted to Tenant. Theexpiration of the Term, whether by lapse of time, termination or otherwise,shall not relieve either party of any obligations which accrued prior to orwhich may continue to accrue after the expiration or termination of thisLease.

 

26.07  Tenant may peacefully have, hold andenjoy the Premises, subject to the terms of this Lease, provided Tenant paysthe Rent and fully performs all of its covenants and agreements. This covenantshall be binding upon Landlord and its successors only during its or theirrespective periods of ownership of the Building.

 

26.08  ThisLease does not grant any rights to light or air over or about the Building.Landlord excepts and reserves exclusively to itself any and all rights notspecifically granted to Tenant under this Lease. This Lease constitutes theentire agreement between the parties and supersedes all prior agreements andunderstandings related to the Premises, including all lease proposals, lettersof intent and other documents. Neither party is relying upon any warranty,statement or representation not contained in this Lease. This Lease may bemodified only by a written agreement signed by an authorized representative ofLandlord and Tenant.

 

[SIGNATURES FOLLOW ON NEXT PAGE]

 

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Landlord and Tenant haveexecuted this Lease as of the day and year first above written.

 
|       | LANDLORD:                                                                 |
|------------|---------------------------------------------------------------------------|
|       |                                                                      |
| ** ** | **CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a  Delaware limited partnership** |
|       |                                                                      |   |   |
|       | By:                                                                       | EOM GP, L.L.C., a Delaware limited  liability  company, its general partner |
|       |                                                                      |
|       |                                                                      | By: | Equity Office Management, L.L.C., a  Delaware limited liability company, its non-  member manager |
|       |                                                                      |   |   |
|       |                                                                      |   | By: | /s/ Kenneth Young |   |
|       |                                                                      |   | Name: |   |
|       |                                                                      |   | Title: | Managing Director |
|       |                                                                      |
|       |                                                                      |
|       | TENANT:                                                                   |
|       |                                                                      |
| ** ** | Opta Corporation, a Delaware corporation                                  |
|       |                                                                      |
|       |                                                                      |
|       | By:                                                                       | /s/ Sean Wang |   |
|       | Name:                                                                     |   |
|       | Title:                                                                    | COO |
|       |                                                                      |
|       |                                                                      |
|       | By:                                                                       |   |   |
|       | Name:                                                                     |   |   |
|       | Title:                                                                    |   |   |
|       |                                                                      |
|       |                                                                      |   |
|       | Tenant’s Tax ID Number (SSN or FEIN)                                 |
|            |                                                                           |  |  |  |  |  |  |  |

 

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EXHIBIT A

 

OUTLINE AND LOCATION OF PREMISES

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and Opta Corporation, a Delaware corporation (“Tenant”)for space in the Building located at 1350 Old Bayshore Highway, Burlingame,California, commonly known as One Bay Plaza.

 

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EXHIBIT B

 

## **EXPENSES AND TAXES**

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and OptaCorporation, a Delaware corporation (“Tenant”) for space in the Buildinglocated at 1350 Old Bayshore Highway, Burlingame, California, commonly known asOne Bay Plaza.

 

1.             Payments.

 

1.01  Tenant shall pay Tenant’s Pro Rata Share ofthe amount, if any, by which Expenses (defined below) for each calendar yearduring the Term exceed Expenses for the Base Year (the “Expense Excess”) andalso the amount, if any, by which Taxes (defined below) for each calendar yearduring the Term exceed Taxes for the Base Year (the “Tax Excess”). If Expensesor Taxes in any calendar year decrease below the amount of Expenses or Taxesfor the Base Year, Tenant’s Pro Rata Share of Expenses or Taxes, as the case may be,for that calendar year shall be $0. Landlord shall provide Tenant with a goodfaith estimate of the Expense Excess and of the Tax Excess for each calendaryear during the Term. On or before the first day of each month, Tenant shallpay to Landlord a monthly installment equal to one-twelfth of Tenant’s Pro RataShare of Landlord’s estimate of both the Expense Excess and Tax Excess. Afterits receipt of the revised estimate, Tenant’s monthly payments shall be basedupon the revised estimate. If Landlord does not provide Tenant with an estimateof the Expense Excess or the Tax Excess by January 1 of a calendar year,Tenant shall continue to pay monthly installments based on the previous year’sestimate(s) until Landlord provides Tenant with the new estimate.

 

1.02  As soon as is practical following the end ofeach calendar year, Landlord shall furnish Tenant with a statement of theactual Expenses and Expense Excess and the actual Taxes and Tax Excess for theprior calendar year. If the estimated Expense Excess or estimated Tax Excessfor the prior calendar year is more than the actual Expense Excess or actualTax Excess, as the case may be, for the prior calendar year, Landlordshall either provide Tenant with a refund or apply any overpayment by Tenantagainst Additional Rent due or next becoming due, provided if the Term expiresbefore the determination of the overpayment, Landlord shall refund anyoverpayment to Tenant after first deducting the amount of Rent due. If theestimated Expense Excess or estimated Tax Excess for the prior calendar year isless than the actual Expense Excess or actual Tax Excess, as the case may be,for such prior year, Tenant shall pay Landlord, within 30 days after itsreceipt of the statement of Expenses or Taxes, any underpayment for the priorcalendar year.

 

2.             Expenses.

 

2.01  “Expenses” means all costs and expensesincurred in each calendar year in connection with operating, maintaining,repairing, and managing the Building and the Property. Expenses include,without limitation: (a) all labor and labor related costs, includingwages, salaries, bonuses, taxes, insurance, uniforms, training, retirementplans, pension plans and other employee benefits; (b) management fees; (c) thecost of equipping, staffing and operating an on-site and/or off-site managementoffice for the Building, provided if the management office services one or moreother buildings or properties, the shared costs and expenses of equipping,staffing and operating such management office(s) shall be equitably proratedand apportioned between the Building and the other buildings or properties; (d) accountingcosts; (e) the cost of services; (f) rental and purchase cost ofparts, supplies, tools and equipment; (g) insurance premiums anddeductibles; (h) electricity, gas and other utility costs; and (i) theamortized cost of capital improvements (as distinguished from replacement partsor components installed in the ordinary course of business) made subsequent tothe Base Year which are:  (1) performedprimarily to reduce current or future operating expense costs, upgrade Buildingsecurity or otherwise improve the operating efficiency of the Property; or (2) requiredto comply with any Laws that are enacted, or first interpreted to apply to theProperty, after the date of this Lease. The cost of capital improvements shallbe amortized by Landlord over the lesser of the Payback Period (defined below)or the useful life of the capital improvement as reasonably determined byLandlord. The amortized cost of capital improvements may, at Landlord’s option,include actual or imputed interest at the rate that Landlord would reasonablybe required to pay to finance the cost of the capital improvement. “PaybackPeriod” means the reasonably estimated period of time that it takes for thecost savings resulting from a capital improvement to equal the total cost ofthe capital improvement. Landlord, by itself or through an affiliate, shallhave the right to directly perform, provide and be compensated for any servicesunder this Lease. If Landlord incurs Expenses for the Building or Property togetherwith one or more other buildings or properties, whether pursuant to areciprocal easement agreement, common area agreement or otherwise, the sharedcosts and expenses shall be equitably prorated and apportioned between theBuilding and Property and the other buildings or properties.

 

2.02  Expensesshall not include: the cost of capital improvements (except as set forthabove); depreciation; principal payments of mortgage and other non-operatingdebts of Landlord; the cost of

 

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repairs or other work to the extent Landlord is reimbursed by insuranceor condemnation proceeds; costs in connection with leasing space in theBuilding, including brokerage commissions; lease concessions, rental abatementsand construction allowances granted to specific tenants; costs incurred inconnection with the sale, financing or refinancing of the Building; fines,interest and penalties incurred due to the late payment of Taxes or Expenses;organizational expenses associated with the creation and operation of theentity which constitutes Landlord; or any penalties or damages that Landlordpays to Tenant under this Lease or to other tenants in the Building under theirrespective leases.

 

2.03 If at any time during a calendar year theBuilding is not at least 95% occupied or Landlord is not supplying services toat least 95% of the total Rentable Square Footage of the Building, Expensesshall, at Landlord’s option, be determined as if the Building had been 95%occupied and Landlord had been supplying services to 95% of the Rentable SquareFootage of the Building. If Expenses for a calendar year are determined asprovided in the prior sentence, Expenses for the Base Year shall also bedetermined in such manner. Notwithstanding the foregoing, Landlord may calculatethe extrapolation of Expenses under this Section based on 100% occupancyand service so long as such percentage is used consistently for each year ofthe Term. The extrapolation of Expenses under this Section shall beperformed in accordance with the methodology specified by the Building Ownersand Managers Association.

 

3.     “Taxes”shall mean:  (a) all real propertytaxes and other assessments on the Building and/or Property, including, but notlimited to, gross receipts taxes, assessments for special improvement districtsand building improvement districts, governmental charges, fees and assessmentsfor police, fire, traffic mitigation or other governmental service of purportedbenefit to the Property, taxes and assessments levied in substitution orsupplementation in whole or in part of any such taxes and assessments andthe Property’s share of any real estate taxes and assessments under anyreciprocal easement agreement, common area agreement or similar agreement as tothe Property; (b) all personal property taxes for property that is ownedby Landlord and used in connection with the operation, maintenance and repairof the Property; and (c) all costs and fees incurred in connection withseeking reductions in any tax liabilities described in (a) and (b),including, without limitation, any costs incurred by Landlord for compliance,review and appeal of tax liabilities. Without limitation, Taxes shall notinclude any income, capital levy, transfer, capital stock, gift, estate orinheritance tax. If a change in Taxes is obtained for any year of the Termduring which Tenant paid Tenant’s Pro Rata Share of any Tax Excess, then Taxesfor that year will be retroactively adjusted and Landlord shall provide Tenantwith a credit, if any, based on the adjustment. Likewise, if a change isobtained for Taxes for the Base Year, Taxes for the Base Year shall be restatedand the Tax Excess for all subsequent years shall be recomputed. Tenant shallpay Landlord the amount of Tenant’s Pro Rata Share of any such increase in theTax Excess within 30 days after Tenant’s receipt of a statement from Landlord.

 

4.     AuditRights. Tenant, within 365 days after receiving Landlord’s statement ofExpenses, may give Landlord written notice (“Review Notice”) that Tenantintends to review Landlord’s records of the Expenses for the calendar year towhich the statement applies. Within a reasonable time after receipt of theReview Notice, Landlord shall make all pertinent records available forinspection that are reasonably necessary for Tenant to conduct its review. Ifany records are maintained at a location other than the management office forthe Building, Tenant may either inspect the records at such other locationor pay for the reasonable cost of copying and shipping the records. If Tenantretains an agent to review Landlord’s records, the agent must be with a CPAfirm licensed to do business in the state or commonwealth where the Property islocated. Tenant shall be solely responsible for all costs, expenses and feesincurred for the audit. Within 90 days after the records are made available toTenant, Tenant shall have the right to give Landlord written notice (an “ObjectionNotice”) stating in reasonable detail any objection to Landlord’s statement ofExpenses for that year. If Tenant fails to give Landlord an Objection Noticewithin the 90 day period or fails to provide Landlord with a Review Noticewithin the 365 day period described above, Tenant shall be deemed to haveapproved Landlord’s statement of Expenses and shall be barred from raising anyclaims regarding the Expenses for that year. The records obtained by Tenantshall be treated as confidential. In no event shall Tenant be permitted toexamine Landlord’s records or to dispute any statement of Expenses unlessTenant has paid and continues to pay all Rent when due.

 

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EXHIBIT C

 

WORK LETTER

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and OptaCorporation, a Delaware corporation (“Tenant”) for space in the Buildinglocated at 1350 Old Bayshore Highway, Burlingame, California, commonly known asOne Bay Plaza.

 

1.             Landlord**,**at its sole cost and expense (subject to the terms and provisions of Section 2below) shall perform improvements to the Premises in accordancewith the following work list (the “Work List”) using Building standard methods,materials and finishes. The improvements to be performed in accordance with theWork List are hereinafter referred to as the “Landlord Work”. Landlord shallenter into a direct contract for the Landlord Work with a general contractorselected by Landlord. In addition, Landlord shall have the right to selectand/or approve of any subcontractors used in connection with the Landlord Work.

 

WORK LIST

 

ITEM
|   |   |                                                                                                                    |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------|
| (A)    |   | Landlord shall remove the two phone booths,  as shown on Exhibit C-1 attached hereto.                              |
|   |   |                                                                                                                    |
| (B)    |   | Landlord shall remove a wall between a  storage room and an office, as shown on Exhibit C-1 attached  hereto. |
|   |   |                                                                                                                    |
| (C)    |   | Landlord shall steam clean the carpets  within the Premises.                                                            |

 

2.             Allother work and upgrades, subject to Landlord’s approval, shall be at Tenant’ssole cost and expense, plus any applicable state sales or use tax thereon,payable upon demand as Additional Rent. Tenant shall be responsible for anyTenant Delay in completion of the Premises resulting from any such other workand upgrades requested or performed by Tenant.

 

3.             Landlord’ssupervision or performance of any work for or on behalf of Tenant shall not bedeemed to be a representation by Landlord that such work complies withapplicable insurance requirements, building codes, ordinances, laws orregulations or that the improvements constructed will be adequate for Tenant’suse.

 

4.             ThisExhibit shall not be deemed applicable to any additional space added tothe Premises at any time or from time to time, whether by any options under theLease or otherwise, or to any portion of the original Premises or any additionsto the Premises in the event of a renewal or extension of the original Term ofthe Lease, whether by any options under the Lease or otherwise, unlessexpressly so provided in the Lease or any amendment or supplement to the Lease.

 

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EXHIBIT C-1

 

DEPICTION OF LANDLORD WORK

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and OptaCorporation, a Delaware corporation (“Tenant”) for space in the Buildinglocated at 1350 Old Bayshore Highway, Burlingame, California, commonly known asOne Bay Plaza.

 

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EXHIBIT D

COMMENCEMENT LETTER

(EXAMPLE)

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and Opta Corporation, a Delaware corporation. (“Tenant”) for space in the Building located at 1350 OldBayshore Highway, Burlingame, California, commonly known as One Bay Plaza.

 
| Date    |   |   |   |
|---------|--------|--------|--------|
|    |   |   |   |
| Tenant  |   |   |   |
| Address |   |   |   |

 

Re:          CommencementLetter with respect to that certain Lease dated as of the        day of                  ,          , by and between                                             ,as Landlord, and                                                      ,as Tenant, for            rentable square feet on the                floor of the Building located at                                                                .

 

Dear                                            :

 

In accordance with the termsand conditions of the above referenced Lease, Tenant accepts possession of thePremises and agrees:

 

1.             TheCommencement Date of the Lease is                                                 ;

 

2.             TheTermination Date of the Lease is                                                        .

 

Please acknowledge youracceptance of possession and agreement to the terms set forth above by signingall 3 counterparts of this Commencement Letter in the space provided andreturning 2 fully executed counterparts to my attention. This CommencementLetter shall be deemed accepted by Tenant if not executed and returned toLandlord by Tenant within 30 days after the date that Landlord delivers thisCommencement Letter to Tenant for execution.

 
| Sincerely,           |    |
|----------------------|---------|
|                 |    |
|                 |    |   |
| Authorized Signatory |    |
|                 |    |
| Agreed and Accepted: |    |
|                 |    |
|                 | Tenant: |   |   |
|                 |    |   |   |
|                 | By:     |   |   |
|                 | Name:   |   |   |
|                 | Title:  |   |   |
|                 | Date:   |   |   |
|                      |         |  |  |  |

 

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EXHIBIT E

 

BUILDING RULES AND REGULATIONS

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and Opta Corporation, a Delaware corporation (“Tenant”)for space in the Building located at 1350 Old Bayshore Highway, Burlingame,California, commonly known as One Bay Plaza.

 

The following rules andregulations shall apply, where applicable, to the Premises, the Building, theparking facilities (if any), the Property and the appurtenances. In the eventof a conflict between the following rules and regulations and theremainder of the terms of the Lease, the remainder of the terms of the Leaseshall control. Capitalized terms have the same meaning as defined in the Lease.

 

1.             Sidewalks,doorways, vestibules, halls, stairways and other similar areas shall not beobstructed by Tenant or used by Tenant for any purpose other than ingress andegress to and from the Premises. No rubbish, litter, trash, or material shallbe placed, emptied, or thrown in those areas. At no time shall Tenant permitTenant’s employees to loiter in Common Areas or elsewhere about the Building orProperty.

 

2.             Plumbingfixtures and appliances shall be used only for the purposes for which designedand no sweepings, rubbish, rags or other unsuitable material shall be thrown orplaced in the fixtures or appliances. Damage resulting to fixtures orappliances by Tenant, its agents, employees or invitees shall be paid for byTenant and Landlord shall not be responsible for the damage.

 

3.             Nosigns, advertisements or notices shall be painted or affixed to windows, doorsor other parts of the Building, except those of such color, size, style and insuch places as are first approved in writing by Landlord. All tenantidentification and suite numbers at the entrance to the Premises shall beinstalled by Landlord, at Tenant’s cost and expense, using the standardgraphics for the Building. Except in connection with the hanging of lightweightpictures and wall decorations, no nails, hooks or screws shall be inserted intoany part of the Premises or Building except by the Building maintenancepersonnel without Landlord’s prior approval, which approval shall not beunreasonably withheld.

 

4.             Landlordmay provide and maintain in the first floor (main lobby) of the Buildingan alphabetical directory board or other directory device listing tenants andno other directory shall be permitted unless previously consented to byLandlord in writing.

 

5.             Tenantshall not place any lock(s) on any door in the Premises or Building withoutLandlord’s prior written consent, which consent shall not be unreasonablywithheld, and Landlord shall have the right at all times to retain and use keysor other access codes or devices to all locks within and into the Premises. Areasonable number of keys to the locks on the entry doors in the Premises shallbe furnished by Landlord to Tenant at Tenant’s cost and Tenant shall not makeany duplicate keys. All keys shall be returned to Landlord at the expiration orearly termination of the Lease.

 

6.             Allcontractors, contractor’s representatives and installation techniciansperforming work in the Building shall be subject to Landlord’s prior approval,which approval shall not be unreasonably withheld, and shall be required tocomply with Landlord’s standard rules, regulations, policies and procedures,which may be revised from time to time.

 

7.             Movementin or out of the Building of furniture or office equipment, or dispatch or receiptby Tenant of merchandise or materials requiring the use of elevators,stairways, lobby areas or loading dock areas, shall be restricted to hoursreasonably designated by Landlord. Tenant shall obtain Landlord’s priorapproval by providing a detailed listing of the activity, which approval shallnot be unreasonably withheld. If approved by Landlord, the activity shall beunder the supervision of Landlord and performed in the manner required byLandlord. Tenant shall assume all risk for damage to articles moved and injuryto any persons resulting from the activity. If equipment, property, orpersonnel of Landlord or of any other party is damaged or injured as a resultof or in connection with the activity, Tenant shall be solely liable for anyresulting damage, loss or injury.

 

8.             Landlordshall have the right to approve the weight, size, or location of heavyequipment or articles in and about the Premises, which approval shall not beunreasonably withheld. Damage to the Building by the installation, maintenance,operation, existence or removal of Tenant’s Property shall be repaired atTenant’s sole expense.

 

9.             Corridordoors, when not in use, shall be kept closed.

 

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10.           Tenantshall not:  (1) make or permit anyimproper, objectionable or unpleasant noises or odors in the Building, orotherwise interfere in any way with other tenants or persons having businesswith them; (2) solicit business or distribute or cause to be distributed,in any portion of the Building, handbills, promotional materials or otheradvertising; or (3) conduct or permit other activities in the Buildingthat might, in Landlord’s sole opinion, constitute a nuisance.

 

11.           Noanimals, except those assisting handicapped persons, shall be brought into theBuilding or kept in or about the Premises.

 

12.           Noinflammable, explosive or dangerous fluids or substances shall be used or keptby Tenant in the Premises, Building or about the Property, except for thosesubstances as are typically found in similar premises used for general officepurposes and are being used by Tenant in a safe manner and in accordance withall applicable Laws. Tenant shall not, without Landlord’s prior writtenconsent, use, store, install, spill, remove, release or dispose of, within orabout the Premises or any other portion of the Property, anyasbestos-containing materials or any solid, liquid or gaseous material now orsubsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601et seq. or any other applicable environmental Law which may now or laterbe in effect. Tenant shall comply with all Laws pertaining to and governing theuse of these materials by Tenant and shall remain solely liable for the costsof abatement and removal.

 

13.           Tenantshall not use or occupy the Premises in any manner or for any purpose whichmight injure the reputation or impair the present or future value of thePremises or the Building. Tenant shall not use, or permit any part of thePremises to be used for lodging, sleeping or for any illegal purpose.

 

14.           Tenantshall not take any action which would violate Landlord’s labor contracts orwhich would cause a work stoppage, picketing, labor disruption or dispute orinterfere with Landlord’s or any other tenant’s or occupant’s business or withthe rights and privileges of any person lawfully in the Building (“LaborDisruption”). Tenant shall take the actions necessary to resolve the LaborDisruption, and shall have pickets removed and, at the request of Landlord, immediatelyterminate any work in the Premises that gave rise to the Labor Disruption,until Landlord gives its written consent for the work to resume. Tenant shallhave no claim for damages against Landlord or any of the Landlord RelatedParties nor shall the Commencement Date of the Term be extended as a result ofthe above actions.

 

15.           Tenantshall not install, operate or maintain in the Premises or in any other area ofthe Building, electrical equipment that would overload the electrical systembeyond its capacity for proper, efficient and safe operation as determinedsolely by Landlord. Tenant shall not furnish cooling or heating to thePremises, including, without limitation, the use of electric or gas heatingdevices, without Landlord’s prior written consent. Tenant shall not use morethan its proportionate share of telephone lines and other telecommunicationfacilities available to service the Building.

 

16.           Tenantshall not operate or permit to be operated a coin or token operated vendingmachine or similar device (including, without limitation, telephones, lockers,toilets, scales, amusement devices and machines for sale of beverages, foods,candy, cigarettes and other goods), except for machines for the exclusive useof Tenant’s employees and invitees.

 

17.           Bicyclesand other vehicles are not permitted inside the Building or on the walkwaysoutside the Building, except in areas designated by Landlord.

 

18.           Landlordmay from time to time adopt systems and procedures for the security andsafety of the Building and the Property, its occupants, entry, use andcontents. Tenant, its agents, employees, contractors, guests and invitees shallcomply with Landlord’s systems and procedures.

 

19.           Landlordshall have the right to prohibit the use of the name of the Building or anyother publicity by Tenant that in Landlord’s sole opinion may impair thereputation of the Building or its desirability. Upon written notice fromLandlord, Tenant shall refrain from and discontinue such publicity immediately.

 

20.           NeitherTenant nor its agents, employees, contractors, guests or invitees shall smokeor permit smoking in the Common Areas, unless a portion of the Common Areashave been declared a designated smoking area by Landlord, nor shall the aboveparties allow smoke from the Premises to emanate into the Common Areas or anyother part of the Building. Landlord shall have the right to designate theBuilding (including the Premises) as a non-smoking building.

 

21.           Landlordshall have the right to designate and approve standard window coverings for thePremises and to establish rules to assure that the Building presents a uniform exterior

 

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appearance.  Tenant shall ensure, to the extent reasonablypracticable, that window coverings are closed on windows in the Premises whilethey are exposed to the direct rays of the sun.

 

22.           Deliveriesto and from the Premises shall be made only at the times in the areas andthrough the entrances and exits reasonably designated by Landlord. Tenant shallnot make deliveries to or from the Premises in a manner that might interferewith the use by any other tenant of its premises or of the Common Areas, anypedestrian use, or any use which is inconsistent with good business practice.

 

23.           Thework of cleaning personnel shall not be hindered by Tenant after 5:30 P.M.,and cleaning work may be done at any time when the offices are vacant.Windows, doors and fixtures may be cleaned at any time. Tenant shallprovide adequate waste and rubbish receptacles to prevent unreasonable hardshipto the cleaning service.

 

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EXHIBIT F

 

ADDITIONAL PROVISIONS

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and OptaCorporation, a Delaware corporation (“Tenant”) for space in the Buildinglocated at 1350 Old Bayshore Highway, Burlingame, California, commonly known asOne Bay Plaza.

 

1.             AsbestosNotification. Tenant acknowledges that Tenant has received the asbestosnotification letter attached to this Lease as Exhibit H hereto, disclosingthe existence of asbestos in the Building. As part of Tenant’s obligationsunder this Lease, Tenant agrees to comply with the California “Connelly Act”and other applicable Laws, including providing copies of Landlord’s asbestosnotification letter to all of Tenant’s “employees” and “owners”, as those termsare defined in the Connelly Act and other applicable Laws.

 

2.             RenewalOption.

 

A.            Grantof Option; Conditions. Tenant shall have the right to extend the Term (the “RenewalOption”) for one additional period of 1 year commencing on the day followingthe Termination Date of the initial Term and ending on the 1st anniversary ofthe Termination Date (the “Renewal Term”), if:

 

1.             Landlordreceives notice of exercise (“Initial Renewal Notice”) not less than 9**4** full calendar months prior to theexpiration of the initial Term and not more than 12**6** full calendar months prior to the expiration of the initialTerm; and

 

2.             Tenantis not in default under the Lease beyond any applicable cure periods at thetime that Tenant delivers its Initial Renewal Notice or at the time Tenantdelivers its Binding Notice (as defined below); and

 

3.             Nopart of the Premises is sublet (other than pursuant to a PermittedTransfer, as defined in Section 11 of the Lease) at the time that Tenantdelivers its Initial Renewal Notice or at the time Tenant delivers its BindingNotice; and

 

4.             TheLease has not been assigned (other than pursuant to a Permitted Transfer, asdefined in Section 11 of the Lease) prior to the date that Tenant deliversits Initial Renewal Notice or prior to the date Tenant delivers its BindingNotice.

 

B.            TermsApplicable to Premises During Renewal Term.

 

1.             Theinitial Base Rent rate per rentable square foot for the Premises during theRenewal Term shall equal the Prevailing Market (hereinafter defined) rate perrentable square foot for the Premises. Base Rent during the Renewal Term shallincrease, if at all, in accordance with the increases assumed in thedetermination of Prevailing Market rate. Base Rent attributable to the Premisesshall be payable in monthly installments in accordance with the terms andconditions of Section 4 of the Lease.

 

2.             Tenantshall pay Additional Rent (i.e. Taxes and Expenses) for the Premises during theRenewal Term in accordance with Section 4 of the Lease, and the manner andmethod in which Tenant reimburses Landlord for Tenant’s share of Taxes andExpenses and the Base Year, if any, applicable to such matter, shall be some ofthe factors considered in determining the Prevailing Market rate for theRenewal Term.

 

C.            Procedurefor Determining Prevailing Market. Within 30 days after receipt of Tenant’sInitial Renewal Notice, Landlord shall advise Tenant of the applicable BaseRent rate for the Premises for the Renewal Term. Tenant, within 15 days afterthe date on which Landlord advises Tenant of the applicable Base Rent rate forthe Renewal Term, shall either (i) give Landlord final binding writtennotice (“Binding Notice”) of Tenant’s exercise of its Renewal Option, or (ii) ifTenant disagrees with Landlord’s determination, provide Landlord with writtennotice of rejection (the “Rejection Notice”). If Tenant fails to provideLandlord with either a Binding Notice or Rejection Notice within such 15 dayperiod, Tenant’s Renewal Option shall be null and void and of no further forceand effect. If Tenant provides Landlord with a Binding Notice, Landlord andTenant shall enter into the Renewal Amendment (as defined below) upon the termsand conditions set forth herein.

 

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If Tenant provides Landlordwith a Rejection Notice, Landlord and Tenant shall work together in good faithto agree upon the Prevailing Market rate for the Premises during the RenewalTerm. When Landlord and Tenant have agreed upon the Prevailing Market rate forthe Premises, such agreement shall be reflected in a written agreement betweenLandlord and Tenant, whether in a letter or otherwise, and Landlord and Tenantshall enter into the Renewal Amendment in accordance with the terms andconditions hereof. Notwithstanding the foregoing, if Landlord and Tenant areunable to agree upon the Prevailing Market rate for the Premises within 30 daysafter the date Tenant provides Landlord with the Rejection Notice, Tenant’sRenewal Option shall be deemed to be null and void and of no force and effect.

 

D.            RenewalAmendment. If Tenant is entitled to and properly exercises its RenewalOption, Landlord shall prepare an amendment (the “Renewal Amendment”) toreflect changes in the Base Rent, Term, Termination Date and other appropriateterms. The Renewal Amendment shall be sent to Tenant within a reasonable timeafter Landlord’s receipt of the Binding Notice or other written agreement byLandlord and Tenant regarding the Prevailing Market rate, and Tenant shallexecute and return the Renewal Amendment to Landlord within 15 days afterTenant’s receipt of same, but, upon final determination of the PrevailingMarket rate applicable during the Renewal Term as described herein, anotherwise valid exercise of the Renewal Option shall be fully effective whetheror not the Renewal Amendment is executed.

 

E.             Definitionof Prevailing Market. For purposes of this Renewal Option, “PrevailingMarket” shall mean the arms length fair market annual rental rate per rentablesquare foot under renewal leases and amendments entered into on or about thedate on which the Prevailing Market is being determined hereunder for spacecomparable to the Premises in the Building and office buildings comparable tothe Building in the Burlingame, California area. The determination ofPrevailing Market shall take into account any material economic differencesbetween the terms of this Lease and any comparison lease or amendment, such asrent abatements, construction costs and other concessions and the manner, ifany, in which the landlord under any such lease is reimbursed for operatingexpenses and taxes. The determination of Prevailing Market shall also take intoconsideration any reasonably anticipated changes in the Prevailing Market ratefrom the time such Prevailing Market rate is being determined and the time suchPrevailing Market rate will become effective under this Lease.

 

**F.**             Subordination. Notwithstanding anything herein to the contrary, Tenant’s RenewalOption is subject and subordinate to the expansion rights (whether such rightsare designated as a right of first offer, right of first refusal, expansionoption or otherwise) of any tenant of the Building existing on the date hereof.

 

3.             Roof Space For Dish/Antenna.

 

A.            Tenant shall have the right, in considerationfor payments of $50.00 per month (the “Dish/Antenna Payments”), to lease spaceon the roof of the Building for the purpose of installing (in accordance with Section 9.03of the Lease), operating and maintaining a           inch(       ) dish/antenna or othercommunication device approved by the Landlord (the “Dish/Antenna”). The Dish/AntennaPayments shall constitute Additional Rent under the terms of the Lease andTenant shall be required to make these payments in strict compliance with theterms of Section 4 of the Lease. The exact location of the space on theroof to be leased by Tenant shall be designated by Landlord and shall notexceed        (      ) square feet (the “Roof Space”). Landlordreserves the right to relocate the Roof Space as reasonably necessary duringthe Term. Landlord’s designation shall take into account Tenant’s use of theDish/Antenna. Notwithstanding the foregoing, Tenant’s right to install theDish/Antenna shall be subject to the approval rights of Landlord and Landlord’sarchitect and/or engineer with respect to the plans and specifications of theDish/Antenna, the manner in which the Dish/Antenna is attached to the roof ofthe Building and the manner in which any cables are run to and from theDish/Antenna. The Dish/Antenna must be tagged with weatherproof labels showingmanufacturer, model, frequency range, and name of Tenant. In addition, thecable between the Dish/Antenna and Tenant’s suite must be tagged in thetelecom closet on each floor with a label showing Tenant’s name, phone numberand suite number. The precise specifications and a general description ofthe Dish/Antenna along with all documents Landlord reasonably requires toreview the installation of the Dish/Antenna (the “Plans and Specifications”)shall be submitted to Landlord for Landlord’s written approval no later than 20days before Tenant commences to install the Dish/Antenna. Tenant shall besolely responsible for obtaining all necessary governmental and regulatoryapprovals and for the cost of installing, operating, maintaining and removingthe Dish/Antenna. Tenant shall notify Landlord upon completion of theinstallation of the

 

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Dish/Antenna.If Landlord determines that the Dish/Antenna equipment does not comply with theapproved Plans and Specifications, that the Building has been damaged duringinstallation of the Dish/Antenna or that the installation was defective,Landlord shall notify Tenant of any noncompliance or detected problems andTenant immediately shall cure the defects. If the Tenant fails to immediatelycure the defects, Tenant shall pay to Landlord upon demand the cost, asreasonably determined by Landlord, of correcting any defects and repairing anydamage to the Building caused by such installation. If at any time Landlord, inits sole discretion, deems it necessary, Tenant shall provide and install, atTenant’s sole cost and expense, appropriate aesthetic screening, reasonablysatisfactory to Landlord, for the Dish/Antenna (the “Aesthetic Screening”).

 

B.            Landlord agrees that Tenant, upon reasonableprior written notice to Landlord, shall have access to the roof of the Buildingand the Roof Space for the purpose of installing, maintaining, repairing andremoving the Dish/Antenna, the appurtenances and the Aesthetic Screening, ifany, all of which shall be performed by Tenant or Tenant’s authorizedrepresentative or contractors, which shall be approved by Landlord, at Tenant’ssole cost and risk. It is agreed, however, that only authorized engineers,employees or properly authorized contractors of Tenant, FCC (defined below) inspectors,or persons under their direct supervision will be permitted to have access tothe roof of the Building and the Roof Space. Tenant further agrees to exercisefirm control over the people requiring access to the roof of the Building andthe Roof Space in order to keep to a minimum the number of people having accessto the roof of the Building and the Roof Space and the frequency of theirvisits.

 

C.            It is further understood and agreed that theinstallation, maintenance, operation and removal of the Dish/Antenna, theappurtenances and the Aesthetic Screening, if any, is not permitted to damagethe Building or the roof thereof, or interfere with the use of the Building androof by Landlord. Tenant agrees to be responsible for any damage caused to theroof or any other part of the Building, which may be caused by Tenantor any of its agents or representatives.

 

D.            Tenant agrees to install only equipment oftypes and frequencies which will not cause unreasonable interference toLandlord or existing tenants of the Building. In the event Tenant’s equipmentcauses such interference, Tenant will change the frequency on which ittransmits and/or receives and take any other steps necessary to eliminate theinterference. If said interference cannot be eliminated within a reasonableperiod of time, in the judgment of Landlord, then Tenant agrees to remove theDish/Antenna from the Roof Space.

 

E.             Tenant shall, at its sole cost and expense,and at its sole risk, install, operate and maintain the Dish/Antenna in a goodand workmanlike manner, and in compliance with all Building, electric,communication, and safety codes, ordinances, standards, regulations andrequirements, now in effect or hereafter promulgated, of the FederalGovernment, including, without limitation, the Federal CommunicationsCommission (the “FCC”), the Federal Aviation Administration (“FAA”) or anysuccessor agency of either the FCC or FAA having jurisdiction over radio ortelecommunications, and of the state, city and county in which the Building islocated. Under this Lease, the Landlord and its agents assume no responsibilityfor the licensing, operation and/or maintenance of Tenant’s equipment. Tenanthas the responsibility of carrying out the terms of its FCC license in allrespects. The Dish/Antenna shall be connected to Landlord’s power supply instrict compliance with all applicable Building, electrical, fire and safetycodes. Neither Landlord nor its agents shall be liable to Tenant for any stoppages orshortages of electrical power furnished to the Dish/Antenna or the Roof Spacebecause of any act, omission or requirement of the public utility serving theBuilding, or the act or omission of any other tenant, invitee or licensee ortheir respective agents, employees or contractors, or for any other causebeyond the reasonable control of Landlord, and Tenant shall not be entitled toany rental abatement for any such stoppage or shortage of electricalpower. Neither Landlord nor its agents shall have any responsibility orliability for the conduct or safety of any of Tenant’s representatives, repair,maintenance and engineering personnel while in or on any part of theBuilding or the Roof Space.

 

F.             The Dish/Antenna, the appurtenances and theAesthetic Screening, if any, shall remain the personal property of Tenant, andshall be removed by Tenant at its own expense at the expiration or earliertermination of this Lease or Tenant’s right to possession hereunder. Tenantshall repair any damage caused by such removal, including the patching of any holesto match, as closely as possible, the color surrounding the area where theequipment and appurtenances were attached. Tenant agrees to maintain all of theTenant’s equipment placed on or about the roof or in any other part of theBuilding in proper operating condition and maintain same in satisfactorycondition as to appearance

 

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andsafety in Landlord’s sole discretion. Such maintenance and operation shall beperformed in a manner to avoid any interference with any other tenants orLandlord. Tenant agrees that at all times during the Term, it will keep theroof of the Building and the Roof Space free of all trash or waste materialsproduced by Tenant or Tenant’s agents, employees or contractors.

 

G.            In light of the specialized nature of theDish/Antenna, Tenant shall be permitted to utilize the services of its choicefor installation, operation, removal and repair of the Dish/Antenna, theappurtenances and the Aesthetic Screening, if any, subject to the reasonableapproval of Landlord. Notwithstanding the foregoing, Tenant must provideLandlord with prior written notice of any such installation, removal or repairand coordinate such work with Landlord in order to avoid voiding or otherwiseadversely affecting any warranties granted to Landlord with respect to theroof. If necessary, Tenant, at its sole cost and expense, shall retain anycontractor having a then existing warranty in effect on the roof to perform suchwork (to the extent that it involves the roof), or, at Tenant’s option, to perform suchwork in conjunction with Tenant’s contractor. In the event the Landlordcontemplates roof repairs that could affect Tenant’s Dish/Antenna, or which may resultin an interruption of the Tenant’s telecommunication service, Landlord shallformally notify Tenant at least 30 days in advance (except in cases of anemergency) prior to the commencement of such contemplated work in order toallow Tenant to make other arrangements for such service.

 

H.            Tenant shall not allow any provider oftelecommunication, video, data or related services (“Communication Services”)to locate any equipment on the roof of the Building or in the Roof Space forany purpose whatsoever, nor may Tenant use the Roof Space and/orDish/Antenna to provide Communication Services to an unaffiliated tenant,occupant or licensee of another building, or to facilitate the provision ofCommunication Services on behalf of another Communication Services provider toan unaffiliated tenant, occupant or licensee of the Building or any otherbuilding.

 

I.              Tenant acknowledges that Landlord may atsome time establish a standard license agreement (the “License Agreement”) withrespect to the use of roof space by tenants of the Building. Tenant, uponrequest of Landlord, shall enter into such License Agreement with Landlordprovided that such agreement does not materially alter the rights of Tenanthereunder with respect to the Roof Space.

 

J.             Tenant specifically acknowledges and agreesthat the terms and conditions of Section 13 of the Lease (Indemnity andWaiver of Claims) shall apply with full force and effect to the Roof Space andany other portions of the roof accessed or utilized by Tenant, itsrepresentatives, agents, employees or contractors.

 

K.            If Tenant defaults under any of the terms andconditions of this Section or the Lease, and Tenant fails to cure saiddefault within the time allowed by Section 18 of the Lease, Landlord shallbe permitted to exercise all remedies provided under the terms of the Lease,including removing the Dish/Antenna, the appurtenances and the AestheticScreening, if any, and restoring the Building and the Roof Space to thecondition that existed prior to the installation of the Dish/Antenna, theappurtenances and the Aesthetic Screening, if any. If Landlord removes theDish/Antenna, the appurtenances and the Aesthetic Screening, if any, as aresult of an uncured default, Tenant shall be liable for all costs and expensesLandlord incurs in removing the Dish/Antenna, the appurtenances and theAesthetic Screening, if any, and repairing any damage to the Building, the roofof the Building and the Roof Space caused by the installation, operation ormaintenance of the Dish/Antenna, the appurtenances, and the AestheticScreening, if any.

 

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EXHIBIT G

 

PARKING AGREEMENT

 

This Exhibit (“Parking Agreement”) isattached to and made a part of the Lease by and between CA-ONE BAY PLAZALIMITED PARTNERSHIP, a Delaware limited partnership (“Landlord”) and Opta Corporation, a Delaware corporation (“Tenant”) for space inthe Building located at 1350 Old Bayshore Highway, Burlingame, California,commonly known as One Bay Plaza.

 

1.             Thecapitalized terms used in this Parking Agreement shall have the same definitionsas set forth in the Lease to the extent that such capitalized terms are definedtherein and not redefined in this Parking Agreement. In the event of anyconflict between the Lease and this Parking Agreement, the latter shallcontrol.

 

2.             Duringthe initial Term, Tenant agrees to lease from Landlord and Landlord agrees tolease to Tenant a total of 11 non-reserved parking spaces and 0 reservedparking spaces in the parking facility servicing the Building (“ParkingFacility”). During the initial Term, there shall be no charge for such parkingspaces. Tenant may, from time to time request additional parking spaces, and ifLandlord shall provide the same, such parking spaces shall be provided and usedon a month-to-month basis, and otherwise on the foregoing terms and provisions,and at such prevailing monthly parking charges as shall be established fromtime to time. Such charges, if any, shall be payable in advance to Landlord orsuch other entity as designated by Landlord, and shall be sent concurrent withTenant’s payment of monthly Base Rent to the address Landlord designates fromtime to time. No deductions from such charges, if any, shall be made for dayson which the Parking Facility is not used by Tenant.

 

3.             Tenantshall at all times comply with all applicable ordinances, rules, regulations,codes, laws, statutes and requirements of all federal, state, county andmunicipal governmental bodies or their subdivisions respecting the use of theParking Facility. Landlord reserves the right to adopt, modify and enforcereasonable rules (“Rules”) governing the use of the Parking Facility fromtime to time including any key-card, sticker or other identification orentrance system and hours of operation. The Rules set forth herein arecurrently in effect. Landlord may refuse to permit any person who violatessuch Rules to park in the Parking Facility, and any violation of the Rules shallsubject the car to removal from the Parking Facility.

 

4.             Unlessspecified to the contrary above, the parking spaces hereunder shall be providedon a non-designated “first-come, first-served” basis. Tenant acknowledges thatLandlord has no liability for claims arising through acts or omissions of anyindependent operator of the Parking Facility. Landlord shall have no liabilitywhatsoever for any damage to items located in the Parking Facility, nor for anypersonal injuries or death arising out of any matter relating to the ParkingFacility, and in all events, Tenant agrees to look first to its insurancecarrier and to require that Tenant’s employees look first to their respectiveinsurance carriers for payment of any losses sustained in connection with anyuse of the Parking Facility. Tenant hereby waives on behalf of its insurancecarriers all rights of subrogation against Landlord or Landlord’s agents.Landlord reserves the right to assign specific parking spaces, and to reserveparking spaces for visitors, small cars, handicapped persons and for othertenants, guests of tenants or other parties, which assignment and reservationor spaces may be relocated as determined by Landlord from time to time,and Tenant and persons designated by Tenant hereunder shall not park in anylocation designated for such assigned or reserved parking spaces. Tenantacknowledges that the Parking Facility may be closed entirely or in part inorder to make repairs or perform maintenance services, or to alter,modify, re-stripe or renovate the Parking Facility, or if required by casualty,strike, condemnation, act of God, governmental law or requirement or otherreason beyond the operator’s reasonable control. In such event, Landlord shallrefund any prepaid parking fee hereunder, prorated on a per diem basis.

 

5.             IfTenant shall default under this Parking Agreement, the operator shall have theright to remove from the Parking Facility any vehicles hereunder which shallhave been involved or shall have been owned or driven by parties involved incausing such default, without liability therefor whatsoever. In addition, ifTenant shall default under this Parking Agreement, Landlord shall have theright to cancel this Parking Agreement on 10 days’ written notice, unlesswithin such 10 day period, Tenant cures such default. If Tenant defaults withrespect to the same term or condition under this Parking Agreement more than 3times during any 12 month period, and Landlord notifies Tenant thereof promptlyafter each such default, the next default of such term or condition during thesucceeding 12 month period, shall, at Landlord’s election, constitute an incurabledefault. Such cancellation right shall be cumulative and in addition to anyother rights or remedies available to Landlord at law or equity, or providedunder the Lease (all of which rights and remedies under the Lease are herebyincorporated herein, as though fully set forth). Any default by Tenant underthe Lease shall be a default under this Parking Agreement, and any defaultunder this Parking Agreement shall be a default under the Lease.

 

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## **RULES**

 

Landlord reserves the right toestablish and change Parking Facility hours from time to time, although, as ofthe date of this Lease, Tenant shall have access to the Parking Facility on a24-hour basis, 7 days a week, subject to the other terms of this ParkingAgreement*.*Tenant shall not store or permit itsemployees to store any automobiles in the Parking Facility without the priorwritten consent of the operator. Except for emergency repairs, Tenant and itsemployees shall not perform any work on any automobiles while located inthe Parking Facility, or on the Property. If it is necessary for Tenant or itsemployees to leave an automobile in the Parking Facility overnight, Tenantshall provide the operator with prior notice thereof designating the licenseplate number and model of such automobile.

 

(ii)           Carsmust be parked entirely within the stall lines painted on the floor, and onlysmall cars may be parked in areas reserved for small cars.

 

(iii)          Alldirectional signs and arrows must be observed.

 

(iv)          Thespeed limit shall be 5 miles per hour.

 

(v)           Parkingspaces reserved for handicapped persons must be used only by vehicles properlydesignated.

 

(vi)          Parkingis prohibited in all areas not expressly designated for parking, includingwithout limitation:

 

(a)           Areasnot striped for parking

(b)           aisles

(c)           where“no parking” signs are posted

(d)           ramps

(e)           loadingzones

 

(vii)         Parkingstickers, key cards or any other devices or forms of identification or entrysupplied by the operator shall remain the property of the operator. Such devicemust be displayed as requested and may not be mutilated in any manner. Theserial number of the parking identification device may not be obliterated.Parking passes and devices are not transferable and any pass or device in thepossession of an unauthorized holder will be void.

 

(viii)        Monthlyfees shall be payable in advance prior to the first day of each month. Failureto do so will automatically cancel parking privileges and a charge at theprevailing daily parking rate will be due. No deductions or allowances from themonthly rate will be made for days on which the Parking Facility is not used byTenant or its designees.

 

(ix)           ParkingFacility managers or attendants are not authorized to make or allow anyexceptions to these Rules.

 

(x)            Everyparker is required to park and lock his/her own car.

 

(xi)           Lossor theft of parking pass, identification, key cards or other such devices mustbe reported to Landlord and to the Parking Facility manager immediately. Anyparking devices reported lost or stolen found on any authorized car will beconfiscated and the illegal holder will be subject to prosecution. Lost orstolen passes and devices found by Tenant or its employees must be reported tothe office of the Parking Facility immediately.

 

(xii)          Washing,waxing, cleaning or servicing of any vehicle by the customer and/or his agentsis prohibited. Parking spaces may be used only for parking automobiles.

 

(xiii)         Tenantagrees to acquaint all persons to whom Tenant assigns a parking space withthese Rules.

 

6.             TENANTACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, LANDLORDSHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO TENANT OR TENANT’S PROPERTY(INCLUDING, WITHOUT LIMITATIONS, ANY LOSS OR DAMAGE TO TENANT’S AUTOMOBILE ORTHE CONTENTS THEREOF DUE TO THEFT, VANDALISM OR ACCIDENT) ARISING FROM ORRELATED TO TENANT’S USE OF THE PARKING FACILITY OR EXERCISE OF ANY RIGHTS UNDERTHIS PARKING AGREEMENT, WHETHER OR NOT SUCH LOSS OR DAMAGE RESULTS FROMLANDLORD’S ACTIVE 

 

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NEGLIGENCE OR NEGLIGENTOMISSION. THE LIMITATION ON LANDLORD’S LIABILITY UNDER THE PRECEDING SENTENCESHALL NOT APPLY HOWEVER TO LOSS OR DAMAGE ARISING DIRECTLY FROM LANDLORD’SWILLFUL MISCONDUCT.

 

7.             Withoutlimiting the provisions of Paragraph 6 above, Tenant hereby voluntarilyreleases, discharges, waives and relinquishes any and all actions or causes ofaction for personal injury or property damage occurring to Tenant arising as aresult of parking in the Parking Facility, or any activities incidentalthereto, wherever or however the same may occur, and further agrees thatTenant will not prosecute any claim for personal injury or property damageagainst Landlord or any of its officers, agents, servants or employees for anysaid causes of action. It is the intention of Tenant by this instrument, toexempt and relieve Landlord from liability for personal injury or propertydamage caused by negligence.

 

8.             Theprovisions of Section 20 of the Lease are hereby incorporated by referenceas if fully recited.

 

Tenant acknowledges that Tenant has read theprovisions of this Parking Agreement, has been fully and completely advised ofthe potential dangers incidental to parking in the Parking Facility and is fullyaware of the legal consequences of agreeing to this instrument.

 

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EXHIBIT H

 

ASBESTOS NOTIFICATION

 

This Exhibit is attached to and made a part ofthe Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and Opta Corporation, a Delaware corporation (“Tenant”) for space inthe Building located at 1350 Old Bayshore Highway, Burlingame, California,commonly known as One Bay Plaza.

 

As you may know, asbestos,because of its insulating and fire-resistant properties, was historically usedin some construction materials. California’s Connelly Act, as well as federalOSHA and some other California rules, now require building owners and landlordsto make certain notifications regarding known asbestos-containing materials (“ACM”)and presumed ACMs (“PACM”). PACM consists of certain older constructionmaterials which commonly contained asbestos. This Exhibit is designed to provideyou with the required ACM and PACM notifications.

 

ACM

 

Ourasbestos survey for the Building did not note the presence, location orquantity of ACM in the Building.

 

### **PACM**

### ** **

PACM consists of thermal systeminsulation and surfacing material found in buildings constructed prior to 1981,and asphalt or vinyl flooring installed prior to 1981. “Surfacing material”means material that is sprayed-on, troweled-on or otherwise applied to surfaces(such as acoustical plaster on ceilings and fireproofing materials onstructural members, or other materials on surfaces for acoustical,fireproofing, and other purposes). Because this Building was constructed priorto 1981, PACM may be present. Our asbestos survey(s) for the Building notethe presence, location and quantity of the PACM as follows:

 

•              Roof:  penthouse, thermal pipe insulation; andboiler room, hot water heater insulation.

 

The fact that our survey(s) may identifysuch materials as PACM does not necessarily mean that no other PACM exists inthe Building. Please be advised that if any thermal system insulation, asphaltor vinyl flooring or surfacing material, of the type described above, are foundto be present in the Building, such materials must be considered PACM unlessproperly tested and shown otherwise.

 

Because of the potentialpresence of PACM in the Building, we are providing you with the followingwarning, which is commonly known as a California Proposition 65 warning:

 

WARNING:  This Building contains asbestos, a chemicalknown to the State of California to cause cancer.

 

In addition, you should beaware that there are certain potential health risks that may result fromexposure to asbestos. Because we are not physicians, scientists or industrialhygienists, we have no special knowledge of the health impact of exposure toasbestos. However, we hired an environmental consulting firm to prepare anasbestos Operations and Maintenance Plan (“O&M Plan”) to address asbestosmatters at the Building. The O&M Plan is designed to minimize the potentialfor a release of asbestos fibers and outlines a schedule of actions to beundertaken with respect to asbestos. The written O&M Plan is available foryour review at our Building Management Office during regular business hours,and a copy of the O&M Plan will be provided to you upon request.

 

In general, the written O&MPlan describes the risks associated with asbestos exposure and how to preventsuch exposure. The O&M Plan describes those risks as follows:  asbestos is not a significant health concernunless asbestos fibers are released and inhaled. If inhaled, asbestos fiberscan accumulate in the lungs and, as exposure increases, the risk of disease(such as asbestosis and cancer) increases. However, measures to minimizeexposure and consequently minimize the accumulation of fibers, reduces the riskof adverse health effects.

 

The O&M Plan is designed tosafely manage the ACM and PACM in the Building and to avoid the inadvertentdisturbance of such ACM or PACM. To that end, the O&M Plan provides for thetraining of building housekeeping and maintenance personnel so that they canconduct their work without causing a release of asbestos fibers. As part ofthe O&M Plan, we maintain records of all asbestos-related activities andthe results of any asbestos survey, sampling or monitoring conducted in theBuilding.

 

The written O&M Plandescribes a number of activities which should be avoided in order to prevent arelease of asbestos fibers in the Building. In particular, you should be awarethat some of the activities which may present a health risk by causing anairborne release of asbestos fibers include moving, drilling, boring orotherwise disturbing ACM or PACM. Consequently, such activities should not beattempted by any person not qualified to handle ACM or PACM. In other words,you must obtain the

 

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approval of the building management prior toengaging in any such activities. Please contact the Property Manager for moreinformation in this regard. In addition, please contact the Property Manager ifyou notice any deterioration or disturbance of ACM or PACM. Also, note that theidentification of ACM and PACM in this Exhibit is based on actualknowledge and assumptions that the law requires us to make:  such materials do not necessarily compriseall asbestos in the Building.

 

Please be aware that you may havecertain obligations under California and federal laws with regard to the ACMand PACM in the Building, including obligations to notify your own employees,contractors, subtenants, agents and others of the presence of ACM and PACM. Youare solely responsible for complying with all such applicable laws.

 

Please contact the PropertyManager if you have any questions regarding the contents of this Exhibit.

 

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**FIRST AMENDMENT**

 

**THIS****FIRST AMENDMENT** (the “**Amendment**”) ismade and entered into as of September 9, 2005, by and between **CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delaware limited partnership**(“**Landlord**”) and **OPTA CORPORATION, aDelaware corporation**(“**Tenant**”).

 

**RECITALS**

 

A.**           **Landlordand Tenant are parties to that certain lease dated October 7, 2004 (the “**Lease**”). Pursuant to the Lease, Landlord has leased toTenant space currently containing approximately **3,196**rentable square feet (the “**Original Premises**”)described as Suite 740 on the 7th floor of the building commonly known asOne Bay Plaza located at 1350 Old Bayshore Highway, Burlingame, California (the“**Building**”).

 

B.**           **Tenantand Landlord agree to relocate Tenant from the Original Premises to **1,210** rentable square feet of space described as Suite 600on the 6th floor of the Building shown on**Exhibit A**attached hereto (the “**Substitution Space**”).

 

C.            TheLease by its terms shall expire on October 31, 2005 (“**PriorTermination Date**”), and the parties desire to extend the Term, allon the following terms and conditions.

 

**NOW,THEREFORE**, in consideration of the above recitalswhich by this reference are incorporated herein, the mutual covenants andconditions contained herein and other valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Landlord and Tenant agree asfollows:

 

1.**             Substitution.**

 

1.01.        Effectiveas of the Substitution Effective Date (hereinafter defined), the SubstitutionSpace is substituted for the Premises and, from and after the SubstitutionEffective Date, the Premises, as defined in the Lease, shall be deemed to meanthe Substitution Space containing **1,210** rentablesquare feet and described as Suite 600 on the 6th floor of the Building.

 

1.02.        TheTerm for the Substitution Space shall commence on the Substitution EffectiveDate and, unless sooner terminated pursuant to the terms of the Lease, shallend on the Extended Termination Date (as hereinafter defined). The SubstitutionSpace is subject to all the terms and conditions of the Lease except asexpressly modified herein and except that Tenant shall not be entitled toreceive any allowances, abatements or other financial concessions granted withrespect to the Original Premises unless such concessions are expressly providedfor herein with respect to the Substitution Space. Effective as of theSubstitution Effective Date, the Lease shall be terminated with respect to theOriginal Premises, and, unless otherwise specified, “**Premises**”shall mean the Substitution Space. Tenant shall vacate the Original Premises****as of theSubstitution Effective Date****(such datethat Tenant is required to vacate the Original Premises being referred toherein as the “**Original Premises Vacation Date**”)and return the same to Landlord in “broom clean” condition and otherwisein accordance with the terms and conditions of the Lease.

 

2.             **Substitution Effective Date.**

 

2.01.        The“**Substitution Effective Date**” shall be November 1,2005.

 

2.02.        TheSubstitution Effective Date shall be delayed to the extent that Landlord failsto deliver possession of the Substitution Space as a result of holding over byprior occupants. Any such delay in the Substitution Effective Date shall notsubject Landlord to any liability for any loss or damage resulting therefrom.If the Substitution Effective Date is delayed, the Extended Termination Dateshall not be similarly extended.

 

3.**             Extension.**The Term of the Lease is extended for a period of 12 months and shallexpire on October 31, 2006 (“**Extended Termination Date**”),unless sooner terminated in accordance with the terms of the Lease. Thatportion of the Term commencing the day immediately following the PriorTermination Date (“**Extension Date**”)and ending on the Extended Termination Date shall be referred to herein as the “**Extended Term**”.

 

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4.**             BaseRent.**As of the Substitution Effective Date, the schedule of BaseRent payable with respect to the Premises during the remainder of the currentTerm and the Extended Term is the following:

 
| **Period**               | ** ** | **Annual Rate Per Square  Foot** | ** ** | **Monthly Base Rent** | ** ** |
|--------------------------|------------|----------------------------------|------------|-----------------------|------------|
| 11/1/05 –  10/31/06 |       | $                                | 24.60      |                  | $          | 2,480.50 |   |
|                          |            |                                  |            |                       |            |  |  |

 

All such Base Rent shall be payable by Tenant inaccordance with the terms of the Lease, as amended hereby.

 

5.**             AdditionalSecurity Deposit.**No additional security deposit shall be required inconnection with this Amendment.

 

6.**             Tenant’sPro Rata Share.**For the period commencing with the SubstitutionEffective Date and ending on the Extended Termination Date, Tenant’s Pro RataShare for the Premises is 0.6854%.

 

7.             **Expenses and Taxes.**For the periodcommencing with the Substitution Effective Date and ending on the ExtendedTermination Date, Tenant shall pay for Tenant’s Pro Rata Share of Expenses andTaxes applicable to the Premises in accordance with the terms of the Lease, asamended hereby.

 

8.**             Improvementsto Substitution Space.**

 

8.01.        **Condition of Substitution Space.**Tenant has inspected theSubstitution Space and agrees to accept the same “as is” without anyagreements, representations, understandings or obligations on the part ofLandlord to perform any alterations, repairs or improvements, except as may beexpressly provided otherwise in this Amendment.

 

8.02.        **Responsibility for Improvements to Substitution Space.**Landlordshall perform improvements to the Substitution Space in accordance withthe Substitution Space Work Letter attached hereto as **Exhibit B**.

 

9.             **Early Access to Substitution Space**.If Tenant is permitted to take possession of the Substitution Space before theSubstitution Effective Date, such possession shall be subject to the terms andconditions of the Lease and this Amendment and Tenant shall pay Base Rent andAdditional Rent applicable to the Substitution Space to Landlord for each dayof possession prior to the Substitution Effective Date. However, except for thecost of services requested by Tenant (e.g. freight elevator usage), Tenantshall not be required to pay Rent for the Substitution Space for any days ofpossession before the Substitution Effective Date during which Tenant, with theapproval of Landlord, is in possession of the Substitution Space for the solepurpose of performing improvements or installing furniture, equipment or otherpersonal property.

 

10.           **Holding Over**. If Tenant continuesto occupy the Original Premises after the Original Premises Vacation Date (asdefined in Section 1 above), occupancy of the Original Premises subsequentto the Original Premises Vacation Date shall be that of a tenancy at sufferanceand in no event for month-to-month or year-to-year, but Tenant shall,throughout the entire holdover period, be subject to all the terms andprovisions of the Lease and shall pay for its use and occupancy an amount (on aper month basis without reduction for any partial months during any suchholdover) equal to twice the sum of the Base Rent and Additional Rent due forthe period immediately preceding such holding over, provided that in no eventshall Base Rent and Additional Rent during the holdover period be less than thefair market rental for the Original Premises. No holding over by Tenant in theOriginal Premises or payments of money by Tenant to Landlord after the OriginalPremises Vacation Date shall be construed to prevent Landlord from recovery ofimmediate possession of the Original Premises by summary proceedings orotherwise. In addition to the obligation to pay the amounts set forth aboveduring any such holdover period, Tenant also shall be liable to Landlord forall damage, including any consequential damage, which Landlord may sufferby reason of any holding over by Tenant in the Original Premises, and Tenantshall indemnify Landlord against any and all claims made by any other tenant orprospective tenant against Landlord for delay by Landlord in deliveringpossession of the Original Premises to such other tenant or prospective tenant.

 

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11.**           OtherPertinent Provisions.**Landlord and Tenant agree that, effective as ofthe date of this Amendment (unless different effective date(s) is/arespecifically referenced in this Section), the Lease shall be amended in thefollowing additional respects:

 

11.01.      **Tenant Improvements**. Tenant hereby acknowledges thatLandlord has completed all of its obligations to complete the improvementsdescribed in Exhibit C of the Lease.

 

11.02.      **Deletion**. Section 2 of Exhibit Fto the Lease is hereby deleted in its entirety and is of no further force oreffect.

 

11.03.      **Parking**. Effective as of the SubstitutionEffective Date, reference to “11 non-reserved parking spaces” is hereby amendedand restated as “7 non-reserved parking spaces.”

 

12.**           Miscellaneous.**

 

12.01.      ThisAmendment and the attached exhibits, which are hereby incorporated into andmade a part of this Amendment, set forth the entire agreement between theparties with respect to the matters set forth herein. There have been noadditional oral or written representations or agreements. Under nocircumstances shall Tenant be entitled to any Rent abatement, improvementallowance, leasehold improvements, or other work to the Substitution Space, orany similar economic incentives that may have been provided Tenant inconnection with entering into the Lease, unless specifically set forth in thisAmendment. Tenant agrees that neither Tenant nor its agents or any otherparties acting on behalf of Tenant shall disclose any matters set forth in thisAmendment or disseminate or distribute any information concerning the terms,details or conditions hereof to any person, firm or entity without obtainingthe express written consent of Landlord.

 

12.02.      Exceptas herein modified or amended, the provisions, conditions and terms of theLease shall remain unchanged and in full force and effect.

 

12.03.      Inthe case of any inconsistency between the provisions of the Lease and thisAmendment, the provisions of this Amendment shall govern and control.

 

12.04.      Submissionof this Amendment by Landlord is not an offer to enter into this Amendment butrather is a solicitation for such an offer by Tenant. Landlord shall not bebound by this Amendment until Landlord has executed and delivered the same toTenant.

 

12.05.      Thecapitalized terms used in this Amendment shall have the same definitions as setforth in the Lease to the extent that such capitalized terms are definedtherein and not redefined in this Amendment.

 

12.06.      Tenanthereby represents to Landlord that Tenant has dealt with Jon Mackey of Cornish &Carey in connection with this Amendment. Tenant agrees to indemnify and holdLandlord and the Landlord RelatedParties harmless from all claims of any other brokers claiming to haverepresented Tenant in connection with this Amendment. Landlord herebyrepresents to Tenant that Landlord has dealt with no broker in connection withthis Amendment. Landlord agrees to indemnify and hold Tenant and the Tenant Related Parties harmless fromall claims of any brokers claiming to have represented Landlord in connectionwith this Amendment.

 

12.07.      Eachsignatory of this Amendment represents hereby that he or she has the authorityto execute and deliver the same on behalf of the party hereto for which suchsignatory is acting.

 

**[SIGNATURES ARE ON FOLLOWING PAGE]**

 

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**IN WITNESSWHEREOF**, Landlord and Tenant have duly executed thisAmendment as of the day and year first above written.

 
| **LANDLORD:**                                                              |
|----------------------------------------------------------------------------|
|                                                                       |
| **CA-ONE  BAY PLAZA LIMITED PARTNERSHIP, a  Delaware limited partnership** |
| ** **                                                                 |
| By:                                                                        | EOM GP, L.L.C., a Delaware limited  liability  company, its general partner |
|                                                                       |   |
|                                                                       | By: | Equity Office Management, L.L.C., a  Delaware limited liability company, its non-  member manager |
|                                                                       |   |
|                                                                       |
|                                                                       | By: | /s/ Kenneth Young |   |
|                                                                       |   |   |
|                                                                       | Title: | Managing Director, Leasing |
|                                                                       |
|                                                                       |
| **TENANT:**                                                                |
| ** **                                                                 |
| **OPTA CORPORATION, a Delaware corporation**                               |
|                                                                       |
|                                                                       |
| By:                                                                        | /s/ Sean Wang |   |
|                                                                       |   |
| Title:                                                                     | COO |
|                                                                            |  |  |  |  |  |  |

 

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**EXHIBIT A**

 

**OUTLINE AND LOCATION OF SUBSTITUTION SPACE**

 

This Exhibit is attached to and made a part ofthe Amendmentby and between **CA-ONE BAY PLAZA LIMITED PARTNERSHIP, aDelaware limited partnership** (“Landlord”) and **OPTACORPORATION, a Delaware corporation** (“Tenant”) for space in theBuilding located at 1350 Old Bayshore Highway, Burlingame, California.

 

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**EXHIBIT B**

 

**SUBSTITUTION SPACE WORK LETTER**

 

This Exhibit is attached to and made a part ofthe Amendmentby and between **CA-ONE BAY PLAZA LIMITED PARTNERSHIP, aDelaware limited partnership** (“Landlord”) and **OPTACORPORATION, a Delaware corporation** (“Tenant”) for space in theBuilding located at 1350 Old Bayshore Highway, Burlingame, California.

 

As used in this Substitution Space WorkLetter, the “**Premises**” shall bedeemed to mean the Substitution Space, as defined in the attached Amendment.

 

1.             Landlord,at its sole cost and expense (subject to the terms and provisions of Section 2below) shall perform improvements to the Premises in accordance with thefollowing work list (the “**Substitution SpaceWork List**”) using Building standard methods, materials and finishes.The improvements to be performed in accordance with the Substitution Space WorkList are hereinafter referred to as the “**SubstitutionSpace Landlord Work**”. Landlord shall enter into a direct contractfor the Substitution Space Landlord Work with a general contractor selected byLandlord. In addition, Landlord shall have the right to select and/or approveof any subcontractors used in connection with the Substitution Space Landlord Work.

 

**SUBSTITUTION SPACE WORK LIST**

 

ITEM

 

a.             Shampoocarpets within the Premises.

 

2.             Allother work and upgrades, subject to Landlord’s approval, shall be at Tenant’ssole cost and expense, plus any applicable state sales or use tax thereon,payable upon demand as Additional Rent. Tenant shall be responsible for anyTenant Delay in completion of the Premises resulting from any such other workand upgrades requested or performed by Tenant.

 

3.             Landlord’ssupervision or performance of any work for or on behalf of Tenant shall not bedeemed to be a representation by Landlord that such work complies withapplicable insurance requirements, building codes, ordinances, laws orregulations or that the improvements constructed will be adequate for Tenant’suse.

 

4.             Tenantacknowledges that the Substitution Space Landlord Work may be performed byLandlord in the Premises during Building Service Hours subsequent to the SubstitutionEffective Date*.*Landlord andTenant agree to cooperate with each other in order to enable the SubstitutionSpace Landlord Work to be performed in a timely manner and with as littleinconvenience to the operation of Tenant’s business as is reasonably possible.Notwithstanding anything herein to the contrary, any delay in the completion ofthe Substitution Space Landlord Work or inconvenience suffered by Tenant duringthe performance of the Substitution Space Landlord Work shall not delay the*** ***Substitution Effective Date nor shallit subject Landlord to any liability for any loss or damage resulting therefromor entitle Tenant to any credit, abatement or adjustment of Rent or other sumspayable under the Lease, as amended hereby.

 

5.             ThisExhibit shall not be deemed applicable to any additional space added tothe Premises at any time or from time to time, whether by any options under theLease, as amended hereby, or otherwise, or to any portion of the originalPremises or any additions to the Premises in the event of a renewal orextension of the original Term of the Lease, as amended hereby, whether by anyoptions under the Lease, as amended hereby, or otherwise, unless expressly soprovided in the Lease, as amended hereby, or any amendment or supplement to theLease, as amended hereby.

 

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