**Exhibit 10.9**

 

ONE BAY PLAZA

BURLINGAME, CALIFORNIA

 

 

OFFICE LEASE AGREEMENTBETWEENCA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delaware limited partnership(“LANDLORD”)ANDOpta 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 followingexhibits and attachments are incorporated into and made a part of the Lease:Exhibit A (Outline and Location of Premises), Exhibit B (Expenses andTaxes), Exhibit C (Work Letter), Exhibit C-1 (Depiction of LandlordWork), Exhibit D (Commencement Letter), Exhibit E (Building Rules andRegulations), Exhibit F (Additional Provisions), Exhibit G (ParkingAgreement) and Exhibit H (Asbestos Notification).

 

1.               Basic LeaseInformation.

 

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 the Building” is deemed to be 176,533 squarefeet.

 

1.02                                                   “Premises”shall mean the area shown on Exhibit A to this Lease.  The Premises is located on the 7th floor andknown as suite no. 740. If the Premises include one or more floors in theirentirety, all corridors and restroom facilities located on such full floor(s)shall be considered part of the Premises. The “Rentable Square Footage of thePremises” is deemed to be 3,196 square feet. Landlord and Tenant stipulate andagree that the Rentable Square Footage of the Building and the Rentable SquareFootage 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 shall commence on October 29,2004 (the “Commencement Date”) and, unless terminated early in accordance withthis 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, Suite600, 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 maydesignate additional Holidays that are commonly recognized by other officebuildings in the area where the Building is located.  “Building Service Hours” are 8:00 a.m. to 6:00p.m. on Business Days.

 

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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.**               Lease Grant.

 

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.**               Adjustment of CommencementDate; 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’sfailure to Substantially Complete the Landlord Work by the Target CommencementDate shall not be a default by Landlord or otherwise render Landlord liable fordamages. Promptly after the determination of the Commencement Date, Landlord andTenant shall enter into a commencement letter agreement in the form attached asExhibit D which commencement letter agreement shall be deemed accepted byTenant if not executed and returned to Landlord by Tenant within 30 days afterthe date that Landlord delivers the commencement letter agreement to Tenant forexecution.  If the Termination Date doesnot fall on the last day of a calendar month, Landlord and Tenant may elect toadjust the Termination Date to the last day of the calendar month in which TerminationDate occurs by the mutual execution of a commencement letter agreement settingforth such adjusted date.   The LandlordWork shall be deemed to be “Substantially Complete” on the date that allLandlord Work has been performed, other than any details of construction,mechanical adjustment or any other similar matter, the non-completion of whichdoes not materially interfere with Tenant’s use of the Premises. If Landlord isdelayed in the performance of the Landlord Work as a result of the acts oromissions of Tenant, the Tenant Related Parties (defined in Section 13) ortheir respective contractors or vendors, including, without limitation, changesrequested by Tenant to approved plans, Tenant’s failure to comply with any ofits obligations under this Lease, or the specification of any materials orequipment with long lead times (a “Tenant Delay”), the Landlord Work shall bedeemed to be Substantially Complete on the date that Landlord could reasonablyhave been expected to Substantially Complete the Landlord Work absent anyTenant 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 shall not be liable for a failure todeliver possession of the Premises or any other space due to the holdover orunlawful possession of such space by another party, however Landlord shall usereasonable efforts to obtain possession of the space.  The commencement date for the space, in suchevent, shall be postponed until the date Landlord delivers possession of thePremises to Tenant free from occupancy by any party. If Tenant takes possessionof the Premises before the Commencement Date, such possession shall be subjectto the terms and conditions of this Lease and Tenant shall pay Rent (defined inSection 4.01) to Landlord for each day of possession before theCommencement Date.  However, except forthe cost of services requested by Tenant (e.g. freight elevator usage), Tenantshall not be required to pay Rent for any days of possession before the CommencementDate during which Tenant, with the approval of Landlord, is in possession ofthe Premises for the sole purpose of performing improvements or installingfurniture, 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 monthlycharges of Additional Rent shall be due and payable in advance on the first dayof each calendar month without notice or demand, provided that the installmentof Base Rent for the first full calendar 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 bedue and payable by Tenant on or before 30 days after billing by Landlord.  Rent shall be made payable to the entity, andsent to the address, Landlord designates and shall be made by good andsufficient check or by other means acceptable to Landlord.  Tenant shall pay Landlord an administrationfee equal to 5% of all past due Rent, provided that Tenant shall be entitled toa grace period of 5 days for the first 2 late payments of Rent in a calendaryear. In addition, past due Rent shall accrue interest at 12% per annum.Landlord’s acceptance of less than the correct amount of Rent shall beconsidered a payment on account of the earliest Rent due. Rent for any partialmonth during the Term shall be prorated. No endorsement or statement on a checkor letter accompanying payment shall be considered an accord andsatisfaction.  Tenant’s covenant to payRent is independent 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.**               Compliance with 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 any municipal orgovernmental entity whether in effect now or later, including the Americanswith Disabilities Act (“Law(s)”), regarding the operation of Tenant’s businessand the use, condition, configuration and occupancy of the Premises. Inaddition, Tenant shall, at its sole cost and expense, promptly comply with anyLaws that relate to the “Base Building” (defined below), but only to the extentsuch obligations are triggered by Tenant’s use of the Premises, other than forgeneral office use, or Alterations or improvements in the Premises performed orrequested by Tenant.  “Base Building”shall include the structural portions of the Building, the public restrooms andthe Building mechanical, electrical and plumbing systems and equipment locatedin the internal core of the Building on the floor or floors on which thePremises are located. Tenant shall promptly provide Landlord with copies of anynotices it receives regarding 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.**                                       Security Deposit.

 

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 is not an advancepayment of Rent or a measure of damages. Landlord may use all or a portion of the Security Deposit to satisfypast due Rent or to cure any Default (defined in Section 18) byTenant.  If Landlord uses any portion ofthe Security Deposit, Tenant shall, within 5 days after demand, restore theSecurity Deposit to its original amount. Landlord shall return any unappliedportion of the Security Deposit to Tenant within 45 days after the later tooccur 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, followingthe assignment, Landlord shall have no further liability for the return of theSecurity Deposit. Landlord shall not be required to keep the Security Depositseparate from its other accounts.  Tenanthereby waives the provisions of Section 1950.7 of the California CivilCode, or any similar or successor Laws now or hereinafter in effect.

 

# **7.**                                       Building Services.

 

7.01  Landlord shall furnish Tenant with thefollowing services: (a) water for use in the Base Building lavatories;(b) customary heat and air conditioning in season during Building ServiceHours. Tenant shall have the right to receive HVAC service during hours otherthan Building Service Hours by paying Landlord’s then standard charge foradditional HVAC service and providing such prior notice as is reasonablyspecified by Landlord; (c) standard janitorial service on Business Days;(d) Elevator service; (e) Electricity in accordance with the termsand conditions in Section 7.02; and (f) such other services asLandlord reasonably determines are necessary or appropriate for 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 sole remedy,shall be entitled to receive an abatement of Rent payable hereunder during theperiod beginning on the 4th consecutive Business Day of the ServiceFailure and ending on the day the service has been restored.  If the entire Premises have not been rendereduntenantable by the Service Failure, the amount of abatement shall be equitablyprorated.

 

# **8.**                                       Leasehold Improvements.

 

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 writtennotice to Tenant at least 30 days prior to the Termination Date, may requireTenant, at its expense, to remove (a) any Cable (defined in Section 9.01)installed by or for the benefit of Tenant, and (b) any Landlord Work orAlterations that, in Landlord’s reasonable judgment, are of a nature that wouldrequire removal and repair costs that are materially in excess of the removaland repair costs associated with standard office improvements (collectivelyreferred to as “Required Removables”). Required Removables shall include, without limitation, internalstairways, raised floors, personal baths and showers, vaults, rolling filesystems and structural alterations and modifications. The designated RequiredRemovables shall be removed by Tenant before the Termination Date. Tenant shallrepair damage caused by the installation or removal of RequiredRemovables.  If Tenant fails to performits obligations in a timely manner, Landlord may perform such work at Tenant’sexpense. Tenant, at the time it requests approval for a proposed Alteration,may request in writing that Landlord advise Tenant whether the Alteration orany portion of the Alteration is a Required Removable.  Within 10 days after receipt of Tenant’srequest, Landlord shall advise Tenant in writing as to which portions of theAlteration are Required Removables.

 

# **9.**                                       Repairs and Alterations.

 

9.01 Tenant shall periodicallyinspect the Premises to identify any conditions that are dangerous or in needof maintenance or repair.  Tenant shallpromptly provide Landlord with notice of any such conditions. Tenant shall, atits sole cost and expense, perform all maintenance and repairs to the Premisesthat are not Landlord’s express responsibility under this Lease, and keep thePremises in good condition and repair, reasonable wear and tear excepted.Tenant’s repair and maintenance obligations include, without limitation,repairs to: (a) floor covering; (b) interior partitions;(c) doors; (d) the interior side of demising walls;(e) electronic, phone and data cabling and related equipment that isinstalled by or for the exclusive benefit of Tenant (collectively, “Cable”);(f) supplemental air conditioning units, kitchens, including hot waterheaters, plumbing, and similar facilities exclusively serving Tenant; and(g) Alterations. To the extent Landlord is not reimbursed by insuranceproceeds, Tenant shall reimburse Landlord for the cost of repairing damage tothe Building caused by the acts of Tenant, Tenant Related Parties and theirrespective contractors and vendors. If Tenant fails to make any repairs to thePremises for more than 15 days after notice from Landlord (although noticeshall not be required in an emergency), Landlord may make the repairs, andTenant shall pay the reasonable cost of the repairs, together with anadministrative 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 upon the:(a) structural elements of the Building; (b) mechanical (includingHVAC), electrical, plumbing and fire/life safety systems serving the Buildingin 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 hereby waives any and all rights underand benefits of subsection 1 of Section 1932, and Sections 1941and 1942 of the California Civil Code, or any similar or successor Laws now orhereinafter 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 Alterations shall be subject to allthe other provisions of this Section 9.03. Prior to starting work, Tenant shall furnish Landlord with plans andspecifications; names of contractors reasonably acceptable to Landlord(provided that Landlord may designate specific contractors with respect to BaseBuilding); required permits and approvals; evidence of contractor’s andsubcontractor’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 and specifications must also be submitted toLandlord for its approval. Alterations shall be constructed in a good andworkmanlike manner using materials of a quality reasonably approved byLandlord. Tenant shall reimburse Landlord for any sums paid by Landlord forthird party examination of Tenant’s plans for non-Cosmetic Alterations. Uponcompletion, Tenant shall furnish “as-built” plans for non-Cosmetic Alterations,completion affidavits and full and final waivers of lien. Landlord’s approvalof an Alteration shall not be deemed a representation by Landlord that theAlteration complies with Law.

 

# **10.**                                 Entry by Landlord.

 

Landlord may enter the Premisesto inspect, show or clean the Premises or to perform or facilitate theperformance of repairs, alterations or additions to the Premises or any portionof the Building.  Except in emergenciesor to provide Building services, Landlord shall provide Tenant with reasonableprior verbal notice of entry and shall use reasonable efforts to minimize anyinterference with Tenant’s use of the Premises. If reasonably necessary, Landlord may temporarily close all or a portionof the Premises to perform repairs, alterations and additions.  However, except in emergencies, Landlord willnot close the Premises if the work can reasonably be completed on weekends andafter Building Service Hours.  Entry byLandlord shall not constitute a constructive eviction or entitle Tenant to anabatement or reduction of Rent.

 

# **11.**                                 Assignment and 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 the voting shares/rights of Tenant changesat any time, such change of ownership or control shall constitute a Transferunless Tenant is an entity whose outstanding stock is listed on a recognizedsecurities exchange or if at least 80% of its voting stock is owned by anotherentity, the voting stock of which is so listed. 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.  Any attempted Transfer in violation of this Section isvoidable by Landlord. In no event shall any Transfer, including a PermittedTransfer, release or relieve 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 reasonably request.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 by Landlord;(b) reasonably refuse to consent to the Transfer in writing; or(c) in the event of an assignment of this Lease or subletting of more than20% of the Rentable Square Footage of the Premises for more than 50% of theremaining Term (excluding unexercised options), recapture the portion of the Premisesthat Tenant is proposing to Transfer.  IfLandlord exercises its right to recapture, this Lease shall automatically beamended (or terminated if the entire Premises is being assigned or sublet) todelete the applicable portion of the Premises effective on the proposedeffective date of the Transfer.  Tenantshall pay Landlord a review fee of $1,500.00 for Landlord’s review of anyPermitted Transfer 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’sshare of the excess within 30 days after Tenant’s receipt of the excess.  Tenant may deduct from the excess, on astraight-line basis, all reasonable and customary expenses directly incurred byTenant attributable to the Transfer.  IfTenant is in Default, Landlord may require that all sublease payments be madedirectly to Landlord, in which case Tenant shall receive a credit against Rentin the amount of Tenant’s share of payments received by Landlord.

 

11.04 Tenant may assign this Lease to a successor toTenant 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) the Permitted Use does not allow the Premises to be used for retailpurposes; and (d) Tenant shall give Landlord written notice at least 15Business Days prior to the effective date of the Permitted Transfer. Tenant’snotice to Landlord shall include information and documentation evidencing thePermitted Transfer and showing

 

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

 

# **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 give Landlord notice at least 15days prior to the commencement of any work in the Premises to afford Landlordthe opportunity, where applicable, to post and record notices ofnon-responsibility. Tenant, within 10 days of notice from Landlord, shall fullydischarge any lien by settlement, by bonding or by insuring over the lien inthe manner prescribed by the applicable lien Law.  If Tenant fails to do so, Landlord may bond,insure over or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount paid by Landlord,including, without limitation, reasonable attorneys’ fees.

 

# **13.**                                 Indemnity and 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) the bursting or leaking of any tank, water closet, drain or otherpipe, (d) the inadequacy or failure of any security services, personnel orequipment, or (e) any matter not within the reasonable control ofLandlord. Notwithstanding the foregoing, except as provided in Article 15to the contrary, Tenant shall not be required to waive any claims againstLandlord (other than for loss or damage to Tenant’s business) where such lossor damage is due to the negligence or willful misconduct of Landlord or anyLandlord Related Parties.  Nothing hereinshall be construed as to diminish the repair and maintenance obligations ofLandlord contained elsewhere in this Lease. Except to the extent caused by the negligence or willful misconduct ofLandlord or any Landlord Related Parties, Tenant shall indemnify, defend andhold Landlord and Landlord Related Parties harmless against and from allliabilities, obligations, damages, penalties, claims, actions, costs, chargesand expenses, including, without limitation, reasonable attorneys’ fees andother professional fees (if and to the extent permitted by Law) (collectivelyreferred to as “Losses”), which may be imposed upon, incurred by or assertedagainst Landlord or any of the Landlord Related Parties by any third party andarising out of or in connection with any damage or injury occurring in thePremises or any acts or omissions (including violations of Law) of Tenant, theTenant Related Parties or any of Tenant’s transferees, contractors orlicensees.  Except to the extent causedby the negligence or willful misconduct of Tenant or any Tenant RelatedParties, Landlord shall indemnify, defend and hold Tenant, its trustees,members, principals, beneficiaries, partners, officers, directors, employeesand agents (“Tenant Related Parties”) harmless against and from all Losseswhich may be imposed upon, incurred by or asserted against Tenant or any of theTenant Related Parties by any third party and arising out of or in connectionwith the acts or omissions (including violations of Law) of Landlord or theLandlord Related 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/Business InterruptionInsurance written on an All Risk or Special Perils form, with coverage forbroad form water damage including earthquake sprinkler leakage, at replacementcost value and with a replacement cost endorsement covering all of Tenant’sbusiness and trade fixtures, equipment, movable partitions, furniture,merchandise and other personal property within the Premises (“Tenant’s Property”)and any Leasehold Improvements performed by or for the benefit of Tenant;(c) Workers’ Compensation Insurance in amounts required by Law; and(d) Employers Liability Coverage of at least $1,000,000.00 peroccurrence.  Any company writing Tenant’sInsurance shall have an A.M. Best rating of not less than A-VIII.  All Commercial General Liability Insurancepolicies shall name as additional insureds Landlord (or its successors andassignees), the managing agent for the Building (or any successor), EOPOperating Limited Partnership, Equity Office Properties Trust and theirrespective members, principals, beneficiaries, partners, officers, directors,employees, and agents, and other designees of Landlord and its successors asthe interest of such designees shall appear. All policies of Tenant’s Insuranceshall contain endorsements that the insurer(s) shall give Landlord and itsdesignees at least 30 days’ advance written notice of any cancellation,termination, material change or lapse of insurance. Tenant shall provideLandlord with a certificate of insurance evidencing Tenant’s Insurance prior tothe earlier to occur of the Commencement Date or the date Tenant is providedwith possession of the Premises, and thereafter as necessary to assure thatLandlord always has current certificates evidencing Tenant’s Insurance. So longas 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.**                                 Casualty Damage.

 

16.01  If all orany portion of the Premises becomes untenantable by fire or other casualty tothe Premises (collectively a “Casualty”), Landlord, with reasonable promptness,shall cause a general contractor selected by Landlord to provide Landlord andTenant with a written estimate of the amount of time required using standardworking methods to Substantially Complete the repair and restoration of thePremises and any Common Areas necessary to provide access to the Premises (“CompletionEstimate”).  If the Completion Estimateindicates that the Premises or any Common Areas necessary to provide access tothe Premises cannot be made tenantable within **180**days from the date the repair is started, then either party shall have theright to terminate this Lease upon written notice to the other within 10 daysafter receipt of the Completion Estimate. Tenant, however, shall not have the right to terminate this Lease if theCasualty was caused by the negligence or intentional misconduct of Tenant orany Tenant Related Parties. In addition, Landlord, by notice to Tenant within90 days after the date of the Casualty, shall have the right to terminate thisLease if:  (1) the Premises havebeen materially damaged and there is less than 2 years of the Term remaining onthe date of the Casualty; (2) any Mortgagee requires that the insuranceproceeds be applied to the payment of the mortgage debt; or (3) a materialuninsured loss to the Building occurs. In addition, Tenant shall have the rightto terminate 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 Term remaining onthe date of such casualty; (c) the casualty was not caused by the negligence orwillful misconduct of Tenant or its agents, employees or contractors; and (d)Tenant provides Landlord with written notice of its intent to terminate within30 days after the date of the fire or other casualty.

 

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 alsopay Landlord for any additional excess costs that are determined during theperformance of the repairs. Landlord shall not be liable for any inconvenienceto Tenant, or injury to Tenant’s business resulting in any way from theCasualty or the repair thereof.  Providedthat Tenant is not in Default, during any period of time that all or a materialportion of the Premises is rendered untenantable as a result of a Casualty, theRent shall abate for the portion of the Premises that is untenantable and notused 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 or theProperty, and any Laws, including, without limitation, Sections 1932(2)and 1933(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 terminate thisLease if any material part of the Premises is taken or condemned for any publicor quasi-public use under Law, by eminent domain or private purchase in lieuthereof (a “Taking”).  Landlord shallalso have the right to terminate this Lease if there is a Taking of any portionof the Building or Property which would have a material adverse effect onLandlord’s ability to profitably operate the remainder of the Building.  The terminating party shall provide writtennotice of termination to the other party within 45 days after it first receivesnotice of the Taking.  The terminationshall be effective on the date the physical taking occurs.  If this Lease is not terminated, Base Rentand Tenant’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 thefiling of the claim does not diminish the amount of Landlord’s award.  If only a part of the Premises is subject toa Taking and this Lease is not terminated, Landlord, with reasonable diligence,will restore the remaining portion of the Premises as nearly as practicable tothe condition immediately prior to the Taking. Tenant hereby waives any and all rights it might otherwise have pursuantto Section 1265.130 of the California Code of Civil Procedure, or anysimilar or successor Laws.

 

# **18.**                                 Events of 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 obligations underthis Lease or which in the ordinary course of things would be likely to resulttherefrom; 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 be computedby allowing interest at the lesser of a per annum rate equalto: (A) the greatest per annum rate of interest permitted from timeto time under applicable law, or (B) the Prime Rate plus 5%.  For purposes hereof, the “Prime Rate” shallbe the per annum interest rate publicly announced as its prime or base rate bya federally insured bank selected by Landlord in the State of California.  The “Worth at the Time of Award” of theamount referred to in part (iii), above, shall be computed by discounting suchamount at the discount rate of the Federal Reserve Bank of San Francisco at thetime 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 right topossession of the Premises and recover an award of damages as provided above inParagraph 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.  Nowaiver by Landlord of any breach hereof shall be effective unless such waiveris 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 OF CIVILPROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIMETO TIME IN EFFECT DURING THE LEASE TERM PROVIDING THAT TENANT SHALL HAVE ANYRIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BYREASON OF TENANT’S BREACH.  TENANT ALSOHEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BYJURY IN ANY LITIGATION ARISING 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 remediesprovided in this Lease, Landlord shall be entitled, to the extent permitted byapplicable law, to injunctive relief, or to a decree compelling performance ofany of the covenants, agreements, conditions or provisions of this Lease, or toany other remedy allowed to Landlord at law or in equity.  Forbearance by Landlord to enforce one ormore of the remedies herein provided upon an event of default shall not bedeemed or construed to 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 reimburse Landlord for the costof such performance upon demand together with an administrative charge equal to10% of the cost of the work performed by Landlord.

 

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.**                                 Limitation of 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 AN AMOUNTEQUAL TO 70% OF THE VALUE OF THE PROPERTY. TENANT SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY FOR THERECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATEDPARTY. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLYLIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANYLANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO ORLOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE.  BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BYLANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEENNOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 23 BELOW), NOTICE ANDREASONABLE TIME TO CURE THE ALLEGED DEFAULT.

 

21. Relocation.  Intentionally Omitted.

 

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# **22.**                                 Holding Over.

 

If Tenant fails to surrenderall or any part of the Premises at the termination of this Lease, occupancy ofthe Premises after termination shall be that of a tenancy at sufferance.  Tenant’s occupancy shall be subject to allthe terms and provisions of this Lease, and Tenant shall pay an amount (on aper month basis without reduction for partial months during the holdover) equalto 150% of the sum of the Base Rent and Additional Rent due for the periodimmediately preceding the holdover.  Noholdover by Tenant or payment by Tenant after the termination of this Leaseshall be construed to extend the Term or prevent Landlord from immediate recoveryof possession of the Premises by summary proceedings or otherwise. If Landlordis unable to deliver possession of the Premises to a new tenant or to performimprovements for a new tenant as a result of Tenant’s holdover and Tenant failsto vacate the Premises within 15 days after notice from Landlord, Tenant shallbe liable for all damages that Landlord suffers from the holdover.

 

# **23.**                                 Subordination to 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 to any successor to Landlord’s interest inthis 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.  Each notice shall be deemed to have beenreceived on the earlier to occur of actual delivery or the date on whichdelivery is refused, or, if Tenant has vacated the Premises or any other NoticeAddress of Tenant without providing a new Notice Address, 3 days after noticeis deposited in the U.S. mail or with a courier service in the manner describedabove.  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.**                                 Surrender of 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, broomclean, and in good order, condition and repair, ordinary wear and tear anddamage which Landlord is obligated to repair hereunder excepted. If Tenantfails to remove any of Tenant’s Property within 2 days after termination ofthis Lease or Tenant’s right to possession, Landlord, at Tenant’s sole cost andexpense, shall be entitled (but not obligated) to remove and store Tenant’sProperty.  Landlord shall not beresponsible for the value, preservation or safekeeping of Tenant’sProperty.  Tenant shall pay Landlord,upon demand, the expenses and storage charges incurred. If Tenant fails toremove Tenant’s Property from the Premises or storage, within 30 days afternotice, Landlord may deem all or any part of Tenant’s Property to be abandonedand title to Tenant’s Property 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 orprovision of this Lease shall to any extent be void or unenforceable, the remainderof this Lease shall not be affected. If there is more than one Tenant or ifTenant is comprised of more than one party or entity, the obligations imposedupon Tenant shall be joint and several obligations of all the parties andentities, and requests or demands from any one person or entity comprisingTenant shall be deemed to have been made by all such persons or entities.  Notices to any one person or entity shall bedeemed to have been given to all persons and entities. Tenant represents andwarrants to Landlord that each individual executing this Lease on behalf ofTenant is authorized to do so on behalf of Tenant and that Tenant is not, andthe entities 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 the purpose of identifying suspected terrorists.

 

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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 Tenant hereby waive any right totrial by jury in any proceeding based upon a breach of this Lease.  Either party’s failure to declare a defaultimmediately upon its occurrence, or delay in taking action for a default, shallnot constitute a waiver 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.  Upontransfer Landlord shall be released from any further obligations hereunder andTenant agrees to look solely to the successor in interest of Landlord for theperformance of such obligations, provided that, any successor pursuant to avoluntary, third party transfer (but not as part of an involuntary transfer resultingfrom a foreclosure or deed in lieu thereof) shall have assumed Landlord’sobligations under this Lease.

 

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.  Tenant shall indemnify and hold Landlord andthe Landlord Related Parties harmless from all claims of any other brokers claimingto have represented Tenant in connection with this Lease. Landlord shallindemnify and hold Tenant and the Tenant Related Parties harmless from allclaims of any brokers claiming to have represented Landlord in connection withthis Lease.  Equity Office PropertiesManagement Corp. (“EOPMC”) is an affiliate of Landlord and represents only theLandlord in this transaction.  Anyassistance rendered by any agent or employee of EOPMC in connection with thisLease or any subsequent amendment or modification hereto has been or will bemade as an accommodation to Tenant solely in furtherance of consummating thetransaction 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 this Lease.

 

26.07  Tenant may peacefully have, hold and enjoythe Premises, subject to the terms of this Lease, provided Tenant pays the Rentand fully performs all of its covenants and agreements.  This covenant shall be binding upon Landlordand its successors only during its or their respective periods of ownership ofthe Building.

 

26.08  ThisLease does not grant any rights to light or air over or about theBuilding.  Landlord excepts and reservesexclusively to itself any and all rights not specifically granted to Tenantunder this Lease. This Lease constitutes the entire agreement between theparties and supersedes all prior agreements and understandings related to thePremises, including all lease proposals, letters of intent and other documents.  Neither party is relying upon any warranty,statement or representation not contained in this Lease.  This Lease may be modified only by a writtenagreement signed by an authorized representative of Landlord 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 partof the 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 Buildinglocated at 1350 Old Bayshore Highway, Burlingame, California, commonly known asOne Bay Plaza.

 

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##### **EXHIBIT B**

 

## **EXPENSES AND TAXES**

 

This Exhibit is attached to and made a partof the 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.

 

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 Expenses or Taxes in any calendar yeardecrease below the amount of Expenses or Taxes for the Base Year, Tenant’s ProRata Share of Expenses or Taxes, as the case may be, for that calendar yearshall be $0.  Landlord shall provideTenant with a good faith estimate of the Expense Excess and of the Tax Excessfor each calendar year during the Term. On or before the first day of each month, Tenant shall pay to Landlord amonthly installment equal to one-twelfth of Tenant’s Pro Rata Share of Landlord’sestimate of both the Expense Excess and Tax Excess. After its receipt of therevised estimate, Tenant’s monthly payments shall be based upon the revisedestimate.  If Landlord does not provideTenant with an estimate of the Expense Excess or the Tax Excess by January 1of a calendar year, Tenant shall continue to pay monthly installments based onthe previous year’s estimate(s) until Landlord provides Tenant with the newestimate.

 

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 estimatedExpense Excess or estimated Tax Excess for the prior calendar year is more thanthe actual Expense Excess or actual Tax Excess, as the case may be, for theprior calendar year, Landlord shall either provide Tenant with a refund orapply any overpayment by Tenant against Additional Rent due or next becomingdue, provided if the Term expires before the determination of the overpayment,Landlord shall refund any overpayment to Tenant after first deducting theamount of Rent due.  If the estimatedExpense Excess or estimated Tax Excess for the prior calendar year is less thanthe actual Expense Excess or actual Tax Excess, as the case may be, for suchprior year, Tenant shall pay Landlord, within 30 days after its receipt of thestatement of Expenses or Taxes, any underpayment for the prior calendar 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, including wages, salaries, bonuses,taxes, insurance, uniforms, training, retirement plans, pension plans and otheremployee benefits; (b) management fees; (c) the cost of equipping,staffing and operating an on-site and/or off-site management office for theBuilding, provided if the management office services one or more otherbuildings or properties, the shared costs and expenses of equipping, staffingand operating such management office(s) shall be equitably prorated andapportioned between the Building and the other buildings or properties;(d) accounting costs; (e) the cost of services; (f) rental andpurchase cost of parts, supplies, tools and equipment; (g) insurancepremiums and deductibles; (h) electricity, gas and other utility costs;and (i) the amortized cost of capital improvements (as distinguished fromreplacement parts or components installed in the ordinary course of business)made subsequent to the Base Year which are: (1) performed primarily to reduce current or future operatingexpense costs, upgrade Building security or otherwise improve the operatingefficiency of the Property; or (2) required to comply with any Laws thatare enacted, or first interpreted to apply to the Property, after the date ofthis Lease.  The cost of capitalimprovements shall be amortized by Landlord over the lesser of the PaybackPeriod (defined below) or the useful life of the capital improvement asreasonably determined by Landlord. The amortized cost of capital improvementsmay, at Landlord’s option, include actual or imputed interest at the rate thatLandlord would reasonably be required to pay to finance the cost of the capitalimprovement. “Payback Period” means the reasonably estimated period of timethat it takes for the cost savings resulting from a capital improvement toequal the total cost of the capital improvement. Landlord, by itself or throughan affiliate, shall have the right to directly perform, provide and becompensated for any services under this Lease. If Landlord incurs Expenses forthe Building or Property together with one or more other buildings orproperties, whether pursuant to a reciprocal easement agreement, common areaagreement or otherwise, the shared costs and expenses shall be equitablyprorated and apportioned between the Building and Property and the otherbuildings 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 fora calendar year are determined as provided in the prior sentence, Expenses forthe Base Year shall also be determined in such manner. Notwithstanding theforegoing, Landlord may calculate the extrapolation of Expenses under this Section basedon 100% occupancy and service so long as such percentage is used consistentlyfor each year of the Term. The extrapolation of Expenses under this Section shallbe performed in accordance with the methodology specified by the BuildingOwners and Managers Association.

 

3.  “Taxes” shall mean:  (a) all real property taxes and otherassessments on the Building and/or Property, including, but not limited to,gross receipts taxes, assessments for special improvement districts andbuilding improvement districts, governmental charges, fees and assessments forpolice, 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 and theProperty’s share of any real estate taxes and assessments under any reciprocaleasement agreement, common area agreement or similar agreement as to theProperty; (b) all personal property taxes for property that is owned byLandlord and used in connection with the operation, maintenance and repair ofthe 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 andappeal of tax liabilities.  Withoutlimitation, Taxes shall not include any income, capital levy, transfer, capitalstock, gift, estate or inheritance tax. If a change in Taxes is obtained forany year of the Term during which Tenant paid Tenant’s Pro Rata Share of any TaxExcess, then Taxes for that year will be retroactively adjusted and Landlordshall provide Tenant with a credit, if any, based on the adjustment.  Likewise, if a change is obtained for Taxesfor the Base Year, Taxes for the Base Year shall be restated and the Tax Excessfor all subsequent years shall be recomputed. Tenant shall pay Landlord the amount of Tenant’s Pro Rata Share of anysuch increase in the Tax Excess within 30 days after Tenant’s receipt of astatement from Landlord.

 

4. Audit Rights.  Tenant, within 365days after receiving Landlord’s statement of Expenses, may give Landlordwritten notice (“Review Notice”) that Tenant intends to review Landlord’srecords of the Expenses for the calendar year to which the statementapplies.  Within a reasonable time afterreceipt of the Review Notice, Landlord shall make all pertinent recordsavailable for inspection that are reasonably necessary for Tenant to conductits review.  If any records aremaintained at a location other than the management office for the Building,Tenant may either inspect the records at such other location or pay for thereasonable cost of copying and shipping the records.  If Tenant retains an agent to review Landlord’srecords, the agent must be with a CPA firm licensed to do business in the stateor commonwealth where the Property is located. Tenant shall be solely responsible for all costs, expenses and feesincurred for the audit.  Within 90 days afterthe records are made available to Tenant, Tenant shall have the right to giveLandlord written notice (an “Objection Notice”) stating in reasonable detailany objection to Landlord’s statement of Expenses for that year. If Tenantfails to give Landlord an Objection Notice within the 90 day period or fails toprovide Landlord with a Review Notice within the 365 day period describedabove, Tenant shall be deemed to have approved Landlord’s statement of Expensesand shall be barred from raising any claims regarding the Expenses for thatyear.  The records obtained by Tenantshall be treated as confidential.  In noevent shall Tenant be permitted to examine Landlord’s records or to dispute anystatement of Expenses unless Tenant has paid and continues to pay all Rent whendue.

 

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EXHIBIT C

 

WORK LETTER

 

 

This Exhibit is attached to and made a partof the 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.

 

 

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 “Work List”) using Building standard methods,materials and finishes.  The improvementsto be performed in accordance with the Work List are hereinafter referred to asthe “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 select and/or approve of any subcontractorsused in connection with the Landlord Work.

 

WORK LIST

 

ITEM

 

(A)                              Landlordshall remove the two phone booths, as shown on Exhibit C-1 attached hereto.

 

(B)                                Landlordshall remove a wall between a storage room and an office, as shown on ExhibitC-1 attached hereto.

 

(C)                                Landlordshall 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 any Tenant Delay in completion of thePremises resulting from any such other work and upgrades requested or performedby 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 to thePremises 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 partof the 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 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 partof the Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and Opta Corporation, a Delawarecorporation. (“Tenant”) forspace in the Building located at 1350 Old Bayshore Highway, Burlingame,California, commonly known as One Bay Plaza.

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

 

Re:          Commencement Letter with respect tothat certain Lease dated as of the          day of                   ,           , by andbetween                                                       ,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 partof the 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 event of a conflict between thefollowing rules and regulations and the remainder of the terms of the Lease,the remainder of the terms of the Lease shall control.  Capitalized terms have the same meaning asdefined 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.  Norubbish, litter, trash, or material shall be placed, emptied, or thrown inthose areas.  At no time shall Tenantpermit Tenant’s employees to loiter in Common Areas or elsewhere about theBuilding or Property.

 

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 or appliances by Tenant, its agents,employees or invitees shall be paid for by Tenant and Landlord shall not beresponsible 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 tenant identification and suite numbersat the entrance to the Premises shall be installed by Landlord, at Tenant’scost and expense, using the standard graphics for the Building. Except inconnection with the hanging of lightweight pictures and wall decorations, nonails, hooks or screws shall be inserted into any part of the Premises or Buildingexcept by the Building maintenance personnel without Landlord’s prior approval,which approval shall not be unreasonably withheld.

 

4.                                       Landlordmay provide and maintain in the first floor (main lobby) of the Building analphabetical directory board or other directory device listing tenants and noother directory shall be permitted unless previously consented to by Landlordin 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 thePremises.  A reasonable number of keys tothe locks on the entry doors in the Premises shall be furnished by Landlord toTenant at Tenant’s cost and Tenant shall not make any duplicate keys.  All keys shall be returned to Landlord at theexpiration or early 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 orreceipt by 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 prior approval by providing a detailedlisting of the activity, which approval shall not be unreasonablywithheld.  If approved by Landlord, theactivity shall be under the supervision of Landlord and performed in the mannerrequired by Landlord.  Tenant shallassume all risk for damage to articles moved and injury to any personsresulting from the activity.  Ifequipment, property, or personnel of Landlord or of any other party is damagedor injured as a result of or in connection with the activity, Tenant shall besolely liable for any resulting 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 theBuilding by the installation, maintenance, operation, existence or removal ofTenant’s Property shall be repaired at Tenant’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 written consent, use, store, install, spill, remove,release or dispose of, within or about the Premises or any other portion of theProperty, any asbestos-containing materials or any solid, liquid or gaseousmaterial now or subsequently considered toxic or hazardous under the provisionsof 42 U.S.C. Section 9601 et seq. or any other applicable environmentalLaw which may now or later be in effect. Tenant shall comply with all Laws pertaining to and governing the use ofthese materials by Tenant and shall remain solely liable for the costs ofabatement 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 (“Labor Disruption”).  Tenant shall take the actions necessary toresolve the Labor Disruption, and shall have pickets removed and, at therequest of Landlord, immediately terminate any work in the Premises that gaverise to the Labor Disruption, until Landlord gives its written consent for thework to resume.  Tenant shall have noclaim for damages against Landlord or any of the Landlord Related Parties norshall the Commencement Date of the Term be extended as a result of the aboveactions.

 

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 notfurnish cooling or heating to the Premises, including, without limitation, theuse of electric or gas heating devices, without Landlord’s prior writtenconsent.  Tenant shall not use more thanits 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 and safetyof the Building and the Property, its occupants, entry, use and contents.  Tenant, its agents, employees, contractors,guests and invitees shall comply 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 from Landlord, Tenant shall refrain from anddiscontinue 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.  Landlordshall have the right to designate the Building (including the Premises) as anon-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 uniformexterior

 

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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 shall not make deliveries to or fromthe Premises in a manner that might interfere with the use by any other tenantof its premises or of the Common Areas, any pedestrian use, or any use which isinconsistent with good business practice.

 

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

 

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EXHIBIT F

 

ADDITIONAL PROVISIONS

 

This Exhibit is attached to and made a partof the 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.

 

1.                                       AsbestosNotification.  Tenant acknowledgesthat Tenant has received the asbestos notification letter attached to this Leaseas Exhibit H hereto, disclosing the existence of asbestos in theBuilding.  As part of Tenant’sobligations under this Lease, Tenant agrees to comply with the California “ConnellyAct” 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 shallhave the right to extend the Term (the “Renewal Option”) for one additionalperiod of 1 year commencing on the day following the Termination Date of theinitial Term and ending on the 1st anniversary of the Termination Date (the “RenewalTerm”), if:

 

1.                                       Landlordreceives notice of exercise (“Initial Renewal Notice”) not less than 94 fullcalendar months prior to the expiration of the initial Term and not more than 126full calendar months prior to the expiration of the initial Term; 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 Permitted Transfer, asdefined in Section 11 of the Lease) at the time that Tenant delivers itsInitial Renewal Notice or at the time Tenant delivers its Binding Notice; 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 shall increase, if at all, inaccordance with the increases assumed in the determination of Prevailing Marketrate.  Base Rent attributable to thePremises shall be payable in monthly installments in accordance with the termsand conditions 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’s Initial Renewal Notice,Landlord shall advise Tenant of the applicable Base Rent rate for the Premisesfor the Renewal Term.  Tenant, within 15days after the date on which Landlord advises Tenant of the applicable BaseRent rate for the Renewal Term, shall either (i) give Landlord finalbinding written notice (“Binding Notice”) of Tenant’s exercise of its RenewalOption, or (ii) if Tenant disagrees with Landlord’s determination, provideLandlord with written notice of rejection (the “Rejection Notice”).  If Tenant fails to provide Landlord witheither a Binding Notice or Rejection Notice within such 15 day period, Tenant’sRenewal Option shall be null and void and of no further force and effect.  If Tenant provides Landlord with a BindingNotice, Landlord and Tenant shall enter into the Renewal Amendment (as definedbelow) upon the terms and 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 Renewal Term.  When Landlord and Tenant have agreed upon thePrevailing Market rate for the Premises, such agreement shall be reflected in awritten agreement between Landlord and Tenant, whether in a letter orotherwise, and Landlord and Tenant shall enter into the Renewal Amendment inaccordance with the terms and conditions hereof.  Notwithstanding the foregoing, if Landlordand Tenant are unable to agree upon the Prevailing Market rate for the Premiseswithin 30 days after the date Tenant provides Landlord with the RejectionNotice, Tenant’s Renewal Option shall be deemed to be null and void and of noforce and effect.

 

D.                                    RenewalAmendment.  If Tenant is entitled toand properly exercises its Renewal Option, Landlord shall prepare an amendment(the “Renewal Amendment”) to reflect changes in the Base Rent, Term,Termination Date and other appropriate terms. 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 purposesof this Renewal Option, “Prevailing Market” shall mean the arms length fairmarket annual rental rate per rentable square foot under renewal leases andamendments entered into on or about the date on which the Prevailing Market isbeing determined hereunder for space comparable to the Premises in the Buildingand office buildings comparable to the Building in the Burlingame, Californiaarea.  The determination of PrevailingMarket shall take into account any material economic differences between theterms of this Lease and any comparison lease or amendment, such as rentabatements, construction costs and other concessions and the manner, if any, inwhich the landlord under any such lease is reimbursed for operating expensesand taxes.  The determination ofPrevailing Market shall also take into consideration any reasonably anticipatedchanges in the Prevailing Market rate from the time such Prevailing Market rateis being determined and the time such Prevailing Market rate will becomeeffective under this Lease.

 

**F.**                                      Subordination.  Notwithstanding anythingherein to the contrary, Tenant’s Renewal Option is subject and subordinate tothe expansion rights (whether such rights are designated as a right of firstoffer, right of first refusal, expansion option or otherwise) of any tenant ofthe Building existing on the date hereof.

 

3.                                       RoofSpace For Dish/Antenna.

 

A.                                   Tenantshall have the right, in consideration for payments of $50.00 per month (the “Dish/AntennaPayments”), to lease space on the roof of the Building for the purpose ofinstalling (in accordance with Section 9.03 of the Lease), operating andmaintaining a            inch (          )dish/antenna or other communication device approved by the Landlord (the “Dish/Antenna”).  The Dish/Antenna Payments shall constituteAdditional Rent under the terms of the Lease and Tenant shall be required tomake these payments in strict compliance with the terms of Section 4 ofthe Lease.  The exact location of thespace on the roof to be leased by Tenant shall be designated by Landlord andshall not exceed         (       )square feet (the “Roof Space”).  Landlordreserves the right to relocate the Roof Space as reasonably necessary duringthe Term.  Landlord’s designation shalltake into account Tenant’s use of the Dish/Antenna.  Notwithstanding the foregoing, Tenant’s rightto install the Dish/Antenna shall be subject to the approval rights of Landlordand Landlord’s architect and/or engineer with respect to the plans andspecifications of the Dish/Antenna, the manner in which the Dish/Antenna isattached to the roof of the Building and the manner in which any cables are runto and from the Dish/Antenna. The Dish/Antenna must be tagged with weatherprooflabels showing manufacturer, model, frequency range, and name of Tenant.  In addition, the cable between the Dish/Antennaand Tenant’s suite must be tagged in the telecom closet on each floor with alabel showing Tenant’s name, phone number and suite number.  The precise specifications and a generaldescription of the Dish/Antenna along with all documents Landlord reasonablyrequires to review the installation of the Dish/Antenna (the “Plans andSpecifications”) shall be submitted to Landlord for Landlord’s written approvalno later than 20 days before Tenant commences to install the Dish/Antenna.Tenant shall be solely responsible for obtaining all necessary governmental andregulatory approvals and for the cost of installing, operating, maintaining andremoving the Dish/Antenna.  Tenant shallnotify Landlord upon completion of the installation of the

 

 

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Dish/Antenna.  If Landlord determines that the Dish/Antennaequipment does not comply with the approved Plans and Specifications, that theBuilding has been damaged during installation of the Dish/Antenna or that theinstallation was defective, Landlord shall notify Tenant of any noncomplianceor detected problems and Tenant immediately shall cure the defects.  If the Tenant fails to immediately cure thedefects, Tenant shall pay to Landlord upon demand the cost, as reasonablydetermined by Landlord, of correcting any defects and repairing any damage tothe Building caused by such installation. If at any time Landlord, in its sole discretion,  deems it necessary, Tenant shall provide andinstall, at Tenant’s sole cost and expense, appropriate aesthetic screening,reasonably satisfactory to Landlord, for the Dish/Antenna (the “AestheticScreening”).

 

B.                                     Landlordagrees that Tenant, upon reasonable prior written notice to Landlord, shallhave access to the roof of the Building and the Roof Space for the purpose ofinstalling, maintaining, repairing and removing the Dish/Antenna, theappurtenances and the Aesthetic Screening, if any, all of which shall beperformed by Tenant or Tenant’s authorized representative or contractors, whichshall be approved by Landlord, at Tenant’s sole cost and  risk. It is agreed, however, that onlyauthorized engineers, employees or properly authorized contractors of Tenant,FCC (defined below) inspectors, or persons under their direct supervision willbe permitted to have access to the roof of the Building and the RoofSpace.  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.                                     Itis further understood and agreed that the installation, maintenance, operationand removal of the Dish/Antenna, the appurtenances and the Aesthetic Screening,if any, is not permitted to damage the Building or the roof thereof, orinterfere with the use of the Building and roof by Landlord.  Tenant agrees to be responsible for anydamage caused to the roof or any other part of the Building, which may be causedby Tenant or any of its agents or representatives.

 

D.                                    Tenantagrees to install only equipment of types and frequencies which will not causeunreasonable interference to Landlord or existing tenants of the Building.  In the event Tenant’s equipment causes suchinterference, Tenant will change the frequency on which it transmits and/orreceives and take any other steps necessary to eliminate the interference.  If said interference cannot be eliminatedwithin a reasonable period of time, in the judgment of Landlord, then Tenantagrees to remove the Dish/Antenna from the Roof Space.

 

E.                                      Tenantshall, at its sole cost and expense, and at its sole risk, install, operate andmaintain the Dish/Antenna in a good and workmanlike manner, and in compliancewith all Building, electric, communication, and safety codes, ordinances,standards, regulations and requirements, now in effect or hereafterpromulgated, of the Federal Government, including, without limitation, theFederal Communications Commission (the “FCC”), the Federal AviationAdministration (“FAA”) or any successor agency of either the FCC or FAA havingjurisdiction over radio or telecommunications, and of the state, city andcounty in which the Building is located. Under this Lease, the Landlord and its agents assume no responsibilityfor the licensing, operation and/or maintenance of Tenant’s equipment.  Tenant has the responsibility of carrying outthe terms of its FCC license in all respects. The Dish/Antenna shall be connected to Landlord’s power supply in strictcompliance with all applicable Building, electrical, fire and safetycodes.  Neither Landlord nor its agentsshall be liable to Tenant for any stoppages or shortages of electrical powerfurnished to the Dish/Antenna or the Roof Space because of any act, omission orrequirement of the public utility serving the Building, or the act or omissionof any other tenant, invitee or licensee or their respective agents, employeesor contractors, or for any other cause beyond the reasonable control of Landlord,and Tenant shall not be entitled to any rental abatement for any such stoppageor shortage of electrical power.  NeitherLandlord nor its agents shall have any responsibility or liability for theconduct or safety of any of Tenant’s representatives, repair, maintenance andengineering personnel while in or on any part of the Building or the RoofSpace.

 

F.                                      TheDish/Antenna, the appurtenances and the Aesthetic Screening, if any, shallremain the personal property of Tenant, and shall be removed by Tenant at itsown expense at the expiration or earlier termination of this Lease or Tenant’sright to possession hereunder.  Tenantshall repair any damage caused by such removal, including the patching of anyholes to match, as closely as possible, the color surrounding the area wherethe equipment and appurtenances were attached. Tenant agrees to maintain all of the Tenant’s equipment placed on orabout the roof or in any other part of the Building in proper operatingcondition and maintain same in satisfactory condition as to appearance

 

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and safety in Landlord’s solediscretion.  Such maintenance andoperation shall be performed in a manner to avoid any interference with anyother tenants or Landlord.  Tenant agreesthat at all times during the Term, it will keep the roof of the Building andthe Roof Space free of all trash or waste materials produced by Tenant orTenant’s agents, employees or contractors.

 

G.                                     Inlight of the specialized nature of the Dish/Antenna, Tenant shall be permittedto utilize the services of its choice for installation, operation, removal andrepair of the Dish/Antenna, the appurtenances and the Aesthetic Screening, ifany, subject to the reasonable approval of Landlord.  Notwithstanding the foregoing, Tenant mustprovide Landlord with prior written notice of any such installation, removal orrepair and coordinate such work with Landlord in order to avoid voiding orotherwise adversely affecting any warranties granted to Landlord with respectto the roof.  If necessary, Tenant, atits sole cost and expense, shall retain any contractor having a then existingwarranty in effect on the roof to perform such work (to the extent that itinvolves the roof), or, at Tenant’s option, to perform such work in conjunctionwith Tenant’s contractor.  In the eventthe Landlord contemplates roof repairs that could affect Tenant’s Dish/Antenna,or which may result in an interruption of the Tenant’s telecommunicationservice, Landlord shall formally notify Tenant at least 30 days in advance(except in cases of an emergency) prior to the commencement of suchcontemplated work in order to allow Tenant to make other arrangements for suchservice.

 

H.                                    Tenantshall not allow any provider of telecommunication, video, data or relatedservices (“Communication Services”) to locate any equipment on the roof of theBuilding or in the Roof Space for any purpose whatsoever, nor may Tenant usethe Roof Space and/or Dish/Antenna to provide Communication Services to an unaffiliatedtenant, occupant or licensee of another building, or to facilitate theprovision of Communication Services on behalf of another Communication Servicesprovider to an unaffiliated tenant, occupant or licensee of the Building or anyother building.

 

I.                                         Tenantacknowledges that Landlord may at some time establish a standard licenseagreement (the “License Agreement”) with respect to the use of roof space bytenants 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.                                        Tenantspecifically acknowledges and agrees that the terms and conditions of Section 13of the Lease (Indemnity and Waiver of Claims) shall apply with full force andeffect to the Roof Space and any other portions of the roof accessed orutilized by Tenant, its representatives, agents, employees or contractors.

 

K.                                    IfTenant defaults under any of the terms and conditions of this Section orthe Lease, and Tenant fails to cure said default within the time allowed by Section 18of the Lease, Landlord shall be permitted to exercise all remedies providedunder the terms of the Lease, including removing the Dish/Antenna, theappurtenances and the Aesthetic Screening, if any, and restoring the Buildingand the Roof Space to the condition that existed prior to the installation ofthe Dish/Antenna, the appurtenances and the Aesthetic Screening, if any.  If Landlord removes the Dish/Antenna, theappurtenances and the Aesthetic Screening, if any, as a result of an uncureddefault, Tenant shall be liable for all costs and expenses Landlord incurs inremoving the Dish/Antenna, the appurtenances and the Aesthetic Screening, ifany, and repairing any damage to the Building, the roof of the Building and theRoof Space caused by the installation, operation or maintenance of theDish/Antenna, the appurtenances, and the Aesthetic Screening, 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 in the 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 samedefinitions as set forth in the Lease to the extent that such capitalized termsare defined therein and not redefined in this Parking Agreement.  In the event of any conflict between theLease and this Parking Agreement, the latter shall control.

 

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 timerequest additional parking spaces, and if Landlord shall provide the same, suchparking spaces shall be provided and used on a month-to-month basis, andotherwise on the foregoing terms and provisions, and at such prevailing monthlyparking charges as shall be established from time to time.  Such charges, if any, shall be payable inadvance to Landlord or such other entity as designated by Landlord, and shallbe sent concurrent with Tenant’s payment of monthly Base Rent to the addressLandlord designates from time to time. No deductions from such charges, if any, shall be made for days on whichthe 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 theright to adopt, modify and enforce reasonable rules (“Rules”) governing the useof the Parking Facility from time to time including any key-card, sticker orother identification or entrance system and hours of operation.  The Rules set forth herein are currently ineffect.  Landlord may refuse to permit anyperson who violates such Rules to park in the Parking Facility, and anyviolation of the Rules shall subject the car to removal from the ParkingFacility.

 

4.                                       Unlessspecified to the contrary above, the parking spaces hereunder shall be providedon a non-designated “first-come, first-served” basis.  Tenant acknowledges that Landlord has noliability for claims arising through acts or omissions of any independentoperator of the Parking Facility. Landlord shall have no liability whatsoever for any damage to itemslocated in the Parking Facility, nor for any personal injuries or death arisingout of any matter relating to the Parking Facility, and in all events, Tenantagrees to look first to its insurance carrier and to require that Tenant’semployees look first to their respective insurance carriers for payment of anylosses sustained in connection with any use of the Parking Facility.  Tenant hereby waives on behalf of itsinsurance carriers all rights of subrogation against Landlord or Landlord’sagents.  Landlord reserves the right toassign specific parking spaces, and to reserve parking spaces for visitors,small cars, handicapped persons and for other tenants, guests of tenants orother parties, which assignment and reservation or spaces may be relocated asdetermined by Landlord from time to time, and Tenant and persons designated byTenant hereunder shall not park in any location designated for such assigned orreserved 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 other reason beyondthe operator’s reasonable control.  Insuch event, Landlord shall refund any prepaid parking fee hereunder, proratedon 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, if Tenant shall default underthis Parking Agreement, Landlord shall have the right to cancel this ParkingAgreement on 10 days’ written notice, unless within such 10 day period, Tenantcures such default.  If Tenant defaultswith respect to the same term or condition under this Parking Agreement morethan 3 times during any 12 month period, and Landlord notifies Tenant thereofpromptly after each such default, the next default of such term or conditionduring the succeeding 12 month period, shall, at Landlord’s election,constitute an incurable default.  Suchcancellation right shall be cumulative and in addition to any other rights orremedies available to Landlord at law or equity, or provided under the Lease(all of which rights and remedies under the Lease are hereby incorporatedherein, as though fully set forth).  Anydefault by Tenant under the Lease shall be a default under this ParkingAgreement, and any default under this Parking Agreement shall be a defaultunder 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.  Exceptfor emergency repairs, Tenant and its employees shall not perform any work onany automobiles while located in the 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 device must be displayed as requested andmay not be mutilated in any manner.  Theserial number of the parking identification device may not be obliterated.  Parking passes and devices are nottransferable and any pass or device in the possession of an unauthorized holderwill be void.

 

(viii)        Monthlyfees shall be payable in advance prior to the first day of each month.  Failure to do so will automatically cancelparking privileges and a charge at the prevailing daily parking rate will bedue.  No deductions or allowances fromthe monthly rate will be made for days on which the Parking Facility is notused by Tenant 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.  Any parking devices reported lost or stolenfound on any authorized car will be confiscated and the illegal holder will besubject to prosecution.  Lost or stolenpasses and devices found by Tenant or its employees must be reported to theoffice 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 beused only for parking automobiles.

 

(xiii)         Tenantagrees to acquaint all persons to whom Tenant assigns a parking space with theseRules.

 

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 OR THECONTENTS THEREOF DUE TO THEFT, VANDALISM OR ACCIDENT) ARISING FROM OR RELATEDTO TENANT’S USE OF THE PARKING FACILITY OR EXERCISE OF ANY RIGHTS UNDER THISPARKING AGREEMENT, WHETHER OR NOT SUCH LOSS OR DAMAGE RESULTS FROM LANDLORD’SACTIVE

 

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NEGLIGENCE OR NEGLIGENTOMISSION.  THE LIMITATION ON LANDLORD’SLIABILITY UNDER THE PRECEDING SENTENCE SHALL NOT APPLY HOWEVER TO LOSS ORDAMAGE ARISING DIRECTLY FROM LANDLORD’S WILLFUL 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 that Tenantwill not prosecute any claim for personal injury or property damage againstLandlord or any of its officers, agents, servants or employees for any saidcauses of action.  It is the intention ofTenant by this instrument, to exempt and relieve Landlord from liability forpersonal injury or property damage 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 isfully aware 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 partof the Lease by and between CA-ONE BAY PLAZA LIMITED PARTNERSHIP, a Delawarelimited partnership (“Landlord”) and Opta Corporation, a Delawarecorporation (“Tenant”) for space in the Building located at 1350 Old BayshoreHighway, 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 federal OSHA and some otherCalifornia rules, now require building owners and landlords to make certainnotifications regarding known asbestos-containing materials (“ACM”) andpresumed ACMs (“PACM”).  PACM consists ofcertain older construction materials which commonly contained asbestos.  ThisExhibit is designed to provide you 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 issprayed-on, troweled-on or otherwise applied to surfaces (such as acousticalplaster on ceilings and fireproofing materials on structural members, or othermaterials on surfaces for acoustical, fireproofing, and other purposes).  Because this Building was constructed priorto 1981, PACM may be present.  Ourasbestos survey(s) for the Building note the presence, location and quantity ofthe PACM as follows:

 

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

 

The fact that our survey(s) mayidentify such materials as PACM does not necessarily mean that no other PACMexists in the Building.  Please beadvised that if any thermal system insulation, asphalt or vinyl flooring orsurfacing material, of the type described above, are found to be present in theBuilding, such materials must be considered PACM unless properly tested andshown 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 notphysicians, scientists or industrial hygienists, we have no special knowledgeof the health impact of exposure to asbestos. 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&MPlan is designed to minimize the potential for a release of asbestos fibers andoutlines a schedule of actions to be undertaken with respect toasbestos.  The written O&M Plan isavailable for your review at our Building Management Office during regularbusiness hours, and a copy of the O&M Plan will be provided to you uponrequest.

 

In general, the written O&MPlan describes the risks associated with asbestos exposure and how to preventsuch exposure.  The O&M Plandescribes those risks as follows: asbestos is not a significant health concern unless asbestos fibers arereleased and inhaled.  If inhaled,asbestos fibers can accumulate in the lungs and, as exposure increases, therisk of disease (such as asbestosis and cancer) increases.  However, measures to minimize exposure andconsequently minimize the accumulation of fibers, reduces the risk of adversehealth 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 thatend, the O&M Plan provides for the training of building housekeeping andmaintenance personnel so that they can conduct their work without causing arelease 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 aware that some of the activities which maypresent a health risk by causing an airborne release of asbestos fibers includemoving, drilling, boring or otherwise 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.  Pleasecontact the Property Manager for more information in this regard.  In addition, please contact the PropertyManager if you notice any deterioration or disturbance of ACM or PACM.  Also, note that the identification of ACM andPACM in this Exhibit is based on actual knowledge and assumptions that the lawrequires us to make:  such materials donot necessarily comprise all asbestos in the Building.

 

Please be aware that you mayhave certain obligations under California and federal laws with regard to theACM and PACM in the Building, including obligations to notify your ownemployees, contractors, subtenants, agents and others of the presence of ACMand PACM.  You are solely responsible forcomplying with all such applicable laws.

 

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

 

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