Exhibit 10.10


 


INDUSTRIAL LEASE


(Multi-Tenant; Net ; “As-Is”)


 


 


BETWEEN


 


 


THE IRVINE COMPANY


 


 


AND


 


 


GOREMOTE INTERNET COMMUNICATIONS, INC.


 





















 


INDEX TO LEASE


 


	
  ARTICLE I.

  	
   

  	
  BASIC
  LEASE PROVISIONS

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
   

  	
  PREMISES

  
	
  Section 2.1

  	
   

  	
  Leased
  Premises

  
	
  Section 2.2

  	
   

  	
  Acceptance
  of Premises

  
	
  Section 2.3

  	
   

  	
  Building
  Name and Address

  
	
  Section 2.4

  	
   

  	
  Right
  of First Refusal

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
   

  	
  TERM

  
	
  Section 3.1

  	
   

  	
  General

  
	
  Section 3.2

  	
   

  	
  Existing
  Master Lease and Tenant’s Sublease

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  RENT
  AND OPERATING EXPENSES

  
	
  Section 4.1

  	
   

  	
  Basic
  Rent

  
	
  Section 4.2

  	
   

  	
  Operating
  Expenses

  
	
  Section 4.3

  	
   

  	
  Security
  Deposit

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
   

  	
  USES

  
	
  Section 5.1

  	
   

  	
  Use

  
	
  Section 5.2

  	
   

  	
  Signs

  
	
  Section 5.3

  	
   

  	
  Hazardous
  Materials

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
   

  	
  COMMON
  AREAS; SERVICES

  
	
  Section 6.1

  	
   

  	
  Utilities
  and Services

  
	
  Section 6.2

  	
   

  	
  Operation
  and Maintenance of Common Areas

  
	
  Section 6.3

  	
   

  	
  Use
  of Common Areas

  
	
  Section 6.4

  	
   

  	
  Parking

  
	
  Section 6.5

  	
   

  	
  Changes
  and Additions by Landlord

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  	
  MAINTAINING
  THE PREMISES

  
	
  Section 7.1

  	
   

  	
  Tenant’s
  Maintenance and Repair

  
	
  Section 7.2

  	
   

  	
  Landlord’s
  Maintenance and Repair

  
	
  Section 7.3

  	
   

  	
  Alterations

  
	
  Section 7.4

  	
   

  	
  Mechanic’s
  Liens

  
	
  Section 7.5

  	
   

  	
  Entry
  and Inspection

  
	
  Section 7.6

  	
   

  	
  Communications
  Equipment

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
   

  	
  TAXES
  AND ASSESSMENTS ON TENANT’S PROPERTY

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
   

  	
  ASSIGNMENT
  AND SUBLETTING

  
	
  Section 9.1

  	
   

  	
  Rights
  of Parties

  
	
  Section 9.2

  	
   

  	
  Effect
  of Transfer

  
	
  Section 9.3

  	
   

  	
  Sublease
  Requirements

  
	
  Section 9.4

  	
   

  	
  Certain
  Transfers

  
	
  Section 9.5

  	
   

  	
  Facilities
  Sharing Arrangements

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
   

  	
  INSURANCE
  AND INDEMNITY

  
	
  Section 10.1

  	
   

  	
  Tenant’s
  Insurance

  
	
  Section 10.2

  	
   

  	
  Landlord’s
  Insurance

  
	
  Section 10.3

  	
   

  	
  Tenant’s
  Indemnity

  
	
  Section 10.4

  	
   

  	
  Landlord’s
  Nonliability

  
	
  Section 10.5

  	
   

  	
  Waiver
  of Subrogation

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
   

  	
  DAMAGE OR DESTRUCTION

  
	
  Section 11.1

  	
   

  	
  Restoration

  
	
  Section 11.2

  	
   

  	
  Lease
  Governs

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
   

  	
  EMINENT DOMAIN

  
	
  Section 12.1

  	
   

  	
  Total
  or Partial Taking

  
	
  Section 12.2

  	
   

  	
  Temporary
  Taking

  
	
  Section 12.3

  	
   

  	
  Taking
  of Parking Area

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII.

  	
   

  	
  SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS

  
	
  Section 13.1

  	
   

  	
  Subordination

  
	
  Section 13.2

  	
   

  	
  Estoppel Certificate

  
	
  Section 13.3

  	
   

  	
  Financials

  



 


i





















 


	
  ARTICLE XIV.

  	
   

  	
  DEFAULTS AND REMEDIES

  
	
  Section 14.1

  	
   

  	
  Tenant’s Defaults

  
	
  Section 14.2

  	
   

  	
  Landlord’s Remedies

  
	
  Section 14.3

  	
   

  	
  Late Payments

  
	
  Section 14.4

  	
   

  	
  Right
  of Landlord to Perform

  
	
  Section 14.5

  	
   

  	
  Default
  by Landlord

  
	
  Section 14.6

  	
   

  	
  Expenses
  and Legal Fees

  
	
  Section 14.7

  	
   

  	
  Waiver
  of Jury Trial

  
	
  Section 14.8

  	
   

  	
  Satisfaction
  of Judgment

  
	
  Section 14.9

  	
   

  	
  Limitation
  of Actions Against Landlord

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV.

  	
   

  	
  END
  OF TERM

  
	
  Section 15.1

  	
   

  	
  Holding
  Over

  
	
  Section 15.2

  	
   

  	
  Merger
  on Termination

  
	
  Section 15.3

  	
   

  	
  Surrender
  of Premises; Removal of Property

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI.

  	
   

  	
  PAYMENTS
  AND NOTICES

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII.

  	
   

  	
  RULES
  AND REGULATIONS

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVIII.

  	
   

  	
  BROKER’S
  COMMISSION

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIX.

  	
   

  	
  TRANSFER
  OF LANDLORD’S INTEREST

  
	
   

  	
   

  	
   

  
	
  ARTICLE XX.

  	
   

  	
  INTERPRETATION

  
	
  Section 20.1

  	
   

  	
  Gender
  and Number

  
	
  Section 20.2

  	
   

  	
  Headings

  
	
  Section 20.3

  	
   

  	
  Joint
  and Several Liability

  
	
  Section 20.4

  	
   

  	
  Successors

  
	
  Section 20.5

  	
   

  	
  Time
  of Essence

  
	
  Section 20.6

  	
   

  	
  Controlling
  Law

  
	
  Section 20.7

  	
   

  	
  Severability

  
	
  Section 20.8

  	
   

  	
  Waiver
  and Cumulative Remedies

  
	
  Section 20.9

  	
   

  	
  Inability
  to Perform

  
	
  Section 20.10

  	
   

  	
  Entire
  Agreement

  
	
  Section 20.11

  	
   

  	
  Quiet
  Enjoyment

  
	
  Section 20.12

  	
   

  	
  Survival

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXI.

  	
   

  	
  EXECUTION
  AND RECORDING

  
	
  Section 21.1

  	
   

  	
  Counterparts

  
	
  Section 21.2

  	
   

  	
  Corporate
  and Partnership Authority

  
	
  Section 21.3

  	
   

  	
  Execution
  of Lease; No Option or Offer

  
	
  Section 21.4

  	
   

  	
  Recording

  
	
  Section 21.5

  	
   

  	
  Amendments

  
	
  Section 21.6

  	
   

  	
  Executed
  Copy

  
	
  Section 21.7

  	
   

  	
  Attachments

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXII

  	
   

  	
  MISCELLANEOUS

  
	
  Section 22.1

  	
   

  	
  Nondisclosure
  of Lease Terms

  
	
  Section 22.2

  	
   

  	
  Guaranty

  
	
  Section 22.3

  	
   

  	
  Changes
  Requested by Lender

  
	
  Section 22.4

  	
   

  	
  Mortgagee
  Protection

  
	
  Section 22.5

  	
   

  	
  Covenants
  and Conditions

  
	
  Section 22.6

  	
   

  	
  Security
  Measures

  
	
  Section 22.7.

  	
   

  	
  Jams
  Arbitration

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Description
  of Premises

  
	
  Exhibit B

  	
   

  	
  Environmental
  Questionnaire

  
	
  Exhibit C

  	
   

  	
  Landlord’s
  Disclosures

  
	
  Exhibit D

  	
   

  	
  Insurance
  Requirements

  
	
  Exhibit E

  	
   

  	
  Rules and
  Regulations

  
	
  Exhibit Y

  	
   

  	
  Project
  Site Plan

  



 


ii





















 


INDUSTRIAL LEASE


(Multi-Tenant; Net)


 


THIS
LEASE is made as of the 8th day of February, 2005, by and between
THE IRVINE COMPANY, hereafter called “Landlord,” and GOREMOTE INTERNET
COMMUNICATIONS, INC., a Delaware corporation, which will do business in
California as GoRemote Internet Communications, Inc., hereinafter called “Tenant.”


 


ARTICLE I. 
BASIC LEASE PROVISIONS


 


Each
reference in this Lease to the “Basic Lease Provisions” shall mean and refer to
the following collective terms, the application of which shall be governed by
the provisions in the remaining Articles of this Lease.


 


1.             Premises:  Suite No. 
100 (the Premises are more
particularly described in Section 2.1).


 


Address
of Building:  130 Theory, Irvine, CA
92714


 


2.             Project Description (if applicable):  University Research Park VII


 


3.             Use of Premises:  General Office, subject to the
restrictions set forth in Section 5.1 below.


 


4.             Commencement Date:  March 1, 2005


 


5.             Expiration Date:  March 31, 2007


 


6.             Basic Rent: 
Commencing on the Commencement Date, the Basic Rent shall be Thirty Nine
Thousand Six Hundred Fifty Dollars ($39,650.00) per month, based on $1.25 per
rentable square foot. [See Section 4.3 of the Lease for “credit”
provisions.]


 


Basic
Rent is subject to adjustment as follows:


 


Tenant
shall not be obligated to pay Basic Rent for the period from July 1, 2005
through July 31, 2005.  However,
Tenant shall pay its “Tenant’s Share” of “Operating Expenses”  (as hereinafter defined) for such one-month
period.


 


Commencing
August 1, 2005, the Basic Rent shall be Thirty Nine Thousand Six Hundred
Fifty Dollars ($39,650.00) per month, based on $1.25 per rentable square foot.


 


7.             Guarantor(s): 
None


 


8.             Floor Area of Premises:  Approximately 31,720 rentable square feet


 


9.             Security Deposit:  $43,615.00


 


10.           Broker(s): 
Orion Property Partners


 


11.           Additional Insureds:  None


 


12.           Address for Payments and Notices:


 


	
  LANDLORD

  	
   

  	
  TENANT

  
	
   

  	
   

  	
   

  
	
  THE IRVINE COMPANY

  	
   

  	
  GOREMOTE INTERNET

  
	
  550 Newport Center Drive

  	
   

  	
  COMMUNICATIONS, INC.

  
	
  Newport Beach, CA 92660

  	
   

  	
  130 Theory, Suite 100

  
	
  Attn: Senior Vice President, Operations

  	
   

  	
  Irvine, CA 92617

  
	
  Irvine Office Properties

  	
   

  	
   

  



 


	
  with a copy of notices to:

  	
   

  	
  with a copy of notices to:

  



 


	
  THE IRVINE COMPANY

  	
   

  	
  GOREMOTE INTERNET

  
	
  550 Newport Center Drive

  	
   

  	
  COMMUNICATIONS, INC.

  
	
  Newport Beach, CA 92660

  	
   

  	
  1421 McCarthy Boulevard

  
	
  Attn: Vice President, Operations

  	
   

  	
  Milpitas, CA 95035

  
	
  Irvine Office Properties, Technology Portfolio

  	
   

  	
  Attn: General Counsel

  



 


13.           Tenant’s Liability Insurance Requirement:  $2,000,000.00


 


14.           Vehicle Parking Spaces:  One Hundred Sixteen (116)


 





















 


15.           Tenant understands and acknowledges that a
material consideration for Landlord’s entering into this Lease is the nature of
Tenant’s business and the mutual benefits to be derived by Tenant and by the
University of California at Irvine (the “University”) as a result of Tenant’s
business operating in a project located proximately to the University.  Accordingly, in the event of any proposed
assignment of this Lease, or sublease of the Premises, in addition to all of
the provisions of Section 9.1(b) of this lease, Landlord may
reasonably withhold its consent to any such proposed assignment or sublease if
Landlord determines that such mutual benefits will not be derived as a result
of the proposed use of the Premises by such assignee, sublessee or transferee.


 





















 


ARTICLE II.  PREMISES


 


SECTION 2.1.  LEASED PREMISES.  Landlord leases to Tenant and
Tenant leases from Landlord the premises shown in Exhibit A (the “Premises”),
containing approximately the floor area set forth in Item 8 of the Basic Lease
Provisions and known by the suite number identified in Item 1 of the Basic
Lease Provisions.  The Lease includes
furniture and fixtures installed in the Premises as of the Commencement Date,
which is leased to Tenant in an “as is” condition.  The Premises are located in the building
identified in Item 1 of the Basic Lease Provisions (which together with the
underlying real property, is called the “Building”), and is a portion of the
project shown in Exhibit Y (the “Project”).  Tenant understands that the floor area set
forth in Item 8 of the Basic Lease Provisions includes a factor
approximating the total square footage of any common lobby or internal common
features of the Building.  If, upon
completion of the space plans for the Premises, Landlord’s architect or space
planner determines that the rentable square footage of the Premises differs
from that set forth in the Basic Lease Provisions, then Landlord shall so
notify Tenant and the Basic Rent (as shown in Item 6 of the Basic Lease
Provisions) shall be promptly adjusted in proportion to the change in square
footage.  Within five (5) days
following Landlord’s request, the parties shall memorialize the adjustments by
executing an amendment to this Lease prepared by Landlord, provided that the
failure or refusal by either party to execute the amendment shall not affect
its validity.


 


SECTION 2.2.  ACCEPTANCE OF PREMISES.  Tenant acknowledges that neither Landlord nor
any representative of Landlord has made any representation or warranty with
respect to the Premises, the Building or the Project or their respective
suitability or fitness for any purpose, including without limitation any
representations or warranties regarding the compliance of Tenant’s use of the
Premises with the applicable zoning or regarding any other land use matters,
and Tenant shall be solely responsible as to such matters.  Further, neither Landlord nor any
representative of Landlord has made any representations or warranties regarding
(i) what other tenants or uses may be permitted or intended in the
Building or the Project, (ii) any exclusivity of use by Tenant with
respect to its permitted use of the Premises as set forth in Item 3 of the
Basic Lease Provisions, or (iii) any construction of portions of the
Project not yet completed.  Tenant
further acknowledges that neither Landlord nor any representative of Landlord
has agreed to undertake any alterations or additions or construct any
improvements to the Premises, and that Tenant’s lease of the Premises shall be
on an “as is” basis.  As of the
Commencement Date, Tenant shall be conclusively deemed to have accepted the
Premises and those portions of the Building and Project in which Tenant has any
rights under this Lease, which acceptance shall mean that it is conclusively
established that the Premises and those portions of the Building and Project in
which Tenant has any rights under this Lease were in satisfactory condition and
in conformity with the provisions of this Lease.


 


SECTION 2.3. 
BUILDING NAME AND ADDRESS.  Tenant shall not utilize any
name selected by Landlord from time to time for the Building and/or the Project
as any part of Tenant’s corporate or trade name.  Landlord shall have the right to change the
name, address, number or designation of the Building or Project without
liability to Tenant.


 


ARTICLE III. 
TERM


 


SECTION 3.1.  GENERAL.  Subject to the provisions of Section 3.2
below, the term of this Lease (“Term”)
shall commence on the date set forth in Item 4 of the Basic Lease Provisions
(the “Commencement Date”), and
shall expire on the date set forth in Item 5 of the Basic Lease Provisions (the
“Expiration Date”).


 


SECTION 3.2. 
EXISTING MASTER LEASE AND TENANT’S SUBLEASE.  It is understood and agreed that the Premises
are presently being leased by Telecore, Inc., a Delaware corporation doing
business as Delaware Telecore, Inc. (the “Current Tenant”) pursuant to an undated lease (the “Existing Master Lease”), and that Tenant is
in possession and subleasing the Premises from the Current Tenant pursuant to a
separate sublease agreement (the “Tenant’s
Sublease”).  The Existing
Master Lease is scheduled to expire by its terms at midnight March 31,
2005, and Tenant and Landlord do hereby agree that both the Existing Master
Lease and the Tenant’s Sublease shall be terminated effective as of midnight on
the day preceding the Commencement Date of this Lease.  Landlord shall have no obligation to Tenant
or responsibility for possessory issues as to the Premises as between Current
Tenant and Tenant, nor for any conflicting claims or rights to trade fixtures,
furniture, equipment or other personal property in the Premises as between
Current Tenant and Tenant.


 


ARTICLE IV. 
RENT AND OPERATING EXPENSES


 


SECTION 4.1. 
BASIC RENT.  From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset, Basic Rent for the Premises
in the total amount shown (including subsequent adjustments, if any) in Item 6
of the Basic Lease Provisions.  Any
rental adjustment shown in Item 6 shall be deemed to occur on the specified
monthly anniversary of the Commencement Date, whether or not that date occurs
at the end of a calendar month.  The rent
shall be due and payable in advance commencing on the Commencement Date (as
prorated for any partial month) and continuing thereafter on the first day of
each successive calendar month of the Term. 
No demand, notice or invoice shall be required for the payment of Basic
Rent.


 





















 


SECTION 4.2. 
OPERATING EXPENSES.


 


(a)          Tenant shall pay to Landlord, as additional
rent, Tenant’s Share of “Operating Expenses”, as defined below, incurred by
Landlord in the operation of the Building and Project.  The term “Tenant’s Share” means that portion
of an Operating Expense determined by multiplying the actual cost of such item
by a fraction, the numerator of which is the floor area of the Premises and the
denominator of which is the total square footage of the floor area, as of the
date on which the computation is made, to be charged with such Operating
Expense.


 


(b)         Commencing prior to the start of the first
full “Expense Recovery Period” (as defined below) of the Lease, and prior to
the start of each full or partial Expense Recovery Period thereafter, Landlord
shall give Tenant a written estimate of the amount of Tenant’s Share of
Operating Expenses for the Expense Recovery Period.  Tenant shall pay the estimated amounts to
Landlord in equal monthly installments, in advance, with Basic Rent.  If Landlord has not furnished its written
estimate for any Expense Recovery Period by the time set forth above, Tenant
shall continue to pay cost reimbursements at the rates established for the
prior Expense Recovery Period, if any; provided that when the new estimate is
delivered to Tenant, Tenant shall, at the next monthly payment date, pay any
accrued cost reimbursements based upon the new estimate.  For purposes hereof, “Expense Recovery Period”
shall mean every twelve month period during the Term (or portion thereof for
the first and last lease years) commencing July 1 and ending June 30.


 


(c)          Within one hundred twenty (120) days after
the end of each Expense Recovery Period, Landlord shall furnish to Tenant a
statement showing in reasonable detail the actual or prorated Operating Expenses
incurred by Landlord during the period, and the parties shall within thirty
(30) days thereafter make any payment or allowance necessary to adjust Tenant’s
estimated payments, if any, to the actual Tenant’s Share as shown by the annual
statement.  Any delay or failure by
Landlord in delivering any statement hereunder shall not constitute a waiver of
Landlord’s right to require Tenant to pay Tenant’s Share of Operating Expenses
pursuant hereto.  Any amount due Tenant
shall be credited against installments next coming due under this Section 4.2,
and any deficiency shall be paid by Tenant together with the next
installment.  If Tenant has not made
estimated payments during the Expense Recovery Period, any amount owing by
Tenant pursuant to subsection (a) above shall be paid to Landlord in
accordance with Article XVI.  Should
Tenant fail to object in writing to Landlord’s determination of actual
Operating Expenses within sixty (60) days following delivery of Landlord’s
expense statement, Landlord’s determination of actual Operating Expenses for
the applicable Expense Recovery Period shall be conclusive and binding on the
parties and any future claims to the contrary shall be barred.


 


(d)         Even though the Lease has terminated and the
Tenant has vacated the Premises, when the final determination is made of Tenant’s
Share of Operating Expenses for the Expense Recovery Period in which the Lease
terminates, Tenant shall upon notice pay the entire increase due over the
estimated expenses paid.  Conversely, any
overpayment made in the event expenses decrease shall be rebated by Landlord to
Tenant.


 


(e)          If, at any time during any Expense Recovery
Period, any one or more of the Operating Expenses are increased to a rate(s) or
amount(s) in excess of the rate(s) or amount(s) used in calculating the
estimated expenses for the year, then the estimate of Tenant’s Share of
Operating Expenses shall be increased for the month in which such rate(s) or
amount(s) becomes effective and for all succeeding months by an amount equal to
Tenant’s Share of the increase.  Landlord
shall give Tenant written notice of the amount or estimated amount of the
increase, the month in which the increase will become effective, Tenant’s Share
thereof and the month for which the payments are due.  Tenant shall pay the increase to Landlord as
a part of Tenant’s monthly payments of estimated expenses as provided in
paragraph (b) above, commencing with the month in which effective.


 


(f)          The term “Operating Expenses” shall mean and
include all “Project Costs” (as hereafter defined) and “Property Taxes” (as
hereafter defined).


 


(g)         The term “Project Costs” shall include all
expenses of operation and maintenance of the Building and the Project, together
with all appurtenant Common Areas (as defined in Section 6.2), and shall
include the following charges by way of illustration but not limitation:  water and sewer charges; insurance premiums
or reasonable premium equivalents should Landlord elect to self-insure any risk
that Landlord is authorized to insure hereunder; license, permit, and
inspection fees; heat; light; power; janitorial services to any interior Common
Areas; air conditioning; supplies; materials; equipment; tools; the cost of any
environmental, insurance, tax or other consultant utilized by Landlord in
connection with the Building and/or Project; establishment of reasonable
reserves for replacements and/or repair of the Building and/or Common Area
improvements, equipment and supplies; costs incurred in connection with
compliance of any laws or changes in laws applicable to the Building or the
Project; the cost of any capital investments (other than tenant improvements
for specific tenants) to the extent of the amortized amount thereof over the
useful life of such capital investments calculated at a market cost of funds,
all as determined by Landlord, for each such year of useful life during the
Term; costs associated with the procurement and maintenance of an air
conditioning, heating and ventilation service agreement, and procurement and
maintenance of an intrabuilding network cable service agreement for any
intrabuilding network cable telecommunications lines within the Project, and
any other installation, maintenance, repair and replacement costs associated
with such lines; labor; reasonably allocated wages and salaries, fringe
benefits, and payroll taxes for administrative and other personnel directly
applicable to the Building and/or Project, including both Landlord’s personnel
and outside personnel; any expense incurred pursuant to Sections 6.1, 6.2, 6.4,
7.2, and 10.2; and a reasonable overhead/management fee for the professional
operation of the Project. 
Notwithstanding anything to the contrary herein, Tenant’s Share of any
such property management fees shall be determined by multiplying the actual
property management fee charged (which from time to time may be with respect to
the Building only, a portion of the Project only, the entire Project, or the
Project together with other properties owned by Landlord and/or its affiliates)
by a fraction, the numerator of which is the floor area of the Premises (as set
forth in Item 8 of the Basic Lease Provisions contained in the Lease), and the
denominator of which is the total square footage of space charged with such
management fee actually leased to tenants (including Tenant).  It is understood that Project Costs shall
include reasonably competitive charges for direct services provided by any
subsidiary or division of Landlord.


 





















 


(h)         The term “Property Taxes” as used herein
shall include the following:  (i) all
real estate taxes or personal property taxes, as such property taxes may be
reassessed from time to time; and (ii) other taxes, charges and
assessments which are levied with respect to this Lease or to the Building
and/or the Project, and any improvements, fixtures and equipment and other
property of Landlord located in the Building and/or the Project, except that
general net income and franchise taxes imposed against Landlord shall be
excluded; and (iii) all assessments and fees for public improvements,
services, and facilities and impacts thereon, including, without limitation,
arising out of any Community Facilities Districts, “Mello Roos” districts,
similar assessment districts, and any traffic impact mitigation assessments or
fees; (iv) any tax, surcharge or assessment which shall be levied in
addition to or in lieu of real estate or personal property taxes, other than
taxes covered by Article VIII; and (v) costs and expenses incurred in
contesting the amount or validity of any Property Tax by appropriate
proceedings.


 


SECTION 4.3. 
SECURITY DEPOSIT.  As of the execution of this Lease, Landlord
currently holds the sum of One Hundred Thirty Thousand and Fifty-Two Dollars
($130,052.00) as the “Security Deposit” under the Tenant’s Sublease.  Provided Tenant is not then in default of its
obligations under this Lease, Landlord shall credit the sum of Thirty-Nine
Thousand Six Hundred-Fifty Dollars ($39,650.00) of said “Security Deposit”
under the Tenant’s Sublease against Basic Rent due and payable for each of the
months of March and April, 2005, and shall credit the sum of Seven
Thousand, One Hundred Thirty-Seven Dollars ($7,137.00) against Basic Rent due
and payable for the month of May, 2005. 
Following said credits, Landlord shall continue to hold the remaining
sum stated in Item 9 of the Basic Lease Provisions as security for the full and
faithful performance of Tenant’s obligations under this Lease (the “Security
Deposit”).  Subject to the last sentence
of this Section, the Security Deposit shall be understood and agreed to be the
property of Landlord upon Landlord’s receipt thereof, and may be utilized by
Landlord in its discretion towards the payment of all prepaid expenses by
Landlord for which Tenant would be required to reimburse Landlord under this
Lease, including, without limitation, brokerage commissions and Tenant
Improvement costs.  Upon any default by
Tenant, including specifically Tenant’s failure to pay rent or to abide by its
obligations under Sections 7.1 and 15.3 below, whether or not Landlord is
informed of or has knowledge of the default, the Security Deposit shall be
deemed to be automatically and immediately applied, without waiver of any
rights Landlord may have under this Lease or at law or in equity as a result of
the default, as a setoff for full or partial compensation for that
default.  If any portion of the Security
Deposit is applied after a default by Tenant, Tenant shall within five (5) days
after written demand by Landlord deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount.  Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. 
If Tenant fully performs its obligations under this Lease, the Security
Deposit shall be returned to Tenant (or, at Landlord’s option, to the last
assignee of Tenant’s interest in this Lease) after the expiration of the Term,
provided that Landlord may retain the Security Deposit to the extent and until
such time as all amounts due from Tenant in accordance with this Lease have
been determined and paid in full. 
Notwithstanding the foregoing, upon determination that the only
obligation of Tenant remaining after expiration of the Term or earlier
termination of this Lease is to pay any adjustment of Operating Expenses which
may result upon reconciliation of the Operating Expenses attributable to the
final Expense Recovery Period of the Lease Term, Landlord shall return to
Tenant the Security Deposit less an amount equal to the amount paid by Tenant
after reconciliation of the Operating Expenses for the immediately preceding
period, if any.  No return or retention
of all or any portion of the Security Deposit shall be deemed to relieve Tenant
of its obligations to pay any Operating Expenses which may be due for the final
Expense Recovery Period of the Lease Term.


 


ARTICLE V.  USES


 


SECTION 5.1.  USE.  Tenant shall use the Premises only for the
purposes stated in Item 3 of the Basic Lease Provisions, all in accordance with
applicable laws and restrictions and pursuant to approvals to be obtained by
Tenant from all relevant and required governmental agencies and
authorities.  The parties agree that any
contrary use shall be deemed to cause material and irreparable harm to Landlord
and shall entitle Landlord to injunctive relief in addition to any other
available remedy.  Tenant, at its
expense, shall procure, maintain and make available for Landlord’s inspection
throughout the Term after reasonable advance notice, all governmental
approvals, licenses and permits required for the proper and lawful conduct of
Tenant’s permitted use of the Premises. 
Tenant shall not do or permit anything to be done in or about the
Premises which will in any way interfere with the rights of other occupants of
the Building or the Project, or use or allow the Premises to be used for any
unlawful purpose, nor shall Tenant permit any nuisance or commit any waste in
the Premises or the Project.  Tenant
shall not perform any work or conduct any business whatsoever in the Project
other than inside the Premises.  Tenant
shall not do or permit to be done anything which will invalidate or increase
the cost of any insurance policy(ies) covering the Building, the Project and/or
their contents, and shall comply with all applicable insurance underwriters rules and
the requirements of the Pacific Fire Rating Bureau or any other organization
performing a similar function.  Tenant
shall comply at its expense with all present and future laws, ordinances,
restrictions, regulations, orders, rules and requirements of all
governmental authorities that pertain to Tenant or its use of the Premises,
including, without limitation, all federal and state occupational health and
safety requirements, whether or not Tenant’s compliance will necessitate
expenditures or interfere with its use and enjoyment of the Premises.  Tenant shall comply at its expense with all
present and future covenants, conditions, easements or restrictions now or
hereafter affecting or encumbering the Building and/or Project, and any
amendments or modifications thereto, including, without limitation, the payment
by Tenant of any periodic or special dues or assessments charged against the Premises
or Tenant which may be allocated to the Premises or Tenant in accordance with
the provisions thereof.  Tenant shall
promptly upon demand reimburse Landlord for any additional insurance premium
charged by reason of Tenant’s failure to comply with the provisions of this
Section, and shall indemnify Landlord from any liability and/or expense
resulting from Tenant’s noncompliance.


 


SECTION 5.2. 
SIGNS.   Provided Tenant continues to occupy the
entire Premises, Tenant shall have the non-exclusive right to one (1) exterior
building top sign on the Building for Tenant’s name and/or graphics, subject to
Landlord’s right of prior approval that such exterior signage is in compliance
with the Signage Criteria (defined below).


 





















 


Except
as provided in the foregoing or as otherwise approved in writing by Landlord,
in its sole discretion, Tenant shall have no right to maintain identification
signs in any location on or about the Premises, the Building or the Project
(except for signs wholly within the interior of the Premises) and shall not
place or erect any signs, displays or other advertising materials within the
Premises that are visible from the exterior of the Building.  The size, design, graphics, material, style,
color and other physical aspects of any permitted sign shall be subject to
Landlord’s written approval prior to installation (which approval may be
withheld in Landlord’s discretion), any covenants, conditions or restrictions
encumbering the Premises, Landlord’s signage program for the Project, as in
effect from time to time and approved by the City in which the Premises are
located (“Signage Criteria”), and any applicable municipal or other
governmental permits and approvals. 
Tenant acknowledges having received and reviewed a copy of the current
Signage Criteria for the Project.  Tenant
shall be responsible for the cost of any permitted sign, including the
fabrication, installation, maintenance and removal thereof.  If Tenant fails to maintain its sign, or if
Tenant fails to remove same upon termination of this Lease and repair any
damage caused by such removal, Landlord may do so at Tenant’s expense.


 


SECTION 5.3. 
HAZARDOUS MATERIALS.


 


(a)          For purposes of this Lease, the term “Hazardous
Materials” includes (i) any “hazardous materials” as defined in Section 25501(o)
of the California Health and Safety Code, (ii) any other substance or
matter which results in liability to any person or entity from exposure to such
substance or matter under any statutory or common law theory, and (iii) any
substance or matter which is in excess of permitted levels set forth in any
federal, California or local law or regulation pertaining to any hazardous or
toxic substance, material or waste.


 


(b)         Tenant shall not cause or permit any
Hazardous Materials to be brought upon, stored, used, generated, released or disposed
of on, under, from or about the Premises (including, without limitation, the
soil and groundwater thereunder) without the prior written consent of
Landlord.  Notwithstanding the foregoing,
Tenant shall have the right, without obtaining prior written consent of
Landlord, to utilize within the Premises standard office products that may
contain Hazardous Materials (such as photocopy toner, “White Out”, and the
like), provided  however, that (i) Tenant shall maintain such
products in their original retail packaging, shall follow all instructions on
such packaging with respect to the storage, use and disposal of such products,
and shall otherwise comply with all applicable laws with respect to such
products, and (ii) all of the other terms and provisions of this Section 5.3
shall apply with respect to Tenant’s storage, use and disposal of all such
products.  Landlord may, in its sole
discretion, place such conditions as Landlord deems appropriate with respect to
any such Hazardous Materials, and may further require that Tenant demonstrate
that any such Hazardous Materials are necessary or useful to Tenant’s business
and will be generated, stored, used and disposed of in a manner that complies
with all applicable laws and regulations pertaining thereto and with good
business practices.  Tenant understands
that Landlord may utilize an environmental consultant to assist in determining
conditions of approval in connection with the storage, generation, release,
disposal or use of Hazardous Materials by Tenant on or about the Premises,
and/or to conduct periodic inspections of the storage, generation, use, release
and/or disposal of such Hazardous Materials by Tenant on and from the Premises,
and Tenant agrees that the reasonable costs incurred by Landlord in connection
therewith shall be reimbursed by Tenant to Landlord as additional rent
hereunder upon written demand.


 


(c)          Prior to the execution of this Lease, Tenant
shall complete, execute and deliver to Landlord an Environmental Questionnaire
and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B
attached hereto.  The completed
Environmental Questionnaire shall be deemed incorporated into this Lease for
all purposes, and Landlord shall be entitled to rely fully on the information
contained therein.  On each anniversary
of the Commencement Date until the expiration or sooner termination of this
Lease, Tenant shall disclose to Landlord in writing the names and amounts of
all Hazardous Materials which were stored, generated, used, released and/or
disposed of on, under or about the Premises for the twelve-month period prior
thereto, and which Tenant desires to store, generate, use, release and/or
dispose of on, under or about the Premises for the succeeding twelve-month
period.  In addition, to the extent
Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant
shall promptly provide Landlord with complete and legible copies of all the
following environmental documents relating thereto:  reports filed pursuant to any self-reporting
requirements; permit applications, permits, monitoring reports, workplace
exposure and community exposure warnings or notices and all other reports,
disclosures, plans or documents (even those which may be characterized as
confidential) relating to water discharges, air pollution, waste generation or
disposal, and underground storage tanks for Hazardous Materials; orders,
reports, notices, listings and correspondence (even those which may be
considered confidential) of or concerning the release, investigation of,
compliance, cleanup, remedial and corrective actions, and abatement of
Hazardous Materials; and all complaints, pleadings and other legal documents
filed by or against Tenant related to Tenant’s use, handling, storage, release
and/or disposal of Hazardous Materials.


 


(d)         Landlord and its agents shall have the right,
but not the obligation, to inspect, sample and/or monitor the Premises and/or
the soil or groundwater thereunder at any time to determine whether Tenant is
complying with the terms of this Section 5.3, and in connection therewith
Tenant shall provide Landlord with full access to all relevant facilities,
records and personnel.  If Tenant is not
in compliance with any of the provisions of this Section 5.3, or in the
event of a release of any Hazardous Material on, under or about the Premises
caused or permitted by Tenant, its agents, employees, contractors, licensees or
invitees, Landlord and its agents shall have the right, but not the obligation,
without limitation upon any of Landlord’s other rights and remedies under this
Lease, to immediately enter upon the Premises without notice and to discharge
Tenant’s obligations under this Section 5.3 at Tenant’s expense,
including, without limitation, the taking of emergency or long-term remedial
action.  Landlord and its agents shall
endeavor to minimize interference with Tenant’s business in connection
therewith, but shall not be liable for any such interference.  In addition, Landlord, at Tenant’s expense,
shall have the right, but not the obligation, to join and participate in any
legal proceedings or actions initiated in connection with any claims arising
out of the storage, generation, use, release and/or disposal by Tenant or its
agents, employees, contractors, licensees or invitees of Hazardous Materials
on, under, from or about the Premises.


 





















 


(e)          If the presence of any Hazardous Materials
on, under, from or about the Premises or the Project caused or permitted by
Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury
to any person, (ii) injury to or any contamination of the Premises or the
Project, or (iii) injury to or contamination of any real or personal
property wherever situated, Tenant, at its expense, shall promptly take all
actions necessary to return the Premises and the Project and any other affected
real or personal property owned by Landlord to the condition existing prior to
the introduction of such Hazardous Materials and to remedy or repair any such
injury or contamination, including, without limitation, any cleanup,
remediation, removal, disposal, neutralization or other treatment of any such
Hazardous Materials.  Notwithstanding the
foregoing, Tenant shall not, without Landlord’s prior written consent, take any
remedial action in response to the presence of any Hazardous Materials on,
under or about the Premises or the Project or any other affected real or
personal property owned by Landlord or enter into any similar agreement,
consent, decree or other compromise with any governmental agency with respect
to any Hazardous Materials claims; provided however, Landlord’s prior written
consent shall not be necessary in the event that the presence of Hazardous
Materials on, under or about the Premises or the Project or any other affected
real or personal property owned by Landlord (i) imposes an immediate
threat to the health, safety or welfare of any individual or (ii) is of
such a nature that an immediate remedial response is necessary and it is not
possible to obtain Landlord’s consent before taking such action.  To the fullest extent permitted by law,
Tenant shall indemnify, hold harmless, protect and defend (with attorneys
acceptable to Landlord) Landlord and any successors to all or any portion of
Landlord’s interest in the Premises and the Project and any other real or
personal property owned by Landlord from and against any and all liabilities,
losses, damages, diminution in value, judgments, fines, demands, claims,
recoveries, deficiencies, costs and expenses (including, without limitation,
reasonable attorneys’ fees, court costs and other professional expenses),
whether foreseeable or unforeseeable, arising directly or indirectly out of the
use, generation, storage, treatment, release, on- or off-site disposal or
transportation of Hazardous Materials on, into, from, under or about the
Premises, the Building and the Project and any other real or personal property
owned by Landlord caused or permitted by Tenant, its agents, employees,
contractors, licensees or invitees, specifically including, without limitation,
the cost of any required or necessary repair, restoration, cleanup or
detoxification of the Premises, the Building and the Project and any other real
or personal property owned by Landlord, and the preparation of any closure or
other required plans, whether or not such action is required or necessary
during the Term or after the expiration of this Lease.  If Landlord at any time discovers that Tenant
or its agents, employees, contractors, licensees or invitees may have caused or
permitted the release of a Hazardous Material on, under, from or about the
Premises or the Project or any other real or personal property owned by
Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit
to Landlord a comprehensive plan, subject to Landlord’s approval, specifying
the actions to be taken by Tenant to return the Premises or the Project or any
other real or personal property owned by Landlord to the condition existing
prior to the introduction of such Hazardous Materials.  Upon Landlord’s approval of such cleanup
plan, Tenant shall, at its expense, and without limitation of any rights and
remedies of Landlord under this Lease or at law or in equity, immediately
implement such plan and proceed to cleanup such Hazardous Materials in
accordance with all applicable laws and as required by such plan and this
Lease.  The provisions of this subsection (e) shall
expressly survive the expiration or sooner termination of this Lease.


 


(f)          Landlord hereby discloses to Tenant, and Tenant
hereby acknowledges, certain facts relating to Hazardous Materials at the
Project known by Landlord to exist as of the date of this Lease, as more
particularly described in Exhibit C attached hereto.  Tenant shall have no liability or
responsibility with respect to the Hazardous Materials facts described in Exhibit C,
nor with respect to any Hazardous Materials which Tenant proves were not caused
or permitted by Tenant, its agents, employees, contractors, licensees or
invitees.  Notwithstanding the preceding
two sentences, Tenant agrees to notify its agents, employees, contractors,
licensees, and invitees of any exposure or potential exposure to Hazardous
Materials at the Premises that Landlord brings to Tenant’s attention.


 


ARTICLE VI.  COMMON AREAS; SERVICES


 


SECTION 6.1. 
UTILITIES AND SERVICES.  Tenant shall be responsible for
and shall pay promptly, directly to the appropriate supplier, all charges for
water, gas, electricity, sewer, heat, light, power, telephone, refuse pickup,
janitorial service, interior landscape maintenance and all other utilities,
materials and services furnished directly to Tenant or the Premises or used by
Tenant in, on or about the Premises during the Term, together with any taxes
thereon.  If any utilities or services
are not separately metered or assessed to Tenant, Landlord shall make a
reasonable determination of Tenant’s proportionate share of the cost of such
utilities and services and Tenant shall pay such amount to Landlord, as an item
of additional rent, within ten (10) days after receipt of Landlord’s
statement or invoice therefor. 
Alternatively, Landlord may elect to include such cost in the definition
of Building Costs in which event Tenant shall pay Tenant’s proportionate share
of such costs in the manner set forth in Section 4.2.  Landlord shall not be liable for damages or
otherwise for any failure or interruption of any utility or other service
furnished to the Premises, and no such failure or interruption shall be deemed
an eviction or entitle Tenant to terminate this Lease or withhold or abate any
rent due hereunder.  Landlord shall at
all reasonable times have free access to all electrical and mechanical
installations of Landlord.  Tenant
shall also pay to Landlord as an item of additional rent, within ten (10) days
after receipt of Landlord’s statement or invoice therefor, a reasonable charge
(which shall be in addition to the electricity charge paid to the utility
provider) for Tenant’s “after hours” usage of each HVAC unit servicing the
Premises.  “After hours” shall mean more
than two hundred eighty-three (283) hours of usage during any month during the
Term.  “After hours” usage shall be
determined based upon the operation of the applicable HVAC unit during each
month on a “non-cumulative” basis (that is, without regard to Tenant’s usage or
nonusage of other unit(s) serving the Premises, or of the applicable unit
during other months of the Term).


 


Notwithstanding
the foregoing, if as a result of the actions of Landlord, its agents,
contractors or employees or the inactions of Landlord if Landlord is required
to act under this Lease, for more than three (3) consecutive business days
following written notice to Landlord there is no HVAC service or electricity
service to all or a portion of the Premises, or such an interruption of other
essential utilities and building services, such as fire protection or water, so
that all or a portion of the Premises cannot be used by Tenant, then Tenant’s
obligation to pay Basic Rent and Operating Expenses (or an equitable portion of
such Basic Rent and Operating Expenses to the extent that less than all of the
Premises are


 





















 


affected)
shall thereafter be abated until the Premises are again useable by Tenant;
provided, however, that if Landlord is diligently pursuing the repair of such
utilities or services and Landlord provides substitute services reasonably
suitable for Tenant’s purposes, as for example, bringing in portable
air-conditioning equipment, then there shall not be an abatement of Basic Rent
or Operating Expenses.  Any disputes
concerning the foregoing shall be resolved by JAMS arbitration pursuant to Section 22.7
of this Lease.  The foregoing provisions
shall not apply in case of damage to, or destruction of, the Premises, which
shall be governed by the provisions of Article XI of the Lease.


 


SECTION 6.2. 
OPERATION AND MAINTENANCE OF COMMON AREAS. 
During the Term, Landlord shall operate all Common Areas within the
Building and the Project.  The term “Common
Areas” shall mean all areas within the exterior boundaries of the Building and
other buildings in the Project which are not held for exclusive use by persons
entitled to occupy space, and all other appurtenant areas and improvements
provided by Landlord for the common use of Landlord and tenants and their respective
employees and invitees, including, without limitation, parking areas and
structures, driveways, sidewalks, landscaped and planted areas, hallways and
interior stairwells not located within the premises of any tenant, common
electrical rooms and roof access entries, common entrances and lobbies,
elevators, and restrooms not located within the premises of any tenant.


 


SECTION 6.3. 
USE OF COMMON AREAS.  The occupancy by Tenant of the Premises shall
include the use of the Common Areas in common with Landlord and with all others
for whose convenience and use the Common Areas may be provided by Landlord,
subject, however, to compliance with all rules and regulations as are
prescribed from time to time by Landlord. 
Landlord shall operate and maintain the Common Areas in a manner
consistent with the operation of comparable properties in the vicinity of the
Project and otherwise as Landlord may determine to be appropriate.  All costs incurred by Landlord for the
maintenance and operation of the Common Areas shall be included in Project
Costs unless any particular cost incurred can be charged to a specific tenant
of the Project.  Landlord shall at all
times during the Term have exclusive control of the Common Areas, and may
restrain any use or occupancy, except as authorized by Landlord’s rules and
regulations.  Tenant shall keep the
Common Areas clear of any obstruction or unauthorized use related to Tenant’s
operations.  Nothing in this Lease shall
be deemed to impose liability upon Landlord for any damage to or loss of the
property of, or for any injury to, Tenant, its invitees or employees.  Landlord may temporarily close any portion of
the Common Areas for repairs, remodeling and/or alterations, to prevent a
public dedication or the accrual of prescriptive rights, or for any other
reason deemed sufficient by Landlord, without liability to Landlord.


 


SECTION 6.4. 
PARKING.  Tenant shall be entitled to the number of
vehicle parking spaces set forth in Item 14 of the Basic Lease Provisions,
which spaces shall be unreserved and unassigned on those portions of the Common
Areas designated by Landlord for parking. 
Tenant shall not use more parking spaces than such number.  All parking spaces shall be used only for
parking by vehicles no larger than full size passenger automobiles or pickup
trucks.  Tenant shall not permit or allow
any vehicles that belong to or are controlled by Tenant or Tenant’s employees,
suppliers, shippers, customers or invitees to be loaded, unloaded or parked in
areas other than those designated by Landlord for such activities.  If Tenant permits or allows any of the
prohibited activities described above, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that Landlord may
have, to remove or tow away the vehicle involved and charge the costs to
Tenant.  Parking within the Common Areas
shall be limited to striped parking stalls, and no parking shall be permitted
in any driveways, access ways or in any area which would prohibit or impede the
free flow of traffic within the Common Areas. 
Except as required to accommodate Tenant’s employees who are working on
the Premises overnight or traveling, there shall be no overnight parking of any
vehicles of any kind unless otherwise authorized by Landlord, and vehicles
which have been abandoned or parked in violation of the terms hereof may be
towed away at the owner’s expense. 
Nothing contained in this Lease shall be deemed to create liability upon
Landlord for any damage to motor vehicles of visitors or employees, for any
loss of property from within those motor vehicles, or for any injury to Tenant,
its visitors or employees, unless ultimately determined to be caused by the
sole active negligence or willful misconduct of Landlord.  Landlord shall have the right to establish,
and from time to time amend, and to enforce against all users all reasonable rules and
regulations (including the designation of areas for employee parking) that
Landlord may deem necessary and advisable for the proper and efficient operation
and maintenance of parking within the Common Areas.  Landlord shall have the right to construct,
maintain and operate lighting facilities within the parking areas; to change
the area, level, location and arrangement of the parking areas and improvements
therein; to restrict parking by tenants, their officers, agents and employees
to employee parking areas; to enforce parking charges (by operation of meters
or otherwise); and to do and perform such other acts in and to the parking
areas and improvements therein as, in the use of good business judgment,
Landlord shall determine to be advisable. 
Any person using the parking area shall observe all directional signs
and arrows and any posted speed limits. 
In no event shall Tenant interfere with the use and enjoyment of the
parking area by other tenants of the Building or their employees or
invitees.  Parking areas shall be used
only for parking vehicles.  Washing,
waxing, cleaning or servicing of vehicles, or the storage of vehicles for 24-hour
periods, is prohibited unless otherwise authorized by Landlord.  Tenant shall be liable for any damage to the
parking areas caused by Tenant or Tenant’s employees, suppliers, shippers,
customers or invitees, including, without limitation, damage from excess oil
leakage.  Tenant shall have no right to
install any fixtures, equipment or personal property in the parking areas.


 


SECTION 6.5. 
CHANGES AND ADDITIONS BY LANDLORD. 
Landlord reserves the right to make alterations or additions to the
Building or the Project, or to the attendant fixtures, equipment and Common
Areas.  Landlord may at any time relocate
or remove any of the various buildings, parking areas, and other Common Areas,
and may add buildings and areas to the Project from time to time.  No change shall entitle Tenant to any
abatement of rent or other claim against Landlord, provided that the change
does not deprive Tenant of reasonable access to or use of the Premises.


 





















 


ARTICLE VII.  MAINTAINING THE PREMISES


 


SECTION 7.1. 
TENANT’S MAINTENANCE AND REPAIR.  Tenant
at its sole expense shall comply with all applicable laws and governmental
regulations governing the Premises and make all repairs necessary to keep the
Premises in the condition as existed on the Commencement Date (or on any later
date that the improvements may have been installed), excepting ordinary wear
and tear, including, without limitation, the electrical and mechanical systems,
all interior glass, windows, doors, door closures, hardware, fixtures,
electrical, plumbing, fire extinguisher equipment and other equipment.  Any damage or deterioration of the Premises
shall not be deemed ordinary wear and tear if the same could have been
prevented by good maintenance practices by Tenant.  As part of its maintenance obligations
hereunder, Tenant shall, at Landlord’s request, provide Landlord with copies of
all maintenance schedules, reports and notices prepared by, for or on behalf of
Tenant.  All repairs shall be at least
equal in quality to the original work, shall be made only by a licensed
contractor approved in writing in advance by Landlord (which approval shall not
be unreasonably withheld) and shall be made only at the time or times approved
by Landlord.  Any contractor utilized by
Tenant shall be subject to Landlord’s standard requirements for contractors, as
modified from time to time.  Landlord may
impose reasonable restrictions and requirements with respect to repairs, as
provided in Section 7.3, and the provisions of Section 7.4 shall
apply to all repairs.  Alternatively,
Landlord may elect to make any such repair on behalf of Tenant and at Tenant’s
expense, and Tenant shall promptly reimburse Landlord for all costs incurred
upon submission of an invoice.


 


SECTION 7.2. 
LANDLORD’S MAINTENANCE AND REPAIR. 
Subject to Section 7.1 and Article XI, Landlord shall provide
service, maintenance and repair with respect to the roof, foundations, and
footings of the Building, all landscaping, walkways, parking areas, Common
Areas, exterior lighting, the air conditioning, ventilating or heating equipment
servicing the Premises (except for any supplemental HVAC equipment, if any,
installed by Tenant), and the exterior surfaces of the exterior walls of the
Building (including exterior glass), except that Tenant at its expense shall
make all repairs which Landlord deems reasonably necessary as a result of the
act or negligence of Tenant, its agents, employees, invitees, subtenants or
contractors.  Landlord shall have the
right to employ or designate any reputable person or firm, including any
employee or agent of Landlord or any of Landlord’s affiliates or divisions, to
perform any service, repair or maintenance function.  Landlord need not make any other improvements
or repairs except as specifically required under this Lease, and nothing
contained in this Section shall limit Landlord’s right to reimbursement
from Tenant for maintenance, repair costs and replacement costs as provided
elsewhere in this Lease.  Tenant
understands that it shall not make repairs at Landlord’s expense or by rental
offset.  Tenant further understands that
Landlord shall not be required to make any repairs to the roof, foundations,
footings, structural, electrical or mechanical systems unless and until Tenant
has notified Landlord in writing of the need for such repair and Landlord shall
have a reasonable period of time thereafter (not to exceed sixty (60) days) to
commence and thereafter diligently complete said repair, if warranted.  All costs of any maintenance and repairs on
the part of Landlord provided hereunder shall be considered part of Project
Costs.


 


SECTION 7.3. 
ALTERATIONS.  Tenant shall make no alterations, additions
or improvements to the Premises without the prior written consent of Landlord,
which consent may be given or withheld in Landlord’s sole discretion.  Notwithstanding the foregoing, Landlord shall
not unreasonably withhold its consent to any alterations, additions or
improvements to the Premises which cost less than One Dollar ($1.00) per square
foot of the improved portions of the Premises (excluding warehouse square
footage) and do not (i) affect the exterior of the Building or outside
areas (or be visible from adjoining sites), or (ii) affect or penetrate
any of the structural portions of the Building, including, but not limited to,
the roof, or (iii) require any change to the basic floor plan of the
Premises, any change to any structural or mechanical systems of the Premises,
or any governmental permit as a prerequisite to the construction thereof, or (iv) interfere
in any manner with the proper functioning of or Landlord’s access to any
mechanical, electrical, plumbing or HVAC systems, facilities or equipment
located in or serving the Building, or (v) diminish the value of the
Premises.  Landlord may impose, as a
condition to its consent, any requirements that Landlord in its discretion may
deem reasonable or desirable, including, but not limited to, a requirement that
all work be covered by a lien and completion bond satisfactory to Landlord and
requirements as to the manner, time, and contractor for performance of the
work.  Tenant shall obtain all required
permits for the work and shall perform the work in compliance with all
applicable laws, regulations and ordinances, all covenants, conditions and
restrictions affecting the Project, and the Rules and Regulations
(hereafter defined).  Tenant understands
and agrees that Landlord shall be entitled to a supervision fee in the amount
of five percent (5%) of the cost of work which requires a government permit. If
any governmental entity requires, as a condition to any proposed alterations,
additions or improvements to the Premises by Tenant, that improvements be made
to the Common Areas, and if Landlord consents to such improvements to the
Common Areas, then Tenant shall, at Tenant’s sole expense, make such required
improvements to the Common Areas in such manner, utilizing such materials, and
with such contractors (including, if required by Landlord, Landlord’s
contractors) as Landlord may require in its sole discretion.  Under no circumstances shall Tenant make any
improvement which incorporates any Hazardous Materials, including, without
limitation, asbestos-containing construction materials into the Premises.  Any request for Landlord’s consent shall be
made in writing and shall contain architectural plans describing the work in
detail reasonably satisfactory to Landlord. 
Unless Landlord otherwise agrees in writing, all alterations, additions
or improvements affixed to the Premises (excluding moveable trade fixtures and
furniture) shall become the property of Landlord and shall be surrendered with
the Premises at the end of the Term, except that Landlord may, by notice to
Tenant, require Tenant to remove by the Expiration Date, or sooner termination
date of this Lease, all or any alterations, decorations, fixtures, additions,
improvements and the like installed either by Tenant or by Landlord at Tenant’s
request and to repair any damage to the Premises arising from that
removal.  Except as otherwise provided in
this Lease or in any Exhibit to this Lease, should Landlord make any
alteration or improvement to the Premises for Tenant, Landlord shall be
entitled to prompt reimbursement from Tenant for all costs incurred.


 


SECTION 7.4. 
MECHANIC’S LIENS.  Tenant shall keep the Premises free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant.  Upon request
by Landlord, Tenant shall promptly cause any such lien to be released by
posting a bond in accordance with California Civil Code Section 3143 or any
successor statute.  In the event that
Tenant shall not, within thirty (30) days following the imposition of any lien,


 





















 


cause
the lien to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other available remedies, the right to
cause the lien to be released by any means it deems proper, including payment
of or defense against the claim giving rise to the lien.  All expenses so incurred by Landlord,
including Landlord’s attorneys’ fees, and any consequential or other damages
incurred by Landlord arising out of such lien, shall be reimbursed by Tenant
promptly following Landlord’s demand, together with interest from the date of
payment by Landlord at the maximum rate permitted by law until paid.  Tenant shall give Landlord no less than
twenty (20) days’ prior notice in writing before commencing construction of any
kind on the Premises so that Landlord may post and maintain notices of
nonresponsibility on the Premises.


 


SECTION 7.5. ENTRY AND INSPECTION. 
Landlord shall at all reasonable times (subject to Tenant’s reasonable
security procedures), upon reasonable advance written or oral notice of not
less than twenty-four (24) hours (except in emergencies, when no notice shall
be required) have the right to enter the Premises to inspect them, to supply
services in accordance with this Lease, to protect the interests of Landlord in
the Premises, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease.  Landlord shall have the right, if desired, to
retain a key which unlocks all of the doors in the Premises, excluding Tenant’s
vaults, safes, or other areas reasonably designated by Tenant as secure areas
and Landlord shall have the right to use any and all means which Landlord may
deem proper to open the doors in an emergency in order to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord shall not under
any circumstances be deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or any eviction of Tenant from the Premises.


 


SECTION 7.6. 
COMMUNICATIONS EQUIPMENT.  Landlord hereby grants to
Tenant a non-exclusive license (the “License”) to install, maintain and operate
on the roof of the Building a single satellite antenna dish (the “Antenna”) in
accordance with and subject to the terms and conditions set forth below.  The Antenna shall be installed at a location
designated by Landlord and reasonably acceptable to Tenant (“Licensed Area”).  The Licensed Area shall be considered to be a
part of the Premises for all purposes under the Lease, and except as otherwise
expressly provided in this Section, all provisions applicable to the use of the
Premises under the Lease shall apply to the Licensed Area and its use by
Tenant.


 


(1)          The Term of the License shall be coterminous
with this Lease;


 


(2)          Tenant shall not be obligated to pay any
license fee for the use of the Licensed Area pursuant to this Section during
the Term of this Lease.


 


(3)          Tenant shall use the Licensed Area only for
the installation, operation, repair, replacement and maintenance of the Antenna
and the necessary mechanical and electrical equipment to service said Antenna
and for no other use or purpose.  The
installation of the Antenna and all equipment and facilities related thereto,
including any required conduit from the Premises to the Antenna, shall be
deemed to constitute an alteration subject to the provisions of Section 7.3
of the Lease, provided that Landlord shall not unreasonably withhold its
approval of the same.  Landlord may
require appropriate screening for the Antenna as a condition of Landlord’s
approval of the installation of the Antenna. 
Tenant may have access to the Licensed Area for such uses during normal
business hours and at times upon reasonably prior notice to Landlord and shall
reimburse Landlord for any reasonable out-of-pocket expenses incurred by
Landlord in connection therewith;


 


(4)          The Antenna shall be used only for
transmitting and/or receiving data, audio and/or video signals to and from
Tenant’s facilities within the Premises for Tenant’s use, and shall not be used
or permitted to be used by Tenant for purposes of broadcasting signals to the
public or to provide telecommunications or other communications transmitting or
receiving services to any third parties;


 


(5)          Landlord reserves the right upon reasonable
prior written notice to Tenant to require either (a) the relocation of all
equipment installed by Tenant to another location on the roof of the Building
reasonably designated by Landlord, or (b) the removal of any and all of
such equipment should Landlord reasonably determine that its presence results
in material damage to the Building unless Tenant makes satisfactory
arrangements to protect Landlord therefrom;


 


(6)          Tenant shall require its employees, when
using the Licensed Area, to stay within the immediate vicinity thereof.  In addition, in the event any communications
system or broadcast or receiving facilities are operating in the area, Tenant
shall at all times during the term of the License conduct its operations so as
to ensure that such system or facilities shall not be subjected to harmful
interference as a result of such operations by Tenant.  Upon notification from Landlord of any such
interference, Tenant agrees to immediately take the necessary steps to correct
such situation, and Tenant’s failure to do so shall be deemed a default under
the terms of this Lease.


 


(7)          During the term of the License, Tenant shall
comply with any standards promulgated by applicable governmental authorities or
otherwise reasonably established by Landlord regarding the generation of
electromagnetic fields.  Should Landlord
determine in good faith at any time that the Antenna poses a health or safety
hazard to occupants of the Building, Landlord may require Tenant to make
arrangements satisfactory to Landlord to mitigate such hazard or, if Tenant
either fails or is unable to make such satisfactory arrangements, to remove the
Antenna.  Any claim or liability resulting
from the use of the Antenna or the Licensed Area shall be subject to the
indemnification provisions of this Lease applicable to Tenant’s use of the
Premises;


 


(8)          During the term of the License, Tenant shall
pay all taxes attributable to the Antenna and other equipment owned and
installed by Tenant, and Tenant shall assure and provide Landlord with evidence
that the Licensed Area and 


 





















 


Tenant’s
use thereof are subject to the insurance coverages otherwise required to be
maintained by Tenant as to the Premises pursuant to Exhibit D;


 


(9)          Upon the expiration or sooner termination of
the Lease, Tenant shall remove the Antenna and all related equipment and
facilities, including any conduit from the Premises to the Antenna, from the
Licensed Area and any other portions of the Building within or upon which the
same may be installed, and shall restore the Licensed Area and all other areas
affected by such removal to their original condition, reasonable wear and tear
excepted, all at its sole cost and expense; and


 


(10)        The License is personal to Tenant and shall
not be assignable in whole or in part, and any attempted assignment thereof
without he consent of Landlord, which consent may be withheld by Landlord in
its sole and absolute discretion, shall immediately terminate the License.  Notwithstanding the foregoing, Landlord’s
consent shall not be required with respect to an assignment of the License made
in connection with an assignment of this Lease permitted to be made without
Landlord’s consent pursuant to Section 9.4 above.


 


ARTICLE VIII. 
TAXES AND ASSESSMENTS ON TENANT’S PROPERTY


 


Tenant
shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes and assessments levied against all personal property of
Tenant located in the Premises, against all improvements to the Premises made
by Landlord or Tenant which are above Landlord’s Project standard in quality
and/or quantity for comparable space within the Project (“Above Standard
Improvements”), and against any alterations, additions or like improvements
made to the Premises by or on behalf of Tenant. 
When possible Tenant shall cause its personal property, Above Standard
Improvements and alterations to be assessed and billed separately from the real
property of which the Premises form a part. 
If any taxes on Tenant’s personal property, Above Standard Improvements
and/or alterations are levied against Landlord or Landlord’s property and if
Landlord pays the same, or if the assessed value of Landlord’s property is
increased by the inclusion of a value placed upon the personal property, Above
Standard Improvements and/or alterations of Tenant and if Landlord pays the
taxes based upon the increased assessment, Tenant shall pay to Landlord the
taxes so levied against Landlord or the proportion of the taxes resulting from
the increase in the assessment.  In
calculating what portion of any tax bill which is assessed against Landlord
separately, or Landlord and Tenant jointly, is attributable to Tenant’s Above
Standard Improvements, alterations and personal property, Landlord’s reasonable
determination shall be conclusive.


 


ARTICLE IX. 
ASSIGNMENT AND SUBLETTING


 


SECTION 9.1. 
RIGHTS OF PARTIES.


 


(a)          Notwithstanding any provision of this Lease
to the contrary, Tenant will not, either voluntarily or by operation of law,
assign, sublet, encumber, or otherwise transfer all or any part of Tenant’s
interest in this lease, or permit the Premises to be occupied by anyone other
than Tenant, without Landlord’s prior written consent, which consent shall not
unreasonably be withheld in accordance with the provisions of Section 9.1(b).  No assignment (whether voluntary, involuntary
or by operation of law) and no subletting shall be valid or effective without
Landlord’s prior written consent and, at Landlord’s election, any such
assignment or subletting or attempted assignment or subletting without such
consent shall constitute a material default of this Lease.  Landlord shall not be deemed to have given
its consent to any assignment or subletting by any other course of action,
including its acceptance of any name for listing in the Building
directory.  To the extent not prohibited
by provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et  seq.,
(the “Bankruptcy Code”), including Section 365(f)(1), Tenant on behalf of
itself and its creditors, administrators and assigns waives the applicability
of Section 365(e) of the Bankruptcy Code unless the proposed assignee
of the Trustee for the estate of the bankrupt meets Landlord’s standard for
consent as set forth in Section 9.1(b) of this Lease.  If this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code, any and all monies or
other considerations to be delivered in connection with the assignment shall be
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code.  Any
person or entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed to have assumed all of the obligations arising
under this Lease on and after the date of the assignment, and shall upon demand
execute and deliver to Landlord an instrument confirming that assumption.


 


(b)         If Tenant desires to transfer an interest in
this Lease, it shall first notify Landlord of its desire and shall submit in
writing to Landlord:  (i) the name
and address of the proposed transferee; (ii) the nature of any proposed
subtenant’s or assignee’s business to be carried on in the Premises; (iii) the
terms and provisions of any proposed sublease or assignment, including a copy
of the proposed assignment or sublease form; (iv) evidence of insurance of
the proposed assignee or subtenant complying with the requirements of Exhibit D
hereto; (v) a completed Environmental Questionnaire from the proposed
assignee or subtenant; and (vi) any other information requested by
Landlord and reasonably related to the transfer.  Except as provided in Subsection (c) of
this Section, Landlord shall not unreasonably withhold its consent,
provided:  (1) the use of the
Premises will be consistent with the provisions of this Lease and with Landlord’s
commitment to other tenants of the Building and Project; (2) the proposed
assignee or subtenant has not been required by any prior landlord, lender or
governmental authority to take remedial action in connection with Hazardous
Materials contaminating a property arising out of the proposed assignee’s or
subtenant’s actions or use of the property in question and is not subject to
any enforcement order issued by any governmental authority in connection with
the use, disposal or storage of a Hazardous Material; (3) at Landlord’s
election, insurance requirements shall be brought into conformity with Landlord’s
then current leasing practice; (4) any proposed subtenant or assignee demonstrates
that it is financially


 





















 


responsible
by submission to Landlord of all reasonable information as Landlord may request
concerning the proposed subtenant or assignee, including, but not limited to, a
balance sheet of the proposed subtenant or assignee as of a date within ninety
(90) days of the request for Landlord’s consent, statements of income or profit
and loss of the proposed subtenant or assignee for the two-year period
preceding the request for Landlord’s consent, and/or a certification signed by
the proposed subtenant or assignee that it has not been evicted or been in
arrears in rent at any other leased premises for the 3-year period preceding
the request for Landlord’s consent; (5) the proposed assignee or subtenant
is not an existing tenant of the Building or Project or a prospect with whom
Landlord is negotiating to become a tenant at the Building or Project; and (6) the
proposed transfer will not impose additional burdens or adverse tax effects on
Landlord.  If Tenant has any exterior
sign rights under this Lease, such rights are personal to Tenant and may not be
assigned or transferred to any assignee of this Lease or subtenant of the
Premises without Landlord’s prior written consent, which may be withheld in
Landlord’s sole and absolute discretion.


 


If
Landlord consents to the proposed transfer, Tenant may within ninety (90) days
after the date of the consent effect the transfer upon the terms described in
the information furnished to Landlord; provided that any material change in the
terms shall be subject to Landlord’s consent as set forth in this Section.  Landlord shall approve or disapprove any
requested transfer within thirty (30) days following receipt of Tenant’s
written request, the information set forth above, and the fee set forth below.


 


(c)          Notwithstanding the provisions of Subsection (b) above,
in lieu of consenting to a proposed assignment or subletting, Landlord may
elect to (i) sublease the Premises (or the portion proposed to be
subleased), or take an assignment of Tenant’s interest in this Lease, upon the
same terms as offered to the proposed subtenant or assignee (excluding terms
relating to the purchase of personal property, the use of Tenant’s name or the
continuation of Tenant’s business), or (ii) terminate this Lease as to the
portion of the Premises proposed to be subleased or assigned with a
proportionate abatement in the rent payable under this Lease, effective on the
date that the proposed sublease or assignment would have become effective.  Landlord may thereafter, at its option,
assign or re-let any space so recaptured to any third party, including, without
limitation, the proposed transferee of Tenant.


 


(d)         Tenant agrees that fifty percent (50%) of any
amounts paid by the assignee or subtenant, however described, in excess of (i) the
Basic Rent payable by Tenant hereunder, or in the case of a sublease of a
portion of the Premises, in excess of the Basic Rent reasonably allocable to
such portion, plus (ii) Tenant’s direct out-of-pocket costs which Tenant
certifies to Landlord have been paid to provide occupancy related services to
such assignee or subtenant of a nature commonly provided by landlords of
similar space, shall be the property of Landlord and such amounts shall be
payable directly to Landlord by the assignee or subtenant or, at Landlord’s
option, by Tenant.  At Landlord’s
request, a written agreement shall be entered into by and among Tenant,
Landlord and the proposed assignee or subtenant confirming the requirements of
this subsection.


 


(e)          Tenant shall pay to Landlord a fee of Five
Hundred Dollars ($500.00) if and when any transfer hereunder is requested by
Tenant.  Such fee is hereby acknowledged
as a reasonable amount to reimburse Landlord for its costs of review and
evaluation of a proposed assignee/sublessee, and Landlord shall not be
obligated to commence such review and evaluation unless and until such fee is
paid.


 


SECTION 9.2. 
EFFECT OF TRANSFER.  No subletting or assignment,
even with the consent of Landlord, shall relieve Tenant of its obligation to
pay rent and to perform all its other obligations under this Lease.  Moreover, Tenant shall indemnify and hold
Landlord harmless, as provided in Section 10.3, for any act or omission by
an assignee or subtenant. Each assignee, other than Landlord, shall be deemed
to assume all obligations of Tenant under this Lease and shall be liable
jointly and severally with Tenant for the payment of all rent, and for the due
performance of all of Tenant’s obligations, under this Lease.  No transfer shall be binding on Landlord
unless any document memorializing the transfer is delivered to Landlord and
both the assignee/subtenant and Tenant deliver to Landlord an executed consent
to transfer instrument prepared by Landlord and consistent with the
requirements of this Article.  The
acceptance by Landlord of any payment due under this Lease from any other
person shall not be deemed to be a waiver by Landlord of any provision of this
Lease or to be a consent to any transfer.  Consent by Landlord to one or more transfers
shall not operate as a waiver or estoppel to the future enforcement by Landlord
of its rights under this Lease.


 


SECTION 9.3. 
SUBLEASE REQUIREMENTS.  The following terms and
conditions shall apply to any subletting by Tenant of all or any part of the
Premises and shall be deemed included in each sublease:


 


(a)          Each and every provision contained in this
Lease (other than with respect to the payment of rent hereunder) is
incorporated by reference into and made a part of such sublease, with “Landlord”
hereunder meaning the sublandlord therein and “Tenant” hereunder meaning the
subtenant therein.


 


(b)         Tenant hereby irrevocably assigns to Landlord
all of Tenant’s interest in all rentals and income arising from any sublease of
the Premises, and Landlord may collect such rent and income and apply same
toward Tenant’s obligations under this Lease; provided, however, that until a
default occurs in the performance of Tenant’s obligations under this Lease,
Tenant shall have the right to receive, collect and retain the sublease
rentals.  Landlord shall not, solely by
reason of this assignment or the collection of sublease rentals, be deemed
liable to the subtenant for the performance of any of Tenant’s obligations
under the sublease.  Tenant hereby
irrevocably authorizes and directs any subtenant, upon receipt of a written
notice from Landlord stating that an uncured default exists in the performance
of Tenant’s obligations under this Lease, to pay to Landlord all sums then and
thereafter due under the sublease. 
Tenant agrees that the subtenant may rely on that notice without any
duty of further inquiry and notwithstanding any notice or claim by Tenant to
the contrary.  Tenant shall have no right
or claim against the subtenant or Landlord for any rentals so paid to Landlord
other than a right to an accounting thereof.


 





















 


(c)          In the event of the termination of this
Lease, Landlord may, at its sole option, take over Tenant’s entire interest in
any sublease and, upon notice from Landlord, the subtenant shall attorn to
Landlord.  In no event, however, shall
Landlord be liable for any previous act or omission by Tenant under the
sublease or for the return of any advance rental payments or deposits under the
sublease that have not been actually delivered to Landlord, nor shall Landlord
be bound by any sublease modification executed without Landlord’s consent or
for any advance rental payment by the subtenant in excess of one month’s
rent.  The general provisions of this
Lease, including, without limitation, those pertaining to insurance and
indemnification, shall be deemed incorporated by reference into the sublease
despite the termination of this Lease.


 


SECTION 9.4. 
CERTAIN TRANSFERS.  The sale of all or
substantially all of Tenant’s assets (other than bulk sales in the ordinary
course of business) or, if Tenant is a corporation, an unincorporated
association, or a partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association, or partnership in the
aggregate of twenty-five percent (25%) (except for publicly traded shares of
stock constituting a transfer of twenty-five percent (25%) or more in the
aggregate, so long as no change in the controlling interest of Tenant occurs as
a result thereof) shall be deemed an assignment within the meaning and
provisions of this Article. 
Notwithstanding the foregoing, Landlord’s consent shall not be required
for the assignment of this Lease as a result of a merger by Tenant with or into
another entity, so long as (i) the net worth of the successor entity after
such merger is at least equal to the greater of the net worth of Tenant as of
the execution of this Lease by Landlord or the net worth of Tenant immediately
prior to the date of such merger, evidence of which, satisfactory to Landlord,
shall be presented to Landlord prior to such merger, (ii) Tenant shall
provide to Landlord, prior to such merger, written notice of such merger and
such assignment documentation and other information as Landlord may request in
connection therewith, and (iii) all of the other terms and requirements of
this Article shall apply with respect to such assignment.


 


SECTION 9.5. 
FACILITIES SHARING ARRANGEMENTS.  For
purposes of this Article IX, a facilities sharing service arrangement with
an unrelated third party whereby rights are granted by Tenant to such party to
access and use a portion of the Premises on a temporary basis and any
substantially similar arrangements (provided, however, that no exclusive
occupancy rights are granted as part of any such arrangement), will not
constitute an assignment, subletting, encumbrance, or transfer of any of Tenant’s
interest in this Lease or an occupancy of the Premises by someone other than
Tenant.


 


ARTICLE X. 
INSURANCE AND INDEMNITY


 


SECTION 10.1. 
TENANT’S INSURANCE.  Tenant, at its sole cost and
expense, shall provide and maintain in effect the insurance described in Exhibit D.  Evidence of that insurance must be delivered
to Landlord prior to the Commencement Date.


 


SECTION 10.2. 
LANDLORD’S INSURANCE.  Landlord may, at its election,
provide any or all of the following types of insurance, with or without
deductible and in amounts and coverages as may be determined by Landlord in its
discretion:  “all risk” property
insurance, subject to standard exclusions, covering the Building or Project,
and such other risks as Landlord or its mortgagees may from time to time deem
appropriate, including leasehold improvements made by Landlord, and commercial
general liability coverage.  Landlord
shall not be required to carry insurance of any kind on Tenant’s property,
including leasehold improvements, trade fixtures, furnishings, equipment, plate
glass, signs and all other items of personal property, and shall not be
obligated to repair or replace that property should damage occur.  All proceeds of insurance maintained by
Landlord upon the Building and Project shall be the property of Landlord,
whether or not Landlord is obligated to or elects to make any repairs.  At Landlord’s option, Landlord may
self-insure all or any portion of the risks for which Landlord elects to
provide insurance hereunder.


 


SECTION 10.3. TENANT’S INDEMNITY.  To
the fullest extent permitted by law, Tenant shall defend, indemnify, protect,
save and hold harmless Landlord, its agents, and any and all affiliates of
Landlord, including, without limitation, any corporations or other entities
controlling, controlled by or under common control with Landlord, from and
against any and all claims, liabilities, costs or expenses arising from and
after the Commencement Date from Tenant’s use or occupancy of the Premises, the
Building or the Common Areas, or from the conduct of its business, or from any
activity, work, or thing done, permitted or suffered by Tenant or its agents,
employees, invitees or licensees in or about the Premises, the Building or the
Common Areas, or from any default in the performance of any obligation on
Tenant’s part to be performed under this Lease, or from any act or negligence
of Tenant or its agents, employees, visitors, patrons, guests, invitees or
licensees.  Landlord may, at its option,
require Tenant to assume Landlord’s defense in any action covered by this Section through
counsel satisfactory to Landlord.  The
provisions of this Section shall expressly survive the expiration or
sooner termination of this Lease.


 


SECTION 10.4. 
LANDLORD’S NONLIABILITY.  Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby waives all claims
against Landlord for loss of or damage to any property, or loss or interruption
of business or income, or any other loss, cost, damage, injury or liability
whatsoever (including, without limitation, any consequential damages and lost
profit or opportunity costs) resulting from, but not limited to, Acts of God,
acts of civil disobedience or insurrection, acts or omissions of other tenants
within the Project or their agents, employees, contractors, guests or invitees,
fire, explosion, falling plaster, steam, gas, electricity, water or rain which
may leak or flow from or into any part of the Premises or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, electrical works or other fixtures in
the Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Building.  It is understood that any such condition may
require the temporary evacuation or closure of all or a portion of the Building.  Except as provided in Sections 11.1 and 12.1
below, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to


 





















 


or
interference with Tenant’s business (including, without limitation,
consequential damages and lost profit or opportunity costs) arising from the
making of any repairs, alterations or improvements to any portion of the
Building, including repairs to the Premises, nor shall any related activity by
Landlord constitute an actual or constructive eviction; provided, however, that
in making repairs, alterations or improvements, Landlord shall interfere as
little as reasonably practicable with the conduct of Tenant’s business in the
Premises.  Neither Landlord nor its
agents shall be liable for interference with light or other similar intangible
interests.  Tenant shall immediately
notify Landlord in case of fire or accident in the Premises, the Building or
the Project and of defects in any improvements or equipment.


 


SECTION 10.5. 
WAIVER OF SUBROGATION.  Landlord and Tenant each hereby
waives all rights of recovery against the other and the other’s agents on
account of loss and damage occasioned to the property of such waiving party to
the extent only that such loss or damage is required to be insured against
under any “all risk” property insurance policies required by this Article X;
provided however, that (i) the foregoing waiver shall not apply to the
extent of Tenant’s obligations to pay deductibles under any such policies and
this Lease, and (ii) if any loss is due to the act, omission or negligence
or willful misconduct of Tenant or its agents, employees, contractors, guests
or invitees, Tenant’s liability insurance shall be primary and shall cover all
losses and damages prior to any other insurance hereunder.  By this waiver it is the intent of the
parties that neither Landlord nor Tenant shall be liable to any insurance
company (by way of subrogation or otherwise) insuring the other party for any
loss or damage insured against under any “all-risk” property insurance policies
required by this Article, even though such loss or damage might be occasioned
by the negligence of such party, its agents, employees, contractors, guests or
invitees.  The provisions of this Section shall
not limit the indemnification provisions elsewhere contained in this Lease.


 


ARTICLE XI.  DAMAGE OR DESTRUCTION


 


SECTION 11.1. 
RESTORATION.


 


(a)          If the Building of which the Premises are a
part is damaged, Landlord shall repair that damage as soon as reasonably
possible, at its expense, unless:  (i) Landlord
reasonably determines that the cost of repair is not covered by Landlord’s fire
and extended coverage insurance plus such additional amounts Tenant elects, at
its option, to contribute, excluding however the deductible (for which Tenant
shall be responsible for Tenant’s Share); (ii) Landlord reasonably
determines that the Premises cannot, with reasonable diligence, be fully
repaired by Landlord (or cannot be safely repaired because of the presence of
hazardous factors, including, without limitation, Hazardous Materials,
earthquake faults, and other similar dangers) within two hundred seventy (270)
days after the date of the damage; (iii) an event of default by Tenant has
occurred and is continuing at the time of such damage; or (iv) the damage
occurs during the final twelve (12) months of the Term.  Should Landlord elect not to repair the
damage for one of the preceding reasons, Landlord shall so notify Tenant in
writing within sixty (60) days after the damage occurs and this Lease shall
terminate as of the date of that notice.


 


(b)         Unless Landlord elects to terminate this
Lease in accordance with subsection (a) above, this Lease shall
continue in effect for the remainder of the Term; provided that so long as
Tenant is not in default under this Lease, if the damage is so extensive that
Landlord reasonably determines that the Premises cannot, with reasonable
diligence, be repaired by Landlord (or cannot be safely repaired because of the
presence of hazardous factors, earthquake faults, and other similar dangers) so
as to allow Tenant’s substantial use and enjoyment of the Premises within two
hundred seventy (270) days after the date of damage, then Tenant may elect to
terminate this Lease by written notice to Landlord within the sixty (60) day
period stated in subsection (a).


 


(c)          Commencing on the date of any damage to the
Building, and ending on the sooner of the date the damage is repaired or the
date this Lease is terminated, the rental to be paid under this Lease shall be
abated in the same proportion that the floor area of the Premises that is
rendered unusable by the damage from time to time bears to the total floor area
of the Premises, but only to the extent that any business interruption
insurance proceeds are received by Landlord therefor from Tenant’s insurance
described in Exhibit D.


 


(d)         Notwithstanding the provisions of subsections
(a), (b) and (c) of this Section, and subject to the provisions of Section 10.5
above, the cost of any repairs shall be borne by Tenant, and Tenant shall not
be entitled to rental abatement or termination rights, if the damage is due to
the fault or neglect of Tenant or its employees, subtenants, invitees or
representatives.  In addition, the
provisions of this Section shall not be deemed to require Landlord to
repair any improvements or fixtures that Tenant is obligated to repair or
insure pursuant to any other provision of this Lease.


 


(e)          Tenant shall fully cooperate with Landlord in
removing Tenant’s personal property and any debris from the Premises to
facilitate all inspections of the Premises and the making of any repairs.  Notwithstanding anything to the contrary
contained in this Lease, if Landlord in good faith believes there is a risk of
injury to persons or damage to property from entry into the Building or
Premises following any damage or destruction thereto, Landlord may restrict
entry into the Building or the Premises by Tenant, its employees, agents and
contractors in a non-discriminatory manner, without being deemed to have
violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer
of, or evicted Tenant from, the Premises. 
Upon request, Landlord shall consult with Tenant to determine if there
are safe methods of entry into the Building or the Premises solely in order to
allow Tenant to retrieve files, data in computers, and necessary inventory,
subject however to all indemnities and waivers of liability from Tenant to
Landlord contained in this Lease and any additional indemnities and waivers of
liability which Landlord may require.


 


SECTION 11.2. 
LEASE GOVERNS.  Tenant agrees that the provisions of this
Lease, including, without limitation, Section 11.1, shall govern any
damage or destruction and shall accordingly supersede any contrary statute or rule of
law.


 





















 


ARTICLE XII.  EMINENT DOMAIN


 


SECTION 12.1.  TOTAL OR PARTIAL TAKING.  If all or a
material portion of the Premises is taken by any lawful authority by exercise
of the right of eminent domain, or sold to prevent a taking, either Tenant or
Landlord may terminate this Lease effective as of the date possession is
required to be surrendered to the authority. 
In the event title to a portion of the Building or Project, other than
the Premises, is taken or sold in lieu of taking, and if Landlord elects to
restore the Building in such a way as to alter the Premises materially, either
party may terminate this Lease, by written notice to the other party, effective
on the date of vesting of title.  In the
event neither party has elected to terminate this Lease as provided above, then
Landlord shall promptly, after receipt of a sufficient condemnation award,
proceed to restore the Premises to substantially their condition prior to the
taking, and a proportionate allowance shall be made to Tenant for the rent
corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of the taking and restoration.  In the event of a taking, Landlord shall be
entitled to the entire amount of the condemnation award without deduction for
any estate or interest of Tenant; provided that nothing in this Section shall
be deemed to give Landlord any interest in, or prevent Tenant from seeking any
award against the taking authority for, the taking of personal property and
fixtures belonging to Tenant or for relocation or business interruption
expenses recoverable from the taking authority.


 


SECTION 12.2. 
TEMPORARY TAKING.  No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant.  A temporary
taking shall be deemed to be a taking of the use or occupancy of the Premises
for a period of not to exceed ninety (90) days.


 


SECTION 12.3. 
TAKING OF PARKING AREA.  In the event there shall be a
taking of the parking area such that Landlord can no longer provide sufficient
parking to comply with this Lease, Landlord may substitute reasonably
equivalent parking in a location reasonably close to the Building; provided
that if Landlord fails to make that substitution within one hundred eighty
(180) days following the taking and if the taking materially impairs Tenant’s
use and enjoyment of the Premises, Tenant may, at its option, terminate this
Lease by written notice to Landlord.  If
this Lease is not so terminated by Tenant, there shall be no abatement of rent
and this Lease shall continue in effect.


 


ARTICLE XIII.  SUBORDINATION; ESTOPPEL CERTIFICATE;
FINANCIALS


 


SECTION 13.1. 
SUBORDINATION.  At the option of Landlord, this Lease shall
be either superior or subordinate to all ground or underlying leases, mortgages
and deeds of trust, if any, which may hereafter affect the Building, and to all
renewals, modifications, consolidations, replacements and extensions thereof;
provided, that so long as Tenant is not in default under this Lease, this Lease
shall not be terminated or Tenant’s quiet enjoyment of the Premises disturbed
in the event of termination of any such ground or underlying lease, or the
foreclosure of any such mortgage or deed of trust, to which Tenant has
subordinated this Lease pursuant to this Section.  In the event of a termination or foreclosure,
Tenant shall become a tenant of and attorn to the successor-in-interest to
Landlord upon the same terms and conditions as are contained in this Lease, and
shall execute any instrument reasonably required by Landlord’s successor for
that purpose.  Tenant shall also, upon
written request of Landlord, execute and deliver all instruments as may be
reasonably required from time to time to subordinate the rights of Tenant under
this Lease to any ground or underlying lease or to the lien of any mortgage or
deed of trust (provided that such instruments include the nondisturbance and
attornment provisions set forth above), or, if requested by Landlord, to
subordinate, in whole or in part, any ground or underlying lease or the lien of
any mortgage or deed of trust to this Lease.


 


SECTION 13.2. ESTOPPEL CERTIFICATE.


 


(a)          Tenant shall, at any time upon not less than
ten (10) days prior written notice from Landlord, execute, acknowledge and
deliver to Landlord, in any form that Landlord may reasonably require, a
statement in writing (i) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of the modification
and certifying that this Lease, as modified, is in full force and effect) and
the dates to which the rental, additional rent and other charges have been paid
in advance, if any, and (ii) acknowledging that, to Tenant’s knowledge,
there are no uncured defaults on the part of Landlord, or specifying each
default if any are claimed, and (iii) setting forth all further
information that Landlord may reasonably require.  Tenant’s statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Building or
Project.


 


(b)         Notwithstanding any other rights and remedies
of Landlord, Tenant’s failure to deliver any estoppel statement within the
provided time shall be conclusive upon Tenant that (i) this Lease is in
full force and effect, without modification except as may be represented by
Landlord, (ii) there are no uncured defaults in Landlord’s performance,
and (iii) not more than one month’s rental has been paid in advance.


 





















 


SECTION 13.3. 
FINANCIALS.


 


(a)          Tenant shall deliver to Landlord, prior to
the execution of this Lease and thereafter at any time upon Landlord’s request,
Tenant’s current tax returns and financial statements, certified true, accurate
and complete by the chief financial officer of Tenant, including a balance
sheet and profit and loss statement for the most recent prior year
(collectively, the “Statements”), which Statements shall accurately and
completely reflect the financial condition of Tenant.  Landlord agrees that it will keep the
Statements confidential, except that Landlord shall have the right to deliver
the same to any proposed purchaser of the Building or Project, and to any
encumbrancer of all or any portion of the Building or Project.  Landlord shall cause any such proposed
purchaser to enter into a reasonable confidentiality agreement with respect to
such financial details.


 


(b)         Tenant acknowledges that Landlord is relying
on the Statements in its determination to enter into this Lease, and Tenant
represents to Landlord, which representation shall be deemed made on the date
of this Lease and again on the Commencement Date, that no material change in
the financial condition of Tenant, as reflected in the Statements, has occurred
since the date Tenant delivered the Statements to Landlord.  The Statements are represented and warranted
by Tenant to be correct and to accurately and fully reflect Tenant’s true
financial condition as of the date of submission by any Statements to Landlord.


 


(c)          Notwithstanding anything to the contrary
contained in this Section 13.3, so long as Tenant is a publicly-traded
corporation whose stock is traded on a nationally recognized exchange or on
NASDAQ, the “Statements” required by the provisions of this Section 13.3
shall consist of Tenant’s current publicly disclosed financial statements.


 


ARTICLE XIV. 
DEFAULTS AND REMEDIES


 


SECTION 14.1. 
TENANT’S DEFAULTS.  In addition to any other event
of default set forth in this Lease, the occurrence of any one or more of the
following events shall constitute a default by Tenant:


 


(a)          The failure by Tenant to make any payment of
rent or additional rent required to be made by Tenant, as and when due, where
the failure continues for a period of three (3) days after written notice
from Landlord to Tenant; provided, however, that any such notice shall be in
lieu of, and not in addition to, any notice required under California Code of
Civil Procedure Section 1161 and 1161(a) as amended.  For purposes of these default and remedies
provisions, the term “additional rent” shall be deemed to include all amounts
of any type whatsoever other than Basic Rent to be paid by Tenant pursuant to
the terms of this Lease.


 


(b)         Assignment, sublease, encumbrance or other
transfer of the Lease by Tenant, either voluntarily or by operation of law, whether
by judgment, execution, transfer by intestacy or testacy, or other means,
without the prior written consent of Landlord.


 


(c)          The discovery by Landlord that any financial
statement provided by Tenant, or by any affiliate, successor or guarantor of Tenant,
was materially false.


 


(d)         The failure of Tenant to timely and fully
provide any subordination agreement, estoppel certificate or financial
statements in accordance with the requirements of Article XIII.


 


(e)          The failure or inability by Tenant to observe
or perform any of the express or implied covenants or provisions of this Lease
to be observed or performed by Tenant, other than as specified in any other subsection of
this Section, where the failure continues for a period of thirty (30) days
after written notice from Landlord to Tenant or such shorter period as is
specified in any other provision of this Lease; provided, however, that any
such notice shall be in lieu of, and not in addition to, any notice required
under California Code of Civil Procedure Section 1161 and 1161(a) as
amended. However, if the nature of the failure is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant commences the cure within thirty (30) days, and
thereafter diligently pursues the cure to completion.


 


(f)          (i) The making by Tenant of any general
assignment for the benefit of creditors; (ii) the filing by or against
Tenant of a petition to have Tenant adjudged a Chapter 7 debtor under the Bankruptcy
Code or to have debts discharged or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within thirty (30) days); (iii) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant’s assets located at the Premises or of Tenant’s interest in this Lease,
if possession is not restored to Tenant within thirty (30) days; (iv) the
attachment, execution or other judicial seizure of substantially all of Tenant’s
assets located at the Premises or of Tenant’s interest in this Lease, where the
seizure is not discharged within thirty (30) days; or (v) Tenant’s
convening of a meeting of its creditors for the purpose of effecting a
moratorium upon or composition of its debts. 
Landlord shall not be deemed to have knowledge of any event described in
this subsection unless notification in writing is received by Landlord,
nor shall there be any presumption attributable to Landlord of Tenant’s
insolvency.  In the event that any
provision of this subsection is contrary to applicable law, the provision
shall be of no force or effect.


 


SECTION 14.2. 
LANDLORD’S REMEDIES.


 


(a)          In the event of any default by Tenant, or in
the event of the abandonment of the Premises by Tenant, then in addition to any
other remedies available to Landlord, Landlord may exercise the following
remedies:


 





















 


(i)     Landlord may terminate Tenant’s right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord.  Such termination shall not affect any accrued
obligations of Tenant under this Lease. 
Upon termination, Landlord shall have the right to reenter the Premises
and remove all persons and property. 
Landlord shall also be entitled to recover from Tenant:


 


(1)       The worth at the time of award of the unpaid
rent and additional rent which had been earned at the time of termination;


 


(2)       The worth at the time of award of the amount
by which the unpaid rent and additional rent which would have been earned after
termination until the time of award exceeds the amount of such loss that Tenant
proves could have been reasonably avoided;


 


(3)       The worth at the time of award of the amount
by which the unpaid rent and additional rent for the balance of the Term after
the time of award exceeds the amount of such loss that Tenant proves could be
reasonably avoided;


 


(4)       Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant’s failure to
perform its obligations under this Lease or which in the ordinary course of
things would be likely to result from Tenant’s default, including, but not
limited to, the cost of recovering possession of the Premises, refurbishment of
the Premises, marketing costs, commissions and other expenses of reletting,
including necessary repair, the unamortized portion of any tenant improvements
and brokerage commissions funded by Landlord in connection with this Lease,
reasonable attorneys’ fees, and any other reasonable costs; and


 


(5)       At Landlord’s election, all other amounts in
addition to or in lieu of the foregoing as may be permitted by law.  The term “rent” as used in this Lease shall
be deemed to mean the Basic Rent and all other sums required to be paid by
Tenant to Landlord pursuant to the terms of this Lease.  Any sum, other than Basic Rent, shall be
computed on the basis of the average monthly amount accruing during the twenty-four
(24) month period immediately prior to default, except that if it becomes
necessary to compute such rental before the twenty-four (24) month period has
occurred, then the computation shall be on the basis of the average monthly
amount during the shorter period.  As
used in subparagraphs (1) and (2) above, the “worth at the time of
award” shall be computed by allowing interest at the rate of ten percent (10%)
per annum.  As used in subparagraph (3) above,
the “worth at the time of award” shall be computed by discounting the amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent (1%).


 


(ii)    Landlord may elect not to terminate Tenant’s right to possession of the
Premises, in which event Landlord may continue to enforce all of its rights and
remedies under this Lease, including the right to collect all rent as it
becomes due.  Efforts by the Landlord to
maintain, preserve or relet the Premises, or the appointment of a receiver to
protect the Landlord’s interests under this Lease, shall not constitute a
termination of the Tenant’s right to possession of the Premises.  In the event that Landlord elects to avail
itself of the remedy provided by this subsection (ii), Landlord shall not
unreasonably withhold its consent to an assignment or subletting of the
Premises subject to the reasonable standards for Landlord’s consent as are
contained in this Lease.


 


(b)         Landlord shall be under no obligation to
observe or perform any covenant of this Lease on its part to be observed or
performed which accrues after the date of any default by Tenant unless and
until the default is cured by Tenant, it being understood and agreed that the
performance by Landlord of its obligations under this Lease are expressly
conditioned upon Tenant’s full and timely performance of its obligations under
this Lease.  The various rights and
remedies reserved to Landlord in this Lease or otherwise shall be cumulative
and, except as otherwise provided by California law, Landlord may pursue any or
all of its rights and remedies at the same time.


 


(c)          No delay or omission of Landlord to exercise
any right or remedy shall be construed as a waiver of the right or remedy or of
any default by Tenant.  The acceptance by
Landlord of rent shall not be a (i) waiver of any preceding breach or
default by Tenant of any provision of this Lease, other than the failure of
Tenant to pay the particular rent accepted, regardless of Landlord’s knowledge
of the preceding breach or default at the time of acceptance of rent, or (ii) a
waiver of Landlord’s right to exercise any remedy available to Landlord by
virtue of the breach or default.  The
acceptance of any payment from a debtor in possession, a trustee, a receiver or
any other person acting on behalf of Tenant or Tenant’s estate shall not waive
or cure a default under Section 14.1. 
No payment by Tenant or receipt by Landlord of a lesser amount than the
rent required by this Lease shall be deemed to be other than a partial payment
on account of the earliest due stipulated rent, nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction and
Landlord shall accept the check or payment without prejudice to Landlord’s
right to recover the balance of the rent or pursue any other remedy available
to it.  No act or thing done by Landlord
or Landlord’s agents during the Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender shall be
valid unless in writing and signed by Landlord. 
No employee of Landlord or of Landlord’s agents shall have any power to
accept the keys to the Premises prior to the termination of this Lease, and the
delivery of the keys to any employee shall not operate as a termination of the
Lease or a surrender of the Premises.


 





















 


SECTION 14.3. 
LATE PAYMENTS.


 


(a)          Any rent due under this Lease that is not
received by Landlord within five (5) days of the date when due shall bear
interest at the maximum rate permitted by law from the date due until fully
paid.  The payment of interest shall not
cure any default by Tenant under this Lease. 
In addition, Tenant acknowledges that the late payment by Tenant to
Landlord of rent will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult and impracticable
to ascertain.  Those costs may include,
but are not limited to, administrative, processing and accounting charges, and
late charges which may be imposed on Landlord by the terms of any ground lease,
mortgage or trust deed covering the Premises. 
Accordingly, if any rent due from Tenant shall not be received by
Landlord or Landlord’s designee within ten (10) days after the date due,
then Tenant shall pay to Landlord, in addition to the interest provided above,
a late charge in a sum equal to the greater of five percent (5%) of the amount
overdue or Two Hundred Fifty Dollars ($250.00) for each delinquent
payment.  Acceptance of a late charge by
Landlord shall not constitute a waiver of Tenant’s default with respect to the
overdue amount, nor shall it prevent Landlord from exercising any of its other
rights and remedies.


 


(b)         Following each second consecutive installment
of rent that is not paid within ten (10) days following notice of
nonpayment from Landlord, Landlord shall have the option (i) to require
that beginning with the first payment of rent next due, rent shall no longer be
paid in monthly installments but shall be payable quarterly three (3) months
in advance and/or (ii) to require that Tenant increase the amount, if any,
of the Security Deposit by one hundred percent (100%).  Should Tenant deliver to Landlord, at any
time during the Term, two (2) or more insufficient checks, the Landlord
may require that all monies then and thereafter due from Tenant be paid to
Landlord by cashier’s check.


 


SECTION 14.4. 
RIGHT OF LANDLORD TO PERFORM.  All covenants and agreements to
be performed by Tenant under this Lease shall be performed at Tenant’s sole
cost and expense and without any abatement of rent or right of set-off.  If Tenant fails to pay any sum of money,
other than rent, or fails to perform any other act on its part to be performed
under this Lease, and the failure continues beyond any applicable grace period
set forth in Section 14.1, then in addition to any other available
remedies, Landlord may, at its election make the payment or perform the other
act on Tenant’s part.  Landlord’s
election to make the payment or perform the act on Tenant’s part shall not give
rise to any responsibility of Landlord to continue making the same or similar
payments or performing the same or similar acts.  Tenant shall, promptly upon demand by
Landlord, reimburse Landlord for all sums paid by Landlord and all necessary
incidental costs, together with interest at the maximum rate permitted by law
from the date of the payment by Landlord. 
Landlord shall have the same rights and remedies if Tenant fails to pay
those amounts as Landlord would have in the event of a default by Tenant in the
payment of rent.


 


SECTION 14.5. 
DEFAULT BY LANDLORD.  Landlord shall not be deemed to
be in default in the performance of any obligation under this Lease unless and
until it has failed to perform the obligation within thirty (30) days after
written notice by Tenant to Landlord specifying in reasonable detail the nature
and extent of the failure; provided, however, that if the nature of Landlord’s
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion.


 


SECTION 14.6. 
EXPENSES AND LEGAL FEES.  All sums reasonably incurred by
either party in connection with any event of default by the other party under
this Lease or by Landlord as a result of holding over of possession by Tenant
after the expiration or earlier termination of this Lease, including, without
limitation, all costs, expenses and actual accountants, appraisers, attorneys
and other professional fees, and any collection agency or other collection
charges, shall be due and payable by such party to the other party on demand,
and shall bear interest at the rate of ten percent (10%) per annum.  Should either Landlord or Tenant bring any action
in connection with this Lease, the prevailing party shall be entitled to
recover as a part of the action its reasonable attorneys’ fees, and all other
costs.  The prevailing party for the
purpose of this paragraph shall be determined by the trier of the facts.


 


SECTION 14.7. 
WAIVER OF JURY TRIAL.  LANDLORD
AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF
COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY, AND EACH
PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY
HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, TENANT’S USE OR OCCUPANCY OF
THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.


 


SECTION 14.8. 
SATISFACTION OF JUDGMENT.  The obligations of Landlord do
not constitute the personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord or its constituent
partners.  Should Tenant recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale received upon execution of such judgment and levied thereon
against the right, title and interest of Landlord in the Project and out of the
rent or other income from such property receivable by Landlord or out of
consideration received by Landlord from the sale or other disposition of all or
any part of Landlord’s right, title or interest in the Project and no action
for any deficiency may be sought or obtained by Tenant.


 


SECTION 14.9.  
LIMITATION OF ACTIONS AGAINST LANDLORD.  Any
claim, demand or right of any kind by Tenant which is based upon or arises in
connection with this Lease shall be barred unless Tenant commences an action
thereon within twelve (12) months after the date that the act, omission, event
or default upon which the claim, demand or right arises, has occurred.


 





















 


ARTICLE XV. 
END OF TERM


 


SECTION 15.1. 
HOLDING OVER.  This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after
the expiration shall not constitute a renewal or extension of this Lease, or
give Tenant any rights under this Lease, except when in writing signed by both
parties.  If Tenant holds over for any
period after the expiration (or earlier termination) of the Term without the
prior written consent of Landlord, such possession shall constitute a tenancy
at sufferance only; such holding over with the prior written consent of
Landlord shall constitute a month-to-month tenancy commencing on the first
(1st) day following the termination of this Lease.  In either of such events, possession shall be
subject to all of the terms of this Lease, except that the monthly Basic Rent
shall be the greater of (a) one hundred-fifty percent (150%) (for the
initial two (2) months of holdover), and two hundred percent (200%) (for
each month of holdover thereafter), of the Basic Rent for the month immediately
preceding the date of termination or (b) the then currently scheduled
Basic Rent for comparable space in the Building.  If Tenant fails to surrender the Premises
upon the expiration of this Lease despite demand to do so by Landlord, Tenant
shall indemnify and hold Landlord harmless from all loss or liability,
including without limitation, any claims made by any succeeding tenant relating
to such failure to surrender.  Acceptance
by Landlord of rent after the termination shall not constitute a consent to a
holdover or result in a renewal of this Lease. 
The foregoing provisions of this Section are in addition to and do
not affect Landlord’s right of re-entry or any other rights of Landlord under
this Lease or at law.


 


SECTION 15.2. 
MERGER ON TERMINATION.  The voluntary or other
surrender of this Lease by Tenant, or a mutual termination of this Lease, shall
terminate any or all existing subleases unless Landlord, at its option, elects
in writing to treat the surrender or termination as an assignment to it of any
or all subleases affecting the Premises.


 


SECTION 15.3. 
SURRENDER OF PREMISES; REMOVAL OF PROPERTY.  Upon
the Expiration Date or upon any earlier termination of this Lease, Tenant shall
quit and surrender possession of the Premises to Landlord in as good order,
condition and repair as when received or as hereafter may be improved by
Landlord or Tenant, reasonable wear and tear and repairs which are Landlord’s
obligation excepted, and shall, without expense to Landlord, remove or cause to
be removed from the Premises all personal property and debris, except for any
items that Landlord may by written authorization allow to remain.  Tenant shall repair all damage to the
Premises resulting from the removal, which repair shall include the patching
and filling of holes and repair of structural damage, provided that Landlord
may instead elect to repair any structural damage at Tenant’s expense.  If Tenant shall fail to comply with the
provisions of this Section, Landlord may effect the removal and/or make any
repairs, and the cost to Landlord shall be additional rent payable by Tenant
upon demand.  If Tenant fails to remove
Tenant’s personal property from the Premises upon the expiration of the Term,
Landlord may remove, store, dispose of and/or retain such personal property, at
Landlord’s option, in accordance with then applicable laws, all at the expense
of Tenant.  If requested by Landlord,
Tenant shall execute, acknowledge and deliver to Landlord an instrument in
writing releasing and quitclaiming to Landlord all right, title and interest of
Tenant in the Premises.  It is understood
and agreed that Tenant shall not remove the furniture and fixtures installed in
the Premises at any time during the Term of this Lease.  Provided further that Tenant has not been in
default during the Term of this Lease, Tenant shall remove the furniture and
fixtures in the Premises, and the furniture and fixtures shall become the
property of Tenant upon the expiration of the Term of this Lease.


 


ARTICLE XVI.  PAYMENTS AND
NOTICES


 


All
sums payable by Tenant to Landlord shall be paid, without deduction or offset,
in lawful money of the United States to Landlord at its address set forth in
Item 12 of the Basic Lease Provisions, or at any other place as Landlord may designate
in writing.  Unless this Lease expressly
provides otherwise, as for example in the payment of rent pursuant to Section 4.1,
all payments shall be due and payable within ten (10) days after
demand.  All payments requiring proration
shall be prorated on the basis of a thirty (30) day month and a three hundred
sixty (360) day year.  Any notice,
election, demand, consent, approval or other communication to be given or other
document to be delivered by either party to the other may be delivered in person
or by courier or overnight delivery service to the other party, or may be
deposited in the United States mail, duly registered or certified, postage
prepaid, return receipt requested, and addressed to the other party at the
address set forth in Item 12 of the Basic Lease Provisions, or if to Tenant, at
that address or, from and after the Commencement Date, at the Premises (whether
or not Tenant has departed from, abandoned or vacated the Premises), or may be
delivered by telegram, telex or telecopy, provided that receipt thereof is
telephonically confirmed.  Either party
may, by written notice to the other, served in the manner provided in this
Article, designate a different address. 
If any notice or other document is sent by mail, it shall be deemed served
or delivered forty-eight (48) hours after mailing.  If more than one person or entity is named as
Tenant under this Lease, service of any notice upon any one of them shall be
deemed as service upon all of them.


 


ARTICLE XVII. 
RULES AND REGULATIONS


 


Tenant
agrees to observe faithfully and comply strictly with the Rules and
Regulations, attached as Exhibit E, and any reasonable and
nondiscriminatory amendments, modifications and/or additions as may be adopted
and published by written notice to tenants by Landlord for the safety, care,
security, good order, or cleanliness of the Premises, Building, Project and
Common Areas.  Landlord shall not be
liable to Tenant for any violation of the Rules and Regulations or the
breach of any covenant or condition in any lease by any other tenant or such
tenant’s agents, employees, contractors, guests or invitees.  One or more waivers by Landlord of any breach
of the Rules and Regulations by Tenant or by any other tenant(s) shall not
be a waiver of any subsequent breach of that rule or any other.  Tenant’s failure to keep and observe the Rules and
Regulations shall constitute a default under this Lease.  In the case of any conflict between the Rules and
Regulations and this Lease, this Lease shall be controlling.


 





















 


ARTICLE XVIII. 
BROKER’S COMMISSION


 


The
parties recognize as the broker(s) who negotiated this Lease the firm(s), if
any, whose name(s) is (are) stated in Item 10 of the Basic Lease Provisions,
and agree that Landlord shall be responsible for the payment of brokerage
commissions to those broker(s) unless otherwise provided in this Lease.  Tenant warrants that it has had no dealings
with any other real estate broker or agent in connection with the negotiation
of this Lease, and Tenant agrees to indemnify and hold Landlord harmless from
any cost, expense or liability (including reasonable attorneys’ fees) for any
compensation, commissions or charges claimed by any other real estate broker or
agent employed or claiming to represent or to have been employed by Tenant in
connection with the negotiation of this Lease. 
The foregoing agreement shall survive the termination of this
Lease.  If Tenant fails to take
possession of the Premises or if this Lease otherwise terminates prior to the
Expiration Date as the result of failure of performance by Tenant, Landlord
shall be entitled to recover from Tenant the unamortized portion of any
brokerage commission funded by Landlord in addition to any other damages to
which Landlord may be entitled.


 


ARTICLE XIX. 
TRANSFER OF LANDLORD’S INTEREST


 


In
the event of any transfer of Landlord’s interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that any funds held by the transferor in which Tenant has an interest
shall be turned over, subject to that interest, to the transferee and Tenant is
notified of the transfer as required by law. 
No holder of a mortgage and/or deed of trust to which this Lease is or
may be subordinate, and no landlord under a so-called sale-leaseback, shall be
responsible in connection with the Security Deposit, unless the mortgagee or
holder of the deed of trust or the landlord actually receives the Security
Deposit.  It is intended that the
covenants and obligations contained in this Lease on the part of Landlord
shall, subject to the foregoing, be binding on Landlord, its successors and
assigns, only during and in respect to their respective successive periods of
ownership.


 


ARTICLE XX.  INTERPRETATION


 


SECTION 20.1.  GENDER AND NUMBER.  Whenever the context of this
Lease requires, the words “Landlord” and “Tenant” shall include the plural as
well as the singular, and words used in neuter, masculine or feminine genders shall
include the others.


 


SECTION 20.2. 
HEADINGS.  The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.


 


SECTION 20.3. 
JOINT AND SEVERAL LIABILITY.  If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.


 


SECTION 20.4. 
SUCCESSORS.  Subject to Articles IX and XIX, all rights
and liabilities given to or imposed upon Landlord and Tenant shall extend to
and bind their respective heirs, executors, administrators, successors and
assigns.  Nothing contained in this Section is
intended, or shall be construed, to grant to any person other than Landlord and
Tenant and their successors and assigns any rights or remedies under this
Lease.


 


SECTION 20.5. 
TIME OF ESSENCE.  Time is of the essence with respect to the
performance of every provision of this Lease.


 


SECTION 20.6. 
CONTROLLING LAW.  This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.


 


SECTION 20.7. 
SEVERABILITY.  If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material
benefit by either party or the deletion of which is consented to by the party
adversely affected, shall be held invalid or unenforceable to any extent, the
remainder of this Lease shall not be affected and each term and provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.


 


SECTION 20.8. 
WAIVER AND CUMULATIVE REMEDIES.  One or more waivers by Landlord
or Tenant of any breach of any term, covenant or condition contained in this
Lease shall not be a waiver of any subsequent breach of the same or any other
term, covenant or condition.  Consent to
any act by one of the parties shall not be deemed to render unnecessary the
obtaining of that party’s consent to any subsequent act.  No breach by Tenant of this Lease shall be
deemed to have been waived by Landlord unless the waiver is in a writing signed
by Landlord.  The rights and remedies of
Landlord under this Lease shall be cumulative and in addition to any and all
other rights and remedies which Landlord may have.


 


SECTION 20.9. 
INABILITY TO PERFORM.  In the event that either party
shall be delayed or hindered in or prevented from the performance of any work
or in performing any act required under this Lease by reason of any cause
beyond the reasonable control of that party, then the performance of the work
or the doing of the act shall be excused for 


 





















 


the
period of the delay and the time for performance shall be extended for a period
equivalent to the period of the delay. 
The provisions of this Section shall not operate to excuse Tenant
from the prompt payment of rent or either party from the timely performance of
any other obligation under this Lease within such party’s reasonable control.


 


SECTION 20.10. 
ENTIRE AGREEMENT.  This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further
effect.  Tenant waives its rights to rely
on any representations or promises made by Landlord or others which are not
contained in this Lease.  No verbal
agreement or implied covenant shall be held to modify the provisions of this
Lease, any statute, law, or custom to the contrary notwithstanding.


 


SECTION 20.11. 
QUIET ENJOYMENT.  Upon the observance and performance of all
the covenants, terms and conditions on Tenant’s part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without
hindrance or interruption by Landlord or any other person claiming by or
through Landlord.


 


SECTION 20.12. 
SURVIVAL.  All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including, without limitation, any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of
the respective parties and their successors and assigns.


 


ARTICLE XXI. 
EXECUTION AND RECORDING


 


SECTION 21.1. 
COUNTERPARTS.  This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.


 


SECTION 21.2. 
CORPORATE AND PARTNERSHIP AUTHORITY.  If
Tenant is a corporation or partnership, each individual executing this Lease on
behalf of the corporation or partnership represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of the corporation
or partnership, and that this Lease is binding upon the corporation or
partnership in accordance with its terms. 
Tenant shall, at Landlord’s request, deliver a certified copy of its
board of directors’ resolution or partnership agreement or certificate
authorizing or evidencing the execution of this Lease.


 


SECTION 21.3. 
EXECUTION OF LEASE; NO OPTION OR OFFER.  The
submission of this Lease to Tenant shall be for examination purposes only, and
shall not constitute an offer to or option for Tenant to lease the
Premises.  Execution of this Lease by
Tenant and its return to Landlord shall not be binding upon Landlord,
notwithstanding any time interval, until Landlord has in fact executed and
delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.


 


SECTION 21.4. 
RECORDING.  Tenant shall not record this Lease without
the prior written consent of Landlord. 
Tenant, upon the request of Landlord, shall execute and acknowledge a “short
form” memorandum of this Lease for recording purposes.


 


SECTION 21.5. 
AMENDMENTS.  No amendment or termination of this Lease
shall be effective unless in writing signed by authorized signatories of Tenant
and Landlord, or by their respective successors in interest.  No actions, policies, oral or informal
arrangements, business dealings or other course of conduct by or between the parties
shall be deemed to modify this Lease in any respect.


 


SECTION 21.6. 
EXECUTED COPY.  Any fully executed photocopy or similar
reproduction of this Lease shall be deemed an original for all purposes.


 


SECTION 21.7. 
ATTACHMENTS.  All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of this
Lease.


 


ARTICLE XXII. 
MISCELLANEOUS


 


SECTION 22.1. 
NONDISCLOSURE OF LEASE TERMS.  Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord.  Disclosure of
the terms could adversely affect the ability of Landlord to negotiate other
leases and impair Landlord’s relationship with other tenants.  Accordingly, Tenant agrees that it, and its
partners, officers, directors, employees and attorneys, shall not intentionally
and voluntarily disclose the terms and conditions of this Lease to any other
tenant or apparent prospective tenant of the Building or Project, either
directly or indirectly, without the prior written consent of Landlord,
provided, however, that Tenant may disclose the terms to prospective subtenants
or assignees under this Lease.


 


SECTION 22.2. 
GUARANTY.  As a condition to the execution of this Lease
by Landlord, the obligations, covenants and performance of the Tenant as herein
provided shall be guaranteed in writing by the Guarantor(s) listed in
Item 7 of the Basic Lease Provisions, if any, on a form of guaranty
provided by Landlord.


 





















 


SECTION 22.3. 
CHANGES REQUESTED BY LENDER.  If, in connection with
obtaining financing for the Project, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications do
not materially increase the obligations of Tenant or materially and adversely
affect the leasehold interest created by this Lease.


 


SECTION 22.4. 
MORTGAGEE PROTECTION.  No act or failure to act on
the part of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or
certified mail to any beneficiary of a deed of trust or mortgage covering the
Building whose address has been furnished to Tenant and (b) such
beneficiary is afforded a reasonable opportunity to cure the default by
Landlord (which in no event shall be less than sixty (60) days), including, if
necessary to effect the cure, time to obtain possession of the Building by
power of sale or judicial foreclosure provided that such foreclosure remedy is
diligently pursued.  Tenant agrees that
each beneficiary of a deed of trust or mortgage covering the Building is an
express third party beneficiary hereof, Tenant shall have no right or claim for
the collection of any deposit from such beneficiary or from any purchaser at a
foreclosure sale unless such beneficiary or purchaser shall have actually
received and not refunded the deposit, and Tenant shall comply with any written
directions by any beneficiary to pay rent due hereunder directly to such
beneficiary without determining whether an event of default exists under such
beneficiary’s deed of trust.


 


SECTION 22.5. 
COVENANTS AND CONDITIONS.  All of the provisions of this
Lease shall be construed to be conditions as well as covenants as though the
words specifically expressing or imparting covenants and conditions were used
in each separate provision.


 


SECTION 22.6. 
SECURITY MEASURES.  Tenant hereby acknowledges that
Landlord shall have no obligation whatsoever to provide guard service or other
security measures for the benefit of the Premises or the Project.  Tenant assumes all responsibility for the
protection of Tenant, its agents, invitees and property from acts of third
parties.  Nothing herein contained shall
prevent Landlord, at its sole option, from providing security protection for
the Project or any part thereof, in which event the cost thereof shall be
included within the definition of Project Costs.


 


SECTION 22.7. 
JAMS ARBITRATION.


 


(a)        All claims or disputes between Landlord and
Tenant arising out of, or relating to the Lease which either party is expressly
authorized by a provision hereof to submit to arbitration, shall be decided by
the JAMS/ENDISPUTE, or its successor, in Orange, California (“JAMS”), unless
the parties mutually agree otherwise. 
Within ten (10) business days following submission to JAMS,
JAMS shall designate three arbitrators and each party may, within five (5) business
days thereafter, veto one of the three persons so designated.  If two different designated arbitrators have
been vetoed, the third arbitrator shall hear and decide the matter.  Any arbitration pursuant to this Section shall
be decided within thirty (30) days of submission of JAMS.  The decision of the arbitrator shall be final
and binding on the parties.  All costs
associated with arbitration shall be awarded to the prevailing party as
determined by the arbitrator.


 


(b)        Notice of the demand for arbitration by
either party to the Lease shall be filed in writing with the other party to the
Lease and with JAMS and shall be made within a reasonable time after the
dispute has arisen.  The award rendered
by the arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof.  Except by written consent of the person or
entity sought to be joined, no arbitration arising out of or relating to the
Lease shall include, by consolidation, joinder or in any other manner, any
person or entity not a party to the Lease under which such arbitration is filed
if (1) such person or entity is substantially involved in a common
question of fact or law, (2) the presence of such person or entity is
required if complete relief is to be accorded in the arbitration, or (3) the
interest or responsibility of such person or entity in the matter is not
insubstantial.


 


(c)        The agreement herein among the parties to the
Lease and any other written agreement to arbitrate referred to herein shall be
specifically enforceable under prevailing law.


 


	
  LANDLORD:

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  THE
  IRVINE COMPANY

  	
   

  	
  GOREMOTE
  INTERNET COMMUNICATIONS, INC.,

  
	
   

  	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/STEVEN M. CASE

  	
   

  	
  By:

  	
   /S/
  DAVID L. TEICHMANN

  
	
   

  	
  Steven M. Case, Senior Vice President

  	
   

  	
   

  	
        David L.
  Teichmann,

  
	
   

  	
  Leasing, Office Properties

  	
   

  	
   

  	
        Senior Vice
  President,

  
	
   

  	
   

  	
   

  	
   

  	
        General
  Counsel and Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/ CHRISTOPHER J. POPMA

  	
   

  	
  By:

  	
   /S/
  DANIEL W. FAIRFAX

  
	
   

  	
  Christopher J. Popma, Vice President

  	
   

  	
   

  	
        Daniel
  W. Fairfax,

  
	
   

  	
  Operations, Office Properties

  	
   

  	
   

  	
        Senior
  Vice President and

  
	
   

  	
   

  	
   

  	
   

  	
        Chief
  Financial Officer

  



 





















 


EXHIBIT B


 


THE
IRVINE COMPANY – INVESTMENT PROPERTIES GROUP


 


HAZARDOUS
MATERIAL SURVEY FORM


 


The purpose of this form is to obtain information regarding the use of
hazardous substances on Investment Properties Group (“IPG”) property.  Prospective tenants and contractors should
answer the questions in light of their proposed activities on the premises.  Existing tenants and contractors should
answer the questions as they relate to ongoing activities on the premises and
should update any information previously submitted.


 


If additional space is needed to answer the questions, you may attach
separate sheets of paper to this form. 
When completed, the form should be sent to the following address:


 


THE
IRVINE COMPANY MANAGEMENT OFFICE


111
Innovation Drive


Irvine,
CA 92617


 


Your cooperation in this matter is appreciated.  If you have any questions, please call your
property manager at (949) 720-4400 for assistance.


 


	
  1.

  	
  GENERAL INFORMATION.

  
	
   

  	
   

  
	
   

  	
  Name of Responding
  Company:

  	
   

  	
   

  
	
   

  	
  Check all that apply:

  	
   

  	
  Tenant

  	
  o

  	
   

  	
  Contractor

  	
  o

  
	
   

  	
   

  	
   

  	
  Prospective

  	
  o

  	
   

  	
  Existing

  	
  o

  
	
   

  
	
   

  	
  Mailing Address:

  	
   

  	
   

  
	
   

  	
  Contact person &
  Title:

  	
   

  	
   

  
	
   

  	
  Telephone Number:  (   )

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Current TIC Tenant(s):

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address of Lease Premises:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Length of Lease or
  Contract Term:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Prospective TIC Tenant(s):

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address of Leased
  Premises:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address of Current
  Operations:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Describe the proposed
  operations to take place on the property, including principal products
  manufactured or services to be conducted. 
  Existing tenants and contractors should describe any proposed changes
  to ongoing operations.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  2.

  	
  HAZARDOUS MATERIALS. 
  For the purposes of this Survey Form, the term “hazardous material”
  means any raw material, product or agent considered hazardous under any state
  or federal law.  The term does not
  include wastes which are intended to be discarded.

  
	
   

  	
   

  
	
   

  	
  2.1

  	
  Will any hazardous
  materials be used or stored on site?

  
	
   

  	
   

  
	
   

  	
  Chemical Products

  	
  Yes

  	
  o

  	
   

  	
  No

  	
  o

  	
   

  
	
   

  	
  Biological Hazards/

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Infectious Wastes

  	
  Yes

  	
  o

  	
   

  	
  No

  	
  o

  	
   

  
	
   

  	
  Radioactive Materials

  	
  Yes

  	
  o

  	
   

  	
  No

  	
  o

  	
   

  
	
   

  	
  Petroleum Products

  	
  Yes

  	
  o

  	
   

  	
  No

  	
  o

  	
   

  
																										



 





















 


	
   

  	
  2.1

  	
  List any hazardous
  materials to be used or stored, the quantities that will be on-site at any
  given time, and the location and method of storage (e.g., bottles in storage
  closet on the premises).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hazardous Materials

  	
   

  	
  Location
  and Method

  of Storage

  	
   

  	
  Quantity

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Is any underground storage
  of hazardous materials proposed or currently conducted on the premises?  Yes o  
  No  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If yes, describe the
  materials to be stored, and the size and construction of the tank.  Attach copies of any permits obtained for
  the underground storage of such substances.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  HAZARDOUS WASTE. 
  For the purposes of this Survey Form, the term “hazardous waste” means
  any waste (including biological, infectious or radioactive waste) considered
  hazardous under any state or federal law, and which is intended to be
  discarded.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  List any hazardous waste
  generated or to be generated on the premises, and indicate the quantity
  generated on a monthly basis.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hazardous Materials

  	
   

  	
  Location
  and Method

  of Storage

  	
   

  	
  Quantity

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Describe the method(s) of
  disposal (including recycling) for each waste.  Indicate where and how often disposal will
  take place.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hazardous Materials

  	
   

  	
  Location
  and Method

  of Storage

  	
   

  	
  Disposal
  Method

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Is any treatment or
  processing of hazardous, infectious or radioactive wastes currently conducted
  or proposed to be conducted on the premise?

  
	
   

  	
   

  	
  Yes o  
  No  o

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If yes, please describe
  any existing or proposed treatment methods.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Attach copies of any
  hazardous waste permits or licenses issued to your company with respect to
  its operations on the premises.

  
											



 





















 


	
  4.

  	
  SPILLS

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  During the past year, have
  any spills or releases of hazardous materials occurred on the premises?
     Yes o    No o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, please describe the
  spill and attach the results of any testing conducted to determine the extent
  of such spills.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  4.2

  	
   

  	
  Were any agencies notified
  in connection with such spills?       Yes o       No
  o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, attach copies of
  any spill reports or other correspondence with regulatory agencies.

  
	
   

  	
   

  	
   

  
	
  4.3

  	
   

  	
  Were any clean-up actions
  undertaken in connection with the spills?

  
	
   

  	
   

  	
  Yes o       No
  o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, briefly describe
  the actions taken. Attach copies of any clearance letters obtained from any
  regulatory agencies involved and the results of any final soil or groundwater
  sampling done upon completion of the clean-up work.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  WASTEWATER
  TREATMENT/DISCHARGE

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Do you discharge
  industrial wastewater to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  o   storm drain?

  	
  o   sewer?

  
	
   

  	
   

  	
  o   surface water?

  	
  o   no industrial discharge

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Is your industrial
  wastewater treated before discharge?    Yes  o   No  o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.3           Attach copies of any wastewater discharge permits issued
  to your company with respect to its operations on the premises.

  
	
   

  	
   

  	
   

  
	
  6.

  	
  AIR DISCHARGES.

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Do you have any air
  filtration systems or stacks that discharge into the air?

  
	
   

  	
   

  	
  Yes o       No
  o

  
	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Do you operate any
  equipment that require air emissions permits?

  
	
   

  	
   

  	
  Yes o       No
  o

  
	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Attach copies of any air
  discharge permits pertaining to these operations.

  
	
   

  	
   

  	
   

  
	
  7

  	
  HAZARDOUS MATERIALS
  DISCLOSURES.

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Does your company handle
  an aggregate of at least 500 pounds, 55 gallons or 200 cubic feet of
  hazardous material at any given time?    Yes  o   No  o

  
	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Has your company prepared
  a Hazardous Materials Disclosure — Chemical Inventory and Business Emergency
  Plan or similar disclosure document pursuant to state or county requirements?
      Yes  o   No  o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, attach a copy.

  



 





















 


 


	
   

  	
  7.3

  	
  Are any of the chemicals
  used in your operations regulated under Proposition 65?

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, describe the procedures
  followed to comply with these requirements.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Is your company subject to
  OSHA Hazard Communication Standard Requirements?

  
	
   

  	
   

  	
  Yes    o

  	
   

  	
  No    o

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, describe the
  procedures followed to comply with these requirements.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  ANIMAL TESTING.

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Does your company bring or
  intend to bring live animals onto the premises for research or development
  purposes?  Yes    o    No    o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, describe the
  activity.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Does your company bring or
  intend to bring animal body parts or bodily fluids onto the premises for
  research or development purposes?   Yes    o    No    o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, describe the
  activity.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  ENFORCEMENT
  ACTIONS, COMPLAINTS.

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Has your company ever been
  subject to any agency enforcement actions, administrative orders, lawsuits,
  or consent orders/decrees regarding environmental compliance or health and
  safety?   Yes    o    No    o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If so, describe the
  actions and any continuing obligations imposed as a result of these actions.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Has your company ever
  received any request for information, notice of violation or demand letter,
  complaint, or inquiry regarding environmental compliance or health and
  safety?   Yes    o    No    o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.3        Has
  an environmental audit ever been conducted which concerned operations or
  activities on premises occupied by you?   Yes    o    No    o

  
									



 





















 


	
   

  	
   

  	
  9.4        If
  you answered “yes” to any questions in this section, describe the environmental
  action or complaint and any continuing compliance obligation imposed as a
  result of the same.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
										



 





















 


EXHIBIT C


 


LANDLORD’S DISCLOSURES


 


None


 





















 


EXHIBIT D


 


TENANT’S INSURANCE


 


The
following requirements for Tenant’s insurance shall be in effect at the
Building, and Tenant shall also cause any subtenant to comply with these
requirements.  Landlord reserves the
right to adopt reasonable nondiscriminatory modifications and additions to
these insurance requirements.  Tenant
agrees to obtain and present evidence to Landlord that it has fully complied
with the insurance requirements.


 


1.             Tenant shall, at its sole cost and expense,
commencing on the date Tenant is given access to the Premises for any purpose
and during the entire Term, procure, pay for and keep in full force and
effect:  (i) commercial general
liability insurance with respect to the Premises and the operations of or on
behalf of Tenant in, on or about the Premises, including but not limited to
coverage for personal injury, independent contractors, broad form property
damage, fire and water legal liability, products liability (if a product is
sold from the Premises), and liquor law liability (if alcoholic beverages are
sold, served or consumed within the Premises), which policy(ies) shall be
written on an “occurrence” basis and for not less than the amount set forth in
Item 13 of the Basic Lease Provisions, with a combined single limit (with
a $50,000 minimum limit on fire legal liability) per occurrence for bodily
injury, death, and property damage liability, or the current limit of liability
carried by Tenant, whichever is greater, and subject to such increases in
amounts as Landlord may determine from time to time; (ii) workers’
compensation insurance coverage as required by law, together with employers’
liability insurance of at least One Million Dollars ($1,000,000.00); (iii) with
respect to Alterations and the like required or permitted to be made by Tenant
under this Lease, builder’s risk insurance, in an amount equal to the
replacement cost of the work; (iv) insurance against fire, vandalism,
malicious mischief and such other additional perils as may be included in a
standard “special form” policy, insuring Tenant’s Alterations, trade fixtures,
furnishings, equipment and items of personal property of Tenant located in the
Premises, in an amount equal to not less than ninety percent (90%) of their
actual replacement cost (with replacement cost endorsement); and (v) business
interruption insurance in amounts satisfactory to cover one (1) year of
loss.  In no event shall the limits of
any policy be considered as limiting the liability of Tenant under this Lease.


 


2.             In the event Landlord consents to Tenant’s
use, generation or storage of Hazardous Materials on, under or about the
Premises pursuant to Section 5.3 of this Lease, Landlord shall have the
continuing right to require Tenant, at Tenant’s sole cost and expense (provided
the same is available for purchase upon commercially reasonable terms), to
purchase insurance specified and approved by Landlord, with coverage not less
than Five Million Dollars ($5,000,000.00), insuring (i) any Hazardous
Materials shall be removed from the Premises, (ii) the Premises shall be
restored to a clean, healthy, safe and sanitary condition, and (iii) any
liability of Tenant, Landlord and Landlord’s officers, directors, shareholders,
agents, employees and representatives, arising from such Hazardous Materials.


 


3.             All policies of insurance required to be
carried by Tenant pursuant to this Exhibit D containing a
deductible exceeding Ten Thousand Dollars ($10,000.00) per occurrence must be
approved in writing by Landlord prior to the issuance of such policy.  Tenant shall be solely responsible for the
payment of all deductibles.


 


4.             All policies of insurance required to be
carried by Tenant pursuant to this Exhibit D shall be written by
responsible insurance companies authorized to do business in the State of
California and with a general policyholder rating of not less than “A-” and
financial rating of not less than “VIII” in the most current Best’s Insurance
Report.  Any insurance required of Tenant
may be furnished by Tenant under any blanket policy carried by it or under a
separate policy.  A true and exact copy
of each paid up policy evidencing the insurance (appropriately authenticated by
the insurer) or a certificate of insurance, certifying that the policy has been
issued, provides the coverage required by this Exhibit D and
contains the required provisions, together with endorsements acceptable to
Landlord evidencing the waiver of subrogation and additional insured provisions
required below, shall be delivered to Landlord prior to the date Tenant is
given the right of possession of the Premises. 
Proper evidence of the renewal of any insurance coverage shall also be
delivered to Landlord not less than five (5) days after the renewal of the
coverage.  Landlord may at any time, and
from time to time, inspect and/or copy any and all insurance policies required
by this Lease.


 


5.             Each policy evidencing insurance required to
be carried by Tenant pursuant to this Exhibit D shall contain the
following provisions and/or clauses satisfactory to Landlord:  (i) with respect to Tenant’s commercial
general liability insurance, a provision that the policy and the coverage
provided shall be primary and that any coverage carried by Landlord shall be
noncontributory with respect to any policies carried by Tenant, together with a
provision including Landlord, the Additional Insureds identified in Item 11 of
the Basic Lease Provisions, and any other parties in interest designated by
Landlord, as additional insureds; (ii) except with respect to Tenant’s
commercial general liability insurance, a waiver by the insurer of any right to
subrogation against Landlord, its agents, employees, contractors and
representatives which arises or might arise by reason of any payment under the
policy or by reason of any act or omission of Landlord, its agents, employees,
contractors or representatives; and (iii) a provision that the insurer
will endeavor to provide written 


 


1





















 


notice
to the Landlord thirty (30) days prior to canceling or changing coverage provided
by the policy.


 


6.             In the event that Tenant fails to procure,
maintain and/or pay for, at the times and for the durations specified in this Exhibit D,
any insurance required by this Exhibit D, or fails to carry
insurance required by any governmental authority, Landlord may at its election
procure that insurance and pay the premiums, in which event Tenant shall repay
Landlord all sums paid by Landlord, together with interest at the maximum rate
permitted by law and any related costs or expenses incurred by Landlord, within
ten (10) days following Landlord’s written demand to Tenant.


 


NOTICE TO TENANT: 
IN ACCORDANCE WITH THE TERMS OF THIS LEASE, TENANT MUST PROVIDE EVIDENCE
OF THE REQUIRED INSURANCE TO LANDLORD’S MANAGEMENT AGENT PRIOR TO BEING AFFORDED
ACCESS TO THE PREMISES.


 


2





















 


EXHIBIT E


RULES AND REGULATIONS


 


This Exhibit sets forth the rules and regulations governing
Tenant’s use of the Premises leased to Tenant pursuant to the terms, covenants
and conditions of the Lease to which this Exhibit is attached and therein
made part thereof.  In the event of any
conflict or inconsistency between this Exhibit and the Lease, the Lease
shall control.


 


1.             Tenant shall not
place anything or allow anything to be placed near the glass of any window,
door, partition or wall, which may appear unsightly from outside the Premises.


 


2.             The walls, walkways,
sidewalks, entrance passages, elevators, stairwells, courts and vestibules
shall not be obstructed or used for any purpose other than ingress and egress
of pedestrian travel to and from the Premises, and shall not be used for
smoking, loitering or gathering, or to display, store or place any merchandise,
equipment or devices, or for any other purpose. 
The walkways, sidewalks, entrance passageways, courts, vestibules and
roof are not for the use of the general public and Landlord shall in all cases
retain the right to control and prevent access thereto by all persons whose
presence in the judgment of the Landlord shall be prejudicial to the safety,
character, reputation and interests of the Building and its tenants, provided
that nothing herein contained shall be construed to prevent such access to
persons with whom Tenant normally deals in the ordinary course of Tenant’s
business unless such persons are engaged in illegal activities.  Smoking is permitted outside the building and
within the project only in areas designated by Landlord.  No tenant or employee or invitee or agent of
any tenant shall be permitted upon the roof of the Building without prior
written approval from Landlord.


 


3.             No awnings or other
projection shall be attached to the outside walls of the Building.  No security bars or gates, curtains, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of the Premises without the prior written consent of
Landlord.  Neither the interior nor
exterior of any windows shall be coated or otherwise sunscreened without the
express written consent of Landlord.


 


4.             Tenant shall not
mark, nail, paint, drill into, or in any way deface any part of the Premises or
the Building except to affix standard pictures or other wall hangings on the
interior walls of the premises so long as they are not visible from the
exterior of the building.  Tenant shall
not lay linoleum, tile, carpet or other similar floor covering so that the same
shall be affixed to the floor of the Premises in any manner except as approved
by Landlord in writing.  The expense of
repairing any damage resulting from a violation of this rule or removal of
any floor covering shall be borne by Tenant.


 


5.             The toilet rooms,
urinals, wash bowls and other plumbing apparatus shall not be used for any
purpose other than that for which they were constructed and no foreign
substance of any kind whatsoever shall be thrown therein.  Any pipes or tubing used by Tenant to
transmit water to an appliance or device in the Premises must be made of copper
or stainless steel, and in no event shall plastic tubing be used for that purpose.  The expense of any breakage, stoppage or
damage resulting from the violation of this rule shall be borne by the
tenant who, or whose employees or invitees, caused it.


 


6.             Landlord shall direct
electricians as to the manner and location of any future telephone wiring.  No boring or cutting for wires will be
allowed without the prior consent of Landlord. 
The locations of the telephones, call boxes and other office equipment affixed
to the Premises shall be subject to the prior written approval of Landlord.


 


7.             The Premises shall
not be used for manufacturing or for the storage of merchandise except as such
storage may be incidental to the permitted use of the Premises.  No exterior storage shall be allowed at any
time without the prior written approval of Landlord.  The Premises shall not be used for cooking or
washing clothes without the prior written consent of Landlord, or for lodging
or sleeping or for any immoral or illegal purposes.


 


8.             Tenant shall not
make, or permit to be made, any unseemly or disturbing noises or disturb or
interfere with occupants of this or neighboring buildings or premises or those
having business with them, whether by the use of any musical instrument, radio,
phonograph, noise, or otherwise.  Tenant
shall not use, keep or permit to be used, or kept, any foul or obnoxious gas or
substance in the Premises or permit or suffer the Premises to be used or
occupied in any manner offensive or objectionable to Landlord or other
occupants of this or neighboring buildings or premises by reason of any odors,
fumes or gases.


 


9.             No animals, except
for seeing eye dogs, shall be permitted at any time within the Premises.


 


10.           Tenant shall
not use the name of the Building or the Project in connection with or in
promoting or advertising the business of Tenant, except as Tenant’s address,
without the written consent of Landlord. 
Landlord shall have the right to prohibit any advertising by any Tenant
which, in Landlord’s reasonable opinion, tends to impair the reputation of the
Project or its desirability for its intended uses, and upon written notice from
Landlord any Tenant shall refrain from or discontinue such advertising.


 


11.           Canvassing, soliciting,
peddling, parading, picketing, demonstrating or otherwise engaging in any
conduct that unreasonably impairs the value or use of the Premises or the
Project are prohibited and each Tenant shall cooperate to prevent the
same.  Landlord shall have full and
absolute authority to regulate or prohibit the entrance to the Premises of any
vendor, supplier, purveyor, petitioner, proselytizer or other similar person
if, in the good faith judgment of Landlord, such person will be involved in
general solicitation activities, or the proselytizing, petitioning, or
disturbance of other tenants or their customers or invitees, or engaged or
likely to engage in conduct which may in 


 


1





















 


Landlord’s opinion distract from the use of the Premises for its
intended purpose.  Notwithstanding the
foregoing, Landlord reserves the absolute right and discretion to limit or
prevent access to the Buildings by any food or beverage vendor, whether or not
invited by Tenant, and Landlord may condition such access upon the vendor’s
execution of an entry permit agreement which may contain provisions for
insurance coverage and/or the payment of a fee to Landlord.


 


12.           No equipment of
any type shall be placed on the Premises which in Landlord’s opinion exceeds
the load limits of the floor or otherwise threatens the soundness of the structure
or improvements of the Building.


 


13.           Regular building hours
of operation are from 6:00 AM to 6:00 PM Monday through Friday and 9:00 AM to
1:00 PM on Saturday.  No air conditioning
unit or other similar apparatus shall be installed or used by any Tenant
without the prior written consent of Landlord.


 


14.           The entire Premises,
including vestibules, entrances, parking areas, doors, fixtures, windows and
plate glass, shall at all times be maintained in a safe, neat and clean
condition by Tenant.  All trash, refuse
and waste materials shall be regularly removed from the Premises by Tenant and
placed in the containers at the locations designated by Landlord for refuse
collection.  All cardboard boxes must be “broken
down” prior to being placed in the trash container.  All styrofoam chips must be bagged or
otherwise contained prior to placement in the trash container, so as not to
constitute a nuisance.  Pallets must be
immediately disposed of by tenant and may not be disposed of in the Landlord
provided trash container or enclosures. 
Pallets may be neatly stacked in an exterior location on a temporary
basis (no longer than 5 days) so long as Landlord has provided prior written
approval.  The burning of trash, refuse
or waste materials is prohibited.


 


15.           Tenant shall use at
Tenant’s cost such pest extermination contractor as Landlord may direct and at
such intervals as Landlord may require.


 


16.           All keys for the
Premises shall be provided to Tenant by Landlord and Tenant shall return to
Landlord any of such keys so provided upon the termination of the Lease.  Tenant shall not change locks or install
other locks on doors of the Premises, without the prior written consent of
Landlord.  In the event of loss of any
keys furnished by Landlord for Tenant, Tenant shall pay to Landlord the costs
thereof.  Upon the termination of its
tenancy, Tenant shall deliver to Landlord all the keys to lobby(s), suite(s)
and telephone & electrical room(s) which have been furnished to Tenant
or which Tenant shall have had made.


 


17.           No person shall enter
or remain within the Project while intoxicated or under the influence of liquor
or drugs.  Landlord shall have the right
to exclude or expel from the Project any person who, in the absolute discretion
of Landlord, is under the influence of liquor or drugs.


 


18.           The moving of large or
heavy objects shall occur only between those hours as may be designated by, and
only upon previous written notice to, Landlord, and the persons employed to
move those objects in or out of the Building must be reasonably acceptable to
Landlord.  Without limiting the
generality of the foregoing, no freight, furniture or bulky matter of any
description shall be received into or moved out of the lobby of the Building or
carried in the elevator.


 


19.           Tenant shall not
install equipment, such as but not limited to electronic tabulating or computer
equipment, requiring electrical or air conditioning service in excess of that
to be provided by Landlord under the Lease without prior written consent of
Landlord.


 


20.           Landlord may from time
to time grant other tenants of the project individual and temporary variances
from these Rules, provided that any variance does not have a material adverse
effect on the use and enjoyment of the Premises by Tenant.


 


21.           Landlord reserves the
right to amend or supplement the foregoing Rules and Regulations and to
adopt and promulgate additional rules and regulations applicable to the
Premises.  Notice of such rules and
regulations and amendments and supplements thereto, if any, shall be given to
the Tenant.


 


2