exv10w26



 






[ * ] = Certain confidential information contained in this document, marked by brackets,
has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




Exhibit 10.26




Legacy Baytech Park




Lease Agreement




Basic Lease Information




	 	 	 	 	 
	Lease Date:

	 	May 24, 2006	 	 
	 
	 	 	 	 
	Landlord:	 	LEGACY PARTNERS I SAN JOSE, LLC,
	 	 	a Delaware limited liability company
	 
	 	 	 	 
	Landlord’s Address:	 	c/o Legacy Partners Commercial, Inc.
	 	 	4000 East Third Avenue, Suite 600
	 	 	Foster City, California 94404-4805
	 
	 	 	 	 
	Tenant:	 	Endwave Corporation, a Delaware corporation
	 
	 	 	 	 
	Tenant’s Address:

	 	776 Palomar Avenue	 	 
	 

	 	Sunnyvale, California 94085	 	 
	 
	 	 	 	 
	Premises:	 	Approximately 32,805 rentable square feet as shown on Exhibit A
	 
	 	 	 	 
	Premises Address:

	 	130 Baytech Drive	 	 
	 	 	San Jose, California 95134-2302
	 
	 	 	 	 
	 

	 	Building                     :
	 	Approximately 32,805 rentable square feet
	 

	 	Lot:
	 	APN 015-030-93
	 

	 	Legacy Baytech Park (“Park”):
	 	Approximately 187,742 rentable square feet
	 
	 	 	 	 
	Term:	 	The commencement date of the Lease (“Commencement Date”) shall occur on August 15, 2006 unless the Tenant
Improvements are not Substantially Complete (as each term is defined in Exhibit B) on or before such date, in
which case, the Commencement Date shall be the date the Tenant Improvements are Substantially Complete;
provided, however, if Tenant occupies the Premises prior to Substantial Completion of the Tenant Improvements
for the purpose of doing business, then the Commencement Date shall be the date Tenant occupies the Premises.
The expiration date of the Lease (“Expiration Date”) shall occur on that date which is sixty (60) months
following the Commencement Date.
	 
	 	 	 	 
	Base Rent (¶3):
	 	 	 	 






	 	 	 
	Months of Term	 	Base Rent Per Month
	01 – 12
	 	$[ * ]
	13 – 24
	 	$[ * ]
	25 – 26
	 	$[ * ]
	37 – 48
	 	$[ * ]
	49 – 60
	 	$[ * ]






	 	 	 	 	 
	Advance Rent (¶3):

	 	[ * ]
	 	 
	 
	 	 	 	 
	Security Deposit (¶4):

	 	[ * ]	 	 






	 	 	 
	Tenant’s Share of Operating Expenses (¶6.1):

	 	17.47% of the Park
	Tenant’s Share of Tax Expenses (¶6.2):

	 	17.47% of the Park
	Tenant’s Share of Common Area Utility Costs (¶7.2):

	 	17.47% of the Park
	Tenant’s Share of Utility Expenses (¶7.1):

	 	17.47% of the Park






	 	 	 	 	 
	Permitted Uses (¶9):	 	The Premises shall be used solely for office, research and development, software, storage, light
assembly, marketing and for no other purpose without Landlord’s prior written consent, but only to the
extent permitted by the City of San Jose, California, and all agencies and governmental authorities
having jurisdiction thereof.
	 
	 	 	 	 
	Parking Spaces:	 	One Hundred Twenty-Three (123) non-exclusive and non-designated spaces in the Park
	 
	 	 	 	 
	Broker (¶33):	 	Marty Morici, Colliers International for Tenant
	 	 	Commercial Property Services (CPS) for Landlord
	 
	 	 	 	 
	Exhibits:

	 	Exhibit A -
	 	Premises, Building, Lot and/or Park
	 

	 	Exhibit B -
	 	Tenant Improvements
	 

	 	Exhibit C -
	 	Rules and Regulations
	 

	 	Exhibit D -
	 	Intentionally omitted
	 

	 	Exhibit E -
	 	Tenant’s Initial Hazardous Materials Disclosure Certificate
	 

	 	Exhibit F -
	 	Change of Commencement Date — Example
	 

	 	Exhibit G -
	 	Sign Criteria
	 
	 	 	 	 
	Addenda:

	 	Addendum 1 -
	 	Option to Extend the Lease Term
	 

	 	Addendum 2 -
	 	Letter of Credit






 i.




 









 





Table
of Contents



	 	 	 	 	 	 	 
	 	 	 	 	Page
	1.

	 	Premises
	 	 	1	 
	2.

	 	Occupancy; Adjustment of Commencement Date
	 	 	1	 
	3.

	 	Rent
	 	 	1	 
	4.

	 	Security Deposit
	 	 	2	 
	5.

	 	Condition of Premises; Tenant Improvements
	 	 	2	 
	6.

	 	Additional Rent
	 	 	2	 
	7.

	 	Utilities and Services
	 	 	4	 
	8.

	 	Late Charges
	 	 	4	 
	9.

	 	Use of Premises
	 	 	4	 
	10.

	 	Alterations; and Surrender of Premises
	 	 	5	 
	11.

	 	Repairs and Maintenance
	 	 	6	 
	12.

	 	Insurance
	 	 	7	 
	13.

	 	Limitation of Liability and Indemnity
	 	 	8	 
	14.

	 	Assignment and Subleasing
	 	 	8	 
	15.

	 	Subordination
	 	 	9	 
	16.

	 	Right of Entry
	 	 	10	 
	17.

	 	Estoppel Certificate
	 	 	10	 
	18.

	 	Tenant’s Default
	 	 	10	 
	19.

	 	Remedies for Tenant’s Default
	 	 	11	 
	20.

	 	Holding Over
	 	 	11	 
	21.

	 	Landlord’s Default
	 	 	12	 
	22.

	 	Parking
	 	 	12	 
	23.

	 	Transfer of Landlord’s Interest
	 	 	12	 
	24.

	 	Waiver
	 	 	12	 
	25.

	 	Casualty Damage
	 	 	12	 
	26.

	 	Condemnation
	 	 	13	 
	27.

	 	Environmental Matters/Hazardous Materials
	 	 	13	 
	28.

	 	Financial Statements
	 	 	14	 
	29.

	 	General Provisions
	 	 	14	 
	30.

	 	Signs
	 	 	15	 
	31.

	 	Mortgagee Protection
	 	 	16	 
	32.

	 	Warranties of Tenant
	 	 	16	 
	33.

	 	Brokerage Commission
	 	 	16	 
	34.

	 	Quiet Enjoyment
	 	 	16	 
	35.

	 	Cubicles
	 	 	16	 





 



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




 ii.




 









 





Lease Agreement



The Basic Lease Information and this Lease are, and shall be construed as, a single instrument.




1. Premises



Landlord leases the Premises to Tenant upon the terms and conditions contained herein. Tenant
shall have the right to use, on a non-exclusive basis, parking areas and ancillary facilities
located within the Common Areas of the Park, subject to the terms of this Lease. For purposes of
this Lease, (i) as of the Lease Date, the rentable square footage area of each of the Premises, the
Building and the Park shall be deemed to be the number of rentable square feet as set forth in the
Basic Lease Information, (ii) the rentable square footage of the Premises may include a
proportionate share of certain areas used in common by all occupants of the Building and/or the
Park (for example corridors, common rest-rooms, an electrical room or telephone room) and (iii) the
number of rentable square feet of any of the Building and the Park may subsequently change after
the Lease Date commensurate with any physical modifications to any of the foregoing by Landlord
(but not as a result of calculation using another standard of measurement), and Tenant’s Share
shall accordingly change. The term “Project” means and collectively refers to the Building, Common
Areas, Lot and Park.




2. Occupancy; Adjustment of Commencement Date




     2.1 If Landlord, for any reason whatsoever, cannot deliver possession of the Premises to
Tenant on the Commencement Date in the condition specified in Section 5 and Exhibit B hereof,
Landlord shall neither be subject to any liability nor shall the validity of this Lease be
affected; provided, the Term and the obligation to pay Rent shall commence on the date the
Premises are in the condition required by Section 5 and Exhibit B and possession is actually
tendered to Tenant and the Expiration Date shall be extended commensurately. If the commencement
date and/or the expiration date of this Lease is other than the Commencement Date and Expiration
Date specified in the Basic Lease Information, the parties shall execute a written amendment to
this Lease, substantially in the form of Exhibit F hereto specifying the actual
commencement date, expiration date and the date on which Tenant is to commence paying Rent. Tenant
shall execute and return such amendment to Landlord within fifteen (15) days after Tenant’s receipt
thereof. The word “Term” means the initial term of this Lease and any valid extension(s) thereof.



     2.2 If Landlord permits Tenant to occupy the Premises prior to the actual Commencement Date,
such occupancy shall be at Tenant’s sole risk and subject to all the provisions of this Lease
(including Tenant’s obligation to pay Rent). Additionally, Landlord shall have the right to impose
additional reasonable conditions on Tenant’s early occupancy. As set forth in Section 13 of
Exhibit B hereto, Tenant may access the Premises prior to the Completion Date (as defined
in Exhibit B) to perform Tenant’s Pre-Occupancy Work (as defined in Exhibit B).



     2.3 Tenant shall have a one-time option (the “Termination Option”) to terminate this Lease,
effective as of the last day of the forty-second (42nd) full calendar month of the Lease Term
(“Effective Date”). In the event this Lease is not terminated effective as of the Effective Date,
this Lease shall continue in full force and effect. The Termination Option is granted subject to
the following terms and conditions:



          2.3.1 Tenant delivers to Landlord a written notice of Tenant’s election to exercise the
Termination Option (“Termination Notice”), which notice is given not less than three hundred sixty
five (365) days prior to the Effective Date (the “Termination Date”);




          2.3.2 Tenant shall not have been in default of its obligations under this Lease beyond any
applicable cure periods at any time during the Lease Term; and




          2.3.3 Tenant pays to Landlord, concurrently with Tenant’s exercise of the Termination Option
and delivery to Landlord of the Termination Notice as required above, a cash lease termination fee
(collectively, the “Fee”) in the aggregate amount of (a) a sum equal to the unamortized portion of
the costs of the improvements and alterations made by Landlord to the Premises; (b) a sum equal to
the unamortized portion of the brokerage commissions paid by Landlord in connection with this Lease
and (c) an additional fee in the amount of Sixty Thousand Dollars ($60,000). If the Termination
Notice is not given as and when required by the provisions of this Section 2.2 set forth above and
the sums required by the provisions of this Section 2.2 set forth above are not paid concurrently
with Tenant’s delivery to Landlord of the Termination Notice, then Tenant’s Termination Option as
provided for herein shall forever terminate and be of no further force or effect. At all times
during the period from the date the Termination Notice is given through the Termination Date Tenant
shall be fully obligated to perform all obligations required to be performed by it under the Lease
as and when required by this Lease, including, without limitation, the payment of Base Rent and
Tenant’s Share of Direct Expenses.




          2.3.4 If Tenant timely and properly exercises the Termination Option, (i) all Rent payable
under this Lease shall be paid through and apportioned as of the Termination Date (in addition to
payment by Tenant of the Fee); (ii) neither party shall have any rights, estates, liabilities, or
obligations under this Lease for the period accruing after the Termination Date, except those
which, by the provisions of this Lease, expressly survive the expiration or termination of the
Lease; (iii) Tenant shall surrender and vacate the Premises and deliver possession thereof to
Landlord on or before the Termination Date in the condition required under this Lease for surrender
of the Premises; and (iv) Landlord and Tenant shall enter into a written agreement reflecting the
termination of this Lease upon the terms provided for herein, which agreement shall be executed
within thirty (30) days after Tenant exercises the Termination Option and delivers to Landlord the
Termination Notice and Fee required above. It is the parties’ intention that nothing contained
herein shall impair, diminish or otherwise prevent Landlord from recovering from Tenant such
additional sums as may be necessary for payment of Tenant’s Share of Operating Expenses, Tax
Expenses, Common Area Utility Costs, and Utility Expenses and any other sums due and payable under
this Lease (provided such sums relate to items accrued prior to the expiration or earlier
termination of the Lease), including without limitation, any sums required to repair any damage to
the Premises and/or restore the Premises to the condition required under the provisions of this
Lease.




          2.3.5 The Termination Option shall automatically terminate and become null and void upon the
earlier to occur of (i) the default by Tenant beyond any applicable cure periods of its obligations
under this Lease at any time during the Lease Term; (ii) the termination of Tenant’s right to
possession of the Premises; or (iii) the failure of Tenant to timely or properly exercise the
Termination Option as contemplated herein. This Termination Option is personal to Tenant, and any
Affiliate (as defined in Section 14.8 below) and may not be assigned, voluntarily or involuntarily,
to any party or entity, separate from or as part of the Lease.




3. Rent



On the date that Tenant executes this Lease, Tenant shall deliver to Landlord the original executed
Lease, the Advance Rent (which shall be applied against Rent payable for the first month(s) Tenant
is required to pay Rent), the Security Deposit, and all insurance certificates required to be
delivered under Section 12 and Exhibit B of this Lease. Tenant agrees to pay Landlord
without prior notice or demand, abatement, offset, deduction or claim, in advance at Landlord’s
Address, on the Commencement Date and thereafter on the



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


1









 






first (1st) day of each month throughout the Term (i) Base Rent and (ii) as Additional Rent,
Tenant’s Share of Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
Expenses. The term “Rent” means the aggregate of all these amounts. If Landlord permits Tenant to
occupy the Premises without requiring Tenant to pay rental payments for a period of time, the
waiver of the requirement to pay rental payments shall only apply to the waiver of Base Rent. If
any rental payment date (including the Commencement Date) falls on a day of the month other than
the first day of such month or if any rental payment is for a period which is shorter than one (1)
month, then the rental for any such fractional month shall be a proportionate amount of a full
calendar month’s rental based on the proportion that the number of days in such fractional month
bears to the number of days in the calendar month during which the fractional month occurs. All
other payments or adjustments required to be made under the terms of this Lease that require
proration on a time basis shall be prorated in the same manner. To the extent not already paid as
part of the Advance Rent any prorated Rent shall be paid on the Commencement Date, and any prorated
Rent for the final calendar month shall be paid on the first day of the calendar month in which the
date of expiration or termination occurs.




4. Security Deposit



Simultaneously with Tenant’s execution and delivery of this Lease, Tenant shall deliver to
Landlord, as a Security Deposit for the faithful performance by Tenant of its obligations under
this Lease, the amount specified in the Basic Lease Information. If Tenant is in default
hereunder, Landlord may, but without obligation to do so, use all or any portion of the Security
Deposit to cure the default or to compensate Landlord for all damages sustained by Landlord in
connection therewith. Tenant shall, immediately on demand, pay to Landlord a sum equal to the
portion of the Security Deposit so applied or used to replenish the amount of the Security Deposit
held to increase such deposit to the amount initially deposited with Landlord. At the expiration
or earlier termination of this Lease, within the time period(s) prescribed by California Civil Code
Section 1950.7 (or any successor law), Landlord shall return the Security Deposit to Tenant, less
such amounts as are reasonably necessary, as determined by Landlord, to remedy Tenant’s default(s)
hereunder or to otherwise restore the Premises to a clean and safe condition, reasonable wear and
tear excepted. If the cost to restore the Premises exceeds the amount of the Security Deposit,
Tenant shall promptly deliver to Landlord any and all of such excess sums. Landlord shall not be
required to segregate the Security Deposit from other funds, and, unless required by law, interest
shall not be paid on the Security Deposit. Tenant shall not have any use of, or right of offset
against, the Security Deposit.




5. Condition of Premises; Tenant Improvements



Tenant agrees (i) to accept the Premises on the Commencement Date (and by taking possession of the
Premises Tenant shall be deemed to have accepted the Premises) as then being suitable for Tenant’s
intended use and in good operating order, condition and repair in its then existing “AS IS”
condition, except as otherwise set forth in Exhibit B hereto and (ii) that except as
expressly set forth in this Lease, neither Landlord nor any of Landlord’s agents, representatives
or employees has made any representations as to the suitability, fitness or condition of the
Premises for the conduct of Tenant’s business or for any other purpose, including without
limitation, any storage incidental thereto. The Tenant Improvements (defined in Exhibit B)
shall be installed in accordance with the terms and provisions of Exhibit B.
Notwithstanding the foregoing, within five (5) business days after the Substantial Completion (as
such term is defined in Exhibit B hereto) of the Tenant Improvements representatives of Landlord
and Tenant shall make a joint inspection of the Tenant Improvements and the results of such
inspection shall be set forth in a written list specifying the incomplete items as well as those
items for which corrections need to be made (the “Punchlist Items”). Landlord and Tenant shall
promptly (by no later than three (3) business days thereafter) and in good faith approve the
written list of Punchlist Items. Landlord, at its sole cost and expense, shall use commercially
reasonable efforts to cause the Punchlist Items to be completed and/or corrected, as applicable,
within thirty (30) days following the approval by Landlord and Tenant of the written list of
Punchlist Items. Upon completion of the Punchlist Items to Tenant’s reasonable satisfaction Tenant
shall promptly notify Landlord in writing that such items have been completed to Tenant’s
reasonable satisfaction.




6. Additional Rent



Landlord and Tenant intend that this Lease be a “triple net lease.” The costs and expenses
described in this Section 6 and all other sums, charges, costs and expenses specified in this Lease
other than Base Rent are to be paid by Tenant to Landlord as additional rent (collectively,
“Additional Rent”).




     6.1 Operating Expenses:



          6.1.1 Definition of Operating Expenses: Tenant shall pay to Landlord Tenant’s Share of all
Operating Expenses as Additional Rent. The term “Operating Expenses” means the total amounts paid
or payable by Landlord in connection with the ownership, management, maintenance, repair and
operation of the Premises and Project, except as expressly excluded from the definition of
Operating Expenses. The term “Common Areas” means (a) all areas and facilities within the Park
exclusive of the Premises and other portions of the Park leasable exclusively to other tenants and
(b) the areas within the Building which are not leased exclusively to any tenant in the Building.
The Common Areas include, but are not limited to, interior lobbies, main electric room,
telecommunications closets, mezzanines, parking areas, access and perimeter roads, sidewalks, and
landscaped areas (and Tenant acknowledges and agrees that the size and shape of the Common Areas
may be altered in the event the parcel or subdivision map referenced below in this Section 6.1.1 is
recorded). Operating Expenses may include, but are not limited to, Landlord’s cost of: (i)
repairs to, and maintenance of, the roof membrane, the non-structural portions of the roof and the
non-structural elements of the perimeter exterior walls of the Building; (ii) maintaining the
Common Areas of the Building and Park; (iii) annual insurance premium(s) for any and all insurance
Landlord elects to obtain, including without limitation, “all risk” or “special purpose” coverage,
earthquake and flood for the Project, rental value insurance, and subject to Section 25 below, any
deductible; (iv) (a) modifications and/or new improvements to any portion of the Project occasioned
by any rules, laws or regulations effective subsequent to the Lease Date; (b) reasonably necessary
replacement improvements to any portion of the Project after the Commencement Date amortized as set
forth below; and (c) new improvements to the Project that are intended to reduce operating costs or
improve life/safety conditions; provided, if such costs are of a capital nature, then such costs or
allocable portions thereof shall be amortized on a straight-line basis over the estimated useful
life of the capital item in accordance with real estate industry standards, as reasonably
determined by Landlord (but in no event less than ten (10) years), together with reasonable
interest on the unamortized balance; (v) the management and administration of the Project,
including, without limitation, a property management fee, accounting, auditing, billing, postage,
salaries and benefits for employees, whether located on the Project or off-site, payroll taxes and
legal and accounting costs and all fees, licenses and permits related to the ownership, operation
and management of the Project; (vi) preventative maintenance and repair contracts including, but
not limited to, contracts for elevator systems (if any), heating, ventilation and air conditioning
systems and lifts for disabled persons; (vii) security and fire protection services for any portion
of the Project, if and to the extent, in Landlord’s sole discretion, such services are provided;
(viii) the creation and modification of any licenses, easements or other similar undertakings with
respect to the Project, including, without limitation, the cost of the creation, management and
operation of an owner’s association to manage and operate the Park at any time and from time to
time (the “Association”); (ix) supplies, materials, equipment, rental equipment and other similar
items used in the operation and/or maintenance of the Project and any reasonable reserves
established for replacement or repair of any Common Area improvements or equipment; (x) any and all
levies, charges, fees and/or assessments payable to the Association or any other applicable owner’s
association or similar body; (xi) any barrier removal work or other required improvements,
alterations or work to any portion of the Project generally required under the ADA (defined below)
(the “ADA Work”); provided, if such ADA Work is required under the ADA due to Tenant’s use of the
Premises or any Alteration (defined below) (other



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


2









 






 than the initial Tenant Improvements) made to the Premises by or on behalf of Tenant, then the
cost of such ADA Work shall be borne solely by Tenant and shall not be included as part of the
Operating Expenses; and (xii) the repairs and maintenance items set forth in Section 11.2 below.
Landlord shall have the right, from time to time, to equitably allocate and prorate some or all of
the Operating Expenses among different tenants and/or different buildings of the Project and/or on
a building by building basis and Tenant acknowledges and agrees that Landlord shall have the right,
in its sole and absolute discretion, to record a parcel or subdivision map with respect to the Park
or a portion of the Park, the recordation of which may have the effect of increasing or decreasing
Tenant’s Share of Operating Expenses. In either of such events, Tenant’s Share of Operating
Expenses shall be commensurately revised to reflect any such increases or decreases that may result
therefrom.




          6.1.2 Operating Expense Exclusions: The term “Operating Expenses” shall not include: (i)
costs (including permit, license, and inspection fees) incurred in renovating, improving or
decorating vacant space or space for other tenants within the Project; (ii) costs incurred because
Landlord or another tenant actually violated the terms and conditions of any lease within the
Project; (iii) legal and auditing fees (other than those fees reasonably incurred in connection
with the maintenance and operation of any portion the Project), leasing commissions, advertising
expenses, and other costs incurred in connection with the original leasing of the Project or future
re-leasing of any portion of the Project; (iv) depreciation of the Building or any other
improvements situated within the Project; (v) any items for which Landlord is actually reimbursed;
(vi) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or
costs of repair or other work necessitated by the exercise of the right of eminent domain to the
extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord
for such purposes; provided, such costs of repairs or other work shall be paid by the parties in
accordance with the provisions of Sections 25 and 26, below; (vii) other than any interest charges
for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on
any financing for the Building or the Park, interest and penalties incurred as a result of
Landlord’s late payment of any invoice (provided that Tenant pays Tenant’s Share of Operating
Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent
loss or reserves for same; (viii) costs associated with the investigation and/or remediation of
Hazardous Materials (hereafter defined) present in, on or about any portion of the Project, unless
such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which
event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof;
(ix) Landlord’s cost for the repairs and maintenance items set forth in Section 11.3; (x) overhead
and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or
services in the Project to the extent the same exceeds the costs of such by unaffiliated third
parties on a competitive basis; or any costs included in Operating Expenses representing an amount
paid to any entity related to Landlord which is in excess of the amount which would have been paid
in the absence of such relationship; (xi) any payments under a ground lease or master lease; (xii)
any costs, fines, or penalties incurred due to violations by Landlord of any governmental rule or
authority, this Lease or any other lease in the Project, or due to Landlord’s gross negligence or
willful misconduct; (xiii) the cost of correcting any building code or other violations, which
written violations were actually known to Landlord prior to the Commencement Date of this Lease;
(xiv) the cost of containing, removing, or otherwise remediating any contamination of the Project
(including the underlying land and ground water) by any Hazardous Materials (including, without
limitation, asbestos and “PCB’s”) in the event such contamination is not the responsibility or
liability of Tenant under Section 27 of this Lease; (xv) management costs to the extent they
exceed commercially reasonable management fees at comparable properties or business parks; (xvi)
costs for sculpture, paintings, or other objects of art (and insurance thereon or extraordinary
security in connection therewith); and (xvii) any costs which may be incurred by Landlord to bring
the Project into compliance with the ADA in effect prior
to the Commencement Date, except to the
extent such non-compliance results from Tenant’s particular use of the Premises.




     6.2 Tax Expenses: Tenant shall pay to Landlord Tenant’s Share of all Tax Expenses applicable
to the Project. Prior to delinquency, Tenant shall pay any and all taxes and assessments levied
upon Tenant’s Property (defined below in Section 10) located or installed in or about the Premises
by, or on behalf of Tenant. To the extent any such taxes or assessments are not separately
assessed or billed to Tenant, then Tenant shall pay the amount thereof as invoiced by Landlord.
Tenant shall also reimburse and pay Landlord, as Additional Rent, within ten (10) days after demand
therefor, one hundred percent (100%) of (i) any increase in real property taxes attributable to any
and all Alterations (defined below in Section 10), Tenant Improvements, fixtures, equipment or
other improvements of any kind whatsoever placed in, on or about the Premises for the benefit of,
at the request of, or by Tenant, and (ii) taxes and assessments levied or assessed upon or with
respect to the possession, operation, use or occupancy by Tenant of the Premises or any other
portion of the Project. “Tax Expenses” means, without limitation, any form of tax and assessment
(general, special, supplemental, ordinary or extraordinary), commercial rental tax, payments under
any improvement bond or bonds, license fees, license tax, business license fee, rental tax,
transaction tax or levy imposed by any authority having the direct or indirect power of tax
(including any governmental, school, agricultural, lighting or other improvement district) as
against any legal or equitable interest of Landlord in the Premises, Project or Park or any other
tax, fee, or excise, however described, including, but not limited to, any tax resulting from the
recordation of any parcel or subdivision map with respect to the Park and/or any tax imposed in
substitution (partially or totally) of any tax previously included within the definition of Tax
Expenses. “Tax Expenses” shall not include (a) any franchise, estate, inheritance, net income, or
excess profits tax imposed upon Landlord, (b) any penalty or fee imposed solely as a result of
Landlord’s failure to pay Tax Expenses when due, and (c) any items included as Operating Expenses.
In the event that a parcel or subdivision map with respect to the Park or a portion of the Park is
recorded by Landlord, Tenant’s Share of Tax Expenses shall be commensurately revised to reflect any
increases or decreases that may result from the impact of such parcel or subdivision map.



     6.3 Payment of Expenses: Landlord shall estimate Tenant’s Share of the Operating Expenses and
Tax Expenses for the calendar year in which the Lease commences. Commencing on the Commencement
Date, one-twelfth (1/12th) of this estimated amount shall be paid by Tenant to Landlord, as
Additional Rent, and thereafter on the first (1st) day of each month throughout the remaining
months of such calendar year. Thereafter, Landlord may estimate such expenses for each calendar
year during the Term of this Lease and Tenant shall pay one-twelfth (1/12th) of such estimated
amount as Additional Rent on the first (1st) day of each month throughout the Term. Tenant’s
obligation to pay Tenant’s Share of Operating Expenses and Tax Expenses shall survive the
expiration or earlier termination of this Lease.



     6.4 Annual Reconciliation: By June 30th of each calendar year, Landlord shall furnish Tenant
with an accounting of actual and accrued Operating Expenses and Tax Expenses; provided, failure by
Landlord to give such accounting by such date shall not constitute a waiver by Landlord of its
right to collect any underpayment by Tenant at any time. Within thirty (30) days of Landlord’s
delivery of such accounting, Tenant shall pay to Landlord the amount of any underpayment. Landlord
shall credit the amount of any overpayment by Tenant toward the next estimated monthly
installment(s) falling due, or if the Term of the Lease has expired, refund the amount of
overpayment to Tenant as soon as possible thereafter, and no later than thirty (30) days following
the finalization of such accounting. If the Term of the Lease expires prior to the annual
reconciliation of expenses Landlord shall have the right to reasonably estimate Tenant’s Share of
such expenses, and deduct any underpayment from Tenant’s Security Deposit. Failure by Landlord to
accurately estimate Tenant’s Share of such expenses or to otherwise perform such reconciliation
shall not constitute a waiver of Landlord’s right to collect any underpayment at any time during
the Term or after the expiration or earlier termination of this Lease.



     6.5 Audit: After delivery to Landlord of at least thirty (30) days prior written notice,
Tenant, at its sole cost and expense through any accountant designated by it, shall have the right
to examine and/or audit the books and records evidencing such expenses for the previous one (1)
calendar year, during Landlord’s reasonable business hours but not more frequently than once during
any calendar year. Tenant may not compensate any such accountant on a contingency fee basis. The
results of any such audit (and


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




3









 







any negotiations between the parties related thereto) shall be maintained strictly
confidential by Tenant and its accounting firm and shall not be disclosed, published or otherwise
disseminated to any other party other than to Landlord and its authorized agents, unless required
by applicable law. Landlord and Tenant each shall use its commercially reasonable efforts to
cooperate in such negotiations and to promptly resolve any discrepancies between Landlord and
Tenant in the accounting of such expenses. If through such audit it is determined that there is a
discrepancy of more than five percent (5%), then Landlord shall reimburse Tenant for the reasonable
accounting costs and expenses incurred by Tenant in performing such audit, including Tenant’s
in-house or outside auditors or accountants.




7. Utilities and Services




     Tenant shall pay the cost of all (i) water, sewer use, sewer discharge fees and sewer connection
fees, gas, electricity, telephone, telecommunications, cabling and other utilities billed or
metered separately to the Premises and (ii) refuse pickup and janitorial service to the Premises.



     7.1 Utility Expenses: Tenant shall pay to Landlord Tenant’s Share of any utility fees, use
charges, or similar services that are not billed or metered separately to Tenant (collectively,
“Utility Expenses”). If Landlord reasonably determines that Tenant’s Share of Utility Expenses is
not commensurate with Tenant’s use of such services, Tenant shall pay to Landlord the amount which
is attributable to Tenant’s use of the utilities or similar services, as reasonably estimated and
determined by Landlord, based upon factors such as size of the Premises and intensity of use of
such utilities by Tenant such that Tenant shall pay the portion of such charges reasonably
consistent with Tenant’s use of such utilities and similar services. Tenant shall also pay
Tenant’s Share of any assessments, charges and fees included within any tax bill for the Lot on
which the Premises are situated, including without limitation, entitlement fees, allocation unit
fees and sewer use fees. Notwithstanding anything to the contrary in this Section 7, if Tenant
disputes Landlord’s determination of Tenant’s Share of Utility Expenses, Landlord shall, at
Tenant’s sole cost and expense, have the right, in its sole and absolute discretion, to perform all
work necessary to separately meter (with PG&E meters if such utility is gas or electric) the
utility usage of the Premises.



     7.2 Common Area Utility Costs: Tenant shall pay to Landlord Tenant’s Share of any Common Area
utility fees, charges and expenses (collectively, “Common Area Utility Costs”). Tenant shall pay
to Landlord one-twelfth (1/12th) of the estimated amount of Tenant’s Share of the Common Area
Utility Costs on the Commencement Date and thereafter on the first (1st) day of each month
throughout the Term. Any reconciliation thereof shall be substantially in the same manner as set
forth in Section 6.4 above. Tenant acknowledges and agrees that Tenant’s Share of Common Area
Utility Costs may increase or decrease in the event of the recordation of a parcel or subdivision
map with respect to the Park or a portion of the Park.



     7.3 Miscellaneous: Tenant acknowledges that the Premises may become subject to the rationing
of utility services or restrictions on utility use as required by a public utility company,
governmental agency or other similar entity having jurisdiction thereof. Tenant agrees that its
tenancy and occupancy hereunder shall be subject to such rationing restrictions as may be imposed
upon Landlord, Tenant, the Premises, or other portions of the Project, and Tenant shall in no event
be excused or relieved from any covenant or obligation to be kept or performed by Tenant by reason
of any such rationing or restrictions.



8. Late Charges



The sums and charges set forth in this Section 8 shall be “Additional Rent”. Tenant acknowledges
that late payment (the second (2nd) day of each month or any time thereafter) of Rent and all other
sums due hereunder, will cause Landlord to incur costs not contemplated by this Lease. Such costs
may include, without limitation, processing and accounting charges, and late charges that may be
imposed on Landlord by the terms of any note secured by any encumbrance against the Premises, and
late charges and penalties due to the late payment of real property taxes on the Premises.
Therefore, if any installment of Rent or any other sum payable by Tenant is not received by
Landlord when due, Tenant shall promptly pay to Landlord a late charge, as liquidated damages, in
an amount equal to ten percent (10%) of such delinquent amount plus interest thereon at ten percent
(10%) per annum for every month or portion thereof that such sums remain unpaid. Notwithstanding
the foregoing, Landlord waives the late charge for the first (1st) instance during the Term in
which Tenant fails to timely pay Rent, and interest shall not commence to accrue until the third
(3rd) day following Landlord’s giving to Tenant its notice of default. If Tenant
delivers to Landlord two (2) checks for which there are not sufficient funds, Landlord may require
Tenant to replace such check with a cashier’s check for the amount of such check and all other
charges payable hereunder. The parties agree that this late charge and the other charges
referenced above represent a fair and reasonable estimate of the costs that Landlord will incur by
reason of such late payment by Tenant, excluding attorneys’ fees and costs. Acceptance of any late
charge or other charges shall not constitute a waiver by Landlord of Tenant’s default with respect
to the delinquent amount, nor prevent Landlord from exercising any of the other rights and remedies
available to Landlord for any other default of Tenant under this Lease.




9. Use of Premises




     9.1 Compliance with Laws, Recorded Matters, and Rules and Regulations: The Premises shall be
used solely for the permitted uses specified in the Basic Lease Information and for no other uses
without Landlord’s prior written consent. Landlord’s consent shall not be unreasonably
conditioned, withheld or delayed so long as the proposed change in use (i) does not involve the
use of Hazardous Materials other than as expressly permitted under the provisions of Section 27
below, (ii) does not require any additional parking spaces, and (iii) is compatible and consistent
with the other uses then being made in the Project, as reasonably determined by Landlord. The use
of the Premises by Tenant and its employees, representatives, agents, invitees, licensees,
subtenants, customers or contractors (collectively, “Tenant’s Representatives”) shall be subject
to, and at all times in compliance with, (a) any and all applicable laws, rules, codes, ordinances,
statutes, orders and regulations as same exist from time to time throughout the Term (collectively,
the “Laws”), including without limitation, the requirements of the Americans with Disabilities Act,
a federal law codified at 42 U.S.C. 12101 et seq., including, but not limited to Title III thereof,
all regulations and guidelines related thereto and all requirements of Title 24 of the State of
California (collectively, the “ADA”), (b) any and all instruments, licenses, restrictions,
easements or similar instruments, conveyances or encumbrances which are at any time required to be
made by or given by Landlord relating to the initial development of the Project and/or the
construction, from time to time, of any additional improvements in the Project, including without
limitation, any Tenant Improvements (collectively, “Development Documents”), (c) any and all
documents, easements, covenants, conditions and restrictions, and similar instruments, together
with any and all amendments and supplements thereto made, from time to time, each of which has been
or hereafter is recorded in any official or public records with respect to the Premises or any
other portion of the Project (collectively, “Recorded Matters”), and (d) any and all by laws, rules
and regulations set forth in Exhibit C hereto, any other reasonable rules and regulations now or
hereafter promulgated by Landlord, and any rules, restrictions and/or regulations imposed by the
Association or any other applicable owners association or similar entity (collectively, “Rules and
Regulations”). Landlord reserves to itself the right, from time to time, (1) to grant, without the
consent of Tenant, such easements, rights and dedications that Landlord deems reasonably necessary,
whether in connection with the recordation of a parcel or subdivision map or otherwise; (2) to
cause the recordation of parcel or subdivision maps and/or restrictions, so long as such easements,
rights, dedications, maps and restrictions, as applicable, do not materially and adversely
interfere with Tenant’s operations in the Premises; and (3) to create the Association. Tenant
agrees to sign promptly any documents reasonably requested by Landlord to effectuate any such
easements, rights, dedications, maps or restrictions, to acknowledge creation of the Association or
as otherwise


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


4









 






 reasonably requested by Landlord. Tenant agrees to, and does hereby, assume full and complete
responsibility (x) to ensure that the Premises, including without limitation, the Tenant
Improvements, are in compliance with all applicable Laws throughout the Term and (y) for the
payment of all costs, fees and expenses associated with any modifications, improvements or other
Alterations to the Premises and/or any other portion of the Project occasioned by the enactment of,
or changes to, any Laws arising from Tenant’s particular use of the Premises or Alterations or
other improvements made to the Premises regardless of when such Laws became effective. Tenant
shall have no right to initiate, submit an application for, or otherwise request, any land use
approvals or entitlements with respect to the Premises or any other portion of the Project. Tenant
shall not be responsible for any violation or non-compliance of Laws with regard to the Premises to
the extent such violation or non-compliance of Laws exists prior to the Commencement Date;
provided, however, from and after the Commencement Date, Tenant shall be solely responsible for (y)
the payment of all costs, fees and expenses associated with any modifications, improvements or
other Alterations to the Premises and/or any other portion of the Project occasioned by the
enactment of, or changes to, any Laws arising from Tenant’s particular use of the Premises or
Alterations made to the Premises regardless of when such Laws became effective and (z) the payment
of capital expenditures as part of Operating Expenses to the extent set forth in Section 6.1.1
above.




     9.2 Prohibition on Use: Tenant shall not use the Premises or permit anything to be done in or
about the Premises nor keep or bring anything therein which will increase the existing rate of or
affect any policy of insurance upon the Building or any of its contents, or cause a cancellation of
any insurance policy. No auctions may be conducted in, on or about any portion of the Premises or
the Project without Landlord’s prior written consent thereto. Tenant shall not do or permit
anything to be done in or about the Premises which will obstruct or interfere with the rights of
Landlord or other tenants or occupants of any portion of the Project. The Premises shall not be
used for any unlawful purpose. Tenant shall not cause, maintain or permit any private or public
nuisance in, on or about any portion of the Premises or the Project, including, but not limited to,
any offensive odors, noises, fumes or vibrations. Tenant shall not damage or deface or otherwise
commit or suffer to be committed any waste in, upon or about the Premises or any other portion of
the Project. Tenant shall not place or store, nor permit any other person or entity to place or
store, any property, equipment, materials, supplies or personal property outside of the Premises.
Tenant shall not permit any animals, including, but not limited to, any household pets, to be
brought or kept in or about the Premises. Tenant shall neither install any radio or television
antenna, satellite dish, microwave or other device on the roof or exterior walls of the Building or
any other portion of the Project nor make any penetrations of or to the roof of the Building.
Tenant shall not interfere with radio, telecommunication, or television broadcasting or reception
from or in the Building or elsewhere. Tenant shall place no loads upon the floors, walls, or
ceilings in excess of the maximum designed load permitted by the applicable Uniform Building Code
or which may damage the Building or outside areas within the Project.



10. Alterations; and Surrender of Premises




     10.1 Alterations: Tenant shall be permitted to make, at its sole cost and expense,
non-structural alterations and additions to the interior of the Premises without obtaining
Landlord’s prior written consent, provided said alterations are not part of Tenant’s Wi-Fi Network
(defined hereinbelow), do not affect the Building systems and the cost of such alterations does not
exceed Fifty Thousand Dollars ($50,000) each job and One Hundred Thousand Dollars ($100,000)
cumulatively each calendar year (the “Permitted Improvements”). Tenant, however, shall first
notify Landlord of such Permitted Improvements so that Landlord may post a Notice of
Non-Responsibility on the Premises. Except for the Permitted Improvements, Tenant shall neither
install any signs, fixtures, or improvements, nor make or permit any other alterations or additions
(individually, an “Alteration”, and collectively, “Alterations”) to the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld so long as any such
Alteration does not affect the Building systems, structural integrity or structural components of
the Premises or Building. If any such Alteration is expressly permitted by Landlord, Tenant shall
deliver at least ten (10) days prior written notice to Landlord, from the date Tenant commences
construction, sufficient to enable Landlord to post and record a Notice of Non-Responsibility.
Tenant shall obtain all permits or other governmental approvals prior to commencing any work and
deliver a copy of same to Landlord. All Alterations shall be (i) at Tenant’s sole cost and expense
in accordance with plans and specifications which have been previously submitted to and approved in
writing by Landlord, and shall be installed by a licensed, insured (and bonded, at Landlord’s
option) contractor (reasonably approved by Landlord) in compliance with all applicable Laws,
Development Documents, Recorded Matters, and Rules and Regulations and (ii) performed in a good and
workmanlike manner and so as not to obstruct access to any portion of the Project or any business
of Landlord or any other tenant. Landlord’s approval of any plans, specifications or working
drawings for Tenant’s Alterations shall neither create nor impose any responsibility or liability
on the part of Landlord for their completeness, design sufficiency, or compliance with any Laws.
As Additional Rent, Tenant shall reimburse Landlord, within ten (10) days after demand, for actual
and reasonable legal, engineering, architectural, planning and other expenses incurred by Landlord
in connection with Tenant’s Alterations, plus Tenant shall pay to Landlord a fee equal to five
percent (5%) of the total cost of the Alterations. If Tenant makes any Alterations, Tenant shall
carry “Builder’s All Risk” insurance, in an amount approved by Landlord and such other insurance as
Landlord may require. All such Alterations shall be insured by Tenant in accordance with Section
12 of this Lease immediately upon completion. Tenant shall keep the Premises and the Lot on which
the Premises are situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by or on behalf of Tenant. Tenant shall, prior to commencing any
Alterations, (a) cause its contractor(s) and/or major subcontractor(s) to provide insurance as
reasonably required by Landlord, and (b) provide such assurances to Landlord, including without
limitation, waivers of lien, surety company performance bonds (for projects estimated to cost in
excess of $150,000) as Landlord shall require to assure payment of the costs thereof to protect
Landlord and the Project from and against any mechanic’s, materialmen’s or other liens.



          10.1.1 Wi-Fi Network: Without limiting the generality of the foregoing, in the event Tenant
desires to install wireless intranet, Internet and communications network (“Wi-Fi Network“) in the
Premises for the use by Tenant and its employees, then the same shall be subject to the provisions
of this Section 10.1.1 (in addition to the other provisions of this Section 10). In the event
Landlord consents to Tenant’s installation of such Wi-Fi Network, Tenant shall, in accordance with
Section 10.2 below, remove the Wi-Fi Network from the Premises prior to the termination of the
Lease. Tenant shall use the Wi-Fi Network so as not to cause any interference to other tenants in
the Building or to other tenants at the Park or with any other tenant’s communication equipment,
and not to damage the Building or Park or interfere with the normal operation of the Building or
Park and Tenant hereby agrees to indemnify, defend and hold Landlord harmless from and against any
and all claims, costs, damages, expenses and liabilities (including attorneys’ fees) arising out of
Tenant’s failure to comply with the provisions of this Section 10.1.1, except to the extent same is
caused by the gross negligence or willful misconduct of Landlord and which is not covered by the
insurance carried by Tenant under this Lease (or which would not be covered by the insurance
required to be carried by Tenant under this Lease). Should any interference occur, Tenant shall
take all necessary steps as soon as reasonably possible and no later than three (3) calendar days
following such occurrence to correct such interference. If such interference continues after such
three (3) day period, Tenant shall immediately cease operating such Wi-Fi Network until such
interference is corrected or remedied to Landlord’s reasonable satisfaction. Tenant acknowledges
that Landlord has granted and/or may grant telecommunication rights to other tenants and occupants
of the Building and to telecommunication service providers and in no event shall Landlord be liable
to Tenant for any interference of the same with such Wi-Fi Network. Landlord makes no
representation that the Wi-Fi Network will be able to receive or transmit communication signals
without interference or disturbance. Tenant shall (i) be solely responsible for any damage caused
as a result of the Wi-Fi Network, (ii) promptly pay any tax, license or permit fees charged
pursuant to any laws or regulations in connection with the installation, maintenance or use of the
Wi-Fi Network and comply with all precautions and safeguards recommended by all governmental
authorities, and (iii) pay for all necessary repairs, replacements to or maintenance of the Wi-Fi
Network. Should Landlord be required to retain professionals to research any interference issues
that may arise and to confirm Tenant’s compliance with the terms of this Section 10.11, Landlord
shall retain such professionals at commercially reasonable rates, and Tenant shall reimburse



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


5









 






 Landlord within thirty (30) days following submission to Tenant of an invoice from Landlord,
which costs shall not exceed $1,000 per year (except in the event of a default by Tenant
hereunder). This reimbursement obligation is independent of any rights or remedies Landlord may
have in the event of a breach of default by Tenant under this Lease.




     10.2 Surrender of Premises: At the expiration of the Term or earlier termination of this
Lease, except as provided below in Section 10.2.1, Tenant shall surrender the Premises to Landlord
(a) in good condition and repair (damage by acts of God, casualty, and normal wear and tear
excepted), but with all interior walls cleaned, any carpets cleaned, all floors cleaned and waxed,
all non-working light bulbs and ballasts replaced and all roll-up doors and plumbing fixtures in
good condition and working order, and (b) in accordance with Section 27 hereof. Normal wear and
tear shall not include any damage or deterioration that would have been prevented by proper
maintenance by Tenant, or Tenant otherwise performing all of its obligations under this Lease, or
any damage or deterioration due to or associated with prolonged hours, non-office use, unusually
heavy people loads (defined as more than one person per two hundred (200) rentable square feet),
unusually heavy utility use, unusually heavy floor loads, or other unusual occupancy factors.
Except as set forth below in Section 10.2.1, on or before the expiration or earlier termination of
this Lease, Tenant shall remove (i) all of Tenant’s Property (defined below) and Tenant’s signage
from the Premises and other portions of the Project, (ii) any Alterations Landlord may require
Tenant, by notice to Tenant given at or about the time of Landlord’s granting of consent to their
installation, to remove, and Tenant shall repair any damage caused by all of such removal
activities, at Tenant’s sole expense. “Tenant’s Property” means all equipment, trade fixtures,
furnishings, all telephone, data, and other cabling and wiring (including any cabling and wiring
associated with the Wi-Fi Network, if any) installed or caused to be installed by Tenant (including
any cabling and wiring, installed above the ceiling of the Premises or below the floor of the
Premises), inventories, goods and personal property of Tenant. Any of Tenant’s Property not so
removed by Tenant as required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any
damages resulting from Landlord’s retention and disposition of such property; provided, however,
Tenant shall remain liable to Landlord for all costs incurred in storing and disposing of such
abandoned property of Tenant. Landlord may elect to take responsibility to remove any such wiring
or cabling installed above the ceiling or beneath the floors of the Premises, in which case Tenant
shall pay Landlord for the actual cost incurred by Landlord therefor, (together with a five percent
(5%) supervision/administration fee) within thirty (30) days after being billed for the same. All
Alterations except those which Landlord requires Tenant to remove, shall remain in the Premises as
the property of Landlord. Tenant shall indemnify, defend and hold the Indemnitees (hereafter
defined) harmless from and against any and all Claims (defined below) (x) arising from any delay by
Tenant in so surrendering the Premises including, without limitation, any Claims made against
Landlord by any succeeding tenant or prospective tenant founded on or resulting from such delay and
(y) suffered by Landlord due to lost opportunities to lease any portion of the Premises to any such
succeeding tenant or prospective tenant.



          10.2.1 Restoration Obligation. Notwithstanding anything to the contrary in this Section 10,
prior to Tenant’s surrender of the Premises, Tenant shall have the obligation to restore the area
of the Premises in which Tenant’s lab shall be located to its original condition at the time of
Lease execution, including, but not limited to, restoring smooth surface ceiling tiles and ESD
flooring to Building Standard finishes, removal of lab equipment electrical stubbed to the
distribution panel, and demolition of lab partitions; provided, however, Tenant shall not be
required to remove any dedicated heating, ventilating and air conditioning (“HVAC”) unit(s) serving
the lab; rather, Tenant shall have the right to leave the HVAC unit on the roof but shall remove
all electrical components related to the HVAC, ductwork, diffusers and any other components related
to the HVAC and make any necessary repairs to the Premises, to the reasonable satisfaction of
Landlord. Such work shall be at Tenant’s sole cost and expense and shall be performed prior to the
expiration or earlier termination of the Term of the Lease.




11. Repairs and Maintenance




     11.1 Tenant’s Repairs and Maintenance Obligations: Except for those portions of the Building
to be maintained by Landlord, as provided in Sections 11.2 and 11.3 below, Tenant shall, at its
sole cost and expense, keep and maintain all parts of the Premises and such portions of the
Building as are within the exclusive control of Tenant in good, clean and safe condition and
repair, promptly making all necessary repairs and replacements, whether ordinary or extraordinary,
with materials and workmanship of the same character, kind and quality as the original thereof, all
of the foregoing in accordance with the applicable provisions of Section 10 hereof, and to the
reasonable satisfaction of Landlord including, but not limited to, repairing any damage (and
replacing any property so damaged) caused by Tenant or any of Tenant’s Representatives, or due to
or associated with prolonged hours, non-office use, unusually heavy people loads (defined as more
than one person per two hundred (200) rentable square feet), unusually heavy utility use, unusually
heavy floor loads, or other unusual occupancy factors, and restoring the Premises and other
portions of the Project to the condition existing prior to the occurrence of such damage. Without
limiting any of the foregoing, Tenant shall be solely responsible for promptly maintaining,
repairing and replacing (a) all mechanical systems, heating, ventilation and air conditioning
(“HVAC”) systems serving the Premises, (b) all plumbing work and fixtures, (c) electrical wiring
systems, fixtures and equipment exclusively serving the Premises, (d) all interior lighting
(including, without limitation, light bulbs and/or ballasts) and exterior lighting exclusively
serving the Premises or adjacent to the Premises, (e) all glass, windows, window frames, window
casements, skylights, interior and exterior doors, door frames and door closers, (f) all roll-up
doors, ramps and dock equipment, including without limitation, dock bumpers, dock plates, dock
seals, dock levelers and dock lights, (g) all tenant signage, (h) lifts for disabled persons
serving the Premises, (i) sprinkler systems, fire protection systems and security systems, except
to the extent maintained by Landlord, and (j) all partitions, fixtures, equipment, interior
painting, interior walls and floors, and floor coverings of the Premises and every part thereof
(including, without limitation, any demising walls contiguous to any portion of the Premises).
Tenant shall maintain throughout the Term a current contract with a vendor qualified to repair and
maintain the HVAC systems serving the Premises, which vendor shall be reasonably approved by
Landlord. Additionally, Tenant shall be solely responsible for the performance of the regular
removal of trash and debris. Notwithstanding the foregoing, Landlord shall have the right, but not
the obligation, exercisable at any time, to directly contract with an HVAC vendor to perform the
preventive maintenance on the mechanical and/or HVAC equipment, including, without limitation, the
right to obtain a semi-annual HVAC condition report, in which event the costs and expenses
associated with such services and/or report shall be part of the definition of Operating Expenses
herein. Should Landlord elect to directly contract for such HVAC condition report, then Tenant,
upon receipt of such report, shall promptly make all repairs and/or replacements indicated on such
report. So long as Tenant does not utilize the generator currently located at the Building or
request its use, Tenant shall have no responsibility for any repairs or maintenance of such
generator at the Building.



     11.2 Maintenance by Landlord: Subject to Tenant’s obligation under Section 6 to reimburse
Landlord, in the form of Additional Rent, for Tenant’s Share of the cost and expense of the
following described items, Landlord shall repair and maintain the following items: fire protection
services; the roof and roof coverings (provided that Tenant installs no additional air conditioning
or other equipment on the roof that damages the roof coverings, in which event Tenant shall pay all
costs relating to the presence of such additional equipment); any elevator that serves the
Premises; the plumbing and mechanical systems serving the Building, including the boiler for the
Building but excluding the plumbing, mechanical and electrical systems exclusively serving the
Premises; any rail spur and rail crossing; exterior painting of the Building; and the parking
areas, pavement, landscaping, sprinkler systems, sidewalks, driveways, curbs, and lighting systems
in the Common Areas. If Landlord elects to perform any repair or restoration work required to be
performed by Tenant, Tenant shall reimburse Landlord upon demand for all costs and expenses
incurred by Landlord in connection therewith. Tenant shall promptly report, in writing, to
Landlord any defective condition known to it which Landlord is required to repair.



     11.3 Landlord’s Repairs and Maintenance Obligations: Subject to the provisions of Sections 25
and 26, and except for repairs rendered necessary by the intentional or negligent acts or omissions
of Tenant or any of Tenant’s Representatives or


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


6









 






 Tenant’s failure to perform its obligations under Section 11.1 above, Landlord shall, at
Landlord’s sole cost and expense, keep in good repair the structural portions of the floors,
foundations and exterior perimeter walls of the Building (exclusive of glass and exterior doors),
and the structural portions of the roof of the Building (excluding the roof membrane).




     11.4 Tenant’s Failure to Perform Repairs and Maintenance Obligations: If Tenant refuses or
neglects to repair and maintain the Premises and the other areas properly as required herein and to
the reasonable satisfaction of Landlord, (i) Landlord may, but without obligation to do so, at any
time make such repairs or maintenance without Landlord having any liability to Tenant for any loss
or damage that may accrue to Tenant’s Property or to Tenant’s business by reason thereof, except to
the extent any damage is caused by the willful misconduct or gross negligence of Landlord or its
authorized agents and representatives and (ii) Tenant shall pay to Landlord, as Additional Rent,
Landlord’s costs and expenses incurred therefor. Tenant’s obligations under this Section 11 shall
survive the expiration of the Term or earlier termination thereof. Tenant hereby waives any right
to repair at the expense of Landlord under any applicable Laws now or hereafter in effect.



12. Insurance




     12.1 Types of Insurance: Tenant shall maintain in full force and effect at all times during
the Term, at Tenant’s sole cost and expense, for the protection of Tenant and Landlord, as their
interests may appear, policies of insurance issued by carriers reasonably acceptable to Landlord
and its lender which afford the following coverages: (i) worker’s compensation and employer’s
liability, as required by law; (ii) commercial general liability insurance (occurrence form)
providing coverage against any and all claims for bodily injury and property damage occurring in,
on or about the Premises arising out of Tenant’s and Tenant’s Representatives’ use or occupancy of
the Premises and such insurance shall (a) include coverage for blanket contractual liability, fire
damage, premises, personal injury, completed operations and products liability, and (b) have a
combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence with a Three
Million Dollar ($3,000,000) aggregate limit and excess/umbrella insurance in the amount of Three
Million Dollars ($3,000,000) (if Tenant has other locations which it owns or leases, the policy
shall include an aggregate limit per location endorsement); (iii) comprehensive automobile
liability insurance with a combined single limit of at least $1,000,000 per occurrence for claims
arising out of any company owned automobiles; (iv) “all risk” or “special purpose” property
insurance, including without limitation, sprinkler leakage, covering damage to or loss of any of
Tenant’s Property and the Tenant Improvements (including the Cubicles and Equipment (as defined in
Section 35)) located in, on or about the Premises, and in addition, coverage for flood and business
interruption of Tenant, together with, if the property of any of Tenant’s invitees, vendors or
customers is to be kept in the Premises, warehouser’s legal liability or bailee customers
insurance for the full replacement cost of the property belonging to such parties and located in
the Premises. Such insurance shall be written on a replacement cost basis (without deduction for
depreciation) in an amount equal to one hundred percent (100%) of the full replacement value of the
aggregate of the items referred to in this clause (iv); and (v) such other insurance or higher
limits of liability as is then customarily required for similar types of buildings within the
general vicinity of the Project or as may be reasonably required by any of Landlord’s lenders.



     12.2 Insurance Policies: Insurance required to be maintained by Tenant shall be written by
companies (i) licensed to do business in the State of California, (ii) domiciled in the United
States of America, and (iii) having a “General Policyholders Rating” of at least A:X (or such
higher rating as may be required by a lender having a lien on the Premises) as set forth in the
most current issue of “A.M. Best’s Rating Guides.” Any deductible amounts under any of the
insurance policies required hereunder shall not exceed Five Thousand Dollars ($5,000). Tenant
shall deliver to Landlord certificates of insurance and true and complete copies of any and all
endorsements required herein for all insurance required to be maintained by Tenant hereunder at the
time of execution of this Lease by Tenant. Tenant shall, at least fifteen (15) days prior to
expiration of each policy, furnish Landlord with certificates of renewal or “binders” thereof.
Each certificate shall expressly provide that such policies shall not be cancelable or otherwise
subject to material modification except after thirty (30) days prior written notice to the parties
named as additional insureds as required in this Lease (except for cancellation for nonpayment of
premium, in which event cancellation shall not take effect until at least ten (10) days’ notice has
been given to Landlord). Tenant shall have the right to provide insurance coverage which it is
obligated to carry pursuant to the terms of this Lease under a blanket insurance policy, provided
such blanket policy expressly affords coverage for the Premises and Landlord as required by this
Lease.



     12.3 Additional Insureds and Coverage: Each of Landlord, Landlord’s property management
company or agent, and Landlord’s lender(s) having a lien against the Premises or any other portion
of the Project shall be named as additional insureds or loss payees (as applicable) under all of
the policies required in Section 12.1(ii) and, with respect to the Tenant Improvements, in Section
12.1(iv) hereof. All such policies shall provide for severability of interest. All insurance to
be maintained by Tenant shall, except for workers’ compensation and employer’s liability insurance,
be primary, without right of contribution from insurance maintained by Landlord. Any
umbrella/excess liability policy (which shall be in “following form”) shall provide that if the
underlying aggregate is exhausted, the excess coverage will drop down as primary insurance. The
limits of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. It
is the parties’ intention that the insurance to be procured and maintained by Tenant as required
herein shall provide coverage for any and all damage or injury arising from or related to Tenant’s
operations of its business and/or Tenant’s or Tenant’s Representatives’ use of the Premises and any
of the areas within the Project. Notwithstanding anything to the contrary contained herein, to the
extent Landlord’s cost of maintaining insurance with respect to the Building and/or any other
buildings within the Project is increased as a result of Tenant’s acts, omissions, Alterations,
improvements, use or occupancy of the Premises, Tenant shall pay one hundred percent (100%) of, and
for, each such increase as Additional Rent.



     12.4 Failure of Tenant to Purchase and Maintain Insurance: If Tenant fails to obtain and
maintain the insurance required herein throughout the Term, Landlord may, but without obligation to
do so, purchase the necessary insurance and pay the premiums therefor. If Landlord so elects to
purchase such insurance, Tenant shall promptly pay to Landlord as Additional Rent, the amount so
paid by Landlord, upon Landlord’s demand therefor. In addition, Landlord may recover from Tenant
and Tenant agrees to pay, as Additional Rent, any and all Claims which Landlord may incur due to
Tenant’s failure to obtain and maintain such insurance.



     12.5 Waiver of Subrogation: Landlord and Tenant mutually waive their respective rights of
recovery against each other for any loss of, or damage to, either party’s property to the extent
that such loss or damage is insured by an insurance policy required to be in effect at the time of
such loss or damage. Each party shall obtain any special endorsements, if required by its insurer,
whereby the insurer waives its rights of subrogation against the other party. This provision is
intended to waive fully, and for the benefit of the parties hereto, any rights and/or claims which
might give rise to a right of subrogation in favor of any insurance carrier.



     12.6 Landlord’s Insurance: Landlord shall maintain in full force and effect during the Term
of this Lease, subject to reimbursement as provided in Section 6, policies of insurance which
afford such coverages as are commercially reasonable and as is consistent with other properties in
Landlord’s or Landlord’s affiliates’ portfolio. Notwithstanding the foregoing, Landlord shall
obtain and keep in force during the Term of this Lease, as an item of Operating Expenses, a policy
or policies in the name of Landlord, with loss payable to Landlord and to the holders of any
mortgages, deeds of trust or ground leases on the Premises (“Lender(s)”), (i) on an “all risk” or
“special form” basis, insuring loss or damage to the Building, including all improvements, fixtures
(other than trade fixtures) and permanent additions (ii) insuring loss or damage to the Tenant
Improvements (but not any of Tenant’s Personal Property (as defined in Exhibit B) or the
Nitrogen Tank) caused by earthquake. Except as set forth above with respect to earthquake coverage
for the Tenant Improvements, all alterations, additions and improvements made to the Premises by
Tenant (including the Tenant Improvements and the Nitrogen Tank) shall be insured by Tenant rather
than by Landlord. Subject to the foregoing, the amount of the “all risk” or “special


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


7









 






 form” insurance procured by Landlord shall be equal to at least ninety percent (90%) of the
full replacement cost of the Building (excluding the cost of excavation and installation of
footings), including all improvements and permanent additions as the same shall exist from time to
time, or the amount required by Lenders. At Landlord’s option, Landlord shall insure against all
risks of direct physical loss or damage to the Building (including, without limitation, the perils
of flood and earthquake), including coverage for any additional costs resulting from debris removal
and reasonable amounts of coverage for the enforcement of any ordinance or law regulating the
reconstruction or replacement of any undamaged sections of the Building required to be demolished
or removed by reason of the enforcement of any building, zoning, safety or land use laws as the
result of a covered cause of loss. If any such insurance coverage procured by Landlord has a
deductible clause, the deductible shall not exceed reasonable amounts and as is then consistent
with Landlord’s or its affiliates’ portfolio, and in the event of any casualty, the amount of such
deductible shall be an item of Operating Expenses as so limited. Notwithstanding anything to the
contrary contained herein, to the extent the cost of maintaining insurance with respect to the
Building is increased as a result of Tenant’s acts, omissions, alterations, improvements
(including, without limitation, the Tenant Improvements), use or occupancy of the Premises, Tenant
shall pay one hundred percent (100%) of, and for, such increase(s) as Additional Rent.




13. Limitation of Liability and Indemnity



Except to the extent of Claims (defined below) resulting from the gross negligence or willful
misconduct of Landlord or its authorized representatives, Tenant agrees to protect, defend (with
counsel reasonably acceptable to Landlord) and hold Landlord and Landlord’s lenders, partners,
members, property management company (if other than Landlord), agents, directors, officers,
employees, representatives, contractors, successors and assigns and each of their respective
partners, members, directors, officers, employees, representatives, agents, contractors, heirs,
successors and assigns (collectively, the “Indemnitees”) harmless and indemnify the Indemnitees
from and against all liabilities, damages, demands, penalties, costs, claims, losses, judgments,
charges and expenses (including reasonable attorneys’ fees, costs of court and expenses necessary
in the prosecution or defense of any litigation including the enforcement of this provision)
(collectively, “Claims”) arising from or in any way related to, directly or indirectly, (i)
Tenant’s or Tenant’s Representatives’ use of the Premises and other portions of the Project, (ii)
the conduct of Tenant’s business, (iii) from any activity, work or thing done, permitted or
suffered by Tenant in or about the Premises, and/or (iv) Tenant’s failure to perform any covenant
or obligation of Tenant under this Lease. Tenant agrees that the obligations of Tenant herein
shall survive the expiration or earlier termination of this Lease.



Except to the extent of Claims resulting from the gross negligence or willful misconduct of
Landlord or its authorized representatives, to the fullest extent permitted by law, Tenant agrees
that neither Landlord nor any of the Indemnitees shall at any time or to any extent whatsoever be
liable, responsible or in any way accountable for any loss, liability, injury, death or damage to
persons or property which at any time may be suffered or sustained by Tenant or by any person(s)
whomsoever who may at any time be using, occupying or visiting the Premises or any other portion of
the Project, including, but not limited to, any acts, errors or omissions of any other tenants or
occupants of the Project. Tenant shall not, in any event or circumstance, be permitted to offset
or otherwise credit against any payments of Rent required herein for matters for which Landlord may
be liable hereunder.




14. Assignment and Subleasing




     14.1 Prohibition: Except in connection with a Transfer (defined below) to an Affiliate,
Tenant shall not, without the prior written consent of Landlord, assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer this Lease or any interest
herein, permit any assignment or other transfer of this Lease by operation of law, sublet the
Premises or any part thereof, or permit the use of the Premises by any persons other than Tenant
and Tenant’s Representatives (collectively, “Transfers” and any entity to whom any Transfer is made
or sought to be made is sometimes referred to as a “Transferee”). No consent to any Transfer shall
constitute a waiver of the provisions of this Section 14, and all subsequent Transfers may be made
only with the prior written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed, but which consent shall be subject to the provisions of this Section 14.



     14.2 Request for Consent: If Tenant seeks to make a Transfer, Tenant shall notify Landlord,
in writing (“Tenant’s Notice”), and deliver to Landlord at least thirty (30) days prior to the
proposed commencement date of the Transfer (“Proposed Effective Date”) the following: (i) a
description of the portion of the Premises to be transferred (the “Subject Space”); (ii) all of the
terms of the proposed Transfer, including without limitation, the Proposed Effective Date, the name
and address of the proposed Transferee, and a copy of the existing or proposed assignment, sublease
or other agreement governing the proposed Transfer; (iii) current financial statements of the
proposed Transferee certified by an officer, member, partner or owner thereof, and audited
financial statements for the previous three (3) most recent consecutive fiscal years if available;
and (iv) such other information as Landlord may then reasonably require. Within twenty (20) days
after Landlord’s receipt of the Tenant’s Notice (the “Landlord Response Period”) Landlord shall
notify Tenant, in writing, of its determination with respect to such requested proposed Transfer
and Landlord’s election as set forth in Section 14.5. If Landlord does not elect to recapture
pursuant to Section 14.5 and Landlord does consent to the requested proposed Transfer, Tenant may
thereafter assign its interests in and to this Lease or sublease all or a portion of the Premises
to the same party and on the same terms as set forth in the Tenant’s Notice.



     14.3 Criteria for Consent: Tenant agrees that, among other circumstances for which Landlord
could reasonably withhold consent to a proposed Transfer, it shall be reasonable for Landlord to
withhold its consent where (a) Tenant is in default of its obligations under this Lease beyond
applicable notice and cure periods or at any time during the Term of this Lease Tenant has been in
Chronic Default, (b) the use to be made of the Premises by the proposed Transferee is prohibited,
or differs from the uses permitted, under this Lease, (c) the proposed Transferee or its business
is subject to compliance with additional requirements of the ADA beyond those requirements which
are applicable to Tenant, (d) the proposed Transferee does not intend to occupy the Premises, (e)
Landlord reasonably disapproves of the proposed Transferee’s business operating ability or history,
reputation or creditworthiness or the character of the business to be conducted at the Premises,
(f) the proposed Transferee is a governmental agency or unit or an existing tenant in the Project,
(g) the proposed Transfer would cause Landlord to violate another agreement or obligation to which
Landlord is a party or otherwise subject, (h) either the proposed Transferee, or any person or
entity which directly or indirectly, controls, is controlled by, or is under common control with,
the proposed Transferee: (1) is negotiating with Landlord to lease space in the Building at such
time or (2) has negotiated with Landlord during the four (4) month period immediately preceding the
Tenant’s Notice, (i) the rent proposed to be charged by Tenant to the proposed Transferee during
the term of such Transfer, calculated using a present value analysis, is less than seventy percent
(70%) of the rent then being quoted by Landlord, at the proposed time of such Transfer, for
comparable space in the Building or any other Building in the Project for a comparable term,
calculated using a present value system, or (j) the proposed Transferee will use, store or handle
Hazardous Materials (defined below) of a type, nature or quantity not then being used by Tenant.



     14.4 Effectiveness of Transfer and Continuing Obligations: Prior to the date on which any
Transfer approved by Landlord becomes effective, Tenant shall deliver to Landlord (i) a counterpart
of the fully executed Transfer document, (ii) an executed Hazardous Materials Disclosure
Certificate substantially in the form of Exhibit E hereto (the “Transferee HazMat
Certificate”), and (iii) Landlord’s standard form of Consent to Assignment or Consent to Sublease,
as applicable (provided, Landlord shall make reasonable modifications to such standard forms so
long as all other conditions of Landlord’s consent to a Transfer are satisfied), executed by Tenant
and the Transferee in which each of Tenant and the Transferee confirms its obligations under this
Lease. Failure or refusal of a


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


8









 






 Transferee to execute any such consent instrument shall not release or discharge the
Transferee from its obligation to do so or from any liability as provided herein. The voluntary,
involuntary or other surrender of this Lease by Tenant, or a mutual cancellation by Landlord and
Tenant, shall not work a merger, and any such surrender or cancellation shall, at the option of
Landlord, either terminate all or any existing subleases or operate as an assignment to Landlord of
any or all of such subleases. Each approved assignee shall assume and be deemed to assume this
Lease and shall be and remain liable jointly and severally with Tenant for payment of Rent and for
the due performance of, and compliance with all the terms, covenants, conditions and agreements
herein contained on Tenant’s part to be performed or complied with, for the Term of this Lease.
Each approved subtenant shall confirm its understanding that its sublease is subordinate to this
Lease. No Transfer shall affect the continuing primary liability of Tenant (which, following
assignment, shall be joint and several with the assignee) under this Lease whether occurring before
or after such Transfer, and Tenant shall not be released from performing any of the terms,
covenants and conditions of this Lease. An assignee of Tenant shall become directly liable to
Landlord for all obligations of Tenant hereunder. The acceptance of any Rent by Landlord from any
other person (whether or not such person is an occupant of the Premises) shall not be deemed to be
a waiver by Landlord of any provision of this Lease or to be a consent to any Transfer. For
purposes hereof, if Tenant is a business entity other than a public company traded on a nationally
recognized stock exchange, direct or indirect transfer of fifty percent (50%) or more of the
ownership interest of the entity (whether in a single transaction or in the aggregate through more
than one transaction) shall be deemed a Transfer and shall be subject to this Section 14. Any and
all options, rights of refusal, improvement allowances and other similar rights granted to Tenant
in this Lease, if any, shall not be assignable by Tenant (except to an Affiliate) unless expressly
authorized in writing by Landlord. Any Transfer made without Landlord’s prior written consent,
shall, at Landlord’s option, be null, void and of no effect, and shall, at Landlord’s option,
constitute a material default by Tenant of this Lease. As Additional Rent, Tenant shall promptly
(a) pay to Landlord each time it requests a Transfer (except to an Affiliate), a fee in the amount
of one thousand dollars ($1,000) and (b) reimburse Landlord for reasonable and actual legal and
other expenses incurred by Landlord in connection with any actual or proposed Transfer.




     14.5 Recapture: If the Transfer (i) by itself or taken together with then existing or pending
Transfers covers or totals, as the case may be, more than fifty percent (50%) of the rentable
square feet of the Premises, or (ii) is for a term which by itself or taken together with then
existing or pending Transfers is greater than seventy-five percent (75%) of the period then
remaining in the Term of this Lease as of the time of the Proposed Effective Date, then Landlord
shall have the right, to be exercised by giving written notice to Tenant, to recapture the Subject
Space described in the Tenant’s Notice. If such recapture notice is given, it shall serve to
terminate this Lease with respect to the proposed Subject Space, or, if the proposed Subject Space
covers all the Premises, it shall serve to terminate the entire Term of this Lease, in either case,
as of the Proposed Effective Date. If this Lease is terminated with respect to less than the
entire Premises, Rent shall be adjusted on the basis of the proportion of rentable square feet
retained by Tenant to the rentable square feet originally demised and this Lease as so amended
shall continue thereafter in full force and effect.



     14.6 Transfer Premium: If Landlord consents to a Transfer, as a condition thereto, Tenant
shall pay to Landlord monthly, as Additional Rent, at the same time as the monthly installments of
Rent are payable hereunder, fifty percent (50%) of any Transfer Premium. The term “Transfer
Premium” shall mean all rent, additional rent and other consideration received by Tenant from such
Transferee, after deducting all commercially reasonable attorneys’ fees, brokerage commissions and
tenant improvement costs incurred by Tenant in connection with such Transfer, which either
initially or over the term of the Transfer exceeds the Rent or pro rata portion of the Rent, as the
case may be, for the Subject Space.



     14.7 Waiver: Notwithstanding any Transfer, or any indulgences, waivers or extensions of time
granted by Landlord to any Transferee, or failure by Landlord to take action against any
Transferee, Tenant agrees that Landlord may, at its option, proceed against Tenant without having
taken action against or joined such Transferee, except that Tenant shall have the benefit of any
indulgences, waivers and extensions of time granted to any such Transferee.



     14.8 Affiliated Companies/Restructuring of Business Organization: The assignment or
subletting by Tenant of all or any portion of this Lease or the Premises to (i) a parent or
subsidiary of Tenant, or (ii) any person or entity which controls, is controlled by or under the
common control with Tenant, or (iii) any entity which purchases all or substantially all of the
assets of Tenant or Tenant’s parent corporation, or (iv) any entity into which Tenant or Tenant’s
parent corporation is merged or consolidated (all such persons or entities described in clauses (i)
(ii), (iii) and (iv) being sometimes herein referred to as “Affiliates”) shall not be deemed a
Transfer under the Section 14 (hence, the aforesaid events shall not be subject to obtaining
Landlord’s prior consent; Landlord shall not have any right to receive any Transfer Premium in
connection therewith; and Landlord shall not have the recapture rights described in Section 14.5
above), provided in all instances that;



          14.8.1 any such Affiliate was not formed as a subterfuge to avoid the obligations of this
Section 14;




          14.8.2 Tenant shall give Landlord prior written notice of any such assignment or sublease to
an Affiliate (provided, if Tenant is prohibited by law from giving Landlord prior written notice,
then Tenant shall provide written notice to Landlord within ten (10) days following such assignment
or sublease);




          14.8.3 the successor Tenant has as of the effective date of any such assignment or sublease a
tangible net worth and net assets, in the aggregate, computed in accordance with generally accepted
accounting principles (but excluding goodwill as an asset), which is sufficient to meet the
obligations of Tenant under this Lease, as reasonably determined by Landlord;




          14.8.4 any such assignment or sublease shall be subject to all of the terms and provisions of
this Lease, and each assignee (i.e. any such Affiliate), other than in the case of an Affiliate
resulting from a merger or consolidation as described in Section 14.8(iv) above, shall assume, in a
written document reasonably satisfactory to Landlord and delivered to Landlord upon or prior to the
effective date of such assignment, all the obligations of Tenant under this Lease (and each
subtenant shall acknowledge and agree that any such sublease is subordinate to the terms of this
Lease); and




          14.8.5 Tenant (except in the case of an Affiliate resulting from the acquisition of all or
substantially all of the assets of Tenant described in Section 14.8(iii) or from a merger or
consolidation as described in Section 14.8(iv) above) and any guarantor shall remain fully liable
for all obligations to be performed by Tenant under this Lease.




15. Subordination



To the fullest extent permitted by law, this Lease, the rights of Tenant under this Lease and
Tenant’s leasehold interest shall be subject and subordinate at all times to: (i) all ground
leases or underlying leases which may now exist or hereafter be executed affecting the Building,
the Lot, or any other portion of the Project, and (ii) the lien of any mortgage or deed of trust
which may now or hereafter exist for which the Building, the Lot, ground leases or underlying
leases, any other portion of the Project or Landlord’s interest or estate therein is specified as
security. Notwithstanding the foregoing, Landlord or any such ground lessor, mortgagee, or any
beneficiary (any such ground lessor, mortgagee or beneficiary referred to herein as a “Holder”)
shall have the right to require this Lease be superior to any such ground leases or underlying
leases or any such liens, mortgage or deed of trust. If any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall attorn to and become the Tenant of the successor
in interest to Landlord, provided such successor in interest agrees that it will not disturb
Tenant’s use, occupancy or quiet enjoyment of the Premises if Tenant is not in material default
beyond any applicable



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




9









 







cure period under this Lease. The successor in interest to Landlord following foreclosure, sale or
deed in lieu thereof shall not be: (a) liable for any act or omission of any prior lessor or with
respect to events occurring prior to acquisition of ownership; (b) subject to any offsets or
defenses which Tenant might have against any prior lessor; (c) bound by prepayment of more than one
(1) month’s Rent; or (d) liable to Tenant for any Security Deposit not actually received by such
successor in interest to the extent any portion of such Security Deposit has not already been
forfeited by, or refunded to, Tenant. Landlord shall be liable to Tenant for all or any portion of
the Security Deposit not forfeited by, or refunded to Tenant, until and unless Landlord transfers
such Security Deposit to the successor in interest. Tenant covenants and agrees to execute (and
acknowledge if required by Landlord, any lender or ground lessor) and deliver, within five (5) days
of a written demand or request by Landlord and in the form reasonably requested by Landlord and/or
a Holder, any additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or the lien of any such mortgage or deed of
trust.



Tenant waives the provisions of any current or future statute, rule or law which may give or
purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease
and the obligations of the Tenant hereunder in the event of any foreclosure proceeding or sale.



Tenant hereby acknowledges that as of the date of execution of this Lease, there is a deed of trust
encumbering Landlord’s interest in the Park in favor of Redwood Capital Finance Company, LLC, a
Delaware limited liability company (the “Current Lender”). Tenant shall within ten (10) days
following a written request made by Landlord at any time, execute, notarize and deliver to Landlord
a subordination, non-disturbance and attornment agreement (i) in the form attached to this Lease as
Exhibit H and incorporated herein by this reference (the “SNDA”) or (ii) in such other form
as may then be reasonably required by the Current Lender or other current or future Holder.
Landlord shall endeavor to cause the Current Lender and any other current or future Holder to
execute, notarize and deliver to Tenant the SNDA or such other form of subordination,
non-disturbance and attornment agreement, as applicable, but Landlord shall not be in default under
this Lease and shall have no liability to Tenant whatsoever if Landlord is unable to obtain and
deliver to Tenant the SNDA or such other form of subordination, non-disturbance and attornment
agreement executed by the Current Lender or other current or future Holder, as applicable.




16. Right of Entry



Landlord and its agents shall have the right to enter the Premises at all reasonable times, upon
reasonable prior notice using commercially reasonable efforts to provide such notice not less than
twenty four (24) hours in advance, for purposes of inspection, exhibition, posting of notices,
investigation, replacements, repair, maintenance and alteration. It is further agreed (except in
the event of an emergency in which case no notice shall be required) that Landlord shall have the
right to use any and all means Landlord deems necessary to enter the Premises in an emergency.
Landlord shall have the right to place (i) “for rent” or “for lease” signs (during the last eight
(8) months of the Term) on the outside of the Premises, the Building and in the Common Areas, and
(ii) “for sale” signs on the outside of the Building and in the Common Areas. Tenant hereby waives
any Claim from damages or for any injury or inconvenience to or interference with Tenant’s
business, or any other loss occasioned thereby except for any Claim for any of the foregoing
arising out of the gross negligence or willful misconduct of Landlord or its authorized
representatives.




17. Estoppel Certificate



Each party (“Responding Party”) shall execute (and acknowledge if required by any lender or ground
lessor) and deliver to the other party upon its request (the “Requesting Party”), within ten (10)
days after such request, a statement in writing certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification), the date to which
the Rent and other charges are paid in advance, if any, acknowledging that there are not, to the
Responding Party’s knowledge, any uncured defaults on the part of the Requesting Party hereunder or
specifying such defaults as are claimed, and such other matters as may be reasonably required. Any
such statement may be conclusively relied upon by Landlord and any prospective purchaser or
encumbrancer of the Building or other portions of the Project, and by Tenant, its transferees,
investors, lenders or other interested parties. Failure to deliver such statement within such time
shall be conclusive upon the Responding Party that (a) this Lease is in full force and effect,
without modification except as may be represented by the Requesting Party; (b) there are no uncured
defaults in the Requesting Party’s performance; and (c) not more than one month’s Rent has been
paid in advance.




18. Tenant’s Default



The occurrence of any one or more of the following events shall, at Landlord’s option, constitute a
material default by Tenant of the provisions of this Lease:




     18.1 The abandonment of the Premises by Tenant, as abandonment is statutorily defined in
California Civil Code Section 1951.3 or all similar or successor laws;



     18.2 The failure by Tenant to make any payment of Rent, Additional Rent or any other payment
required hereunder within three (3) business days after Landlord’s delivery to Tenant of written
notice that said payment is due or past due; provided, any such written notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil Procedure Sections 1161
et. seq. and all similar or successor laws;



     18.3 Except as otherwise provided in Section 19.4 hereof, the failure by Tenant to observe,
perform or comply with any of the conditions, covenants or provisions of this Lease (except failure
to make any payment of Rent and/or Additional Rent and any other payment or charge required
hereunder) and such failure is not cured within (i) thirty (30) days of the date on which Landlord
delivers written notice of such failure to Tenant for all failures other than with respect to (a)
Hazardous Materials (defined in Section 27 hereof), (b) Tenant making the repairs, maintenance and
replacements required under the provisions of Section 11.1 hereof, or (c) the timely delivery by
Tenant of a subordination, non-disturbance and attornment agreement (an “SNDA”), a counterpart of a
fully executed Transfer document and a consent thereto (collectively, the “Transfer Documents”), an
estoppel certificate and insurance certificates, (ii) ten (10) days of the date on which Landlord
delivers written notice of such failure to Tenant for all failures in any way related to Hazardous
Materials or Tenant failing to timely make the repairs, maintenance or replacements required by
Section 11.1, and (iii) the time period, if any, specified in the applicable sections of this Lease
with respect to subordination, assignment and sublease, estoppel certificates and insurance.
However, Tenant shall not be in default of its obligations hereunder if such failure (other than
any failure of Tenant to timely and properly make the repairs, maintenance, or replacements
required by Section 11.1, or timely deliver an SNDA, the Transfer Documents, an estoppel
certificate or insurance certificates, for which no additional cure period shall be given to
Tenant) cannot reasonably be cured within such thirty (30) or ten (10) day period, as applicable,
and Tenant promptly commences, and thereafter diligently proceeds with same to completion, all
actions necessary to cure such failure as soon as is reasonably possible, but in no event shall the
completion of such cure be later than ninety (90) days after the date on which Landlord delivers to
Tenant written notice of such failure, unless Landlord, acting reasonably and in good faith,
otherwise expressly agrees in writing to a longer period of time based upon the circumstances
relating to such failure as well as the nature of the failure and the nature of the actions
necessary to cure such failure. Any such written notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Sections 1161, et seq. and all
similar or successor laws; or


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




10









 








     18.4 The making of a general assignment by Tenant for the benefit of creditors, the filing of
a voluntary petition by Tenant or the filing of an involuntary petition by any of Tenant’s
creditors seeking the rehabilitation, liquidation, or reorganization of Tenant under any law
relating to bankruptcy, insolvency or other relief of debtors and, in the case of an involuntary
action, the failure to remove or discharge the same within sixty (60) days of such filing, the
appointment of a receiver or other custodian to take possession of substantially all of Tenant’s
assets or this leasehold, Tenant’s insolvency or inability to pay Tenant’s debts or failure
generally to pay Tenant’s debts when due, any court entering a decree or order directing the
winding up or liquidation of Tenant or of substantially all of Tenant’s assets, Tenant taking any
action toward the dissolution or winding up of Tenant’s affairs, the cessation or suspension of
Tenant’s use of the Premises, or the attachment, execution or other judicial seizure of
substantially all of Tenant’s assets or this leasehold.



19. Remedies for Tenant’s Default




     19.1 Landlord’s Rights: In the event of Tenant’s material default under this Lease, Landlord
may terminate Tenant’s right to possess the Premises by any lawful means. Following delivery of
written notice by Landlord, this Lease shall terminate on the date specified in such notice and
Tenant shall immediately surrender possession of the Premises to Landlord. In addition, whether or
not this Lease is terminated, Landlord shall have the right to immediately re-enter the Premises,
and if Landlord’s right of re entry is exercised following Tenant’s abandonment of the Premises,
all of Tenant’s Property left on the Premises or in the Project shall be deemed abandoned. If
Landlord relets the Premises or any portion thereof, Tenant shall immediately be liable to Landlord
for all costs Landlord incurs in reletting the Premises or any part thereof, including, without
limitation, broker’s commissions, expenses of cleaning, redecorating, and further improving the
Premises and other similar costs (collectively, the “Reletting Costs”). All Reletting Costs shall
be fully chargeable to Tenant and shall not be prorated or otherwise amortized in relation to any
new lease for the Premises or any portion thereof. Reletting may be for a period shorter or longer
than the remaining term of this Lease. In no event shall Tenant be entitled to any excess rent
received by Landlord. No act by Landlord other than giving written notice to Tenant shall
terminate this Lease or Tenant’s right to possess the Premises, including without limitation, acts
of maintenance, efforts to relet the Premises or the appointment of a receiver on Landlord’s
initiative to protect Landlord’s interest under this Lease. At all times Landlord shall have the
right to remedy any default of Tenant, to maintain or improve the Premises, to cause a receiver to
be appointed to administer the Premises and any new or existing subleases and to add to the Rent
payable hereunder all of Landlord’s reasonable costs in so doing, with interest at the maximum rate
permitted by law from the date of such expenditure.



     19.2 Damages Recoverable: If Tenant breaches this Lease and abandons the Premises before the
end of the Term, or if Landlord terminates Tenant’s right to possession following Tenant’s breach
or default under this Lease, then in either such case, Landlord may recover from Tenant all damages
suffered by Landlord as a result of Tenant’s failure to perform its obligations hereunder,
including without limitation, the unamortized cost of any Tenant Improvements constructed by or on
behalf of Tenant pursuant to Exhibit B hereto to the extent Landlord has paid for such
improvements, the unamortized portion of any broker’s or leasing agent’s commission incurred with
respect to the leasing of the Premises to Tenant for the balance of the Term remaining after the
date on which Tenant is in default of its obligations hereunder, and all Reletting Costs, and the
worth at the time of the award (computed in accordance with paragraph (3) of Subdivision (a) of
Section 1951.2 of the California Civil Code) of the amount by which the Rent then unpaid hereunder
for the balance of the Lease Term exceeds the amount of such loss of Rent for the same period which
Tenant proves could be reasonably avoided by Landlord and in such case, Landlord prior to the
award, may relet the Premises for the purpose of mitigating damages suffered by Landlord because of
Tenant’s failure to perform its obligations hereunder; provided, however, that even
if Tenant abandons the Premises following such breach, this Lease shall nevertheless continue in
full force and effect for as long as Landlord does not terminate Tenant’s right of possession, and
until such termination, Landlord shall have the remedy described in Section 1951.4 of the
California Civil Code (Landlord may continue this Lease in effect after Tenant’s breach and
abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign,
subject only to reasonable limitations) and may enforce all its rights and remedies under this
Lease, including the right to recover the Rent from Tenant as it becomes due hereunder. The “worth
at the time of the award” within the meaning of Subparagraphs (a)(1) and (a)(2) of Section 1951.2
of the California Civil Code shall be computed by allowing interest at the rate of ten percent
(10%) per annum. Tenant hereby waives for itself and for all those claiming under Tenant its right
to obtain redemption or relief from forfeiture under California Code of Civil Procedure Sections
1174 and 1179 (or any successor or substitute statute), or under any other present or future law,
in the event judgment for possession enters against Tenant or Landlord takes possession of the
Premises following any default of Tenant hereunder.



     19.3 Financial Statements: In the event of Tenant’s material default of this Lease, and in
the event Tenant is not then a public company whose stock is traded on a nationally recognized
stock exchange, Tenant, within five (5) days after Landlord’s request therefor, shall deliver to
Landlord the then current audited financial statements of Tenant (including interim periods
following the end of the last fiscal year for which annual statements are available). If audited
financial statements have not been prepared, Tenant shall provide Landlord with unaudited financial
statements (certified by an authorized representative or officer of Tenant) and such other
information, the type and form of which are reasonably acceptable to Landlord, which reflect the
financial condition of Tenant.



     19.4 Chronic Default: The term “Chronic Default” as used in this Lease shall mean that Tenant
has materially defaulted in the performance of any of its obligations under this Lease beyond any
applicable notice and cure periods more than four (4) times during the Term of the Lease,
regardless of whether or not Tenant cures any such material default. A Chronic Default is not
curable by Tenant. Upon the occurrence of a Chronic Default and at all times thereafter during the
balance of the Term of this Lease, Landlord shall no longer be obligated to provide Tenant written
notice of default as set forth in Section 18.3 hereof and Tenant shall no longer be entitled to any
cure period set forth in this Lease, including without limitation, those cure periods set forth in
Section 18.3. Following a Chronic Default, Landlord, in its sole discretion, may elect to provide
written notice of default to Tenant or grant Tenant a period during which it may cure any such
default, however, no such delivery of written notice or grant of a cure period by Landlord shall in
any way obligate Landlord to provide Tenant any subsequent written notices of default or cure
periods.



     19.5 Rights and Remedies Cumulative: The foregoing rights and remedies of Landlord are not
exclusive; they are cumulative in addition to any rights and remedies now or hereafter existing at
law, in equity, by statute or otherwise, and to any remedies Landlord may have under bankruptcy
laws or laws affecting creditors’ rights generally. In addition to all of the remedies set forth
above, if Tenant materially defaults under this Lease, all options granted to Tenant hereunder
shall automatically terminate, unless otherwise expressly agreed to in writing by Landlord.



20. Holding Over



If Tenant holds over after the expiration of the Term, with or without the express or implied
consent of Landlord, such tenancy shall be from month-to-month only, and shall not constitute a
renewal hereof or an extension for any further term, and in such case Base Rent shall be payable at
a monthly rate equal to one hundred fifty percent (150%) of the Base Rent applicable during the
last rental period of the Term under this Lease for the first sixty (60) days of such holdover and
thereafter, at a monthly rate equal to two hundred percent (200%) of the Base Rent applicable
during the last rental period of the Term under this Lease. Such month-to-month tenancy shall be
subject to every other term and provision contained herein. Landlord hereby expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord in the condition
required herein upon the expiration or earlier termination of this Lease. The provisions of this
Section 20 shall not be deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Tenant fails to surrender the Premises upon the expiration
or earlier termination of this Lease, in addition



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




11









 







to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnify
and hold Landlord harmless from all Claims resulting from such failure, including but not limited
to, any Claims made by any succeeding tenant founded upon such failure to surrender, and any lost
profits to Landlord resulting therefrom.




21. Landlord’s Default



Landlord shall not be considered in default of this Lease unless Landlord fails within a reasonable
time to perform an obligation required to be performed by Landlord hereunder. For purposes hereof,
except in cases of an emergency, a reasonable time shall be thirty (30) days after receipt by
Landlord of written notice specifying the nature of the obligation Landlord has not performed;
provided, however, that if the nature of Landlord’s obligation is such that more
than thirty (30) days, after receipt of written notice, is reasonably necessary for its
performance, then Landlord shall not be in default of this Lease if performance of such obligation
is commenced within such thirty (30) day period and thereafter diligently pursued to completion.
In case of emergency, Landlord shall not be considered in default so long as Landlord acts as soon
as reasonably practicable.




22. Parking



Tenant may use the number of non-designated and non-exclusive parking spaces specified in the Basic
Lease Information. Landlord shall exercise reasonable efforts to ensure that such spaces are
available to Tenant for its use, but Landlord shall not be required to enforce Tenant’s right to
use the same. Tenant and Tenant’s Representatives shall not park or permit any parking of vehicles
overnight.




23. Transfer of Landlord’s Interest



Tenant acknowledges that Landlord has the right to transfer all or any portion of its interest in
the Premises, Building, Project and this Lease. Tenant expressly agrees that in the event of any
such transfer, Landlord shall automatically be entirely released from all liability under this
Lease and Tenant agrees to look solely to such transferee for the performance of Landlord’s
obligations hereunder after the date of such transfer. Landlord shall use commercially reasonable
efforts to cause each such transferee to agree to perform Landlord’s obligations hereunder arising
or accruing after the date of such transfer. A ground lease or similar long term lease by
Landlord of the entire Building or Lot, of which the Premises are a part, shall be deemed a sale
within the meaning of this Section 23. Tenant agrees to attorn to such new owner provided such new
owner does not disturb Tenant’s use, occupancy or quiet enjoyment of the Premises so long as Tenant
is not in material default beyond any applicable cure period under this Lease.




24. Waiver



No delay or omission in the exercise of any right or remedy of either party on any default by the
other party shall impair such a right or remedy or be construed as a waiver. The subsequent
acceptance of Rent by Landlord after default by Tenant of this Lease shall not be deemed a waiver
of such default, other than a waiver of timely payment for the particular Rent payment involved,
and shall not prevent Landlord from maintaining an unlawful detainer or other action based on such
default. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly Rent and
other sums due hereunder shall be deemed to be other than on account of the earliest Rent or other
sums due, nor shall any endorsement or statement on any check or accompanying any check or payment
be deemed an accord and satisfaction; and Landlord may accept such payment without prejudice to
Landlord’s right to recover the balance of such Rent or other sum or pursue any other remedy
provided in this Lease. No failure, partial exercise or delay on the part of the Landlord in
exercising any right, power or privilege hereunder shall operate as a waiver thereof.




25. Casualty Damage




     25.1 Casualty: If the Premises or any part, excluding any of Tenant’s Property, any Wi-Fi
Network, any Tenant Improvements and any Alterations installed by or for the benefit of Tenant
(collectively, “Tenant’s FF&E”), shall be damaged or destroyed by fire or other casualty, Tenant
shall give immediate written notice thereof to Landlord. Within sixty (60) days after receipt by
Landlord of such notice, Landlord shall notify Tenant, in writing, of the following time period
within which the necessary repairs can reasonably be made, as estimated by Landlord: (a) within
one hundred eighty (180) days, or (b) in more than one hundred eighty (180) days, from the date of
such notice.



          25.1.1 Minor Insured Damage: If the Premises (other than Tenant’s FF&E) are damaged only to
such extent that repairs, rebuilding and/or restoration can be reasonably completed within one
hundred eighty (180) days, this Lease shall not terminate and, provided that insurance proceeds are
available and paid to Landlord to fully repair the damage and/or Tenant otherwise voluntarily
contributes any shortfall thereof, Landlord shall repair the Premises to substantially the same
condition that existed prior to the occurrence of such casualty, except Landlord shall not be
required to rebuild, repair, or replace any of Tenant’s FF&E. The Rent payable hereunder shall be
abated proportionately from the date and to the extent Tenant vacates the affected portions of the
Premises until any and all repairs required herein to be made by Landlord are substantially
completed, but such abatement shall (i) only be to the extent of the portion of the Premises which
is actually rendered unusable and unfit for occupancy (it being understood that a portion of the
Premises may be unusable even though it has not sustained physical damage because of its
interdependence upon the damaged portion of the Premises), and (ii) only during the time Tenant is
not actually using same.




          25.1.2 Major Insured Damage: If the Premises are damaged to such extent that repairs,
rebuilding and/or restoration cannot be reasonably completed, as reasonably determined by Landlord,
within one hundred eighty (180) days, then either Landlord or Tenant may terminate this Lease by
giving written notice within twenty (20) days after notice from Landlord regarding the time period
of repair. If either party notifies the other of its intention to so terminate this Lease, then
this Lease shall terminate and the Rent shall be abated from the date of the occurrence of such
damage, provided Tenant diligently proceeds to and expeditiously vacates the Premises (but, in all
events Tenant must vacate and surrender the Premises to Landlord by no later than twenty (20)
business days thereafter or there shall not be any abatement of Rent until Tenant so vacates the
Premises). If neither party elects to terminate this Lease, Landlord shall promptly commence and
diligently prosecute to completion the repairs to the Premises, provided insurance proceeds are
available and paid to Landlord to fully repair the damage or Tenant voluntarily contributes any
shortfall thereof (except that Landlord shall not be required to rebuild, repair, or replace any of
Tenant’s FF&E). During the time when Landlord is prosecuting such repairs to substantial
completion, the Rent payable hereunder shall be abated proportionately from the date and to the
extent Tenant actually vacates the affected portions of the Premises until any and all repairs
required herein to be made by Landlord are substantially completed, but such abatement shall (i)
only be to the extent of the portion of the Premises which is actually rendered unusable and unfit
for occupancy (it being understood that a portion of the Premises may be unusable even though it
has not sustained physical damage because of its interdependence upon the damaged portion of the
Premises), and (ii) only during the time Tenant is not actually using same.




          25.1.3 Damage Near End of Term: Notwithstanding anything to the contrary contained in this
Lease except for the provisions of Section 25.3 below, if the Premises are substantially damaged
during the last year of then applicable term of this Lease, either Landlord or Tenant may, at their
option, cancel and terminate this Lease by giving written notice to the other party of its



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


12









 






 election to do so within forty-five (45) days after receipt by Landlord of notice from Tenant
of the occurrence of such casualty. If either party so elects to terminate this Lease, all rights
of Tenant hereunder shall cease and terminate ten (10) days after Tenant’s receipt or delivery of
such notice, as applicable, and Tenant shall immediately vacate the Premises and surrender
possession thereof to Landlord.




     25.2 Deductible and Uninsured Casualty: Tenant shall pay to Landlord, as Additional Rent, the
deductible amounts under the insurance policies obtained by Landlord and Tenant under this Lease if
the proceeds are used to repair the Premises. However, if other portions of the Building are also
damaged by said casualty and insurance proceeds are payable therefor, then Tenant shall only pay
its proportionate share of the deductible as reasonably determined by Landlord. If any portion of
the Premises is damaged and is not fully covered by the aggregate of insurance proceeds received by
Landlord and any applicable deductible, and Tenant does not voluntarily contribute any shortfall
thereof, then Landlord or Tenant shall have the right to terminate this Lease by delivering written
notice of termination to the other party within thirty (30) days after the date of notice to Tenant
of such event, whereupon all rights of Tenant shall cease and terminate ten (10) days after
Tenant’s receipt of such notice, and Tenant shall immediately vacate the Premises and surrender
possession thereof to Landlord.



     25.3 Tenant’s Fault and Lender’s Rights: Notwithstanding anything to the contrary contained
herein, if the Premises (other than Tenant’s FF&E) or any other portion of the Building is damaged
by fire or other casualty due to the acts or omissions of Tenant or any of Tenant’s
Representatives, (i) the Rent shall only be abated during the repair of such damage to the extent
Landlord receives rental loss insurance proceeds therefor, (ii) Tenant will not have any right to
terminate this Lease due to the occurrence of such casualty, and (iii) Tenant will be responsible
for the excess cost and expense of the repair and restoration of the Building (including any
deductible) to the extent not covered by insurance proceeds. Notwithstanding anything to the
contrary contained herein, if the holder of any indebtedness secured by the Premises or any other
portion of the Project requires that the insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by delivering written notice of termination
to Tenant within thirty (30) days after the date of notice to Tenant of such event, whereupon all
rights of Tenant shall cease and terminate, and Tenant shall immediately vacate the Premises and
surrender possession thereof to Landlord within a reasonable time not to exceed twenty (20)
business days.



     25.4 Tenant’s Waiver: Landlord shall not be liable for any inconvenience or annoyance to
Tenant, injury to the business of Tenant, loss of use of any part of the Premises by Tenant or loss
of Tenant’s Property, resulting in any way from such damage or the repair thereof. With respect to
any damage which Landlord is obligated to repair or may elect to repair, Tenant waives all rights
to terminate this Lease or offset any amounts against Rent pursuant to rights accorded Tenant by
any law currently existing or hereafter enacted, including without limitation, all rights pursuant
to California Civil Code Sections 1932(2.), 1933(4.), 1941 and 1942 and any similar or successor
laws.



26. Condemnation



If twenty five percent (25%) or more of the Premises is condemned by eminent domain, inversely
condemned or sold in lieu of condemnation for any public or quasi public use or purpose
(“Condemned”), then Tenant or Landlord may terminate this Lease as of the date when physical
possession of the Premises is taken and title vests in such condemning authority, and Rent shall be
adjusted to the date of termination. Tenant shall not because of such condemnation assert any
claim against Landlord or the condemning authority for any compensation because of such
condemnation, and Landlord shall be entitled to receive the entire amount of any award without
deduction for any estate of interest or other interest of Tenant; provided, however, the foregoing
shall not preclude Tenant, at Tenant’s sole cost and expense, from obtaining any separate award to
Tenant for loss of, or damage to, Tenant’s Property or for damages for cessation or interruption of
Tenant’s business provided such award is separate from Landlord’s award and does not diminish nor
otherwise impair the award otherwise payable to Landlord. In addition to the foregoing, Tenant
shall be entitled to seek compensation for the relocation costs recoverable by Tenant pursuant to
the provisions of California Government Code Section 7262. If neither party elects to terminate
this Lease, Landlord shall, if necessary, promptly proceed to restore the Premises or the Building,
as applicable, to substantially the same condition prior to such partial condemnation, allowing for
the reasonable effects of such partial condemnation, and a proportionate allowance shall be made to
Tenant, as determined by Landlord, for the Rent corresponding to the time during which, and to the
part of the Premises of which, Tenant is deprived on account of such partial condemnation and
restoration. Landlord shall not be required to spend funds for restoration in excess of the
condemnation proceeds received by Landlord.




27. Environmental Matters/Hazardous Materials




     27.1 Hazardous Materials Disclosure Certificate: Simultaneously herewith, Tenant has
delivered to Landlord Tenant’s executed initial Hazardous Materials Disclosure Certificate (the
“Initial HazMat Certificate”), a copy of which is attached hereto as Exhibit E. Tenant covenants,
represents and warrants to Landlord that the information in the Initial HazMat Certificate is true
and correct and accurately describes the use(s) of Hazardous Materials which will be made and/or
used on the Premises by Tenant. Tenant shall deliver to Landlord an executed Hazardous Materials
Disclosure Certificate (“the “HazMat Certificate”), in substantially the form attached hereto as
Exhibit E, describing Tenant’s then present use of Hazardous Materials on the Premises, and any
other reasonably necessary documents as requested by Landlord upon the occurrence of either of the
following events: (a) immediately upon any material change in the types and/or quantities of
Hazardous Materials used or stored in the Premises, or (b) within ten (10) days of written notice
by Landlord at any time during the Term of the Lease.



     27.2 Definition of Hazardous Materials: “Hazardous Materials” means (a) any hazardous or
toxic wastes, materials or substances, and other pollutants or contaminants, which are or become
regulated by any Environmental Laws; (b) petroleum, petroleum by products, gasoline, diesel fuel,
crude oil or any fraction thereof; (c) asbestos and asbestos containing material, in any form,
whether friable or nonfriable; (d) polychlorinated biphenyls; (e) radioactive materials; (f) lead
and lead-containing materials; (g) any other material, waste or substance displaying toxic,
reactive, ignitable or corrosive characteristics, as all such terms are used in their broadest
sense, and are defined or become defined by any Environmental Law (defined below); (h) any
materials which cause or threatens to cause a nuisance upon or waste to any portion of the Project
or any surrounding property; or (i) any materials which pose or threaten to pose a hazard to the
health and safety of persons on the Premises, any other portion of the Project or any surrounding
property. For purposes of this Lease, “Hazardous Materials” shall not include nominal amounts of
ordinary household cleaners, office supplies and janitorial supplies which are not actionable under
any Environmental Laws.



     27.3 Prohibition; Environmental Laws: Tenant shall not be entitled to use or store any
Hazardous Materials on, in, or about any portion of the Premises or Project without, in each
instance, obtaining Landlord’s prior written consent thereto. If Landlord, in its sole discretion,
consents to any such usage or storage, then Tenant shall be permitted to use and/or store only
those Hazardous Materials and in such quantities (A) that are necessary for Tenant’s business, (B)
to the extent disclosed in the most recent HazMat Certificate, and (C) expressly approved by
Landlord in writing. In all events such usage and storage must at all times be in full compliance
with any and all applicable local, state and federal environmental, health and/or safety-related
laws, statutes, orders, standards, courts’ decisions, ordinances, rules and regulations (as
interpreted by judicial and administrative decisions), decrees, directives, guidelines, permits or
permit conditions, currently existing and as amended, enacted, issued or adopted in the future
(collectively, the “Environmental Laws”). Tenant agrees that any changes to the type and/or
quantities of Hazardous Materials specified in the most recent HazMat Certificate may be
implemented only with the prior written consent of Landlord, which consent may


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.


13









 






 be given or withheld in Landlord’s sole discretion. Tenant shall not be entitled nor
permitted to install any tanks under, on or about the Premises for the storage of Hazardous
Materials without the express written consent of Landlord, which may be given or withheld in
Landlord’s sole discretion. Landlord shall have the right at all times during the Term to (i)
inspect the Premises, (ii) conduct tests and investigations to determine whether Tenant is in
compliance with this Section 27 or to determine if Hazardous Materials are present in, on or about
the Project, and (iii) request lists of all Hazardous Materials used, stored or otherwise located
on, under or about any portion of the Premises and/or the Common Areas. The cost of all such
inspections, tests and investigations (collectively, “Inspections”) shall be borne by Tenant, if
Tenant or any of Tenant’s Representatives are directly or indirectly responsible for any
contamination revealed by such Inspections. The aforementioned rights granted herein to Landlord
and its representatives shall not create (a) a duty on Landlord’s part to perform Inspections,
monitor or otherwise observe the Premises or Tenant’s and Tenant’s Representatives’ activities with
respect to Hazardous Materials, including without limitation, Tenant’s operation, use and any
remediation related thereto, or (b) liability on the part of Landlord and its representatives for
Tenant’s use, storage, disposal or remediation of Hazardous Materials, it being understood that
Tenant shall be solely responsible for all liability in connection therewith.




     27.4 Tenant’s Environmental Obligations: Tenant shall give to Landlord immediate verbal and
follow up written notice of any spills, releases, discharges, disposals, emissions, migrations,
removals or transportation of Hazardous Materials on, under or about any portion of the Premises or
in any Common Areas (collectively, a “Release”); provided that Tenant has knowledge of such
event(s). Tenant, at its sole cost and expense, covenants and warrants to promptly investigate,
clean up, remove, restore and otherwise remediate (including, without limitation, preparation of
any feasibility studies or reports and the performance of any and all closures) any Release of
Hazardous Materials arising from or related to the acts or omissions of Tenant or Tenant’s
Representatives such that the affected portions of the Project and any adjacent property are
returned to the condition existing prior to the appearance of such Hazardous Materials. Any such
investigation, clean up, removal, restoration and other remediation shall only be performed after
Tenant has obtained Landlord’s prior written consent, which consent shall not be unreasonably
withheld so long as such actions would not potentially have a material adverse long-term or
short-term effect on any portion of the Project. Notwithstanding the foregoing, Tenant shall be
entitled to respond immediately to an emergency without first obtaining Landlord’s prior written
consent. Tenant, at its sole cost and expense, shall conduct and perform, or cause to be conducted
and performed, all closures as required by any Environmental Laws or any agencies or other
governmental authorities having jurisdiction thereof. If Tenant fails to so promptly investigate,
clean up, remove, restore, provide closure or otherwise so remediate, Landlord may, but without
obligation to do so, take any and all steps necessary to rectify the same and Tenant shall promptly
reimburse Landlord, upon written demand, for all costs and expenses to Landlord of performing
investigation, clean up, removal, restoration, closure and remediation work. All such work
undertaken by Tenant, as required herein, shall be performed in such a manner so as to enable
Landlord to make full economic use of the Premises and the other portions of the Project after the
satisfactory completion of such work.



     27.5 Environmental Indemnity: Tenant shall, protect, indemnify, defend (with counsel
acceptable to Landlord) and hold Landlord and the other Indemnitees harmless from and against any
and all Claims (including, without limitation, diminution in value of any portion of the Premises
or the Project, damages for the loss of or restriction on the use of rentable or usable space, and
from any adverse impact of Landlord’s marketing of any space within the Project) arising at any
time during or after the Term in connection with or related to, directly or indirectly, the use,
presence or Release of Hazardous Materials on, in or about any portion of the Project as a result
(directly or indirectly) of the acts or omissions of Tenant or any of Tenant’s Representatives.
Neither the written consent of Landlord to the presence, use or storage of Hazardous Materials in,
on, under or about any portion of the Project nor the strict compliance by Tenant with all
Environmental Laws shall excuse Tenant from its obligations of indemnification pursuant hereto.
Tenant shall not be relieved of its indemnification obligations under the provisions of this
Section 27.5 due to Landlord’s status as either an “owner” or “operator” under any Environmental
Laws.



     27.6 Survival: Tenant’s obligations and liabilities under this Section 27 shall survive the
expiration or earlier termination of this Lease. In the event Tenant has not received a closure
certificate from the applicable governmental authorities (in form reasonably satisfactory to
Landlord) solely with respect to the removal of the nitrogen tank of Tenant and any Hazardous
Materials which may have emanated from such tank, then Landlord may require Tenant to hold over
possession of the Premises until such closure certificate is obtained. Any such holdover by Tenant
will be with Landlord’s consent and will not be terminable by Tenant in any event or circumstance.



28. Financial Statements



If Tenant is not a publicly traded corporation, Tenant and any permitted Transferee, for the
reliance of Landlord, any lender holding or anticipated to acquire a lien upon any portion of the
Project or any prospective purchaser of any portion of the Project, shall deliver to Landlord the
then current audited financial statements of Tenant (including interim periods following the end of
the last fiscal year for which annual statements are available) within ten (10) days after
Landlord’s request therefor, but not more often than once annually so long as Tenant is not in
material default of this Lease. If audited financial statements have not been prepared, Tenant and
any permitted Transferee shall provide Landlord with unaudited financial statements (certified by
an authorized representative or officer of Tenant) and such other information, the type and form of
which are reasonably acceptable to Landlord, which reflect the financial condition of Tenant and
any permitted Transferee, as applicable.




29. General Provisions




     29.1 Time: Time is of the essence in this Lease and with respect to each and all of its
provisions in which performance is a factor.



     29.2 Successors and Assigns: The covenants and conditions herein contained, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and
assigns of the parties hereto.



     29.3 Recordation: Tenant shall not record this Lease or a short form memorandum hereof.



     29.4 Landlord Exculpation: The liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease shall be limited to the actual interest of Landlord and its present
or future partners or members in the Building, and Tenant agrees to look solely to Landlord’s
interest in the Building for satisfaction of any liability and shall not look to other assets of
Landlord nor seek any recourse against the assets of the individual partners, members, directors,
officers, shareholders, agents or employees of Landlord, including without limitation, any property
management company of Landlord (collectively, the “Landlord Parties”). It is the parties’
intention that Landlord and the Landlord Parties shall not in any event or circumstance be
personally liable, in any manner whatsoever, for any judgment or deficiency hereunder or with
respect to this Lease. The liability of Landlord under this Lease is limited to its actual period
of ownership of title to the Building.



     29.5 Severability and Governing Law: Any provisions of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other provisions hereof
and such other provisions shall remain in full force and effect. This Lease shall be enforced,
governed by and construed in accordance with the laws of the State of California.


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




14









 








     29.6 Attorneys’ Fees: In the event any dispute between the parties results in litigation or
other proceeding, the prevailing party shall be reimbursed by the party not prevailing therein for
all reasonable costs and expenses, including, without limitation, reasonable attorneys’ and
experts’ fees and costs incurred by the prevailing party in connection with such litigation or
other proceeding, and any appeal thereof. Such costs, expenses and fees shall be included in and
made a part of any judgment recovered by the prevailing party.



     29.7 Entire Agreement: It is understood and agreed that there are no oral agreements between
the parties hereto affecting this Lease and this Lease (including all exhibits and addenda)
supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and
understandings, if any, between the parties hereto or displayed by Landlord to Tenant with respect
to the subject matter thereof, and none thereof shall be used to interpret or construe this Lease.
This Lease and any separate agreement executed by Landlord and Tenant in connection with this Lease
and dated of even date herewith (a) contain all of the terms, covenants, conditions, warranties and
agreements of the parties relating in any manner to the rental, use and occupancy of the Premises,
and (b) shall be considered to be the only agreement between the parties hereto and their
representatives and agents. This Lease may not be modified, deleted or added to except by a
writing signed by the parties hereto. All negotiations and oral agreements have been merged into
and are included herein. There are no other representations or warranties between the parties, and
all reliance with respect to representations is based totally upon the representations and
agreements contained in this Lease. The parties acknowledge that (i) each party and/or its counsel
have reviewed and revised this Lease, and (ii) no rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall be employed in the interpretation
or enforcement of this Lease or any amendments or exhibits to this Lease or any document executed
and delivered by either party in connection with this Lease.



     29.8 Warranty of Authority: Each party represents and warrants that (i) each person signing
on its behalf is duly and validly authorized to do so on behalf of the entity it purports to so
bind, and (ii) if such party is a limited liability company, partnership, corporation or trustee,
that such limited liability company, partnership, corporation or trustee has full right and
authority to enter into this Lease and perform all of its obligations hereunder. Tenant hereby
warrants that this Lease is legal, valid and binding upon Tenant and enforceable against Tenant in
accordance with its terms.



     29.9 Notices: All notices, demands, statements or communications (collectively, “Notices”)
given or required to be given by either party to the other hereunder shall be in writing, shall be
sent by United States certified or registered mail, postage prepaid, return receipt requested,
delivered by a nationally recognized same-day or overnight courier (e.g. FedEx or UPS) or delivered
personally (i) to Tenant at the Tenant’s Address set forth in the Basic Lease Information, or to
such other place as Tenant may from time to time designate in a Notice to Landlord; or (ii) to
Landlord at Landlord’s Address set forth in the Basic Lease Information, or to such other firm or
to such other place as Landlord may from time to time designate in a Notice to Tenant. Any Notice
will be deemed given on the date it is mailed as provided in this Section 29.9, upon the first
(1st) business day after delivery to a nationally recognized courier, or upon the date personal
delivery is made.



     29.10 Joint and Several; Covenants and Conditions: If Tenant consists of more than one person
or entity, the obligations of all such persons or entities shall be joint and several. Each
provision to be performed by Tenant hereunder shall be deemed to be both a covenant and a
condition.



     29.11 Confidentiality: Except to the extent that Tenant, as a publicly traded company, is
required by applicable law to disclose the contents of this Lease, Tenant acknowledges that the
contents of this Lease and any related documents are confidential information, and Tenant shall
keep and maintain such information strictly confidential and shall not disclose such confidential
information to any person or entity other than Tenant’s financial, legal and space planning
consultants.



     29.12 Landlord Renovations: Tenant acknowledges that Landlord may from time to time, at
Landlord’s sole option, renovate, improve, develop, alter, or modify (collectively, “Renovations”)
portions of the Building, Premises, Common Areas and the Project, including without limitation,
systems and equipment, roof, and structural portions of the same; provided Landlord shall utilize
commercially reasonable efforts to minimize the disruption and interference with Tenant’s business
and operations at the Premises. In connection with such Renovations, Landlord may, among other
things, erect scaffolding or other necessary structures in the Building, limit or eliminate access
to portions of the Project, including portions of the Common Areas, or perform work in the
Building, which work may create noise, dust or leave debris in the Building. Tenant hereby agrees
that such Renovations and Landlord’s actions in connection with such Renovations shall in no way
constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent, so long
as Landlord shall uses commercially reasonable efforts to minimize the disruption and interference
with Tenant’s business and operations at the Premises. Except to the extent caused by Landlord’s
willful misconduct or gross negligence, Landlord shall have no responsibility, or for any reason be
liable to Tenant, for any direct or indirect injury to or interference with Tenant’s business
arising from the Renovations, nor shall Tenant be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises or of Tenant’s Property,
Alterations or improvements resulting from the Renovations or Landlord’s actions in connection with
such Renovations, or for any inconvenience or annoyance occasioned by such Renovations or
Landlord’s actions in connection with such Renovations; provided Landlord shall utilize
commercially reasonable efforts to minimize the disruption and interference with Tenant’s business
and operations at the Premises.



     29.13 Waiver of Jury Trial: The parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties hereto against the other
on any matters whatsoever arising out of or in any way related to this Lease, the relationship of
Landlord and Tenant, Tenant’s use or occupancy of the Premises, Building, Park or Project and/or
any claim of injury, loss or damage.



     29.14 Submission of Lease: Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or an option for lease, and it is not effective as a
lease or otherwise until execution and delivery by both Landlord and Tenant.



30. Signs



All signs and graphics of every kind visible in or from public view shall be subject to (i)
Landlord’s prior written approval, not to be unreasonably conditioned, withheld or delayed, and
(ii), and in compliance with, all applicable Laws (including, without limitation, the laws of the
City of San Jose), Development Documents, Recorded Matters, Rules and Regulations, and Landlord’s
sign criteria (“Sign Criteria”) as same may exist from time to time. Landlord’s Sign Criteria is
set forth in Exhibit G hereto. Tenant shall be solely responsible for any costs related to
any signs and graphics and shall remove all such signs and graphics prior to the expiration or
earlier termination of this Lease. Such installations and removals shall be made in a manner as to
avoid damage or defacement of the Premises and all other affected portions of the Project. Tenant
shall repair any such damage, including without limitation, discoloration caused by such
installation or removal. Landlord shall have the right, at its option, to deduct from the Security
Deposit such sums as are reasonably necessary to remove such signs and make any repairs
necessitated by such removal. Notwithstanding the foregoing, in no event shall any: (a) neon,
flashing or moving sign(s) or (b) sign(s) which are likely to interfere with the visibility of any
sign, canopy, advertising matter, or decoration of any kind of any other business or occupant of
the Building or other portions of the Project be permitted hereunder. Tenant further agrees to
maintain each such sign and graphics, as may be approved, in good condition and repair at all
times.



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




15









 








31. Mortgagee Protection



Upon any default on the part of Landlord, Tenant will give written Notice by registered or
certified mail to any beneficiary of a deed of trust or mortgagee of a mortgage covering the
Premises who has provided Tenant with Notice of their interest together with an address for
receiving Notice, and shall offer such beneficiary or mortgagee a reasonable opportunity to cure
the default, including time to obtain possession of the Premises by power of sale or a judicial
foreclosure, if such should prove necessary to effect a cure. If such default cannot be cured
within such time period, then such additional time as may be necessary will be given to such
beneficiary or mortgagee to effect such cure so long as such beneficiary or mortgagee has commenced
the cure within the original time period and thereafter diligently pursues such cure to completion,
in which event this Lease shall not be terminated while such cure is being diligently pursued.
Tenant agrees that each lender to whom this Lease has been assigned by Landlord is an express third
party beneficiary hereof. Tenant shall not make any prepayment of Rent more than one (1) month in
advance without the prior written consent of each such lender. Tenant waives the collection of any
deposit from each such lender or purchaser at a foreclosure sale unless said lender or purchaser
shall have actually received and not refunded the deposit. Tenant agrees to make all payments
under this Lease to the lender with the most senior encumbrance upon receiving a direction, in
writing, to pay said amounts to such lender. Tenant shall comply with such written direction to
pay without determining whether an event of default exists under such lender’s loan to Landlord.
If, in connection with obtaining financing for the Premises or any other portion of the Project,
Landlord’s lender shall request reasonable modification(s) to this Lease as a condition to such
financing, Tenant shall not unreasonably withhold, delay or defer its consent thereto, provided
such modifications do not materially and adversely affect Tenant’s rights or materially increase
Tenant’s obligations hereunder, including Tenant’s use, occupancy or quiet enjoyment of the
Premises.




32. Warranties of Tenant



Tenant warrants and represents to Landlord, for the express benefit of Landlord, that Tenant has
undertaken a complete and independent evaluation of the risks inherent in the execution of this
Lease and the operation of the Premises for the use permitted hereby, and that, based upon said
independent evaluation, Tenant has elected to enter into this Lease and hereby assumes all risks
with respect thereto, except as expressly otherwise provided in this Lease. Tenant further
warrants and represents to Landlord, for the express benefit of Landlord, that in entering into
this Lease, Tenant has not relied upon any statement, fact, promise or representation (whether
express or implied, written or oral) not specifically set forth in this Lease and that any
statement, fact, promise or representation (whether express or implied, written or oral) made at
any time to Tenant, which is not expressly incorporated herein, is hereby waived by Tenant.




33. Brokerage Commission



Landlord and Tenant each represents and warrants for the benefit of the other that it has had no
dealings with any real estate broker, agent or finder in connection with the Premises and/or the
negotiation of this Lease, except for the Broker(s) specified in the Basic Lease Information, and
that it knows of no other real estate broker, agent or finder who is or might be entitled to a real
estate brokerage commission or finder’s fee in connection with this Lease or otherwise based upon
contacts between the claimant and Tenant. Each party shall indemnify and hold harmless the other
from and against any and all Claims with respect to a fee or commission by any real estate broker,
agent or finder in connection with the Premises and this Lease other than the Broker(s) (if any)
resulting from the actions of the indemnifying party. Unless expressly agreed to in writing by
Landlord and the Broker(s), no real estate brokerage commission or finder’s fee shall be owed to,
or otherwise payable to, the Broker(s) for any renewals or other extensions of the initial term of
this Lease or for any additional space leased by Tenant other than the Premises as same exists as
of the Lease Date. Tenant further represents and warrants to Landlord that Tenant will not receive
(i) any portion of any brokerage commission or finder’s fee payable to the Broker(s) in connection
with this Lease, or (ii) any other form of compensation or incentive from the Broker(s) with
respect to this Lease. Landlord shall pay the commission due to Broker consistent with Landlord’s
commission agreement with Broker.




34. Quiet Enjoyment



Landlord covenants with Tenant, upon the paying of Rent and observing and keeping the covenants,
agreements and conditions of this Lease on its part to be kept, during the periods that Tenant is
not otherwise in default beyond any applicable cure period under this Lease, and subject to the
rights of any of Landlord’s lenders, (i) that Tenant shall and may peaceably and quietly have,
hold, occupy and enjoy the Premises and Common Areas during the Term, and (ii) neither Landlord,
nor any successor or assign of Landlord, shall disturb Tenant’s occupancy or enjoyment of the
Premises and Common Areas. The foregoing covenant is in lieu of any other covenant express or
implied.




35. Cubicles



Landlord and Tenant acknowledge and agree that, (i) Landlord shall purchase a minimum of
seventy-three (73) cubicles but a maximum of eighty-two (82) cubicles of comparable quality to
those cubicles of Landlord situated in the Building within the Park located at 110 Baytech Drive,
and otherwise of a type, and produced by a manufacturer, reasonably satisfactory to Landlord and
Tenant (“Cubicles”), (ii) the Cubicles shall be configured in the manner described in the Final
Space Plan (as defined in Exhibit B), (iii) the Cubicles shall be installed by Landlord and shall
be wired for three (3) data lines (CAT – 5), and electrical service, and one (1) chair per Cubicle
(together with the Cubicles, the foregoing are collectively, “Cubicles and Equipment”), (iv) the
cost of the purchase, transport and installation of the Cubicles and Equipment shall be deducted
from the Tenant Improvement Allowance, (v) during the Term of this Lease, Landlord shall lease, as
owner, to Tenant, as lessee, at no additional cost or expense, all of the Cubicles and Equipment,
(vi) such leasing is on an “AS-IS, WITH ALL FAULTS” basis and subject to all of the terms of this
Lease (including, without limitation, Article 10, of this Lease), without recourse, representation
or warranty of any kind or nature, express or implied, including without limitation, habitability,
merchantability or fitness for a particular purpose, (vii) at the expiration or earlier termination
of this Lease, the Cubicles and Equipment shall be returned and surrendered to Landlord in the same
or substantially similar condition and repair as when delivered to Tenant, reasonable wear and tear
and damage by Landlord excepted, (viii) Tenant shall be obligated to repair, maintain and insure
the Cubicles and Equipment, (ix) Tenant shall not have the right or ability to (a) remove or
materially modify the Cubicles and Equipment or (b) assign or sublet any of the Cubicles and
Equipment except in conjunction with this Lease and the Premises and (x) Tenant shall pay any
taxes, assessments and insurance premiums attributable to the Cubicles and Equipment.



///signatures on next page///



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




16









 








///continued from previous page///



IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease Date specified in the
Basic Lease Information.




Landlord:




LEGACY PARTNERS I SAN JOSE, LLC,

a Delaware limited liability company,

Owner




	 	 	 	 	 	 	 	 	 
	By:	 	LEGACY PARTNERS COMMERCIAL, L.P.,

a California limited partnership,

as Property Manager and Agent for Owner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	LEGACY PARTNERS COMMERCIAL, INC.,

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Barry DiRaimondo	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Barry DiRaimondo	 	 
	 

	 	 	 	Its:
	 	President	 	 
	 
	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 	 	 	 	 





Tenant:




Endwave Corporation,

a Delaware corporation




	 	 	 	 	 
	By:

	 	/s/ Brett W. Wallace
	 	 
	 

	 	 	 	 
	 

	 	(Name)	 	 
	Its:

	 	Chief Financial Officer	 	 
	 

	 	 	 	 
	 

	 	(Title)	 	 
	 
	 	 	 	 
	By:

	 	/s/ Curtis Sacks	 	 
	 

	 	 	 	 
	 

	 	(Name)	 	 
	Its:

	 	V.P. Finance	 	 
	 

	 	 	 	 
	 

	 	(Title)	 	 
	Date:

	 	June 8, 2006	 	 






If Tenant is a CORPORATION, the authorized officers must sign on behalf of the corporation
and indicate the capacity in which they are signing. This Lease must be executed by the president
or vice-president and the secretary or assistant secretary, unless the bylaws or a resolution of
the board of directors shall otherwise provide, in which event, the bylaws or a certified copy of
the resolution, as the case may be, must be attached to this Lease.


[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




17









 








Exhibit A




Premises



This exhibit, entitled “Premises”, is and shall constitute Exhibit A to that certain Lease
Agreement dated May 24, 2006 (the “Lease”), by and between LEGACY PARTNERS I SAN JOSE, LLC, a
Delaware limited liability company (“Landlord”), and Endwave Corporation, a Delaware corporation
(“Tenant”), for the leasing of certain premises located in Legacy Baytech Park, 130 Baytech Drive,
San Jose, California 95134-2302 (the “Premises”).



The Premises consist of the rentable square footage of space specified in the Basic Lease
Information and has the address specified in the Basic Lease Information. The Premises are a part
of and are contained in the Building specified in the Basic Lease Information. The cross-hatched
area depicts the Premises within the Project:









Exhibit A, Page 1



[ * ] = Certain confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




 









 







Exhibit B




Tenant Improvements




This exhibit, entitled “Tenant Improvements”, is and shall constitute Exhibit B to that certain
Lease Agreement dated May 24, 2006 (the “Lease”), by and between LEGACY PARTNERS I SAN JOSE, LLC, a
Delaware limited liability company (“Landlord”), and Endwave Corporation, a Delaware corporation
(“Tenant”), for the leasing of certain premises located in Legacy Baytech Park, 130 Baytech Drive,
San Jose, California 95134-2302 (the “Premises”). The terms, conditions and provisions of this
Exhibit B are hereby incorporated into and are made a part of the Lease. Any capitalized terms
used herein and not otherwise defined herein shall have the meaning ascribed to such terms as set
forth in the Lease.



1. Tenant Improvements. Subject to the conditions set forth below, Landlord agrees to
construct and install certain improvements (“Tenant Improvements”) in the Building of which the
Premises are a part in accordance with the Final Drawings (defined below) and pursuant to the terms
of this Exhibit B.



2. Definition. “Tenant Improvements” as used in this Lease shall include only (i) those
interior portions of the Building which are described below (and shall expressly exclude the
approval by any applicable governmental authority of the nitrogen tank of Tenant and the
installation thereof) and (ii) the Cubicles and Equipment (as defined and described in Section 35
of the Lease). Except with respect to the Cubicles and Equipment, “Tenant Improvements” shall
specifically not include (a) any alterations, additions or improvements installed or constructed by
Tenant, and any of Tenant’s trade fixtures, equipment, furniture, furnishings, telephone equipment
or other personal property (collectively, “Personal Property”) or (b) the Nitrogen Tank (defined
below). The Tenant Improvements shall include any and all interior improvements to be made to the
Premises as specified in the Final Drawings (defined below), as specified and agreed to by Tenant
and Landlord. Tenant shall be fully responsible for the planning, permits, approvals and
installation of Tenant’s nitrogen tank and all associated piping and mechanical and other work and
equipment associated with such installation (collectively, “Nitrogen Tank”); provided, Landlord
acknowledges that Landlord has agreed, to provide Landlord’s approval merely as an accommodation to
Tenant, to submit Tenant’s application for a permit to install the nitrogen tank.



3. Tenant’s Initial Plans; the Work. Tenant desires Landlord to perform certain Tenant
Improvements in the Premises in substantial accordance with the plan(s) or scope of work
(collectively, the “Initial Plans”) prepared by Legacy Partners CDS, dated March 10, 2006, a copy
of which is attached hereto as Schedule 1, and made a part hereof. Such work, as shown in
the Initial Plans and as more fully detailed in the Final Drawings (as defined and described in
Section 4 below), shall be hereinafter referred to as the “Work”. Not later than ten (10) days
following the Lease Date, Tenant and/or Tenant’s Representatives shall furnish to Landlord such
additional plans, drawings, specifications and finish details as Landlord may reasonably request to
enable Landlord’s architects and engineers, as applicable, to prepare mechanical, electrical and
plumbing plans and to prepare the Final Drawings, including, but not limited to, a final telephone
layout and special electrical connections, if any. All plans, drawings, specifications and other
details describing the Work which have been, or are hereafter, furnished by or on behalf of Tenant
shall be subject to Landlord’s approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Landlord shall not be deemed to have acted unreasonably if it withholds
its approval of any plans, specifications, drawings or other details or of any Change Request
(hereafter defined in Section 11 below) because, in Landlord’s reasonable opinion, the work as
described in any such item, or any Change Request, as the case may be: (a) is likely to adversely
affect Building systems, the structure of the Building or the safety of the Building and/or its
occupants; (b) might impair Landlord’s ability to furnish services to Tenant or other tenants in
the Park; (c) would increase the cost of operating the Building or the Park; (d) would violate any
applicable governmental, administrative body’s or agencies’ laws, rules, regulations, ordinances,
codes or similar requirements (or interpretations thereof); (e) contains or uses Hazardous
Materials; (f) would adversely affect the appearance of the Building or the Park; (g) might
adversely affect another tenant’s premises or such other tenant’s use and enjoyment of such
premises; (h) is prohibited by any ground lease affecting the Building, the Lot and/or the Park,
any Recorded Matters or any mortgage, trust deed or other instrument encumbering the Building, the
Lot and/or the Park; (i) is likely to be substantially delayed because of unavailability or
shortage of labor or materials necessary to perform such work or the difficulties or unusual nature
of such work; (j) is not, at a minimum, in accordance with Landlord’s Building Standards (defined
below), or (k) would increase the Tenant Improvement Costs (defined in Section 9 below) by more
than twenty-five percent (25%) from the cost originally estimated and anticipated by the parties
(provided, Landlord shall not unreasonably withhold its consent to such increase in Tenant
Improvement Costs so long as (i) the scope of work related to those Tenant Improvements which are
not generic lab improvements (as described in Section 8 below) is unchanged from the scope of work
for such lab improvements shown in the Initial Plans and (ii) Tenant pays Landlord, within two (2)
business days following written demand by Landlord, all Tenant Improvement Costs which Landlord
estimates may be incurred in excess of an amount equal to one hundred twenty-five percent (125%) of
the Tenant Improvement Costs originally estimated and anticipated by the parties). The foregoing
reasons, however, shall not be the only reasons for which Landlord may withhold its approval,
whether or not such other reasons are similar or dissimilar to the foregoing. N
either the approval
by Landlord of the Work or the Initial Plans or any other plans, specifications, drawings or other
items associated with the Work nor Landlord’s performance, supervision or monitoring of the Work
shall constitute any warranty or covenant by Landlord to Tenant of the adequacy of the design for
Tenant’s intended use of the Premises. Tenant agrees to, and does hereby, assume full and complete
responsibility to ensure that the Work and the Final Drawings are adequate to fully meet the needs
and requirements of Tenant’s intended operations of its business within the Premises and Tenant’s
use of the Premises.



4. Final Drawings. If necessary for the performance of the Work and to the extent not
already included as part of the Initial Plans attached hereto, Landlord shall prepare or cause to
be prepared final working drawings and specifications for the Work (the “Final Drawings”) based on
and consistent with the Initial Plans and the other plans, specifications, drawings, finish details
or other information furnished by Tenant or Tenant’s Representatives to Landlord and approved by
Landlord pursuant to Section 3 above. Tenant shall cooperate diligently with Landlord and
Landlord’s architect, engineer and other representatives and Tenant shall furnish within five (5)
days after any request therefor, all information required by Landlord or Landlord’s architect,
engineer or other representatives for completion of the Final Drawings. So long as the Final
Drawings are substantially consistent with the Initial Plans, Tenant shall approve the Final
Drawings within three (3) business days after receipt of same from Landlord. Landlord and Tenant
shall indicate their approval of the Final Drawings by initialing each sheet of the Final Drawings
and delivering to one another a true and complete copy of such initialed Final Drawings. A true
and complete copy of the approved and initialed Final Drawings shall be attached to the Lease as
Exhibit B-1 and shall be made a part thereof. Tenant’s failure to approve or disapprove
such Final Drawings within the foregoing three (3) business day time period, shall be conclusively
deemed to be approval of same by Tenant. If Tenant reasonably disapproves of any matters included
in the Final Drawings because such items are not substantially consistent with the Initial Plans,
Tenant shall, within the aforementioned three (3) business day period, deliver to Landlord written
notice of its disapproval and Tenant shall specify in such written notice, in sufficient detail as
Landlord may reasonably require, the matters disapproved, the reasons for such disapproval, and the
specific changes or revisions necessary to be made to the Final Drawings to cause such drawings to
substantially conform to the Initial Plans. Any additional costs associated with such requested
changes or revisions shall be paid for solely by Tenant, as the Excess Tenant Improvement Costs
(defined in Section 10 below), in cash upon written demand therefor by Landlord. Any changes or
revisions requested by Tenant must first be approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed subject to the provisions of Section 3 above. If
Landlord approves such requested changes or revisions, Landlord shall cause the Final Drawings to
be revised accordingly and Landlord and Tenant shall initial each sheet of the Final Drawings as
revised and attach a true and complete copy thereof to the Lease as Exhibit B-1. Landlord
and Tenant hereby covenant to each other to cooperate with each other and to act reasonably in the
preparation and approval of the Final Drawings.


Exhibit B, Page 1

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.












 








5. Performance of Work. As soon as practicable after Tenant and Landlord initial and
attach to the Lease as Exhibit B-1 a true and complete copy of the Final Drawings,
Landlord’s general contractor, Legacy Partners CDS (the “General Contractor”), shall submit the
Final Drawings to the governmental authorities having rights of approval over the Work and shall
apply for the necessary approvals and building permits. Subject to the satisfaction of all
conditions precedent and subsequent to its obligations under this Exhibit B, and further
subject to the provisions of Section 10 hereof, as soon as practicable after Landlord or its
representatives have received all necessary approvals and building permits, Landlord will put the
Final Drawings out for bid to three (3) licensed, bonded and insured subcontractors for each major
trade with the exception of mechanical, electrical and fire alarm, all of which shall be
designbuild with Clinton Heating & Air Conditioning, Trinity Associates, Inc. and RTS,
respectively. Landlord shall commence construction, or cause the commencement of construction by
the General Contractor, of the Tenant Improvements, as soon as practicable. Except as hereinafter
expressly provided to the contrary, Landlord shall cause the performance of the Work using (except
as may be stated or otherwise shown in the Final Drawings) building standard materials, quantities
and procedures then in use by Landlord (“Building Standards”), which current standards are set
forth in Schedule 2 attached hereto and made a part hereof.



6. Substantial Completion. Landlord shall cause the General Contractor to Substantially
Complete (defined below) the Tenant Improvements in accordance with the Final Drawings by the
Commencement Date of the Lease as set forth in Section 2 of the Lease (the “Completion Date”),
subject to delays due to (a) acts or events beyond its control including, but not limited to, acts
of God, earthquakes, strikes, lockouts, boycotts, casualties, discontinuance of any utility or
other service required for performance of the Work, moratoriums, governmental agencies and weather,
(b) the lack of availability or shortage of specialized materials used in the construction of the
Tenant Improvements, (c) any matters beyond the control of Landlord, the General Contractor or any
subcontractors, (d) any changes required by the fire department, building and/or planning
department, building inspectors or any other agency having jurisdiction over the Building, the Work
and/or the Tenant Improvements (except to the extent such changes are directly attributable to
Tenant’s use or Tenant’s specialized tenant improvements, in which event such delays are considered
Tenant Delays) (the events and matters set forth in Subsections (a), (b), (c) and (d) are
collectively referred to as “Force Majeure Delays”), or (e) any Tenant Delays (defined in Section 7
below). Landlord agrees that the Tenant Improvements shall be constructed (i) in accordance with
all Laws, (ii) in accordance with the Final Drawings and (iii) in a good and workmanlike manner.
The Tenant Improvements shall be deemed “Substantially Complete” on the date that the building
officials of the applicable governmental agency(s) issues its final approval of the construction of
the Tenant Improvements whether in the form of the issuance of a final permit, final or temporary
certificate of occupancy or the written approval evidencing its final inspection on the building
permit(s), or the date on which Tenant first takes occupancy of the Premises, whichever first
occurs (“Substantial Completion”, or “Substantially Completed, or “Substantially Complete”) and any
failure of Tenant to obtain any necessary governmental approvals for installation of Tenant’s
nitrogen tank and any failure of Tenant to install the nitrogen tank shall not affect the date of
Substantial Completion of the Tenant Improvements, the commencement of the Term or Tenant’s
obligation to commence payment of Rent. If the Work is not deemed to be Substantially Completed on
or before the scheduled Completion Date, (i) Landlord agrees to use reasonable efforts to
Substantially Complete the Work as soon as practicable thereafter, (ii) the Lease shall remain in
full force and effect, (iii) Landlord shall not be deemed to be in breach or default of the Lease
or this Exhibit B as a result thereof and Landlord shall have no liability to Tenant as a result of
any delay in occupancy (whether for damages, abatement of all or any portion of the Rent, or
otherwise), and (iv) except in the event of any Tenant Delays, which will not affect the
Commencement Date but will extend the Completion Date without any penalty or liability to Landlord,
and notwithstanding anything to the contrary contained in the Lease, the Commencement Date and the
Expiration Date of the term of the Lease (as defined in Section 2 of the Lease) shall be extended
commensurately by the amount of time attributable to such Force Majeure Delays, and Landlord and
Tenant shall execute a written amendment to the Lease evidencing such extensions of time,
substantially in the form of Exhibit F to the Lease. Subject to the provisions of Section 10.2 of
the Lease, the Tenant Improvements shall belong to Landlord and shall be deemed to be incorporated
into the Premises for all purposes of the Lease, unless Landlord, in
 writing, indicates otherwise
to Tenant.



7. Tenant Delays. There shall be no extension of the scheduled Commencement Date or
Expiration Date of the term of the Lease (as otherwise permissibly extended in accordance with the
provisions of Section 6 above) if the Work has not been Substantially Completed by the scheduled
Commencement Date due to any delay attributable to Tenant and/or Tenant’s Representatives
(collectively, “Tenant Delays”), including, but not limited to, any of the following described
events or occurrences: (a) delays related to changes made or requested by Tenant to the Work and/or
the Final Drawings; (b) the failure of Tenant to furnish all or any plans, drawings,
specifications, finish details or other information required under Sections 3 and 4 above; (c) the
failure of Tenant to comply with the requirements of Section 10 below; (d) Tenant’s requirements
for special work or materials, finishes, or installations other than the Building Standards or
Tenant’s requirements for special construction or phasing; (e) any changes required by the fire
department, building or planning department, building inspectors or any other agency having
jurisdiction over the Building, the Work and/or the Tenant Improvements if such changes are
directly attributable to Tenant’s use or Tenant’s specialized tenant improvements; (f) the
performance of any additional work pursuant to a Change Request (defined below in Section 11) which
is requested by Tenant; (g) the performance of work in or about the Premises by any person, firm or
corporation employed by or on behalf of Tenant, including, without limitation, any failure to
complete or any delay in the completion of such work; or (h) any and all delays caused by or
arising from acts or omissions of Tenant and/or Tenant’s Representatives, in any manner whatsoever,
including, but not limited to, any and all revisions to the Final Drawings, unless required to
address an error made by Landlord or Landlord’s contractor. Any delays in the construction of the
Tenant Improvements due to any of the events described above, shall in no way extend or affect the
date on which Tenant is required to commence paying Rent under the terms of the Lease. It is the
intention of the parties that all of such delays will be considered Tenant Delays for which Tenant
shall be wholly and completely responsible for any and all consequences related to such delays,
including, without limitation, any costs and expenses attributable to increases in labor or
materials.



8. Tenant Improvement Allowance. Landlord and Tenant hereby acknowledge and agree that the
Tenant Improvement Costs (defined in Section 9 below) for the Tenant Improvements, based upon the
Initial Plans approved by Landlord and Tenant in accordance with the provisions of Section 4 above,
are estimated to be approximately [ * ] (the “Estimated TI Costs”), as more particularly summarized
in the Bid Summary attached hereto as Schedule 3. If the actual Tenant Improvement Costs varies
from this estimate by more than twenty-five percent (25%), then Landlord may require any of the
following, in its sole discretion: (a) except as otherwise provided in Section 3(k) above, changes
be made to the Final Drawings to reduce the cost of the Tenant Improvements and Landlord may refuse
to sign any construction contract or Change Orders to the construction contract, as the case may
be, until such changes are made to the sole satisfaction of Landlord; (b) Tenant to deposit into a
separate escrow account cash in an amount equal to the Excess Tenant Improvement Costs (defined in
Section 10 below) or Tenant to pay Landlord the amounts set forth in Section 3(k) above, or any
combination thereof as directed by Landlord; (c) Tenant to provide to Landlord evidence
satisfactory to Landlord, in its sole discretion, that Tenant has adequate financial resources to
pay for the Excess Tenant Improvement Costs, as solely determined by Landlord; and/or (d) Tenant to
pay all of the Excess Tenant Improvement Costs before Landlord’s contribution of the Tenant
Improvement Allowance (defined in Section 10 below) or Tenant to pay Landlord the amounts set forth
in Section 3(k) above, or any combination thereof as directed by Landlord. Subject to the
foregoing, Landlord shall provide an allowance for the planning and construction of the Tenant
Improvements for the Work to be performed in the Premises, as described in the Initial Plans and
the Final Drawings, in the amount of [ * ] (the “Tenant Improvement Allowance”) based upon an
allowance of [ * ] per rentable square foot for 32,805 square feet of the Premises which is to be
improved, as described in the Initial Plans and the Final Drawings; provided, however, a portion of
the Tenant Improvement Allowance up to [ * ] per rentable square foot of the Premises (or a total
of up to [ * ]) may be used by Tenant toward the costs of purchasing, transporting and installing
the Cubicles and Equipment, provided, however, that Landlord shall purchase not less than
seventy-three (73) Cubicles as provided in Section 35 of the Lease. Tenant shall not be entitled
to any credit, abatement or payment from Landlord in the event that the amount of the Tenant
Improvement Allowance specified above exceeds the actual Tenant Improvement Costs. The Tenant
Improvement Allowance shall only be used for generic


Exhibit B, Page 2

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








office non-specific to Tenant’s Permitted Uses, and generic lab improvements, and the Cubicles and
Equipment (for purposes of this Section 8, the term “generic lab improvements” means Building
Standard finishes (for walls, floors, ceilings, doors, windows, etc.), Building Standard lighting,
Building Standard convenience electrical, standard HVAC capacity and distribution for open office
area and excludes all plumbing, piping or other mechanical work). The Tenant Improvement Allowance
shall be the maximum contribution by Landlord for the Tenant Improvement Costs and shall be subject
to the provisions of Section 10 below.



9. Tenant Improvement Costs. The term “Tenant Improvement Costs”) shall mean and include
any and all costs and expenses of the Work, including, without limitation, all of the following:



     (a) All costs of preliminary space planning and final architectural and engineering plans and
specifications (including, without limitation, the scope of work, all plans and specifications, the
Initial Plans and the Final Drawings) for the Tenant Improvements, and architectural fees,
engineering costs and fees, and other costs associated with completion of said plans;



     (b) All costs of obtaining building permits and other necessary authorizations and approvals
from the City of San Jose, California, and other applicable jurisdictions;



     (c) All costs of interior design and finish schedule plans and specifications including
as-built drawings;



     (d) All direct and indirect costs of procuring, constructing and installing the Tenant
Improvements in the Premises, including, but not limited to, the General Contractor’s fee (in an
amount equal to fifteen percent (15%) of Tenant Improvement Costs for the General Contractor’s
overhead, profit and general conditions), the cost of all on-site supervision, administrative
staff, office expenses, equipment and temporary services rendered by Landlord’s consultants and the
General Contractor in connection with construction of the Tenant Improvements, and all labor
(including overtime) and materials constituting the Work (there will be no construction management
fee payable to Landlord);



     (e) All fees payable to the General Contractor, architect and Landlord’s engineering firm if
they are required by Tenant to redesign any portion of the Tenant Improvements following Tenant’s
approval of the Final Drawings; and



     (f) As set forth in Section 35 of the Lease, all costs of purchasing, transporting and
installing the Cubicles and Equipment.



10. Excess Tenant Improvement Costs. Prior to commencing the Work, Landlord shall submit
to Tenant a written statement of the actual Tenant Improvement Costs (the “Actual TI Costs”) (which
shall include the amount of any overtime projected as necessary to Substantially Complete the Work
by the Completion Date) as then known by Landlord, and such statement shall indicate the amount, if
any, by which the Actual TI Costs exceeds the Tenant Improvement Allowance (the “Excess Tenant
Improvement Costs”). The term “Excess Tenant Improvement Costs” shall also include the costs
related to any and all Change Orders. Tenant agrees, within three (3) days after submission to it
of such statement, to execute and deliver to Landlord, in the form then in use by Landlord, an
authorization to proceed with the Work. Tenant shall faithfully pay all of the Excess Tenant
Improvement Costs to Landlord in the following described manner. A portion of the Excess Tenant
Improvement Costs up to a maximum amount of  Forty Nine Thousand Two
Hundred Seven and 50/100 Dollars ($49,207.50) shall be amortized over the initial term of the
Lease at a fixed interest rate of eleven percent (11%) per annum and such amortized amount
(together with interest charges thereon) shall be paid by Tenant with, and as part of, the Rent for
the Premises in accordance with the provisions and requirements of Section 3 of the Lease (the
“Amortized Excess TI Costs”). Except as set forth in Section 3(k) above, the portion of the Excess
Tenant Improvement Costs in excess of the principal amount of the Amortized Excess TI Costs shall
be paid by Tenant, in cash, to Landlord within ten (10) days of Landlord’s delivery to Tenant of a
written demand therefor together with a reconciliation of such costs. Within two (2) weeks after
the Tenant Improvements have been Substantially Completed and the actual Tenant Improvement Costs
are known, the parties shall execute and deliver a written amendment to the Lease, in the form
acceptable to the parties, wherein there shall be specified, inter alia, the amount of the
Base Rent payable by Tenant during the initial term of the Lease after taking into account the
amount of the Amortized Excess TI Costs. No Work shall be commenced until Tenant has fully
complied with the preceding provisions of this Section 10. If Tenant fails to remit the sums so
demanded by Landlord pursuant to Section 8 above and this Section 10 within the time periods
required, Landlord may, at its option, following the expiration of any applicable notice and cure
periods, declare Tenant in default under the Lease.



11. Change Requests. No changes or revisions to the approved Final Drawings shall be made
by either Landlord or Tenant unless approved in writing by both parties. Upon Tenant’s request and
submission by Tenant (at Tenant’s sole cost and expense) of the necessary information and/or plans
and specifications for any changes or revisions to the approved Final Drawings and/or for any work
other than the Work described in the approved Final Drawings (“Change Requests”) and the approval
by Landlord of such Change Request(s), which approval Landlord agrees shall not be unreasonably
withheld, Landlord shall perform the additional work associated with the approved Change
Request(s), at Tenant’s sole cost and expense, subject, however, to the following provisions of
this Section 11. Prior to commencing any additional work related to the approved Change
Request(s), Landlord shall submit to Tenant a written statement of the cost of such additional work
and a proposed tenant change order therefor (“Change Order”) in the standard form then in use by
Landlord. Tenant shall execute and deliver to Landlord such Change Order and shall pay the entire
cost of such additional work in the following described manner. Any costs related to such approved
Change Request(s), Change Order and any delays associated therewith, shall be added to the Tenant
Improvement Costs and shall be paid for by Tenant as and with any Excess Tenant Improvement Costs
as set forth in Section 10 above. The billing for such additional costs to Tenant shall be
accompanied by evidence of the amounts billed as is customarily used in the business. Costs
related to approved Change Requests and Change Orders shall include, without limitation, any
architectural or design fees, the cost of all on-site supervisory and administrative staff, office,
equipment and temporary services rendered by Landlord and/or Landlord’s consultants, and the
General Contractor’s price for effecting the change. If Tenant fails to execute or deliver such
Change Order, or to pay the costs related thereto, then Landlord shall not be obligated to do any
additional work related to such approved Change Request(s) and/or Change Orders, and Landlord may
proceed to perform only the Work, as specified in the Final Drawings.



12. Termination. If the Lease is terminated prior to the Completion Date, for any reason
due to the default of Tenant hereunder, in addition to any other remedies available to Landlord
under the Lease, Tenant shall pay to Landlord as Additional Rent under the Lease, within five (5)
days of receipt of a statement therefor, any and all costs incurred by Landlord and not reimbursed
or otherwise paid by Tenant through the date of termination in connection with the Tenant
Improvements to the extent planned, installed and/or constructed as of such date of termination,
including, but not limited to, any costs related to the removal of all or any portion of the Tenant
Improvements and restoration costs related thereto. Subject to the provisions of Section 10.2 of
the Lease, upon the expiration or earlier termination of the Lease, Tenant shall not be required to
remove the Tenant Improvements it being the intention of the parties that the Tenant Improvements
are to be considered incorporated into the Building. Notwithstanding anything to the contrary
contained herein, Landlord shall have the right to terminate the Lease, upon written notice to
Tenant, if Landlord is unable to obtain a building permit for the Tenant Improvements within one
hundred eighty (180) days from the date the Lease is signed by Tenant, despite using its
commercially reasonable efforts to do so. From and after the date on which the Lease is
terminated, Tenant and Landlord shall have no further rights, obligations or claims with respect to
each other arising from the Lease, except for those obligations of Tenant under the Lease which
expressly survive and continue after the termination or expiration of the Lease.


Exhibit B, Page 3


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








13. Tenant Access. Landlord, in Landlord’s reasonable discretion and upon receipt of a
written request from Tenant, may grant Tenant a license to have access to the Premises prior to the
Completion Date to allow Tenant to do other work required by Tenant to make the Premises ready for
Tenant’s use and (the “Tenant’s Pre-Occupancy Work”). It shall be a condition to the grant by
Landlord and continued effectiveness of such license that:



     (a) Tenant shall give to Landlord a written request to have such access not less than five (5)
business days prior to the date on which such proposed access will commence (the “Access Notice”).
The Access Notice shall contain or be accompanied by each of the following items, all in form and
substance reasonably acceptable to Landlord: (i) a detailed description of and schedule for
Tenant’s Pre-Occupancy Work; (ii) the names and addresses of all contractors, subcontractors and
material suppliers and all other representatives of Tenant who or which will be entering the
Premises on behalf of Tenant to perform Tenant’s Pre-Occupancy Work or will be supplying materials
for such work, and the approximate number of individuals, itemized by trade, who will be present in
the Premises; (iii) copies of all contracts, subcontracts, material purchase orders, plans and
specifications pertaining to Tenant’s Pre-Occupancy Work; (iv) copies of all licenses and permits
required in connection with the performance of Tenant’s Pre-Occupancy Work; (v) certificates of
insurance (in amounts satisfactory to Landlord and with the parties identified in, or required by,
the Lease named as additional insureds) and instruments of indemnification against all claims,
costs, expenses, penalties, fines, and damages which may arise in connection with Tenant’s
Pre-Occupancy Work; and (vi) assurances of the ability of Tenant to pay for all of Tenant’s
Pre-Occupancy Work and/or a letter of credit or other security deemed appropriate by Landlord
securing Tenant’s lien-free completion of Tenant’s Pre-Occupancy Work.



     (b) Such pre-term access by Tenant and Tenant’s employees, agents, contractors, consultants,
workmen, mechanics, suppliers and invitees shall be subject to scheduling by Landlord.



     (c) Tenant’s employees, agents, contractors, consultants, workmen, mechanics, suppliers and
invitees shall fully cooperate, work in harmony and not, in any manner, interfere with Landlord or
Landlord’s agents or representatives in performing the Work and any additional work pursuant to
approved Change Orders, Landlord’s work in other areas of the Building or the Park, or the general
operation of the Building. If at any time any such person representing Tenant shall not be
cooperative or shall otherwise cause or threaten to cause any such disharmony or interference,
including, without limitation, labor disharmony, and Tenant fails to immediately institute and
maintain corrective actions as directed by Landlord, then Landlord may revoke such license upon
twenty-four (24) hours’ prior written notice to Tenant.



     (d) Any such entry into and occupancy of the Premises or any portion thereof by Tenant or any
person or entity working for or on behalf of Tenant shall be deemed to be subject to all of the
terms, covenants, conditions and provisions of the Lease, excluding only the covenant to pay Rent.
Landlord shall not be liable for any injury, loss or damage which may occur to any of Tenant’s
Pre-Occupancy Work made in or about the Premises or to any property placed therein prior to the
commencement of the term of the Lease, the same being at Tenant’s sole risk and liability. Tenant
shall be liable to Landlord for any damage to any portion of the Premises, the Work or the
additional work related to any approved Change Orders caused by Tenant or any of Tenant’s
employees, agents, contractors, consultants, workmen, mechanics, suppliers and invitees. In the
event that the performance of Tenant’s Pre-Occupancy Work causes extra costs to be incurred by
Landlord or requires the use of other Building services, Tenant shall promptly reimburse Landlord
for such extra costs and/or shall pay Landlord for such other Building services at Landlord’s
standard rates then in effect.



14. Lease Provisions; Conflict. The terms and provisions of the Lease, insofar as they are
applicable, in whole or in part, to this Exhibit B, are hereby incorporated herein by
reference. In the event of any conflict between the terms of the Lease and this Exhibit B,
the terms of this Exhibit B shall prevail. Any amounts payable by Tenant to Landlord
hereunder shall be deemed to be Additional Rent under the Lease and, upon any default in the
payment of same, Landlord shall have all rights and remedies available to it as provided for in the
Lease.

Exhibit B, Page 4


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








Schedule 1




Initial Plans








Exhibit B, Page 5


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








Schedule 2




Building Standards




Outline Specification for




Legacy Baytech Park




OFFICE AREA




Demising Partition and Corridor Walls:



Note: One hr. rated walls where required based on occupancy group.




	A.	 	6” 20-gage metal studs at 24” O.C. (or as required by code based on roof height) framed full
height from finish floor to surface above.
	 
	B.	 	One (1) layer 5/8” drywall Type “X” both sides of wall, fire taped only.





Interior Partitions:





	A.	 	3-5/8” 20-gage metal studs at 24” O.C. to bottom of T-Bar ceiling grid approximately 9’ 0” high.
	 
	B.	 	One (1) layer 5/8” drywall both sides of wall, skip trowel textured ready for paint.
	 
	C.	 	3-5/8” metal studs including all lateral bracing as required by code.





Perimeter Drywall (At Office Areas):





	A.	 	3-5/8” metal studs @ 24” O.C. to 12’ 0” above finished floor. (or as required by Title-24 for
full height envelope then use demising wall spec.)
	 
	B.	 	One (1) layer 5/8” Type “X” drywall taped and ready for paint.





Column Furring:





	A.	 	Furring channel all sides of 2-1/2” metal studs per details.
	 
	B.	 	One (1) layer 5/8” drywall taped skip trowel textured and ready for paint.
	 
	C.	 	Columns within walls shall be furred-out.





Acoustical Ceilings:




Note: Gyp. Bd. ceiling at all restrooms Typ.




	A.	 	2’ x 4’ standard white T-Bar grid system as manufactured by USG: Donn DX24, standard ‘T’ 9/16”
with M7 wall molding.
	 
	B.	 	2’ x 4’ Radar Millenia clima plus by USG Interiors, white color w/ FLB edge





Painting:





	A.	 	Sheetrock walls within office to receive two (2) coats of interior latex paint as
manufactured by Kelly Moore or equal. Some portions of second coat to be single accent color.
Kelly-Moore: Western Acoustic #47.
	 
	B.	 	Semi-gloss paint all restrooms and lunch rooms.





Window Covering:





	A.	 	1” aluminum mini-blinds as manufactured by Levelor, Bali or equal, color to be selected by
Legacy Partners Commercial, Inc. (brushed aluminum or white).
	 
	B.	 	Blinds to be sized to fit window module.





VCT:





	A.	 	VCT to be 1/8” x 12” x 12” as manufactured by Armstrong -Excelon Series or equal.
	 
	B.	 	Slabs shall be water proofed per manufacturer recommendations, at sheet vinyl or VCT areas.





Light Fixtures:





	A.	 	2” x 4” T-bar lay in 3-tube energy efficient fixture with cool white fluorescent tubes with
18 cell parabolic lens as manufactured by Lithonia or equal. (Approximately 50 F.C.)





Light Switches:





	A.	 	Switching as required by Title 24.





Exhibit B, Page 6


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 






	B.	 	Switch assembly to be Levinton or equal, color — White





Electrical Outlet:





	A.	 	110V duplex outlet in demising or interior partitions only, as manufactured by Leviton or equal,
color to be White.
	 
	B.	 	Maximum eight (8) outlets per circuit, spacing to meet code or minimum 2 per office,
conference room, reception and 2 dedicated over cabinet at lunch room junction boxes above
ceiling for large open area with furniture partitions.
	 
	C.	 	Transformers to be a minimum of 20% over required capacity.
	 
	D.	 	Contractors to inspect electric room and to include all necessary metering cost.
	 
	E.	 	No aluminum wiring is acceptable.





Telephone/Data Outlet:





	A.	 	One (1) single outlet box in wall with pullwire from outlet box to area above T-bar ceiling per
office.
	 
	B.	 	Cover plate for phone outlets by telephone/data vendors.





Fire Sprinklers:




As required by fire codes.



Topset Base:





	A.	 	4” rubber base as manufactured by Burke or equal, standard colors only. Johnsonite, 4” cove,
01-Snow White
	 
	B.	 	4” rubber base at VCT areas.





Toilet Areas:




Wet walls to receive Duraboard or Wonder Board and ceramic tile up to 48”. Floors to receive
ceramic tile with self coved base as required by code.



Carpet:




Note any of the following carpets are acceptable



Shaw Industries “Supply & Demand”, “Total Concepts”; or “ Convergence”.



Wood Doors:




Shall be 3’ 0” x 9’ 0” x 1-3/4” (unless otherwise specified) solid core, pre finished clear maple
at lobbies—flat cut / plain sliced, book matched veneer, clear sealer finish and paint grade doors
at interior to match existing.



Door Frames:




Shall be ACI or equal, 3-3/4” or 4-7/8” throat, brushed, standard aluminum, snap-on trim.



Hardware:




1-1/2 pr. butts F179 Stanley, Latchset D10S Sparta Schlage, Lockset D53PD Sparta Schlage, Dome
Type floor stop Gylnn Johnson FB13, Closer 4110LCN (where required) brushed chrome.



Insulation:




By Title 24 insulation.



Plumbing:





	A.	 	Shall comply with all local codes and handicapped code requirements. Fixtures shall be either
“American Standard”, “Kohler” or “Norris”. All toilet accessories and grab bars shall be
“Bobrick” or equal and approved by owner.
	 
	B.	 	Plumbing bid shall include 5 gallon minimum hot water heater, or insta hot with mixer valve
including all connections.





Toilet Partitions:




Shall be as manufactured by Fiat, global or equal if approved by owner. Color to be white or gray.



HVAC:




HVAC units per specifications.



Five (5) year warranty provided on all HVAC compressor units. All penetrations including curbs and
sleepers to be hot moped to Legacy Partners Commercial, Inc. standard.


Exhibit B, Page 7


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








Schedule 3




Bid Summary




[To be provided]



Exhibit B, Page 8

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 





Exhibit C




Rules & Regulations




This exhibit, entitled “Rules & Regulations”, is and shall constitute Exhibit C to that
certain Lease Agreement dated for reference purposes as of May 24, 2006 (the “Lease”), by and
between LEGACY PARTNERS I SAN JOSE, LLC, a Delaware limited liability company (“Landlord”), and
Endwave Corporation, a Delaware corporation (“Tenant”), for the leasing of certain premises located
in Legacy Baytech Park, 130 Baytech Drive, San Jose, California 95134-2302 (the “Premises”). The
terms, conditions and provisions of this Exhibit C are hereby incorporated into and are
made a part of the Lease. Any capitalized terms used herein and not otherwise defined herein shall
have the meaning ascribed to such terms as set forth in the Lease:



1. Subject to Section 30 of the Lease, no advertisement, picture or sign of any sort shall be
displayed on or outside the Premises or the Building without the prior written consent of Landlord.
Landlord shall have the right to remove any such unapproved item without Notice and at Tenant’s
expense.



2. Tenant shall park motor vehicles in those general parking areas, as designated by Landlord,
except for loading and unloading. During those periods of loading and unloading, Tenant shall not
unreasonably interfere with (i) traffic flow within the Project and (ii) loading and unloading
activities of other tenants. Tenant shall not regularly park motor vehicles in designated parking
areas after the conclusion of normal daily business activity.



3. Tenant shall not use any method of heating or air conditioning other than that supplied by
Landlord without the prior written consent of Landlord.



4. All window coverings installed by Tenant and visible from the outside of the Building require
the prior written approval of Landlord.



5. Subject to Section 27 of the Lease, Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance or any flammable or combustible materials in or around the
Premises, the Building or any portion of the Project.



6. Tenant shall not alter any lock or install any new locks or bolts on any door at the Premises
without the prior consent of Landlord. Tenant agrees not to make any duplicate keys without the
prior consent of Landlord.



7. Tenant shall not disturb, solicit or canvas any occupant of the Project and shall cooperate to
prevent same.



8. No person shall go on the roof without Landlord’s permission.



9. Business machines and mechanical equipment belonging to Tenant which cause noise or vibration
that may be transmitted to the structure of the Building, to such a degree as to be objectionable
to Landlord or other tenants, shall be placed and maintained by Tenant, at Tenant’s expense, on
vibration eliminators or other devices sufficient to eliminate noise or vibration.



10. All goods, including material used to store goods, delivered to the Premises shall be
immediately moved into the Premises and shall not be left in parking or receiving areas overnight.
Tenant shall not store or permit the storage or placement of goods, merchandise, pallet or
equipment of any sort outside of the Premises, Building or in any of the Common Areas. No displays
or sales of merchandise are allowed in the parking lots or other portions of the Common Areas.



11. No parking or storing of such trailers will be permitted in the auto parking areas of the
Project or on streets adjacent thereto.



12. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall
only use tires that do not damage the asphalt.



13. Tenant is responsible for the storage and removal of all trash and refuse. All such trash and
refuse shall be contained in suitable receptacles and stored behind screened enclosures at
locations approved by Landlord.



14. Tenant shall not permit any animals, including, but not limited to, any household pets, to be
brought or kept in the Premises, Building, Common Areas or Project.



15. Tenant shall not permit (i) any motor vehicles to be washed in any portion of the Premises or
Common Areas, and (ii) any mechanical work or maintenance of motor vehicles to be performed in any
portion of the Premises or Common Areas.


Exhibit C, Page 1


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








Exhibit E




Hazardous Materials Disclosure Certificate




Your cooperation in this matter is appreciated. Initially, the information provided by you in this
Hazardous Materials Disclosure Certificate is necessary for the Landlord (identified below) to
evaluate and finalize a lease agreement with you as Tenant. After a lease agreement is signed by
you and the Landlord (the “Lease Agreement”), on an annual basis in accordance with the provisions
of Section 27 of the signed Lease Agreement, you are to provide an update to the information
initially provided by you in this certificate. The information contained in the initial Hazardous
Materials Disclosure Certificate and each annual certificate provided by you thereafter will be
maintained in confidentiality by Landlord subject to release and disclosure as required by (i) any
lenders and owners and their respective environmental consultants, (ii) any prospective
purchaser(s) of all or any portion of the property on which the Premises are located, (iii)
Landlord to defend itself or its lenders, partners or representatives against any claim or demand,
and (iv) any laws, rules, regulations, orders, decrees, or ordinances, including, without
limitation, court orders or subpoenas. Any and all capitalized terms used herein, which are not
otherwise defined herein, shall have the same meaning ascribed to such term in the signed Lease
Agreement. Any questions regarding this certificate should be directed to, and when completed, the
certificate should be delivered to:




			
	Landlord:	 	LEGACY PARTNERS I SAN JOSE, LLC, a Delaware limited liability company

c/o Legacy Partners Commercial, Inc.

4000 East Third Avenue, Suite 600

Foster City, California 94404-4805

Attn: Senior Vice President, Regional Manager

Phone: (650) 571-2200






	 	 	 
	Name of (Prospective) Tenant:

	 	Endwave Corporation, a Delaware corporation
	 
	 	 
	Mailing Address:

	 	 
	 

	 	 
	 

	 	 
	 

	 	 





	 	 	 
	Contact Person, Title and Telephone Number(s):

	 	 
	 

	 	 





Contact Person for Hazardous Waste Materials Management and Manifests and Telephone Number(s):



 





 





	 	 	 
	Address of (Prospective) Premises

	 	130 Baytech Drive

San Jose, California 95134-2302
	 
	 	 
	Length of (Prospective) Initial Term:

	 	 
	 

	 	 





	 	 	 	 	 	 	 	 	 
	1.	 	General Information:
	 
	 	 	 	 	 	 	 	 
	Describe the initial proposed operations to take place in, on, or about the Premises, including,
without limitation, principal products processed, manufactured or assembled services and activities
to be provided or otherwise conducted. Existing Tenants should describe any proposed changes to
on-going operations.
	 
	 	 	 	 	 	 	 	 
	2.	 	Use, Storage and Disposal of Hazardous Materials
	 
	 	 	 	 	 	 	 	 
	 	 	2.1	 	Will any Hazardous Materials be used, generated, stored or disposed of in, on
or about the Premises? Existing Tenants should describe any Hazardous Materials which
continue to be used, generated, stored or disposed of in, on or about the Premises.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Wastes
	 	Yes [  ]
	 	No [  ]
	 

	 	 	 	Chemical Products
	 	Yes [  ]
	 	No [  ]
	 

	 	 	 	Other
	 	Yes [  ]
	 	No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If Yes is marked, please explain:	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	2.2	 	If “Yes” is marked in Section 2.1, attach a list of any Hazardous Materials to
be used, generated, stored or disposed of in, on or about the Premises, including the
applicable hazard class and an estimate of the quantities of such Hazardous Materials
at any given time; estimated annual throughput; the proposed location(s) and method of
storage (excluding nominal amounts of ordinary household cleaners and janitorial
supplies which are not regulated by any Environmental Laws); and the proposed
location(s) and method of disposal for each Hazardous Material, including, the
estimated frequency, and the proposed contractors or subcontractors. Existing Tenants
should attach a list setting forth the information requested above and such list should
include actual data from on-going operations and the identification of any variations
in such information from the prior year’s certificate.
	 
	 	 	 	 	 	 	 	 
	3.	 	Storage Tanks and Sumps
	 
	 	 	 	 	 	 	 	 
	 	 	3.1	 	Is any above or below ground storage of gasoline, diesel, petroleum, or other
Hazardous Materials in tanks or sumps proposed in, on or about the Premises? Existing
Tenants should describe any such actual or proposed activities.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, please explain:
 


	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 





Exhibit E, Page 1


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 






	 	 	 	 	 	 	 	 	 
	4.	 	Waste Management
	 
	 	 	 	 	 	 	 	 
	 	 	4.1	 	Has your company been issued an EPA Hazardous Waste Generator I.D. Number?
Existing Tenants should describe any additional identification numbers issued since the
previous certificate.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	4.2	 	Has your company filed a biennial or quarterly reports as a hazardous waste
generator? Existing Tenants should describe any new reports filed.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, attach a copy of the most recent report filed.
	 
	 	 	 	 	 	 	 	 
	5.	 	Wastewater Treatment and Discharge
	 
	 	 	 	 	 	 	 	 
	 	 	5.1	 	Will your company discharge wastewater or other wastes to:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	                     storm drain?	 	                     sewer?
	 	 	 	 	                     surface water?	 	                     no wastewater or other wastes discharged.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Existing Tenants should indicate any actual discharges. If so, describe the nature
of any proposed or actual discharge(s).
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	5.2	 	Will any such wastewater or waste be treated before discharge?
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, describe the type of treatment proposed to be conducted. Existing Tenants
should describe the actual treatment conducted.
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	6.	 	Air Discharges	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	6.1	 	Do you plan for any air filtration systems or stacks to be used in your
company’s operations in, on or about the Premises that will discharge into the air; and
will such air emissions be monitored? Existing Tenants should indicate whether or not
there are any such air filtration systems or stacks in use in, on or about the Premises
which discharge into the air and whether such air emissions are being monitored.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, please describe:  

	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	6.2	 	Do you propose to operate any of the following types of equipment, or any other
equipment requiring an air emissions permit? Existing Tenants should specify any such
equipment being operated in, on or about the Premises.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	                     Spray booth(s)	 	                     Incinerator(s)
	 	 	 	 	                     Dip tank(s)	 	                     Other (Please describe)
	 	 	 	 	                     Drying oven(s)	 	                     No Equipment Requiring Air Permits
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, please describe: 

	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	7.	 	Hazardous Materials Disclosures	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	7.1	 	Has your company prepared or will it be required to prepare a Hazardous
Materials management plan (“Management Plan”) pursuant to Fire Department or other
governmental or regulatory agencies’ requirements? Existing Tenants should indicate
whether or not a Management Plan is required and has been prepared.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, attach a copy of the Management Plan. Existing Tenants should attach a copy
of any required updates to the Management Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	7.2	 	Are any of the Hazardous Materials, and in particular chemicals, proposed to be
used in your operations in, on or about the Premises regulated under Proposition 65?
Existing Tenants should indicate whether or not there are any new Hazardous Materials
being so used which are regulated under Proposition 65.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, please explain: 


	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 





Exhibit E, Page 2


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 






	 	 	 	 	 	 	 	 	 
	8.	 	Enforcement Actions and Complaints	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	8.1	 	With respect to Hazardous Materials or Environmental Laws, has your company
ever been subject to any agency enforcement actions, administrative orders, or consent
decrees or has your company received requests for information, notice or demand
letters, or any other inquiries regarding its operations? Existing Tenants should
indicate whether or not any such actions, orders or decrees have been, or are in the
process of being, undertaken or if any such requests have been received.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, describe the actions, orders or decrees and any continuing compliance
obligations imposed as a result of these actions, orders or decrees and also describe
any requests, notices or demands, and attach a copy of all such documents. Existing
Tenants should describe and attach a copy of any new actions, orders, decrees,
requests, notices or demands not already delivered to Landlord pursuant to the
provisions of Section 27 of the signed Lease Agreement.
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	8.2	 	Have there ever been, or are there now pending, any lawsuits against your
company regarding any environmental or health and safety concerns?
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, describe any such lawsuits and attach copies of the complaint(s),
cross-complaint(s), pleadings and all other documents related thereto as requested by
Landlord. Existing Tenants should describe and attach a copy of any new
complaint(s), cross-complaint(s), pleadings and other related documents not already
delivered to Landlord pursuant to the provisions of Section 27 of the signed Lease
Agreement.
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	8.3	 	Have there been any problems or complaints from adjacent Tenants, owners or
other neighbors at your company’s current facility with regard to environmental or
health and safety concerns? Existing Tenants should indicate whether or not there have
been any such problems or complaints from adjacent Tenants, owners or other neighbors
at, about or near the Premises.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Yes [  ]       No [  ]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If yes, please describe. Existing Tenants should describe any such problems or
complaints not already disclosed to Landlord under the provisions of the signed Lease
Agreement.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	9.	 	Permits and Licenses	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	9.1	 	Attach copies of all Hazardous Materials permits and licenses including a
Transporter Permit number issued to your company with respect to its proposed
operations in, on or about the Premises, including, without limitation, any wastewater
discharge permits, air emissions permits, and use permits or approvals. Existing
Tenants should attach copies of any new permits and licenses as well as any renewals of
permits or licenses previously issued.






The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials Disclosure
Certificate is being delivered in connection with, and as required by, Landlord in connection with
the evaluation and finalization of a Lease Agreement and will be attached thereto as an exhibit;
(B) that this Hazardous Materials Disclosure Certificate is being delivered in accordance with, and
as required by, the provisions of Section 27 of the Lease Agreement; and (C) that Tenant shall have
and retain full and complete responsibility and liability with respect to any of the Hazardous
Materials disclosed in the HazMat Certificate notwithstanding Landlord’s/Tenant’s receipt and/or
approval of such certificate. Tenant further agrees that none of the following described acts or
events shall be construed or otherwise interpreted as either (a) excusing, diminishing or otherwise
limiting Tenant from the requirement to fully and faithfully perform its obligations under the
Lease with respect to Hazardous Materials, including, without limitation, Tenant’s indemnification
of the Indemnitees and compliance with all Environmental Laws, or (b) imposing upon Landlord,
directly or indirectly, any duty or liability with respect to any such Hazardous Materials,
including, without limitation, any duty on Landlord to investigate or otherwise verify the accuracy
of the representations and statements made therein or to ensure that Tenant is in compliance with
all Environmental Laws; (i) the delivery of such certificate to Landlord and/or Landlord’s
acceptance of such certificate, (ii) Landlord’s review and approval of such certificate, (iii)
Landlord’s failure to obtain such certificate from Tenant at any time, or (iv) Landlord’s actual or
constructive knowledge of the types and quantities of Hazardous Materials being used, stored,
generated, disposed of or transported on or about the Premises by Tenant or Tenant’s
Representatives. Notwithstanding the foregoing or anything to the contrary contained herein, the
undersigned acknowledges and agrees that Landlord and its partners, lenders and representatives
may, and will, rely upon the statements, representations, warranties, and certifications made
herein and the truthfulness thereof in entering into the Lease Agreement and the continuance
thereof throughout the term, and any renewals thereof, of the Lease Agreement.



Tenant hereby certifies, represents and warrants that the information contained in this certificate
is true and correct.



(Prospective) Tenant:




	 	 	 	 	 
	By:

	 	 
 

	 	 
	 
	 	 	 	 
	Title:

	 	 
 

	 	 
	 
	 	 	 	 
	Date:

	 	 
 

	 	 




Exhibit E, Page 3

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 






Exhibit F




First Amendment to Lease Agreement




Change of Commencement Date




This First Amendment to Lease Agreement (the “Amendment”) is made and entered into to be effective
as of ___, 20___by and between LEGACY PARTNERS I SAN JOSE, LLC, a Delaware limited
liability company (“Landlord”), and Endwave Corporation, a Delaware corporation (“Tenant”), with
reference to the following facts:



Recitals




A. Landlord and Tenant have entered into that certain Lease Agreement dated May 24, 2006 (the
“Lease”), for the leasing of certain premises containing approximately 32,805 rentable square feet
of space located at 130 Baytech Drive, San Jose, California 95134-2302 (the “Premises”) as such
Premises are more fully described in the Lease.



B. Landlord and Tenant wish to amend the Commencement Date of the Lease.



NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Landlord and Tenant hereby agree as
follows:



1. Recitals: Landlord and Tenant agree that the above recitals are true and correct.



2. Commencement Date: The Commencement Date of the Lease shall be ___.



3. Expiration Date: The last day of the Term of the Lease (the “Expiration Date”) shall be ___.



4. Base Rent: The dates on which the Base Rent will be adjusted are:



for the period ___to ___, the monthly Base Rent shall be $___;

for the period ___to ___, the monthly Base Rent shall be $___;

for the period ___to ___, the monthly Base Rent shall be $___; and

for the period ___to ___, the monthly Base Rent shall be $___.



5. Effect of Amendment: Except as modified herein, the terms and conditions of the Lease
shall remain unmodified and continue in full force and effect. In the event of any conflict
between the terms and conditions of the Lease and this Amendment, the terms and conditions of this
Amendment shall prevail.



6. Definitions: Unless otherwise defined in this Amendment, all terms not defined in this
Amendment shall have the meaning set forth in the Lease.



7. Authority: Subject to the provisions of the Lease, this Amendment shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs, legal representatives,
successors and assigns. Each party hereto and the persons signing below warrant that the person
signing below on such party’s behalf is authorized to do so and to bind such party to the terms of
this Amendment.



8. The terms and provisions of the Lease are hereby incorporated in this Amendment.



IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Landlord:	 	Tenant:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	LEGACY PARTNERS I SAN JOSE, LLC,	 	Endwave Corporation,	 	 
	a Delaware limited liability company, Owner	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	LEGACY PARTNERS COMMERCIAL, L.P.,	 	By:	 	 	 	 
	 	 	a California limited partnership,	 	 	 	(Name)	 	 
	 	 	as Property Manager and Agent for Owner	 	Its:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	(Title)	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	LEGACY PARTNERS COMMERCIAL, INC.,	 	 	 	 	 	 
	 	 	 	 	General Partner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Debra Smith
	 	 	 	(Name)	 	 
	 

	 	 	 	Its:
	 	Executive Vice President
	 	Its:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	(Title)	 	 




Exhibit F, Page 1

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 






Exhibit G




Sign Criteria




	 	 	 
	

	 	
	 
	Building

	 	Directory Monuments (2)
	 
	• Illuminated or non-illuminated letters and logo.

	 	• Surface applied matte black vinyl lettering.
	 
	 	 
	• Tenant choice of typeface, logo and colors.

	 	• Tenant choice of typeface and logo to fit within a defined area on directory panel.
	 
	 	 
	• Channel letters and/or logo attached on a
raceway on building wall.
	 	 
	 
	 	 
	• Building signs require a separate permit through the City of
San Jose.
	 	 






Sizes within defined areas as follows:



110 Baytech



• 15’x2’ (maximum 30 sf area) on building within defined area.



130 Baytech



• 15’x2’ (maximum 30 sf area) on building within defined area.



• 20’x2.5’ (maximum 50 sf area) on east or west exterior of building.








	 	 	 
	Shipping & Receiving Door

	 	Glass Entrance
	   
	• Surface applied matte black vinyl lettering on 24” x 18”
white aluminum panel.

	 	• Surface applied vinyl lettering.
	 
	 	 
	• Text to include address and information about type of entrance.

	 	• Tenant choice of typeface, logo and colors.
	 
	 	 
	 

	 	• Size approximately 5 sf to fit within a defined area on glass panel to left or right of main entrance.






All signage subject to the requirements of the Master Sign Program.


Exhibit G, Page 1

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.












 








Exhibit H




Subordination, Non-Disturbance and Attornment Agreement




RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO:



Redwood Capital Finance Company, LLC

1960 East Grand Avenue, Suite 400

El Segundo, California 90245

Attention: William R. Lindsay



 




Space above this line for Recorder’s use.




SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT




THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (“Agreement”) is made and entered into
as of ___, 2006, by and between REDWOOD CAPITAL FINANCE COMPANY, LLC a Delaware
limited liability company (“Lender”), and Endwave Corporation, a Delaware corporation (“Tenant”).



RECITALS:




A. Pursuant to the Loan Agreement (as defined below), Lender has made, or has agreed to make, a
loan (“Loan”) to the owner of the Property, Legacy Partners I San Jose, LLC, a Delaware limited
liability company (“Borrower”), evidenced by, among other things, a promissory note executed, or to
be executed, by Borrower in favor of Lender in the principal amount of the Loan (as amended from
time to time, the “Note”).



B. The Note and certain other obligations of Borrower under the Loan are, or will be, secured by,
among other things, a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
executed, to be executed, by Borrower in favor of Lender (as amended from time to time, the “Deed
of Trust”). The Deed of Trust, is to be recorded or on or about the date of recordation of this
Agreement and encumbers Borrower’s interest in certain real property situated in the City of San
Jose, County of Santa Clara, State of California, and more particularly described on Exhibit
A attached hereto (the “Property”). In connection with the Loan, Borrower and Lender have
executed a Loan Agreement (“Loan Agreement”), and Borrower has executed the other documents and
instruments which, together with the Loan Agreement, are described in the Loan Agreement as the
“Loan Documents.”



C. Pursuant to that certain Lease, dated May 24, 2006, Tenant leases the portion of the Property
known as 130 Baytech Drive, San Jose, California (“Premises”).



D. As a condition to making the Loan, Lender requires that Tenant subordinate the Lease to the Deed
of Trust and the lien thereof, subject to the terms and conditions of this Agreement, and agree to
attorn to Lender as provided below. Tenant is willing to provide such subordination and attornment
on the terms and conditions contained in this Agreement. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the same meanings as in the Lease.



NOW, THEREFORE, for valuable consideration, Tenant and Lender agree as follows:



1. SUBORDINATION. Tenant hereby agrees in favor of Lender:



     (a) The rights, interests, lien and charge of Lender under the Deed of Trust and the other
Loan Documents, and all modifications, extensions, renewals or replacements thereof, as to the Note
and all other obligations now or hereafter secured thereby, including any additional advances
thereunder, and all modifications, extensions, renewals or replacements thereof, shall
unconditionally and at all times be and remain prior and superior with respect to the Property to
the rights, interests, lien and charge of Tenant under the Lease, and all modifications,
extensions, renewals or replacements thereof. Notwithstanding the foregoing subordination as to
any subsequent modifications, renewals, extensions or replacements of the Deed of Trust, the Note,
the other Loan Documents or the other obligations secured thereby, including any additional
advances thereunder, Tenant agrees to execute, acknowledge and deliver to Lender from time to time
such further subordination and/or other agreements as Lender may request in order to confirm the
continuing priority and superiority of the Deed of Trust and the other Loan Documents over the
Lease;



     (b) Lender would not make the Loan without this agreement to subordinate;



     (c) This Agreement shall be the whole agreement and only agreement with regard to the
subordination of the Lease to the lien of the Deed of Trust and shall supersede and cancel, but
only insofar as would affect the priority between the Deed of Trust and the Lease, any prior
agreements as to such subordination, including, without limitation, those provisions, if any,
contained in the Lease which provide for the subordination of the Lease to a deed or deeds of trust
or to a mortgage or mortgages;



     (d) Lender, in making disbursements pursuant to the Note, the Deed of Trust or the Loan
Agreements, is under no obligation or duty to, nor has Lender represented that it will, see to the
application of such proceeds by the person or persons to whom Lender disburses such proceeds, and
any application or use of such proceeds for purposes other than those provided for in such
agreement or agreements shall not defeat this agreement to subordinate in whole or in part; and



     (e) Tenant intentionally and unconditionally waives, relinquishes and subordinates all of
Tenant’s right, title and interest in and to the Property to the lien of the Deed of Trust and
understands that in reliance upon, and in consideration of, this waiver, relinquishment and
subordination, specific loans and advances are being and will be made by Lender and, as part and
parcel thereof, specific monetary and other obligations are being and will be entered into which
would not be made or entered into but for such reliance upon this waiver, relinquishment and
subordination.



2. NONDISTURBANCE. Lender will not join Tenant as a party in any Foreclosure (defined
below) unless the joinder is necessary or desirable to pursue Lender’s remedies under the Deed of
Trust, and provided that such joinder shall not result in the termination of the Lease or disturb
Tenant’s possession of the Premises. In the event of a Foreclosure, Lender agrees that the
leasehold interest of Tenant under the Lease shall not be terminated by reason of the Foreclosure,
but rather the Lease shall continue in full force and effect, and Lender shall recognize and accept
Tenant as tenant under the Lease subject to the provisions of the Lease except as otherwise
provided below; provided that, if Tenant shall then be in default under the Lease beyond any
notice, grace or cure period, at

Exhibit H, Page 1

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








Lender’s option, the Lease shall be terminated by reason of the Foreclosure and Lender shall have
no obligation to Tenant under the Lease. As used in this Agreement, “Foreclosure” means any
nonjudicial or judicial foreclosure of the Deed of Trust, or any deed or other transfer in lieu
thereof.



3. ATTORNMENT. In the event of a transfer of Borrower’s interest in the Property to a
Purchaser (as defined below), the Lease shall continue in full force and effect and Tenant agrees
to attorn to the Purchaser as its landlord under the Lease and to be bound by all of the provisions
of the Lease for the balance of the term thereof; provided that the Purchaser shall not be:



     (a) Liable for any act or omission of any Prior Landlord (as defined below) or subject to any
offsets or defenses which Tenant might have against any Prior Landlord;



     (b) Liable for the return of any rental security deposit, or bound by any payment of rents,
additional rents or other sums which Tenant may have paid more than one month in advance to any
Prior Landlord, except to the extent such sums are actually received by Purchaser;



     (c) Bound by any amendment to the Lease made without the prior written consent of Lender;



     (d) Liable for obligations under the Lease, the cost of which exceed the value of its interest
in the Property, or for obligations which first accrue after Purchaser has sold or otherwise
transferred its interest in the Property;



     (e) Obligated to install, construct or pay for any tenant or other improvements or alterations
to or on the Premises or Property; bound to restore the Premises or Property after a casualty for a
cost in excess of any insurance proceeds received by Lender with respect to such casualty; or bound
to restore the Premises or Property after a taking in condemnation for a cost in excess of the
portion of any condemnation award made specifically for that purpose; bound by any restriction on
competition beyond the Property;



     (f) Bound by any notice of termination, cancellation or surrender of the Lease made without
the prior written consent of Lender;



     (g) Bound by any option to purchase, right of first offer to purchase or right of first
refusal to purchase with respect to the Property or any portion thereof;



     (h) Liable for the breach of any representation or warranty made by Prior Landlord in the
Lease; or



     (i) Liable for any indemnity obligation of Prior Landlord contained in the Lease, except with
respect to the Purchaser’s acts or omissions.



This attornment shall be immediately effective and self-operative, without the execution of any
further instrument, upon Purchaser’s acquisition of Borrower’s interest in the Property. As used
in this Agreement, “Purchaser” means any transferee, including Lender, of Borrower’s interest in
the Property pursuant to a Foreclosure and the successors and assigns of such transferee, and
“Prior Landlord” means any landlord, including Borrower, under the Lease prior in time to
Purchaser.



4. NOTICE TO TENANT. After written notice is given to Tenant by Lender, that Borrower is
in default under the Loan and that the rentals under the Lease are required to be paid to Lender
pursuant to the terms of the Deed of Trust, Tenant shall thereafter pay to Lender all rent and all
other sums due Borrower under the Lease.



5. NOTICE TO LENDER AND RIGHT TO CURE. Tenant shall provide written notice to Lender of
any default by Borrower under the Lease or any other act or omission by Borrower under the Lease
which could give Tenant the right to terminate the Lease and/or abate or make a deduction from
amounts payable by Tenant under the Lease, and Tenant agrees that no notice of termination of the
Lease and no notice of abatement of or deduction from rent shall be effective unless Lender shall
have received written notice of the default, act or omission giving rise to such termination,
abatement or rent deduction and shall have failed to cure such default, act or omission within
thirty (30) days after receipt of such notice to cure such default, act or omission or if such
default, act or omission cannot be cured within thirty (30) days, shall have failed within thirty
(30) days after receipt of such notice to commence and thereafter diligently pursue any action
necessary to cure such default, act or omission to completion, including, without limitation, any
action to obtain possession of the Property. Notwithstanding the foregoing, Lender shall have no
obligation to cure any such default, act or omission. Tenant shall give such notice to Lender at
its address set forth below or at such other address as Lender shall specify from time to time.



6. NOTICES. Any notice or other communication required or permitted to be given pursuant
to the provisions of this Agreement shall either be personally delivered, sent by registered or
certified U.S. mail, return receipt requested, postage prepaid, or sent by a nationally recognized
private courier service, and shall be addressed to the parties as follows:



	 	 	 	 	 
	TENANT:

	 	 
 

	 	 
	 

	 	 
 

	 	 
	 

	 	 
 

	 	 
	 
	 	 	 	 
	LENDER:

	 	REDWOOD CAPITAL FINANCE COMPANY, LLC

1960 East Grand Avenue, Suite 400

El Segundo, California 90245

Attention: William R. Lindsay	 	 






Any such notice shall be effective upon delivery or attempted delivery.



7. MISCELLANEOUS. This Agreement shall be binding upon and inure to the benefit of Lender
and Tenant and their respective successors and assigns. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California. This Agreement is
the entire agreement of the parties and supersedes any prior agreement with respect to its subject
matter, and no provision of this Agreement may be waived or modified except in a writing signed by
all parties. If any lawsuit, arbitration or other proceeding is brought under this Agreement, the
prevailing party shall be entitled to recover the reasonable fees and costs of its attorneys in
such proceeding. If any provision of this Agreement is held to be invalid or unenforceable in any
respect, this Agreement shall be construed without such provision. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same document. Each party represents and warrants to the
other party that this Agreement is a valid and binding agreement of such party and the person(s)
executing this Agreement on their behalf have the authority to do so.

Exhibit H, Page 2

[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








IN WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as of the date first above
written.



	 	 	 	 	 
	LENDER:	 	 
	 
	 	 	 	 
	REDWOOD CAPITAL FINANCE COMPANY, LLC,

a Delaware limited liability company	 	 
	 
	 	 	 	 
	By:

	 	 
 

	 	 
	Name:

	 	 
 

	 	 
	Title:

	 	 
 

	 	 






	 	 	 
	STATE OF                    

	 	 )
	 

	 	 ) ss.
	COUNTY OF                                         

	 	 )






The foregoing instrument was acknowledged before me this ___day of ___, 200___, by                                         .



IN WITNESS WHEREOF, I hereunto set my hand and official seal.


 




Notary Public




My commission expires:




                                        




TENANT:



ENDWAVE CORPORATION,


a Delaware corporation




	 	 	 	 	 
	By:

	 	 
 

	 	 
	Name:

	 	 
 

	 	 
	Title:

	 	 
 

	 	 






[ NOTARY ]


Exhibit H, Page 3


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








EXHIBIT “A”




LEGAL DESCRIPTION OF PROPERTY


Exhibit H, Page 4


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 







Addendum One




Option to Extend the Lease Term




This Addendum One (the “Addendum”) is incorporated as a part of that certain Lease Agreement dated
May 24, 2006 (the “Lease”), by and between LEGACY PARTNERS I SAN JOSE, LLC, a Delaware limited
liability company (“Landlord”), and Endwave Corporation, a Delaware corporation (“Tenant”), for the
leasing of certain premises located in Legacy Baytech Park, 130 Baytech Drive, San Jose, California
95134-2302 (the “Premises”), as more particularly described in Exhibit A to the Lease (the
“Premises”). Any capitalized terms used herein and not otherwise defined herein shall have the
meaning ascribed to such terms as set forth in the Lease.



1. Grant of Extension Option. Subject to the provisions, limitations and conditions set
forth in Paragraph 5 below, Tenant shall have an Option (“Option”) to extend the initial term of
the Lease for one (1) year (the “Extended Term”).



2. Tenant’s Option Notice. Tenant shall have the right to deliver written notice to
Landlord of its intent to exercise this Option (the “Option Notice”). If Landlord does not receive
the Option Notice from Tenant on a date which is neither more than three hundred sixty (360) days
nor less than two hundred forty (240) days prior to the end of the initial term of the Lease, all
rights under this Option shall automatically terminate and shall be of no further force or effect.
Upon the proper exercise of this Option, subject to the provisions, limitations and conditions set
forth in Paragraph 5 below, the initial term of the Lease shall be extended for the Extended Term.



3. Establishing the Initial Monthly Base Rent for the Extended Term. The initial monthly
Base Rent for the Extended Term shall be equal to the then Fair Market Rental Rate, as hereinafter
defined. As used herein, the “Fair Market Rental Rate” payable by Tenant for the Extended Term
shall mean the Base Rent for the highest and best use for comparable space at which non-equity
tenants, as of the commencement of the lease term for the Extended Term, will be leasing
non-sublease, non-equity, unencumbered space comparable in size, location and quality to the
Premises for a comparable term, which comparable space is located in the Building and in other
comparable buildings in the vicinity of the Building, taking into consideration all out-of-pocket
concessions generally being granted at such time for such comparable space, including the condition
and value of existing tenant improvements in the Premises, but excluding the value of any
alterations in the Building paid for by Tenant. The Fair Market Rental Rate shall include the
periodic rental increases that would be included for space leased for the period of the Extended
Term.



If Landlord and Tenant are unable to agree on the Fair Market Rental Rate for the Extended Term
within ten (10) days of receipt by Landlord of the Option Notice for the Extended Term, Landlord
and Tenant each, at its cost and by giving notice to the other party, shall appoint a competent and
impartial commercial real estate broker (hereinafter “broker”) with at least five (5) years’
full-time commercial real estate brokerage experience in the geographical area of the Premises to
set the Fair Market Rental Rate for the Extended Term. If either Landlord or Tenant does not
appoint a broker within ten (10) days after the other party has given notice of the name of its
broker, the single broker appointed shall be the sole broker and shall set the Fair Market Rental
Rate for the Extended Term. If two (2) brokers are appointed by Landlord and Tenant as stated in
this paragraph, they shall meet promptly and attempt to set the Fair Market Rental Rate. In
addition, if either of the first two (2) brokers fails to submit their opinion of the Fair Market
Rental Rate within the time frames set forth below, then the single Fair Market Rental Rate
submitted shall automatically be the initial monthly Base Rent for the Extended Term and shall be
binding upon Landlord and Tenant. If the two (2) brokers are unable to agree within ten (10) days
after the second broker has been appointed, they shall attempt to select a third broker, meeting
the qualifications stated in this paragraph within ten (10) days after the last day the two (2)
brokers are given to set the Fair Market Rental Rate. If the two (2) brokers are unable to agree
on the third broker, either Landlord or Tenant by giving ten (10) days’ written notice to the other
party, can apply to the Presiding Judge of the Superior Court of the county in which the Premises
is located for the selection of a third broker who meets the qualifications stated in this
paragraph. Landlord and Tenant each shall bear one-half (1/2) of the cost of appointing the third
broker and of paying the third broker’s fee. The third broker, however selected, shall be a person
who has not previously acted in any capacity for either Landlord or Tenant. Within fifteen (15)
days after the selection of the third broker, the third broker shall select one of the two Fair
Market Rental Rates submitted by the first two brokers as the Fair Market Rental Rate for the
Extended Term. The determination of the Fair Market Rental Rate by the third broker shall be
binding upon Landlord and Tenant.



In no event shall the monthly Base Rent for any period of the Extended Term be less than the
highest monthly Base Rent charged during the initial term of the Lease. Upon determination of the
initial monthly Base Rent for the Extended Term in accordance with the terms outlined above,
Landlord and Tenant shall immediately execute an amendment to this Lease. Such amendment shall set
forth the initial monthly Base Rent for the Extended Term and the actual commencement date and
expiration date of the Extended Term. Tenant shall have no other right to extend the term of the
Lease under this Addendum unless Landlord and Tenant otherwise agree in writing.



4. Condition of Premises and Brokerage Commissions for the Extended Term. If Tenant timely
and properly exercises this Option, in strict accordance with the terms contained herein: (1)
Tenant shall accept the Premises in its then “As-Is” condition and, accordingly, Landlord shall not
be required to perform any additional improvements to the Premises; and (2) Tenant hereby agrees
that it will be solely responsible for any and all brokerage commissions and finder’s fees payable
to any broker now or hereafter procured or hired by Tenant or who otherwise claims a commission
based on any act or statement of Tenant (“Tenant’s Broker”) in connection with the Option. Tenant
hereby further agrees that Landlord shall in no event or circumstance be responsible for the
payment of any such commissions and fees to Tenant’s Broker, and Tenant shall indemnify, defend and
hold Landlord free and harmless against any liability, claim, judgment, or damages with respect
thereto, including attorneys’ fees and costs.



5. Limitations On, and Conditions To, Extension Option. This Option is personal to Tenant
and any Affiliate of Tenant and may not be assigned, voluntarily or involuntarily, separate from or
as part of the Lease. At Landlord’s option, all rights of Tenant under this Option shall terminate
and be of no force or effect if any of the following individual events occur or any combination
thereof occur: (1) Tenant has been in default beyond any applicable cure period at any time during
the initial term of the Lease, or is in default of any provision of the Lease beyond any applicable
cure period on the date Landlord receives the Option Notice; and/or (2) Tenant has assigned its
rights and obligations under all or part of the Lease or Tenant has subleased all or part of the
Premises in a Transfer other than to an Affiliate of Tenant; and/or (3) there has occurred a
material and adverse change in Tenant’s financial condition which would materially impair Tenant’s
ability to satisfy its obligations under this Lease at the time the Option Notice is delivered to
Landlord; and/or (4) Tenant has failed to exercise properly this Option in a timely manner in
strict accordance with the provisions of this Addendum; and/or (5) Tenant or an Affiliate of Tenant
no longer has possession of all or any part of the Premises under the Lease, or if the Lease has
been terminated earlier, pursuant to the terms and provisions of the Lease.



6. Time is of the Essence. Time is of the essence with respect to each and every time
period described in this Addendum.


Addendum One, Page 1


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








Addendum Two




Letter of Credit




This LETTER OF CREDIT Addendum (“LC Addendum”) is made and entered into by and between Legacy
Partners I San Jose, LLC, a Delaware limited liability company (“Landlord”), and Endwave
Corporation, a Delaware corporation (“Tenant”), and is dated as of the date of the Lease Agreement
(“Lease”) by and between Landlord and Tenant to which this LC Addendum is attached. The agreements
set forth in this LC Addendum shall have the same force and effect as if set forth in the Lease.
To the extent the terms of this LC Addendum are inconsistent with the terms of the Lease, the terms
of this LC Addendum shall control.



1. Concurrently with Tenant’s execution of the Lease, Tenant shall deliver to Landlord, as
collateral for the full and faithful performance by Tenant of all of its obligations under the
Lease and to compensate Landlord for all losses and damages Landlord may suffer as a result of any
default by Tenant under the Lease, an irrevocable and unconditional negotiable standby letter of
credit (the “Letter of Credit”), in the form attached hereto as Exhibit 1 and containing the terms
required herein, payable in the County of Santa Clara, California, running in favor of Landlord
issued by a solvent, nationally recognized bank with a long term rating of BBB or higher as rated
by Moody’s Investors Service or Standard & Poor’s, under the supervision of the Superintendent of
Banks of the State of California, or a national banking association,
in the amount of Two Hundred Thirty Five Thousand Six Hundred Seventy
One and 12/100 Dollars ($235,671.12) (the
“Letter of Credit Amount”). The Letter of Credit shall be (i) at sight, irrevocable and
unconditional, (ii) maintained in effect, whether through replacement, renewal or extension, for
the period from the Lease Commencement Date and continuing until the date (the “LC Expiration
Date”) which is one hundred twenty (120) days after the Lease Expiration Date, and Tenant shall
deliver a new Letter of Credit or certificate of renewal or extension to Landlord at least thirty
(30) days prior to the expiration of the Letter of Credit then held by Landlord, without any action
whatsoever on the part of Landlord, (iii) subject to the International Standby Practice (1998
Revision) International Chamber of Commerce Publication #590, (iv) fully assignable by Landlord,
and (v) permit partial draws. In addition to the foregoing, the form and terms of the Letter of
Credit (and the bank issuing the same (the “Bank”)) shall be acceptable to Landlord, in Landlord’s
discretion, and shall provide, among other things, in effect that: (A) Landlord, or its then
managing agent, shall have the right to draw down an amount up to the face amount of the Letter of
Credit (1) upon the presentation to the Bank of Landlord’s (or Landlord’s then managing agent’s)
written statement that such amount is due to Landlord under the terms and conditions of the Lease,
or (2) in the event Tenant, as applicant, shall have failed to provide to Landlord a new or renewal
Letter of Credit satisfying the terms of this LC Addendum at least thirty (30) days prior to the
expiration of the Letter of Credit then held by Landlord, it being understood that if Landlord or
its managing agent be a limited liability company, corporation, partnership or other entity, then
such statement shall be signed by a managing member (if a limited liability company), an officer
(if a corporation), a general partner (if a partnership), or any authorized party (if another
entity) and (B) the Letter of Credit will be honored by the Bank without inquiry as to the accuracy
thereof and regardless of whether Tenant disputes the content of such statement.



2. The Letter of Credit shall also provide that Landlord may, at any time and without notice to
Tenant and without first obtaining Tenant’s consent thereto, transfer all or any portion of its
interest in and to the Letter of Credit to another party, person or entity, regardless of whether
or not such transfer is separate from or as a part of the assignment by Landlord of its rights and
interests in and to the Lease. In the event of a transfer of Landlord’s interest in the Building,
Landlord shall transfer the Letter of Credit, in whole or in part (or cause a substitute letter of
credit to be delivered, as applicable) to the transferee and thereupon Landlord shall, without any
further agreement between the parties, be released by Tenant from all liability therefor, and it is
agreed that the provisions hereof shall apply to every transfer or assignment of the whole or any
portion of said Letter of Credit to a new landlord. In connection with any such transfer of the
Letter of Credit by Landlord, Tenant shall, at Tenant’s sole cost and expense, execute and submit
to the Bank such applications, documents and instruments as may be necessary to effectuate such
transfer and, Tenant shall be responsible for paying the Bank’s transfer and processing fees in
connection therewith.



3. If, as result of any application or use by Landlord of all or any part of the Letter of Credit,
the amount of the Letter of Credit shall be less than the Letter of Credit Amount, Tenant shall,
within five (5) business days of receiving Landlord’s demand therefor, provide Landlord with
additional letter(s) of credit in an amount equal to the deficiency (or a replacement letter of
credit in the total Letter of Credit Amount), and any such additional (or replacement) letter of
credit shall comply with all of the provisions of this LC Addendum, and if Tenant fails to comply
with the foregoing, notwithstanding anything to the contrary contained in Section 18 of the Lease,
the same shall constitute an incurable default by Tenant. Tenant further covenants and warrants
that it will neither assign nor encumber the Letter of Credit or any part thereof and that neither
Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance. Without limiting the generality of the foregoing, if the
Letter of Credit expires earlier than the LC Expiration Date, a renewal thereof or substitute
letter of credit, as applicable, shall be delivered to Landlord not later than thirty (30) days
prior to the expiration of the Letter of Credit, which shall be irrevocable and automatically
renewable as above provided through the LC Expiration Date upon the same terms as the expiring
Letter of Credit or such other terms as may be acceptable to Landlord in its sole discretion.
However, if the Letter of Credit is not timely renewed or a substitute letter of credit is not
timely received, or if Tenant fails to maintain the Letter of Credit in the amount and in
accordance with the terms set forth in this LC Addendum, Landlord shall have the right to present
the Letter of Credit to the Bank in accordance with the terms of this LC Addendum, and the proceeds
of the Letter of Credit may be applied by Landlord for Tenant’s failure to fully and faithfully
perform all of Tenant’s obligations under this Lease and against any Rent payable by Tenant under
this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has
suffered or that Landlord reasonably estimates that it will suffer as a result of any default by
Tenant under this Lease. Any unused proceeds shall constitute the property of Landlord and need
not be segregated from Landlord’s other assets.



4. Tenant hereby acknowledges and agrees that Landlord is entering into the Lease in material
reliance upon the ability of Landlord to draw upon the Letter of Credit in the event Tenant fails
to fully and faithfully perform all of Tenant’s obligations under this Lease and to compensate
Landlord for all losses and damages Landlord may suffer as a result of the occurrence of any
default on the part of Tenant under the Lease and Landlord may, at any time, but without obligation
to do so, and without notice, draw upon the Letter of Credit, in part or in whole, for such
purposes. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of
the Letter of Credit, either prior to or following a “draw” by Landlord of any portion of the
Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to
Landlord’s right to draw from the Letter of Credit. No condition or term of the Lease shall be
deemed to render the Letter of Credit conditional to justify the issuer of the Letter of Credit in
failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and
acknowledges that Tenant has no property interest whatsoever in the Letter of Credit or the
proceeds thereof and that, in the event Tenant becomes a debtor under any chapter of the Federal
Bankruptcy Code, neither Tenant, any trustee, nor Tenant’s bankruptcy estate shall have any right
to restrict or limit Landlord’s claim and/or rights to the Letter of Credit and/or the proceeds
thereof by application of Section 502(b)(6) of the Federal Bankruptcy Code.



5. Landlord and Tenant acknowledge and agree that in no event or circumstance shall the Letter of
Credit or any renewal thereof or substitute therefor be (i) deemed to be or treated as a “security
deposit” within the meaning of California Civil Code Section 1950.7, (ii) subject to the terms of
such Section 1950.7, or (iii) intended to serve as a “security deposit” within the meaning of such
Section 1950.7. The parties hereto (A) recite that the Letter of Credit is not intended to serve
as a security deposit and such Section


Addendum Two, Page 1


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.












 








1950.7 and any and all other laws, rules and regulations applicable to security deposits in the
commercial context (“Security Deposit Laws”) shall have no applicability or relevancy thereto and
(B) waive any and all rights, duties and obligations either party may now or, in the future, will
have relating to or arising from the Security Deposit Laws.



6. Notwithstanding anything to the contrary contained in this LC Addendum, Tenant shall have the
right to reduce the Letter of Credit Amount (“LC
Reduction”) to One Hundred Seventeen Thousand Eight Hundred
Thirty-Five and 56/100 Dollars ($117,835.56) (“Reduced LC Amount”),
provided Tenant provides Landlord with documentation reasonably acceptable to Landlord that [ * ]
for the [ * ]. At any time after the occurrence of the LC Reduction, Tenant shall have the right,
to be exercised by written notice to Landlord, to exchange the Letter of Credit in the Reduced LC
Amount for cash in the amount of the Reduced LC Amount (“Exchange Portion”). Such Exchange Portion
shall be added by Landlord to and become part of the Security Deposit except that such Exchange
Portion shall be returned to Tenant in equal installments every six (6) months thereafter remaining
in the Term following the date such Exchange Portion was added to the Security Deposit (for
example, in the event the Exchange Portion was added to the Security
Deposit] on the last day of the twenty-fourth
(24th)
month of the Term, then Landlord shall return the Exchange Portion to
Tenant in six (6) equal monthly installments of Nineteen Thousand Six
Hundred Thirty-Nine and 26/100 Dollars ($19,639.26) on the
last day of each of the thirtieth (30th), thirty-sixth (36th), forty-second
(42nd), forty-eighth (48th), fifty-fourth (54th) and sixtieth
(60th) months of the Term). Tenant acknowledges and agrees that, in the event Tenant
shall then be in default which shall not have been cured by Tenant or Tenant shall have been in
material default at any time during the Term beyond any applicable notice and cure periods, Tenant
shall have no right to (i) reduce the Letter of Credit to the Reduced LC Amount, (ii) exchange the
Letter of Credit in the Reduced LC Amount for cash to be added to and become part of the Security
Deposit, and/or (iii) a return of any of the Exchange Portion at any time. In the event Tenant
does not elect to exchange the Letter of Credit as described above, Landlord shall continue to hold
the Letter of Credit in the Reduced LC Amount pursuant to the terms of this LC Addendum.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Landlord:	 	Tenant:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	LEGACY PARTNERS I SAN JOSE, LLC,	 	Endwave Corporation,	 	 
	a Delaware limited liability company, Owner	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	LEGACY PARTNERS COMMERCIAL, L.P.,	 	By:	 	 	 	 
	 	 	a California limited partnership,	 	 	 	(Name)	 	 
	 	 	as Property Manager and Agent for Owner	 	Its:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	(Title)	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	LEGACY PARTNERS COMMERCIAL, INC.,	 	 	 	 	 	 
	 	 	 	 	General Partner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	Debra Smith
	 	 	 	(Name)	 	 
	 

	 	 	 	Its:
	 	Executive Vice President
	 	Its:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	(Title)	 	 





Addendum Two, Page 2


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.











 








EXHIBIT 1 TO LC ADDENDUM




	 	 	 	 	 
	 

	 	 
 

	 	 
	 

	 	 
 

	 	 
	 

	 	 
 

	 	 
	 

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IRREVOCABLE STANDBY LETTER OF CREDIT




	 	 	 
	                    , 20___

	 	Our irrevocable standby Letter of Credit:
	Beneficiary:

	 	No.                                                             
	 

	 	Applicant:
	LEGACY PARTNERS I SAN JOSE, LLC,

	 	                                                            
	c/o Legacy Partners Commercial, Inc.

	 	                                                            
	4000 East Third Avenue, Suite 600

	 	Amount: Exactly USD $235,671.12
	Foster City, California 94404-4805

	 	(Two hundred Thirty Five Thousand
Six 
Hundred Seventy One and 12/100 Dollars)
	 

	 	Final Date of Expiration:                      [INSERT
	 

	 	DATE WHICH IS 120 DAYS AFTER LEASE
	 

	 	EXPIRATION DATE]






We (the “Bank”) hereby issue our irrevocable standby Letter of Credit No. ___in
Beneficiary’s favor for the account of the above-referenced Applicant, in the aggregate amount of
exactly USD $___.



This Letter of Credit is available with us at our above office by presentation of your draft drawn
on us at sight bearing the clause: “Drawn under ___[INSERT NAME OF BANK] Letter of
Credit No. ___” and accompanied by the following:



     1. Beneficiary’s signed certification purportedly signed by an authorized officer or agent
stating:



          (A) “ Beneficiary, as landlord, is now entitled to draw upon this Letter of Credit pursuant to
the terms and conditions of that certain lease agreement dated May 24, 2006 for premises located
at 130 Baytech Drive, San Jose, California 95134-2302”; or




          (B) “The Bank has notified us that this Letter of Credit will not be extended beyond the
current expiration date of this Letter of Credit and Applicant has not delivered to Beneficiary at
least thirty (30) days prior to the current expiration of this Letter of Credit a replacement
Letter of Credit satisfactory to Beneficiary.”




     2. The original of this Letter of Credit.



     Special conditions:



     Partial draws under this Letter of Credit are permitted. Notwithstanding anything to the
contrary contained herein, this Letter of Credit shall expire permanently without renewal on
___[INSERT DATE WHICH IS 120 DAYS AFTER LEASE EXPIRATION DATE].



     This Letter of Credit shall be automatically extended for an additional period of one (1)
year, without amendment, from the present or each future expiration date but in any event not
beyond ___[INSERT DATE WHICH IS 120 DAYS AFTER LEASE EXPIRATION DATE] which shall be the
final expiration date of this Letter of Credit, unless, at least thirty (30) days prior to the then
current expiration date we notify you by registered mail/overnight courier service at the above
address that this Letter of Credit will not be extended beyond the current expiration date.



     We hereby agree with you that all drafts drawn under and in compliance with the terms of this
Letter of Credit will be duly honored upon presentation to us of the documents described in
Paragraph 1 above on or before the expiration date of this Letter of Credit, without inquiry as to
the accuracy thereof and regardless of whether Applicant disputes the content of any such documents
or certifications.



     This Letter of Credit is transferable and any such transfer may be effected by us, provided
that you deliver to us your written request for transfer in form and substance reasonably
satisfactory to us. Beneficiary may, at any time and without notice to Applicant and without first
obtaining Applicant’s consent thereto, transfer all or any portion of Beneficiary’s interest in and
to the Letter of Credit to another party, person or entity, regardless of whether or not such
transfer is separate from or as a part of the assignment by Beneficiary of Beneficiary’s rights and
interests in and to the Lease. The original of this Letter of Credit together with any amendments
thereto must accompany any such transfer request.



     Except so far as otherwise expressly stated, this documentary credit is subject to the
International Standby Practice (1998 Revision), International Chamber Of Commerce Publication No.
590.




			
	By:	 	                                                            

Authorized signature





     Please direct any correspondence including drawing or inquiry quoting our reference number to
the above referenced address.


Addendum Two, Page 3


[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended.