Exhibit 10.19


 


WHITE OAKS BUSINESS PARK


STANDARD NNN LEASE – Multi-Tenant Business Park


 


 


W I  T  N  E  S  S
E  T  H


 


This lease (“Lease”) is entered into by and between Limar Realty Corp.
#30, a California corporation (“Landlord”) and
Equator Technologies, Inc., a Delaware corporation (“Tenant”).
For and in consideration of the payment of rents and the performance of the
covenants herein set forth by Tenant, Landlord does lease to Tenant and Tenant
accepts the Premises described below subject to the agreements herein
contained.


 


	
  1.

  	
  BASIC
  LEASE TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
  DATE OF
  LEASE:

  	
  March
  19, 2001

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  TENANT:

  	
  Equator Technologies,
  Inc., a Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address (of the Premises):

  	
  1300 White Oaks Road,
  Campbell, California

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address (for Notices):

  	
  (Please
  provide if other than Premises.)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
  LANDLORD:

  	
  Limar Realty Corp. #30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address (for Notices):

  	
  1730 S. El Camino Real

  
	
   

  	
   

  	
   

  	
  Suite 400

  
	
   

  	
   

  	
   

  	
  San Mateo, California
  94402

  
	
   

  	
   

  	
   

  	
  Attn: Thomas A.
  Numainville

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  d.

  	
  TENANT’S USE OF PREMISES:

  	
  Office, research and
  development

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  e.

  	
  PREMISES AREA:

  	
  30,000 Rentable Square
  Feet

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  f.

  	
  INSURING PARTY:

  	
  Landlord is the “Insuring Party” unless otherwise stated herein.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  g.

  	
  BUILDING:

  	
  1300 White Oaks Road,
  Campbell, California

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  h.

  	
  BUSINESS PARK:

  	
  White Oaks Business Park

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i.

  	
  TERM (inclusive):

  	
  Commencement Date:

  	
  November 1, 2001 (“Commencement Date”)

  
	
   

  	
   

  	
   

  	
  This Lease shall
  automatically commence upon the expiration of that certain lease dated April
  25, 1997, as amended, between Landlord and Tenant.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Expiration Date: October
  31, 2006 (“Expiration Date”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Number of Months: Sixty
  (60)

  
	
   

  	
   

  	
   

  
	
   

  	
  j.

  	
  TENANT’S
  SHARE OF BUILDING:

  	
  75%
  (30,000 sq. ft./40,000 sq. ft.)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  k.

  	
  TENANT’S
  SHARE OF BUSINESS PARK:

  	
  75%
  (30,000 sq. ft./40,000 sq. ft.)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  l.

  	
  TENANT’S
  NUMBER OF NON-RESERVED PARKING SPACES:

  	
  104
  spaces

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  m.

  	
  INITIAL BASE RENT:

  	
  Seventy Seven Thousand Two
  Hundred Eighty-Two & 88/100 Dollars ($77,282.88) per month.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  n.

  	
  BASE RENT
  ADJUSTMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Step Increase. The step adjustment provisions of ¶4.b.
  apply for the periods shown below:

  
							



 




	
   

  	
   

  	
  Monthly Base Rent

  	
   

  
	
  Periods (inclusive)

  	
   

  	
  Amount

  	
   

  
	
  11/01/02–10/31/03

  	
   

  	
  $

  	
  79,214.95

  	
   

  
	
  11/01/03–10/31/04

  	
   

  	
  81,195.32

  	
   

  
	
  11/01/04 –10/31/05

  	
   

  	
  83,225.21

  	
   

  
	
  11/01/05–10/31/06

  	
   

  	
  85,305.84

  	
   

  
					






 


	
   

  	
  o.

  	
  TOTAL TERM
  BASE RENT:                                   $4,874,690.40

  



 


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  p.

  	
  PREPAID BASE RENT:

  	
  N/A

  
	
   

  	
   

  	
   

  
	
  q.

  	
  SECURITY DEPOSIT:

  	
  $240,000.00

  
	
   

  	
   

  	
   

  
	
  r.

  	
  BROKER(S):

  	
  None

  
	
   

  	
   

  	
   

  
	
  s.

  	
  GUARANTOR(S):

  	
  None

  
	
   

  	
   

  	
   

  
	
  t.

  	
  EXHIBITS:

  	
  Exhibits lettered “A”
  through “D” are attached hereto and made a part hereof.

  
				



 


2.                                       PREMISES, PARKING AND COMMON
AREAS


 


a.                                       Premises. The Premises as described in ¶1. and Exhibit
A, are a portion of a building, herein sometimes referred to as the “Building” identified in ¶1. 
The Premises, the Building, the Common Areas, the land upon which the
same are located, along with all other buildings and improvements thereon or
thereunder, are herein collectively referred to as the “Business
Park” as described in ¶1. and Exhibit B.   Landlord hereby leases to Tenant and Tenant
leases from Landlord for the Term (as defined below), at the rental, and upon
all of the conditions set forth herein, the real property referred to in the
Basic Lease Terms, ¶1. as the “Premises”,
including rights to the Common Areas as hereinafter specified.    Subject to any additional work Landlord has
agreed herein to do, Tenant hereby accepts the Premises in their condition existing
as of the date of the execution hereof, subject to all applicable zoning,
municipal, county and state laws, ordinances and regulations governing and
regulating the use of the Premises, and accepts this Lease subject thereto and
to all matters disclosed thereby and by any exhibits attached hereto. Tenant
agrees with the square footage specified for the Premises in ¶l. and will not
hereafter challenge such determination and agreement. The rental payable by
Tenant pursuant to this Lease is not subject to revision in the event of any
discrepancy in the rentable square footage for the Premises.


 


b.                                      Vehicle Parking.   So
long as Tenant is not in default, and subject to the Rules and Regulations
attached hereto as Exhibit C, and as reasonably established by Landlord
from time to time, Tenant shall be entitled to use the number of parking spaces
set forth in ¶1.   If
Tenant commits, permits or allows any of the prohibited activities described in
the Lease or the Rules and Regulations then in effect, then Landlord shall have
the right, without notice, in addition to such other rights and remedies that
it may have, to remove or tow away the vehicle involved and charge the cost to
Tenant, which cost shall be immediately payable upon demand by Landlord.


 


c.                                       Common Areas — Definition. The term “Common
Areas” is defined as all areas and facilities outside the Premises
and within the exterior boundary line of the Business Park that are provided
and designated by the Landlord from time to time for the general non-exclusive
use of Landlord, Tenant and of other tenants of the Business Park and their
respective employees, suppliers, shippers, customers and invitees, including but not limited to common
entrances, lobbies, corridors, stairways and stairwells, public restrooms,
elevators, parking areas to the extent not otherwise prohibited by this Lease,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, ramps, driveways, landscaped areas and decorative walls.


 


d.                                      Common Areas — Rules and
Regulations.   Tenant agrees to abide by and conform to the
Rules and Regulations attached hereto as Exhibit C with respect to the
Business Park and Common Areas, and to cause its employees, suppliers,
shippers, customers and invitees to so abide and conform.  Landlord, or such other person(s) as Landlord
may appoint, shall have the exclusive control and management of the Common
Areas and shall have the right, from time to time, to reasonably modify, amend
and enforce said rules and regulations. Landlord shall not be responsible to
Tenant for the non-compliance with said rules and regulations by other tenants,
their agents, employees and invitees.


 


e.                                       Building and Common Areas — Changes.  
Landlord shall have the right, in Landlord’s reasonable discretion, from
time to time:


 


1)                                      To make changes to the Building interior and
exterior and Common Areas, including, without limitation, changes in the
location, size, shape, number and appearance thereof, including but not limited
to the lobbies, windows, stairways, air shafts, elevators, restrooms,
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, decorative walls, landscaped
areas and walkways so long as Tenant’s use and occupancy is not unreasonably
impaired thereby;


 


2)                                      To close temporarily any of the Common Areas
for maintenance purposes so long as reasonable access to the Premises remains
available;


 


3)                                      To designate other land and improvements
outside the boundaries of the Business Park to be a part of the Common Areas,
provided that such other land and improvements have a reasonable and functional
relationship to the Business Park;


 


4)                                      To add additional buildings and improvements
to the Common Areas;


 


5)                                      To use the Common Areas while engaged in
making additional improvements, repairs or alterations to the Business Park or
any portion thereof; and


 


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6)                                      To do and perform such other acts and make
such other changes in, to or with respect to the Common Areas and Business Park
as Landlord may, in the exercise of sound business judgment deem to be
appropriate so long as Tenant’s use and occupancy is not unreasonably impaired
thereby.


 


f.                                         Acceptance; Quiet Enjoyment. Landlord represents that it is the fee
simple owner of the Premises and has
full right and authority to make this Lease. Landlord hereby leases the Premises
to Tenant and Tenant hereby accepts the same from Landlord, in accordance with
the provisions of this Lease. Landlord covenants that Tenant shall have
peaceful and quiet enjoyment of the Premises during the Term (as defined below)
of this Lease. Tenant covenants that it will not interfere with other tenants’
quiet enjoyment of their premises.


 


3.                                       TERM.  The
term (“Term”) of this Lease is for the period
that commences at 12:01 a.m. on the Commencement Date and expires at 11:59 p.m.
on the Expiration Date. If Landlord, for any reason, cannot deliver possession
of the Premises to Tenant on or before the Commencement Date, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting from such delay. In that event, however, there shall be an
abatement of Rent (as defined below) covering the period between the
Commencement Date and the date when Landlord delivers possession to Tenant, all
other terms and conditions of this Lease shall remain in full force and effect.
If a delay in possession is caused by Tenant’s failure to perform any
obligation in accordance with this Lease, the Term shall commence as of the
Commencement Date, and there shall be no reduction of Rent between the
Commencement Date and the time Tenant takes possession.


 


4.                                       RENT


 


a.                                       Base
Rent.   Tenant shall pay Landlord in lawful money of the United States, without
notice, demand, offset or deduction, rent in the amount(s) set forth in ¶1.
which shall be payable in advance on the first day of each and every calendar
month (“Base Rent”) provided, however, the
first month’s Base Rent is due and payable upon execution of this Lease.   Unless otherwise specified in writing by
Landlord, all installments of Base Rent shall be payable to Limar Realty Corp.
#30, Department #44294, P.O. Box 44000, San Francisco, California
94144-4294.  Base Rent for any partial
month at the beginning or end of this Lease will be prorated in accordance with
the number of days in the subject month.  
If the Term of this Lease contains any rental abatement period, other
than in accordance with ¶3, hereof. Tenant hereby agrees that if Tenant
breaches the Lease and/or abandons the Premises before the end of the Term, or
if Tenant’s right to possession is terminated by Landlord because of Tenant’s
breach of the Lease, Landlord may, at its option, (1) void the rental abatement
period, or (2) recover from Tenant, in addition to any damages due Landlord
under the terms and conditions of the Lease, Base Rent prorated for the entirety
of the rental abatement period at a rental rate equivalent to two (2) times the
Base Rent at such time of proration.


 


For
purposes of Section 467 of the Internal Revenue Code, the parties to this Lease
hereby agree to allocate the stated Base Rent provided herein to the periods
which correspond to the actual Base Rent payments as provided under the terms
and conditions of this Agreement.


 


b.                                      Step Increase.  The
Base Rent shall be increased periodically to the amounts and at the times set
forth in ¶1.


 


c.                                       Rent Without Offset and Late
Charge.   All Rent shall be paid without prior demand
or notice and without any deduction or offset whatsoever. All Rent shall be
paid in lawful currency of the United States of America.  Tenant acknowledges that late payment by
Tenant to Landlord of any Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such cost being extremely difficult
and impracticable to ascertain.  Such
costs include, without limitation, processing and accounting charges and late
charges that may be imposed on Landlord by the terms of any encumbrance or note
secured by the Premises. Therefor, if any Rent is not received by Landlord
within five (5) days of its due date, Tenant shall pay to Landlord a late
charge equal to six percent (6%) of such overdue payment. Landlord and Tenant
hereby agree that such late charge represents a fair and reasonable estimate of
the costs that Landlord will incur by reason of any such late payment and that
the late charge is in addition to any and all remedies available to the
Landlord and that the assessment and/or collection of the late charge shall not
be deemed a waiver of any other default. 
Additionally, all such delinquent Rent or other sums, plus this late
charge, shall bear interest from the due date thereof at the lesser of ten
percent (10%) per annum or the maximum legal interest rate permitted by law.  Any payments of any kind returned for
insufficient funds will be subject to an additional handling charge of $25.00,
and thereafter for the remainder of the Term hereof, Landlord may require
Tenant to pay all future payments of Rent or other sums due by cashier’s check.


 


d.                                      Prepaid Base Rent.  Upon
the execution of this Lease, Tenant shall pay to Landlord the Prepaid Base Rent
set forth in ¶1 ., and such Prepaid Base Rent shall be applied toward the Base
Rent due for the first month of the Term for which Base Rent is due.  Landlord shall be entitled to immediately
endorse and cash Tenant’s Prepaid Base Rent.


 


e.                                       Rent. The term “Rent”
as used in this Lease shall refer to Base Rent, Prepaid Base Rent, Real
Property Taxes, Operating Expenses, Insurance Costs, repairs and maintenance
costs, utilities, late charges and other similar charges payable by Tenant
pursuant to this Lease either directly to Landlord or otherwise.


 


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OPERATING EXPENSES.


 


a.                                       Payment by Tenant.  During
the Term of this Lease, Tenant shall pay to Landlord, as additional Rent, on a
monthly basis Tenant’s Share of the Operating Expenses. To the extent that
Operating Expenses are accounted for on a building by building basis, the
Tenant’s Share of Building shall apply. To the extent that Operating Expenses
are accounted for on an overall Business Park basis, then Tenant’s Share of
Business Park shall apply.


 


b.                                      Operating Expenses.  The
term “Operating Expenses” shall mean all
expenses, costs and disbursements (not specifically excluded from the
definition of Operating Expenses below) of every kind and nature which Landlord
shall pay or become obligated to pay because of or in connection with the
ownership, maintenance, repair and operation of the Business Park or any
portion thereof (including all Buildings and Common Areas of the Business
Park). Operating Expenses shall include, but not be limited to, the following:


 


1)                                      Wages and salaries of all employees engaged
in the operation, maintenance and security of the Business Park, including
taxes, insurance and benefits relating thereto; and the rental cost and overhead
of any office and storage space used to provide such services.


 


2)                                      All supplies and materials used in the
operation, repair or maintenance of the Business Park.


 


3)                                      Cost of all utilities, including surcharges,
for the Business Park, including the cost of water, power and lighting which
are not separately billed to and paid for by Tenant.


 


4)                                      Cost of all maintenance and service
agreements for the Business Park and the equipment thereon, including but not
limited to, security services, exterior window cleaning, janitorial service, engineers,
gardeners and trash removal services.


 


5)                                      All Insurance Costs, as such term is defined
in ¶16.


 


6)                                      Cost of all repairs and general maintenance
(excluding repairs and general maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations attributable solely to the other
tenants of the Business Park).


 


7)                                      A reasonable management fee for the property
management of the Business Park.


 


8)                                      The costs of any additional services not
provided to the Business Park at the Commencement Date but thereafter provided
by Landlord in its management of the Business Park.


 


9)                                      The cost of any capital improvements to the
Business Park or any part thereof which are made during the Term hereof with
such cost to be amortized over the useful life of the improvement as reasonably
determined by Landlord.


 


10)                                Real Property Taxes, as that term is defined
in ¶11.


 


11)                                All costs to maintain, repair and replace the
heating, ventilation and air conditioning systems (“HVAC”)
serving the Building and/or the Premises, including the cost of maintenance
contracts.


 


c.                                       Operating Expenses shall not
include:


 


1)                                      Costs paid for directly by Tenant or other
tenants;


 


2)                                      Costs incurred in connection with the
financing, sale or acquisition of the Business Park or any portion thereof;


 


3)                                      Costs incurred in leasing or procuring
tenants (including without limitation, lease commissions, advertising expenses,
attorneys’ fees and expenses of renovating space for tenants);


 


4)                                      Executive salaries of off-site personnel
employed by Landlord except for the charge (or pro rata share) of the property
manager of the Business Park;


 


5)                                      Subject to the provisions of ¶5.b.9)
above, depreciation on the Building or other improvements on the Business Park;


 


6)                                      Legal expenses for disputes with tenants and
any other professional fees of attorneys, auditors or consultants not incurred
in connection with the normal maintenance and operation of the Business Park;


 


7)                                      Expenses which relate to the preparation of
rental space for tenants, including without limitation building permit, license
and inspection costs incurred with respect to the installation or improvements
made for occupants of the Business Park or incurred in renovating or otherwise improving,
decorating, painting or decorating vacant tenant space for the Business Park or
other occupants of the Business Park;


 


8)                                      Costs incurred that are reimbursed by tenants
of the Business Park, including Tenant, or third parties, including insurers;


 


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9)                                      Expenses for repair or replacement covered by
warranties, and any costs due to casualty that are covered by insurance carried
by Landlord;


 


10)                                Rentals and other payments by Landlord under
any ground lease or other lease underlying the Lease, and interest, principal,
points and other fees on debt or amortization of any debt secured in whole or
part by all or any portion of the Business Park;


 


11)                                Repairs or replacements caused by Landlord’s
gross negligence or the gross negligence of Landlord’s employees or agents;


 


12)                                Net income, franchise, capital stock, estate
or inheritance taxes or taxes which are the personal obligation of Landlord or
another tenant of the Business Park;


 


13)                                Landlord’s charitable or political
contributions;


 


14)                                Payments to subsidiaries and affiliates of
Landlord for services to the Business Park for supplies or other materials to
the extent that the cost of such services, supplies or materials exceed the cost
which would have been paid had the services, supplies or materials been
provided by unaffiliated parties on a competitive basis (provided, however, any
fee for management services paid to an affiliate of Landlord shall be in the
amount set forth in ¶5.b.7);


 


15)                                Any compensation paid to clerks, attendants or
other persons in commercial concessions operated by Landlord;


 


16)                                Advertising and promotional expenditures;


 


17)                                Costs or repairs and other work occasioned by
fire, windstorm or other casualty of an insurable nature to the extent covered
by insurance; or


 


18)                                Costs for sculpture, paintings or other
objects of art other than for normal and customary lobby furnishings (nor
insurance thereon or extraordinary security in connection therewith).


 


d.                                      Extraordinary Services. Tenant shall pay within twenty (20) days of
receipt of an invoice from Landlord the cost of additional or extraordinary services provided to Tenant at
Tenant’s request and not paid or payable by Tenant pursuant to other provisions
of this Lease.


 


e.                                       Impound.  
Landlord reserves the right, at Landlord’s option, to estimate the
annual cost of Operating Expenses performed by Landlord (“Projected
Operating Expenses”) and to require same to be paid in advance.
Tenant shall pay to Landlord, monthly in advance as additional Rent,
one-twelfth (1/12) of the Projected Operating Expenses.


 


f.                                         Adjustment.


 


1)                                      Accounting. 
Within ninety (90) days (or as soon thereafter as possible) after the
close of each calendar year or portion thereof of occupancy, Landlord shall
provide Tenant a statement of such year’s actual Operating Expenses compared to
the Projected Operating Expenses.  If the
actual Operating Expenses are more than the Projected Operating Expenses then
Tenant shall pay Landlord, within twenty (20) days of receipt of a bill
therefor, the difference.    If the
actual Operating Expenses are less than the Projected Operating Expenses, then
Tenant shall receive a credit against future Operating Expenses payments equal
to the difference; provided, that in the case of an overpayment for the final
lease year of the Term, Landlord shall credit the difference against any sums
due from Tenant to Landlord in accordance with the terms of this Lease; and if no
sums are due and unpaid, shall promptly refund the net amount to Tenant.


 


2)                                      Tenant’s Right to Audit. Within sixty (60) days after receipt of
Landlord’s statement setting forth actual Operating Expenses (the “Statement”), Tenant shall have the right to audit at
Landlord’s local offices, at Tenant’s expense, Landlord’s accounts and records
relating to Operating Expenses. Such audit shall be conducted by a certified
public accountant approved by Landlord, which approval shall not be
unreasonably withheld.    If such audit
reveals that Landlord has overcharged Tenant, the amount overcharged shall be
paid to Tenant within thirty (30) days after the audit is concluded. If such
audit reveals that Landlord has undercharged Tenant, the amount of undercharge
shall be paid by Tenant to Landlord within 30 days after the audit is
conducted.  In addition, if the Statement
exceeds the actual Operating Expenses which should have been charged to Tenant
by more than ten percent (10%), the cost of the audit shall be paid by Landlord.


 


3)                                      Proration. 
Tenant’s liability to pay Operating Expenses shall be prorated on the
basis of a 365 (or 366, as the case may be) day year to account for any
fractional portion of a year included at the commencement or expiration of the
Term of this Lease.


 


4)                                      Survival.  
Landlord and Tenant’s obligations to pay for or credit any increase or
decrease in payments pursuant to this ¶5. shall survive this Lease.


 


g.                                      Failure to Pay.  
Failure of Tenant to pay any of the charges required to be paid under
this ¶5. shall constitute a material default and
breach of this Lease and Landlord’s remedies shall be as specified in ¶21.


 


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SECURITY DEPOSIT.  Tenant has previously provided a cash security
deposit (“Security Deposit”) held by Landlord in
the amount set forth in ¶1. with Landlord. If Tenant is in default beyond
applicable notice and cure periods, Landlord can (but without any requirement
to do so) use the Security Deposit or any portion of it to cure the default or
to compensate Landlord for any damages sustained by Landlord resulting from
Tenant’s default. Upon demand, Tenant shall immediately pay to Landlord a sum
equal to the portion of the Security Deposit expended or applied by Landlord to
restore the Security Deposit to its full amount. In no event will Tenant have
the right to apply any part of the Security Deposit to any Rent due under this
Lease. Landlord’s obligations with respect to the Security Deposit are those of
a debtor and not a trustee, and Landlord can commingle the Security Deposit
with Landlord’s general funds. Landlord shall not be required to pay Tenant
interest on the Security Deposit. Each time the Base Rent is increased, Tenant
shall deposit additional funds with Landlord sufficient to increase the
Security Deposit to an amount which bears the same relationship to the Base
Rent as the initial Security Deposit bore to the initial Base Rent. If Tenant
is not in default at the expiration or termination of this Lease and has fully
complied with the provisions of ¶9., ¶13.d.6) and ¶26., Landlord shall return
the Security Deposit to Tenant.


 


USE OF PREMISES


 


a.                                       Tenant’s Use.  
Tenant shall use the Premises solely for the purposes stated in ¶1. and
for no other purposes without obtaining the prior written consent of
Landlord.   Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty with respect to the Premises or with respect to the suitability of the
Premises to the conduct of Tenant’s business, nor has Landlord agreed to
undertake any modification, alteration or improvement to the Premises, except
as provided in writing in this Lease. Tenant shall promptly comply with all
laws, statutes, ordinances, orders and governmental regulations now or
hereafter existing affecting the Premises.  
Tenant shall not do or permit anything to be done in or about the
Premises or bring or keep anything in the Premises that will in any way
increase the premiums paid by Landlord on its insurance related to the
Premises.   Tenant will not perform any
act or carry on any practices that may injure the Premises.  Tenant shall not use the Premises for
sleeping, washing clothes, or the preparation, manufacture or mixing of
anything that emits any objectionable odor, noises, vibrations or lights onto
such other tenants.   If, in Landlord’s
reasonable judgment, sound insulation is required to muffle noise produced by
Tenant on the Premises. Tenant at its own cost shall provide all necessary
insulation. Tenant shall not do anything on the Premises which will overload
any existing parking or service to the Premises.   Pets and/or animals of any type (other than seeing
eye dogs) shall not be kept on or about the Premises. Tenant covenants that it
will not interfere with other tenants’ quiet enjoyment of their premises.


 


b.                                      Rules and Regulations. 
Tenant shall comply with and use the Premises in accordance with the
Rules and Regulations attached hereto as Exhibit C and to any reasonable
modifications to such Rules and Regulations as Landlord may adopt from time to
time, provided however that if any rule or regulation is in conflict with any
term, covenant or condition of this Lease, this Lease shall prevail.   In addition, no such rule or regulation, or
any subsequent amendment thereto adopted by Landlord, shall in any material way
alter, reduce or adversely affect any of Tenant’s rights or materially enlarge
Tenant’s obligations under this Lease.


 


EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE


 


a.                                       Emissions. Tenant shall not:


 


1)                                      Knowingly permit any vehicle on the Premises
or in the Commons Areas to emit exhaust which is in violation of any
governmental law, rule, regulation or requirement;


 


2)                                      Discharge, emit or permit to be discharged or
emitted, any liquid, solid or gaseous matter, or any combination thereof, into
the atmosphere or on, into or under the Premises, any building or other improvements
of which the Premises are a part, or the ground or any body of water which
matter, as reasonably determined by Landlord or any governmental entity to be
in violation of law or regulation, and does or may pollute or contaminate the
same, or is, or may become, radioactive or does, or may, adversely affect (a)
the health or safety of persons, wherever located, whether on the Premises or
anywhere else, (b) the condition, use or enjoyment of the Premises or any other
real or personal property, whether on the Premises or anywhere else, or (c) the
Premises or any of the improvements thereto including buildings, foundations,
pipes, utility lines, landscaping or parking areas;


 


3)                                      Produce, or permit to be produced, any
intense glare, light or heat in violation of law or regulations;


 


4)                                      Create, or permit to be created, any sound
pressure level which will interfere with the quiet enjoyment of any real
property outside the Premises, or which will create a nuisance or violate any
governmental law, rule, regulation or requirement;


 


5)                                      Create, or permit to be created, any
vibration that is discernible outside the Premises; or


 


6)                                      Transmit, receive or permit to be transmitted
or received from or to the Premises, any electromagnetic, microwave or other radiation which is or may be harmful or hazardous to any person or property in, or about the Premises,
or anywhere else.


 


6





















 


b.                                      Storage and Use.


 


1)                                      Storage. Subject to the uses permitted and prohibited
to Tenant under this Lease, Tenant shall store in appropriate leak proof
containers all solid, liquid or gaseous matter, or any combination thereof,
which matter, if discharged or emitted into the atmosphere, the ground or any
body of water would be in violation of law or regulation and does or may (a)
pollute or contaminate the same, or (b) adversely affect the (i) health or
safety of persons, whether on the Premises or anywhere else, (ii) condition,
use or enjoyment of the Premises or any real or personal property, whether on
the Premises or anywhere else, or (iii) Premises.


 


2)                                      Use.  In
addition, without Landlord’s prior written consent, Tenant shall not use, store
or permit to remain on or about the Premises any solid, liquid or gaseous
matter which is, or may become dangerously radioactive. If Landlord does give
its consent, Tenant shall store the materials in such a manner that no
radioactivity will be detectable outside a designated storage area and Tenant
shall use the materials in such a manner that (a) no real or personal property
outside the designated storage area shall become contaminated thereby and (b)
there are and shall be no adverse effects on the (i) health or safety of
persons, whether on the Premises or anywhere else, (ii) condition, use or enjoyment
of the Premises or any real or personal property thereon or therein, or (iii)
Premises or any of the improvements thereto or thereon.


 


3)                                      Hazardous Materials. Subject to the uses permitted and prohibited
to Tenant under this Lease, Tenant shall store, use, employ, transport and
otherwise deal with all Hazardous Materials (as defined below) employed on or
about the Premises in accordance with all federal, state, or local law,
ordinances, rules or regulations applicable to Hazardous Materials in connection
with or respect to the Premises.


 


c.                                       Disposal of Waste.


 


1)                                      Refuse Disposal.  
Tenant shall not keep any trash, garbage, waste or other refuse on the Premises
except in sanitary containers and shall regularly and frequently remove same
from the Premises. Tenant shall keep all incinerators, containers or other
equipment used for storage or disposal of such materials in a clean and
sanitary condition.


 


2)                                      Sewage Disposal.  
Tenant shall properly dispose of all sanitary sewage and shall not use
the sewage disposal system (a) for the disposal of anything except sanitary
sewage or (b) amounts in excess of the lesser of: (i) that reasonably
contemplated by the uses permitted under this Lease or (ii) that permitted by
any governmental entity. Tenant shall keep the sewage disposal system free of
all obstructions and in good operating condition.


 


3)                                      Disposal of Other Waste.  
Tenant shall properly dispose of all other waste or other matter delivered
to, stored upon, located upon or within, used on, or removed from, the Premises
in such a manner that it does not, and will not, violate any law or regulation
and adversely affect the (a) health or safety of persons, wherever located,
whether on the Premises or elsewhere, (b) condition, use or enjoyment of the
Premises or any other real or personal property, wherever located, whether on
the Premises or anywhere else, or (c) Premises or any of the improvements thereto
or thereon including buildings, foundations, pipes, utility lines, landscaping
or parking areas.


 


d.                                      Information. 
Tenant shall provide Landlord with any and all information regarding
Hazardous Materials in the Premises, including copies of all filings and
reports to governmental entities at the time they are originated, and any other
information requested by Landlord. In the event of any accident, spill or other
incident involving Hazardous Materials, Tenant shall immediately report the
same to Landlord and supply Landlord with all information and reports with
respect to the same. All information described herein shall be provided to
Landlord regardless of any claim by Tenant that it is confidential or
privileged.


 


e.                                       Compliance with Law.  
Notwithstanding any other provision in this Lease to the contrary,
Tenant shall comply with all
laws, statutes, ordinances, regulations, rules and other governmental
requirements now or hereafter existing in complying with its obligations under
this Lease, and in particular, relating to the storage, use and disposal of
Hazardous Materials.


 


f.                                         Indemnity.  
Tenant hereby agrees to indemnify, defend and hold Landlord, its agents,
employees, lenders, shareholders, directors, representatives, successors and
assigns harmless from and against any and all actions, causes of action,
losses, damages, costs, claims, expenses, penalties, obligations or liabilities
of any kind whatsoever (including but not limited to reasonable attorneys’
fees) arising out of or relating to any Hazardous Materials employed, used,
transported across, or otherwise dealt with by Tenant (or invitees, or persons
or entities under the control of Tenant) in connection with or with respect to
the Premises and the Business Park. Notwithstanding any of the provisions of
this Lease, the indemnity obligation of Tenant pursuant to this ¶8.f.
shall survive the termination of this Lease and shall relate to any occurrence
as described in this ¶8.f. occurring in connection with this Lease.
Landlord hereby agrees to indemnify, defend and hold Tenant harmless from and
against any and all actions, causes of action, losses, damages, costs, claims,
expenses, penalties, obligations or liabilities of any kind whatsoever
(including reasonable attorneys’ fees) arising out of or relating to (i)
Hazardous Materials employed, used, transported to the Premises, for which the
Premises are a part thereof, by Landlord, its agents or employees or (ii)
Hazardous Materials existing on, in or under the Premises as of the date of
this Lease. For purposes of this Lease the term “Hazardous
Materials” shall mean any hazardous, toxic or dangerous waste,
substance or material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Sections


 


7





















 


9601
et seq.), as amended, or the Resource Conservation and Recovery Act (42 U.S.C.
Sections 6901 et seq.), as amended, or any other federal, state, or local law,
ordinance, rule or regulation applicable to the Premises, or any substance
which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous, or any substance which
contains gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated
biphenyls (PCB’s), or radon gas, urea formaldehyde, asbestos or lead.


 


9.                                       SIGNS AND COMMUNICATIONS ANTENNAE.  Tenant
shall not place any sign or communications antennae upon or adjacent to the
Premises, except that Tenant may, with Landlord’s prior written consent*,
install (but not on the roof) such signs as are reasonably required to indicate
Tenant’s company name or logo provided such signs are in compliance with
Landlord’s standard sign criteria or install communications antennae used
exclusively by Tenant provided such signs and/or communications antennae are in
compliance with all applicable governmental requirements. The installation of
any sign or communications antennae on or adjacent to the Premises by or for
Tenant shall be subject to the provisions of ¶13. (Repairs and
Maintenance). Tenant shall remove any sign or communications antennae placed on
or adjacent to the Premises by Tenant upon the expiration of the Term or sooner
termination of this Lease, and Tenant shall repair any damage or injury to the
Premises caused thereby, all at Tenant’s expense. If any signs or communications
antennae are not removed, or necessary repairs not made, Landlord shall have
the right to remove the signs or communications antennae and repair any damage
or injury to the Premises at Tenant’s sole cost and expense. Notwithstanding
any other provision of this Lease to the contrary, Landlord reserves all rights
to the use of the roof and the right to install and receive all revenues from
the installation of such other signs or communications antennae (including
related equipment which is currently installed within the Premises) on the
Premises as do not unreasonably interfere with the conduct of Tenant’s business
within the Premises.


 










* Landlord hereby approves existing exterior signage.


 


10.                                 PERSONAL PROPERTY TAXES. Tenant shall pay at least ten (10) days
prior to delinquency all taxes assessed against and levied upon Tenant owned
leasehold improvements, trade fixtures, furnishings, equipment and all personal
property of Tenant contained in the Premises or elsewhere.   When possible, Tenant shall cause its leasehold
improvements, trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord.  If any of Tenant’s said
personal property shall be assessed with Landlord’s real property, Tenant shall
pay Landlord the taxes attributable to Tenant within ten (10) days after
receipt of a written statement setting forth the taxes applicable to Tenant’s
property.


 


11.                                 REAL PROPERTY TAXES


 


a.                                       Payment of Taxes. 
Landlord shall pay the Building’s Real Property Taxes, as defined in ¶11.c.,
during the Term of this Lease. Subject to ¶11.b., Tenant shall promptly
reimburse Landlord according to ¶5. for Tenant’s Share of Business Park of such
Real Property Taxes paid by Landlord.


 


b.                                      Advance Payment.   In
order to ensure payment when due and before delinquency of any or all Real Property
Taxes, Landlord shall estimate the current Real Property Taxes applicable to
the Premises, and require Tenant to pay monthly in advance with the payment of
the Base Rent an amount which, over the number of months remaining before the
month in which the applicable tax installment would become delinquent, would
provide a fund large enough to fully discharge before delinquency the estimated
installment of Real Property Taxes to be paid. When the actual amount of the
applicable tax bill is known, Landlord may, but is not required to, adjust the
amount of such equal monthly advance payment so as to provide the funds needed
to pay the applicable Real Property Taxes before delinquency.   If the amounts paid to Landlord by Tenant
under the provisions of this ¶11. are insufficient to discharge the obligations
of Tenant to pay such Real Property Taxes as the same become due. Tenant shall
pay to Landlord, upon Landlord’s demand, such additional sums as are necessary
to pay such obligations.   All moneys
paid to Landlord under this ¶11. may be intermingled with other moneys of
Landlord and shall not bear interest.


 


c.                                       Definition of “Real Property
Taxes”.   As used herein, the term “Real
Property Taxes” shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax or other fee, charge, or
excise which may be imposed as a substitute for any of the foregoing (other
than inheritance, personal income or estate taxes) imposed upon the Business
Park by any authority having the direct or indirect power to tax, including any
city, county, state or federal government, or any school, agricultural,
sanitary, fire, street, drainage or other improvement district thereof, levied
against any legal or equitable interest of Landlord in the Business Park,
Landlord’s right to rent or other income therefrom, and/or Landlord’s business
of leasing the Business Park.    The term
“Real Property Taxes” shall also include any tax, fee, levy, assessment or
charge, or any increase therein, imposed by reason of events occurring, or
changes in applicable law taking effect, during the Term of this Lease,
including but not limited to a change in the ownership of the Business Park or
in the improvements thereon, the execution of this Lease, or any modification,
amendment or transfer thereof, and whether or not contemplated by the parties
hereto.


 


12.                                 UTILITIES. Tenant shall pay for all water, gas, heat,
light, power, telephone, trash disposal and other utilities and services
supplied to the Premises, together with any taxes thereon.   If any such services are not separately metered
to Tenant, Tenant shall pay a reasonable proportion, to be determined by
Landlord, of all charges jointly metered with other premises.


 


13.                                 REPAIRS AND MAINTENANCE


 


a.                                       Landlord’s Obligations.   Landlord
shall keep the Business Park, including the foundation, exterior walls, roof,
and common area of the Business Park, and the equipment whether used
exclusively for the Premises or in common with other premises, in good
condition and repair subject to reimbursement by Tenant in accordance with ¶5.
There shall be no abatement of Rent or liability to Tenant on account of any
injury or interference with Tenant’s business with respect to any improvements,
alterations or repairs


 


8





















 


made
by Landlord to the Business Park or any part thereof. Notwithstanding the
above, Landlord, at Landlord’s cost, shall repair and maintain the structural
parts of the Premises which structural parts include only the foundation,
exterior walls (excluding the surfaces of all walls and the exterior and
interior of all windows, doors, plate glass, showcases and interior ceiling),
roof structure (but not roof membrane), columns and foundations of the Premises
unless such maintenance and repairs are caused in part or in whole by the act,
neglect, fault of or omission of any duty by Tenant, its agents, servants,
employees or invitees, in which case Tenant shall pay to Landlord, as
additional Rent, the reasonable cost of such maintenance and repairs to the
extent such cost is not covered by insurance proceeds received Landlord.
Landlord shall not be liable for any failure to make any such repairs or to
perform any maintenance unless Landlord shall fail to commence to make such
repairs or perform such maintenance within thirty (30) days after written notice
of the need for such repairs or maintenance is given to Landlord by Tenant,
except in the event of an emergency in which case Landlord shall commence to
perform as soon as practicable possible. In event Landlord fails to perform
such maintenance or commence such repairs with in the time period set forth
above. Tenant shall have the right, after five (5) days written notice to
Landlord, to perform the repairs or maintenance which are the subject of the
notice at Landlord’s cost and Landlord shall reimburse Tenant for the
reasonable costs Tenant incurred in performing Landlord’s obligations under
this ¶13.a.; provided, however, that in no event shall Tenant have the right to
offset against Rent or other sums owing under this Lease, any amount so
incurred by Tenant. There shall be no abatement of Rent and no liability of
Landlord by reason of any injury to or interference with Tenant’s business
arising from the making of any repairs, alterations or improvements in or to or
maintenance of any portion of the Premises or in or to fixtures, appurtenances
and equipment therein. Tenant waives the right to make repairs at Landlord’s
expense under California Civil Code Section 1942 or any other law, statute or
ordinance now or hereafter in effect. Except for the cost of repairing and
maintaining those structural portions of the Premises as described in the first
sentence of this ¶13.a., the cost of any repair, maintenance, alteration or
improvement provided for herein and which is paid for by Landlord shall be
included in the Operating Expenses as defined in ¶5.


 


b.                                      Tenant’s Obligations.


 


1)                                      General.   Tenant
shall, at Tenant’s sole cost and expense and at all times, contract for
janitorial services and supplies, keep the Premises in good order, condition
and repair, including, without limiting the generality of the foregoing, all
equipment or facilities serving the Premises, (except for HVAC which shall be
part of the Operating Expenses as set forth in ¶5.b. hereof) such as
electrical, lighting facilities, boilers, fired or unfired pressure vessels,
fixtures, interior walls, ceilings, floors, windows, window frames, interior
and exterior doors and door frames, plate glass and skylights. Tenant shall not
cause or permit any Hazardous Material to be spilled or released in, on, under
or about the Premises (including through the plumbing or sanitary sewer system)
and shall promptly, at Tenant’s expense, take all investigatory and/or remedial
action reasonably recommended, whether or not formally ordered or required, for
the cleanup of any contamination of, and for the maintenance, security and/or
monitoring of the Premises, the elements surrounding same, or neighboring
properties, that was caused or materially contributed to by Tenant, or
pertaining to or involving any Hazardous Materials and/or storage tank brought
onto the Premises by or for Tenant or under its control. Tenant, in keeping the
Premises in good order, condition and repair, shall exercise and perform good
maintenance practices. Tenant’s obligations shall include restorations,
replacements or renewals when necessary to keep the Premises and all
improvements thereon or a part thereof in good order, condition and state of
repair.


 


2)                                      Contracts.   Tenant
shall, at Tenant’s sole cost and expense, procure and maintain contracts, with
copies to Landlord, in customary form and substance for, and with contractors
specializing and experienced in, the inspection, maintenance and service of
mechanical, electrical and other systems serving the Premises (except the HVAC
system), if any, servicing the Premises. Tenant shall keep a detailed
preventative maintenance schedule and log showing the frequency of maintenance
on all mechanical, electrical and other systems, (excluding HVAC) servicing the
Premises and provide Landlord with a copy
of same quarterly.


 


3)                                      As-is Condition.   The
parties affirm that Landlord, its subsidiaries, officers, shareholders, directors,
agents and/or employees have made no representations to Tenant respecting the condition
of the Premises except as specifically stated herein.


 


4)                                      ADA.   Tenant
acknowledges that as of the Commencement Date, the Premises may not comply with
the accessibility provisions of Title 24 of the California Code of Regulations
as interpreted by the Office of the State Architect, and that Landlord shall
have no obligation with respect to any such failure of the Premises to so
comply. Tenant shall, at its cost, at any time during the Term as required by
any applicable governmental agency having jurisdiction over the Premises, make such
modifications and alterations to the Premises as may be required in order to
fully comply with the provisions of the ADA, as from time to time amended, and
any and all regulations issued pursuant to or in connection with the ADA in
such a manner as to satisfy the applicable governmental agency or agencies
requiring remediation.   Tenant shall at
least thirty (30) days prior to the commencement of any construction in
connection with satisfaction of the ADA, give written notice to Landlord of its
intended commencement of construction together with sufficient details so as to
reasonably disclose to Landlord the nature of the proposed construction, copies
of any notices received by Tenant from applicable governmental agencies in
connection with the ADA and such other documents or information as Landlord may
reasonably request.    In any event,
notwithstanding anything to the contrary contained in this Lease, prior to the
termination of the Term, Tenant shall, at its cost, make such modifications and
alterations to the Premises as


 


9





















 


may
be required to comply fully with the ADA as from time to time amended and any
and all regulations issued thereunder. Tenant shall give the Landlord thirty
(30) days prior written notice as described above in connection with any such
construction. Any and all construction required to so comply with the ADA shall
be completed by Tenant prior to the expiration of the Term.


 


c.                                       Compliance with Governmental
Regulations.   Tenant
shall, at its own cost and expense, promptly and properly observe and comply
with all present and future orders, regulations, directions, rules, laws, ordinances,
and requirements of all governmental authorities (including but not limited to
state, municipal, county and federal governments and their departments,
bureaus, boards and officials) arising from the use or occupancy of, or
applicable to, the Premises or privileges appurtenant to or in connection with
the enjoyment of the Premises.    Tenant
shall also comply with all such rules, laws, ordinances and requirements at the
time Tenant makes any alteration, addition or change to the Premises.


 


d.                                      Miscellaneous.


 


1)                                      Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.


 


2)                                      Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford the Tenant the
right to make repairs at Landlord’s expense or to terminate this Lease because
of Landlord’s failure to keep the Premises and the Business Park in good order,
condition and repair.  Specifically,
Tenant waives the provisions of California Civil Code Sections 1941 and 1942 with
respect to Landlord’s obligations for Tenant tenantability of the Premises and Tenant’s
right to make repairs and deduct the expenses of such repairs from Rent.


 


3)                                      Tenant shall not place a load upon any floor
of the Premises which exceeds the load per square foot which such floor was
designed to carry, as determined by Landlord or Landlord’s structural engineer.   The cost of any such determination made by
Landlord’s structural engineer shall be paid for by Tenant upon demand.


 


4)                                      Except as otherwise expressly provided in
this Lease, Landlord shall have no liability to Tenant nor shall Tenant’s
obligations under this Lease be reduced or abated in any manner whatsoever by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord making any repairs or changes which Landlord is required
to make or is permitted to make by this Lease or by any tenant’s lease or is
required by law to make in or to any portion of the Premises.   Landlord shall nevertheless use reasonable efforts
to minimize any interference with Tenant’s business in the Premises.


 


5)                                      Tenant shall give Landlord prompt notice of
any damage to or defective condition in any part or appurtenance of the
Premises’ mechanical, electrical, plumbing, HVAC or other systems serving,
located in or passing through the Premises. Upon request by Landlord, Tenant
shall provide Landlord with evidence reasonably acceptable to Landlord of
service contracts on such systems.


 


6)                                      Upon the expiration or early termination of
this Lease, Tenant shall return the Premises to Landlord clean and in the same
condition as on the date Tenant took possession, except for normal wear and tear. Any damage to the
Premises, including any structural damage, resulting from Tenant’s use or from
the removal of Tenant’s fixtures, furnishings and equipment shall be repaired
by Tenant prior to the end of the Term at Tenant’s expense.


 


7)                                      Landlord may, at Landlord’s option, choose to
perform any of the Tenant’s obligations in this ¶13.  The cost of any such Tenant’s obligations so
performed by Landlord shall be at Tenant’s sole cost and expense. Tenant shall
reimburse Landlord for any such costs incurred by Landlord in the performance
of such Tenant’s obligations within ten (10) days of receipt of a billing from
Landlord.


 


ALTERATIONS.   Tenant shall not make any alterations to the
Premises or the Business Park without Landlord’s prior written consent, which
consent shall not be unreasonably withheld. Tenant may make non-structural
alterations costing less than $15,000 per event without Landlord’s consent.
Regardless of whether Landlord’s consent for alteration is required, Tenant
must provide Landlord at least fifteen (15) business days prior to the
commencement of any alteration with a complete description of each such
alteration including any building permit drawing(s) and specifications.
Landlord may post notices regarding non-responsibility in accordance with the
laws of the state in which the Premises are located. All alterations made by
Tenant, whether or not subject to the approval of Landlord, shall be performed
by Tenant and its contractors in a first class workmanlike manner and permits
and inspections shall be obtained from all required governmental entities. Any
alterations made shall remain on and be surrendered with the Premises upon
expiration or termination of this Lease, except that Landlord may, within
thirty (30) days before or thirty (30) days after expiration of the Term, elect
to require Tenant to remove some or all some or all of the alterations which
Tenant may have made to the Premises. If Landlord so elects, Tenant shall at
its own cost restore the Premises to the condition designated by Landlord in
its election, before the last day of the Term or within thirty (30) days after
notice of its election is given, whichever is later. If requested by Tenant at
the time of Tenant’s request for approval of alterations or improvements,
Landlord shall advise Tenant in writing whether Landlord shall require Tenant
to remove some or all of said alterations or improvements upon expiration or
termination of the Lease. Should Landlord consent in writing to Tenant’s
alteration of the Premises, Tenant shall contract with a contractor approved by
Landlord for the construction of such alterations, shall secure all appropriate
governmental approvals and permits, and shall complete such alterations with
due diligence in compliance with plans and specifications approved by Landlord.
Tenant shall pay all costs for such construction and shall keep the Premises free
and clear of all mechanics’ liens which may result from construction by Tenant.


 


10





















 


15.                                 RELEASE AND INDEMNITY.  As
material consideration to Landlord, Tenant agrees that Landlord shall not be liable
to Tenant for any damage to Tenant or Tenant’s property from any cause, except
for damages resulting from Landlord’s gross negligence or willful misconduct,
and Tenant waives all claims against Landlord for damage to persons or property
arising for any reason, except for damage resulting directly from Landlord’s
breach of its express obligations under this Lease which Landlord has not cured
within a reasonable time after written notice of such breach from Tenant.   Tenant shall indemnify and hold Landlord
harmless from all damages including attorneys’ fees and costs arising out of
any damage to any person or property occurring in, on or about the Premises or
Tenant’s use of the Premises or Tenant’s breach of any term of this Lease.


 


16.                                 INSURANCE


 


a.                                       Payment For Insurance.  
Regardless of whether the Landlord or Tenant is the Insuring Party,
Tenant shall pay for its proportionate share of all insurance required under
this ¶16, (“Insurance Costs”) either directly
or by reimbursement to Landlord as specified in this ¶16.  Premiums for policy periods commencing prior
to or extending beyond the Lease Term shall be prorated to correspond to the
Lease Term. Payment shall be made by Tenant to Landlord within thirty (30) days
following receipt of an invoice for any amount due.


 


b.                                      Liability Insurance.


 


1)                                      Carried by Tenant.   Whether or not Tenant is the Insuring Party.
Tenant shall obtain and keep in force during the Term of this Lease a
commercial general liability policy of insurance protecting Tenant and Landlord
(as an additional insured) against claims for bodily injury, personal injury
and property damage based upon, involving or arising out of the ownership, use,
occupancy or maintenance of the Premises and all areas appurtenant thereto.
Such insurance shall be on an occurrence basis providing single limit coverage
in an amount not less than $13,000,000 per occurrence with an “Additional
Insured-Managers or Landlords of Premises” endorsement and contain an “Amendment
of the Pollution Exclusion” for damage caused by heat, smoke or fumes from a
hostile fire. The policy shall not contain any intra-insured exclusions as
between insured persons or organizations, but shall include coverage for
liability assumed under this Lease as an “insured contract” for the performance
of Tenant’s indemnity obligations under this Lease. The limits of said
insurance required by this Lease or as carried by Tenant shall not, however,
limit the liability of Tenant nor relieve Tenant of any obligation hereunder. All
insurance to be earned by Tenant shall be primary to and not contributory with
any similar insurance carried by Landlord, whose insurance shall be considered
excess insurance only. All insurance coverage required pursuant to this ¶16.
which is to name Landlord as a named insured shall also name Landlord’s
subsidiaries, directors, agents, officers and employees as named insureds.


 


2)                                      Carried by Landlord. In the event Landlord is the Insuring Party,
Landlord shall also maintain liability insurance as described in ¶16.b.1), in
addition to, and not in lieu of the insurance required to be maintained by
Tenant. In the event Tenant is the Insuring Party, Landlord shall in addition
carry Landlord’s Risk Coverage and insure the Premises on Landlord’s umbrelIa
policy and Tenant shall reimburse Landlord the cost thereof. Tenant shall not
be named as an additional insured therein under any insurance obtained by
Landlord in accordance with this ¶16.b.2).


 


c.                                       Property Insurance - Building,
Improvements and Rental Value.


 


1)                                      Building and Improvements.  The
Insuring Party shall obtain and keep in force during the Term of this Lease 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
Business Park  (“Lender(s)”),
insuring loss or damage to the Business Park. 
The amount of such insurance shall be equal to the full replacement cost
of the Business Park, as the same shall exist from time to time, or the amount
required by Lender(s), but in no event more than the commercially reasonable
and available insurable value thereof if, by reason of the unique nature or age
of the improvements involved, such latter amount is less than full replacement
cost.    Such policy or policies shall insure
against all risks of direct physical loss or damage (including Boiler and
Machinery coverage and 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 Business Park
required to be demolished shall also contain an agreed valuation provision in
lieu of any coinsurance clause, waiver of subrogation and inflation guard protection
causing an increase in the annual property insurance coverage amount by a
factor of not less than the adjusted U.S. Department of Labor Consumer Price
Index for All Urban Consumers for the city nearest to where the Business Park
is located.   If such insurance coverage
has a deductible clause, then Tenant shall be liable for its proportionate
share of such deductible amount. Even if Landlord is the Insuring Party, Tenant’s
personal property shall be insured by Tenant under ¶16.d. rather than by Landlord.


 


2)                                      Rental Value.  The
Insuring Party shall, in addition, obtain and keep in force during the term of this
Lease a policy or policies in the name of Landlord, with loss payable to
Landlord and Lender(s), insuring
the loss of the full rental and other charges payable by Tenant to Landlord
under this Lease for one (1) year (including all Real Property Taxes, Insurance
Costs and any scheduled Rent
increases).   Said insurance shall
provide that in the event the Lease is terminated by reason of an insured loss, the period of indemnity for
such coverage shall be extended beyond the date of the completion of repairs or
replacement of the Premises, to provide for one full year’s loss of Rent from
the date of any such loss. Said insurance shall contain an


 


11





















 


agreed
valuation provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected Rent, Real
Property Taxes, Insurance Costs and other expenses, if any, otherwise payable
by Tenant, for the next twelve (12) month period. Tenant shall be liable for
any deductible amount in the event of such loss.


 


3)                                      Adjacent Premises.  If
the Premises are part of a larger building, or if the Premises are part of a group
of buildings owned by Landlord which are adjacent to the Premises, the Tenant
shall pay for any increase in the premiums for the property insurance of such
building or buildings if said increase is caused by Tenant’s acts, omissions,
use or occupancy of the Premises.


 


4)                                      Tenant’s Improvements. If the Landlord is the Insuring Party, the
Landlord shall not be required to
insure Tenant’s personal property and leasehold improvements unless the item in
question has become the property of Landlord under the terms of this Lease. If
Tenant is the Insuring Party the policy carried by Tenant under this ¶16.c.
shall insure Tenant’s personal property and leasehold improvements.


 


d.                                      Tenant’s Property Insurance. 
Subject to the requirements of ¶16.e., Tenant at its
cost shall either by separate policy or by endorsement to a policy already
carried, maintain insurance coverage on all of Tenant’s personal property and
Tenant’s leasehold improvements in, on or about the Premises similar in coverage
to that carried by the Insuring Party under ¶16.c. Such insurance
shall be full replacement cost coverage with a deductible of not to exceed
$10,000 per occurrence.   The proceeds
from any such insurance shall be used by Tenant for the replacement of personal
property or the restoration of Tenant owned leasehold improvements.    Tenant shall be the Insuring Party with
respect to the insurance required by this ¶16.d. and shall provide
Landlord with written evidence that such insurance is in force.


 


e.                                       Insurance Policies.    If
Tenant is the Insuring Party, insurance required per this ¶16.
shall be with companies duly licensed to transact business in the state where
the Premises are located, and maintaining during the policy term a “General
Policyholders Rating” of at least A- X, or such other minimal rating as may be
required by Lender(s) as set forth in the most current issue of “Best’s
Insurance Guide.” Tenant shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in this ¶16.
If Tenant is the Insuring Party, Tenant shall cause to be delivered to Landlord
certified copies of policies of such insurance or certificates evidencing the
existence and amounts of such insurance with the insureds and loss payable
clauses as required by this Lease.  No
such policy shall be cancelable or subject to modification or lapse except
after thirty (30) days prior written notice to Landlord. Tenant shall at least
thirty (30) days prior to the expiration of such policies, furnish Landlord
with evidence of renewals or “insurance binders” evidencing renewal thereof, or
Landlord may order such insurance and charge the cost thereof to Tenant, which
amount shall be payable by Tenant to Landlord upon demand.   If the Insuring Party shall fail to procure
and maintain the insurance required to be carried by the Insuring Party under
this ¶16., the other Party may, but shall not be
required to, procure and maintain the same, but at Tenant’s expense.


 


f.                                         Mutual Waiver. 
Notwithstanding anything to the contrary contained in this Lease, to the
extent that this release and waiver does not invalidate or impair their
respective insurance policies, the parties hereto release each other and their
respective agents, employees, officers, directors, shareholders, successors, assignees
and subtenants from all liability for injury to any person or damage to any
property that is caused by or results from a risk which is actually insured
against pursuant to the provisions of this Lease without regard to the
negligence or willful misconduct of the parties so released. Each party shall
use its best efforts to cause each insurance policy it obtains to provide that
the insurer thereunder waives all right of recovery by way of subrogation as
required herein in connection with any injury or damage covered by the policy.
If such insurance policy cannot be obtained with such waiver of subrogation, or
if such waiver of subrogation is only available at additional cost and the
party for whose benefit the waiver is not obtained does not pay such additional
costs after reasonable notice, then the party obtaining such insurance shall
promptly notify the other party of the inability to obtain insurance coverage
with the waiver of subrogation.


 


DAMAGE AND DESTRUCTION


 


a.                                       Damage - Restoration Required.  In the
event that the Building containing the Premises is damaged by fire or other
casualty which is covered under insurance pursuant to the provisions of ¶16.
above, Landlord shall restore such damage provided that: (i) the destruction of
the Building containing the Premises does not exceed sixty percent (60%) of the
then replacement value of the Building containing the Premises; (ii) the
insurance proceeds are available (inclusive of any deductible amounts) to pay
one hundred percent (100%) of the cost of restoration; and (iii) in the
reasonable judgment of Landlord, the restoration can be completed within two
hundred and seventy (270) days after the date of the damage or casualty under
the laws and regulations of the state, federal, county and municipal authorities
having jurisdiction.   The deductible
amount of any insurance coverage for damage to the Premises shall be paid by
Tenant.  If such conditions apply so as
to require Landlord to restore such damage pursuant to this ¶17.a.,
this Lease shall continue in full force and effect, unless otherwise agreed to
in writing by Landlord and Tenant. Tenant shall be entitled to a proportionate
reduction of Rent while such restoration takes place, such proportionate
reduction to be based on the extent to which the damage and restoration efforts
interfere with Tenant’s business in the Premises. Tenant’s right to a reduction
of Rent hereunder shall be Tenant’s sole and exclusive remedy in connection
with any such damage.


 


b.                                      Damage - Restoration Not
Required. In the event that
the Building containing the Premises is damaged by a fire or other casualty and
Landlord is not required to restore such damage in accordance with the provisions of ¶17.a. immediately above,
Landlord shall have the option to either (i) repair or restore such damage,
with the Lease continuing in full force and effect, but Rent to be
proportionately abated as


 


12





















 


provided
in ¶17.a. above; or (ii) give notice to Tenant at any time within thirty (30)
days after the occurrence of such damage terminating this Lease as of a date to
be specified in such notice which date shall not be less than thirty (30) nor
more than sixty (60) days after the date on which such notice of termination is
given. In the event of the giving of such notice of termination, this Lease
shall expire and all interest of Tenant in the Premises shall terminate on the
date, so specified in such notice and the Rent, reduced by any proportionate
reduction in Rent as provided for in ¶17.a. above, shall be paid to the date of
such termination. Notwithstanding the foregoing, if Tenant delivers to Landlord
the funds necessary to make up the shortage (or absence) in insurance proceeds
and the restoration can be completed in a two hundred seventy (270) day period,
as reasonably determined by Landlord, and the destruction of the Building
containing the Premises does not exceed sixty percent (60%) of the then
replacement value, Landlord shall restore the Premises as provided in ¶17.a.
above.


 


c.                                       End of Term Casualty.  
Notwithstanding the provisions of ¶17.a. and ¶17.b. above, either
Landlord or Tenant may terminate this Lease if the Building containing the
Premises is damaged by fire or other casualty, Landlord’s reasonably estimated
cost of restoration of the Building containing the Premises exceeds ten percent
(10%) of the then replacement value of the Building containing the Premises and
such damage or casualty occurs during the last twelve (12) months of the Term
of this Lease (or the Term of any renewal option, if applicable) by giving the
other notice thereof at any time within thirty (30) days following the
occurrence of such damage or casualty. Such notice shall specify the date of
such termination which date shall not be less than thirty (30) nor more than
sixty (60) days following the date on which such notice of termination is
given.  In the event of the giving of
such notice of termination, this Lease shall expire and all interest of Tenant
in the Premises shall terminate on the date so specified in such notice and the
Rent shall be paid to the date of such termination.


 


d.                                      Termination by Tenant.   In
the event that the destruction to the Building containing the Premises cannot be
restored as required herein under applicable laws and regulations within two
hundred seventy (270) days of the damage or casualty, notwithstanding the
availability of insurance proceeds. Tenant shall have the right to terminate
this Lease by giving the Landlord notice thereof within thirty (30) days of
date of the occurrence of such casualty specifying the date of termination
which shall not be less than thirty (30) days nor more than sixty (60) days
following the date on which such notice of termination is given.  In the event of the giving of such notice of
termination, this Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the Rent, reduced
by any proportionate reduction in Rent as provided for in ¶17a. above, shall be
paid to the date of such termination.


 


e.                                       Restoration. 
Landlord agrees that, in any case in which Landlord is required to, or
otherwise agrees to restore the Building containing the Premises, Landlord
shall proceed with due diligence to make all appropriate claims and
applications for the proceeds of insurance and to apply for and obtain all
permits necessary for the restoration of the Building containing the
Premises.   Landlord shall use reasonable
efforts to enforce any and all provisions in any mortgage, deed of trust or
other encumbrance on the Building containing the Premises requiring Landlord
and Lender to permit insurance proceeds to be used for restoration.   Landlord shall restore the Premises at least
equal to the condition existing prior to the date of the damage if permitted by
applicable law.   Landlord shall not be
required to restore alterations made by Tenant, Tenant’s improvements, Tenant’s
trade fixtures and Tenant’s personal property, such excluded items being the
sole responsibility of Tenant to restore provided, however, that Landlord
shall, to the extent of available insurance proceeds, restore Tenant
Improvements to the Premises made by Tenant such as interior offices, lab and
production improvements and other like improvements.


 


f.                                         Waiver. 
Tenant waives the provisions of Civil Code § 1932(2) and Civil Code §
1933(4) with respect to any destruction of the Premises.


 


8.                                       CONDEMNATION


 


a.                                       Definitions.   The
following definitions shall apply: (1) “Condemnation”
means (a) the exercise of any governmental power of eminent domain, whether by
legal proceedings or otherwise by condemnor, or (b) the voluntary sale or
transfer by Landlord to any condemnor either under threat of condemnation or
while legal proceedings for condemnation are proceeding; (2) “Date of Taking” means the date the condemnor has right to
possession of the property being condemned; (3) “Award”
means all compensation, sums or anything of value awarded, paid or received on
a total or partial Condemnation; and (4) “Condemnor”
means any public or quasi-public authority, or private corporation or
individual, having power of Condemnation.


 


b.                                      Obligations to be Governed by
Lease.  If during the Term of the Lease there is any
taking of all or any part of the Building containing the Premises, the rights
and obligations of the parties shall be determined strictly pursuant to this
Lease. Each party waives the provisions of Code of Civil Procedure § 1265.130
allowing either party to petition the Superior Court to terminate this Lease in
the event of a partial condemnation of the Premises.


 


c.                                       Total or Partial Taking. If the Building containing the Premises are
totally taken by Condemnation, this Lease shall terminate on the Date of
Taking. If any portion of the Building containing the Premises is taken by
Condemnation, this Lease shall remain in effect, except that Tenant can elect
to terminate this Lease if the remaining portion of the Premises is rendered
unsuitable for Tenant’s continued use of the Premises. If Tenant elects to
terminate this Lease, Tenant must exercise its right to terminate by giving
notice to Landlord within thirty (30) days after the nature and extent of the
Condemnation have been finally determined. If Tenant elects to terminate this
Lease, Tenant shall also notify Landlord of the date of termination, which date
shall not be earlier than thirty (30) days nor later than ninety (90) days
after Tenant has notified Landlord of its election to terminate; except that
this Lease shall terminate on the


 


13





















 


Date
of Taking if the Date of Taking falls on a date before the date of termination
as designated by Tenant. If any portion of the Premises is taken by
Condemnation and this Lease remains in full force and effect, on the Date of
Taking the Base Rent shall be reduced by an amount in the same ratio as the
total number of square feet in the Premises taken bears to the total number of
square feet in the Premises immediately before the Date of Taking. Any Award
for the taking of all or any part of the Premises under the power of eminent
domain or any payment made under threat of the exercise of such power shall be
the property of Landlord, whether such Award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Tenant shall be entitled to any
compensation separately awarded to Tenant for Tenant’s relocation expenses
and/or loss of Tenant’s trade fixtures.


 


19.                                 ASSIGNMENT OR SUBLEASE


 


a.                                       Tenant shall not assign or encumber its
interest in this Lease or the Premises or sublease all or any part of the
Premises or allow any other person or entity (except Tenant’s authorized
representatives, employees, invitees or guests) to occupy or use all or any
part of the Premises without first obtaining Landlord’s consent, which consent
shall not be unreasonably withheld. Any assignment, encumbrance or sublease
without Landlord’s prior written consent shall be voidable and at Landlord’s
election, shall constitute a default. If Tenant is a partnership, a withdrawal
or change, voluntary, involuntary or by operation of law of any partner, or the
dissolution of the partnership, shall be deemed a voluntary assignment. If
Tenant consists of more than one person, a purported assignment, voluntary or
involuntary or by operation of law from one person to the other shall be deemed
a voluntary assignment. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or sale or other transfer of a
controlling percentage of the capital stock of Tenant, or the sale of at least
fifty percent (50%) of the value of the assets of Tenant shall be deemed a
voluntary assignment. Notwithstanding the sentence immediately above, if the
Tenant is a corporation, the Tenant shall be entitled to assign this Lease
without Landlord’s prior written consent in the event of a reorganization of
Tenant through the sale of all or a portion of Tenant’s Capital Stock by
Initial Public Offering (such event shall be referred to as a transfer to a “Permitted Transferee”). In connection with any assignment,
Landlord shall be entitled to require an increase in the Security Deposit to
the extent that such increase should be commercially reasonable in Landlord’s
discretion given the financial condition of Tenant and the assignee following
such event. In connection with any Sublease, Landlord shall be entitled to hold
any Security Deposit paid by Sublessee to Sublessor, which Security Deposit
shall be held by Landlord in accordance with the provisions of the Sublease.
Tenant shall give Landlord at least sixty (60) days prior written notice of any
intended transfer to a Permitted Transferee and in connection with such
transfer shall provide to Landlord copies of any documents or other information
as Landlord may reasonably request. Unless otherwise expressly agreed in
writing by Landlord, no assignment shall relieve Tenant of any of its
obligations pursuant to this Lease.


 


In
the event of a sublease all Sublease Rent received by Tenant in excess of the
Rent payable by Tenant to Landlord under this Lease applicable to the portion
of the Premises subleased shall be deemed the “Bonus
Amount”, after deducting therefrom the “Subleasing
Costs” which shall include (i) commercially reasonable brokerage
commissions, (ii) tenant improvements made at the request of a subtenant and
(iii) attorneys’ fees incurred by Tenant in negotiating and documenting the
sublease not to exceed One Thousand Dollars ($1,000.00) per request, which
Subleasing Costs shall be amortized over the Term of the Sublease for the
purpose of determining the Bonus Amount. Fifty percent (50%) of the Bonus
Amount shall be promptly paid to Landlord following receipt by Tenant. If the
Subleasing Costs are not known at the commencement of the sublease, the 50% of
Bonus Amount due Landlord will be computed without deduction of Subleasing
Costs and promptly paid to Landlord. Once the Subleasing Costs are presented to
and verified by Landlord, the Bonus Amount paid by Tenant to date will be
adjusted and Landlord shall give Tenant a credit against the next payment(s)
due to Landlord from Tenant. The term “Sublease Rent”
as used herein shall include any consideration of any kind received by Tenant
from or on behalf of any subtenant, if the sums are related in any manner to
the Premises, including, without limitation Rent, operating expense payments,
bonus money and payments for the purchase of or usage of Tenant’s furniture,
fixtures, inventory, equipment, accounts, goodwill, general intangibles and
other assets.  Each sublease approved by
Landlord shall stand alone as to the computation of the Bonus Amount


 


In
the event of an assignment all Transfer Payments received by Tenant shall be
deemed the “Bonus Amount”, after deducting
therefrom the “Assignment Costs” which shall
include (i) commercially reasonable brokerage commissions and (ii) attorneys’
fees incurred by Tenant in negotiating and documenting the assignment not to
exceed One Thousand Dollars ($1,000.00) per request. Seventy-five percent (75%)
of the Bonus Amount shall be promptly paid to Landlord following receipt by
Tenant. If the Assignment Costs are not known at the commencement of the
Assignment, the 75% of Bonus Amount due Landlord will be computed without
deduction of Assignment Costs and promptly paid to Landlord. Once the
Assignment Costs are presented to and verified by Landlord, the Bonus Amount
paid by Tenant to date will be adjusted and Landlord shall give Tenant a credit
against the next payment(s) due to Landlord from Tenant. The term “Transfer Payments” as used herein shall include any
consideration of any kind received by Tenant from or on behalf of any assignee,
if the sums are related in any manner to the Premises, including, without
limitation assignment consideration, Rent, operating expense payments, bonus
money and payments for the purchase of or usage of Tenant’s furniture,
fixtures, inventory, equipment, accounts, goodwill, general intangibles and
other assets.


 


If
Tenant requests Landlord to consent to a proposed assignment or subletting,
Tenant shall pay to Landlord, whether or not consent is ultimately given, an
amount equal to Landlord’s reasonable attorneys’ fees and costs incurred in
connection with such request. Each request for consent to an assignment or
subletting shall be in writing, and shall be accompanied by information as may
be relevant to Landlord’s


 


14





















 


determination
as to the financial and operational responsibility and stability of the
proposed assignee or sublessee and the appropriateness of the proposed use by
such assignee or sublessee. Such information shall include a summary of the
proposed use of, and any proposed modifications to, the Premises. Tenant shall
provide Landlord with such other or additional information and/or documentation
as may reasonably be requested by Landlord. Tenant shall, upon completion of
any assignment or subletting of all or any portion of the Premises, immediately
and irrevocably assign to Landlord as security for Tenant’s obligations under
the Lease, all Sublease Rent and/or Transfer Payments from any such subletting
or assignment. Landlord, as assignee and attorney in fact for Tenant, shall
have the right to collect all rent and other revenues collectable pursuant to
any such sublet or assignment and apply such rent and other revenues towards
Tenant’s obligations under the Lease.


 


b.             No interest of Tenant in this Lease shall be
assignable by involuntary assignment through operation of law (including
without limitation the transfer of this Lease by testacy or intestacy).  Each of the following acts shall be
considered an involuntary assignment: (a) if Tenant is or becomes bankrupt or
insolvent, makes an assignment for the benefit of creditors, or institutes
proceedings under the Bankruptcy Act in which Tenant is the bankrupt; or if
Tenant is a partnership or consists of more than one person or entity, if any
partner of the partnership or other person or entity is or becomes bankrupt or
insolvent, or makes an assignment for the benefit of creditors; or (b) if a
writ of attachment or execution is levied on this Lease; or (c) if in any
proceeding or action to which Tenant is a party, a receiver is appointed with
authority to take possession of the Premises. An involuntary assignment shall
constitute a default by Tenant and Landlord shall have the right to elect to
terminate this Lease, in which case this Lease shall not be treated as an asset
of Tenant.


 


c.             Notwithstanding any provision to this Lease
to the contrary, in any event where Landlord’s consent is required for
assignment or sublease, Landlord may, at its option, elect to terminate the
Lease instead of approving the requested assignment or sublease. Should
Landlord so elect to terminate this Lease, all of the obligations of the
parties thereunder shall terminate on the later of sixty (60) days following
Landlord’s notice to Tenant of its election hereunder, or the effective date of
the proposed assignment or subletting sought by the Tenant, but in no event
later than one hundred twenty (120) days following the date of Landlord’s
election under this ¶19.c.  At the time
of termination, all obligations of both parties hereunder shall terminate as to
obligations thereafter accruing except as otherwise expressly provided in this
Lease.


 


DEFAULT. The
occurrence of any of the following shall constitute a default by Tenant: (a) a
failure of Tenant to pay Rent within ten (10) days of its due date or a failure
of Tenant to pay Operating Expenses and all other charges within ten (10) days
of Tenant’s receipt of Landlord’s billing for same; (b) abandonment of the
Premises; or (c) failure to timely perform any other provision of this Lease
where such failure continues for a period in excess of thirty days following
notice of such failure, provided however, that if the nature of such failure is
such that it cannot reasonably be cured within thirty days, then Tenant shall
not be in default if Tenant commences to cure such failure within thirty days
and thereafter diligently prosecutes the cure to completion. Tenant shall give
written notice to Landlord of any default by Landlord of its obligations
pursuant to this Lease asserted by Tenant (with a copy of such notice to any
lender (“Lender”) against the Premises).
Landlord and Landlord’s Lender shall be afforded a reasonable opportunity to
cure any claimed default by Landlord and Landlord shall not be considered in
default so long as Landlord (or Landlord’s Lender) commences such cure within a
reasonable period of time and thereafter, continues to attempt to complete such
cure. Landlord, from time to time, shall provide Tenant with the name and
address of its Lender.


 


LANDLORD’S REMEDIES. Landlord shall have the following remedies if Tenant is in default.
(These remedies are not exclusive; they are cumulative and in addition to any
remedies now or later allowed by law):


 


a.             Landlord may continue this Lease in full
force and effect, and this Lease will continue in effect so long as Landlord
does not terminate Tenant’s right to possession, and Landlord shall have the
right to collect Rent when due.  During
the period Tenant is in default, Landlord can enter the Premises and relet the Premises,
or any part of the Premises, to third parties for Tenant’s account.  Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in reletting the Premises, including
without limitation, brokers’ commissions, expenses of remodeling the Premises
required by the reletting, and like costs. Reletting can be for a period
shorter or longer than the remaining Term of this Lease. Tenant shall pay to Landlord
the Rent due under this Lease on the dates the Rent is due, less the Rent
Landlord receives from any reletting.  No
act by Landlord allowed by this ¶21.a. shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate this
Lease.  After Tenant’s default and for so
long as Landlord does not terminate Tenant’s right to possession of the
Premises, if Tenant obtains Landlord’s consent, Tenant shall have the right to
assign or sublet its interest in this Lease, but Tenant shall not be released
from liability. Landlord’s consent to such a proposed assignment or subletting
shall not be unreasonably withheld.  If
Landlord elects to relet the Premises as provided in this ¶21.a., Rent that
Landlord receives from reletting shall be applied to the payment of: first, any
indebtedness from Tenant to Landlord other than Rent due from Tenant; second,
all costs, including for maintenance incurred by Landlord in reletting; and
third, Rent due and unpaid under this Lease. 
After deducting the payments referred to in this ¶21.a.,
any sum remaining from the Rent Landlord receives from reletting shall be held
by Landlord and applied in payment of future Rent as Rent becomes due under
this Lease. In no event shall Tenant be entitled to any excess Rent received by
Landlord.  If, on the date Rent is due under
this Lease, the Rent received from the reletting is less than the Rent due on
that date. Tenant shall pay to Landlord, in addition to the remaining Rent due,
all costs including for maintenance Landlord incurred in reletting that remain
after applying the Rent received from the reletting as provided in this ¶21.a.;
and


 


b.             Landlord may terminate Tenant’s right to
possession of the Premises at any time. 
No act by Landlord other than giving express written notice thereof to
Tenant shall terminate this Lease.  Acts
of maintenance, efforts to relet the Premises, or the appointment of a receiver
on Landlord’s initiative to


 


15





















 


protect Landlord’s interest under this Lease shall not constitute a
termination of Tenant’s right to possession. Upon termination of Tenant’s right
to possession, Landlord has the right to recover from Tenant: (1) the Worth of
the unpaid Rent that had been earned at the time of termination of Tenant’s
right to possession; (2) the Worth of the amount by which the unpaid Rent that
would have been earned after the date of termination until the time of award
exceeds the amount of the loss of Rent that Tenant proves could have been
reasonably avoided; (3) the Worth of the amount of the unpaid Rent that would
have been earned after the award throughout the remaining Term of the Lease to
the extent such unpaid Rent exceeds the amount of the loss of Rent that Tenant
proves could have been reasonably avoided; and (4) any other amount, including
but not limited to, reasonable expenses incurred to relet the Premises, court
costs, attorneys’ fees and collection costs necessary to compensate Landlord
for all detriment caused by Tenant’s default. The “Worth”, as used above in (1)
and (2) in this ¶21.b. is to be computed by allowing interest at the lesser of 18 percent per annum or the maximum legal interest
rate permitted by law. The “Worth”, as used above in (3) in this ¶21.b., is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of the
award, plus one percent (1%).


 


22.           ENTRY OF PREMISES. 
Landlord and/or its authorized representatives shall have the right
after twenty-four (24) hour prior notice except for emergencies to enter the
Premises at all reasonable times for any of the following purposes: (a) to
determine whether the Premises are in good condition and whether Tenant is
complying with its obligations under this Lease; (b) to do any necessary
maintenance and to make any restoration to the Premises that Landlord has the
right or obligation to perform; (c) to post “for sale” signs at any time during
the Term, or to post “for rent” or “for lease” signs during the last one
hundred eighty (180) days of the Term or during any period while Tenant is in
default; (d) to show the Premises to prospective brokers, agents, buyers,
tenants or persons interested in leasing or purchasing the Premises, at any
time during the Term: or (e) to repair, maintain or improve the Premises and to
erect scaffolding and protective barricades around and about the Premises but
not so as to prevent entry to the Premises or to unreasonably interfere with
Tenant’s use of the Premises and to do any other act or thing necessary for the
safety or preservation of the Premises. 
Landlord shall not be liable in any manner for any inconvenience,
disturbance, loss of business, nuisance or other
damage arising out of Landlord’s entry onto the Premises as provided in this ¶22.  Tenant shall not be entitled to an abatement
or reduction of Rent if Landlord exercises any rights reserved in this ¶22.  Landlord shall conduct its activities on the
Premises as provided herein in a commercially reasonable manner that will
lessen the inconvenience, annoyance or disturbance to Tenant.


 


23.           SUBORDINATION.


 


a.             Automatic Subordination.  Without the necessity of any additional
document being executed by Tenant for the purpose of effecting a subordination,
and at the election of Landlord or Landlord’s Lender, this Lease 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 Premises,
(ii) the lien of any mortgage or deed of trust which may now exist or hereafter
be executed affecting the Premises, and (iii) the lien of any mortgage or deed
of trust which may hereafter be executed in any amount for which the Premises,
ground leases or underlying leases, or Landlord’s interest or estate in any of
said items is specified as security.  In
the event that 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, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest (including
without limitation to Lender) to Landlord (“Successor”).  In connection with any such termination of a
ground lease or underlying lease or any foreclosure or conveyance in lieu of
foreclosure made in connection with any mortgage or deed of trust, then so long
as Tenant is not in default after all applicable notice and cure periods
pursuant to this Lease, Tenant shall not be disturbed in its possession of the
Premises or in the enjoyment of its rights pursuant to this Lease during the
Term of this Lease or any extension or renewal thereof.   Notwithstanding any subordination of this
Lease to the lien of any mortgage or deed of trust, the Lender, at any time
shall be entitled to subordinate the lien of its mortgage or deed of trust to
this Lease by filing a notice of subordination in the County in which the
Premises are located, and Lender shall agree in connection with any such filing,
that Tenant shall not be disturbed in its possession of the Premises so long as
Tenant is not in default pursuant to this Lease.  In connection with any such filing, Tenant
shall be obligated to attorn to and to become a Tenant of any Successor.


 


b.             Additional Subordination.  From
time to time at the request of Landlord, Tenant covenants and agrees to execute
and deliver within ten (10) days following the date of written request from
Landlord, documents evidencing the priority or subordination of this Lease with
respect to any ground lease or underlying lease or the lien of any mortgage or
deed of trust in connection with the Premises. Any and all such documents shall
be in such form as is reasonably acceptable to the Lender(s).  Any subordination agreement so requested by
Landlord shall provide for Tenant to attorn to the Successor and shall further
provide that Tenant shall not be disturbed in its possession of the Premises or
in the enjoyment of its rights pursuant to this Lease so long as Tenant is not
in default after all applicable notice and cure periods with respect to its
obligations pursuant to the Lease.  Any
such Subordination, Non-disturbance and Attornment Agreement shall be recorded
in the official records of the office of the County Recorder in the County in which
the Premises is located.


 


c.             Notice from Lender. 
Tenant shall be entitled to rely upon any notice given by a Lender in
connection with the Premises requesting that Tenant make all future Rent
payments to such Lender, and Tenant shall not be liable to Landlord for any
payment made to such Lender in accordance with such notice. Notwithstanding any
provision to the contrary of this Lease, a Successor shall not be (i) obligated
to recognize the payment of Rent for a period of more than one month in
advance; (ii) responsible for liabilities accrued pursuant to this Lease prior
to the date (“Succession Date”) upon which the
Successor becomes the “Landlord”
hereunder;  (iii) responsible to cure defaults
of the Landlord pursuant to this
Lease existing as of the Succession Date, except for defaults of a continuing
nature of which Successor received notice (as provided in Paragraph 20) and in
respect of which Tenant afforded Successor a


 


16





















 


reasonable cure period following such notice; (iv) responsible for any
Security Deposit delivered by Tenant pursuant to this Lease not actually
received by the Successor; or (v) bound by any execution, modification,
termination or extension of this Lease or any grant of a purchase option or
right of first refusal or any other action taken by the Landlord pursuant to
this Lease, except in accordance with the provisions of an assignment of leases
executed by Landlord in favor of a Lender.


 


24.           ESTOPPEL CERTIFICATE; TENANT
FINANCIAL STATEMENTS.  Tenant, at any time and from time to time. upon
not less than ten (10) days written notice from Landlord, will execute,
acknowledge and deliver to Landlord and, at Landlord’s request, to any existing
or prospective purchaser, ground lessor or mortgagee of any part of the
Premises, a certificate of Tenant stating: (a) that Tenant has accepted the
Premises (or, if Tenant has not done so, Tenant has not accepted the Premises
and specifying the reasons therefor); (b) the Commencement and Expiration Dates
of this Lease; (c) that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that same is in full force and effect as
modified and stating the modifications); (d) whether or not to the best of
Tenant’s knowledge there are then existing any defenses against the enforcement
of any of the obligations of Tenant under this Lease (and, if so, specifying
same); (e) whether or not to the best of Tenant’s knowledge there are then
existing any defaults by Landlord in the performance of its obligations under
this Lease (and, if so, specifying same); (f) the dates, if any, to which the
Rent and other charges under this Lease have been paid; (g) whether or not
there are Rent increases during the Lease Term and if so the amount of same;
(h) whether or not the Lease contains any options or rights of first offer or
first refusal; (i) the amount of any Security Deposit or other sums due Tenant;
(j) the current notice address for Tenant; and (k) any other information that may
reasonably be required by any of such persons. 
It is intended that any such certificate of Tenant delivered pursuant to
this ¶24. may be relied upon by Landlord and any existing or prospective
purchaser, ground lessor or mortgagee of the Building containing the
Premises.  Tenant agrees, at any lime
upon request by Landlord, to deliver to Landlord the most recent financial
statements of Tenant with an opinion from a certified public accountant, if
available, including a balance sheet and profit and loss statement for the most
recent prior three years, all prepared in accordance with generally accepted
accounting principles consistently applied. 
Landlord agrees to hold such financial statements confidential and to
share them only with prospective lenders and purchasers of the Premises.  Other than for prospective lenders and
purchasers, Landlord shall not request financial statements more often than
twice in any calendar year.


 


25.           WAIVER.  No
delay or omission in the exercise of any right or remedy by Landlord shall
impair such right or remedy or be construed as a waiver.  No act or conduct of Landlord, including
without limitation, acceptance of the keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the expiration of
the Term. Only written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish termination of the
Lease. Landlord’s consent to or approval of any act by Tenant requiring
Landlord’s consent or approval shall not be deemed to waive or render
unnecessary Landlord’s consent to or approval of any subsequent act by
Tenant.  Any waiver by Landlord of any
Default must be in writing and shall not be a waiver of any other Default
concerning the same or any other provision of the Lease.


 


26.           SURRENDER OF PREMISES.  Upon
expiration of the Term, Tenant shall surrender to Landlord the Premises and all
tenant improvements and alterations in the same condition as existed at the
Commencement Date, except for ordinary wear and tear and alterations which
Tenant has the right or is obligated to remove under the provisions of ¶14.
herein.  Tenant shall remove all personal
property including, without limitation, all wallpaper, paneling and other
decorative improvements or fixtures and shall perform all restoration made
necessary by the removal of any alterations or Tenant’s personal property
before the expiration of the Term, including, for example, restoring all wall
surfaces to their condition as of the Commencement Date.  In any event, Tenant shall cause the following
to be done prior to the expiration or the sooner termination of this Lease: (i)
all interior walls shall be painted or cleaned so that they appear freshly
painted; (ii) all tiled floors shall be cleaned and waxed; (iii) all carpets
shall be cleaned and shampooed; (iv) all broken, marred, stained or nonconforming
acoustical ceiling tile shall be replaced; (v) all exterior and interior
windows shall be washed; (vi) the HVAC system shall be serviced by a reputable
and licensed service firm and left in good operating condition and repair as so
certified by such firm; and (vii) the plumbing and electrical systems and
lighting shall be placed in good order and repair (including replacement of any
burned out, discolored or broken light bulbs, ballasts, or lenses).  Landlord can elect to retain or dispose of in
any manner Tenant’s personal property not removed from the Premises by Tenant
prior to the expiration of the Term. 
Tenant waives all claims against Landlord for any damage to Tenant
resulting from Landlord’s retention or disposition of Tenant’s personal
property.  Tenant shall be liable to
Landlord for Landlord’s cost for storage, removal and disposal of Tenant’s
personal property.


 


27.           HOLDOVER.  If
Tenant with Landlord’s consent remains in possession of the Premises after
expiration of the Term or after the date in any notice given by Landlord to
Tenant terminating this Lease, such possession by Tenant shall be deemed to be
a month to month tenancy cancelable by either party on thirty (30) days written
notice given at any time by either party and all provisions of this Lease,
except those pertaining to Term, renewal options and Base Rent, shall apply and
Tenant shall thereafter pay monthly Base Rent computed on a per-month basis,
for each month or part thereof (without reduction for any partial month) that
Tenant remains in possession, in an amount equal to one hundred fifty percent
(150%) of the Base Rent that was in effect for the last full calendar month
immediately preceding expiration of the Term.


 


If Tenant holds over after the expiration or earlier termination of the
Term hereof, without the consent of Landlord, Tenant shall become a Tenant at
sufferance only with a continuing obligation to pay Rent provided that the Base
Rent shall be one hundred fifty percent (150%) of the Base Rent that was in
effect for the last full calendar month immediately preceding expiration of the
Term for the first thirty (30) days of such holdover, and two hundred percent
(200%) of such Base Rent thereafter during the pendency of such holdover.
Acceptance by Landlord of Rent after expiration or earlier termination of the
Term shall not constitute a consent to a holdover
hereunder or result in a renewal. The foregoing provisions of this ¶27. are in addition to and do not affect Landlord’s right of
re-entry or any rights of Landlord hereunder or as otherwise provided by law.
If Tenant fails to surrender the Premises upon the expiration of this Lease
despite demand to do so by Landlord, Tenant shall indemnify and hold Landlord
harmless from all loss or liability arising out of such failure, including
without limitation, any claim made


 


17





















 


by any succeeding tenant founded on or resulting from such failure to
surrender. No provision of this ¶27. shall be construed as implied consent by
Landlord to any holding over by Tenant. Landlord expressly reserves the right
to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon expiration or other termination of this Lease. The
provisions of this ¶27. shall not be considered to limit or constitute a waiver
of any other rights or remedies of Landlord provided in this Lease or at law.


 


28.           NOTICES.  All
notices, demands, or other communications required or contemplated under this
Lease, including any notice delivered to Tenant by the Lender, shall be in
writing and shall be deemed to have been duly given 48 hours from the time of
mailing if mailed by registered or certified mail, return receipt requested,
postage prepaid, or 24 hours from the time of shipping by overnight carrier, or
the actual time of delivery if delivered by personal service to the parties at
the addresses specified in ¶1.  Either
Tenant or Landlord may change the address to which notices are to be given to
such party hereunder by giving written notice of such change of address to the other
in accordance with the notice provisions hereof.


 


29.           TENANT IMPROVEMENTS. 
Landlord shall deliver the Premises to Tenant in its “as is” condition
as of the Commencement Date. Within a reasonable period of time following the
mutual execution of this Lease, Landlord shall perform the repairs to the
Premises as set forth in Tenant’s Estimate of Repair Costs attached hereto as Exhibit
D. Within thirty (30) days of Landlord’s billing, Tenant shall reimburse
Landlord for the cost, if any, of said repairs in excess of $65,377.00.


 


30.           FIRST RIGHT TO NEGOTIATE ON
AVAILABLE EXPANSION SPACE.
Tenant shall have the First Right to Negotiate on any space that becomes vacant
and available in the Building in which the Premises is located which is not
subject to any then existing renewal, expansion or extension rights of other
tenant(s) in the Project (the “Available Expansion Space”)
at any time during the initial Term of the Lease. Should Landlord receive
either a proposal to lease or a request for proposal on behalf of a prospective
tenant for all or part of the Available Expansion Space (the “Offered Space”), Landlord will so notify Tenant.  If Tenant wishes to lease the Offered Space,
Tenant shall so notify Landlord in writing within five (5) business days and
diligently proceed with negotiations on the Offered Space.  If the negotiations do not result in Tenant
and Landlord executing a letter of intent for the Offered Space within ten (10)
days of Tenant’s notice to Landlord or if Tenant and Landlord do not execute a
lease for the Offered Space within thirty (30) days of Tenant’s notice to
Landlord, Tenant’s First Right to Negotiate on the Offered Space shall
terminate.


 


31.           MISCELLANEOUS PROVISIONS.


 


a.             Time of Essence.  Time
is of the essence of each provision of this Lease.


 


b.             Successor. This Lease shall be binding on and inure to
the benefit of the parties and their successors, except as provided in ¶19.


 


c.             Landlord’s Consent. Any consent required by Landlord under this
Lease must be granted in writing and may be withheld or conditioned by Landlord
in its sole and absolute discretion unless otherwise provided.


 


d.             Personal Rights. Notwithstanding any other provision(s) of
this Lease to the contrary, any provisions of this Lease providing for the
renewal, extension or early termination of the Lease and/or for the expansion of
the Premises (to include without limitation rights to negotiate, rights of
first refusal, etc.) shall be (i) personal to the original Tenant and shall not
be assignable or otherwise transferable other than to a Permitted Transferee
(either voluntarily or involuntarily) to any third party for any reason
whatsoever, and (ii) conditioned upon Tenant not then being in default under
this Lease.


 


e.             Commissions. Each party represents that it has not had
dealings with any real estate broker, finder or other person with respect to
this Lease in any manner, except for the Broker(s) identified in ¶1., who shall be compensated by Landlord in accordance with
the separate agreement between Landlord and the Broker(s).


 


f.              Other Charges; Legal Fees.  If
Landlord becomes a party to any litigation concerning this Lease or the Premises
by reason of any act or omission of Tenant or Tenant’s authorized
representatives, Tenant shall be liable to Landlord for reasonable attorneys’
fees and court costs incurred by Landlord in the litigation. Should the court
render a decision which is thereafter appealed by any party thereto Tenant
shall be liable to Landlord for reasonable attorneys’ fees and court costs
incurred by Landlord in connection with such appeal.


 


If either party commences any litigation against the other party or
files an appeal of a decision arising out of or in connection with the Lease,
the prevailing party shall be entitled to recover from the other party
reasonable attorneys’ fees and costs of suit. If Landlord employs a collection
agency to recover delinquent charges, Tenant agrees to pay all collection
agency and attorneys’ fees charged to Landlord in addition to Rent, late
charges, interest and other sums payable under this Lease.


 


g.             Landlord’s Successors. In the event of a sale or conveyance by
Landlord of the Building containing the Premises, the same shall operate to
release Landlord from any liability under this Lease, including as to any
Security Deposit to the extent transferred to Landlord’s successor-in-interest,
and in such event Landlord’s successor in interest shall be solely responsible
for all obligations of Landlord under this Lease.


 


h.             Interpretation. This Lease shall be construed and
interpreted in accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement
between the parties with respect to the Premises, except for such guarantees or
modifications as may be executed in writing by the parties from lime to time.
When required by the context of this Lease, the singular shall include the


 


18





















 


plural, and the masculine shall include the feminine and/or neuter. “Party”
shall mean Landlord of Tenant If more than one person or entity constitutes
Landlord or Tenant, the obligations imposed upon that party shall be joint and
several. The enforceability, invalidity or illegality of any provision shall not
render the other provisions unenforceable, invalid or illegal.


 


i.              Auctions. 
Tenant shall not conduct, nor permit to be conducted, either voluntarily
or involuntarily, any auction upon the Premises without first having obtained
Landlord’s prior written consent. Notwithstanding anything to the contrary in
this Lease, Landlord shall not be obligated to exercise any standard of
reasonableness in determining whether to grant such consent.


 


j.              Quiet Possession.  Upon
payment by Tenant of the Rent for the Premises and the observance and performance
of all of the covenants, conditions and provisions on Tenant’s part to be
observed and performed under this Lease, Tenant shall have quiet possession of
the Premises for the entire Term hereof subject to all of the provisions of
this Lease.


 


k.             Conflict.  Any
conflict between the printed provisions of this Lease and the typewritten or
handwritten provisions shall be controlled by the typewritten or handwritten
provisions.


 


l.              Offer. Preparation of this Lease by Landlord or
Landlord’s agent and submission of same to Tenant shall not be deemed an offer
to lease to Tenant. This Lease is not intended to be binding until executed by
all Parties hereto.


 


m.            Amendments. This Lease may be modified only in writing,
signed by the Parties in interest at the time of the modification. The parties
shall amend this Lease from time to time to reflect any adjustments that are
made to the Base Rent or other Rent payable under this Lease. As long as they
do not materially change Tenant’s obligations hereunder, Tenant agrees to make
reasonable non-monetary modifications to this Lease as may be reasonably
required by Lender(s) in connection with the obtaining of normal financing or
refinancing of the property of which the Premises are a part.


 


n.             Construction. The Landlord and Tenant acknowledge that
each has had its counsel review this Lease, and hereby agree that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Lease or in any amendments or exhibits hereto.


 


o.             Captions. Article, section and paragraph
captions are not a part hereof.


 


p.             Exhibits. For reference purposes the Exhibits are
listed below:


 


Exhibit A: The Premises


Exhibit B: Business Park 


Exhibit C: Rules and Regulations


Exhibit D: Tenant’s Estimate of Repair Costs


 


	
  Limar Realty Corp. #30,
  a California corporation

  	
  Equator Technologies,
  Inc., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Theodore H. Kruttschnitt

  	
   

  	
  By:

  	
  /s/ Brian T. McGee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Theodore H. Kruttschnitt

  	
   

  	
  Name:

  	
  Brian T. McGee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  7/25/11

  	
   

  	
  Date:

  	
  25 July 2001

  	
   

  



 





















 


 


This
Exhibit A is attached to and made a part of that certain Lease (the “Lease”) dated March 19, 2001, by and between Limar
Realty Corp. #30 as Landlord and Equator Technologies, Inc. as Tenant.


 


1300 White Oaks Avenue


Campbell, California


 


FIRST FLOOR


 





 


SECOND FLOOR


 





 





















 


This
Exhibit B is attached to and made a part of that certain Lease (the “Lease”) dated March 19. 2001, by and bet Limar Realty
Corp. #30 as Landlord and Equator Technologies, Inc. as Tenant.


 


1300 White Oaks Avenue


Campbell, California


 





 





















 


Legal
description


 


All that certain Real Property in the City of Campbell, County of Santa
Clara, State of California, described as follows:


 


PARCEL NO. 1:


 


Beginning at a 1 inch pipe at the Northwest
corner of that certain 80 foot strip of land conveyed by Jessie L. Lewis to A.
G. Peterson by Deed recorded in Volume 287 of Official Records, Page 247, said
point of beginning being the Northeast corner of that certain tract of land
conveyed by Jessie L. Lewis to Anna R. Toepfer by Deed recorded April 22,
1932 in Vol. 614 of Official Records, Page 79, and running thence from said
point of beginning, along the West line of said 80 foot strip of land South
216.00 feet to a 1/2 inch pipe; thence West 322.31 feet to a point in the
center line of an irrigation ditch on the Westerly line of said tract of land
so conveyed to Anna R. Toepfer above referred to; thence along said West line
North 30 deg. 11’ East 249 88 feet to a 1 inch pipe at the Northeast corner of
said land so conveyed to Anna R. Toepfer; thence along the North line of land
so conveyed to Anna R. Toepfer, East 196.70 feet to the point of beginning and
being a portion of Lots 4 and 3, as shown upon the Map of the Redding Farm
Tract, which said Map was recorded September 28, 1891 in the Office of the
County Recorder of the County of Santa Clara, State of California in Volume “E”
of Maps, at Page 115.


 


Excepting therefrom so much thereof described
as follows:


 


All of that Parcel of Land described in the
Deed to Quintilio Quintarelli, et ux, recorded on October 13, 1954 in
Volume 2980, at page 644, Official Records of Santa Clara County, which lies westerly of
the following described line:


 


Beginning for reference at the Southeasterly
corner of that Parcel of Land described in the Deed to Charles Ferroni, at
alias, dated on December 4, 1959 in Volume 4628 at Page 700, Official
Records of Santa Clara County; thence along the Southerly line of last said
parcel North 88 deg. 55’ l7” West 335.52 feet to the True Point of
Commencement; thence South 23 deg. 09’ 48” West 96.17 feet to the general
Easterly line of that right of way now known as White Oaks Avenue. conveyed in the Deed to Santa Clara County, recorded on April 18,
1924 in Volume 79, at Page 448 Official Records of Santa Clara County; thence
along last said line South 10 deg. 29’ 24” West 102.35 feet and South 32 deg. 08’
24” West 35.97 feet to the Southerly line of said Quintarelli Parcel.


 


Also excepting therefrom that portion thereof
as conveyed to the City of Campbell, a municipal corporation by Deed recorded September 18,
1998 as Instrument No. 14399524, of Official Records and being more
particularly described as follows:


 


Beginning at the Northeast corner of that
Parcel of Land granted to the State of California by that certain Grant Deed
recorded March 5, 1970 in Book 8849, Page 221 of the Official Records of
Santa Clara County; thence from said point of beginning along the easterly line
of said land of the State of California South 22 deg. 32’ 20” West 96.17 feet
and South 09 deg. 51’ 56” West 2.76 feet; thence leaving said easterly line.
North 25 deg. 47’ 55” East to the easterly extension of the northerly line of
said lands of the State of California; thence along last said line, North 89
deg. 32’ 45” West 6.89 feet to the said point of beginning of this description.


 


PARCEL NO. 2:


 


Beginning at a point in the Northerly line of
Lot 3, as shown upon the Map hereinafter referred to; at the Northwest corner
of that certain 9 acre tract of land conveyed by Katie Hamilton to Antonio
Catarina, by Deed dated February 18, 1935 and recorded March 18, 1935
in Book 721 of Official Records, at Page 392, in the Office of the County
Recorder of the County of Santa Clara, State of California; thence from said
point of beginning. South along
the Westerly line of said 9 acre tract so conveyed by Katie Hamilton to Antonio
Catarina, a distance of 265.205 feet; thence East and parallel to said
Northerly line of said lot 3, at shown on the Map hereinafter referred to,
164.25 feet to the Easterly line of that certain Parcel of land conveyed by
Anna C. Jolls to Adela Le Bord, by Deed


 





















 


 


This
Exhibit A is attached to and made
a part of that certain Lease (the “Lease”)
dated March 19. 2001, by and between Limar Realty Corp. #30 as Landlord and Equator Technologies, Inc. as Tenant.


 


dated February 11, 1946 and recorded February 21,
1946 in Book 1333 of Official Records, at Page 92, County of Santa Clara, State of California; thence Northerly
along said Easterly line, said line being the center line of a 40 foot right of
way hereinafter described, 265.205 feet to the said Northerly line of said Lot
3; thence West along said Northerly line 164.25 feet to the point of beginning
and being a portion of Lot 3. as shown on the Map entitled, “Redding Farm
Tract, being a part of the South 1/2 of the Northwest 1/4 of Section 2, T.
8 S.R. 1 w.”, which Map was filed for record in the Office of the Recorder of
the County of Santa Clara, State of California on September 28, 1891 in
Book of the County of Santa Clara, State of California on September 28,
1891 in Book “E” of Maps, at Page 115.


 


Excepting therefrom so much thereof described as follows:


 


Beginning at a point on the westerly line of that certain 9.0 acre
tract of land conveyed by Katie
Hamilton to Antonio Catarina by Deed dated February 18, 1935 and recorded March l8,
1935 in Book 721 of Official Records, Page 392, Santa Clara County Records,
distant Southerly thereon 215.205 feet from the intersection with the
Northerly line of Lot 3, as said Northerly line is shown on the Map hereinafter
referred to; running thence Southerly along said westerly line of the 9.0 acre tract
of land 50.0 feet; thence Easterly and parallel to said Northerly line of Lot
3, a distance of 164.25 feet to a point on the Easterly line of that certain
trace of land conveyed by Anna G. Jolls to Adela Le Bord, by Deed dated February 11.
1946 and recorded February 21, 1946
in Book 1333 of Official Records, Page 92. Santa Clara County Records; thence
Northerly along said Easterly line, said line also being the center line of the
40 foot right of way hereinafter described, 50.00 feeet; running thence Westerly
and parallel to said Northerly line of Lot 3 a distance of 165.25 feet to the
point of beginning, being a portion of Lot 3, as shown on that certain Map
entitled. “Redding Farm Tract being a part of the South 1/2 of the Northwest
1/4 of Section 2, T. 8
S.R. 1 w.”, filed record September 28, 1891 in Book “E” of Maps, at Page
115, Santa Clara County Records.


 


PARCEL NO. 3:


 


Beginning at the Northeast corner of that
certain Parcel of Land granted to the state of California by that certain Grant
Deed recorded on March 5, 1970 in Book 8849, Page 221 of the Official
Records of Santa Clara County; thence from said point of beginning along the
easterly line of said lands of the State of California South 22 deg. 32’ 20”
West 96.17 feet and South 09 deg. 51’ 56” West 2.76 feet; to the True Point of
Beginning of this description; thence continuing along said easterly line,
South 09 deg . 51’ 56” West 99.59 feet and South 31 deg. 30.
56” West 30.25 feet to the southerly line of said land of the
State of California; thence along said southerly line. North 89 deg. 32’
45” West 26.92 feet; thence leaving said outherly line, North 25 deg. 47’ 55”
East 137.38 feet to the said true point of beginning of this description.


 


PARCEL NO. 4:


 


A non-exclusive easement for street purposes
including the purpose of ingress, egress and regress, the laying out,
construction and maintenance of a street, sidewalks, curbs, gutters, sewage
pipes, lines, connection and sytem water pipes, lines, connections and systems,
gas pipes, lines, connection and systems, hot air and/or steam pipes, lines,
connection and systems, power and light conduits, lines, connections and
systems, electrolies, telephone conduits, lines, connections and systems and
similar purposes upon, over, across and/or through that certain parcel of real
property 40 feet wide, situate lying and being in the County of Santa Clara.
State of California, the middle line of which is described as follows:


 


Beginning at a point in the center line of
Redding Road and the Southerly line of lot 3 as shown on the Map of Redding
Farm Tract, recorded in Volume “E” of Maps, at Page 115, distant thereon, 120.
88 feet Westerly of the Southeasterly corner of said Lot 3; thence along the
center line of a 40 foot right of way and parallel with the Easterly line of
said Lot 3, Northerly 474.10 feet; thence continuing along the center line of
said 40 foot right of way. North 23 deg. 12’ West 109 feet; thence continuing
along said center line and parallel with the Easterly line of said Lot 3, Northerly
745.90 feet to the Northerly line of said Lot 3 and being a portion of said Lot
3, as shown on the Map herein above referred to.


 





















 


EXHIBIT C 


 


Rules & Regulations


 


This
Exhibit C is attached to and made a part of that certain Lease (the “Lease”) dated March 19, 2001, by and
between Limar Realty Corp. #30 as Landlord and Equator Technologies, Inc. as
Tenant.


 


For
the purpose of these Rules & Regulations the word Premises shall refer to
the Premises Tenant is leasing and the Property containing the Premises as
described in the Lease.


 


1.             No sign, placard, picture, advertisement,
name or notice (collectively “Signs”) shall be installed or displayed on any
part of the Premises without the prior written consent of Landlord* except that
Tenant may post Signs inside the Building which are not visible from the
exterior of the Building. Landlord shall have the right to remove, at Tenant’s
expense and without notice, any sign installed or displayed in violation of
this rule. All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant.


 










* Landlord
hereby approves existing exterior signage.


 


2.             Except as consented to in writing by
Landlord, no draperies, curtains, blinds, shades, screens or other devices shall
be hung at or used in connection with any window or exterior door or doors of
the Premises and no awning shall be permitted on any part of the Premises.
Tenant shall not place anything against or near glass partitions or doors or
windows which may appear unsightly from outside the Premises.


 


3.             Neither Tenant nor
any employee or invitee of Tenant, shall make any structural roof or terrace
penetrations.


 


4.             Tenant shall not cause any unnecessary labor
by carelessness or indifference to the good order and cleanliness of the
Premises.  Landlord shall not in any way
be responsible to any Tenant for any loss of property on the Premises, or for
any damage to any Tenant’s property.


 


5.             Landlord will furnish Tenant, free of charge,
with six (6) keys to the Premises. 
Tenant shall not make or have made additional keys without Landlord’s
prior written consent, and Tenant shall not alter any lock or install a new additional
lock or bolt on any door of its Premises without Landlord’s prior written
consent. Tenant, upon the termination of its tenancy, shall deliver to Landlord
the keys of all locks for doors on the Premises, and in the event of loss of
any keys furnished by Landlord, shall pay Landlord therefor.


 


6.             If Tenant requires telegraphic, telephonic, burglar
alarm or similar services, it shall first obtain, and comply with, Landlord’s
reasonable instructions in their installation.


 


7.             Tenant
shall not place a load upon any floor of the Premises which exceeds the load
per square foot which such floor was designed to carry and which is allowed by
law. Landlord shall have the reasonable right to prescribe the weight, size and
position of all equipment, materials, furniture or other property brought into
the Premises.  Heavy objects shall, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight.  Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted to
the structure of the Premises to such a degree as to be objectionable to
Landlord, shall be placed and maintained by Tenant, at Tenant’s expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibrations. Landlord will not be responsible for loss of or damage to, any such
equipment or other property from any cause, and all damage done to the Premises
by maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.


 


8.             Tenant shall not use or keep in the Premises
any kerosene, gasoline or inflammable or combustible fluid or material other
than those limited quantities necessary for the operation or maintenance of
office equipment. Tenant shall not use or permit to be used in the Premises any
foul or noxious gas or substance, or permit or allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord by reason
of noise, odors or vibrations not bring or keep or permit to be brought or kept
in the Premises any animal life form, other than human, except seeing eye dogs
when in the company of their masters.


 


9.             Tenant shall not waste electricity, water or
air-conditioning and agrees to cooperate fully with Landlord to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has
actual notice.


 


10.           Landlord reserves the right, exercisable with
one hundred twenty (120) days prior written notice but without liability to
Tenant, to change the name and street address of the Premises.


 


11.           Tenant shall close and lock the doors of its
Premises and entirely shut off all water faucets or other water apparatus, and
other equipment which is not required to be continuously run.


 


12.           The toilet rooms, toilets, urinals, wash
bowls and other apparatus shall not be used for any purpose other than that for
which they were constructed and no foreign substance of any kind whatsoever
shall be thrown therein. The expense of any breakage, stoppage or damage
resulting for the violation of this rule shall be borne by the Tenant who, or
whose employees or invitees, shall have caused it.


 





















 


EXHIBIT C


 


13.           Tenant shall not sell, or permit the retail
sale of newspapers, magazines, periodicals, theater tickets or any other goods
or merchandise to the general public in or on the Premises. Tenant shall not
make any room-to-room solicitation of business from other tenants in the
Business Park. Tenant shall not use the Premises for any business or activity
other than that specifically provided for in Tenants Lease. Notwithstanding the
above. Tenant shall have the right to install vending machines for use by
Tenant, its employees and invitees.


 


14.           Tenant shall not interfere with radio or
television broadcasting or reception from or in neighboring areas.


 


15.           Canvassing, soliciting and distribution of
handbills or any other written materials, and peddling in the Business Park are
prohibited, and Tenant shall cooperate to prevent same.


 


16.           Landlord reserves the right to exclude or
expel from the Premises any person who, in Landlord’s judgment, is intoxicated
or under the influence of liquor or drugs or who is in violation of any of the
Rules and Regulations of the Premises or in violation of the CC&R’s.


 


17.           Tenant shall store all its trash and garbage
within its Premises or in reasonable locations specifically identified by Landlord
for such purposes. Tenant shall not place in any trash box or receptacle any
material which cannot be disposed of in the ordinary and customary manner of
trash and garbage disposal.  All garbage
and refuse disposal shall be made in accordance with reasonable directions
issued from time to time by Landlord.


 


18            The Premises shall not be used for the
storage of merchandise held for sale to the general public, or for lodging nor
shall the Premises by used for any improper, illegal or objectionable purpose.
No cooking (other than customary heating or ordinary lunchroom items for Tenant’s
employees) shall be done or permitted by any tenant on the Premises, except
that use by Tenant in its kitchen, if any, located in the Premises and
Underwriters Laboratory’s approved equipment for brewing coffee, tea, hot
chocolate and similar beverages and microwaving food shall be permitted,
provided that such kitchen, equipment and use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules and
regulations.


 


19.           Tenant shall not use in any part of the
Premises any hand truck except those equipped with rubber tires and side guards
or such other reasonable material-handling equipment as Landlord may approve.


 


20.           Without the written consent of Landlord,
Tenant shall not use the name of the Business Park in connection with or in
promoting or advertising the business of Tenant except as Tenant’s address.


 


21.           Tenant shall comply with all safety, fire protection
and evacuation procedures and regulations established by Landlord or any
governmental agency.


 


22.           Tenant assumes any and all responsibility for
protecting its Premises from theft, robbery and pilferage, which includes
locking doors and securing other means of entry to the Premises
closed.


 


23.           The requirements of Tenant will be attended
to only upon appropriate application to the office of Landlord by an authorized
individual.  Employees of Landlord shall
not perform any work or do anything outside of their regular duties unless
under special instructions from Landlord.


 


24.           Tenant shall not park its vehicles in any
parking areas outside the Business Park. 
Tenant shall not store or abandon vehicles in the Business Park parking
areas nor park any vehicles in the Business Park parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles,
four-wheeled trucks, or other equipment used in the operation of Tenant’s
business.  Tenant, its agents, employees
and invitees shall not park any one (1) vehicle in more than one (1) parking
space.


 


25.           Landlord reserves the right to make such
other reasonable Rules and Regulations as, in its judgment, may from time to
time be appropriate for safety and security, for care and cleanliness of the
Premises and for the preservation of good order therein.  Tenant agrees to abide for all such Rules and
Regulations hereinabove stated and any additional Rules and Regulations which
are adopted.


 


26.           Tenant shall be responsible for the
observance of all of the foregoing Rules and Regulations by Tenant’s employees,
agents, clients, customers, invitees and guests.


 





















 


Tenant’s Estimate of Repair Costs


 


This
Exhibit C is attached to and made a part of that certain Lease (the “Lease”) dated March 19, 2001, by and
between Limar Realty Corp. #30 as Landlord and Equator Technologies, Inc. as
Tenant.


 


	
  Estimate for Equator Technologies, Inc

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1300 White Oaks Rd

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Campbell, CA 95008

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Repairs

  	
   

  	
  Location

  	
   

  	
  Estimate Cost

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Handicap parking
  stalls does not comply with ADA and must be corrected.

  	
   

  	
  Outside the building, parking lot area

  	
   

  	
  $

  	
  8,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Complete
  parking lot needs to be re-coated with paint and the striping redone

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Complete
  building needs a fresh coat of paint.

  	
   

  	
  Outside the building

  	
   

  	
  $

  	
  15,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The back wall
  by Survey.com needs to be fixed. Trespassers are using it for a shortcut.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The door in
  the electric room needs to be painted and the faded sign replace

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Needs a
  better landscaping company, to actually clean up and remove dead trees
  through out the parking lot. Better quality

  	
   

  	
  Outside the building, parking lot area

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  insulation on the refrigeration lines serving the smaller package units need
  to be replace

  	
   

  	
  The roof

  	
   

  	
  $

  	
  3,255

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The gas main
  line and its branches, as well as other piping and conduits need to have the
  blocking supporting their length and the stapping replace to avoid a serious
  safety situation.

  	
   

  	
  The roof

  	
   

  	
  $

  	
  5,892

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A roofing
  contractor needs to perform a through inspection of the roof. One hose bib is
  leaking and both need to be re-plumbed

  	
   

  	
  The roof

  	
   

  	
  $

  	
  35,800.00

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
  $

  	
  65,377