Exhibit 10.85


 


LEASE
TERMINATION AGREEMENT


 


THIS LEASE TERMINATION AGREEMENT (“Agreement”)
is made and entered into this 9th day of May, 2005, by and among CARRAMERICA
REALTY OPERATING PARTNERSHIP, L.P. (“CARR”), PROXIM WIRELESS NETWORKS, INC.,
f/k/a PROXIM, INC. (“PROXIM WIRELESS”), and its parent PROXIM CORPORATION (“PROXIM
CORP”, collectively with PROXIM WIRELESS, “PROXIM” unless specified otherwise).


 


RECITALS


 


A.                                   On or about August 25, 1999, CARR’s
predecessor-in-interest, CARRAMERICA REALTY CORPORATION, and PROXIM, INC.
entered into a written lease (the “Lease”) for premises known as Building A,
located at 510 DeGuigne, Sunnyvale, California; Building B, located at 935
Stewart Drive, Sunnyvale, California; and Building C, located at 945 Stewart
Drive, Sunnyvale, California, as more particularly described in Exhibit A
in the Lease (the “Premises”).


 


B.                                     On or about June 6, 2003, PROXIM, INC.
entered into a written Sublease (the “Vitria Sublease”) for Building C, located
at 945 Stewart Drive, Sunnyvale, California (the “Vitria Premises”) with Vitria
Technology, Inc. (“Vitria”). On or about June 15, 2003, CARRAMERICA
REALTY CORPORATION, PROXIM, INC., and Vitria entered into a written Sublease
Consent and Agreement (the “Sublease Consent and Agreement”).


 


C.                                     PROXIM is currently downsizing the business
it conducts on the Premises, has informed CARR that it may not continue to
perform pursuant to the terms of the Lease as more specifically set forth in
PROXIM CORP’s most recent securities filings with the United States


 





















 


Securities and Exchange Commission, and has
requested CARR to terminate the Lease and allow PROXIM to relocate to smaller
and less expensive premises owned by CARR. CARR has agreed to such early
termination of the Lease provided that, as more particularly set forth below in
this Agreement: (a) PROXIM pays to CARR the amounts set forth herein as
and when required under this Agreement; (b) PROXIM vacates and surrenders
the Premises to CARR in the condition required under this Agreement on or before
the Termination Date (as defined herein); (c) PROXIM CORP executes the New
Lease, as defined herein; (d) PROXIM releases CARR, effective as of the
Termination Date, from any further obligation or liability under the Lease; and
(e) all of the other conditions set forth herein are satisfied.


 


D.                                    CARR
and PROXIM have agreed that PROXIM CORP will occupy space at Bayshore Center,
2115 O’Nel Drive, San Jose, California, owned by CARR (the “New Premises”).
PROXIM CORP and CARR will execute a new lease for the New Premises (the “New
Lease”) in the form attached hereto as Exhibit A.


 


E.                                      All
capitalized terms not specifically defined in this Agreement shall have the
same meanings and definitions as set forth in the Lease.


 


WHEREFORE, in
consideration of the promises and covenants set forth herein it is hereby
agreed as follows:


 


AGREEMENT


 


1.                                       Amendment
to Lease. This Agreement shall constitute an amendment to the Lease and
shall be effective as of the date of this Agreement. Except as expressly
modified herein all of the terms and conditions of the Lease shall remain in
full force and effect and the


 


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parties shall otherwise comply in all respects with
the Lease through the Termination Date as hereinafter defined.


 


2.                                       Termination of Lease. CARR and PROXIM hereby mutually agree that,
conditioned upon the satisfaction or waiver of all of the conditions set forth
in Section 3 below, the Lease will permanently and irrevocably terminate
as of June 15, 2005 (the “Termination Date”). PROXIM shall continue to
perform all of the obligations required to be performed by PROXIM under the
Lease prior to the termination of the Lease on the Termination Date. PROXIM
shall vacate the Premises on or before 5:00 p.m. on the Termination Date
and deliver possession thereof to CARR vacant and in broom clean condition,
other than the Vitria Premises, and CARR agrees that the same shall satisfy
PROXIM’s surrender obligations in the Lease. In addition to all of the remedies
provided for herein and at law, if PROXIM fails to vacate the Premises as
agreed herein, then PROXIM WIRELESS shall pay CARR hold-over rent as provided
in the Lease for each month or any portion thereof that PROXIM remains in
possession of the Premises from and after June 15, 2005. The parties agree
that, except to the extent that the releases as set forth in Section 6 of
this Agreement become effective, the termination of the Lease shall not
extinguish, release or discharge PROXIM of its obligations under the Lease, and
notwithstanding the termination of the Lease, PROXIM shall remain liable for
obligations under the Lease and California law, including, but not limited to,
obligations arising under Section 1951.2 of the California Civil Code, if
any.


 


3.                                       Conditions Precedent to Lease Termination.


 


3.1                                 Concurrent with execution and delivery of
this Agreement and as separate and independent conditions precedent for the
benefit of CARR to the effectiveness of this


 


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Agreement and the documents executed
hereunder and the deliveries made hereunder and as consideration for CARR’s
agreement to terminate the Lease early, PROXIM must timely satisfy each and
every condition and/or obligation on its part to be satisfied as set forth in
this Section 3.1 below. If any of the following conditions do not occur,
then this Agreement shall automatically terminate and be of no further force or
effect.


 


3.1.1                        Concurrent
with PROXIM’s execution and delivery of this Agreement to CARR, PROXIM shall
pay to CARR the Base Rent and estimated Operating Cost Share Rent and Tax Share
Rent that comes due from June 1, 2005 through the Termination Date in the
amount of $246,593.48 (the “June Rent”), which payment shall constitute
full satisfaction of PROXIM’s obligation to pay rent under the Lease during
such period.


 


3.1.2                        Concurrent
with PROXIM’s execution and delivery of this Agreement to CARR, PROXIM shall
deliver to CARR the Stipulation for Entry of Judgment attached hereto as Exhibit B
(the “Stipulation”) which shall have been fully signed by PROXIM WIRELESS AND
PROXIM CORP and PROXIM’s legal counsel to support PROXIM’s promise to vacate
the Premises (other than the Vitria Premises).


 


3.1.3                        Concurrent
with PROXIM’s execution and delivery of this Agreement to CARR, PROXIM shall
pay CARR the sum of One Million and 00/100 Dollars ($1,000,000) in certified
funds or by wire transfer.


 


3.1.4                        Concurrent
with PROXIM’s execution and delivery of this Agreement to CARR, CARR and PROXIM
CORP shall enter into the New Lease.


 


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3.1.5                        Concurrent with PROXIM’s execution and delivery of this Agreement to CARR,
PROXIM shall transfer the Vitria Security Deposit (as defined below) to CARR.


 


3.1.6                        Concurrent with PROXIM’s execution and
delivery of this Agreement to CARR, PROXIM shall pay to CARR the following
amount as the security deposit under the New Lease: Seventy-One Thousand Two
Hundred Fifty and 00/100 Dollars ($71,250.00).


 


3.1.7                        All of the amounts payable by PROXIM to CARR
pursuant to Sections 3.1.1 through 3.1.6 above are collectively referred to
hereinafter as the “Payment Obligations.”


 


3.2                                 Concurrent with CARR’s execution and delivery
of this Agreement to PROXIM and as separate and independent conditions
precedent for the benefit of PROXIM to the effectiveness of this Agreement and
the documents executed hereunder and the deliveries made hereunder and as
consideration for PROXIM’s agreement to enter into this Agreement:


 


3.2.1                        CARR and PROXIM CORP shall enter into the New
Lease.


 


3.2.2                        CARR shall deliver possession of the New
Premises to PROXIM CORP immediately upon the mutual execution and delivery of
the New Lease by CARR and PROXIM CORP as provided in, and in the condition
required under, the New Lease.


 


4.                                       No Other Tenants; Vitria Sublease. PROXIM represents and warrants that, to
PROXIM’s best knowledge, based upon PROXIM’s acts (but with no representation
by PROXIM as to the acts of CARR), PROXIM WIRELESS is the sole lawful tenant
under the Lease.


 


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PROXIM further represents and warrants that
it has not sublet, assigned, conveyed, encumbered or otherwise transferred any
of its right, title or interest under the Lease or arising from its use or
occupancy of the Premises, and no other person, partnership, corporation or
other entity has any right, title or interest in the Lease or the Premises, or
the right to occupy or use all or any portion of the Premises, in cither case
arising through PROXIM, except for the Vitria Sublease. PROXIM will take all
steps reasonably requested by CARR not inconsistent with the terms of this
Agreement and without expending more than a nominal sum to effectuate
conversion of the Vitria Sublease to a direct lease with CARR as of the
Termination Date and PROXIM shall, immediately following the mutual execution
and delivery of this Agreement by CARR and PROXIM, instruct Vitria to commence
paying the Vitria Sublease rent to CARR as of June 1, 2005 and thereafter.
Further, the security deposit held by PROXIM under the Vitria Sublease in the
amount of $80,300.28 (the “Vitria Security Deposit”) shall be transferred to
CARR to hold as a security deposit under the Vitria Sublease concurrently with
the execution and delivery of this Agreement by PROXIM. Except as modified
herein, PROXIM WIRELESS shall continue to comply with all of its obligations
under the Vitria Sublease and the Sublease Consent and Agreement.


 


Notwithstanding
any contrary provision of the Vitria Sublease or the Sublease Consent and
Agreement, CARR shall be entitled to the payment of rent under the Vitria
Sublease for the period June 1-15, 2005 directly from Vitria. CARR and
PROXIM acknowledge that the June Rent payable by PROXIM to CARR pursuant
to Section 3.1.1 above includes the rent payable for the Vitria Premises
for the period June 1-15, 2005, and therefore, upon CARR’s receipt of the
payment from Vitria of the Vitria Sublease rent for June, 2005, CARR shall
promptly reimburse to PROXIM the Vitria Sublease rent for the period June 1-15,
2005. Alternatively, if Vitria pays


 


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PROXIM rather than CARR for the Vitria
Sublease rent for June, 2005, then PROXIM shall, promptly upon receipt of
Vitria’s payment, pay to CARR the Vitria Sublease rent for the period June 16-30,
2005. PROXIM agrees that Vitria’s payment of the Vitria Sublease rent for June,
2005 to CARR shall satisfy and
discharge Vitria’s obligation for paying rent under the Vitria Sublease for
June, 2005 to the full extent of such payments made to CARR.


 


Prior to the
Termination Date, CARR shall irrevocably make and communicate to Vitria the
election set forth in

Section 4.1(a) of the Sublease Consent and Agreement. CARR shall at all times
thereafter for the remainder of the term of the Vitria Sublease respect and
abide by such election.


 


All revenues,
income, receivables, costs, expenses and payables relating to the Vitria
Sublease (including, without limitation, rents payable and receivable,
Operating Costs Share Rent, Tax Share Rent, and subtenant reimbursements) shall
be prorated between CARR and PROXIM as of the Termination Date in a reasonable
and equitable manner consistent with the terms of this Agreement and the manner
of proration customarily employed in real estate transactions in Santa Clara
County, California. CARR and PROXIM, as the case may be, shall promptly pay
amounts due the other party in accordance with the terms hereof.


 


Rents and
other payments under the Vitria Sublease which have not yet been paid as of the
Termination Date shall be prorated as of the Termination Date. CARR shall have
no obligation to collect for PROXIM any rents or other charges from Vitria
applicable to periods prior to the Termination Date, nor shall CARR have any
obligation to litigate or declare a default under the Vitria Sublease by reason
of any such unpaid amounts applicable to periods prior to the Termination Date.
From and after the Termination Date, PROXIM shall only have the right to


 


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institute or continue any legal, equitable or
other action, suit, or arbitration or pursue any claim against Vitria for
unpaid rent owing for the period of June 1-15, 2005 under the Sublease.
Subject to the foregoing, from and after the Termination Date, PROXIM shall
have no right to institute or continue any legal, equitable or other action,
suit, or arbitration or pursue any claim against Vitria for any matter relating
to the Vitria Sublease, the Sublease Consent and Agreement, or the Vitria
Premises (other than a counterclaim, affirmative defense, or cross-complaint in
an action initiated by Vitria), except future claims of any third parties for
which PROXIM is entitled to defense and indemnity under the Vitria Sublease or
the Sublease Consent and Agreement or at law, or any third party subrogation
claim arising out of matters relating to the tenancy of Vitria for the period
on or prior to the Termination Date which may be brought against Vitria or
PROXIM and for which Vitria is responsible under the Vitria Sublease. In the
event that PROXIM has a claim against Vitria for delinquent rents which relate
to the period prior to the Termination Date, or in connection with PROXIM’s
right to payment from CARR for the Vitria Sublease rent for the period June 1-15,
2005, if applicable, then in determining PROXIM’s right to payments from CARR
for such amounts, any rents collected by CARR, if any, net of the costs of
collection (including attorneys’ fees), shall be applied first to amounts
currently due and then to amounts most recently overdue.


 


Subsequent to
the Termination Date, CARR and PROXIM shall each render periodic accountings to
the other of amounts received or paid by them subject to proration and, if such
accountings show any amounts owing from one party to the other, the party owing
such amount shall promptly pay it. CARR and PROXIM shall each have access to
the other’s books and records regarding the Vitria Sublease, on reasonable
notice during normal business hours, to the extent such books and records are
reasonably necessary in order to verify such accountings.


 


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PROXIM has not
received written notice of, and to PROXIM’s actual knowledge, without inquiry (i) there
are no uncured defaults by PROXIM under the Vitria Sublease, (ii) PROXIM
has received no notice of any pending, threatened or contemplated actions,
suits, arbitrations, claims or proceedings, at law or in equity, affecting the
Vitria Sublease or the Vitria Premises, and (iii) Vitria has not given any
notice to PROXIM of any defenses to, offsets or claims against rents payable or
any other obligations under the Vitria Sublease.


 


PROXIM hereby
represents and warrants to CARR as follows:


 


(1)  that
the Vitria Sublease (i) has been duly authorized and executed by PROXIM
WIRELESS, (ii) is in full force and effect according to the terms set
forth therein, and (iii) sets forth the entire agreement between PROXIM
and Vitria with respect to the Vitria Premises;


 


(2)  PROXIM
has not granted any tenant improvement allowance or other tenant allowance or
cash payment (e.g., refurbishment allowance or moving allowance) to Vitria
which has not been paid to or credited to Vitria prior to the date of this
Agreement;


 


(3)  All
of PROXIM’s obligations under the Vitria Sublease, which accrued prior to the
date of this Agreement, have been performed in accordance with the requirements
thereof;


 


(4)  Vitria
has not been released or discharged, voluntarily by PROXIM, from any future
obligation related to the Vitria Sublease;


 


(5)  Vitria
is in occupancy of the Vitria Premises;


 


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(6)  As of the
Termination Date, neither PROXIM’s interest in the Vitria Sublease nor any of
the rentals due or to become due under the Vitria Sublease shall be assigned,
encumbered or subject to any liens;


 


(7)  All prepaid rent
set forth in the Vitria Sublease has previously been applied to monthly base
rent payments due under the Vitria Sublease prior to the date of this
Agreement, and there is no remaining unapplied portion of any prepaid rent; and


 


(8)  To PROXIM’s actual
knowledge, without inquiry, Vitria is not now in default in the performance of
any covenant, agreement or condition contained in the Vitria Sublease, nor is
there now any fact or condition which, with the passage of time or the giving
of notice, or both, would constitute a default by Vitria under the Vitria
Sublease.


 


From and after the date of
this Agreement, through and including the Termination Date, PROXIM shall:


 


(a)                                  Not modify, extend, terminate or otherwise
change any of the terms, covenants or conditions of the Vitria Sublease, or
approve or disapprove of any assignment thereof, or enter into new subleases or
any other obligations or agreements affecting the Premises, or any portion
thereof, without the prior written consent of CARR in any such instance, which
consent may be withheld in CARR’s sole discretion;


 


(b)                                 Not accept from Vitria payment of rent for
any period after June, 2005 or apply any security deposit to rent or any other
sum due from, or on account of any default by, Vitria;


 


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(c)                                  Promptly notify CARR of any change with
respect to the Vitria Sublease, or of any event or circumstance which makes any
representation or warranty of PROXIM under this Section 4 untrue or
misleading in any material respect; and


 


(d)                                 Not approve or disapprove any change in any
of the terms, covenants or conditions of the Vitria Sublease, or the assignment
or termination thereof, and shall not approve or disapprove any new subleases
of the Premises, or any portion thereof, or any new sub-subleases of the Vitria
Premises, without the prior written consent of CARR in any such instance, which
consent may be withheld in CARR’s sole discretion.


 


In addition to PROXIM’s
indemnity obligations as set forth in the Lease and elsewhere in this
Agreement, and notwithstanding any contrary provision of this Agreement, PROXIM
hereby agrees to indemnify, protect, defend and hold CARR and its officers,
directors, partners, agents, attorneys, and employees harmless from and against
any and all claims, losses, liabilities, actions, causes of action, penalties,
demands, and expenses of any kind or nature, including reasonable attorneys’
fees and costs, arising out of, resulting from, or relating to any breach by
PROXIM, on or prior to the Termination Date, of any of PROXIM’s obligations
under the Vitria Sublease, provided that PROXIM’s liability under the express
indemnity set forth in this paragraph shall not exceed Twenty-Five Thousand
Dollars ($25,000.00) in the aggregate.


 


4A.  Letter of Credit. CARR and PROXIM
hereby acknowledge and agree that, in accordance with the terms of Section 22
of the Lease, CARR currently holds an Irrevocable Standby Letter of Credit, namely
Irrevocable Standby Letter of Credit No. SVBSF002376 in the amount of
$466,106.50 (the “Letter of Credit”), which Letter of Credit was issued by
Silicon Valley Bank (the “LC Lender”). PROXIM acknowledges that neither the
Letter of Credit nor the


 


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proceeds thereof are an asset of PROXIM, and
in the event of a bankruptcy action filed by or against PROXIM, they shall not
be part of the Tenant’s estate. Immediately upon the full execution and
delivery of this Agreement by CARR and PROXIM, PROXIM shall cause the Letter of
Credit to be amended by the LC Lender (the “LC Amendment”) and shall deliver
the LC Amendment to CARR within three (3) business days after the full
execution and delivery of this Agreement by CARR and PROXIM. The LC Amendment shall (i) incorporate
into the Letter of Credit a new certification which may be given by CARR to the
LC Lender for the purpose of drawing upon the Letter of Credit, and (ii) provide
that such certification, if given by CARR, shall be given independently of (and
not in conjunction with or in addition to) any other certifications presently
required in the current form of the Letter of Credit (prior to any amendment
pursuant to this Section 4A) for drawings to be made by CARR. The new
certification provided for in the LC Amendment shall be consistent with the
provision set forth in Exhibit C attached hereto. In addition, the form
and content of such LC Amendment shall be subject to CARR’s prior written
approval, and such LC Amendment shall be obtained by PROXIM at PROXIM’s sole
cost. Immediately following delivery of the LC Amendment by PROXIM to CARR in
compliance with the foregoing provisions, CARR shall have the right to draw
down upon the entire amount of the Letter of Credit, and keep the proceeds of
such draw for CARR’s own account. CARR shall use commercially reasonable
efforts to draw upon the full amount of the Letter of Credit immediately
following the delivery by PROXIM to CARR of the LC Amendment in compliance with
the foregoing terms of this Section 4A, and PROXIM shall exercise
commercially reasonable efforts to assist CARR in its effort to draw upon the
full amount of the Letter of Credit (without expending more than a nominal sum
and in a manner not inconsistent with the terms of this Agreement), including, but
not limited to, by confirming to the


 


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LC Lender that CARR has the right to draw on
the full amount of the Letter of Credit, and by executing any and all documents
reasonably required by either CARR or the LC Lender in connection with any draw
request and taking any other actions necessary to facilitate the draw on the
Letter of Credit. Any costs or fees charged by the LC Lender in connection with
CARR’s draw thereof (the “LC Fees”) shall be reimbursed by PROXIM to CARR
promptly upon CARR’s submission of an invoice to PROXIM for such amounts,
provided that any such fees charged by the LC Lender for CARR’s draw (as
opposed to the fees charged for the LC Amendment, which shall be payable by
PROXIM in any event) which equal less than Five Hundred Dollars ($500.00) in
the aggregate shall be payable by CARR without reimbursement from PROXIM. If,
despite using commercially reasonable efforts to draw the entire amount of the
Letter of Credit, CARR is unable to do so by May 20, 2005, CARR shall
promptly inform PROXIM of such failure and demand a cash payment from PROXIM in
the amount of the unsatisfied draw, which amount shall be payable by PROXIM to
CARR within five (5) business days of CARR’s request therefor (the “LC
Payment”). PROXIM’s failure to timely pay such amount shall constitute the
failure of a Release Condition to occur, which shall cause CARR’s release under
Section 6.2 below to be ineffective and shall entitle CARR to the rights
and remedies set forth in Sections 6.2 and 7 below. Concurrently with PROXIM’s
making of the LC Payment, CARR shall return the Letter of Credit to PROXIM.
Notwithstanding any contrary provision of the Lease or this Agreement, PROXIM
shall not be obligated to replenish the Letter of Credit pursuant to Section 22
of the Lease upon CARR’s draw on the Letter of Credit pursuant to this Section 4A,
provided that the Lease terminates pursuant to this Agreement.


 


4B.  Delivery of New Premises. CARR shall
deliver possession of the New Premises to PROXIM CORP immediately upon the
mutual execution and delivery of the New Lease by


 


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CARR and PROXIM CORP, as provided in, and in
the condition required under, the New Lease. Notwithstanding any contrary
provision of this Agreement, the condition precedent set forth in Section 3.2.2
above and CARR’s obligation under this Section 4B shall be deemed timely
satisfied if CARR delivers possession of the New Premises within three (3) business
days following the date of the mutual execution and delivery of the New Lease
by CARR and PROXIM CORP.


 


5.                                       Default.
Upon any default by PROXIM of its obligation to vacate the Premises under this
Agreement, subject to Section 3.2 above, in addition to all other remedies
available to CARR under this Agreement, CARR shall have the right to entry of
judgment on the terms and conditions set forth in the Stipulation.


 


6.                                       Releases.


 


The terms of Section 6.2
below shall be effective, if at all, only upon the occurrence of all of the
following conditions within the notice and cure periods set forth in Section 7
below, unless the failure to occur was due to CARR’s breach of its obligations
under this Agreement: (i) the timely satisfaction of all of the conditions
set forth in Section 3.1 above, (ii) PROXIM’s vacation and surrender
of the Premises (excluding the Vitria Premises) prior to 5:00 p.m. on the
Termination Date in accordance with the terms of Section 2 above, subject
to Section 3.2 above, and (iii) the receipt by CARR of the LC
Amendment, the LC Fees, and the Letter of Credit Proceeds or the LC Payment, in
accordance with and by the deadlines set forth in Section 4A above,
provided CARR has complied with its obligations under Section 4A above
(the foregoing conditions set forth in items (i) through (iii) above
are referred to herein as the “Release


 


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Conditions”). The terms of Section 6.1
below shall be effective upon mutual execution of this Agreement.


 


6.1                                 Release
by PROXIM. Subject to Section 3.2, except with respect to the
obligations arising under this Agreement and the New Lease, or any of their
exhibits, or any other documents contemplated hereunder, PROXIM, on behalf of
itself and each of its successors, heirs, assigns, partners, officers,
directors, shareholders, trustees, beneficiaries, insurers, and persons and
entities holding beneficial interests, releases and absolutely and forever
discharges CARR, and its successors, heirs, assigns, agents, employees,
representatives, partners, officers, directors, shareholders, parent companies,
trustees, beneficiaries, insurers and persons and entities holding beneficial
interests from all claims, demands, causes of action, whether or not now known,
suspected or claimed, which as of the date hereof, the Termination Date, or
thereafter, it ever had, now has, claims to have had, or may have had relating
to the Lease and/or the Premises against CARR, including, but not limited to,
any obligations of CARR to refund to PROXIM or credit against any Rent due
under the Lease any overpayment by PROXIM for increases in Operating Cost Share
Rent and Tax Share Rent in accordance with the annual reconciliation of
Operating Costs and Taxes as set forth in the Lease, except future claims of
any third party for which PROXIM is entitled to defense and indemnity under the
Lease or at law or any third party subrogation claim arising out of matters
relating to the Lease which may be brought against PROXIM for which CARR is
responsible under the Lease.


 


PROXIM
acknowledges that it is familiar with Section 1542 of the California Civil
Code which provides as follows:


 


“A general
release does not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of


 


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executing the release, which
if known by him or her must have materially affected his or her with the debtor.”


 


PROXIM waives and
relinquishes any rights it may have under Section 1542 to the full extent
it may lawfully waive such rights.


 


6.2.                              Contingent Release by CARR. Except with respect to the obligations
arising under this Agreement or any of its exhibits or any other documents
contemplated hereunder, CARR, on behalf of itself and each of its successors,
heirs, assigns, partners, officers, directors, shareholders, trustees,
beneficiaries, insurers, and persons and entities holding beneficial interests,
releases and absolutely and forever discharges PROXIM, and its respective
successors, heirs, assigns, agents, employees, representatives, partners,
officers, directors, shareholders, parent companies, trustees, beneficiaries,
insurers and persons and entities holding beneficial interests from all claims,
demands, causes of action, whether or not now known, suspected or claimed,
which as of the date hereof, the Termination Date, or thereafter, it ever had,
now has, claims to have had, or may have had against PROXIM relating to the
Lease and/or the Premises, with the exception of (i) the future claims of
any third party for which CARR is entitled to defense and indemnity under the
Lease or the Sublease Consent and Agreement, or at law or any third party
subrogation claim arising out of matters relating to the tenancy of PROXIM
which may be brought against CARR and/or PROXIM subsequent to the date of this
Agreement for which PROXIM is responsible under the Lease, or (ii) except
as otherwise provided in this Agreement.


 


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CARR acknowledges that it is
familiar with Section 1542 of the California Civil Code which provides as
follows:


 


“A general release does not
extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which if known by him or her
must have materially affected his or her with the debtor.”


 


CARR waives and relinquishes
any rights it may have under Section 1542 to the full extent it may
lawfully waive such rights.


 


CARR’s release pursuant to
this Section 6.2 shall be effective so long as no action, litigation,
action or other proceeding (collectively, the “Action”) is filed or brought
against CARR under 11 U.S.C. Section 544, 545, 546, 547, 548 or 550, or
any other similar State or federal law in connection with a bankruptcy,
assignment for the benefit of creditors, or other similar proceeding filed by
or against PROXIM, seeking the avoidance or return of any payments or transfers
to CARR made under the terms of this Agreement, including the Payment
Obligations, the LC Fees, the Letter of Credit Proceeds, or the LC Payment
(collectively, the “Transfers”), and which results in CARR being obligated to
pay any such amount to anyone by reason of a judgment entered in any such
action, in settlement of any claims, or otherwise. In the event any Action is
filed against CARR seeking the avoidance or return of any of the Transfers
which results in CARR being obligated to pay any such amount to anyone by
reason of a judgment entered in any such action, in settlement of any claims,
or otherwise, CARR’s release shall become null and void and CARR shall be
entitled to assert against PROXIM WIRELESS all of CARR’s rights and remedies as
set forth in Article 14 of the Lease, as amended hereby, and the right to
recover damages from PROXIM WIRELESS as provided in California Civil Code Section 1951.2,
in addition to any other rights and remedies it has under either the Lease or


 


17





















 


State or federal law, but taking into
account, in any case, amounts previously paid and consideration given that are
not recovered in the Action, and in such event it is expressly understood and
agreed by the parties hereto that this Agreement shall not be construed as a
substitution of an agreement for an obligation, nor as a novation or the
substitution of a contract for an obligation, but instead as a mere mechanism
employed by the parties hereto to permit a procedure whereby CARR and PROXIM
are afforded the benefits set forth herein.


 


7.                                       Default
by PROXIM; CARR’s Remedies. In the event that PROXIM fails to cause all of
the Release Conditions to occur and such failure continues for a period of
three (3) days after written notice thereof, unless such failure was due
to CARR’s breach of its obligations under this Agreement, or in the event of
the filing of an Action which results in CARR being obligated to pay any
amounts to anyone by reason of a judgment entered in any such action, in
settlement of claims or otherwise as set forth in Section 6.2 above,
PROXIM shall be deemed to be in default (the “Default”) of this Agreement, and
CARR shall have all of its rights and remedies available at law or in equity.
Upon a Default by PROXIM, the termination of the Lease as set forth in Section 2
of this Agreement shall be deemed to have been a termination of the Lease by
CARR as a result of an event of default under Article 14 of the Lease, and
without regard to any notice requirements or cure rights contained therein,
CARR shall have all of its rights and remedies at law or in equity, including
all of the rights and remedies set forth in Article 14 of the Lease, as
amended hereby, and the right to recover damages from PROXIM WIRELESS as
provided in California Civil Code Section 1951.2. The amount of any such
damages shall be reduced, however, by the aggregate amount of all sums paid by
PROXIM and retained by CARR under this Agreement. PROXIM acknowledges and
agrees that the


 


18





















 


conversion of the Vitria Sublease to a direct
lease with CARR and CARR’s consummation of the New Lease satisfy CARR’s
mitigation obligations under California Civil Code Section 1951.2.


 


8.                                       Consequential
Damage Liability. PROXIM acknowledges that if PROXIM does not deliver exclusive
possession of the Premises as herein provided on or before the Termination
Date, except due to the fact that CARR has not tendered possession of the
premises pursuant to the New Lease to PROXIM CORP immediately upon the mutual
execution and delivery of the New Lease by PROXIM CORP and CARR (subject to Section 4B
above), CARR may incur substantial damages, costs and losses. PROXIM
understands and agrees that PROXIM’s failure to deliver possession of the
Premises as provided in this Agreement and to perform its other obligations
under this Agreement may cause CARR to be unable to fulfill its obligations to
certain third parties, which failure may cause material damage to CARR, and
cause CARR to incur consequential damages in addition to any and all other
damages provided herein or at law or in equity.


 


9.                                       Representations
and Warranties.


 


9.1                                 By
Each Party. Each party hereto represents and warrants to each other party
hereto as follows:


 


9.1.1                        Lease
in Effect. The Lease is in full force and effect.


 


9.1.2                        Authority
and Enforceability. Each party has the full right, legal power and actual
authority to enter into this Agreement and to consummate the transactions
contemplated hereby, and this Agreement, when executed and delivered by the
parties hereto, will be valid and binding and enforceable against such party in
accordance with its terms.


 


19





















 


9.1.3                        Advice of Counsel. Each party (i) has had the opportunity
to seek the advice of counsel concerning this Agreement, the New Lease, and the
Stipulation, and the transactions contemplated hereby, including without
limitation the release of claims set forth in Section 6 above, (ii) has
been fully advised of the meaning and effect of this Agreement, the New Lease,
and the Stipulation, and such transactions, and (iii) has executed this
Agreement, the New Lease, and the Stipulation, after independent investigation
without fraud, duress or undue influence and without reliance on any
representation, warranty, promise or inducement not specifically set forth in
this Agreement, the New Lease, and the Stipulation.


 


9.2                                 Representations by PROXIM. PROXIM hereby represents and warrants to
CARR as follows: To PROXIM’s actual knowledge, without inquiry, there are no
defaults by CARR under the Lease, and no circumstance has occurred, which, but
for the expiration of an applicable grace period, would constitute an event of
default by CARR under the Lease. PROXIM, to its actual knowledge, without
inquiry, has no defenses or rights of offset against CARR. PROXIM represents
and warrants as of the date hereof that there are no mechanic’s liens or other
liens that have been placed against any portion of the Premises as a result of
any act or omission on the part of PROXIM, its predecessors, contractors,
agents, employees, successors or assigns. PROXIM acknowledges that CARR has
reviewed and relied upon PROXIM CORP’s representations set forth in its filings
with the United States Securities and Exchange Commission, including, but not
limited to, its 10-K and 10-Q filings, in connection with CARR’s agreement to
enter into this Agreement and the New Lease. PROXIM further represents and
warrants that the Vitria Sublease is in full force and effect, that Vitria has
no rights of offset under the Vitria Sublease, has not prepaid rent for more
than the month of May, 2005 in advance, and has made no claim against PROXIM
which, but for the expiration of an applicable grace


 


20





















 


period, would constitute an event of default by
PROXIM under the Vitria Sublease. PROXIM also represents and warrants that it
has not dealt with any broker or
finder in connection with a new sublease for any portion of the Premises other
than Colliers Seeley; and hereby agrees to defend, indemnify and hold CARR
harmless from and against any and all claims (including, but not limited to,
reasonable attorneys fees and costs) of any broker or other party (including,
but not limited to, Colliers Seeley) for any commission or other compensation
owing to Colliers Seeley arising through and under PROXIM or arising out of any
inaccuracy in the foregoing representation and warranty. PROXIM shall, at the
request of CARR provide corporate resolutions regarding the execution of this
Agreement and all agreements contemplated herein.


 


9.3                                 Representations by CARR. CARR represents and warrants that CARR owns
fee simple title to the Premises and is the holder of the entire interest of
the landlord under the Lease and that the representations made by CARR in the
Lease that the Premises are not subject to any ground lease or mortgage remain
true as of the Termination Date.


 


9.4                                 Survival of Representations. Notwithstanding the termination of the
Lease and the release of liability provided for herein, the representations and
warranties of each party as set forth above, CARR’s and PROXIM’s indemnities as
set forth above and CARR’s obligations under the third paragraph of Section 4
above, shall survive the early termination of the Lease and each party shall be
liable to the other party for any inaccuracy or breach of its representations,
warranties, obligations or indemnities.


 


10.                                 Successors and Assigns. All covenants and agreements herein shall
bind and inure to the benefit of the respective heirs, trusts, officers,
directors, agents, related and affiliated entities, executors, administrators,
successors and assigns of the parties hereto.


 


21





















 


11.                                  Gender
and Number. The masculine gender and singular number shall include the
feminine, neuter and plural, as the context may demand.


 


12.                                 Entire
Agreement. This Agreement, the New Lease, and the Stipulation constitute
the entire agreement and understanding among the parties with respect to the
subject matter herein, and supersede and replace any prior agreements and
understandings, whether oral or written, between and among them with respect to
such matters. In the event of any conflict or inconsistency between any
provision of the Lease and any provision of this Agreement, this Agreement
shall govern and prevail. This Agreement may not be amended or altered except
by the written agreement of all the parties.


 


13.                                 Neutrality
of Agreement. The parties hereto agree that this Agreement will be deemed
to have been drafted jointly by the parties and, in the event of a dispute,
shall not be construed in favor of or against any party by reason of such party’s
contribution to the drafting of this Agreement.


 


14.                                 Execution
By Facsimile and in Counterparts. This Agreement may be executed in
counterparts, and a copy or facsimile of this Agreement and the signatures
thereto may be used in lieu of and for any purpose.


 


15.                                 Independent
Rights and Obligations. A breach by one party shall not affect the rights
of any non-breaching party.


 


16.                                 Severability.
The provisions of this Agreement shall be deemed severable, and the invalidity
or unenforceability of any one or more of the provisions hereof shall not
affect the validity and enforceability of the other provisions hereof.


 


22





















 


17.                                 Waivers. No waiver of any of the provisions of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision of this Agreement,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver of any provision of this Agreement shall be binding on the parties
hereto unless it is executed in writing by the party making the waiver.


 


18.                                 Further Assurances. Each party hereto will execute and deliver
or cause to be executed and delivered such further documents, and will take
such other actions, as any other party hereto reasonably requests to effect the
purposes and transactions contemplated by this Agreement.


 


19.                                  No Third Party Beneficiaries. None of the provisions of this Agreement
shall be for the benefit of, nor shall they be enforceable by, any third-party
beneficiary.


 


20.                                 Headings. The Section and Subsection headings used herein are for the
convenience of reference only, are not a part of this Agreement and are not to
affect the construction of, or be taken into consideration in interpreting, any
provision of this Agreement.


 


21.                                 Attorneys’ Fees. If any party hereto commences an action
against any other party hereto because of a breach by such other party of any
of the terms hereof, or in order to interpret or enforce the terms hereof, the
prevailing party in such action shall be entitled, in addition to any other
relief granted, to all costs and expenses incurred by such prevailing party in
connection with such action, including, without limitation, all reasonable
attorneys’ fees, costs and expenses.


 


22.                                 Time of Essence. Time is of the essence of each and every
provision of this Agreement.


 


23





















 


23.                                 Confidentiality.
Subject to PROXIM’s disclosure to its potential investors, current or potential
lenders, and potential business partners (collectively, the “Permitted
Disclosure Parties”), PROXIM represents and agrees that it will keep the terms
of this Agreement, the New Lease, and the Stipulation completely confidential,
including, but not limited to, agreeing that the fact of and the terms of this
Agreement, the New Lease, and the Stipulation have not and shall not be
included in any press release. PROXIM further represents and agrees that it
will not hereafter disclose (except as required by law) any information
concerning the fact of or terms of this Agreement, the New Lease, or the
Stipulation to any person, other than its attorney(s), tax advisor(s) and
Permitted Disclosure Parties, provided each is informed of and agrees to be bound
by this confidentiality provision. Nothing in this paragraph shall prohibit any
party or his or her/its counsel from disclosing the fact of or terms of this
Agreement, the New Lease, or the Stipulation as part of PROXIM’s filings with
the United States Securities and Exchange Commission, or otherwise to a court,
arbitrator, administrative agency or other tribunal of appropriate jurisdiction
for the purpose of effectuating the provisions of this Agreement, the New
Lease, and the Stipulation, or as otherwise required by law or court order.


 


24.                                 Governing
Law. This Agreement is made and shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, without regard
to the conflict of laws principles thereof, as the same apply to agreements
executed solely by residents of California and wholly to be performed within
California.


 


25.                                 Notices.
All notices, requests, demands, statements, designations, approvals or other
communications (collectively, “Notices”) given or required to be given by
either party to the other hereunder or by law shall be in writing, shall be (A) sent
by United States certified or


 


24





















 


registered mail, postage prepaid, return
receipt requested (“Mail”), (B) delivered by a nationally recognized
overnight courier, or (C) delivered personally. Any Notice shall be sent,
transmitted, or delivered, as the case may be, to PROXIM at the address set forth
below, or to such other place as PROXIM may from time to time designate in a
Notice to CARR, or to CARR at the addresses set forth below, or to such other
places as CARR may from time to time designate in a Notice to PROXIM. If
personally delivered, such Notice shall be effective upon delivery. If mailed,
Notice shall be deemed given on the third business day after it is deposited in
the mail in accordance with the foregoing. Any correctly addressed Notice that
is refused, unclaimed or undelivered because of an act or omission of the party
to be notified shall be considered to be effective as of the first date that
the Notice was refused, unclaimed or considered undeliverable by the postal
authorities, messenger, officer of the law or overnight delivery service. As of
the date hereof, any Notices must be sent, transmitted, or delivered, as the
case may be, to the following addresses:


 


	
   

  	
  CARR:

  
	
   

  	
   

  
	
   

  	
  CarrAmerica Realty Corporation

  
	
   

  	
  1810 Gateway Drive, Suite 150

  
	
   

  	
  San Mateo, CA 94404

  
	
   

  	
  Attention: Market Officer

  



 


25





















 


with a copy to:


 


Allen Matkins
Leck Gamble & Mallory LLP 


1901 Avenue of
the Stars, Suite 1800 


Los Angeles,
California 90067


Attention:
Anton N. Natsis, Esq.


 


PROXIM:


 


Before and On
the Termination Date:


Proxim
Corporation and Proxim Wireless Networks, Inc.


935 Stewart Dr.


Sunnyvale, CA
94085


Attn: Chief
Financial Officer and


Attn: General
Counsel


 


After the
Termination Date:


Proxim
Corporation and Proxim Wireless Networks, Inc.


2115 O’Nel
Drive


San Jose, CA
95131


Attn: Chief
Financial Officer and


Attn: General
Counsel


 


26





















 


At all times, with a copy
to: 


Wilson Sonsini Goodrich &
Rosati


650 Page Mill Road


Palo Alto, CA 94304 


Attn: Susan P. Reinstra


 


IN WITNESS WHEREOF, this
Agreement has been executed as of the day and year first above written.


 


	
  CARRAMERICA REALTY OPERATING

  	
   

  	
  PROXIM WIRELESS NETWORKS, INC., a

  
	
  PARTNERSHIP, L.P.,

  	
   

  	
  Delaware corporation

  
	
  a Maryland corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its

  	
   

  	
   

  	
   

  	
   

  	
  Its

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  PROXIM CORPORATION, a Delaware

  corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its

  	
   

  	
   

  



 


27





















 


EXHIBIT A


 


NEW LEASE


 


********************


 


LEASE


 


BAYSHORE
CENTRE


 


********************


 


Between


 


PROXIM CORPORATION


(Tenant)


 


and


 


CARRAMERICA REALTY
OPERATING PARTNERSHIP, L.P.


(Landlord)


 


NET LEASE


 


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  LEASE
  AGREEMENT

  	
   

  
	
  2.

  	
  RENT

  	
   

  
	
  3.

  	
  PREPARATION AND
  CONDITION OF PREMISES; TENANT'S POSSESSION; REPAIRS AND MAINTENANCE

  	
   

  
	
  4.

  	
  SERVICES AND UTILITIES

  	
   

  
	
  5.

  	
  ALTERATIONS AND REPAIRS

  	
   

  
	
  6.

  	
  USE
  OF PREMISES

  	
   

  
	
  7.

  	
  GOVERNMENTAL
  REQUIREMENTS AND BUILDING RULES

  	
   

  
	
  8.

  	
  WAIVER OF
  CLAIMS; INDEMNIFICATION; INSURANCE

  	
   

  
	
  9.

  	
  FIRE AND OTHER CASUALTY

  	
   

  
	
  10.

  	
  EMINENT DOMAIN

  	
   

  
	
  11.

  	
  RIGHTS RESERVED TO LANDLORD

  	
   

  
	
  12.

  	
  EVENTS OF DEFAULT

  	
   

  
	
  13.

  	
  LANDLORD REMEDIES

  	
   

  
	
  14.

  	
  SURRENDER

  	
   

  
	
  15.

  	
  HOLDOVER

  	
   

  
	
  16.

  	
  SUBORDINATION
  TO GROUND LEASES AND MORTGAGES

  	
   

  
	
  17.

  	
  ASSIGNMENT AND SUBLEASE

  	
   

  
	
  18.

  	
  CONVEYANCE BY LANDLORD

  	
   

  
	
  19.

  	
  ESTOPPEL CERTIFICATE

  	
   

  
	
  20.

  	
  SECURITY DEPOSIT

  	
   

  
	
  21.

  	
  Intentionally omitted

  	
   

  
	
  22.

  	
  NOTICES

  	
   

  
	
  23.

  	
  QUIET POSSESSION

  	
   

  
	
  24.

  	
  REAL ESTATE BROKERS

  	
   

  
	
  25.

  	
  MISCELLANEOUS

  	
   

  
	
  26.

  	
  UNRELATED BUSINESS INCOME

  	
   

  
	
  27.

  	
  BUILDING RENOVATIONS

  	
   

  
	
  28.

  	
  HAZARDOUS SUBSTANCES

  	
   

  
	
  29.

  	
  EXCULPATION

  	
   

  
	
  30.

  	
  COMMUNICATIONS AND
  COMPUTER LINES

  	
   

  
	
  31.

  	
  SATELLITE DISH

  	
   

  
	
  32.

  	
  REDUCTION OPTION

  	
   

  



 


i





















 


LEASE


 


THIS LEASE (the “Lease”)
is dated as of May 10, 2005 (for reference purposes only) between CARRAMERICA
REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (“Landlord”)
and the Tenant as named in the Schedule below. The term “Project”
means the building, the land appurtenant thereto (“Land”), and other
improvements located thereon commonly known as “Bayshore Centre”, located in
San Jose, California. The “Premises” means that portion of the Project
leased to Tenant and described in the Schedule and outlined on Exhibits
A-1 and A-2. The building in which the Premises are located shall be
referred to herein as the “Building”. The following schedule (the “Schedule”)
is an integral part of this Lease. Terms defined in this Schedule shall have
the same meaning throughout the Lease.


 


SCHEDULE


 


1.            Tenant: PROXIM CORPORATION, a Delaware corporation


 


2.            Premises: Suite 200 in the Building, which shall
be comprised of (a) the unhatched portion of the first floor of the
Building shown on Exhibit A-1 attached hereto and (b) the entire
second floor of the Building (as outlined on Exhibit A-2 attached
hereto)


 


3.              Building: 2115 O’Nel Drive, San Jose, California


 


4.            Rentable Square Footage of the
Premises: Approximately
Seventy-Four Thousand Nine Hundred Seventy-Nine (74,979) rentable square feet


 


5.            Tenant’s Proportionate Share: 79.03% (based upon a total of 94,874
rentable square feet in the Building)


 


6.            Lease Deposit: Prepaid Rent equal to Sixty-Three Thousand
Seven Hundred Thirty-Two and 15/100 Dollars ($63,732.15) and Security Deposit
equal to Seventy-One Thousand Two Hundred Fifty Dollars ($71,250.00), totaling
One Hundred Thirty-Four Thousand Nine Hundred Eighty-Two and 15/100 Dollars
($134,982.20)


 


7.            Permitted Use: General office, storage and shipping of
products, assembly, repair and testing of products, research, testing and
demonstration laboratory, product research and development, marketing and
non-retail sales, customer service and support, and light electronics
manufacturing


 


8.              Tenant’s Real Estate Broker for
this Lease: None


 


9.              Landlord’s Real Estate Broker for
this Lease: None 


 


10.            Tenant Improvements, if any: None


 


11.            Commencement Date: June 15, 2005


 


ii





















 


Rent
Commencement Date: July 1, 2005


 


12.         Term/Termination Date: The Term of this Lease shall be for three (3) years commencing on
the Commencement Date and expiring on the calendar day preceding the third (3rd)
anniversary of the Commencement Date (the “Termination Date”); provided,
however, that if the Commencement Date shall occur on a date other than the
first day of a calendar month, the Termination Date shall be the last day of
the calendar month in which the third (3rd) anniversary of the
Commencement Date occurs.


 


13.          Parking Stalls: 285 unassigned stalls


 


14.          Base Rent:


 


	
  Period

  	
   

  	
  Monthly

  Base Rent

  	
   

  
	
  Rent Commencement Date – 12th full calendar month after
  the Rent Commencement Date

  	
   

  	
  $

  	
  63,732.15

  	
   

  
	
  13th – 24th full calendar months after the Rent
  Commencement Date

  	
   

  	
  $

  	
  67,481.10

  	
   

  
	
  25th full calendar month after the Rent Commencement Date –
  Termination Date

  	
   

  	
  $

  	
  71,230.05

  	
   

  



 


15.          Reduction Option: See Section 32


 


Exhibit A-1 - PLAN OF
THE PREMISES – FIRST FLOOR


Exhibit A-2 - PLAN OF
THE PREMISES –  SECOND
FLOOR


Exhibit A-3 - PLAN OF
THE REMAINDER PREMISES – FIRST FLOOR


Exhibit B - RULES AND
REGULATIONS


Exhibit C –
INTENTIONALLY OMITTED


Exhibit D — COMMENCEMENT DATE CONFIRMATION (see Section 1.1)


Exhibit E –
ENVIRONMENTAL QUESTIONNAIRE


Exhibit F – GROUND
LEASES AND MORTGAGES


 


iii





















 


1.             LEASE
AGREEMENT. On the terms stated in this Lease, Landlord
leases the Premises to Tenant, and Tenant leases the Premises from Landlord,
for the Term beginning on the Commencement Date and ending on the Termination
Date unless extended or sooner terminated pursuant to this Lease.


 


1.1           Commencement Date. The Commencement Date of this Lease is the
date set forth in the Schedule. This Lease shall be a binding contractual
obligation effective upon execution and delivery hereof by Landlord and Tenant,
notwithstanding the later commencement of the Lease Term. In the event Landlord
fails to deliver possession of the Premises vacant and otherwise in the
condition required hereunder by May 15, 2005, then Tenant may, by written
notice to Landlord delivered at any time before Landlord delivers possession of
the Premises to Tenant, terminate this Lease. Upon any such termination,
Landlord shall promptly return to Tenant the Security Deposit.


 


1.2           Termination Date. The Termination Date of this Lease is the
date set forth in the Schedule.


 


1.3           Early Occupancy. During the period commencing on the date on
which this Lease is executed by both parties and ending on the Commencement
Date (the “Early Occupancy Period”), Tenant shall be permitted to enter
the Premises for the purpose of installing furniture, trade fixtures, equipment
and cabling, preparing the Premises for occupancy and occupying the Premises,
provided that (a) Tenant’s early entry does not interfere with Landlord’s
performance of Landlord’s Work (as defined in Section 3. l(a) below),
(b) prior to Tenant’s entry in the Premises, Tenant shall furnish to
Landlord certificates of insurance satisfactory to Landlord evidencing Tenant’s
compliance with the requirements of Section 8.3 below, and (c) Tenant’s
work during the Early Occupancy Period shall comply with the requirements of Section 5
below. Tenant’s occupancy of the Premises during the Early Occupancy Period
shall be subject to all of the terms, covenants and conditions of this Lease,
except that Landlord agrees, subject to the last sentence of this Section 1.3,
that Tenant’s obligation to pay Base Rent, Operating Cost Share Rent and Tax
Share Rent (as such terms are defined in Sections 2.1(a) through 2.1(c) below)
during the Early Occupancy Period shall be waived. In addition, Tenant shall
pay the cost of all utilities and other services provided to the Premises prior
to the Commencement Date which are required by reason of Tenant’s early
occupancy.


 


2.             RENT.


 


2.1           Types of Rent. Tenant shall pay the following Rent in the
form of a check to Landlord at the following address:


 


CarrAmerica Realty Operating
Partnership, L.P.

t/a Bayshore Centre

P.O. Box 642922

Pittsburgh, PA 15264-2922


 


1





















 


or by wire transfer as follows:


 


	
  Account Name: 

  	
  CarrAmerica Realty Operating Partnership, L.P.

  
	
   

  	
  t/a Bayshore Centre

  
	
  Bank Name: 

  	
  PNC Bank

  
	
  Transit Number: 

  	
  043-000-096

  
	
  Account Number: 

  	
  1004339188

  
	
  Notification:

  	
  Lease Administration (CarrAmerica Realty Operating Partnership, L.P. re
  Proxim Corporation) 

  
	
  Telephone:

  	
  (408) 544-9660

  



 


or in such other manner as
Landlord may notify Tenant.


 


(a)           Beginning on the Rent Commencement Date, Base
Rent in monthly installments in advance, payable on or before the first day
of each month of the Term in the amount set forth on the Schedule.
Notwithstanding the foregoing, on or before the Commencement Date, Tenant shall
pay to Landlord the Prepaid Rent set forth in Item 6 of the Schedule, which
shall be applied to the first monthly installment of Base Rent payable by
Tenant commencing on the Rent Commencement Date; provided, however, that if the
Rent Commencement Date is a day other than the first day of a calendar month,
then (i) the Prepaid Rent shall be applied to the Base Rent for the
partial month in which the Rent Commencement Date occurs and the next
succeeding calendar month, and (ii) the Prorated First Rent Payment (as
defined below) shall be payable by Tenant on or before the first full calendar
month following the Rent Commencement Date. The “Prorated First Rent Payment”
means the remaining amount of Base Rent payable by Tenant for the first full
calendar month following the Rent Commencement Date, after the Prepaid Rent is
applied as provided above. All such prorations shall be made on the basis of
the actual number of days in the applicable month.


 


(b)           Beginning on the Rent Commencement Date, Operating
Cost Share Rent equal to (i) Tenant’s Proportionate Share (as set
forth in the Schedule) of Operating Costs for the applicable Fiscal Year (as
defined in Section 2.3(e) below), plus (ii) management fees
equal to three percent (3%) of the total Rent payable under this Lease for the
applicable Fiscal Year, paid monthly in advance in an estimated amount. The
definition of Operating Costs and the method for billing and payment of
Operating Cost Share Rent are set forth in Sections 2.2, 2.3 and 2.4.


 


(c)           Beginning on the Rent Commencement Date, Tax
Share Rent equal to Tenant’s Proportionate Share of Taxes for the
applicable Fiscal Year, paid monthly in advance in an estimated amount. A
definition of Taxes and the method for billing and payment of Tax Share Rent
are set forth in Sections 2.2, 2.3 and 2.4.


 


As used in this Lease, the
term “Rent” means Base Rent, Operating Cost Share Rent, Tax Share Rent
and all other costs, expenses, liabilities, and amounts which Tenant is
required to pay under this Lease (“Additional Rent”), including any
interest for late payment. Tenant’s agreement to pay Rent is an independent
covenant, with no right of setoff, deduction or counterclaim of any kind.


 


2





















 


2.2           Payment of Operating Cost Share Rent and Tax
Share Rent.


 


(a)           Payment of Estimated Operating Cost Share
Rent and Tax Share Rent.


 


(i)            Before the Commencement Date and on or before
April 1 of each succeeding Fiscal Year, or as soon as reasonably possible
thereafter, Landlord shall give Tenant notice of Landlord’s estimate of the
payments to be made pursuant to Sections 2.1(b) and 2.1(c) above for
such Fiscal Year. Landlord may revise these estimates by written notice to
Tenant whenever it obtains more accurate information, such as the final real
estate tax assessment or tax rate for the Project, in which event subsequent
monthly payments by Tenant for such Fiscal Year shall be based upon such
revised estimate; provided, however, that Landlord may provide such revised
estimate no more than once in any calendar year.


 


(ii)           Within ten (10) days after receiving
Landlord’s notice regarding the original or revised estimate of the monthly
payments to be made pursuant to Sections 2.1(b) and 2.1(c) above for
a particular Fiscal Year, Tenant shall pay Landlord an amount equal to the
product of such estimated monthly payments (as set forth in Landlord’s notice),
multiplied by the number of months that have elapsed in the applicable Fiscal
Year to the date of such payment including the current month, minus any
payments on account thereof previously made by Tenant for the months elapsed.
On the first day of each month thereafter, Tenant shall pay Landlord the
estimated monthly payments as set forth in Landlord’s most recent notice, until
a new estimate becomes applicable.


 


(b)           Correction of Operating Cost Share Rent and
Tax Share Rent. Within one
hundred fifty (150) days after the close of each Fiscal Year or as soon after
such 150-day period as practicable, Landlord shall deliver to Tenant a
statement of (i) Operating Costs and Taxes for such Fiscal Year, and (ii) the
payments made by Tenant under Section 2.2(a) above for such Fiscal Year
(the “Annual Expense Statement”). If, on the basis of any Annual Expense
Statement, Tenant owes an amount that is less than the estimated payments
previously made by Tenant for the applicable Fiscal Year, Landlord, at its
election, shall either promptly refund the amount of the overpayment to Tenant
or, if this Lease is still in effect, credit such excess against Tenant’s
subsequent obligations to pay Operating Costs and Taxes. If, on the basis of
any Annual Expense Statement, Tenant owes an amount that is more than the
estimated payments previously made by Tenant for the applicable Fiscal Year,
Tenant shall pay the deficiency to Landlord within twenty (20) days after
Landlord’s delivery of such Annual Expense Statement to Tenant. The obligations
of Landlord and Tenant under this Section to promptly refund any
overpayment or pay any deficiency, as appropriate, shall survive the expiration
or earlier termination of this Lease.


 


2.3           Definitions.


 


(a)           Included Operating Costs.


 


(i)            “Operating Costs” means any expenses,
costs and disbursements of any kind other than Taxes, paid or incurred by
Landlord in connection with the ownership, management, maintenance, operation
and repair of the Project or any part thereof,


 


3





















 


and of the
personal property, trade fixtures, machinery, equipment, systems and apparatus
used in connection therewith, including, without limitation, (1) all costs
to operate, maintain, repair, replace, supervise, insure and administer the
common areas of the Project, including, without limitation, all costs of
resurfacing and restriping the parking areas of the Project; (2) all costs
and expenses paid or incurred by Landlord in connection with the obtaining of
insurance on the Premises, the Building and/or the Project or any part thereof
or interest therein, and any deductibles paid under policies of any such
insurance; (3) except for costs and expenses which are the sole
responsibility of Tenant pursuant to Section 3.3(b) below, all costs
paid or incurred by Landlord to perform Landlord’s Repair Obligations (as
defined in pursuant to Section 3.3(b) below), (4) the cost of
providing those services required to be furnished by Landlord under this Lease,
and (5) the cost of all electricity, water, gas, sewers, oil and other
utilities (collectively, “Utilities”), including any surcharges imposed,
serving the Project or any part thereof (but excluding the cost of Utilities
directly billed to Tenant or other tenants in the Project), and any amounts,
taxes, charges, surcharges, assessments or impositions levied, assessed or
imposed upon the Project or any part thereof, or upon Tenant’s use and
occupancy thereof, as a result of any rationing of Utilities services or
restriction on the use of Utilities affecting the Project or any part thereof.
Any Operating Costs that constitute capital expenditures (collectively, “Included
Capital Items”) shall be amortized by Landlord, with interest, over the
estimated useful life of such item, and such amortized costs shall be included
in Operating Costs only for that portion of the useful life of the Included
Capital Item which falls within the Term, unless the cost of the Included
Capital Item is less than Ten Thousand Dollars ($10,000) in which case it shall
be expensed in the year in which it was incurred.


 


(ii)           If
the Building is occupied by more than one tenant, then, with respect to any
costs and expenses incurred by Landlord to maintain, repair or replace Systems
or related equipment that exclusively serve the Premises, Tenant’s
Proportionate Share shall be deemed to be one hundred percent (100%).


 


(iii)          If
the Project is not fully
occupied during any portion of any Fiscal Year, Landlord may adjust (an “Equitable
Adjustment”) Operating Costs to equal what would have been incurred by
Landlord had the Project been fully occupied. This Equitable Adjustment shall
apply only to Operating Costs which are variable and therefore increase as
occupancy of the Project increases. Landlord may incorporate the Equitable
Adjustment in its estimates of Operating Costs.


 


(iv)          If
any tenant of the Project
contracts directly with Landlord or a third party for any Utilities or services
for which Tenant pays Landlord pursuant to Section 2.1(b) above, the
total costs of such Utilities or services for the Project shall be “grossed up”
to reflect what those costs would have been had such tenant(s) not directly
contracted for such Utilities or services.


 


(b)           Excluded
Operating Costs. Operating Costs shall not include:


 


(i)            costs
of installing leasehold improvements for tenants or occupants or prospective
tenants or occupants of the Project;


 


4





















 


(ii)           interest and principal payments on mortgages
or any other debt costs (except as provided in Section 2.3(a) above
with regard to Included Capital Items), or rental payments on any ground lease
of the Project;


 


(iii)          real estate brokers’ leasing commissions;


 


(iv)          legal fees, space planner fees and
advertising expenses incurred with regard to leasing the Project or portions
thereof;


 


(v)           any cost or expenditure for which Landlord is
reimbursed (or would have been reimbursed had Landlord maintained the insurance
required to be maintained by Landlord hereunder), by insurance proceeds,
warranties, or otherwise, except by Operating Cost Share Rent;


 


(vi)          the cost of any service furnished to any
tenant of the Project which Landlord does not make available to Tenant;


 


(vii)         depreciation (except on any Included Capital
Items); 


 


(viii)        Operating Cost reserves;


 


(ix)           franchise or income taxes imposed upon
Landlord, except to the extent imposed in lieu of all or any part of Taxes;


 


(x)            costs of correcting defects in construction
of the Building (as opposed to the cost of normal repair, maintenance and
replacement expected with the construction materials and equipment installed in
the Building in light of their specifications);


 


(xi)           legal and auditing fees incurred for the
benefit of Landlord such as collecting delinquent rents, preparing tax returns
and other financial statements, and audits other than those incurred in
connection with the preparation of reports required pursuant to Section 2.2
above;


 


(xii)          the wages of any employee for services not
related directly to the management, maintenance, operation and repair of the
Project;


 


(xiii)         fines, penalties and interest incurred by
Landlord for late payment by Landlord or violations of law;


 


(xiv)        earthquake insurance deductibles in excess of
commercially reasonable amounts (provided, however, that any earthquake insurance
deductibles included in Operating Costs shall then be amortized over the
estimated useful life of the improvements constructed or restored with the
deductible).


 


(xv)         any property management fee except as set
forth in Section 2.1(b) above;


 


5





















 


(xvi)        any costs incurred in connection with any
contamination existing on the Project as of Delivery Date or originating from a
source either not located on the Project or which is caused or contributed by
other tenants within the Project; and


 


(xvii)       any costs incurred in connection with the
repair of the structural parts of the Building, which structural parts include
only the foundation and subflooring of the Building and the structural
condition of the roof, and the exterior walls of the Buildings (but excluding
the interior surfaces of exterior walls and exterior and interior of all
windows (including repairing, resealing or replacing thereof) doors, ceiling
and plateglass all of which shall be maintained, repaired and/or replaced by
Tenant pursuant to Section 3.3).


 


(c)             Taxes.


 


(i)            “Taxes” means any and all taxes,
assessments and charges of any kind, general or special, ordinary or
extraordinary, levied against the Project, which Landlord shall pay or become
obligated to pay in connection with the ownership, leasing, renting,
management, use, occupancy, control or operation of the Project or of the
personal property, fixtures, machinery, equipment, systems and apparatus used
in connection therewith. Taxes shall include real estate taxes, personal
property taxes, sewer rents, water rents, special or general assessments,
transit taxes, ad valorem taxes, and any tax levied on the rents hereunder or
the interest of Landlord under this Lease (the “Rent Tax”). Taxes shall
also include all fees and other costs and expenses paid by Landlord in
reviewing any Taxes and in seeking a refund or reduction of any Taxes, whether
or not the Landlord is ultimately successful; provided, however, that the
amount paid by Landlord in any calendar year in seeking a refund or reduction
of Taxes shall not exceed the greater of (A) $5,000.00, or (B) thirty-five
percent (35%) of the annual savings achieved during that taxable year as a
result of such refund or reassessment. Taxes shall also include any assessments
or fees paid to any business park owners association, or similar entity, which
are imposed against the Project pursuant to any Covenants, Conditions and
Restrictions (“CC&R’s”) recorded against the Project and any
installments of principal and interest required to pay any existing or future
general or special assessments for public improvements, services or benefits,
and any increases resulting from reassessments imposed in connection with any
change in ownership or new construction.


 


(ii)           Intentionally omitted.


 


(iii)          For any year, the amount to be included in
Taxes (1) from taxes or assessments payable in installments, shall be the
amount of the installments (with any interest) due and payable during such
year, and (2) from all other Taxes, shall at Landlord’s election be the
amount accrued, assessed, or otherwise imposed for such year or the amount due
and payable in such year. If Taxes for any period during the Term are increased
after payment thereof for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, and such
increase results in Tenant having underpaid Tax Share Rent hereunder, then
Tenant shall pay to Landlord, within thirty (30) days after demand, the amount
of such underpayment. Similarly, if Taxes for any period during the Term are
decreased after payment thereof for any reason, and such decrease results in
Tenant having overpaid Tax Share Rent hereunder, then Landlord shall return to
Tenant the amount of such


 


6





















 


overpayment within thirty (30) days after Landlord’s
receipt of such overpayment. The obligations of Landlord and Tenant under this Section to
promptly refund any overpayment or pay any deficiency, as appropriate, shall
survive the expiration or earlier termination of this Lease. Taxes shall not
include any net income (except Rent Tax), capital, stock, succession, transfer,
franchise, gift, estate or inheritance tax, except to the extent that such tax
shall be imposed in lieu of any portion of Taxes.


 


(iv)          Notwithstanding anything to the contrary set
forth in this Lease, Tenant shall reimburse Landlord upon demand for any and
all taxes payable by Landlord (other than net income taxes) whether or not now
customary or within the contemplation of the parties hereto: (1) imposed
upon, measured by or reasonably attributable to the cost or value of Tenant’s
equipment, furniture, trade fixtures and other personal property located in the
Premises or by the cost or value of any leasehold improvements made in or to
the Premises by or for Tenant, other than Building-standard improvements made
by Landlord, if any, regardless of whether title to such improvements shall be
in Tenant or Landlord; (2) imposed upon or measured by the Base Rent
payable hereunder, including, without limitation, any gross income tax or
excise tax levied by the city or county in which the Project is located, the
federal government or any other governmental body with respect to the receipt
of such rental; (3) imposed upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; or (4) imposed
upon this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.


 


(d)           Intentionally omitted.


 


(e)           Fiscal Year. “Fiscal Year” means each calendar year during which any
portion of the Term occurs (e.g., the first Fiscal Year shall be the calendar
year during which the Commencement Date occurs).


 


2.4           Computation of Base Rent and Rent Adjustments.


 


(a)           Prorations. If (i) the Commencement Date is a date other than January 1,
(ii) the Termination Date is a date other than December 31, (iii) this
Lease terminates early, or (iv) the size of the Premises increases or
decreases, then in each such event, the Base Rent, the Operating Cost Share
Rent and Tax Share Rent shall be equitably adjusted to reflect such event on a
basis determined by Landlord to be consistent with the principles underlying
the provisions of this Section 2.


 


(b)           Interest Rate. Any sum due from Tenant to Landlord not
paid when due shall bear interest from the date due until paid at the lesser of
eighteen percent (18%) per annum or the maximum rate permitted by law (the “Interest
Rate”).


 


(c)           Rent Adjustments. The square footage of the Premises and the
Building set forth in the Schedule are deemed to be the actual square
footage thereof, provided that the rentable square footage of the Premises and
the Building may subsequently change after the date of this Lease commensurate
with any modifications to the Building by Landlord, in which event Tenant’s
Proportionate Share shall change accordingly; and provided further that


 


7





















 


Tenant shall have the one-time right to cause the
Premises to be remeasured by an architect reasonably acceptable to Landlord and
Tenant pursuant to the most recent BOMA standards, in which event Base Rent and
Tenant’s Proportionate Share shall change accordingly. If any Operating Cost
paid in one Fiscal Year relates to more than one Fiscal Year, Landlord may
proportionately allocate such Operating Cost among the related Fiscal Years.


 


(d)           Books and Records. Landlord shall maintain books and records
reflecting the Operating Costs and Taxes in accordance with sound accounting
and management practices. Tenant and a certified public accountant employed by
a certified public accounting firm and working on a non-contingency fee basis
shall have the right to inspect Landlord’s records at Landlord’s applicable
local office or other location designated by Landlord upon at least seventy-two
(72) hours’ prior notice during normal business hours during the ninety (90)
days following Landlord’s delivery of the Annual Expense Statement to Tenant.
The results of any such inspection shall be kept strictly confidential by
Tenant and its agents, and Tenant and its certified public accountant must
agree, in their contract for such services, to such confidentiality
restrictions and shall specifically agree that the results shall not be made
available to any other tenant of the Project (and in connection with the
foregoing, prior to exercising its rights hereunder, Tenant and its agents shall
sign a confidentiality agreement acceptable to Landlord). Unless Tenant sends
to Landlord any written exception to an Annual Expense Statement within said
ninety (90) day period, such Annual Expense Statement shall be deemed final and
accepted by Tenant and Tenant waives any other rights pursuant to applicable
law to inspect Landlord’s books and records and/or to contest the amount of
Operating Costs and/or Taxes due hereunder. Tenant shall pay the amount shown
on any Annual Expense Statement in the manner prescribed in this Lease, whether
or not Tenant takes any such written exception, without any prejudice to such
exception. If Tenant makes a timely exception, Landlord shall cause an
independent certified public accountant or another firm with at least five (5) years
of experience in auditing the books and records of commercial projects and that
is reasonably acceptable to Landlord and Tenant to issue a final and conclusive
resolution of Tenant’s exception. Tenant shall pay the cost of such
certification unless Landlord’s original determination of annual Operating
Costs and Taxes overstated the amounts thereof, in the aggregate, by more than
five percent (5%), in which case Landlord shall pay for the costs of such
certification.


 


(e)              Miscellaneous. So long as Tenant is in default of any
obligation under this Lease, Tenant shall not be entitled to any refund of any
amount from Landlord. If this Lease is terminated for any reason prior to the
annual determination of Operating Cost Share Rent or Tax Share Rent, either
party shall pay the full amount due to the other within fifteen (15) days after
Landlord’s notice to Tenant of the amount when it is determined. Landlord may
commingle any payments made with respect to Operating Cost Share Rent and Tax
Share Rent, without payment of interest.


 


2.5           Additional Rent Upon Default by Tenant. Intentionally Deleted


 


8





















 


3.             PREPARATION AND CONDITION OF PREMISES: TENANTS POSSESSION: REPAIRS AND
MAINTENANCE.


 


3.1           Condition of Premises.


 


(a)           Except for Landlord’s Work (as defined
below), Landlord is leasing the Premises to Tenant “as is”, without any
obligation to alter, remodel, improve, repair or decorate any part of the
Premises; provided, however, that if the roof, HVAC, plumbing and electrical
systems for the Premises are not in good working order as of the Delivery Date,
then, so long as such problems are noted in writing to Landlord within the
thirty (30) day period immediately following the Commencement Date, Landlord
promptly shall repair any such problems at no cost to Tenant. Except as set
forth in the immediately preceding sentence and in Section 7.1(a) below,
Landlord makes no express or implied representations or warranties of any kind,
including, without limitation, any representation or warranty regarding the
condition of the Premises, the Building or the Project or the suitability of
any of the foregoing for the conduct of Tenant’s business. As used in this
Lease, the term “Landlord’s Work” means (i) the repair of the
roll-up door of the Premises, and (ii) the repair of the leak in the
ceiling in that portion of the Premises between the first and second floors of
the Building, and the replacement of the ceiling tiles stained by said leak.
Landlord shall perform Landlord’s Work, at no cost to Tenant, within thirty
(30) days after the full execution of this Lease or as soon after said thirty
(30) day period as is reasonably practicable.


 


(b)           Tenant, at its sole cost and expense, shall
make such alterations that Landlord deems reasonably necessary or appropriate
to demise the Premises (“Tenant’s Work”). Tenant shall perform Tenant’s
Work within thirty (30) days after the full execution of this Lease or as soon
after said thirty (30) day period as is reasonably practicable. Tenant’s Work
shall comply with the requirements of Section 5 below. In performing
Landlord’s Work and Tenant’s Work, Landlord and Tenant shall exercise
commercially reasonable efforts to minimize interference with the Work of the
other party.


 


3.2           Tenant’s Possession. Subject to Section 3.1 and Section 7.1(a) below,
Tenant’s taking possession of any portion of the Premises shall be conclusive
evidence that the Premises were in good order, repair and condition.


 


3.3           Repairs and Maintenance. 


 


(a)           Tenant’s Obligations.


 


(i)            Except to the extent expressly Landlord’s
obligation under Section 3.3(b) or Section 7.1(a) below,
Tenant shall, throughout the Term at its sole cost and expense, (1) keep
and maintain the Premises in good order and condition, and repair and replace
every part thereof (“Tenant’s Repair Obligations”), including, without
limitation, the following: (A) glass, windows, window frames, window
casements (including the repairing, resealing, cleaning and replacing of both
interior and exterior windows) and skylights; (B) interior and exterior
doors, door frames and door closers; (C) interior lighting (including,
without limitation, light bulbs and ballasts); (D) the Building Systems
(as defined in Section 3.3(b) below), or portions of the Building Systems,
that exclusively serve the Premises, including, without


 


9





















 


limitation, any specialty or supplemental Building
Systems installed by or for Tenant and all heating, ventilating and air
conditioning (“HVAC”) systems and equipment and all electrical
facilities and equipment, including lighting fixtures, lamps, fans and any
exhaust equipment and systems, electrical motors and all other appliances and
equipment of every kind and nature located in, upon or about the Premises; (E) all
communications systems serving the Premises; (F) all of Tenant’s security
systems in or about or serving the Premises; (G) Tenant’s signage; and (H) interior
demising walls and partitions (including painting and wallcoverings), equipment,
floors, and any roll-up doors, ramps and dock equipment, (2) furnish all
expendables, including light bulbs, paper goods and soaps, used in the
Premises, and (3) to the extent that Landlord notifies Tenant in writing
of its intention to no longer arrange for such monitoring, cause the fire alarm
systems serving the Premises to be monitored by a monitoring or protective
services firm approved by Landlord in writing.


 


(ii)           Tenant shall also be responsible for all pest
control within the Premises, and for all trash removal and disposal from the
Premises. With respect to any HVAC systems and equipment exclusively serving
the Premises, Tenant shall obtain HVAC systems preventive maintenance contracts
with bimonthly or monthly service in accordance with manufacturer
recommendations, which shall be subject to the reasonable prior written
approval of Landlord and paid for by Tenant, and which shall provide for and
include replacement of filters, oiling and lubricating of machinery, parts
replacement, adjustment of drive belts, oil changes and other preventive
maintenance, including annual maintenance of duct work, interior unit drains
and caulking of sheet metal, and recaulking of jacks and vents on an annual
basis. Tenant shall have the benefit of all warranties available to Landlord
regarding the HVAC systems and equipment.


 


(iii)          Tenant’s repair, maintenance and replacement
obligations shall be performed under the supervision and subject to the prior
approval of Landlord, and within any reasonable period of time specified by
Landlord; provided, however, that (1) with respect to the Building Systems
that exclusively serve the Premises, Landlord may elect to perform all or some
of the foregoing maintenance, repairs and replacement itself, at Tenant’s
expense, and (2) if Tenant fails to perform Tenant’s Repair Obligations,
Landlord may immediately perform any such work at Tenant’s expense. Tenant
shall pay to Landlord all costs and expenses incurred by Landlord and required
to be paid by Tenant under this Section 3.3(a) within ten (10) days
after receipt of an invoice therefor.


 


(b)           Landlord’s Obligations.


 


(i)            Subject to the provisions of Sections 3.1, 9
and 10 hereof, Landlord shall
maintain, repair and replace the following items (“Landlord’s Repair
Obligations”): (1) the non-structural portions of the roof of the
Building, including the roof coverings (provided that Tenant installs no
additional air conditioning or other equipment on the roof that damages the
roof coverings, in which event Tenant shall pay all costs resulting from the
presence of such additional equipment); (2) the HVAC, plumbing, sewer,
drainage, electrical, fire protection, elevator, escalator, life safety and
security systems and equipment and other mechanical, electrical and
communications systems and equipment (collectively, the “Building Systems”)
serving the Premises, the Building and/or the Project, excluding any specialty
or supplemental Building Systems installed by or for Tenant and also excluding
the Building


 


10





















 


Systems (or portions of the
Building Systems) that exclusively serve the Premises; and (3) the parking
areas of the Project, pavement, landscaping, sprinkler systems, sidewalks,
driveways, curbs, and lighting systems in the common areas of the Project.
Landlord’s Repair Obligations also includes the routine repair and maintenance
of the load bearing and exterior walls of the Building, including, without
limitation, any painting, sealing, patching and waterproofing of such walls. Landlord
shall make reasonable efforts to provide to Tenant, upon Tenant’s request,
copies of all warranties applicable to Landlord’s Repair Obligations, and shall
use commercially reasonable efforts (other than the commencement of any
litigation) to enforce the terms of such warranties to the extent the same may
serve to reduce Tenant’s obligation to reimburse Landlord for costs and
expenses related thereto.


 


(ii)           Subject to the provisions of Sections 3.1, 9
and 10 hereof, Landlord, at its own cost and expense, agrees to repair and
maintain the structural portions of the roof (specifically excluding the roof
coverings), the foundation, the footings, the floor slab, and the load bearing
walls and exterior walls of the Building (excluding any glass and any routine
maintenance, including, without limitation, any painting, sealing, patching and
waterproofing of such walls); provided, however, that subject to the provisions
of Section 8.6 below, any damage arising from the acts of Tenant or any
Tenant Parties (as defined in Section 8.2(a) below) shall be repaired
by Landlord at Tenant’s sole expense, and Tenant shall pay to Landlord all
costs and expenses of any such repair within ten (10) days after receipt
of an invoice therefor. Landlord may, but shall not be required to, enter the
Premises at all reasonable times to make such repairs, alterations,
improvements or additions to the Premises or to the Building or to any
equipment located in the Building as Landlord shall desire or deem necessary or
as Landlord may be required to do by governmental or quasi-governmental
authority or court order or decree. The cost of any repairs made by Landlord on
account of Tenant’s default, or on account of the misuse or neglect by Tenant
or any Tenant Parties anywhere in the Project, shall constitute Additional Rent
payable by Tenant within ten (10) days after receipt of an invoice
therefor. As a condition precedent to all of Landlord’s repair and maintenance
obligations under this Lease, Tenant must have notified Landlord of the need of
such repairs or maintenance; provided that any notification shall not affect
Landlord’s obligation to perform routine periodic maintenance (e.g., landscape
maintenance) during the Lease Term.


 


(iii)          Tenant hereby waives any and all rights under
and benefits of subsection 1 of Section 1932 and Sections 1941 and
1942 of the California Civil Code and any similar or successor law, statute or
ordinance now or hereafter in effect regarding Tenant’s right to make repairs
and deduct the cost of such repairs from the Rent due under this Lease.


 


4.             SERVICES
AND UTILITIES. Tenant shall promptly pay, as the same
become due, all charges for water, gas, electricity, telephone, sewer service,
waste pick-up and any other utilities, materials and services furnished directly
to or used by Tenant on or about the Premises during the Term, including,
without limitation, (a) meter, use and/or connection fees, hook-up fees,
or standby fees (excluding any connection fees or hook-up fees which relate to
making the existing electrical, gas, water and sewer service available to the
Premises as of the Delivery Date), and (b) penalties for discontinued
interrupted service. If any utility service is not separately metered to the
Premises, then Tenant shall pay its pro rata share of the cost of such utility
service with all others served by the service not separately metered. However, (i) if
Landlord reasonably determines that Tenant is using a disproportionate amount
of any utility


 


11





















 


service (whether or not
separately metered), then Landlord, at its election, may (1) periodically
charge Tenant, as Additional Rent, a sum equal to Landlord’s reasonable
estimate of the cost of Tenant’s excess use of such utility service, and/or (2) install,
at Tenant’s expense, a separate meter to measure the utility service supplied
to the Premises, and (ii) if Landlord reasonably determines that Tenant is
using a disproportionate share of the electrical capacity available for the
Building or Project (i.e., electrical usage in excess of that which
would typically be used for general office purposes), then, in addition to the
foregoing, Landlord may install, at Tenant’s expense, additional equipment to
increase the electrical capacity for the Building or Project to offset excess
electrical usage by Tenant. Any interruption or cessation of utilities
resulting from any causes, including any entry for repairs pursuant to this
Lease, and any renovation, redecoration or rehabilitation of any area of the
Project, shall not render Landlord liable for damages to either person or
property or for interruption or loss to Tenant’s business, nor be construed as
an eviction of Tenant, nor work an abatement of any portion of Rent, nor
relieve Tenant from fulfillment of any covenant or agreement hereof; provided,
however, that if (A) an interruption of utilities prevents Tenant from
occupying all or a material portion of the Premises for the Permitted Use for a
period of at least ten (10) consecutive business days and (B) such
interruption was caused by the negligent act or omission of Landlord, then
monthly Rent shall thereafter be proportionately abated during the period of
such interruption. Nothing in this Section 4 shall limit the parties’
rights and obligations under Section 9 hereof, in the event of a casualty
affecting the Building or Premises. Tenant acknowledges and agrees that,
notwithstanding the later occurrence of the Rent Commencement Date, Tenant’s
obligations under this Section 4 shall commence as of the Commencement
Date.


 


5.              ALTERATIONS
AND REPAIRS.


 


5.1           Landlord’s Consent and Conditions.


 


(a)           Except for Minor Alterations (as defined
below), Tenant shall not make any improvements or alterations to the Premises
(the “Alterations”) without in each instance submitting plans and
specifications for the Alterations to Landlord and obtaining Landlord’s prior
written consent. Landlord shall provide or withhold its consent within ten (10) business
days after Landlord’s receipt of the plans and specifications; provided,
however, that if the nature of the Alterations is such that Landlord requires
additional time to review such plans and specifications, then the ten (10) business
day period shall be extended to such longer period as is reasonably necessary
to complete Landlord’s review. Tenant shall pay Landlord’s actual out-of-pocket
costs incurred for review of all of the plans and all other items submitted by
Tenant. Landlord will be deemed to be acting reasonably in withholding its
consent for any Alterations which (i) impacts the base structural
components or the Building Systems, (ii) are visible from outside the
Premises or (iii) impacts any other tenant’s premises.


 


As part of the Alterations,
Landlord agrees that Tenant shall be entitled to construct exterior equipment
pads located outside the Building leased by Tenant hereunder and one or more
exterior chemical storage facilities, provided that Tenant shall first submit
to Landlord the proposed plans for such Alterations and obtain Landlord’s
written approval of such plans prior to commencing such Alterations. Landlord
reserves the right to require Tenant, at its sole cost and expense, to remove
such exterior Alterations upon termination or expiration of this Lease. Tenant
agrees and acknowledges that any parking spaces which may be taken by Tenant


 


12





















 


in connection with the construction and installation
of such pads shall be deducted from Tenant’s parking spaces as set forth in the
Schedule.


 


(b)           Landlord’s approval shall not be required for
Alterations on the interior of the Premises costing less than Twenty-Five
Thousand Dollars ($25,000.00) per project (“Minor Alterations”),
provided that (i) Landlord would not have the right to reasonably withhold
consent to the Alterations pursuant to clauses (i) through (iii) of Section 5.1(a) above
and such Alterations are not visible from outside the Premises; and (ii) Tenant
provides Landlord with written notice of such Minor Alteration, which shall
include a copy of any governmental permits required to complete such Minor
Alteration, prior to commencing construction of such Minor Alteration.


 


(c)           Tenant shall pay for the cost of all
Alterations, including the cost of any and all approvals, permits, fees and
other charges which may be required as a condition of performing such
Alterations.


 


(d)           The following requirements shall apply to all
Alterations;


 


(i)            At least seven (7) days before beginning
any Alterations, Tenant shall furnish to Landlord (1) written notice of
the expected commencement date of the Alterations to permit Landlord to post
and record a notice of nonresponsibility, (2) building permits, (3) certificates
of insurance satisfactory to Landlord, and, (4) at Landlord’s request with
respect to Alterations in excess of Twenty-Five Thousand Dollars ($25,000.00),
security for payment of all costs.


 


(ii)           Tenant shall not take any action which would
violate Landlord’s labor contracts or which would cause a work stoppage,
picketing, labor disruption or dispute, or interfere with Landlord’s or any
other tenant’s or occupant’s business or with the rights and privileges of any
person lawfully in the Building (“Labor Disturbance”). Tenant shall take
the actions necessary to resolve any Labor Disturbance, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in the
Premises that gave rise to the Labor Disturbance, until Landlord gives its
written consent for the work to resume. Tenant shall have no claim for damages
against Landlord or any of the Landlord Parties as a result of the above
actions.


 


(iii)          The Alterations shall be performed in a good
and workmanlike manner, meeting the standard for construction and quality of
materials in the Building, and shall comply with all insurance requirements and
all applicable laws, ordinances, regulations or requirements of the United
States of America, the State of California, or the ordinances, regulations or
requirements of the local municipal or county governing body or other lawful
authorities having jurisdiction over the Project, including, without
limitation, any such laws, ordinances, regulations or requirements relating to
hazardous materials or substances, as those terms are defined by applicable
laws now or hereafter in effect (collectively, “Governmental Requirements”).


 


13





















 


(iv)          Tenant shall perform all Alterations so as to
minimize or prevent disruption to other tenants, and Tenant shall comply with
all reasonable requests of Landlord in response to complaints from other
tenants.


 


(v)           Tenant shall perform all Alterations in
compliance with any “Policies, Rules and Procedures for Construction
Projects” which may be in effect at the time the Alterations is performed.


 


(vi)          All Alterations shall be performed only by
contractors or mechanics approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed; provided, however, that (1) Landlord
may, in its reasonable discretion, specify engineers, general contractors, subcontractors,
and architects to perform work affecting the Building Systems; and (2) if
Landlord consents to any Alterations that requires work to be performed outside
the Premises, Landlord may elect to perform such work at Tenant’s reasonable
expense.


 


(vii)         Tenant shall permit Landlord to supervise all
Alterations, including, without limitation, the right (but not an obligation)
to inspect the construction work during the progress thereof, and to require
corrections of faulty construction or any material deviation from the plans for
such Alterations as approved by Landlord; provided, however, that no such
inspection shall be deemed to create any liability on the part of Landlord, or
constitute a representation by Landlord or any person hired to perform such
inspection that the work so inspected conforms with such plans or complies with
any Governmental Requirements, and no such inspection shall give rise to a
waiver of, or estoppel with respect to, Landlord’s continuing right at any time
or from time to time to require the correction of any faulty work or any
material deviation from such plans.


 


(viii)        If Tenant requests that Landlord manage any
Alterations, then Landlord may charge a supervisory fee not to exceed three
percent (3%) of labor, material, and all other costs of the Alterations to
compensate Landlord for its management and supervision of the progress of the
work.


 


(ix)           Upon completion, Tenant shall furnish
Landlord with contractor’s affidavits and full and final statutory waivers of
liens, as-built plans and specifications, and receipted hills covering all
labor and materials, and all other close-out documentation related to the
Alterations, including any other information required under any “Policies, Rules and
Procedures for Construction Projects” which may be in effect at the time.


 


5.2           No Liens. Tenant has no authority to cause or permit any lien or encumbrance of
any kind to affect Landlord’s interest in the Project; any such lien or encumbrance shall attach to Tenant’s interest only. If any
mechanic’s lien shall be filed or claim of lien made for work or materials
furnished to Tenant, then Tenant shall at its expense within ten (10) days
thereafter either discharge or contest the lien or claim. If Tenant contests
the lien or claim, then Tenant shall (a) within such ten (10) day
period, provide Landlord adequate security for the lien or claim, (b) contest
the lien or claim in good faith by appropriate proceedings that operate to stay
its enforcement, and (c) pay promptly any final adverse judgment entered
in any such proceeding. If Tenant does not comply with these requirements,


 


14





















 


Landlord may discharge the lien
or claim, and the amount paid, as well as attorney’s fees and other expenses
incurred by Landlord, shall constitute Additional Rent payable by Tenant on
demand.


 


5.3           Ownership of Improvements. All Alterations as defined in this Section 5,
partitions, hardware, equipment, machinery and all other improvements and all
fixtures, except trade fixtures (which shall remain Tenant’s property),
constructed in the Premises by either Landlord or Tenant, (a) shall become
Landlord’s property upon installation without compensation to Tenant, unless
Landlord consents otherwise in writing, and (b) shall, at Landlord’s
option (which shall be stated at the time Landlord consents to such
Alterations), either (i) be surrendered to Landlord with the Premises at
the termination of this Lease or of Tenant’s right to possession, or (ii) be
removed in accordance with Section 14 below. Notwithstanding anything to
the contrary herein, the parties acknowledge and agree that Tenant’s anechoic
chamber shall remain Tenant’s property and be treated herein as a trade
fixture, which shall be removed (and any damage caused thereby shall be
repaired) at Tenant’s sole cost and expense upon the expiration or termination
of this Lease.


 


6.             USE OF
PREMISES.


 


6.1           Limitation on Use. Tenant shall use the Premises only for the
Permitted Use stated in the Schedule and Tenant shall not use or permit
the Premises or the Project to be used for any other purpose or purposes
whatsoever without the prior written consent of Landlord, which may be withheld
in Landlord’s sole discretion. Tenant shall not allow any use of the Premises
which will negatively affect the cost of coverage of Landlord’s insurance on
the Project, unless Tenant pays any additional premiums as a result of such
use. Tenant shall not allow any inflammable or explosive
liquids or materials to be kept on the Premises, other than those materials
that are necessary for Tenant’s Permitted Use under this Lease; provided that
such materials are handled in strict accordance with all applicable
Governmental Requirements. Tenant shall not allow any use of the Premises which
would cause the value or utility of any part of the Premises to diminish or
would interfere with any other tenant or with the operation of the Project by
Landlord. Tenant shall not permit any nuisance or waste upon the Premises, or
allow any offensive noise or odor in or around the Project. At the end of each
business day, or more frequently if necessary, Tenant shall deposit all garbage
and other trash (excluding any inflammable, explosive and/or hazardous
materials) in trash bins or containers approved by Landlord in locations
designated by Landlord from time to time. If any governmental authority shall
deem the Premises to be a “place of public accommodation” under the Americans
with Disabilities Act (“ADA”) or any other comparable law as a result of
Tenant’s particular use, Tenant shall either modify its use to cause such
authority to rescind its designation or be responsible for any alterations,
structural or otherwise, required to be made to the Building or the Premises
under such laws.


 


6.2           Signs. Tenant shall not place on any portion of the Premises any sign,
placard, lettering, banner, displays, graphic, or other advertising or
communicative material which is visible from the exterior of the Premises
without Landlord’s prior written approval; provided, however, that (i) Tenant
shall be entitled, on a non-exclusive and proportionate basis, to tenant
identification signage on the monument serving the Building and on the crown of
the portion of the Building facing Highway 101 (“Building Signage”),
except that so long as the


 


15





















 


Premises contains at least
74,979 rentable square feet, Tenant shall have the sole right, on an exclusive
basis, to the Building Signage; and (ii) so long as the Premises contain
at least 74,979 rentable square feet, Tenant shall be entitled, on a
non-exclusive basis, to place Tenant’s corporate name on doorways to the
Premises. The material, typeface, graphic format and proportions of Tenant’s
signs, as well as the precise location of such signs, shall be subject to
Landlord’s approval, which shall not be unreasonably withheld. Any approved
signs shall strictly conform to all Governmental Requirements, any CC&R’s
recorded against the Project, and Landlord’s signage standards in effect at the
time, and shall be installed and removed at Tenant’s expense. Tenant, at its
sole expense, shall maintain such signs in good condition and repair during the
Term. Prior to the expiration or earlier termination of this Lease, Tenant at
its sole cost shall remove all of its exterior signage and repair any and all
damage caused to the Building and/or Project (including and fading or
discoloration) by such signs and/or the removal of such signs from the Building
and/or Project.


 


6.3           Parking. Tenant shall have the non-exclusive right to park in the Project’s
parking facilities in common with other tenants of the Project upon terms and
conditions, as may from time to time be established by Landlord. Tenant agrees
not to overburden the parking facilities (i.e., use more than the number
of unassigned parking stalls indicated on the Schedule) and agrees to cooperate
with Landlord and other tenants in the Project in the use of the parking
facilities. Landlord reserves the right in its discretion to determine whether
the parking facilities are becoming crowded and to allocate and assign parking
passes among Tenant and the other tenants in the Project. Tenant’s use of the
parking facilities shall be at no charge, provided that Landlord shall have the
right to charge Tenant the portion that Landlord deems allocable to Tenant of
any charges (e.g., fees or taxes) imposed by the Regional Air Quality
Control Board or other governmental or quasi-governmental agency in connection
with the parking facilities (e.g., in connection with operation or use
of the parking facilities). Landlord shall not be liable to Tenant, nor shall
this Lease be affected, if any parking is impaired by (or if any parking
charges are imposed as a result of) any moratorium, initiative, referendum,
law, ordinance, regulation or order passed, issued or made by any governmental
or quasi-governmental body. Tenant shall abide by all rules and
regulations which are prescribed from time to time for the orderly operation
and use of the parking facility where the parking passes are located, including
any sticker or other identification system established by Landlord, and
cooperate in seeing that Tenant’s employees and visitors also comply with such rules and
regulations. Landlord specifically reserves the right to change the size,
configuration, design, layout and all other aspects of the Project parking
facility at any time and Tenant acknowledges and agrees that Landlord may,
without incurring any liability to Tenant and without any abatement of Rent
under this Lease, from time to time, close-off or restrict access to the
Project parking facility for a reasonable period of time for purposes of
permitting or facilitating any such construction, alteration or improvements;
provided, however, that Landlord shall locate and secure alternate parking
arrangements for Tenant within walking distance of the Building or otherwise
reasonably acceptable to Tenant. Landlord may delegate its responsibilities
hereunder to a parking operator in which case such parking operator shall have
all the rights of control attributed hereby to the Landlord; provided, however,
that in no event shall Tenant be required to pay for its parking rights
hereunder. The parking rights granted to Tenant pursuant to this Section 6.3
are provided to Tenant solely for use by Tenant’s own personnel and such rights
may not be transferred, assigned, subleased or otherwise alienated by Tenant
separate and apart from


 


16





















 


a Transfer of this Lease
pursuant to Section 17 below. Landlord shall not oversubscribe parking
rights in the Project’s parking facility.


 


6.4           Prohibition Against Use of Roof and Structure
of Building. Tenant shall be
prohibited from using all or any portion of the roof of the Building or any
portion of the structure of the Building during the Term of this Lease (or any
extensions thereof) for any purposes (including without limitation for the
installation, maintenance and repair of a satellite dish and/or other
telecommunications equipment), without Landlord’s prior written consent, which
Landlord may withhold in its sole and absolute discretion, subject, however, to
the applicable provisions of this Lease, including, without limitation, Section 31
and Exhibit B-l. Notwithstanding the foregoing, Landlord
shall grant Tenant with reasonable access to the roof of the Building as may be
reasonably necessary to allow Tenant to perform its HVAC and other maintenance
obligations hereunder, provided that such access shall be subject to any
reasonable rules and restrictions that Landlord may impose from time to
time. Nothing herein shall limit or restrict Landlord’s rights under Section 11.13,
or require Landlord to obtain Tenant’s consent prior to exercising such rights.


 


7.            GOVERNMENTAL REQUIREMENTS AND BUILDING RULES. 


 


7.1           Compliance in Premises.


 


(a)           Landlord’s Responsibilities. As of the Commencement Date, the Premises
shall comply in all material respects with all applicable Governmental
Requirements (as interpreted by applicable governmental or quasi-governmental
authorities as of the Commencement Date), without regard to any specific use of
the Premises by Tenant, and without regard to Tenant’s Work. If Landlord or
Tenant receives written notice from any governmental or quasi-governmental
authority that any portion of the Premises violated Governmental Requirements
as of the Commencement Date, Landlord shall not be liable to Tenant for any
damages, but Landlord, at no cost to Tenant, shall, as Tenant’s sole remedy,
perform such work or take such other action as may be necessary to cure such
violation, but only to the extent that such violation materially and adversely
affects Tenant’s use or occupancy of the Premises. Notwithstanding the
foregoing, Landlord shall have the right to contest any alleged violation in
good faith, including, without limitation, the right to apply for and obtain a
waiver or deferment of compliance, the right to assert any and all defenses
allowed by law, and the right to appeal any decisions, judgments or rulings to
the fullest extent permitted by law, and Landlord’s obligation to perform work
or take such other action to cure a violation under this Section 7.1(a) shall
apply after the exhaustion of any and all rights to appeal or contest.


 


(b)             Tenant’s Responsibilities. Tenant shall, at its sole cost and expense,
(1) comply with all Governmental Requirements; with any occupancy
certificate issued for the Premises; and with the provisions of all recorded
documents affecting the Premises, insofar as any thereof relates to or affects
the condition, use or occupancy of the Premises; and (2) take all proper
and necessary action to cause the Premises, including any repairs,
replacements, alterations and improvements thereto, to be maintained,
constructed, used and occupied in compliance with applicable Governmental
Requirements, including any applicable code and ADA requirements, whether or
not such requirements are based on Tenant’s use of the Premises, and further to
assume all responsibility to ensure that the Premises continues to comply with
all


 


17





















 


Governmental Requirements,
including applicable code and ADA requirements, throughout the Term. Tenant
shall be responsible, at its sole cost and expense, to make all alterations to
the Premises as are required to comply with the governmental rules,
regulations, requirements or standards described in this Section 7.1
provided, however, that, unless necessitated by Tenant’s particular use of the
Premises or any improvements to or alterations of the Premises made by or on
behalf of Tenant, Tenant shall have no obligation to make capital repairs or
alterations to the Premises to comply with Governmental Requirements, The
judgment of any court of competent jurisdiction or the admission of Tenant in any
judicial action, regardless of whether Landlord is a party thereto, that Tenant
has violated any of said governmental measures, shall be conclusive of that
fact as between Landlord and Tenant.


 


7.2           Compliance in Common Areas. Subject to reimbursement as an Operating
Cost as provided in Section 2 above, Landlord shall perform any work
required under any applicable Governmental Requirements, including the ADA, to
be performed in the common areas of the Project, except that Tenant shall be
solely responsible for all such compliance work which is required as a result
of Tenant’s use or activities, Tenant’s proposed alterations or repairs, or
Tenant’s Work, With respect to any code
compliance work required outside the Premises for which Tenant is responsible
hereunder, Landlord shall have the right to perform such work, or require that
Tenant perform such work with contractors, subcontractors, engineers and
architects approved by Landlord; and if Landlord elects to perform such work
outside the Premises, Tenant shall reimburse Landlord for the cost of such work
within ten (10) days following receipt of invoices therefor. Landlord
makes no representations or warranties regarding whether the Project or the
Premises complies with applicable Governmental Requirements as of the date of
this Lease.


 


7.3           Rules and Regulations. Tenant shall also comply with all
reasonable rules for the Project which may be established and amended from
time to time by Landlord. The present rules and regulations are contained
in Exhibit B. Failure by another tenant to comply with the rules or
failure by Landlord to enforce them shall not relieve Tenant of its obligation
to comply with the rules or make Landlord responsible to Tenant in any
way. Landlord shall use reasonable efforts to apply the rules and
regulations uniformly with respect to Tenant and any other tenants in the
Project under leases containing rules and regulations similar to this
Lease. If Tenant performs alterations or repairs, Tenant shall comply with the
provisions of Section 5 of this Lease.


 


8.             WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.


 


8.1           Waiver of Claims. Neither Landlord nor the other Landlord
Parties (as defined below) shall be liable to Tenant or to any Tenant Parties
(as defined below), and Tenant waives all claims against Landlord and such
other Landlord Parties, for any injury to or death of any person or for loss of
use of or damage to or destruction of property in or about the Premises or
Project by or from any cause whatsoever, including without limitation, earthquake
or earth movement, gas, fire, oil, electricity or leakage from the roof, walls,
basement or other portion of the Premises or Project, except only to the extent
such injury, death or damage is caused by the gross negligence or willful
misconduct of such Landlord Party or Landlord’s breach of this Lease or except
to the extent such limitation on liability is prohibited by law. The provisions
of this Section 8.1 shall survive the expiration or earlier termination of
this Lease until all claims within


 


18





















 


the scope of this Section 8.1
are fully, finally, and absolutely barred by the applicable statutes of
limitations.


 


8.2           Indemnification.


 


(a)             Subject to the waiver of subrogation
set forth in Section 8.6 below, Tenant shall indemnify, protect, defend
(by counsel reasonably satisfactory to Landlord) and hold harmless Landlord and
its officers, directors, employees and agents (each, a “Landlord Party”
and collectively, the “Landlord Parties”), and each of them, against any
and all obligations, losses, claims, actions (including remedial or enforcement
actions of any kind and administrative or judicial proceedings, suits, orders
or judgments), causes of action, liabilities, penalties, damages (including
consequential and punitive damages), costs and expenses (including reasonable
attorneys’ and consultants’ fees and expenses) (collectively, “Claims”) arising
from any of the following, including, but not limited to, Claims brought by or
on behalf of employees of Tenant, with respect to which Tenant waives, for the
benefit of the Landlord Parties, any immunity to which Tenant may be entitled
under any worker’s compensation laws: (i) any cause in, on or about the
Premises, (ii) any negligence or willful misconduct of Tenant or any
person or entity claiming by or through Tenant (including any assignee or
subtenant), or any of their respective members, partners, employees,
contractors, agents, customers, visitors, licensees or other persons in or
about the Project by reason of Tenant’s occupancy of the Premises (each a “Tenant
Party” and, collectively, “Tenant Parties”), or (iii) Tenant’s
breach of its obligations under this Lease, either prior to, during, or after
the expiration of the Lease Term (including, without limitation, Tenant’s
failure to surrender the Premises in accordance with Section 14 below):
provided, however, that Tenant’s obligations under this Section shall be inapplicable
to the extent such Claims arise from the gross negligence or willful misconduct
of such Landlord Party or Landlord’s breach of this Lease or to the extent such
obligations are prohibited by applicable law.


 


(b)             Subject to the waivers of liability and
subrogation set forth in Sections 8.1 and 8.6, respectively, Landlord shall
indemnify and hold harmless Tenant, its officers, agents and employees from and
against all Claims to the extent arising from the gross negligence or willful
misconduct of Landlord, its employees, agents or contractors.


 


(c)             Tenant’s duty to defend Landlord and the
other Landlord Parties under this Section 8.2 is separate and independent
of Tenant’s duty to indemnify the Landlord Parties. The duty to defend includes
claims for which the Landlord Parties may be liable without fault or strictly
liable. The duty to defend applies regardless of whether the issues of
negligence, liability, fault, default, or other obligation on the part of
Tenant Parties have been determined. The duty to defend applies immediately,
regardless of whether any Landlord Parties have paid any sums or incurred any
detriment arising out of or relating (directly or indirectly) to any Claims.
The parties expressly intend that Landlord Parties shall be entitled to obtain
summary adjudication or summary judgment regarding Tenant’s duty to defend the
Landlord Parties at any stage of any claim or suit within the scope of this
Section.


 


(d)             The parties’ obligations under this Section shall
survive the expiration or earlier termination of this Lease until all Claims
within the scope of this Section 8.2 are fully, finally, and absolutely
barred by the applicable statutes of limitations.


 


19





















 


8.3           Tenant’s Insurance. Tenant shall maintain insurance as follows,
with such other terms, coverages and insurers, as Landlord shall reasonably
require from time to time:


 


(a)           Commercial General Liability Insurance, with (i) Contractual
Liability including the indemnification provisions contained in this Lease, (ii) a
severability of interest
endorsement, and (iii) limits of not less than Two Million Dollars
($2,000,000) combined single limit per occurrence, not less than Two Million
Dollars ($2,000,000) in the aggregate for bodily injury, sickness or death, and
property damage, and umbrella coverage of not less than Five Million Dollars
($5,000,000).


 


(b)           Special Causes of Loss (ISO form CP 10 30 10/00 or its substantive
equivalent) Insurance covering the replacement cost of all leasehold improvements, trade fixtures and personal
property in or on the Premises, with a commercially reasonable deductible.


 


(c)           Business Income insurance and extra expense coverage with coverage
amounts that shall reimburse Tenant for all rental, expense and other payment obligations
of Tenant under this Lease for a period of not less than one (1) year.


 


(d)           Workers’ compensation or similar insurance in form and amounts required
by law, and Employer’s Liability with not less than the following limits:


 


	
  Each
  Accident:

  	
   

  	
  $

  	
  500,000

  	
   

  
	
  Disease—Policy
  Limit:

  	
   

  	
  $

  	
  500,000

  	
   

  
	
  Disease—Each
  Employee:

  	
   

  	
  $

  	
  500,000

  	
   

  



 


Tenant’s insurance shall be
primary and not contributory to that carried by Landlord, its agents, or
mortgagee. Landlord, and if any, Landlord’s building manager or agent, and, if
Landlord requests, any Security Holder (as defined in Section 16.1 below),
shall be named as additional insureds under the insurance required of the
Tenant in Section 8.3(a), and Tenant’s property insurance policies shall
be endorsed to provide that any loss shall be payable to Landlord and such
other additional parties as Landlord may specify, as their respective interests
may appear. The company or companies writing any insurance which Tenant is
required to maintain under this Lease, as well as the form of such insurance,
shall at all times be subject to Landlord’s approval, and any such company
shall be licensed to do business in the state in which the Building is located.
Such insurance companies shall have a A.M. Best rating of A VI or better.


 


(e)           Tenant shall cause any contractor of Tenant
performing work on the Premises to maintain insurance as follows, with such
other terms, coverages and insurers, as Landlord shall reasonably require from
time to time:


 


(i)            Commercial General Liability Insurance,
including contractor’s liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement, and
contractor’s protective liability coverage, to afford protection with limits,
for each occurrence, of not less than One Million Dollars ($1,000,000) with
respect to personal injury, death or property damage.


 


20





















 


(ii)           Workers’ compensation or similar insurance in
form and amounts required by law, and Employer’s Liability with not less than
the following limits:


 


	
  Each
  Accident:

  	
   

  	
  $

  	
  500,000

  	
   

  
	
  Disease—Policy
  Limit:

  	
   

  	
  $

  	
  500,000

  	
   

  
	
  Disease—Each
  Employee:

  	
   

  	
  $

  	
  500,000

  	
   

  



 


Such insurance shall contain
a waiver of subrogation provision in favor of Landlord and its agents. Tenant’s
contractor’s insurance shall be primary and not contributory to that carried by
Tenant, Landlord, their agents or mortgagees. Tenant and Landlord, and if any,
Landlord’s building manager or agent, and, if Landlord requests, any Security
Holder shall be named as additional insured on Tenant’s contractor’s insurance
policies.


 


8.4           Insurance Certificates. Tenant shall deliver to Landlord
certificates evidencing all required insurance no later than five (5) days
prior to the Commencement Date and each renewal date. Each certificate will
provide for thirty (30) days prior written notice of cancellation to Landlord
and Tenant.


 


8.5           Landlord’s Insurance. Subject to reimbursement as an Operating
Cost in accordance with the provisions of Section 2 hereof, Landlord shall
procure and maintain in effect throughout the Term of this Lease commercial
general liability insurance, property insurance and/or such other types of
insurance as are normally carried by reasonably prudent owners of commercial
properties substantially similar to the Project.  Such coverages shall be in such amounts, from
such companies and on such other terms and conditions as Landlord may from time
to time reasonably determine, and Landlord shall have the right, but not the
obligation, to change, cancel, decrease or increase any insurance coverages in
respect of the Building, add additional forms of insurance as Landlord shall
deem reasonably necessary, and/or obtain umbrella or other policies covering
both the Building and other assets owned by or associated with Landlord or its
affiliates, in which event the cost thereof shall be equitably allocated.


 


8.6           Waiver of Subrogation. Landlord and Tenant hereby waive and
release any and all rights of recovery against the other party, including
officers, employees, agents and authorized representatives (whether in contract
or tort) of such other party, that arise or result from any and all loss of or
damage to any property of the waiving party located within or constituting part
of the Building, including the Premises, to the extent due to a risk covered
under a standard ISO Commercial Property insurance policy, or such additional
property coverage as the waiving party may carry (with a commercially
reasonable deductible), whether or not the party suffering the loss or damage
actually carries any insurance, recovers under any insurance or self-insures
the loss or damage.  Each party shall
have their property insurance policies issued in such form as to waive any
right of subrogation as might otherwise exist. This mutual waiver is in
addition to any other waiver or release contained in this Lease.


 


9.             FIRE
AND OTHER CASUALTY.


 


9.1           Termination. If a fire or other casualty causes substantial damage to the
Premises, Landlord shall engage a registered architect to estimate, within one (1) month
of the casualty, to both Landlord and Tenant the amount of time needed to
restore the Premises to


 


21





















 


tenantability, using
standard working methods without the payment of overtime and other premiums. If
the time needed exceeds twelve (12) months from the beginning of the
restoration, or two (2) months therefrom if the restoration would begin
during the last twelve (12) months of the Lease, then in the case of damage to
the Premises, either Landlord or Tenant may terminate this Lease, by notice to
the other party within ten (10) days after the notifying party’s receipt
of the architect’s estimate. If sufficient insurance proceeds will not be
available to Landlord to cover the cost of any restoration to the Premises
because (i) the casualty event was not required to be insured against
pursuant to the terms of this Lease and was not actually insured against, (ii) the
financial inability of Landlord’s insurance carrier to make such proceeds
available to Landlord, or (iii) Landlord’s mortgagee, if any, has applied
such proceeds to the indebtedness secured by such mortgagee and Landlord does
not commence restoration within one hundred eighty (180) days of the damage,
then, Landlord may terminate this Lease by written notice to Tenant. Any
termination pursuant to this Section 9.1 shall be effective thirty (30)
days from the date of such termination notice and Rent shall be paid by Tenant
to that date, with an abatement for any portion of the Premises which has been
rendered untenantable as a result of the casualty. Notwithstanding any of the
foregoing, Landlord shall not have the right to terminate this Lease if the
damage to the Premises is relatively minor (for example, if the repair or
restoration would cost less than ten percent (10%) of the replacement cost of the
Premises).


 


9.2           Restoration. If a casualty causes damage to the Building or the Premises but this
Lease is not terminated for any reason, then subject to the rights of any
mortgagees or ground lessors, Landlord shall obtain the applicable insurance
proceeds and diligently restore the Building and the Premises to substantially
their prior condition, except for modifications required by then applicable
Governmental Requirements or any other modifications to the common areas of the
Building, if any, deemed desirable by Landlord; provided, however, that, within
tea (10) days following notice to Tenant from Landlord (whether or not
this Lease is terminated pursuant to Section 9.1 above), Tenant shall
irrevocably and unconditionally assign to Landlord (or to any party designated
by Landlord) all insurance proceeds payable to Tenant under Tenant’s insurance
required under Section 83(b) above which pertain to the repair and
restoration of the leasehold improvements in the Premises, including any leasehold
improvements performed by or on behalf of Tenant pursuant to Section 5
above; and provided further, that if the cost of repair and restoration by
Landlord of the leasehold improvements in the Premises exceeds the amount of
insurance proceeds received by Landlord from Tenant’s insurance carrier, the
cost of such repair and restoration shall be promptly paid by Tenant to
Landlord, but in any event prior to Landlord’s commencement of repair of the
damage. Notwithstanding the foregoing, Landlord shall have no obligation with
respect to, and if Landlord elects or is required to perform any restoration
hereunder, Tenant shall be responsible for and shall, repair and replace at its
sole cost all of Tenant’s equipment, furniture, trade fixtures and other personal
property in the Premises, including, without limitation, any telecommunications
wires, cables and related devices located in or serving the Premises. Rent
shall be abated on a per diem basis during the restoration for any portion of
the Premises which is untenantable. Tenant shall not be entitled to any
compensation or damages from Landlord for loss of the use of the Premises,
damage to Tenant’s personal property and trade fixtures or any inconvenience
occasioned by such damage, repair or restoration. Tenant hereby waives the
provisions of Section 1932, Subdivision 2, and Section 1933,
Subdivision 4, of the California Civil Code, and the provisions of any similar
law hereinafter enacted.


 


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10.                                 EMINENT
DOMAIN. If a part of the Project is taken by eminent
domain or deed in lieu thereof which is so substantial that the Premises cannot
reasonably be used by Tenant for the operation of its business, then either
party may terminate this Lease effective as of the date of the taking. Rent
shall abate from the date of the taking in proportion to any part of the
Premises taken. The entire award for a taking of any kind shall be paid to
Landlord, and Tenant shall have no right to share in the award including the “bonus
value” represented by the difference, if any, between rent payable under this
Lease and market rent for the unexpired Term, and Tenant shall have no right to
share in the award; provided, however, that the foregoing shall not be deemed
to prohibit Tenant from filing a separate claim at its sole cost and expense
for an award or portion thereof separately designated for (a) relocation
costs, (b) moving expenses or (c) personal property, trade fixtures
and the unamortized portion of the value of all Alterations performed in the
Premises by Tenant during the Term (such amortization to be calculated on a
straight-line basis over the Term of this Lease, without regard to any future
extension terms as of the date of the taking, and such value to be determined,
at Tenant’s expense, by an appraiser selected by Landlord and approved by
Tenant); or (d) loss of or damage to the goodwill of Tenant’s business and
lost profits (but only to the extent the same does not constitute “bonus value”).
All obligations accrued to the date of the taking shall be performed by the
party liable to perform said obligations, as set forth herein. Tenant hereby
waives any and all rights it might otherwise have pursuant to Section 1265.130
of The California Code of Civil Procedure.


 


11.                                 RIGHTS
RESERVED TO LANDLORD.


 


Landlord
may exercise at any time any of the following rights respecting the operation
of the Project without liability to Tenant of any kind:


 


11.1                           Name.  To change the name of the
Building or the Project, or the street address of the Building or the suite
number(s) of the Premises; provided, however, that so long as Tenant leases and
occupies more than fifty percent (50%) of the Building, then Landlord may not
change the name or street address of the Building, or the suite number(s) of
the Premises, without Tenant’s prior reasonable consent..


 


11.2                           Signs.  To install, modify and/or
maintain any signs on the exterior and in the interior of the Building or on
the Project, and to approve at its sole discretion, prior to installation, any
of Tenant’s signs in the Premises visible from the common areas or the exterior
of the Building.


 


11.3                           Window Treatments.  To
approve, at its discretion, prior to installation, any shades, blinds,
ventilators or window treatments of any kind, as well as any lighting within
the Premises that may be visible from the exterior of the Building or any
interior common area.


 


11.4                           Keys.  To retain and use at any time
passkeys to enter the Premises or any door within the Premises.  Tenant shall not alter or add any lock or
bolt.


 


11.5                           Access.  To have access to the Premises
with twenty-four hours’ prior notice (except in the case of an emergency, in
which case Landlord shall have the right to immediate access) to inspect the
Premises, to post notices of non-responsibility in connection with any
Alterations, to make repairs, alterations, additions or improvements to the
Premises or


 


23





















 


Building, and to perform any
other obligations of Landlord hereunder, all without abatement of Rent.  Landlord shall, subject to Tenant’s compliance
with its obligations pursuant to this Section 11.5, follow Tenant’s
commercially reasonable security requirements in connection with any entry by
Landlord into the Premises. If Tenant requires that all persons entering the
Premises shall be attended by a representative of Tenant, Tenant shall make a
representative available upon 24 hours’ prior telephone notice by Landlord. In
the event of an emergency, however, Landlord shall use good-faith efforts to
follow Tenant’s security requirements, but Landlord will be required to give
only such notice that it in good faith believes is feasible under the
circumstances and need not wait to be accompanied by Tenant or its employees or
representatives (although these parties may still accompany Landlord if they
are available and wish to do so).


 


11.6                           Preparation for Reoccupancy.  To
decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy at any time after Tenant abandons the Premises, without relieving
Tenant of any obligation to pay Rent.


 


11.7                           Heavy Articles.  To
approve the weight, size, placement and time and manner of movement within the
Building of any safe, central filing system or other heavy article of Tenant’s
property. Tenant shall move its property entirely at its own risk.


 


11.8                           Show Premises. To show the Premises to prospective
purchasers, brokers, lenders, mortgagees, investors, or rating agencies at any
reasonable time, and, during the last twelve (12) months of the Term, to
prospective tenants, provided that Landlord gives prior notice to Tenant and
does not materially interfere with Tenant’s use of the Premises.


 


11.9                           Relocation of Tenant.  If
Tenant exercises its Reduction Option under Section 32 below and,
thereafter during the Term of this Lease, Landlord receives a bona fide offer
from a third-party to lease at least 74,979 square feet of rentable area in the
Building (the “Third-Party Space”), which offer is acceptable to
Landlord (the “Third-Party Offer”), Landlord may relocate Tenant, upon
at least ninety (90) days’ prior written notice (the “Relocation Notice”),
from the Premises to another premises in any comparable class project owned by
Landlord or its affiliates in San Jose (north of Highway 880), Santa Clara, or
Sunnyvale, California (the “New Premises”), subject to, and in
accordance with, the following:


 


(a)                                  The Relocation Notice will specify the terms
of the Third-Party Offer and shall describe the proposed New Premises, which shall
be within ten percent (10%) of the size of the Premises described in this
Lease;


 


(b)                                 The New Premises must be in a contiguous
block within one building and shall, at Landlord’s sole cost, be reasonably
comparable to the Premises with respect to tenant improvements, finishes and
layout (taking any differences in configuration between the Premises and the
New Premises into account); provided, however, that Landlord and Tenant agree
that the “Valley Centre I” and “Valley Centre II” projects in San Jose are not reasonably
comparable to the Premises;


 


(c)                                  Tenant shall, within (10) days of Tenant’s
receipt of the Relocation Notice, either (i) accept the New Premises, (ii) reject
the New Premises or (Hi) elect to add to the


 


24





















 


Premises the additional
23,755 square feet in the Building that Tenant eliminated by exercising its
Reduction Option pursuant to Section 32 below (the “Additional Square
Footage”). If Tenant elects to add the Additional Square Footage to the
Premises, the Additional Square Footage shall be added upon the identical
economic terms and conditions set forth in the Relocation Notice (on a per
square footage basis) and, to the extent not inconsistent therewith, upon all
of the terms and conditions of this Lease. Tenant’s failure, within such ten (10) day
period, either to (i) accept the New Premises or (ii) elect to add
the Additional Square Footage to the Premises hereunder, shall be deemed a
rejection of the New Premises as of the last day of the ten (10) day
period, time being of the essence, in which event Landlord shall have the
right, exercisable by written notice to Tenant (the “Termination Notice”)
within twenty (20) days after Tenant’s rejection, to cancel and terminate this
Lease on the date set forth in the Termination Notice (which date shall be not
less than ninety (90) days nor more than one hundred twenty (120) days after
the date of the Termination Notice), provided that, prior to the termination
date set forth in the Termination Notice, Landlord shall pay to Tenant the sum
of Two Hundred Fifty-Six Thousand One Hundred Twenty Dollars ($256,120.00) in
consideration of Tenant’s moving costs. If Tenant accepts the New Premises,
Tenant shall relocate to the New Premises on the date designated by Landlord in
the Relocation Notice. If Tenant elects to add the Additional Square Footage,
Landlord shall deliver possession of the Additional Square Footage to Tenant on
the terms and conditions set forth in the Relocation Notice; provided, however,
that Tenant, at its sole cost and expense, shall make such alterations that
Tenant deems reasonably necessary or appropriate to create access between the
then-Premises and the Additional Square Footage, and access from the Additional
Square Footage to the freight elevator in the dock area;


 


(d)                                 The physical relocation and re-installation
of Tenant’s furniture, trade fixtures, equipment and other personal property to
the New Premises (including re-cabling and re-wiring) shall be performed by
Landlord at its sole cost;


 


(e)                                  Tenant shall cooperate with Landlord to
facilitate the relocation, including supervising the movement of files or
fragile equipment, designating new locations for furniture, equipment and new
telephone and electrical outlets, and determining the color of paint in the New
Premises;


 


(f)                                    All reasonable costs incurred by Tenant as a
result of the relocation, including, without limitation, costs incurred in
changing addresses on stationery, business cards, directories, advertising, and
other such items, shall be paid by Landlord;


 


(g)                                 If the New Premises is a different square
footage than the Premises described in this Lease, (i) the Base Rent shall
be adjusted to a sum computed by multiplying the Base Rent specified in the Schedule by
a fraction, the numerator of which shall be the total number of square feet in
the New Premises, and the denominator of which shall be the total number of
square feet in the Premises before relocation, provided, however, in no event
shall the Base Rent hereunder be increased as a result of such relocation (i.e., even if the New Premises contains
more than 51,224 square feet, the Base Rent payable hereunder shall not exceed
the amounts set forth in Item 14 of the Schedule) and (ii) Tenant’s
Proportionate Share shall be appropriately adjusted, provided that the amount
of Operating Costs payable by Tenant with respect to the New Premises shall not
exceed the Operating Costs that would have been payable under this Lease absent
such relocation;


 


25





















 


(h)                                 If requested by Landlord, Tenant shall
promptly execute an amendment to this Lease confirming the relocation of Tenant
to the New Premises and the adjustment of Base Rent and Tenant’s Proportionate
Share, if any; and


 


(i)                                     Tenant’s failure to surrender the Premises
and relocate to the New Premises as required hereunder, or Tenant’s
interference with Landlord’s physical relocation of Tenant’s furniture, trade
fixtures, equipment and other personal property to the New Premises, shall
constitute an Event of Default hereunder.


 


11.10                     Use of Lockbox.  To
designate a lockbox collection agent for collections of amounts due Landlord.
In that case, the date of payment of Rent or other sums shall be the date of
the agent’s receipt of such payment or the date of actual collection if payment
is made in the form of a negotiable instrument thereafter dishonored upon
presentment. However, if there exists an uncured Event of Default under this
Lease, Landlord may reject any payment for all purposes as of the date of
receipt or actual collection by mailing to Tenant within a reasonable time
after such receipt or collection a check equal to the amount sent by Tenant.


 


11.11                     Repairs and Alterations.  To
make repairs or alterations to the Project and in doing so transport any
required material through the Premises, to close entrances, doors, corridors,
elevators and other facilities in the Project, to open any ceiling in the
Premises, or to temporarily suspend services or use of common areas in the Building.  Landlord may perform any such repairs or
alterations during ordinary business hours, except that Tenant may require any
work in the Premises to be done after business hours if Tenant pays Landlord
for overtime and any other expenses incurred. 
Landlord may do or permit any work on any nearby building, land, street,
alley or way.


 


11.12                     Building Services.  To
install, use and maintain through the Premises, pipes, conduits, wires and
ducts serving the Building, provided that such installation, use and maintenance
does not unreasonably interfere with Tenant’s use of the Premises.


 


11.13                     Use of Roof.  To install, operate, maintain
and repair any satellite dish, antennae, equipment, or other facility on the
roof of the Building or to use the roof of the Building in any other manner, or
to allow any entity selected by Landlord to undertake the foregoing, provided
that such installation, operation, maintenance, repair or use does not unreasonably
interfere with Tenant’s use of the Premises.


 


11.14                     CC&Rs.  Landlord, at any time, may
promulgate and record a set of CC&Rs which will govern the access, parking,
design, signage and other rights of the tenants in the Project, so long as such
CC&Rs do not impose any material new payment obligation on Tenant or require
Tenant to modify any of the then existing improvements.


 


11.15                     Other Actions.  To
lake any other action which Landlord deems reasonable in connection with the
operation, maintenance or preservation of the Building and the Project.


 


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12.                                 EVENTS
OF DEFAULT.


 


12.1                           Tenant’s Default.  The
occurrence of any one or more of the following events (each, an “Event of
Default”) shall constitute a breach of this Lease by Tenant:


 


(a)                                  Tenant fails to pay any Rent when due and
such failure continues for five (5) days or more following Landlord’s
notice of such failure.


 


(b)                                 Tenant fails to perform its obligations under
Section 17 (Assignment and Sublease), or Section 28 (Hazardous
Substances).


 


(c)                                  Tenant abandons the Premises.


 


(d)                                 Tenant fails to perform any obligation to
Landlord under this Lease other than those described in Sections 12.1(a), 12.1(b) or
12.1(c) above, and such failure continues for thirty (30) days after
written notice from Landlord or Landlord’s agent, except that if Tenant begins
to cure its failure within the thirty (30) day period but cannot reasonably complete
its cure within such period, then, so long as Tenant continues to diligently
attempt to cure its failure, the thirty (30) day period shall be extended to
one hundred twenty (120) days, or such lesser period as is reasonably necessary
to complete the cure.


 


(e)                                  One of the following credit defaults occurs:


 


(i)                                     Tenant (or any guarantor of Tenant’s
obligations hereunder) commences any proceeding under any law relating to
bankruptcy, insolvency, reorganization or relief of debts, or seeks appointment
of a receiver, trustee, custodian or other similar official for the Tenant (or
the guarantor) or for any substantial part of its property, or any such
proceeding is commenced against Tenant (or the guarantor) and either remains
undismissed for a period of sixty (60) days or results in the entry of an order
for relief against Tenant (or the guarantor) which is not fully stayed within
seven (7) days after entry;


 


(ii)                                  Tenant (or any guarantor of Tenant’s
obligations hereunder) becomes bankrupt, does not generally pay its debts as
they become due, or admits in writing its inability to pay its debts, or makes
a general assignment for the benefit of creditors;


 


(iii)                               Any third party obtains a levy or attachment
under process of law against Tenant’s leasehold interest.


 


Tenant
acknowledges and agrees that, notwithstanding the foregoing provisions of this Section 12,
that any notices required to be given by Landlord under this Section 12
shall, in each case, be in lieu of, and not in addition to, any notice required
under Section 11.61 of the California Code of Civil Procedure, and shall
be deemed to satisfy the requirement, if any, that notice be given pursuant to
such section.


 


12.2                           Landlord Defaults.  Landlord
shall be in default hereunder if Landlord has not begun and pursued with
reasonable diligence the cure of any failure of Landlord to meet its obligations
hereunder within thirty (30) days after the receipt by Landlord of written
notice from Tenant of the alleged failure to perform. In no event shall Tenant
have the right to terminate or rescind this Lease as a result of Landlord’s
default as to any covenant or agreement contained in this Lease. Tenant hereby
waives such remedies of termination and rescission and hereby agrees


 


27





















 


that Tenant’s remedies for
default hereunder and for breach of any promise or inducement shall be limited
to a suit for damages and/or injunction. In addition, Tenant hereby covenants
that, prior to the exercise of any such remedies, Tenant will give notice and a
reasonable time to cure any default by Landlord to any holder of a mortgage or
deed of trust encumbering Landlord’s interest in the Project of which Tenant
has been given notice.


 


12.3                           Force Majeure.  Notwithstanding
anything contained in this Lease to the contrary, neither party shall be in
default hereunder to the extent such party is unable to perform any of its
obligations on account of any prevention, delay, stoppage due to strikes,
lockouts, inclement weather, labor disputes, inability to obtain labor,
materials, fuels, energy or reasonable substitutes therefor, governmental
restrictions, regulations, controls, actions or inaction, civil commotion, fire
or other acts of god, national emergency, acts of war or terrorism or any other
cause of any kind beyond its reasonable control (except financial inability) (“Force
Majeure”); provided, however, that nothing contained in this Section 12.3
shall relieve Tenant from the obligation to timely pay Rent under this Lease.


 


13.                                 LANDLORD
REMEDIES. UPON ANY EVENT OF DEFAULT BY TENANT,
LANDLORD SHALL HAVE THE FOLLOWING REMEDIES, IN ADDITION TO ALL OTHER RIGHTS AND
REMEDIES PROVIDED BY LAW OR OTHERWISE PROVIDED IN THIS LEASE, TO WHICH LANDLORD
MAY RESORT CUMULATIVELY OR IN THE ALTERNATIVE:


 


13.1                           Termination of Lease. 
Landlord may elect by notice to Tenant to terminate this Lease, in which
event, Tenant shall immediately vacate the Premises and deliver possession to
Landlord.


 


13.2                           Civil Code Section 1951.4 Remedy.  Even
though Tenant has breached this Lease, this Lease shall continue in effect for
so long as Landlord does not terminate Tenant’s right to possession, and
Landlord shall have all of its rights and remedies, including the right, pursuant
to California Civil Code Section 1951.4, to recover all rent as it becomes
due under this Lease, if Tenant has the right to sublet or assign, subject only
to reasonable limitations. Acts of maintenance or preservation or efforts to
relet the Premises or the appointment of a receiver upon initiative of Landlord
to protect Landlord’s interest under this Lease shall not constitute a termination
of Tenant’s right to possession unless written notice of termination is given
by Landlord to Tenant.


 


13.3                           Lease Termination Damages.  If
Landlord elects to terminate this Lease, then this Lease shall terminate on the
date for termination set forth in such notice. Tenant shall immediately vacate
the Premises and deliver possession to Landlord, and Landlord may repossess the
Premises and may, at Tenant’s sole cost, remove any of Tenant’s signs and any
of its other property, without relinquishing its right to receive Rent or any
other right against Tenant. On termination, Landlord has the right to recover
from Tenant as damages:


 


(a)                                  The worth at the time of award of unpaid Rent
and other sums due and payable which had been earned at the time of
termination; plus


 


28





















 


(b)                                 The worth at the time of award of the amount
by which the unpaid Rent and other sums due and payable which would have been
earned after termination until the time of award exceeds the amount of such
Rent loss that Tenant proves could have been reasonably avoided; plus


 


(c)                                  The worth at the time of award of the amount
by which the unpaid Rent and other sums due and payable for the balance of the
Term after the time of award exceeds the amount of such Rent loss that Tenant
proves could be reasonably avoided; plus


 


(d)                                 Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant’s failure to
perform Tenant’s obligations under this Lease, or which, in the ordinary course
of things, would be likely to result therefrom, including, without limitation,
any costs or expenses incurred by Landlord: (i) in retaking possession of
the Premises; (ii) in maintaining, repairing, preserving, restoring,
replacing, cleaning, altering or rehabilitating the Premises or any portion
thereof, including such acts for reletting to a new tenant or tenants; (iii) for
leasing commissions; or (iv) for any other costs necessary or appropriate
to relet the Premises; plus


 


(e)                                  At Landlord’s election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time
by the laws of the State of California.


 


The
“worth at the time of award” of the amounts referred to in Sections 13.3(a) and
13.3(b) is computed by allowing interest at the Interest Rate on the unpaid
rent and other sums due and payable from the termination date through the date
of award. The “worth at the time of award” of the amount referred to in Section 13.3(c) is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%). Tenant waives
redemption or relief from forfeiture under California Code of Civil Procedure
Sections 1174 and 1179, or under any other present or future law, if Tenant is
evicted or Landlord takes possession of the Premises by reason of any Event of
Default by Tenant hereunder.


 


13.4                           Landlord’s Remedies Cumulative.  All
of Landlord’s remedies under this Lease shall be in addition to all other
remedies Landlord may have at law or in equity, including, without limitation,
the remedy described in California Civil Code Section 1951.4 (pursuant to
which Landlord may continue this Lease in effect after Tenant’s breach and
abandonment and recover rent as it becomes due if Tenant has the right to
sublet or assign the Lease, subject to reasonable limitations). Waiver by
Landlord of any breach of any obligation by Tenant shall be effective only if
it is in writing, and shall not be deemed a waiver of any other breach, or any
subsequent breach of the same obligation. The possession of Tenant’s funds,
negotiation of Tenant’s negotiable instruments, or acceptance of Tenant’s
payment by Landlord or its agents shall not constitute a waiver of any breach
by Tenant, and if such possession, negotiation or acceptance occurs after
Landlord’s notice to Tenant, or termination of this Lease or of Tenant’s right
to possession, such possession, negotiation or acceptance shall not affect such
notice or termination. Acceptance of payment by Landlord after commencement of
a legal proceeding or final judgment shall not affect such proceeding or
judgment. Landlord may advance such monies and take such other actions for
Tenant’s account as reasonably may be required to cure or


 


29





















 


mitigate any default by
Tenant.   Tenant shall immediately
reimburse Landlord for any such advance, and such sums shall bear interest at
the Interest Rate until paid.


 


13.5                           WAIVER OF TRIAL BY JURY.  TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH PARTY WAIVES TRIAL BY JURY IF ANY LEGAL PROCEEDING IS BROUGHT BY THE OTHER IN CONNECTION WITH
THIS LEASE. EACH PARTY SHALL BRING ANY
ACTION AGAINST THE OTHER IN CONNECTION WITH THIS LEASE IN A FEDERAL OR STATE COURT LOCATED IN CALIFORNIA, CONSENTS TO THE
JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE
GROUND OF IMPROPER VENUE
OR
INCONVENIENT FORUM. THE PROVISIONS OF THIS SECTION 13.5 SHALL SURVIVE THE
EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.


 


14.                                 SURRENDER.  Upon the expiration or earlier
termination of this Lease for any reason, Tenant shall surrender the Premises
to Landlord in its condition existing as of the date Landlord delivers
possession of the Premises to Tenant, normal wear and tear and damage by fire or
other casualty excepted, with all interior walls repaired and repainted if
marked or damaged, all carpets shampooed and cleaned, all broken, marred or
nonconforming acoustical ceiling tiles replaced, all windows washed, the
plumbing and electrical systems and lighting in good order and repair,
including replacement of any burned out or broken light bulbs or ballasts, the
HVAC equipment serviced and repaired by a reputable and licensed service firm
acceptable to Landlord, and all floors cleaned and waxed, all to the reasonable
satisfaction of Landlord.  Tenant shall remove
from the Premises and the Project all of Tenant’s trade fixtures, furniture,
moveable equipment and other personal property, and any Alterations which
Landlord elects to be removed pursuant to Section 5.3, and shall restore
the Premises to its condition prior to their installation, including, without
limitation, repairing all damage caused by the installation or removal of any of
the foregoing items.   If Tenant does not
timely remove such property, then Tenant shall be conclusively presumed to
have, at Landlord’s election: (a) conveyed such property to Landlord without
compensation or (b) abandoned such property, and Landlord may dispose of
or store any part thereof in any manner at Tenant’s sole cost, without waiving
Landlord’s right to claim from Tenant all expenses arising out of Tenant’s
failure to remove the property, and without liability to Tenant or any other
person.  Landlord shall have no duty to
be a bailee of any such personal property.   
If Landlord elects to consider such property abandoned, Tenant shall be
liable to Landlord for the costs of: (i) removal of any such Alterations
or personal property, (ii) storage, transportation, and disposition of the
same, and (iii) repair and restoration of the Premises, together with
interest thereon at the Interest Rate from the date of expenditure by Landlord.


 


15.                                 HOLDOVER.  Tenant shall have no right to
holdover possession of the Premises after the expiration or termination of this
Lease without Landlord’s prior written consent which Landlord may withhold in
its sole and absolute discretion.     If,
however, Tenant retains possession of any part of the Premises after the Term,
Tenant shall become a tenant at sufferance only, for the entire Premises upon
all of the terms of this Lease as might be applicable to such tenancy, except
that Tenant shall pay Base Rent at one hundred fifty percent (150%) of the rate
in effect immediately prior to such holdover (without regard to any abatements
of Rent on account of casualty or otherwise), computed on a monthly basis for
each full or partial month Tenant remains in possession.  Tenant shall also protect, defend, indemnify
and hold Landlord


 


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harmless from and against
all Claims resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender and any lost profits to Landlord resulting therefrom.
No acceptance of Rent or other payments by Landlord under these holdover
provisions shall operate as a waiver of Landlord’s right to regain possession
or any other of Landlord’s remedies.


 


16.                                 SUBORDINATION TO GROUND LEASES AND MORTGAGES.


 


16.1                           Subordination.  Subject to the provisions of Section 16.6
below, this Lease shall be subordinate to any present or future ground lease or
mortgage respecting the Project, and any amendments to such ground lease or
mortgage, at the election of the ground lessor or mortgagee (a “Security
Holder”), as the case may be, effected by notice to Tenant in the manner provided
in this Lease. The subordination shall be effective upon such notice, but at
the request of Landlord or such Security Holder, Tenant shall within ten (10) days
after the request, execute and deliver to the requesting party any reasonable
documents provided to evidence the subordination. Any mortgagee has the right,
at its sole option, to subordinate its mortgage to the terms of this Lease,
without notice to, nor the consent of, Tenant.


 


16.2                           Termination of Ground Lease or Foreclosure of
Mortgage. If
any ground lease is terminated or mortgage foreclosed or deed in lieu of
foreclosure given and the Security Holder or purchaser at a foreclosure sale
shall thereby become the owner of the Project, Tenant shall attorn to such
Security Holder or purchaser without any deduction or setoff by Tenant, and this
Lease shall continue in effect as a direct lease between Tenant and such
Security Holder or purchaser.  The
Security Holder or purchaser shall be liable as Landlord only during the time such
Security Holder or purchaser is the owner of the Project. At the request of
Landlord or any Security Holder, Tenant shall execute and deliver within ten (10) days
after the request any document furnished by the requesting party to evidence
Tenant’s agreement to attorn. 


 


16.3                           Security Deposit.  Any
Security Holder shall be responsible for the return of any security deposit by
Tenant only to the extent the security deposit, if any, is received by such
Security Holder.


 


16.4                           Notice and Right to Cure.  The
Project is subject to any ground lease and mortgage identified with the name
and address of the Security Holder in Exhibit F to this Lease (as the same
may be amended from time to time by written notice to Tenant). Tenant agrees to
send by registered or certified mail to any Security Holder identified in a
notice from Landlord to Tenant, a copy of any notice of default sent by Tenant
to Landlord. If Landlord fails to cure such default within the required time
period under this Lease, but any Security Holder begins to cure within ten (10) days
after such period and proceeds diligently to complete such cure, then such Security
Holder shall have such additional time as is necessary to complete such cure,
including any time necessary to obtain possession if possession is necessary to
cure, and Tenant shall not begin to enforce its remedies so long as the cure is
being diligently pursued.


 


16.5                           Definitions.  As used in this Section 16,
“mortgage” shall include “trust deed” and “deed of trust”; “mortgagee” shall
include “trustee”, “beneficiary” and the mortgagee of any ground lessee; and “ground
Lessor”, “mortgagee”, and “purchaser at a foreclosure sale” shall include, in
each case, all of its successors and assigns, however remote.


 


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16.6                           Non-Disturbance Agreement.  With
respect to any present or future ground lease or mortgage to which this Lease
shall be subordinate, Landlord shall, as a condition to such subordination,
obtain from the Security Holder, for the benefit of Tenant, a non-disturbance
agreement, in the customary form of such Security Holder, that (i) except
to the extent necessary to protect the Security Holder in the event of
circumstances in which its security is impaired, will not effect an amendment
to this Lease which materially increases Tenant’s obligations or materially
diminishes Tenant’s rights hereunder, and (ii) provides generally that as
long as Tenant is not in default under this Lease, this Lease will not be
terminated if such Security Holder acquires title to the Project by reason of
foreclosure proceedings, acceptance of a deed in lieu of foreclosure, or
termination of the leasehold interest of Landlord, provided that Tenant attorns
to such Security Holder in accordance with its commercially reasonable
requirements. Tenant shall bear all costs and expenses (including attorneys’
fees) in connection with a non-disturbance agreement described in this Section.


 


17.                                 ASSIGNMENT
AND SUBLEASE.


 


17.1                           In General.  Tenant shall not, without
Landlord’s prior written consent, in each case: (a) make or allow any
assignment or transfer, by operation of law or otherwise, of any part of Tenant’s
interest in this Lease, (b) sublet any part of the Premises, or (c) permit
anyone other than Tenant and its employees to occupy any part of the Premises
(all of the foregoing are hereinafter sometimes referred to individually as a “Transfer”,
and collectively as “Transfers”, any person to whom any Transfer is made
or sought to be made is hereinafter sometimes referred to as a “Transferee”,
and any person by whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a “Transferor”). Tenant shall remain primarily
liable for all of its obligations under this Lease, notwithstanding any
Transfer.   No consent granted by Landlord
shall be deemed to be a consent to any subsequent Transfer.  Tenant shall pay all of Landlord’s attorneys’
fees and other expenses incurred in connection with any consent requested by
Tenant or in considering any proposed Transfer.   Any Transfer without Landlord’s prior written
consent shall be void.  If Tenant shall
assign this Lease or sublet or otherwise Transfer the Premises, or any portion
thereof to any party other than a Permitted Transferee (as defined below), any
rights of Tenant to renew this Lease, to extend the Term or to lease additional
space in the Project shall be extinguished thereby and will not be transferred
to the Transferee, all such rights being personal to the Tenant named
herein.    In addition, Tenant shall not,
without Landlord’s prior written consent, which Landlord may withhold in its
reasonable discretion, mortgage, pledge or encumber this Lease, the term or
estate hereby granted or any interest hereunder.


 


17.2                           Landlord’s Consent.  Landlord
will not unreasonably withhold its consent to any proposed Transfer.   It shall be reasonable for Landlord to
withhold its consent to any Transfer if (a) an Event of Default exists
under this Lease, (b) the proposed Transferee is a tenant in the Project
or an affiliate of such a tenant or a party that Landlord has identified as a prospective
tenant in the Project, (c) the financial responsibility, nature of
business, and character of the proposed Transferee are not all reasonably
satisfactory to Landlord, (d) In the reasonable judgment of Landlord the
purpose for which the Transferee intends to use the Premises (or a portion
thereof) is not in keeping with Landlord’s standards for the Building or are in
violation of the terms of this Lease or any other leases in the Project, or (e) the
proposed Transferee is a


 


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government entity, The
foregoing shall not exclude any other reasonable basis for Landlord to withhold
its consent.


 


17.3                           Procedure.  Tenant shall notify Landlord
of any proposed Transfer at least thirty (30) days prior to its proposed
effective date.  The notice shall include
the name and address of the proposed Transferee, its corporate affiliates in
the case of a corporation and its partners in the case of a partnership, a
description of the portion of the Premises that is subject to the Transfer (the
“Transfer Premises”), a calculation of the Transfer Premium (as defined
in Section 17.5 below) payable in connection with the Transfer, an
executed copy of the proposed Transfer agreement, and sufficient information to
permit Landlord to determine the financial responsibility and character of the
proposed Transferee (including, without limitation, the most recent financial
statements for the proposed Transferee). As a condition to the effectiveness of
any assignment of this Lease, the assignee shall execute and deliver to
Landlord, prior to the effective date of the assignment, a consent form
satisfactory to Landlord providing for, among other things, an assumption of
all of the obligations of Tenant under this Lease. As a condition to the
effectiveness of any other Transfer, Transferee shall execute and deliver to
Landlord, prior to the effective date of such Transfer, a consent form
satisfactory to Landlord, providing, among other things, (a) the
Transferee’s obligation to indemnify Landlord and the other Landlord Parties consistent
with Tenant’s indemnification obligations in Section 8.2 above, and (b)the
Transferee’s agreement that any such Transfer shall be subordinate and subject
to the provisions of this Lease, and if this Lease shall be terminated during
the term of any such Transfer, Landlord shall have the right to: (i) treat
such Transfer as cancelled and repossess the Transfer Premises by any lawful
means, or (ii) require that the Transferee attorn to and recognize Landlord
as its landlord under any such Transfer. If Tenant shall default and fail to
cure within the time permitted for cure under Section 12 above, Landlord
is hereby irrevocably authorized, as Tenant’s agent and attorney-in-fact, to
direct any Transferee to make all payments under or in connection with the
Transfer directly to Landlord (which Landlord shall apply towards Tenant’s obligations
under this Lease) until such default is cured.


 


17.4                           Change of Management or Ownership.  Any
direct or indirect transfer of 50% or more of the ownership interest in Tenant
(a “Change of Control”) shall constitute an assignment of this Lease,
provided that the foregoing shall not apply so long as Tenant’s stock is publicly
held and traded through a national stock exchange or NASDAQ.


 


17.5                           Permitted Transfers.  Notwithstanding
anything to the contrary in this Section 17, if an Event of Default does
not then exist, Tenant may assign this Lease or sublet any portion of the
Premises (hereinafter collectively referred to as a “Permitted Transfer”)
to (a) a parent or subsidiary of Tenant, or an entity under common control
with Tenant, (b) any successor entity to Tenant by way of merger,
consolidation or other non-bankruptcy corporate reorganization, or (c) an
entity which acquires all or substantially all of Tenant’s assets or stock (collectively,
“Permitted Transferees”, and, individually, a “Permitted Transferee”),
and Tenant may engage in a deemed assignment of this Lease by means of a Change
of Control as set forth in Section 17.4 above; provided that (i) at least ten (10) business days prior to
the Transfer, Tenant notifies Landlord of such Transfer, and supplies Landlord
with any documents or information reasonably requested by Landlord regarding
such Transfer or Permitted Transferee, including, but not limited to, copies of
the sublease or instrument of assignment and copies of documents establishing
to the reasonable satisfaction of Landlord that the transaction in question


 


33





















 


is one permitted under this Section 17.5,
(ii) except in the case of a Change of Control or if such assumption
occurs by operation of law, Tenant furnishes Landlord, at least ten (10) business
days prior to the Transfer, with a written document executed by the proposed
Permitted Transferee in which, in the case of an assignment, such entity assumes
all of Tenant’s obligations under this Lease with respect to the Transfer
Premises, and, in the case of a sublease, such entity agrees to sublease the
Transfer Premises subject to this Lease, (iii) in the case of a Transfer
pursuant to clause (b) above, the successor entity must have a net worth
(computed in accordance with generally accepted accounting principles, except
that intangible assets such as goodwill, patents, copyrights and trademarks, as
well as any acquisition-related reserves, shall be excluded in the calculation
(“Net Worth”)) at the time of the Transfer that is at least equal to the
Net Worth of Tenant immediately prior to such Transfer, and (iv) any such
proposed Transfer is made for a good faith operating business purpose and not,
whether in a single transaction or in a series of transactions, be entered into
as a subterfuge to evade the obligations and restrictions relating to Transfers
set forth in this Section 17.


 


17.6                           Transfer Premium.


 


(a)                                  If Landlord consents to a Transfer, as a condition
thereto which the parties hereby agree is reasonable, Landlord shall be
entitled to receive, as Additional Rent hereunder, fifty percent (50%) of any
Transfer Premium derived from such Transfer. 
As used herein, the term “Transfer Premium” means (i) (A) in
the case of an assignment, any consideration (including, without limitation,
payment for leasehold improvements) paid by the assignee on account of such
assignment, and (B) in the case of any other Transfer, all rent, additional
rent or other consideration paid by the Transferee to the Transferor pursuant
to such Transfer in excess of the base rent and additional rent payable by such
Transferor during the term of the Transfer on a per rentable square foot basis
minus (ii) any brokerage commissions (not to exceed commissions typically
paid in the market at the time of such subletting or assignment) and reasonable
attorneys’ fees paid by Transferor in connection with the Transfer
(collectively, “Recoverable Expenses”), unless the deduction of such Recoverable
Expenses is waived by Transferor pursuant to Section 17.6(b) below. For
purposes of calculating the Transfer Premium in connection with a sublease, the
Recoverable Expenses shall be deducted, on an amortized basis, without
interest, over the term of the sublease.  
Payment of the portion of the Transfer Premium due Landlord hereunder
shall be a joint and several obligation of Tenant and the Transferee, and shall
be made to Landlord as follows; (1) in the case of an assignment, the Transferor
shall pay the portion of the Transfer Premium due to Landlord within ten (10) days
after the Transferor receives the consideration described in clause (i)(A) above;
and (2) in the case of any other Transfer, on the first day of each month
during the term of the Transfer, the Transferee shall pay directly to Landlord
fifty percent (50%) of the amount by which the rent, additional rent or other
consideration due from the Transferee for such month exceeds (x) the base rent
and additional rent payable by the applicable Transferor for said month which
is allocable to the Transfer Premises, plus (y) the amortized amount of
Recoverable Expenses allocated to such month, unless such Recoverable Expenses
are waived by Transferor pursuant to Section 17.6(b). This Section 17.6
shall not apply to a Transfer to a Permitted Transferee.


 


(b)                                 Within sixty (60) days after request by
Landlord, Transferor shall provide Landlord a written statement, together with
reasonably detailed invoices therefor, certifying the total amount of Recoverable
Expenses in connection with any Transfer and


 


34





















 


Tenant’s calculation of the
Transfer Premium. If Transferor fails to provide such statement and invoices to
Landlord within the sixty (60) day period, Transferor shall be deemed to have
waived the deduction of Recoverable Expenses in determining the Transfer
Premium. Landlord or its authorized representatives shall have the right at all
reasonable times to audit the books, records and papers of Tenant, and any
other Transferor, relating to a Transfer, and shall have the right to make
copies thereof. If the Transfer Premium respecting any Transfer shall be found
to be understated, Tenant shall, within ten (10) days after demand, pay
the deficiency; and, if understated by more than two percent (2%), Tenant shall
pay Landlord’s costs of such audit.


 


17.7                           Recapture.  In the case of a proposed
assignment of this Lease or a proposed sublease of all of the Premises for
substantially the remainder of the Term (i.e., less than six (6) months
remain at the end of the proposed sublease), in either case to any party other than
a Permitted Transferee, Landlord may terminate this Lease by giving Tenant
written notice (the “Recapture Notice”) within thirty (30) days after
Landlord’s receipt of the proposed fully executed Transfer agreement submitted
by Tenant for Landlord’s consent.  Such
termination shall be effective as of the termination date set forth in Landlord’s
Recapture Notice, and all obligations of Landlord and Tenant under this Lease
shall expire as of such termination date, except those that expressly survive
any termination of this Lease.


 


17.8                           Tenant Remedies.  Notwithstanding anything to the contrary in
this Lease, if Tenant claims that Landlord has unreasonably withheld or delayed
its consent under this Section 17 or otherwise has breached or acted
unreasonably under this Section 17, Tenant’s sole remedy shall be
declaratory judgment and an injunction for the relief sought or damages, and Tenant
hereby waives all other remedies, including, without limitation, any right
provided under California Civil Code Section 1995.310 or other applicable
laws to terminate this Lease..


 


18.                                 CONVEYANCE
BY LANDLORD.  If
Landlord shall at any time transfer its interest in the Project or this Lease,
Landlord shall be released from any obligations occurring after such transfer,
except the obligation to return to Tenant any security deposit not delivered to
its transferee, and Tenant shall look solely to Landlord’s successors for
performance of such obligations. This Lease shall not be affected by any such
transfer.


 


19.                                 ESTOPPEL
CERTIFICATE.  Each
party shall, within ten (10) days after receiving a request from the other
party, execute, acknowledge in recordable form, and deliver to the other party
or its designee a certificate stating, subject to a specific statement of any applicable
exceptions, that this Lease as amended to date is in full force and effect,
that Tenant is paying Rent and other charges on a current basis, and that to
the best of the knowledge of the certifying party, the other party has
committed no uncured defaults and has no offsets or claims. The certifying
party may also be required to state the date of commencement of payment of Rent,
the Commencement Date, the Termination Date, the Base Rent, the current
Operating Cost Share Rent and Tax Share Rent estimates, the status of any
improvements required to be completed by Landlord, the amount of any security
deposit, and such other matters as may be reasonably requested. Tenant’s
failure to execute or deliver an estoppel certificate in the required time
period shall constitute an acknowledgment by Tenant that the statements
included in the estoppel certificate are true and correct, without exception.


 


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20.                                 SECURITY
DEPOSIT. 
Tenant shall deposit with Landlord on the date Tenant executes and
delivers this Lease the cash sum set forth in the Schedule for the
Security Deposit. The Security Deposit shall be held by Landlord as security
for the faithful performance by Tenant of all of its obligations under this
Lease.


 


20.1                           Application of Security Deposit.  Tenant agrees that, if Tenant fails to pay any
Rent, or otherwise defaults with respect to any provision of this Lease,
Landlord may (but shall not be obligated to), and without prejudice to any
other remedy available to Landlord, use, apply or retain all or any portion of
the Security Deposit for the payment of any Rent in default or for the payment
of any other sum to which Landlord may become obligated by reason of Tenant’s
default, or to compensate Landlord for any loss or damage which Landlord may
suffer thereby, including, without limitation, prospective damages and damages
recoverable pursuant to California Civil Code Section 1951.2.  If Landlord uses or applies all or any portion
of the Security Deposit as provided above, Tenant shall, within three (3) days
after demand therefor, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to the full amount thereof, and Tenant’s failure
to do so shall, at Landlord’s option, be an Event of Default under this Lease
with no opportunity to cure. If Tenant performs all of Tenant’s obligations hereunder,
the Security Deposit, or so much thereof as has not theretofore been applied by
Landlord, shall be returned to Tenant (or, at Landlord’s option, to the last
assignee, if any, of Tenant’s interest hereunder) within thirty (30) days
following the later to occur of (a) the expiration of the Term of this
Lease or (b) Tenant’s vacation and surrender of the Premises in accordance
with the requirements of this Lease. Tenant waives the provisions of California
Civil Code Section 1950.7, or any similar or successor laws now or
hereinafter in effect, that restrict Landlord’s use or application of the
Deposit, or that provide specific time periods for return of the Deposit.  Landlord shall not be deemed to hold the
Security Deposit in trust nor be required to keep the Security Deposit separate
from its general funds, and Tenant shall not be entitled to any interest on the
Security Deposit. The Security Deposit shall not be construed as an advance payment
of Rent nor liquidated damages, and if Landlord’s claims hereunder exceed the
Security Deposit, Tenant shall remain liable for the balance of such claims.


 


20.2                           Transfer of Security Deposit.  If
Landlord transfers its interest in the Project or this Lease, Landlord shall
transfer the Security Deposit to its transferee.   Upon such transfer, Landlord shall have no
further obligation to return the Security Deposit to Tenant, and Tenant’s right
to the return of the Security Deposit shall apply solely against Landlord’s transferee.


 


21.                                 Intentionally
omitted.


 


22.                                 NOTICES.  All notices, consents,
approvals and similar communications to be given by one party to the other
under this Lease, shall be given in writing, mailed or personally delivered as
follows:


 


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22.1                           Landlord.  To Landlord as follows:


 


CarrAmerica
Realty Operating Partnership, L.P.


1810
Gateway Drive, Suite 150


San
Mateo, CA 94404


Attn:
Market Officer


 


with
a copy to:


 


CarrAmerica
Realty Operating Partnership, L.P.


1850
K Street, N.W., Suite 500


Washington,
D.C. 20006


Attn:
Lease Administration


 


or to such other person at such other address
as Landlord may designate by
notice to Tenant.


 


22.2                           Tenant.  To Tenant as follows:


 


Before the Commencement Date:


 


Proxim
Corporation


935
Stewart Drive


Sunnyvale,
CA 94085


Attn:
Chief Financial Officer


 


And


 


Attn:
General Counsel


 


 


After
the Commencement Date:


 


Proxim
Corporation


2115
O’Nel Drive


San
Jose, CA 95131


Attn:
Chief Financial Officer


 


And
Attn: General Counsel


 


or
to such other person at such other address as Tenant may designate by notice to
Landlord.


 


Mailed
notices shall be sent by United States certified or registered mail, or by a
reputable national overnight courier service, postage prepaid. Mailed notices
shall be deemed to have been given on the earlier of actual delivery or three (3) business
days after posting in the


 


37





















 


United States mail in the
case of registered or certified mail, and one (1) business day in the case
of overnight courier.


 


23.                                 QUIET
POSSESSION.  So
long as Tenant shall perform all of its obligations under this Lease, Tenant
shall enjoy peaceful and quiet possession of the Premises against any party
claiming through the Landlord, subject to all of the terms of this Lease.


 


24.                                 REAL
ESTATE BROKERS.  Tenant represents to Landlord
that Tenant has not dealt with any real estate broker with respect to this
Lease except for any broker(s) listed in the Schedule, and no other broker is
in any way entitled to any broker’s fee or other payment in connection with
this Lease. Tenant shall indemnify and defend Landlord against any Claims by any
other broker or third party for any payment of any kind in connection with this
Lease.


 


25.                                 MISCELLANEOUS.


 


25.1                           Successors and Assigns. 
Subject to the limits on Tenant’s assignment contained in Section 17,
the provisions of this Lease shall be binding upon and inure to the benefit of
all successors and assigns of Landlord and Tenant.


 


25.2                           Date Payments Are Due. 
Except for payments to be made by Tenant under this Lease which are due
upon demand or are due in advance (such as Base Rent), and except as otherwise
expressly provided in this Lease, Tenant shall pay to Landlord any amount for
which Landlord renders a statement of account within thirty (30) days after
Tenant’s receipt of Landlord’s statement.


 


25.3                           Meaning of “Landlord”, “Re-Entry”, “including”
and “Affiliate”.  The term “Landlord” means only the owner of
the Project and the lessor’s interest in this Lease from time to time.  The words “re-entry” and “re-enter” are not
restricted to their technical legal meaning. The words “including” and similar
words shall mean “without limitation.” 
The word “affiliate” shall mean a person or entity controlling,
controlled by or under common control with the applicable entity. “Control”
shall mean the power directly or indirectly, by contract or otherwise, to
direct the management and policies of the applicable entity.


 


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


 


25.5                           No Option.  The submission of this Lease
to Tenant for review or execution does not create an option or constitute an
offer to Tenant to lease the Premises on the terms and conditions contained
herein or a reservation of the Premises in favor of Tenant, and this Lease
shall not become effective unless and until it has been executed and delivered
by both Landlord and Tenant.


 


25.6                           Severability.  If
any provision of this Lease is determined to be invalid, illegal or
unenforceable, then such provision will be enforced to the maximum extent
possible and the other provisions will remain fully effective and enforceable.


 


25.7                           Governing Law.  This
Lease shall be governed in all respects by the laws of the state in which the
Project is located, without regard to the principles of conflicts of laws.


 


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25.8                           Lease Modification. 
Tenant agrees to modify this Lease in any way requested by a mortgagee
which does not cause increased expense to Tenant or otherwise materially
adversely affect Tenant’s interests under this Lease.


 


25.9                           No Oral Modification.  No
modification of this Lease shall be effective unless it is a written
modification signed by both parties.


 


25.10                     Landlord’s Right to Cure.  If
Tenant fails to perform any obligations under this Lease, Landlord may cure any
such failure on Tenant’s behalf and any expenses incurred shall constitute
Additional Rent due from Tenant on demand by Landlord.


 


25.11                     Captions.  The captions used in this
Lease shall have no effect on the construction of this Lease.


 


25.12                     Authority.  Landlord and Tenant each
represents to the other that it has full power and authority to execute and
perform this Lease.


 


25.13                     Landlord’s Enforcement of Remedies. 
Landlord may enforce any of its remedies under this Lease either in its
own name or through an agent.


 


25.14                     Entire Agreement.  This
Lease, together with all Exhibits, constitutes the entire agreement between the
parties. No representations or agreements of any kind have been made by either
party which are not contained in this Lease.


 


25.15                     Landlord’s Title.  Landlord’s title shall always be paramount to
the interest of Tenant, and nothing in this Lease shall empower Tenant to do
anything which might in any way impair Landlord’s title.


 


25.16                     Light and Air Rights. 
Landlord does not grant in this Lease any rights to light and air in
connection with Project. Landlord reserves to itself, the Project, the Building
below the improved floor of each floor of the Premises, the Building above the
ceiling of each floor of the Premises, the exterior of the Premises and the
areas on the same floor outside the Premises, along with the areas within the
Premises required for the installation and repair of utility lines and other
items required to serve other tenants of the Building.


 


25.17                     Singular and Plural; Joint and Several
Liability.  Wherever appropriate in this Lease, a
singular term shall be construed to mean the plural where necessary, and a
plural term the singular.  For example,
if at any time two parties shall constitute Landlord or Tenant, then the relevant
term shall refer to both parties together. If more than one individual or
entity comprises Tenant, the obligations imposed on each individual or entity
that comprises Tenant under this Lease shall be joint and several.


 


25.18                     No Recording by Tenant.  Tenant
shall not record in any public records any memorandum or any portion of this
Lease.


 


25.19                     Exclusivity.  Landlord does not grant to
Tenant in this Lease any exclusive right except the right to occupy the
Premises.


 


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25.20                     No Construction Against Drafting Party.  The rule of
construction that ambiguities are resolved against the drafting party shall not
apply to this Lease.


 


25.21                     Survival.  The waivers of claims or
rights, the releases and the obligations of Landlord and Tenant under this
Lease to indemnify, protect, defend and hold harmless the other shall survive
the expiration or earlier termination of this Lease, and so shall all other obligations
or agreements of Landlord or Tenant hereunder which by their terms survive the expiration
or earlier termination of this Lease.


 


25.22                     Rent Not Based on Income.  No
Rent or other payment in respect of the Premises shall be based in any way upon
net income or profits from the Premises. Tenant may not enter into or permit
any sublease or license or other agreement in connection with the Premises
which provides for a rental or other payment based on net income or profit.


 


25.23                     Building Manager and Service Providers. 
Landlord may perform any of its obligations under this Lease through its
employees or third parties hired by the Landlord.


 


25.24                     Late Charge and Interest on Late Payments. 
Without limiting the provisions of Section 12.1, if Tenant fails to
pay any installment of Rent or other charge to be paid by Tenant pursuant to
this Lease within five (5) business days after the same becomes due and
payable, then Tenant shall pay a late charge equal to the greater of five
percent (5%) of the amount of such payment or $250.  In addition, interest shall be paid by Tenant
to Landlord on any late payments of Rent from the date due until paid at the
rate provided in Section 2.4(b). Such late charge and interest shall
constitute Additional Rent due and payable by Tenant to Landlord upon the date
of payment of the delinquent payment referenced above.


 


25.25                     Tenant’s Financial Statements.  Within
ten (10) days after Landlord’s written request therefor (which may be made
only in connection with a default by Tenant or a bona fide sale, financing or
other similar transaction involving the Project), Tenant shall deliver to
Landlord the current audited annual and quarterly financial statements of
Tenant, and annual audited financial statements of the two (2) years prior
to the current year’s financial statements, all prepared in accordance with
generally accepted accounting principles consistently applied. Such statements
shall be certified by Tenant’s chief financial officer; provided, however, that
Tenant shall submit financial statements that are audited by a certified public
accountant if such statements are available.   
Notwithstanding the foregoing, (a) as long as Tenant’s financial statements
are readily available over the Internet or otherwise publicly available, Tenant
shall not be obligated to deliver them to Landlord hereunder, and (b) as
long as Tenant’s stock is publicly held and traded, Tenant shall only be
required to deliver to Landlord publicly available statements.   Landlord shall exercise commercially
reasonable efforts to keep all such financial statements confidential, provided
that Landlord may disclose the same to existing or prospective lenders,
investors, partners, purchasers or other persons reasonably having a need to
review such financial statements.


 


25.26                     Attorneys’ 
Fees.  In any arbitration, quasi-judicial or
administrative proceedings or any action in any court of competent
jurisdiction, brought by either party to enforce any covenant or any of such
party’s rights or remedies under this Lease, including any action for
declaratory relief, or any action to collect any payments required under this
Lease or to


 


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quiet title against the
other party, the prevailing party shall be entitled to reasonable attorneys’
fees and all costs, expenses and disbursements in connection with such action,
including the costs of reasonable investigation, preparation and professional
or expert consultation, which sums may be included in any judgment or decree
entered in such action in favor of the prevailing party. In addition, Tenant
shall pay the attorneys’ fees and other costs Landlord incurs in enforcing this
Lease where an action or proceeding is not brought.


 


25.27                     Other Improvements.  If
portions of the Project or property adjacent to the Project (collectively, the “Other
Improvements”) are owned by an entity other than Landlord, then, so long as
Tenant’s rights under this Lease (including, without limitation, Tenant’s use
and occupancy of, and access to, the Premises, parking areas, and/or Project)
are not materially impaired, impeded, or otherwise materially and adversely
affected, or Tenant’s costs or expenses payable under this Lease materially
increased, Landlord, at its option, may enter into an agreement with the owner
or owners of any of the Other Improvements to provide (a) for reciprocal
rights of access, use and/or enjoyment of the Project and the Other
Improvements, (b) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and all or any
portion of the Other Improvements, (c) for the allocation of a portion of
Operating Costs and Taxes to the Other Improvements and the allocation of a portion
of the operating expenses and taxes for the Other Improvements to the Project, (d) for
the use or improvement of the Other Improvements and/or the Project in
connection with the improvement, construction, and/or excavation of the Other
Improvements and/or the Project, and (e) for any other matter which
Landlord deems appropriate or necessary.  
Nothing contained herein shall be deemed or construed to limit or
otherwise affect Landlord’s right to sell all or any portion of the Project or
any other of Landlord’s rights described in this Lease.


 


25.28                     Security.  Landlord shall be the sole
determinant of the type and amount of security services to be provided to the
Project, if any.  In all events, Landlord
shall not be liable to Tenant, and Tenant hereby waives any claim against
Landlord, for (a) any unauthorized or criminal entry of third parties into
the Premises, the Building or the Project, (b) any damage to persons, or (c) any
loss of property in and about the Premises, the Building or the Project, by or from
any unauthorized or criminal acts of third parties, regardless of any action,
inaction, failure, breakdown, malfunction and/or insufficiency of the security
services provided by Landlord.


 


25.29                     Consents.  Except where expressly
provided herein to the contrary, whenever a party’s consent or approval is
required hereunder, such consent or approval shall not be unreasonably
withheld, delayed or conditioned.


 


26.                                 UNRELATED
BUSINESS INCOME.  If
Landlord is advised by its counsel at any time that any part of the payments by
Tenant to Landlord under this Lease may be characterized as unrelated business
income under the United States Internal Revenue Code and its regulations, then
Tenant shall enter into any amendment proposed by Landlord to avoid such income,
so long as the amendment does not require Tenant to make more payments or
accept fewer services from Landlord, than this Lease provides.


 


27.                                 BUILDING
RENOVATIONS.  It
is specifically understood and agreed that Landlord has made no representation
or warranty to Tenant and has no obligation and has made no promises to alter,
remodel, improve, renovate, repair or decorate the Premises, Building, or


 


41





















 


any part thereof and that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant except as specifically set forth herein.
However, Tenant hereby acknowledges that Landlord may during the Lease Term
renovate, improve, alter, or modify (collectively, the “Renovations”)
the Project, the Building and/or the Premises including without limitation the
parking structure, common areas, systems and equipment, roof, and structural
portions of the same, which Renovations may include, without limitation, (a) installing
sprinklers in the Building common areas and tenant spaces, (b) modifying
the common areas and tenant spaces to comply with Governmental Requirements,
including regulations relating to the physically disabled, seismic conditions,
and building safety and security, and (c) installing new floor covering,
lighting, and wall coverings in the Building common areas, and in connection
with any Renovations, Landlord may, among other things, erect scaffolding or
other necessary structures in the Building, limit or eliminate access to
portions of the Project, including portions of the common areas, or perform
work in the Building, which work may create noise, dust or leave debris in the
Building. Tenant hereby agrees that such Renovations and Landlord’s actions in
connection with such Renovations shall in no way constitute a constructive
eviction of Tenant nor entitle Tenant to any abatement of Rent. Landlord shall
have no responsibility or for any reason be liable to Tenant for any direct or
indirect injury to or interference with Tenant’s business arising from the
Renovations, nor shall Tenant be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises or of
Tenant’s personal property or improvements resulting from the Renovations or
Landlord’s actions in connection with such Renovations, or for any
inconvenience or annoyance occasioned by such Renovations or Landlord’s
actions. Notwithstanding any provisions to the contrary contained herein,
Landlord shall use commercially reasonable efforts in the performance of any
Renovations to minimize interference with the conduct of Tenant’s business in
the Premises and Tenant’s parking rights hereunder; and, with respect to any
Renovations which could interfere with the conduct of Tenant’s business in the
Premises or Tenant’s parking rights hereunder, Landlord shall, except in the
event of an emergency, provide Tenant with at least twenty-four (24) hours’
prior notice (which may be verbal and/or be sent by e-mail to Tenant’s
facilities manager).


 


28.                                 HAZARDOUS
SUBSTANCES.


 


28.1                           Prohibition Against Hazardous Substances.


 


(a)                                  Except for de minimis quantities of general
office supplies customarily used by office tenants in the ordinary course of
their business, such as copier toner, liquid paper, glue, ink and cleaning
solvents (which supplies Tenant agrees to use in compliance with all applicable
Governmental Requirements) and except as provided in Section 6.1 above,
Tenant shall not cause or permit any Hazardous Substances to be brought upon,
produced, stored, used, discharged or disposed of in or near the Project by
Tenant or its agents, employees, contractors or invitees without Landlord’s
prior written consent, which Landlord may give or withhold in its reasonable
but sole discretion. Any handling, transportation, storage, treatment, disposal
or use of any Hazardous Substances in or about the Project by Tenant, its
agents, employees, contractors or invitees shall strictly comply with all
applicable Governmental Requirements. Tenant shall be solely responsible for
obtaining and complying with all permits necessary for the maintenance and
operation of its business, including, without limitation, all permits governing
the use, handling, storage, treatment, transport, discharge and disposal of


 


42





















 


Hazardous Substances. Tenant
shall indemnify, defend and hold Landlord harmless from and against any Claims
(including, without limitation, diminution in value of the Premises or the
Project, damages for the loss or restriction on use of leasable space or of any
amenity of the Premises or the Project, damages arising from any adverse impact
on marketing of space in the Project, Remedial Work, and sums paid in
settlement of claims) which result from or arise out of the use, storage,
treatment, transportation, release, or disposal of any Hazardous Substances on
or about the Project by Tenant or any Tenant Parties.


 


(b)                                 Landlord shall have the right, at any time,
but not more than two (2) times in any calendar year (unless Landlord has
reasonable cause to believe that Tenant has failed to fully comply with the
provisions of this Section 28, or unless required by any lender or
governmental agency), to inspect the Premises and conduct tests and
investigations to determine whether Tenant is in compliance with the provisions
of this Section 28. The reasonable costs of all such inspections, tests
and investigations required by any lender or governmental agency as a result of
Tenant’s handling, use, storage, treatment, transportation or disposal of any
Hazardous Substances shall be borne solely by Tenant. The foregoing rights
granted to Landlord shall not, however, create (i) a duty on Landlord’s
part to inspect, test, investigate, monitor or otherwise observe the Premises
or the activities of Tenant or any Tenant Party with respect to Hazardous
Substances, including, but not limited to, Tenant’s operation, use or
remediation thereof, or (ii) liability on the part of Landlord or any
Landlord Party for Tenant’s use, storage, treatment, transportation, release,
or disposal of any Hazardous Substances, it being understood that Tenant shall
be solely responsible for all liability in connection therewith.


 


28.2                           Landlord Notification.  Tenant shall promptly provide Landlord with complete
copies of all documents, correspondence and other written materials directed to
or from, or relating to, Tenant concerning environmental issues at the Premises
or the Project, including, without limitation, documents relating to the
release, potential release, investigation, compliance, cleanup and abatement of
Hazardous Substances, and any claims, causes of action or other legal documents
related to same. Within twenty-four (24) hours of any unauthorized release,
spill or discharge of Hazardous Substances, in, on, or about the Premises or
Project by Tenant or its employees, agents, contractors or invitees, Tenant
shall provide written notice to Landlord fully describing the event. Tenant
shall also provide Landlord with a copy of any document or correspondence
submitted by or on behalf of Tenant to any regulatory agency as a result of or in
connection with the unauthorized release, spill or discharge. Within
twenty-four (24) hours of receipt by Tenant of any warning, notice of
violation, permit suspension or similar disciplinary measure relating to Tenant’s
actual or alleged failure to comply with any environmental law, rule,
regulation, ordinance or permit, Tenant shall provide written notice to Landlord.


 


28.3                           Remedial Work.  If
any investigation or monitoring of site conditions or any clean-up,
containment, restoration, removal or remediation of Hazardous Substances (collectively,
“Remedial Work”) is required under any Governmental Requirements due to
the use, storage, treatment, transportation, release, or disposal of any
Hazardous Substances on or about the Project by Tenant or any Tenant Parties,
then Tenant shall perform or cause to be performed the Remedial Work in
compliance with Governmental Requirements or, at Landlord’s option, Landlord
may cause such Remedial Work to be performed and Tenant shall reimburse Landlord
for the reasonable costs thereof within thirty (30) days after demand
therefor.  All


 


43





















 


Remedial Work performed by
Tenant shall be performed by one or more contractors, selected by Tenant and
approved in advance in writing by Landlord, and under the supervision of a
consulting engineer selected by Tenant and approved in advance in writing by
Landlord. All costs and expenses of such Remedial Work shall be paid by Tenant,
including, without limitation, the charges of such contractor(s), the
consulting engineer and Landlord’s reasonable attorneys’ and experts’ fees and
costs incurred in connection with monitoring or review of such Remedial Work.


 


28.4                           Environmental Questionnaire.  Prior
to execution of this Lease, Tenant shall complete, execute and deliver to
Landlord an Environmental Questionnaire and Disclosure Statement. The completed
Environmental Questionnaire shall be deemed incorporated into this Lease for
all purposes, and Landlord shall be entitled to rely fully on the information
contained therein.  Tenant shall
immediately update and resubmit to Landlord the Environmental Questionnaire if
changes occur in the nature, content, handling, storage, use, treatment,
transport, discharge, or disposal of the Hazardous Substances described
therein. Attached hereto as Exhibit E is a form of Environmental
Questionnaire to be executed in accordance with the foregoing provision.


 


28.5                           Survival.  Tenant’s obligations under
this Section 28 shall survive the expiration or earlier termination of
this Lease until all Claims within the scope of this Section 28 are fully,
finally, and absolutely barred by the applicable statutes of limitations.  If it is determined by Landlord that the
condition of all or any portion of the Premises, the Building or the Project is
not in compliance with the provisions of this Section 28, including, but
not limited to all applicable Governmental Requirements relating to Hazardous
Substances, at the expiration or earlier termination of this Lease, then Landlord,
in its sole discretion, may require Tenant to hold over possession of the
Premises until Tenant can surrender the Premises to Landlord in the condition
required under Section 14 above and in full compliance with the provisions
of this Section 28.  The burden of
proof under this Section 28.5 shall be upon Tenant.  For purposes of Section 14, the term “normal
wear and tear” shall not include any deterioration in the condition or
diminution of the value of any portion of the Premises, the Building or the Project
in any manner whatsoever related directly or indirectly to Hazardous
Substances.   Any such holdover by Tenant
shall be with Landlord’s consent, will not be terminable by Tenant in any event
or circumstance and will otherwise be subject to Section 15 above.


 


28.6                           Definition of “Hazardous Substances”.  “Hazardous
Substances” means any hazardous or toxic substances, materials or waste
which are or become regulated by any local government authority, the state in
which the Project is located or the United States government, including those
substances described in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et  seq.,
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901
et  seq., any other applicable federal, state or local law, and
the regulations adopted under these laws.


 


28.7                           Landlord’s Obligations.


 


(a)                                  In the event Remedial Work is required under
any Governmental Requirements to be performed in the Premises as a result of
Hazardous Substances that are located in the Premises prior to the Commencement
Date, Landlord shall not be liable to Tenant


 


44





















 


for damages, but Landlord,
as Tenant’s sole remedy, shall, except to the extent arising from the use, storage,
treatment, transportation, release or disposal of any Hazardous Substances on
or about the Project by Tenant or any Tenant Parties, perform or cause to be
performed, at no cost to Tenant, the Remedial Work in compliance with
Governmental Requirements. Landlord’s obligation to perform the Remedial Work
hereunder shall apply after the exhaustion of any and all rights Landlord may
have to appeal or contest.


 


(b)                                 Landlord shall indemnify and hold Tenant
harmless from any Claims to the extent any such Claim results from or arises
out of the negligent use, storage, treatment, transportation, release, or
disposal of any Hazardous Substances on or about the Project by Landlord, its
agents, employees, or contractors or relating to contamination due to any
hydraulic oil released to the Land prior to the Delivery Date as a direct
result of the installation, maintenance or operation of the elevators within
the Project, except to the extent such Claim arises by reason of any negligent
or intentional misconduct by Tenant or any Tenant Parties. Landlord’s liability
under the foregoing indemnity (i) is personal to Tenant and may not be
assigned to or relied upon by any third party other than a Permitted Transferee
without Landlord’s prior written consent, which may be withheld in Landlord’s
sole and absolute discretion, (ii) is limited to Tenant’s actual, out of
pocket costs incurred in connection with complying with any order of any
applicable state or federal agencies relating to the remediation, removal,
disposal or monitoring (“Compliance
Order”) of Hazardous Substances on or about the Project as a result of the
use, storage, treatment, transportation, release, or disposal by Landlord, its
agents, employees or contractors or relating to contamination due to any
hydraulic oil released to the Land prior to the Delivery Date as a direct
result of the installation, maintenance or operation of the elevators within
the Project, and to reasonable consultants fees and costs and reasonable
attorneys’ fees and costs incurred in defending against a proposed Compliance
Order, so long as Landlord may select the attorney to defend Tenant and have
sole authority to make all settlement and other decisions in regard to the
proceedings, including the decision whether to challenge the Compliance Order
(and any related order or action) by appeal or court challenge, and (iii) specifically
excludes any claims, costs, damages or losses for personal injury, property
damage, punitive damages, damage to business, lost profits, or consequential
damages incurred by Tenant or any third party.


 


29.                                 EXCULPATION.  Landlord shall have no
personal liability under this Lease; its liability shall be limited solely and
exclusively to the interest of Landlord in the Project.  In no event shall Landlord’s liability extend
to any other property or assets of Landlord, nor shall any officer, director,
employee, agent, shareholder, partner, member or beneficiary of Landlord be personally
liable for any of Landlord’s obligations hereunder. Further, in no event shall
Landlord be liable under any circumstances for any consequential damages or for
injury or damage to, or interference with, Tenant’s business, including but not
limited to, loss of profits, loss of rents or other revenues, loss of business
opportunity, loss of goodwill, or loss of use, however occurring.


 


30.                                 COMMUNICATIONS AND COMPUTER LINES.  Tenant may install, maintain, replace,
remove or use any communications or computer wires and cables (collectively,
the “Lines”) at the Project in or serving the Premises, provided that (a) Tenant
shall obtain Landlord’s prior written consent, use an experienced and qualified
contractor approved in writing by Landlord, and comply with all of the other
provisions of this Lease, (b) the Lines therefor (including riser cables)
shall be appropriately insulated to prevent excessive electromagnetic


 


45





















 


fields or radiation, and
shall be surrounded by a protective conduit reasonably acceptable to Landlord, (c) any
new or existing Lines servicing the Premises shall comply with all Governmental
Requirements, and (d) Tenant shall pay all costs in connection with the
foregoing. Landlord reserves the right to require that Tenant remove any Lines
located in or serving the Premises which are installed in violation of these
provisions, or which are at any time in violation of any Governmental
Requirements or represent a dangerous or potentially dangerous condition. In
addition, Landlord reserves the right to require that Tenant remove any or all
Lines installed by or for Tenant within or serving the Premises upon expiration
or sooner termination of this Lease, provided Landlord notifies Tenant prior to
or within thirty (30) days following such expiration or sooner termination. Any
Lines not required to be removed pursuant to this Section shall, at
Landlord’s option, become the property of Landlord (without payment by
Landlord). If Tenant fails to remove such Lines as required by Landlord, or
violates any other provision of this Section, Landlord may, after ten (10) days’
written notice to Tenant, remove such Lines or remedy such other violation, at
Tenant’s expense (without limiting Landlord’s other remedies available under
this Lease or Governmental Requirements).


 


31.                                 SATELLITE
DISH.


 


31.1                           Grant of License. 
Subject to the applicable terms and conditions contained in this Lease
(including, without limitation, Section 5 above and this Section), Tenant shall
have a non-exclusive license (the “License”), to install, operate,
maintain and use, during the Term, (a) one (1) satellite dish and
twenty-five (25) radio frequency antennae to service Tenant’s business in the
Premises (collectively, the “Satellite Dish”) on the open space of the
roof of the Building in a location reasonably designated by Landlord (the “Satellite
Dish Roof Area”); and (b) connections for the Satellite Dish for (i) electrical
wiring to the Building’s existing electrical supply and (ii) cable or
similar connection necessary to connect the Satellite Dish with Tenant’s
related equipment located in the Premises.  
The routes or paths for such wiring and connections shall be through the
Building’s existing risers, conduits and shafts, subject to reasonable space
limitations and Landlord’s reasonable requirements for use of such areas, and
in all events subject to Landlord’s reasonable approval of plans and
installation pursuant to other provisions of this Lease, including, without
limitation, Section 30 above (such routes or paths are collectively
referred to as the “Cable Path” and all such electrical and other
connections are referred to collectively as the 
“Connections”).  The Satellite
Dish and Connections are collectively referred to as the “Equipment”.


 


31.2                           Interference.  Without
limiting the generality of any other provision hereof, Tenant shall install,
maintain and operate the Equipment in a manner so as to not cause any electrical,
electromagnetic, radio frequency or other material interference with the use
and operation of any: (a) television or radio equipment in or about the
Building; (b) present or future electronic control system for any of the
Building’s operating services and/or Building Systems or the operation of the
elevators in the Building; (c) transmitting, receiving or master
television, telecommunications or microwave antennae equipment currently or
hereafter located in any portion of the Project; or (d) radio
communication system now or hereafter used or desired to be used by Landlord or
any other licensee or tenant of Landlord. 
Upon notice of any such interference, Tenant shall immediately cooperate
with Landlord to identify the source of the interference and shall, within
twenty-four (24) hours, if requested by Landlord, cease all operations of the
Equipment (except for intermittent testing as approved by Landlord, which


 


46





















 


approval shall not be
unreasonably withheld) until the interference has been corrected to the
reasonable satisfaction of Landlord, unless Tenant reasonably establishes prior
to the expiration of such twenty-four (24) hour period that the interference is
not caused by the Equipment, in which case Tenant may operate its Equipment
pursuant to the terms of this Lease. Tenant shall be responsible for all costs
associated with any tests deemed reasonably necessary to resolve any and all
interference as set forth in this Section. If any such interference caused by
Tenant has not been corrected within ten (10) days after notice to Tenant,
Landlord may (i) require Tenant to remove the specific Equipment causing
such interference, or (ii) eliminate the interference at Tenant’s expense.
If the equipment of any other party causes interference with the Equipment,
Tenant shall reasonably cooperate with such other party to resolve such
interference in a mutually acceptable manner.


 


31.3                           Roof Repairs.  In
the event Landlord desires to perform roof repairs and/or roof replacements to
the Building (the “Roof Repairs”), Landlord shall give Tenant at least
ten (10) days’ prior written notice of the date Landlord intends to
commence such Roof Repairs (except in the event of an emergency, in which event
Landlord shall furnish Tenant with reasonable notice in light of the
circumstances). Tenant shall, within ten (10) days following receipt of
such notice, undertake such measures as it deems suitable to protect the
Equipment from interference by Landlord, its agents, contractors or employees,
in the course of any Roof Repairs.


 


31.4                           Rules and Regulations.  Without
limiting the applicable provisions of this Lease, Tenant’s use of the roof of
the Building for the installation, operation, maintenance and use of the
Equipment shall be subject to the terms and conditions contained in the Rooftop
Work Rules and Regulations attached hereto as Exhibit B-1.


 


32.                                 REDUCTION OPTION.


 


32.1                           Exercise of Reduction Option.  Subject
to the terms and conditions contained herein, Tenant shall have a one (1) time
right (the “Reduction Option”) to reduce the size of the Premises to
5l,224 rentable square fleet, so that the Premises subject to this Lease shall
be that space comprising the entirety of the second floor of the Building as
identified on Exhibit A-2 and the portion of the first floor
of the Building single hatched on Exhibit A-3 attached hereto
(collectively, the “Remainder Premises”). The Reduction Option shall be
exercisable only by giving Landlord unconditional and irrevocable written
notice (“Reduction Notice”) thereof within one hundred twenty (120) days
after Tenant’s execution of this Lease. If Tenant fails to timely exercise the
Reduction Option, Tenant’s exercise of the Reduction Option shall be null and
void. In addition, Tenant’s exercise of the Reduction Option shall, at Landlord’s
election, be null and void if any Event of Default by Tenant under this Lease
exists on the date of Landlord’s receipt of Tenant’s Reduction Notice or at any
time thereafter prior to the Surrender Date (as hereafter defined). If Tenant
exercises the Reduction Option, the reduction in the size of the Premises shall
be effective as of the date that is thirty (30) days after the date of the
Reduction Notice (the “Surrender Date”), and Tenant shall surrender the
portion of the Premises other than the Remainder Premises (the “Deletion
Space”) to Landlord in the condition required pursuant to Section 14
hereof on or before the Surrender Date. If Tenant fails to so vacate and
surrender possession of the Deletion Space on the Surrender Date, the
provisions of Section 15 hereof shall apply to Tenant’s continued occupancy.
At Landlord’s request, Tenant shall


 


47





















 


promptly execute an
amendment to this Lease to reflect the reduction in the size of the Premises
(including proportionate reductions in Base Rent and Proportionate Share).


 


32.2                           Personal to Tenant.  The
Reduction Option is personal to, and may be exercised only by, the original
named Tenant hereunder or a Permitted Transferee.  If Tenant assigns this Lease or sublets all
or any portion of the Premises other than to a Permitted Transferee, then
immediately upon such assignment or subletting, Tenant’s right to exercise the Reduction
Option shall simultaneously terminate and be of no further force or effect.  No assignee or subtenant other than a
Permitted Transferee shall have any right to exercise the Reduction Option.


 


32.3                               If Tenant exercises the Reduction Option,
then, within thirty (30) days after the Surrender Date, Tenant, at its sole
cost and expense, shall make such alterations that (i) Landlord deems reasonably
necessary or appropriate to demise the Remainder Premises, and (ii) Tenant
deems reasonably necessary or appropriate to create access from the Remainder Premises
to the freight elevator in the dock area. 
Such alterations shall comply with the requirements of Section 5
above.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Lease.


 


LANDLORD:


 


CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P.,


a
Delaware limited partnership


 


	
  By:

  	
  CarrAmerica Realty
  Corporation,

  
	
   

  	
  a
  Maryland corporation, its general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Christopher Peatross

  
	
   

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
  Date of Execution:

  	
   

  	
   

  
						



 


TENANT:


 


PROXIM
CORPORATION,


a Delaware corporation


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
  [chairman,
  president or vice-president]

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
  [secretary,
  assistant secretary,

  
	
   

  	
  chief
  financial officer or assistant treasurer]

  
	
   

  
	
  Date of Execution:

  	
   

  	
   

  
							



 


49





















 


EXHIBIT B


 


STIPULATION


 


 


[ATTACHED]


 


1





















 


EXHIBIT C


 


LC AMENDMENT CERTIFICATE PROVISION


“OR


 


(C)                                “Beneficiary has the right to draw upon the
Letter of Credit pursuant to the terms and conditions of that certain Lease
Termination Agreement dated [INSERT DATE], as amended from time to time,
executed by and between Beneficiary, Applicant, and Proxim Wireless Networks, Inc.”


 


1