**Exhibit10.30**

 

LEASE

 

THIS LEASE is made as of the 17thday of June, 1991, by and between

 

**3000OAKMEAD VILLAGE DRIVE, LTD.**

 

(hereinafter called“Landlord”), and

 

**GHzTECHNOLOGY, INC,**

 

(hereinafter called“Tenant”).

 

Witnesseth:

 

Landlord hereby leases to Tenantand Tenant hereby leases from Landlord the real property commonly known as APN#216-48-025 and Suite Number 100 (hereinafter called “Premises”) outlined onthe floor plan attached hereto and marked Exhibit “A”, and said Premises beingagreed, for the purpose of this Lease, to have an area of approximately

 

NineThousand eight hundred fifty (9,850) Square Feet

 

of rentable square feet

 

of that certain buildingcomplex located at 3000 Oakmead Village Drive, Santa Clara, California(hereinafter called “Complex”), and all personal property listed on Exhibit Alattached hereto.

 

The parties hereto agreethat said letting and hiring is upon and subject to the terms, covenants andconditions herein set forth and Tenant covenants as a material part of the considerationfor this Lease to keep and perform each and all of said terms, covenants andconditions by it to be kept and performed and that this Lease is made upon thecondition of such performance.

 

1.             TERM. The term of this Lease shall be for ten (10) years commencing on the1st day of June, 1991, and ending on the 30th day of May, 2001, unless the termof the Premises hereby demised shall be sooner terminated as hereinafterprovided.

 

2.             POSSESSION.

 

(A)          Tenant agrees that in the event of theinability of Landlord to deliver possession of the Premises

to Tenant on the date abovespecified for the commencement of the term of this Lease, this Lease shall notbe void or voidable, nor shall Landlord be liable to Tenant for any loss ordamage resulting therefrom, but the expiration date of the above term shall beextended by the same number of days that the Tenant’s possession of thePremises was detained by Landlord’s inability to deliver possession, and insuch event Tenant shall not be liable for any rent until such time as Landlordtenders delivery of possession of the Premises to Tenant with Landlord’s worktherein if any, substantially completed. Should Landlord tender possession ofthe Premises to Tenant prior to the date specified for commencement of the termhereof, and Tenant elects to accept such prior tender, such prior occupancyshall be subject to all of the terms, covenants and conditions of this Lease,including the payment of rent. Notwithstanding the above, if Landlord does notdeliver possession by August 1, 1991 Tenant can elect to terminate this leaseby giving written notice to Landlord within five (5) days after said date, inwhich case the lease shall be terminated. However, delays caused by acts ofGod, strikes, war, utilities, governmental bodies, weather, unavailablematerials, and delays beyond the Landlord’s control shall be excluded incalculating such period.

 

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(B)           The term of this Lease shall commence June 1,1991.

 

3.             RENT.

 

(A) Base Rent. Tenantshall pay to Landlord as Base Rent for the Premises, in advance and subject toadjustments as provided herein, the sum of eight thousand three hundred seventytwo 50/100

 

Dollars ($8,372.50) on or before the first day of each and everysuccessive calendar month thereafter during the term hereof, commencing August1, 1991.

 

(B)              Rental Adjustments. The Base Rent provided for in Paragraph 3(A)**ofthis Lease shall be subject to adjustment at the commencement of the second yearof the term and each and every year thereafter (“the adjustment dates”) asfollows:

 

At the commencement of

 
| Year 2 - $.90 per rentable square foot                                                                                                                                                                  |   |   |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|
| Year 3 - $.95   “      “               “       “       |   |   |
| Year 4 - $1.00   “      “              “        “      |   |   |
| Year 6 - $1.05   “    “              “        “             |   |   |
| Year 8 - $1.10   “      “              “        “ |   |   |
| Year 10 - $1.15   “  “              “        “                        |   |   |

 

or as adjusted in accordancewith Paragraph 43. of this Lease.

 

(C)                Additional Rent. Beginning with the commencement of the termof this Lease, Tenant shall pay to Landlord in addition to the Base Rent and asAdditional Rent the following:

 

(i)Taxes.

 

(a)           As Additional Rent and in accordance withParagraph 3D of this Lease, Tenant shall pay to Landlord Tenant’s proportionateshare of all Real Property Taxes, which prorata share shall be allocated to theleased Premises by square footage or other equitable basis. The term “RealProperty Taxes”, as used herein, shall mean (i) all taxes, assessments, leviesand other charges of any kind or nature whatsoever, general and special, foreseenand unforeseen (including all installments of principal and interest requiredto pay any general or special assessments for public improvements and anyincreases resulting from reassessments caused by any change in ownership of theComplex) now or hereafter imposed by any governmental or quasi-governmentalauthority or special district having the direct or indirect power to tax orlevy assessments, which are levied or assessed against, or with respect to thevalue, occupancy or use of, all or any portion of the Complex (as nowconstructed or as may at any time hereafter be constructed, altered, orotherwise changed) or Landlord’s interest therein; any improvements locatedwithin the Complex (regardless of ownership); the fixtures, equipment and otherproperty of Landlord, real or personal, that are an integral part of andlocated in the Complex; or parking areas, public utilities, or energy withinthe Complex; (ii) all charges, levies or fees imposed by reason ofenvironmental regulation or other governmental control of the Complex;excluding those which may be imposed due to preexisting conditions of theComplex, and (iii) all reasonable costs and fees (including attorneys’ fees)incurred by Landlord in contesting any Real Property Tax and in negotiatingwith public authorities as to any Real Property Tax. If at any time during theterm of this Lease the taxation or assessment of the Complex prevailing as ofthe commencement date of this Lease shall be altered so that in lieu of or inaddition to any Real Property tax described above there shall be levied,assessed or imposed (whether by reason of a change in the method of taxation orassessment, creation of a new tax or charge, or any other cause) an alternateor additional tax or charge (i) on the value, use o-r occupancy of the Complexor Landlord’s interest therein or (ii) on or measured by the gross receipts,income or rentals from the Complex, on Landlord’s business of leasing theComplex, or computed in any manner with respect to the operation of theComplex, then any such tax or charge, however designated, shall be includedwithin the meaning of the term “Real Property Taxes” for purposes of thisLease. If any Real Property Tax is based upon property or rents unrelated tothe Complex then only that part of such Real Property Tax that is fairlyallocable to the Complex shall be

 

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included within the meaning of the term “Real Property Taxes.”Notwithstanding the foregoing, the term “Real Property Taxes” shall not includeestate, inheritance, gift or franchise taxes of Landlord or the federal orstate net income tax imposed on Landlord’s income front all sources.

 

(b)           (i) Tenant shall be liable for and shall payten days before delinquency, taxes levied against any personal property ortrade fixtures placed by Tenant in or about the Premises. If any such taxes onTenant’s personal property or trade fixtures are levied against Landlord orLandlord’s property or if the assessed value of the Premises is increased bythe inclusion therein of a value placed upon such personal property or tradefixtures of Tenant and if Landlord, after written notice to Tenant, pays thetaxes based on such increased assessment, which Landlord shall have the rightto do regardless of the validity thereof, but only under proper protest ifrequested by Tenant. Tenant shall upon demand, as the case may be, repay toLandlord the taxes so levied against Landlord, or the propertion of such taxesresulting from such increase in the assessment; provided that in any such eventTenant shall have the right, in the name of Landlord and with Landlord’s fullcooperation, to bring suit in any court of competent jurisdiction to recoverthe amount of any such taxes so paid under protest, and any amount so recoveredshall belong to Tenant. (ii) If the Tenant improvements in the Premises,whether installed, and/or paid for by Landlord or Tenant and whether or notaffixed 10 the real property so as to become a part thereof, arc assessed forreal property tax purposes at a valuation higher than the valuation at whichstandard office improvements in other space in the Complex are assessed, thenthe real property taxes and assessments levied against Landlord or the Complexby reason of such excess assessed valuation shall be deemed to be taxes leviedagainst personal property of Tenant and shall be governed by the provisions of3(C)(i)(a) above. If the records of the County’ Assessor are available andsufficiently detailed to serve as a basis for determining whether said Tenantimprovements are assessed at a higher valuation than standard officeimprovements in other space in the Complex, such records shall be binding onboth the Landlord and the Tenant. If the records of the County Assessor are notavailable or sufficiently detailed to serve as a basis for making saiddetermination, the actual cost of construction shall be used.

 

(c)           Tenant’s obligation to pay its share of realproperly assessments as Additional Rent under this Subparagraph 3(c)(i) shallbe calculated on the basis of the amount due if Landlord allows the assessmentsto go to bond, and the assessment is to be paid in installments, even ifLandlord pays the assessment in full. ‘Property Taxes’ shall not include anytaxes attributable to leasehold improvements made by or for any other tenantsin the Complex.

 

(ii)           Property Insurance. Landlordshall purchase and keep in force and as Additional Rentand in accordance with Paragraph 3D of**this Lease, and Tenant shall payto Landlord Tenant’s proportionate share (calculated on a square footage orother equitable basis as calculated by Landlord) of the cost of a policy orpolicies of insurance covering loss or damage to the Premises and Complex inthe amount of the full replacement value thereof, providing protection againstthose perils included within the classification of “all risks” insurance andflood and/or earthquake insurance, if available, at a reasonable cost ascompared to other insurance policy premiums, plus a policy of rental incomeinsurance in the amount of one hundred (100%) percent of twelve (12) monthsBasic Rent, plus sums paid as Additional Rent. If such insurance cost isincreased due to Tenant’s use of the Premises or the Complex, Tenant agrees topay to Landlord the full cost of such increase. Tenant shall have no interest innor any right to the proceeds of any insurance procured by Landlord for theComplex.

 

Landlord and Tenant do eachhereby respectively release the other, to the extent of insurance coverage ofthe releasing party, from any liability for loss or damage caused by fire orany of the extended coverage casualties included in the releasing party’sinsurance policies, irrespective of the cause of such fire or casualty;provided, however, that if the insurance policy of either releasing partyprohibits such waiver, then this waiver shall not take effect until consent tosuch waiver is obtained. If such waiver is so prohibited, the insured partyaffected shall promptly notify the other party thereof.

 

(iii) Expenses ofOperation, Management and Maintenance of the Common Areas of the Complex.As Additional Rent, Tenant shall pay to Landlord Tenant’s proportionate share(calculated on a square footage or other equitable basis as calculated byLandlord) of all expenses of operating, management, maintenance and repair of theCommon Areas of the Complex including, but not limited to, license, permit, andinspection fees; security; utility charges associated with exterior landscapingand lighting (including water and sewer charges); all charges incurred in themaintenance of landscaped areas, lakes, parking lots, sidewalks, driveways;maintenance, repair and replacement of a1l fixtures and electrical, mechanical,and plumbing systems; structural elements and exterior surfaces of thebuildings; salaries and employee benefits of personnel and payroll taxes to theextent that such employees are employed in the management or maintenance of theCommon Areas of the Complex applicable thereto; supplies, materials, equipmentand tools; the cost of capital expenditures which have the effect of reducingoperating expenses, provided, however, that in the event Landlord makes suchcapital improvements, Landlord may

 

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amortize its investment in said improvements (together with interest atthe rate of the Wells Fargo Bank Prime Rate plus two percent (2 %) per annum onthe unamortized balance) as an operating expense in accordance with standardaccounting practices, provided, that such amortization is not at a rate greaterthan the anticipated savings in the operating expenses.

 

“Additional Rent” as usedherein shall not include Landlord’s debt repayments; interest on charges;expenses directly or indirectly incurred by Landlord for the benefit of anyother tenant; cost for the installation of partitioning or any other tenantimprovements; cost of attracting tenants; depreciation; interest, or executivesalaries.

 

As Additional Rent, Tenantshall pay its proportionate share (calculated on a square footage or otherequitable basis as calculated by Landlord) of the cost of operation (includingcommon utilities), management, maintenance, and repair of the building(including common areas such as lobbies, restrooms, janitor’s closets,hallways, elevators, mechanical and telephone rooms, stairwells, entrances,spaces above the ceilings and janitorization of said common areas) in which thePremises are located. The maintenance items herein referred to include, but arenot limited to, all windows, window frames, plate glass, glazing, truckdoors,main plumbing systems of the building (such as water and drain lines, sinks,toilets, faucets, drains, showers and water fountains), main electrical systems(such as panels and conduits), heating and air conditioning systems (such ascompressors, fans, air handlers, ducts, boilers, heaters), store fronts, roofs,downspouts, building common area interiors (such as wall coverings, windowcoverings, floor coverings and partitioning), ceilings, building exteriordoors, skylights (if any), automatic fire extinguishing systems, and elevators;license, permit, and inspection fees; security; salaries and employee benefitsof personnel and payroll taxes applicable thereto; supplies, materials,equipment and tools; the cost of capital expenditures which have the effect ofreducing operating expenses, provided, however, that in the event, Landlordmakes such capital improvements, Landlord may amortize its investment in saidimprovements (together with interest at the rate of fifteen (15 %) percent perannum on the unamortized balance) as an operating expense in accordance withstandard accounting practices, provided, that such amortization is not at arate greater than the anticipated savings in the operating expenses. Tenanthereby waives all rights under, and benefits of, subsection 1 of Section 1932and Sections 1941 and 1942 of the California Civil Code and under any similarlaw, statute or ordinance now or hereafter in effect.

 

(iv)          Utilities of the Complex in Which thePremises are Located. AsAdditional Rent, Tenant shall pay its proportionate share (calculated on a squarefootage or other equitable basis as calculated by Landlord) of the cost of allutility charges such as water, gas, electricity, telephone, telex and otherelectronic communications service, sewer service, waste-pick-up and any otherutilities, materials or services furnished directly to the building in whichthe Premises are located, including, without limitation, any temporary orpermanent utility surcharge or other exactions whether or not hereinafterimposed. Tenant shall enter into an agreement with the other tenant(s) of theComplex which shall provide for the proration of the utilities of the Complex.Landlord shall have no obligation to determine or monitor the utilitiesconsumed or to adjudicate any disputes which may arise.

 

Landlord shall not be liablefor and Tenant shall not be entitled to any abatement or reduction of rent byreason of any interruption or failure of utility services to the Premises whensuch interruption or failure is caused by accident, breakage, repair, strikes,lockouts, or other labor disturbances or labor disputes of any nature, or byany other cause, similar or dissimilar, beyond the reasonable control ofLandlord. Tenant agrees that at all time it will cooperate fully with Landlordand abide by all regulations and requirements that Landlord may prescribe forthe proper functioning and protection of the building heating, ventilating andair conditioning systems. If Tenant shall require water, gas, or electriccurrent in excess of that usually furnished or supplied to Premises, Tenantshall first obtain the written consent of Landlord, which consent shall Dot beunreasonably withheld and Landlord may cause an electric current, gas, or watermeter to be installed in the Premises in order to measure the amount of‘electric current, gas or water consumed for any such excess use. The cost ofany such meter and of the installation, maintenance and repair thereof, allcharges for such excess water, gas and electric current consumed (as shown bysuch meters and at the rates then charged by the furnishing public utility);and any additional expense incurred by Landlord in keeping account of electriccurrent, gas, or water so consumed shall be paid by Tenant, and Tenant agreesto pay Landlord therefor promptly upon demand by Landlord.

 

The Additional Rent duehereunder shall be paid to Landlord (i) within five (5) days after presentationof invoice from Landlord setting forth such Additional Rent and/or (ii) at theoption of Landlord, Tenant shall pay to Landlord monthly, in advance, Tenant’spro rata share of an amount estimated by Landlord to be Landlord’s approximateaverage monthly expenditures for such Additional Rent items, which estimatedamount shall be reconciled at the end of each calendar year as compared toLandlord’s actual expenditure for said Additional Rent items, with Tenantpaying to Landlord, upon demand, any amount of actual expenses expended byLandlord in excess of said estimated amount, or Landlord refunding to Tenant(providing Tenant is not in default under this Leases) any amount of estimatedpayments made by Tenant in excess of Landlord’s actual expenditures for said

 

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Additional Rent items.

 

The respective obligationsof Landlord and Tenant under this paragraph shall survive the expiration orother termination of this Lease, and if the term hereof shall expire or shallotherwise terminate on a day other than the last day of a calendar year, theactual Additional] Rent incurred for the calendar year in which the term hereofexpires or otherwise terminates shall be determined and settled on the basis ofthe statement of actual Additional Rent for such calendar year and shall be prorated in the proportion which the number of days in such calendar yearpreceding such expiration or termination bears to 365.

 

(D)             Time for Payment.  Inthe event that the term of this Lease commences on a date other than the firstday of a calendar month, on the date of commencement of the term hereof Tenantshall pay to Landlord, as rent for the period from such date of commencement tothe first day of the next succeeding calendar month, that proportion of themonthly rent hereof which the number of days beyond such date of commencementand the first day of the next succeeding calendar month bears to thirty (30).In the event that the term of this Lease, for any reason, ends on a date otherthan the last day of a calendar month, on the first day of the last calendarmonth of the tenn hereof, Tenant shall pay to Landlord, as rent for the periodfrom said first day of the last calendar month to and including the lastcalendar day of the term hereof, that proportion of the monthly rent hereofwhich the number of days beyond said first day of said last calendar month andthe last day of the term hereof bears to thirty (30).

 

(E)           Late Charge. Notwithstanding any other provision of this Lease, if Tenant is indefault in the payment of rental as set forth in this Paragraph 3 when due, orany part thereof, Tenant agrees to pay Landlord, in addition to the delinquentrental due, a late charge fee for each rental payment in default ten (10) days.Said late charge shall equal five (5 %) percent of each rental payment so indefault.

 

(F)           First Month’s Rent. Lessor acknowledges receipt from Tenant onthe execution hereof, the sum of Eight thousand three hundred seventy two and50/100 Dollars ($8,372.50) constituting rent for first month of the termhereof.

 

(G)           Place of Payment of Rent and Direct Expenses. All rental hereunder and all paymentshereunder for Operating Expenses and Taxes shall be paid to Landlord, withoutdeduction or offset, in lawful money of the United States of America, at theoffice of Landlord at

 

700Emerson Street, Palo Alto, CA 94301

 

or to such other person orto such other place as Landlord may, from time to’ time, designate in writing.

 

(H)             Security Deposit. Concurrently with Tenant’s execution ofthis Lease, Tenant shall deposit with Landlord the sum of Twenty thousand andno/100 Dollars ($20.000.00).  Said sumshall be held by Landlord as a Security Deposit for the faithful performance byTenant of all of the terms, covenants, and conditions of this Lease to be keptand performed by Tenant during the term hereof. If Tenant defaults with respectto any provision of this Lease, including, but not limited to, the provisionsrelating to the payment of rent and any of the monetary sums due herewith,Landlord may (but shall not be required to) use, apply or retain all or anypart of this Security Deposit for the payment of any other amount whichLandlord may spend by reason of Tenant’s default or to compensate Lessor forany other loss or damage which Landlord may suffer by reason of Tenant’sdefault. If any portion of said Deposit is so used or applied, Tenant shall,within ten (IO) days after written demand therefor, deposit cash with Landlordin an amount sufficient to restore the Security Deposit to its original amount.Tenant’s failure to do so shall be a material breach of this Lease. Landlordshall not be required to keep this Security deposit separate from its generalfunds, and Tenant shall not be entitled to interest on such Deposit. If Tenantfully and faithfully performs every provision of this Lease to be performed byit, the Security Deposit or any balance thereof shall be returned to Tenant (orat Landlord’s option, to the last assignee of Tenant’s interest hereunder) atthe expiration of the Lease term and after Tenant has vacated the Premises. Inthe event of termination of Landlord’s interest in this Lease, Landlord shalltransfer said Deposit 10 Landlord’s successor in interest whereupon Tenantagrees to release Landlord from liability for the return of such Deposit or theaccounting therefor.

 

4.             USE. Tenant shall use the Premises for the manufacturer of semiconductorproducts, wafer fabrication, assembly and testing, and general office purposesand shall not use or permit the Premises to be used for any other purposewithout the prior written consent of Landlord. Tenant shall not use or occupythe Premises in violation of

 

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law or of the certificate ofoccupancy issued for the Complex of which the Premises are a part and shall,upon five (5) days’ written notice from Landlord, discontinue any use of thePremises which is declared by any governmental authority having jurisdiction tobe a violation of law or of said certificate of occupancy. Tenant shall complywith any direction of any governmental authority having jurisdiction, whichshall by reason of the nature of Tenant’s use or occupancy of the Premisesimpose any duty upon Tenant or Landlord with respect to the Premises, or withrespect to the use of occupation thereof. Tenant shall not do or permit to bedone anything which will invalidate or increase the cost of any lire, extendedcoverage or any other insurance policy covering the Complex and/or propertylocated therein. Tenant shall promptly upon demand reimburse Landlord for anyadditional premium charged for such policy by reason of Tenant’s failure tocomply with the provisions of this Paragraph. Tenant shall promptly upon demandreimburse Landlord for any additional premium charged for such policy by reasonof Tenant’s failure to comply with the provisions of this Paragraph. Tenantshall not do or permit anything to be done in or about the Premises which willin any way obstruct or interfere with the rights of other tenants or occupantsof the Complex, or injure or annoy them, or use or allow the Premises to beused for any improper, immoral, unlawful or objectionable purpose, nor shallTenant cause, maintain or permit any nuisance in, on or about the Premises. Tenantshall not commit or suffer to be committed any waste in or upon the Premises.

 

5.             NOTICES.  Any notice required orpermitted to be given hereunder must be in writing and may be given by personaldelivery or by mail, and if given by mail shall be deemed sufficiently givenwhen sent by registered or certified mail addressed to Tenant at the Complex ofwhich the Premises are a part, or to Landlord at the address of Landlord setforth in Paragraph 3 (G). Either party may by written notice to the other specifya different address for notice purposes except that the Landlord may in anyevent use the Premises as Tenant’s address for notice purposes.

 

6.             BROKERS. Tenant and Landlord each warrant that it has had no dealings with anyreal estate broker or agent in connection with the negotiation of this Leaseexcepting only

 

The Alpha & Omega Groupand Cornish & Carey Commercial and that it knows of no other real estatebroker or agent who is, or might be, entitled to a commission in connectionwith this Lease. Upon demand, Tenant shall pay all reasonable costs, attorneys’fees and damages incurred by Landlord as a result of any breach of thiswarranty.

 

7.             HOLDING OVER.  IfTenant holds over after the expiration or earlier termination of the termhereof without the express written consent of Landlord, Tenant shall become atenant at sufferance only, at double the market rental rate in effect upon thedate of such expiration and otherwise upon the terms, covenants and conditionsherein specified, so far as applicable. Acceptance by Landlord of rent aftersuch expiration or earlier termination shall not constitute a holdoverhereunder or result in a renewal. The foregoing provisions of this paragraphare in addition to and do not affect Landlord’s right of re-entry or any otherrights of Landlord hereunder or as otherwise provided by law.

 

8.             CONDITIONS OF PREMISES. Tenant acknowledges that neither Landlordnor any agent of Landlord has made any representation or warranty with respectto the Premises or the Complex or with respect, to the suitability of eitherfor the conduct of Tenant’s business. The taking of possession of the Premisesby Tenant shall conclusively establish that the Tenant’s Premises and saidComplex were at such time in satisfactory condition.

 

9.             ALTERATIONS. Tenant shall make no alterations, decorations, additions orimprovements in or to the Premises with a total cost in excess of threethousand and no/100 Dollars($3,000.00) without Landlord’s prior written consent, and then only bycontractors or mechanics approved by Landlord which approval shall not beunreasonably withheld. Tenant agrees that there shall be no construction orpartitions or other obstructions which might interfere with Landlord’s freeaccess to mechanical installations or service facilities of the Complex orinterfere with the moving of Landlord’s equipment to or from the enclosures,containing said installations or facilities. All such work shall be done atsuch times and in such manner as Landlord may from time to time designate.Tenant covenants and agrees that all work done by Tenant shall be performed infull compliance with all laws, rules, orders, ordinances, directions,regulations and requirements of all governmental agencies, offices,departments, bureaus and boards having jurisdiction. Before commencing anywork, Tenant shall give Landlord at least five (5) days’ written notice of theproposed commencement of such work, and shall, if required by Landlord,

 

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secure at Tenant’s own costand expense a completion and lien indemnity bond, satisfactory to Landlord, forsuch work. Tenant further covenants and agrees that any mechanic’s lien filedagainst the Premises or against the Complex for work claimed to have been donefor, or materials claimed to have been furnished to, Tenant, will be dischargedby Tenant, by bond or otherwise, within ten (10) days after the filing thereof,at the cost and expense of Tenant. All alterations, decorations, additions orimprovements upon the Premises made by either party, including (withoutlimiting the generality of the foregoing) all wallcoverings, built-in cabinetwork, paneling and the like, shall, unless Landlord elects otherwise, becomethe property of Landlord and shall remain upon, and be surrendered with, thePremises, as a part thereof, at the end of the term hereof, except thatLandlord may, by written notice to Tenant, require Tenant to remove allpartitions, counters, railings and the like installed by Tenant, and Tenantshall’ repair or, at Landlord’s option, shall pay to the Landlord all costsarising from such removal. It is hereby acknowledged that Tenant shallconstruct a wall in the Complex which is to physically separate the Premisesfrom the balance of the Complex. Tenant is to provide floor plan whichspecifies location and materials for Landlord’s approval.

 

All personal property,equipment and trade fixtures on the Premises at the commencement of the Leaseshall remain the property of Landlord and shall be surrendered with thePremises at the expiration of this Lease or sooner termination of the termhereof. All personal property, office machinery and equipment trade fixtures,furniture and moveable partitions owned by Tenant or installed by Tenant at itsexpense in the Premises shall be and remain the property of Tenant and may beremoved by Tenant at any time during the lease term when Tenant is not indefault hereunder. If Tenant shall fail to remove all of its effects from saidPremises upon termination of this Lease for any cause whatsoever, Landlord may,at its option, remove the same in any manner that Landlord shall choose, andstore said effects without liability to Tenant for loss thereof, and Tenantagrees to pay Landlord upon demand any and all reasonable expenses incurred insuch removal, including court costs and attorneys’ fees and storage charges onsuch effects for any length of time that the same shall be in Landlord’spossession; or Landlord may, at its option, without notice, sell said effects,or any of the same, at private sale and without legal process, for such price as Landlord may obtain and apply theproceeds of such sale upon any amounts due under this Lease from Tenant toLandlord and upon the expenses incident to the removal and sale of saideffects.

 

10.           REPAIRS. By entry hereunder Tenant accepts the Premises as being in good,sanitary order, condition and repair. Tenant shall, at Tenant’s sole cost andexpense, keep the Premises and every part thereof in a high standard ofmaintenance and repair and in good and sanitary condition and repair, ordinarywear and tear and damage from causes beyond the reasonable control of Tenantexcepted. Tenant shall, upon the expiration or sooner termination of the termhereof, surrender the Premises to Landlord in the same condition as whenreceived, ordinary wear and tear and damage from causes beyond the reasonablecontrol of Tenant excepted, with all interior walls painted, or cleaned so thatthey appear freshly painted, repaired, and replaced, if damaged; all floorscleaned and waxed; all carpets cleaned and shampooed. Landlord shall have noobligation to alter, remodel, improve, repair, decorate or paint the Premisesor any part thereof and the parties hereto affirm that Landlord has made norepresentations to Tenant respecting the conditions of the Premises or theComplex except as specifically herein set forth.

 

11.           LIENS. Tenant shall keep the Premises, the Complex and the property uponwhich the Complex is situated free from any liens arising out of the workperformed, materials furnished or obligations incurred by Tenant.

 

12.           ENTRY BY LANDLORD. Landlord, upon reasonable prior notice toTenant, reserves and shall at any and all times have the right to enter thePremises to inspect same, to supply janitorial services and any other serviceto be provided to Tenant by Landlord hereunder, to submit said Premises toprospective purchasers or tenants, to post notices of nonresponsibility, toalter, improve or repair the Premises or any portion of the Complex, allwithout being deemed guilty of an eviction of Tenant and without abatement ofrent, and may erect scaffolding and other necessary structures where reasonablyrequired by the character of the work to be performed, provided that thebusiness of the Tenant shall be interfered with as little as is reasonablypracticable. Tenant hereby waives any claim for damages for any injury orinconvenience to or interference with Tenant’s business, any loss of occupancyor quiet enjoyment of the Premises, and any other loss occasioned thereby. Foreach of the aforesaid purposes, Landlord may at Landlord’s sole discretionretain a key with which to unlock all of the doors in, upon and about thePremises, excluding Tenant’s vaults and safes, and Landlord shall have theright to use any and all means which Landlord may deem proper to open said doorin an emergency in order to obtain entry to the Premises, and any entry to thePremises obtained by Landlord by any of said means, or otherwise, shall notunder any circumstances be construed or deemed to be a forcible or unlawful entryinto, or a detainer of, the Premises, or an eviction of Tenant

 

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from the Premises or anyportion thereof, and any damages caused on account thereof shall be paid byTenant. It is understood and agreed that no provision of the Lease shall beconstrued as obligating Landlord to perform any repairs, alterations ordecorations except as otherwise expressly agreed herein to be performed byLandlord. In the event Landlord must enter the Premises, Landlord shall makeevery effort to minimize any damages or losses to Tenant or Tenant’s property.

 

13.           INDEMNIFICATIONS. Tenant shall indemnify and hold harmlessLandlord against and from any and all causes and claims including, but notlimited to, those arising from Tenant’s use of the premises or the conduct ofits business or from any activity, work done, permitted or suffered by theTenant in or about the premises, from Landlord’s passive negligence, and shallfurther indemnify and hold harmless Landlord against and from any and allclaims arising from any breach or default in the performance of any obligationof Tenant’s part to be performed under the terms of this Lease, or arising fromany act, neglect, fault or omission of the Tenant, or of its agents oremployees, and from and against all costs, attorneys’ fees, expenses andliabilities incurred in or about such claim or any action or proceeding broughtthereon, and in case any action or proceeding be brought against Landlord byreason of any such claim, Tenant upon notice from Landlord shall defend the sameat Tenant’s expense by counsel reasonably satisfactory to Landlord. Tenant, asa material part of the consideration to Landlord, hereby assumes all risk ofdamage to property or injury to person in, upon or about the Premises from anycause whatsoever except that which is caused by the neglect, willful conduct orfailure of Landlord to observe any of the terms and conditions to this Leasenotwithstanding anything in this Lease to the contrary. Landlord shallindemnify and hold harmless Tenant against and from any and all causes andclaims arising from the active neglect or willful misconduct or intentionalfailure of Landlord to observe any of the terms and conditions of this Lease,and pre-existing contamination from hazardous materials as provided in Paragraph45. of this Lease.

 

14.           DAMAGE TO TENANT’S PROPERTY. Notwithstanding the provisions of Paragraph15 to the contrary, neither Landlord nor its agents shall be liable for anydamage to property entrusted to employees of the Complex, nor for loss of ordamage to any property by theft or otherwise, nor for any injury or damage topersons or property resulting from fire, explosion, falling plaster, steam,gas, electricity, water or rain which may leak from any part of the Complex orfrom the pipes, a1ppliances or plumbing works therein or from the roof, streetor sub-surface or from any other place or resulting from dampness or any othercause whatsoever, unless the same is caused by the active negligence or willfulmisconduct of the Landlord. Landlord or its agents shall not he liable forinterference with the light or other incorporeal hereditaments, nor shallLandlord be liable for any latent defect in the Premises or in the Complex.Tenant shall give prompt notice to landlord in case of fire or accidents in thePremises or in the Complex or of defects therein or in the fixtures orequipment.

 

15.           INSURANCE SUBROGATION. The parties release each other, and theirrespective authorized representatives, from any claims for damage to any personor to the Premises and to the fixtures, personal property, Tenant’simprovements, and alterations of either Landlord or Tenant in or on thePremises that are caused by or result from risks insured against under anyinsurance policies carried by the parties and in force at the time of any suchdamage.

 

Each party shall cause eachinsurance policy obtained by it to provide that the insurance company waivesall right of recovery by way of subrogation against either party in connectionwith any damage coveted by any policy. Neither party shall be liable to theother for any damages caused by fire and any of the risks insured against underany insurance policy required by this Lease.

 

16.           LIABILITY INSURANCE. Tenant shall, at Tenant’s expense, obtainand keep in force during the term of this Lease, a policy of comprehensivepublic liability insurance insuring Landlord and Tenant against any liabilityarising out of the ownership, use, occupancy, maintenance, repair orimprovement of the Premises and as appurtenant thereto. Such insurance shallprovide $1,000,000.00 combined single limit for bodily injury and propertydamage. The limits of said insurance shall not, however, limit the liability ofthe Tenant hereunder, and Tenant is responsible for ensuring that the amount ofliability insurance carried by Tenant is sufficient for Tenant’s purposes.Tenant may carry said insurance under a blanket policy, satisfactory toLandlord. If Tenant shall fail to procure and maintain said insurance, Landlordmay, but shall not be required to, procure and maintain same, but at theexpense of Tenant. Insurance required hereunder shall be in companies rated A +AAA or better in “Best’s Insurance Guide.” Tenant shall deliver to Landlordprior to occupancy of the Premises copies of policies of liability insurancerequired herein or certificates evidencing the existence and amounts of suchinsurance with evidence

 

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satisfactoryto Landlord of payment of premiums. No policy shall be cancelable or subject toreduction of coverage except after fifteen (15) days’ prior written notice toLandlord. Tenant acknowledges and agrees that insurance coverage carried byLandlord will not cover Tenant’s property within the Premises or the Complexand that Tenant shall be responsible, at Tenant’s sole cost and expense, forproviding insurance coverage for Tenant’s movable equipment, furnishing, tradefixtures and other personal property in or upon the Premises or the Complex,and for any alterations, additions or improvements to or of the Premises or anypart thereof made by Tenant, in the event of damage or loss thereto from anycause whatsoever.

 

(A)             Tenant’s Personal Property Insurance andWorkman’s Compensation Insurance. Tenant shall maintain a policy or policies of fire and propertydamage insurance in “all risk” form with a sprinkler leakage endorsement insuringthe personal property, inventory, trade fixtures, and leasehold improvementswithin the Premises for the full replacement value thereof. The proceeds fromany of such policies shall be used for the repair or replacement of such itemsso insured.

 

Tenant shall also maintain apolicy or policies of workman’s compensation insurance and any other employeebenefit insurance sufficient to comply with all laws.

 

17.           DAMAGE OR DESTRUCTION.

 

(A).         In the event the Complex of which thePremises or a part thereof is damaged the Landlord shall:

 

(i) In the event of thedestruction of all or more than twenty-five percent (25%) of the full insurablevalue of the Complex, or damage or destruction which is not covered byinsurance, at Landlord’s option, within a period of ninety (90) daysthereafter, commence repair, reconstruction and restoration of said Complex andprosecute the same diligently to completion, in which event this Lease shallremain in full force and effect, or within said ninety (90) day period electnot to so repair, reconstruct or restore said Complex in which event this Leaseshall terminate. In either event, Landlord shall make its best effort toprovide notice or commence repairs as soon as practicable, but in no eventlater than ninety (90) days from the date of the happening. Landlord shall givethe Tenant written notice of its intention within said ninety (90) day period.In the event Landlord elects not to restore said Complex, said Lease shall bedeemed to have terminated as of the date of such total destruction.

 

(ii) In the event of apartial destruction of the Complex to an extent not exceeding Twenty-Five Percent(25%) of the full insurable value thereof and if the damage thereto is such thatthe Complex may be repaired, reconstructed or restored within a period ofninety (90) days from the date of the happening of such casualty and Landlordwill receive insurance proceeds sufficient to cover the cost of such repairs,Landlord shall commence and proceed diligently with the work of repair,reconstruction am! restoration and the Lease shall continue in full force andeffect or Landlord may elect not to repair, reconstruct or restore and theLease shall in such event terminate. Under any of these conditions, theLandlord shall give written notice to the Tenant of its intention within saidninety (90) day period. In the event Landlord elects not to restore saidComplex, this Lease shall be deemed to have terminated as of the date of suchpartial destruction.

 

(B)              Upon any termination of this Lease under anyof the provisions of this Paragraph, the parties shall be released therebywithout further obligation to the other from the date possession of thePremises is surrendered to the Landlord except for items which have thereforeaccrued and are then unpaid.

 

(C)              In the event of repair, reconstruction andrestoration as herein provided, the rental provided to be paid under this Leaseshall be abated proportionally in the ratio which the Tenant’s use of saidPremises is impaired during the period of such repair, reconstruction orrestoration. The Tenant shall not be entitled to any compensation or damagesfor loss in the use of the whole or any part of said Premises and/or anyinconvenience or annoyance occasioned by such damage, repair, reconstruction orrestoration, provided that Landlord minimizes interference with the conduct ofTenant’s business.

 

(D)             Tenant shall not be released from any of itsobligations under this Lease except to the extent and

 

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upon the conditions expresslystated in this Paragraph. Notwithstanding anything to the contrary contained inthis Paragraph, should Landlord be delayed or prevented from repairing orrestoring said damaged Premises within one (1) year after the occurrence ofsuch damage or destruction by reason of acts of God, war, governmental restrictions,inability to procure the necessary labor *or*materials,or**othercauses beyond the reasonable control ofLandlord, the Landlord shall be relieved of its obligation to make such repairs or restoration and Tenantshall be released from its obligations under this Lease as of the end of said one (1) year period.

 

(E)              It is hereby understood that if Landlord isobligated to *or*elects to repair *or*restore as herein provided, Landlordshall be obligated to make repairs or restoration only of those portions ofsaid Complex and said Premises which were originally provided at Landlord’sexpense; and the repair and restoration of**items not provided at Landlord’sexpense shall be the obligation of**Tenant.

 

(F)              Notwithstanding anything to the contrarycontained in this Paragraph, Landlord shall not have any obligation whatsoeverto repair, reconstruct or restore the Premises when the damage resulting fromany casualty covered under this Paragraph occurs during the last twelve (12)months of the term of this Lease or any extension thereof.

 

(G)              The provisions of Section 1932, Subdivision2, and Section 1933, Subdivision 4, of the Civil Code of the State ofCalifornia are hereby waived by Tenant.

 

18.           EMINENT DOMAIN.  Incase the whole *of*the Premises,or such part thereof as shall substantially interfere with the Tenant’s use andoccupancy thereof, shall be taken for any public or quasi-public purpose by anylawful power *or*authority, *by*exercise *of*the right of appropriation, condemnation or eminentdomain, or sold to prevent such taking, the Tenant or the Landlord, may, at itsoption, terminate this Lease effective as of the date possession is required tobe surrendered to said authority. Tenant shall not, because *of*such taking, assert any claim againstthe Landlord or the taking authority for any compensation because of suchtaking, and Landlord shall be entitled to receive the entire amount *of*any award without deduction for any estateor any interest of Tenant. In the event the amount *of*property or the type *of*estate taken shall not substantially interfere with the conduct *of*Tenant’s business, Landlord shall beentitled to the entire amount *of*theaward without deduction for any estate or interest of Tenant, and Landlord atits option may terminate this Lease. If Landlord does not so elect, Landlordshall promptly proceed to restore the Premises to substantially their samecondition prior to such partial taking, and a proportionate allowance shall bemade to Tenant for the rent. corresponding to the time during which saidrestoration is being made and to the part *of*the Premises of which Tenant shall be so deprived on account *of*such taking and restoration. Nothingcontained in this Paragraph shall be deemed to give Landlord any interest inany specific award made to Tenant for the taking *of*personal property and fixtures belonging to Tenant.

 

19.           DEFAULTS AND REMEDIES.

 

(A)          The occurrence of any one or more of thefollowing events shall constitute a default hereunder by Tenant:

 

(i) The abandonment of the Premises by Tenant.Abandonment is herein defined to include, but is not limited to, any absence byTenant from the Premises for five (5) days or longer while in default *of*any provision of this Lease.

 

(ii) The failure by Tenantto make any payment *of*rent oradditional rent required to be made bi Tenant hereunder, within live (5) daysafter written notice thereof from Landlord to Tenant.

 

(iii) The failure by Tenantto observe or perform any of the express or implied covenants or provisions *of*this Lease to be observed or performedby Tenant, other than as specified in (i) or (ii) above, where such failureshall continue for a period of ten (10) days after written notice thereof fromLandlord to Tenant, provided however, than any such notice shall be in lieu of,and not in addition to, any notice required under California Code *of*Civil Procedure Section 1161 jprovided, further, that if the nature of**Tenant’s default is such that morethan ten (10) days are reasonably required for its cure, then Tenant shall notbe deemed to be in default if Tenant shall commence such cure within said ten(10) day period and thereafter diligently prosecute such cure to

 

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completion.

 

(iv) (1) The making byTenant of any generalassignment for the benefit of creditors; (2) the appointment of a trustee or**receiverto take possession of substantiallyall of Tenant’s assets locatedat the Premises or of Tenant’s interest in this Lease, where possession is notrestored to Tenant within thirty (30) days; or (3) the attachment, execution or**otherjudicial seizure of substantially all of**Tenant’s assets located at thePremises or of**Tenant’s interest in this Leasewhere such seizure is not discharged within thirty (30) days.

 

(B)           In the event of such default by**Tenant,in addition to any other remedies available to Landlord at law or in equity,Landlord shall have the immediate option to terminate this Lease and all rightsof Tenant hereunder. In the event that Landlord shall. elect to so terminatethis Lease then Landlord may recover from Tenant:

 

(i) The worth at the time ofaward of any unpaid rent which has been earned at the time of such termination; plus

 

(ii) The worth at the time of award of the amount by which the unpaid rent which would have beenearned after termination until the time ofaward exceeds the amount of suchrental loss Tenant proves could have been reasonably avoided; plus

 

(iii) The worth at the timeof award of the amount by which the unpaid tent for the balance of the termafter the time of award exceeds the amount of such rental loss Tenant provescould have been reasonably avoided; plus

 

(iv) Any other amountnecessary to compensate the Landlord for all the detriment approximately causedby Tenant’s failure to perform its obligations under this Lease or which in theordinary course of things would be likely to result therefrom.

 

As used in subparagraphs (i)and (ii) above, the “worth at the time of award” is computed by allowing interestat the prevailing discount rate of the Federal Reserve Bank of San Francisco atthe time of the award plus five percent (5%), but not more than the maximumrate permissible by law. As used in subparagraph (iii) above, the “worth at thetime of award” is computed by discounting such amount at the discount rate ofthe Federal Reserve Bank of San Francisco at the time of award plus one percent(1 %).

 

(C)              In the event of any such default by Tenant,Landlord shall also have the right, with or without terminating this Lease, tore-enter the Premises and remove all persons and property from the Premises;such property may be removed and stored in a public warehouse or elsewhere atthe cost of and for the account of Tenant. No re-entry or taking possession of thePremises by Landlord pursuant to this subparagraph shall be construed as anelection to terminate this Lease unless a written notice of such intention begiven to Tenant or unless the termination thereof be decreed by a court ofcompetent jurisdiction.

 

20.        ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily or byoperation of law assign; transfer, mortgage or otherwise encumber all or anypart of Tenant’s interest in this Lease or in the Premises and shall not subletall or any part of the Premises, without the prior written consent of Landlord,which consent shall not be unreasonably withheld. Any attempted assignment,transfer, mortgage, encumbrance or subletting without such consent shall, atthe option of Landlord, constitute grounds for termination of this Lease.

 

No subletting or assignment,even with the consent of Landlord, shall relieve Tenant of its obligation topay rent and to perform all of the other obligations to be performed by Tenanthereunder. The acceptance of rent by Landlord from any other person shall notbe deemed to be a waiver by Landlord of any provision of this Lease or to be aconsent of any assignment or subletting.

 

Each subletting orassignment to which Landlord has consented shall be by an instrument in writingin form satisfactory to Landlord and shall be executed by the sublessor orassignor and by the sublessee or assignee in each instance, as the case may be,and each sublessee or assignee shall agree in writing for the benefit of theLandlord herein to assume, to be bound by and to perform the terms, covenants,and conditions of this Lease to be done, kept and performed by the Tenant. Oneexecuted copy of such written instrument shall be delivered to the Landlord.

 

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Tenant agrees to reimburse Landlord for Landlord’s reasonable attorneys’fees and such other reasonable charges which Landlord incurs or causes to beincurred in conjunction with the processing and documentation of any suchrequested subletting or assignment of this Lease or Tenant’s interest in and tothe Premises which cost shall not exceed one thousand and no/100 Dollars($1,000.00). Landlord may require as a condition to Landlord’s consent to anassignment or subletting all of any sums or other economic considerationreceived by Tenant as a result of such subletting or assignment (other than therental or other payments received which are attributable to the amortization ofthe cost of interior improvements in excess of the building standards andallowance to the Premises or the sublet portion of the Premises, at the cost ofTenant), whether denominated rentals under any sublease or otherwise, whichexceed in the aggregate the total sums which Tenant is obligated to payLandlord under this Lease (prorated to reflect obligations allocable to thatportion of the Premises, subject to any such sublease) shall be payable toLandlord as additional rental under this Lease without affecting or reducingany other obligation of Tenant hereunder. Provided, however, that Tenant shallfirst be entitled to recover any costs of assignment or subletting incurred byTenant, including, without limitation, real estate commissions and advertisingexpense.

 

Northwithstanding theforegoing, Tenant shall have the right to assign this Lease and any. options toextend to a corporation with which it may merge or consolidate, to a parent,subsidiary, or related company, or to a purchaser of 90% or more of Tenant’sassets, provided that said assignee shall execute an instrument reasonablysatisfactory to Landlord assuming Tenant’s obligations hereunder, and providedfurther that said assignee’s net worth both immediately prior to andimmediately after the merger, consolidation or purchase shall equal or exceedthat of Tenant, and provided further that such assignment shall not affect orlimit the liability of Tenant under the terms of this Lease.

 

21.        SUBORDINATION. This Lease shall be subject and subordinateat all times to all ground and underlying leases which now exist or mayhereafter be executed affecting the Complex or the land upon which the Complexis situated or both, and to the lien of any mortgages or deed of trust in anyamount or amounts whatsoever now or hereafter placed on or against the land andComplex or either thereof, or on Landlord’s interest or Estate therein, or portionthereof, or on or against any ground or underlying lease without the necessityof the execution and delivery of any further instruments on the part of Tenantto effectuate such subordination; provided, however, that so long as Tenant isnot in default, the terms of the Lease shall not be affected by terminationproceedings in respect to such ground or underlying lease or foreclosure orother proceedings under such mortgages or deeds of trust. Tenant herebyagreeing at the written request of the Landlord under such ground or underlyinglease or the purchaser of the Complex in such foreclosure or other proceedings,to attorn to such Landlord or to such purchaser or, at such Landlord’s or suchpurchaser’s option, to enter into a new lease for the balance of the termhereof upon the same terms and provisions as are contained in this Lease.Notwithstanding the foregoing, Tenant will execute and deliver upon demand suchfurther instrument or instruments evidencing such subordination of the Lease tothe lien of any such mortgage or mortgages or deed of trust as may be requiredby Landlord.

 

Nothwithstanding theforegoing, this Lease shall not be subordinated to the lien of any futureencumbrance unless the bolder of said encumbrance first executes in favor of Tenanta non-disturbance agreement reasonably satisfactory to Tenant confirming thatthe older of said encumbrance agrees to honor this Lease in all events exceptwhere Tenant is in default hereunder beyond any applicable cure or graceperiod. Landlord shall use its best efforts to obtain a similar agreement fromits existing lender in favor of Tenant as soon as reasonably possible followingthe execution of this Lease.

 

22.           ESTOPPEL CERTIFICATE. Tenant or Landlord, within ten (10)business days of each request by the other to do so, shall:

 

(a)           Execute and deliver to the other estoppelcertificate(s), (i) certifying that this Lease is unmodified and in full forceand effect or, if modified, stating the nature of such modification andcertifying that this Lease, as so modified, is in full force and effect and thedate to which the rent and other charges are paid in advance, if any, and (ii)acknowledging that there are not, to its knowledge, any uncured defaults on thepart of the other party hereunder, or stating the nature of defaults if suchexist, and (iii) evidencing the status of the Lease, as may be required eitherby a prospective or actual lender making a loan to Landlord or Tenant or apurchaser of the Premises from Landlord or successor Landlord with respect tosome other interest in the Premises, Building or Lease;

 

(b)           (Tenant only): Deliver to Landlord its mostcurrently available financial statements, where reasonably required by aprospective lender of Landlord. Any such financial statements shall be receivedby

 

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Landlord and any such lender in confidence, and any such lender shallexecute any non-disclosure agreement with respect thereto reasonably requestedby Tenant.

 

(c)           Either party’s failure to perform timely eachof its obligations jnder this Paragraph 22 shall constitute a material breachof this Lease, entitling the other party to exercise all of its remedies forsame.

 

23.           CONFLICT OF LAWS. This Lease shall be governed by andconstrued pursuant to the laws of the State of California.

 

24.           COMMON AREAS. Tenant shall have the non-exclusive right,in common with others, to the use of common entrances, lobbies, elevators,ramps, drives, stairs and similar access and service ways and common areas inand adjacent to the Complex of which the Premises are a part subject to suchnondiscriminatory rules and regulations as may be adopted by Landlord.

 

25.           SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and shallinure to the benefit of the parties hereto and their respective heirs, personalrepresentatives, successors and assigns.

 

26.           SURRENDER OF PREMISES. The voluntary or other surrender of thisLease by Tenant, or a mutual cancellation thereof, shall not work a merger, andshall, at the option of Landlord, operate as an assignment to it of any or allsubleases or subtenancies.

 

27.           ATTORNEYS’ FEES. In the event that either party should bringsuit or commence arbitration under this Lease or because of the breach of anyprovision of this Lease, then all costs and expenses, including reasonableattorneys’ fees, incurred by the prevailing party therein shall be paid by theother party, which obligation on the part of the other party shall be deemed tohave accrued on the date of the commencement of such action and shall beenforceable whether or not the action is prosecuted to judgment.

 

28.        PERFORMANCE BY TENANT. All covenants and agreements to beperformed by Tenant under any of the terms of this Lease shall be performed byTenant at Tenant’s sale cost and expense and without any abatement of rent. IfTenant shall fail to pay any sum of money, other than rent required to be paidby it hereunder or shall fail to perform any other act on its part to beperformed hereunder, and such failure shall continue for ten (10) days afternotice thereof by Landlord, Landlord may, without waiving or releasing Tenantfrom any obligations of Tenant, but shall not be obligated to make, make anysuch payment or perform any other such action on Tenant’s part to be made orperformed as in this Lease provided. Any amount due from Tenant to Landlordhereunder which is not paid when due shall bear interest at an annual rate offive percent (5%) per annum plus the annual percentage rate established by theFederal Reserve Bank of San Francisco on advances to member banks underSections 13 and 13(a) of the Federal Reserve Act prevailing on the 25th day ofthe month preceding either the (I) date on which this Lease is executed; or (2)the date the amount became due, whichever is less (but not more than themaximum rate permissible by law), until paid, unless otherwise specificallyprovided herein, but the payment of such interest shall not excuse or cure anydefault by Tenant under this Lease.

 

29.           RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and conditions of thisLease and such Rules and Regulations as Landlord may from time to timeprescribe, Tenant and Tenant’s employees, invitees and customers shall, incommon with other occupants of the Complex in which the Premises are located,and their respective employees, invitees and customers, and others entitled tothe use thereof, have the non-exclusive right to use the access roads, parkingareas, and facilities provided and designated by Landlord for the general useand convenience of the occupants of the Complex in which the Premises arelocated, which areas and facilities are referred to herein as “Common Area”,This right shall terminate upon the termination of this Lease, Landlordreserves the right from time to time to make changes in the shape, size, location,amount and extent of Common Area. Landlord further reserves the right topromulgate such reasonable rules and regulations relating to the use of theCommon Area, and any part of parts thereof, as Landlord may deem appropriatefor the best interests of the occupants of the Complex. The Rules andRegulations shall be binding upon Tenant upon delivery of a copy of them toTenant, and Tenant shall abide by them, and cooperate in their observance. SuchRules and Regulations may be amended by landlord from time to time, with orwithout advance notice, and all amendments shall be effective upon delivery ofa copy to Tenant. Landlord shall not be responsible to Tenant for thenon-performance by any other tenant or occupant of the Complex of any of saidRules and Regulations.

 

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Landlord shall operate, manageand maintain the Common Area. The manner in which the Common Area shall bemaintained in a standard equal to similar properties in the Santa Clara Valleyand the reasonable expenditures for such maintenance shall be at the discretionof Landlord.

 

29.           DEFINITION OF LANDLORD. The term “Landlord” as used in this Lease,so far as covenants or obligations on the part of Landlord are concerned, shallbe limited to mean and include only the owner or owners at the time in questionof the fee of the Premises, and in the event of any transfer, assignment orother conveyance or transfers of any such title, the Landlord herein named (andin the case of any subsequent transfers or conveyances, the then grantor) shallbe automatically freed and relieved from and after the date of such transfer,assignment or conveyance of all liability in respect to the performance of anycovenants or obligations on the part of Landlord contained in this Leasethereafter to be performed and, without further agreement, the transferee ofsuch title shall be deemed to have assumed and agreed to observe and performany and all obligations of the Landlord hereunder, during its ownership of thePremises. Landlord may transfer its interest in the Premises without theconsent of Tenant and such transfer or subsequent transfer shall not be deemeda violation on Landlord’s part of any of the terms and conditions of thisLease.

 

30.           WAIVER. The waiver by either party of any breach of any term, covenant, orcondition herein contained shall not be deemed to be a waiver of any subsequentbreach of the same or any other term, covenant or condition herein containednor shall any custom or practice which may arise between the parties in theadministration of the terms hereof be deemed a waiver of, or in any way affect,the right of either party to insist upon the performance by other party instrict accordance with said terms. The subsequent acceptance of rent hereunderby Landlord shall not be deemed to be a waiver of any preceding breach byTenant of any term, covenant or condition of this Lease, other than the failureof Tenant to pay the particular rent so accepted, regardless of Landlord’s knowledgeof such preceding breach at the time of acceptance of such rent.

 

31.           PARKING. Tenant shall have the right to use with**other tenantsthe common parking areas of the Complex. Landlord shall have the right, atLandlord’s sole discretion, to specifically designate the location of Tenant’sparking spaces within the common parking areas of the Complex in the event of adispute among the tenants occupying the building and/or**Complex referred to herein, in whichevent Tenant agrees that Tenant, Tenant’s empIoyees, agents, representatives and/orinvitees shall not use any parking spaces other than those parking spacesspecifically designated by Landlord for Tenant’s use. Said parking spaces, ifspecifically designated by Landlord to Tenant, may be relocated by Landlord atany time, and from time to time. Landlord reserves the right, at Landlord’ssole discretion, to rescind any specific designation of parking spaces, therebyreturning Tenant’s parking spaces to the common parking area. Landlord shallgive Tenant written notice of any change in Tenant’s parking spaces. Tenantshall not, at any time, park, or permit to be parked, any trucks or vehiclesadjacent to the loading areas so as to interfere in any way with the use ofsuch areas, nor shall Tenant at any time park, or permit the parking of Tenant’strucks or other vehicles or the trucks and vehicles of Tenant’s suppliers orothers, in any portion of the common area not designated by Landlord for suchuse by Tenant. Tenant shall not park nor permit to be parked, any inoperativevehicles or equipment on any portion of the common parking area or other commonareas of the Complex. Tenant agrees to assume responsibility for compliance byits employees with the parking provision contained herein. If Tenant or itsemployees park in other than such designated parking areas, then Landlord maycharge Tenant, as an additional charge, and Tenant agrees to pay, Ten Dollars($10.00) per day for each day or partial day each such vehicle is parked in anyarea other than that designated. Tenant hereby authorizes Landlord, at Tenant’ssole expense, to tow away from the Complex any vehicle belonging to Tenant orTenant’s employees parked in violation of these provisions, or to attachviolation stickers or notices to such vehicles. Tenant shall use the parkingareas for vehicle parking only, and shall not use the parking areas forstorage.

 

32.           TERMS AND HEADINGS. The words “Landlord” and “Tenant” as usedherein shall include the plural as well as the singular. Words used in anygender include other genders. If there be more than one Tenant the obligationshereunder imposed upon Tenant shall be joint and several. The paragraphheadings of this Lease are not a part of this Lease and shall have no effectupon the construction or interpretation of any part thereof.

 

33.           EXAMINATION OF LEASE. Submission of this instrument forexamination or signature by Tenant does not constitute a reservation of oroption for a lease, and it is not effective as a lease or otherwise untilexecution by and delivery to both Landlord and Tenant.

 

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34.           TIME. Time is of the essence with respect to the performance of everyprovision of this Lease in which time or performance is a factor.

 

35.           PRIOR AGREEMENTS, AMENDMENTS. This Lease contains all of the agreementsof the parties hereto with respect to any matter covered or mentioned in thisLease, and no prior agreement or understanding pertaining to any such mattershall be effective for any purpose. No provision of this Lease may be amendedor added to except by an agreement in writing signed by the parties hereto or theirrespective successors in interest.

 

36.           SEPARABILITY. Any provision of this Lease which shallprove to be invalid, void or illegal in no way affects, impairs or invalidatesany other provision hereof, and such other provisions shall remain in full forceand effect.

 

37.           RECORDING. Neither Landlord not Tenant shall record this Lease or a short form memorandumthereof without the consent of the other.

 

38.           EXHIBITS. All Exhibits that are referred to in this Lease and attached heretoare incorporated herein by this reference and made a part of the Lease.

 

39.           LIMITATION OF LIABILITY. In consideration of the benefits accruinghereunder, Tenant and all successors and assigns covenant and agree that, inthe event of any actual or alleged failure, breach or default hereunder byLandlord:

 

(i) the sole and exclusiveremedy shall be against Landlord and Landlord’s assets;

(ii) no partner of Landlordshall be sued or named as a party in any suit or action (except as may benecessary to secure jurisdiction of the partnership)

(iii) no service of processshall be made against any partner of Landlord (except as may be necessary tosecure jurisdiction of the partnership)

(iv) no partner of Landlordshall be required to answer or otherwise plead to any service of process; *(v)*no judgment will be taken against anypartner of Landlord;

(vi) any judgment takenagainst any partner of Landlord may be vacated and set aside at any timewithout bearing;

(vii) no writ of executionwill ever be levied against the assets of any partner of Landlord;

(viii) these covenants andagreements are enforceable both by Landlord and also by any partner ofLandlord.

 

Tenant agrees that each ofthe foregoing covenants and agreements shall be applicable to any covenant oragreement either expressly contained in this Lease or imposed by statute or atcommon law.

 

40.           SIGNS. No sign, placard, picture, advertisement, name or notice shall beinscribed, displayed or printed or affixed on or to any part of the outside ofthe Premises or to any exterior windows of the Premises without the writtenconsent of Landlord first had and obtained which consent shall not beunreasonably withheld and Landlord shall have the right to remove any suchsign, placard, picture, advertisement, name or notice without notice to and atthe expense of Tenant. If Tenant is allowed to print or affix or in any wayplace a sign in, on, or about the Premises, upon expiration or other soonertermination of this Lease, Tenant at Tenant’s sole cost and expense shall bothremove such sign and repair all damage in such a manner as to restore allaspects of the appearance of the Premises to the condition prior to theplacement of said sign.

 

All approved signs orlettering on outside doors shall be printed, painted, affixed or inscribed atthe expense of Tenant by a person approved of by Landlord.

 

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

 

41.           AUTHORITY. The undersigned parties hereby warrant that they have properauthority and are empowered to execute this Lease on behalf of the Landlord andTenant, respectively.

 

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42.           ADDENDUM TO LEASE. Paragraphs 43. through 46. are added heretoand made a part of this Lease.

 

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IN WITNESS WHEREOF, theparties have executed this Lease the day and year first above written.

 
|   | TENANT:                           |
|--------|-----------------------------------|
|   |                              |
|   | GHz TECHNOLOGY, INC.              |
|   |                              |
| Date:  |                              |   | By: |   |   |
|   |                              |   |   |   |   |
| Date:  |                              |   | By: |   |   |
|   |                              |
|   |                              |
|   | LANDLORD:                         |
|   |                              |
|   | 3000 OAKMEAD VILLAGE  DRIVE, LTD. |
|   |                              |
| Date:  |                              |   | By: |   |   |
|   |                              |   |   |   |   |
| Date:  |                              |   | By: |   |   |

 

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ADDENDUMTO LEASE

 

43.           Expansion Space. Concurrent with the commencement of thethird (3rd) year of the term, Landlord shall deliver the remaining square feetof the complex consisting of approximately nine thousand eight hundred fifty(9,850) rentable square feet (“Expansion Space”) which Tenant shall lease fromLandlord on the same terms contained in this Lease, and at the same per squarefoot rental rate as that for the Premises. Landlord reserves the right, uponninety (90) day prior written notice, to deliver the Expansion Space at anytime during the second year of the term in the event the Expansion Spacebecomes available to let, in which event Tenant shall lease the. ExpansionSpace and the term shall commence concurrent with the delivery.

 

44.           Options to Extend.

 

(A)            Option Period. Provided that Tenant is not in defaulthereunder, either at the time of exercise or at the time the extended termcommences, Tenant shall have the option to extend the initial ten (10) yearterm of this lease for two additional periods of five (5) years each (“OptionPeriod”), on the same terms, covenants and conditions provided hereunder,except that upon such renewal, the monthly rent due hereunder shall bedetermined pursuant to Paragraph 44 (B). Tenant shall notify Landlord in writingnot less than one hundred eighty (180) days prior to the expiration of theinitial term of this Lease or the first Option Period that it wishes toexercise its extension option (“Option Notice”).

 

(B)             Option Period Monthly Rent.  Theinitial Monthly Rent for the Option Period shall be determined as follows:

 

(i) The parties shal havefifteen (15) days after Landlord receives the option Notice within which toagree on the initial Base Rent for the Option Period based upon ninety fivepercent (95%) of the then fair market rental value of the Premises as definedin Paragraph 44(B) (iii). If the parties agree on the initial Base Rent for theOption Period within fifteen (15) days, they shall immediately execute anamendment to this Lease stating the initial Base Rent for the Option Period.

 

(ii) If the parties areunable to agree on the initial Base Rent for the option Period within fifteen(15) days, then the initial Base Rent for the option Period shall be ninetyfive percent (95%) of the then current fair market rent value of the Premisesas determined in accordance with Paragraph 44(B) (iv).

 

(iii) The “then fair marketrental value of the Premises” shall mean the fair market monthly rental valueof the Premises as of the commencement of the option Period, taking intoconsideration the uses permitted under this Lease, the quality, size, designand location of the Premises, and comparable buildings located in Santa Clara.In no event shall the then fair market monthly rent value of the Premises forthe option Period be less than the Base Rent last payable under the Lease.

 

(iv) Within seven (7) daysafter the expiration of the fifteen (15) day period set forth. in Paragraph44(B) (i), each party at its cost and by giving notice to the other party,shall appoint a real estate appraiser with at least five (5) years’ full timecommercial appraisal experience in the area in which the Premises are locatedto appraise and set the then fair market rental value of the Premises for theoption Period. If a party does not appoint an appraiser within ten (10) daysafter the other party has given notice of the name of its appraiser, the singleappraiser appointed shall be the sale appraiser and shall set the then fairmarket rental value of the premises. If the two appraisers are appointed by theparties as stated in this Paragraph, they shall meet promptly and attempt toset the then fair market rental value of the Premises. If they are unable toagree within thirty (30) days after the second appraiser has been appointed,they shall attempt to elect a third appraiser meeting the qualifications statedin this paragraph within ten (10) days after the last day the two appraisersare given to set the then fair market rental value of the Premises. If they areunable to agree on the third appraiser, either of the parties to this Lease, bygiving ten (10) days notice to the other party, can apply to the county RealEstate Board, or the then presiding Judge of the Santa Clara county SuperiorCourt, for the selection of a third appraiser who meets the qualificationsstated in this Paragraph. Each of the parties shall bear one half (1/2) of thecost of appointing the third appraiser and of paying the third appraiser’s fee.The third appraiser, however selected, shall be a person who has not previouslyacted in any capacity for either party.

 

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Within thirty (30) daysafter the selection of the third appraiser, a majority of the appraisers shallset the then fair market rental value of the Premises. If a majority of theappraisers are unable to set the then fair market rental value of the Premiseswithin the stipulated period of time, the three appraisals shall be addedtogether and their total divided by

three; the resultingquotient shall be the then fair market rental value of the Premises.

 

If, however, the lowappraisal and/or the high appraisal are/is more than ten (10%) lower and/orhigher than the middle appraisal, the low appraisal and/or the high appraisalshall be disregarded. If only one appraisal is disregarded, the remaining two appraisalsshall be added together and their total divided by two; the resulting quotientshall be the then fair market rental value to the Premises. If both the lowappraisal and the high appraisal are disregarded as stated in this Paragraph,the middle appraisal shall be the then fair market rental value of thePremises.

 

After the then fair marketrental value of the Premises has been set, the appraisers shall multiply saidfair market rent value by ninety five percent (95%) and immediately notify theparties of the product.

 

(v)If Tenant objects to the Base Rent that has been determined pursuant to theParagraph 44(B) (iv), Tenant shall have the right to have this Lease expire atthe end of the initial Term provided that Tenant pays for all costs incurred byLandlord in connection with the appraisal procedure.  Tenant’s election to allow this Lease toexpire at the end of the initial Term must be exercised by delivering writtennotice to exercise to Landlord within ten (10) days after the rentdetermination procedure set forth in Paragraph 44 (B) (iv) has been completedand Tenant has received notice of the Base Rent as determined by appraisal. IfTenant does not so exercise its election to terminate, this Lease shall beextended as provided in this paragraph.

 

(c)              Rental Adjustments During Option Period. The Base Rent for the Option Period shallbe subject to adjustment at the commencement of the second (2nd) year of thefirst (1st) option Period and the second (2nd) year of the second (2nd) optionPeriod, and each and every year thereafter, “the adjustment dates” as follows:

 

The base for computing theadjustment is the Consumer Price Index for All Urban Consumers (base year1982-84 = 100) for San Francisco-Oakland-San Jose, California published by theUnited States Department of Labor, Bureau of Labor statistics (“Index”) whichis last published prior to the commencement of the option Period (“BeginningIndex”). If the Index which is last published prior to an adjustment date (“ExtensionIndex”) has increased over the Beginning Index, the Base Rent for the periodfollowing the adjustment date and until the next adjustment date, if any, shallbe the Base Rent set forth in Paragraph 44 (B) multiplied by a fraction, thenumerator of which is the Extension Index and the denominator of which is theBeginning Index. In no case shall the

Base Rent be less than theBase Rent set forth in Paragraph 44(B) or that resulting from a previousadjustment hereunder. The Base Rent as adjusted shall continue to be paid inadvance on the first day of each and every month of the Lease term.

 

If the Index is changedduring the term of the Lease so that the base year for the Index differs fromthat used in the Beginning Index, the Index shall be converted in accordancewith the conversion factor published by the United States Department of Labor,Bureau of Labor statistics. If the Index is discontinued or revised during theterm, such other government index or computation with which it is replacedshall be used in order to obtain substantially the same result as would beobtained if the Index had not been discontinued or revised.

 

45.           Hazardous Materials. Landlord and Tenant agree as follows withrespect to the existence of use of “Hazardous Materials” (as defined herein) onthe Premises:

 

A.            Definition of Hazardous Materials. As usedherein, the term “Hazardous Materials” shall mean any hazardous or toxicsubstance, material or waste which is or becomes regulated by any localgovernmental authority, the state of California, or the United StatesGovernment. The term “Hazardous Materials” includes, without limitation anymaterial or hazardous substance which is (i) listed under Article 9 or definedas “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 ofthe California Administrative Code, Division 4, Chapter 30, (ii) defined as a “hazardouswaste” pursuant to section 1004 of the Federal Resource Conservation andRecovery Act, section 42 U.S.C. section 901 et seq. (42 U.S.C. section 6903),(iii) defined as a “hazardous

 

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substance” pursuant to Section 101 of the Comprehensive EnvironmentalResponse, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42U.S.C. section 9601), (iv) petroleum or any derivative of petroleum, or (v)asbestos.

 

B.            Use of Hazardous Materials. Tenant shall notcause or permit any Hazardous Materials to be brought upon, kept or used in orabout the Premises by Tenant, its agents, employees, contractors or inviteeswithout prior written consent of Landlord. Landlord shall not unreasonablywithhold such consent so long as Tenant demonstrates to Landlord’s reasonablesatisfaction that such Hazardous Materials are necessary or useful to Tenant’sbusiness and will be used, kept and stored in a manner that complies with alllaws regulating the Hazardous Materials so brought upon or used or kept in orabout the Premises. Tenant, at its sole cost and expense, shall make any andall improvements to the Premises necessary to assure legal and safe use of theHazardous Materials. Use of those Hazardous Materials listed in Exhibit Cattached hereto and incorporated herein by reference have approval of Landlord.Tenant shall remove all Hazardous Materials used or brought onto the Premisesduring the Lease Term from the Premises prior to the expiration or earliertermination of the Lease.

 

C.            Annual Inspection. Each year upon theanniversary of the commencement of the Lease (“anniversary Date”), Tenantshall, at its sole cost and expense, (which base cost for the inspection shallnot exceed six thousand and no/100 ($6,000.00) for the initial lease year.  Said cost limitation shall increase by an amountequal to the net increase in the Consumer Price Index for All-Urban Consumers(1982-84 = 100) for San Francisco-Oakland-San Jose which is last publishedprior to the commencement of the term) hire a qualified environmentalconsultant, acceptable to Landlord, to evaluatewhether Tenant: is in compliance with all appl1aabh Hazardous Materials laws.Tenant shall submit to Landlord a report from such environmental consultantwhich discusses the environmental consultant’s finding within two (2) months ofeach Anniversary Date. Tenant shall, in a timely manner, take all steps necessaryto correct any and all problems identified by the environmental consultant tothe extent such problems are not the subject of Landlord’s indemnificationpursuant to Paragraph 45.(K)

 

D.            Tenant’s Indemnity. Tenant shall indemnify,defend and hold Landlord harmless from any and all breaches of this Paragraph45. and for any and all claims, judgments, damages, decrees, liens, demands,taxes, penalties, fines, expenses, costs (including but not limited to thosecosts associated with investigation, removal and remedial activities as may besought, initiated or required in connection with any local, state or federalgovernmental or private party environmental demands or claims), fees (includingwithout limitation attorneys fees), obligations, orders, liabilities or losses(including without limitation, diminution in the value of the Premises, damagesfor the loss or restriction on the use, marketability or any other amenity ofthe Premises) (all of the foregoing collectively referred to hereinafter as “EnvironmentalClaims”), which arise during or after the Lease term as a result of any releaseor discharge of Hazardous Materials at, in, onto or under the Premises, or anycontamination of the Premises during the Lease term but only to the extent ofthe Tenant’s use of the Premises. The foregoing indemnity (“Tenant’sEnvironmental Indemnity”) shall survive the expiration of earlier terminationof this Lease except as provided in section L. of this Paragraph 45.

 

E.             Tenant’s Obligation to Promptly Remediate. Withoutlimiting the foregoing, if there is a release or discharge of any HazardousMaterials _t, in onto or under _he Premises or contamination of the Premisesthat is covered by Tenant’s Environmental Indemnity, Tenant shall promptly takeall action, at its sole cost and expense, as is necessary to return thePremises to the condition existing prior to the introduction of any suchHazardous Materials to the Premises, provided that Landlord’s approval of suchaction shall first be obtained. Landlord’s approval shall not be unreasonablywithheld so long as such actions would not have any potential material adverselong-term or short-term effect on the Premises.

 

F.                Landlord’s Representation and Releases.Landlord represents that it has provided Tenant with copies of relevantmaterial, data information, and reports in Landlord’s possession concerning thepresence of Hazardous Materials, at, in, on, about or under the Lease Premisesat the date hereof. Such information includes all of those certain reportsdescribed in Exhibit B attached hereto and incorporated herein by reference(the “Reports”). (Any and all contamination referenced in the Reports shallhereinafter be referred to as the “Known Contamination”.) Lanlord expresslyacknowledges and agrees that Tenant shall have no responsibility or liability,either under the Tenant’s Environmental Indemnity or otherwise, to Landlord forany Environmental Claims which arise before, during or after the Lease term asa result of the Known contamination and Landlord hereby expressly releasesTenant from any such Environmental Claim.

 

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G.            Left blank intentionally.

 

H.            Landlord’s Right of Entry. Landlord and itsagents shall have the right, but not the duty, to inspect Premises duringreasonable business hours, to determine whether Tenant is complying with the termsof this Lease. If Tenant is not in compliance with this Lease, Landlord shallhave the right to immediately enter upon the Premises to remedy anycontamination caused by Tenant’s failure to comply, notwithstanding any otherprovision of this Lease. Landlord shall use its best efforts to minimize theinterference with Tenant’s business, but shall not be liable for anyinterference caused thereby. Tenant shall promptly reimburse Landlord for allcosts and expenses incurred by Landlord pursuant to this Subparagraph H.

 

I.              Notice. The provisions of this SubparagraphI. shall only apply to contamination on the Premises which is not considered tobe Known contamination as defined in Subparagraph F. If at ay time either partyshall become aware of, or have reasonable cause of believe that any HazardousMaterials have come to be located on

 

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or beneath the Premises, theparties shall, immediately upon discovering such presence or suspected presenceof Hazardous Materials, give written noticeof the condition to the other. Inaddition, each party shall immediately notify the other, in writing of *(i)*any enforcement, cleanup, removal orother governmental regulatory action instituted, completed, or threatenedrelating to any Hazardous Materials on or about the Premises, *(ii)*any claim made or threatened by anyperson against either party or the Premises relating to damage, contribution,cost recovery, compensation, loss or injury relating from or claimed to resultfrom any Hazardous Materials that have come to be located on or about thePremises, and (iii) any reports made to any local state or federalenvironmental agency arising out of or in connection with any HazardousMaterials _n or about the Premises, including any complaints, notices, warningsor certain violations in connection therewith, of which the party becomesaware. Each party shall also supply the other as promptly as possible, and inevent within five (5) business days after receipt of copies of allclaims,reports, complaints, notices, warnings or certain violations relating in anyway to the Premises or use therof.

 

J.             Default. Any default under this Paragraph 45.shall be a material default enabling Landlord to exercise any of the remediesset forth in this Lease.

 

K.            Landlord Indemnity. Landlord shall be solelyresponsible for, and shall indemnify, defend, and hold Tenant and Tenant’sagents, employees, contractors, licensees, and invitees (collectively, “Tenant’sAgents”) harmless from and against any and all Environmental Claims as definedin Paragraph 45.0. of this Lease, proceedings, or hearings (collectively “Non-TenantClaims”) due solely to the release of Hazardous Materials onto the Premisesthrough groundwater migration from another property (“Migration”) by anyoneother than Tenant and its Agents whatsoever, whenever occurring. Landlordshall, promptly upon demand, at its own sole cost and expense, cause to beperformed solely any and all cleanup, refiting, or other alterations orcorrective work to the Premises necessitated by any such migration. Landlordagrees to defend, on behalf of Tenant, with counsel acceptable to Tenant, allsuch Non-Tenant Claims due soley to migration, and to pay all fees, costs,damages, or expenses relating to or arising out of any such Non-Tenant Claims,including, without limitation, as to attorneys’ fees and costs. Landlord shallfurther agree to be solely responsible for and shall indemnify, defend, andhold Tenant and its Agents harmless from and against any and all claims,including, without limitation, as to reasonable attorneys’ fees and costs,arising out of or in connection with any removal, cleanup, or restoration workrequired by any government agency having jurisdiction and which arises soleyfrom migration onto the Premises during Tenant’s occupancy of the Premises.

 

Landlord shall be furthersoley responsible for, and shall indemnify, defend, and hold Tenant and Tenant’sagents harmless from and against any and all Environmental Claims as defined inParagraph 45.0., which arise during or after the Lease Term, relating to theKnown contamination. The foregoing Indemnity (“Landlord’s EnvironmentalIndemnity”) shall survive the expiration or earlier termination of this Lease.

 

L.             Lease Termination. At the expiration of theterm, or earlier as provided herein, Tenant shall provide Landlord with astatement certifying that there has been no release or discharge of anyHazardous Materials at, in, onto or under the Premises or contamination of thePremises. Tenant shall, at its sole cost and expense, upon the expiration ofthe term, or earlier as provided herein, cause to be performed any and alltests by qualified personnel approved by Landlord, and shall make any and allimprovements necessary to assure Landlord that there exists no HazardousMaterials, other than Known Contaminants referred to in Section F of Paragraph45., at, in, or under the Premises. Additionally, Tenant shall provide Landlord copies of all documentationrelating to the Tenant’s use of Hazardous Materials which have been caused orcontributed to by tenant throughout the term, on an annual basis.

 

In the event that the certificationhas been received by Landlord in accordance with this section L. of Paragraph45., and Landlord leases the Premises to a Subsequent Tenant which contemplatesusing or bringing onto the Premises Hazardous Materials which were also used byTenant during the Lease term and approved by Landlord (“Duplicate Substance”),Landlord shall indemnify and hold Tenant harmless from any and allEnvironmental Claims which’ arise as a result of the discovery of a DuplicateSubstance, after the expiration of the term or earlier as provided herein.

 

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EXHIBITA

 

 

SitePlan (Partial)

 

This Site Plan does notinclude part of the facility’s parking.

 

 

 

ParcelMap

 

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EXHIBITAl

 

PERSONALPROPERTY

 
| **ITEM**                  | ** ** | **DESCRIPTION**                                                                                                                                                                                           |
|---------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                      |       |                                                                                                                                                                                                      |
| Process Chiller           |       | Trane 50 ton package  unit/aircooled/7-1/2 HP circulating pump.                                                                                                                                           |
|                      |       |                                                                                                                                                                                                      |
| Scrubber                  |       | PPF paramont Plastic  Fabricators #H-105 with #C-365 II centrifugal fan                                                                                                                                   |
|                      |       |                                                                                                                                                                                                      |
| Acid Waste Neutralization |       | Nottingham # FC-1000, 1000  gallon epoxy/fiberglass lined vault, 2 lightning mixers 3 Leeds-Northrup Ph monitor/controllers/sensors,  3 Rustrak Ph chart recorders, 1 in house built expansion controller |
|                      |       |                                                                                                                                                                                                      |
| Cooling Tower             |       | Baltimore Aircoil  VXT-135CR                                                                                                                                                                              |
|                      |       |                                                                                                                                                                                                      |
| Air Handler               |       | Temtrol DH63P, >30,000  cfm, over 60 air changes/hr                                                                                                                                                    |
|                      |       |                                                                                                                                                                                                      |
| Boiler                    |       | 1 Parker boiler, input  1460M btu/hr output 1168M btu/hr                                                                                                                                                  |
|                      |       |                                                                                                                                                                                                      |
| Chiller                   |       | Carrier #30HR140B401, max  cap 160 ton                                                                                                                                                                    |
|                      |       |                                                                                                                                                                                                      |
| Vacuum system             |       | 1 power ring vacuum pump,  25” @ 120 dfm                                                                                                                                                             |
|                      |       |                                                                                                                                                                                                      |
| DI Water System           |       | 6 GPM max make-up, 10,000  gal storage                                                                                                                                                                    |
|                      |       |                                                                                                                                                                                                      |
| Compressed Air            |       | 2 CompAir/Kellogg/V  Compact, 1 Pall air dryer system cap. 118 cfm at 125 psi/per compresser  filtration to 0.05 micron absolute.                                                                         |

 

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EXHIBIT B

 

Oakmead Village Courtproperty. Potential soil and ground water contamination were believed to existon-site as a result of ground water quality investigations conducted at theIntel facility north and immediately down-gradient from the 2986 OakmeadVillage: Court property. A contamination plume has been reported at the formerIntel Ma8netl_ site. 3000 Oakmead Village Court, and field investigations tocharacterize the extent of the pollution began in 1982.

 

In February 1985, a remedialdean-up/pumping program was implemented at 3000 Oakmead Village Court and hasbeen in operation since that time. As ground water extraction proceeded, anIncrease in TCE concentrations near the extraction system was observed. TCEconcentrations as high as 750 micrograms per liter (ug/l) detected at the 2986Oakmead Village Court property, and the lack of relatively high concentrationsof TCE in wells located south and immediately up-gradient from**the2986 Oakmead site, suggest that contaminants from 2986 Oakmead Village Courtmay be contributing to the 3000 Oakmead Village Court plume.

 

Results from on-siteinvestigations indicated that the uppermost water bearing zone has beenimpacted with VOCs, including Trichlorotrifluoroethane (Freon 113),Trichloroethane (TCA), Trichloroethylene (TCE), and Tetrachloroethylene (PCE).The results also indicated that these chemicals may have originated on-site.This conclusion was further supported by several other off-site Investigationsconducted at locations up-gradient and down-gradient from the subject site (J.V. Lowney & Associates 1987, Weiss &; Associates 1986, Woodward Clyde1985). These investigations indicated the absence and/or lower VOCsconcentrations both up-gradient and down-gradient from the 2986 Oakmead VillageCourt.

 

The nature, extent, anddistribution of chemicals in the soil and ground water are thoroughly discussedin the Final RI (JVLA, 1991).

 

The combined plume ispresently approximately 1,000 feet in length and 500 feet in width at itsdown-gradient fringe, occupying an approximate aquifer volume of 170,000 cubicyards. The general trend of the plume is in a northeastern direction along theapproximate hydraulic gradient of the potentiometric surface established in theA-Zone. The greatest mass of VOC contaminants in A-Zone ground water iscomprised of TCE and TCA.  Other VOCs,including Freon, DCA, DCE, and PCE also have been detected but in smallerconcentrations.

 

The proposed remedialefforts are primarily focused on the plume’s center, which is presentlydefined, in our opinion, by the TCE 100 ppb isoconcentration line (JVLA, 1991).The plume’s center is currently approximately 180 feet in length and 160 feetin width near the northern property boundary of 2986 Oakmead Village Court.Total volume of impacted aquifer material is approximately 10,000 cubic yards.

 

The total mass of VOCspresent in the A-Zone was estimated based on the thickness of the upper waterbearing zone (10 feet), the estimated average porosity (0.25) and the extent ofcontamination. The area of the VOC plume within select isoconcentrationcontours was estimated as a percent of the total plume area. The volume ofground water contained within each Isoconcentration contour was thencalculated. Based on the above parameters, the total mass of VOCs present inthe aqueous phase in the A-Zone was calculated to be approximately 3 to 4pounds, or 0.5 to 1 gallon.

 

These chemicals are notreadily amenable to biological or chemical breakdown under ambient ground waterconditions. In addition, they have a significant half-life.**Thus, In ouropinion, remedial action will likely be required

 

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to reduce the contamination.Table 2 below lists chemical characteristics pertinent to the effectiveness andimplementability of the remedial alternatives.

 

TABLE2. Chemical Characteristics That Potentially AffectImplementability of Remedial Technologies,2986 and 3000 Qakmead Village CourtSanta Clara, California

 

 
| **CONTAMINANT**          | ** ** | **VAPOR  PRESSURE  (mm Hg)** | ** ** | **MOLECULAR  WEIGHT  (g/mole)** | ** ** | **WATER  SOLUBILITY  (mg/l)** | ** ** | **LOG  OCTANOL/  WATER  PARTITION  COEFFICIENT** | ** ** | **HENRY’S  LAW  CONSTANT  (atm-m(3)/mole** | ** ** | **ORGANIC  CARBON  PARTITION  COEFFICIENT  (ml/g)** | ** ** |
|--------------------------|------------|------------------------------|------------|---------------------------------|------------|-------------------------------|------------|--------------------------------------------------|------------|-------------------------------------------------|------------|-----------------------------------------------------|------------|
| Benzene                  |       | 95.2                         |       | 78                              |       | 1,750                         |       | 2.12                                             |       | 0.00559                                         |       | 83                                                  |       |
| Chloroform               |       | 151                          |       | 1119                            |       | 8,200                         |       | 1.97                                             |       | 0.00287                                         |       | 48                                                  |       |
| 1,1-Dichloroethane       |       | 182                          |       | 99                              |       | 5,500                         |       | 1.79                                             |       | 0.00431                                         |       | 30                                                  |       |
| 1.1-Dichloroethene       |       | 600                          |       | 97                              |       | 2,250                         |       | 1.84                                             |       | 0.00340                                         |       | 65                                                  |       |
| cis-1,2-Dichloroethene   |       | 208                          |       | 97                              |       | 3,500                         |       | 0.70                                             |       | 0.00758                                         |       | 49                                                  |       |
| trans-1,2-Dichloroethene |       | 324                          |       | 97                              |       | 6,300                         |       | 0.48                                             |       | 0.00656                                         |       | 59                                                  |       |
| Freon 11                 |       | 687                          |       | 137                             |       | 1,100                         |       | 2.53                                             |       | 0.00583                                         |       | —                                              |       |
| Freon 113                |       | 270                          |       | 187                             |       | 10                            |       | 2.0                                              |       | —                                          |       | —                                              |       |
| Freon 123                |       | —                       |       | —                          |       | —                        |       | —                                           |       | —                                          |       | —                                              |       |
| Methylene  Chloride      |       | 1,310                        |       | 50                              |       | 6,500                         |       | 0.95                                             |       | 0.0440                                          |       | 35                                                  |       |
| Tetrachloroethene        |       | 17.8                         |       | 166                             |       | 150                           |       | 2.6                                              |       | 0.0259                                          |       | 364                                                 |       |
| Toluene                  |       | 28.1                         |       | 92                              |       | 3,350                         |       | 2.73                                             |       | 0.00637                                         |       | 300                                                 |       |
| 1.2,3-Trichlorobenzene   |       | —                       |       | 181                             |       | —                        |       | —                                           |       | —                                          |       | —                                              |       |
| 1,2,4-Trichlorobenzene   |       | 0.290                        |       | 181                             |       | 30.0                          |       | 4.3                                              |       | 0.00231                                         |       | 9,200                                               |       |
| 1,1,1-Trichloroethane    |       | 123                          |       | 133                             |       | 1,500                         |       | 2.5                                              |       | 0.0144                                          |       | 152                                                 |       |
| Trichloroethene          |       | 57.9                         |       | 131                             |       | 1,100                         |       | 2.38                                             |       | 0.00910                                         |       | 126                                                 |       |

— Not Available

 

Data from “Superfund PublicHealth Evaluation Manual,” 1986 and “Groundwater Chemicals Desk Reference,”1990

 

The existing data, presentedin the Final RI, show that soil and ground water at 2986 Oakmead Village Courthave been impacted with VOCS. The major contaminants of concern are TCE, TCA,Freon 113, and PCE. The anticipated migration pathways are discussed below.

 

Ground Water: Contaminantmigration from the site occurs primarily through ground water transport.pollutants in ground water tend to be removed or reduced In concentration withtime and distance traveled. In general, actual solute movement in the groundwater is effected by advection, dispersion, sorption, dilution, and biochemicaldegradation.

 

The process by which VOCsare transported by bulk motion at an average rate equal to the average linearvelocity of**the flowing ground water is termed advection.However, there is a tendency for the solute to spread out from the pathprojected by the hydraulics of**the flow system (hydrodynamic ‘dispersion),

 

Microbiological activitypresent in the subsurface also can retard the spread of VOCs in the ground water through biochemical degradation.However, only a relatively small proportion *of*native microorganisms will have the genetic ability to degrade thecontaminants. The processe3 of biodegradation develops through a complex series*of*enzymatic reactions that mayormay not be inherent to a given bacterial species or group of bacteria.

 

----

 

Rates of**VOCmigration in the A-Zone were estimated from the distribution of**TCAbetween 1983 and 1986. The data suggests a solute migration rate of

 

----

 

EXHIBIT C

 

stored on – site will notexceed the one-month use of that material.

 

**MUST HAVES**

 
| **Material**           | ** ** | **Monthly Use** | ** ** | **Storage**                                      | ** ** | **Disposal**   |
|------------------------|------------|-----------------|------------|--------------------------------------------------|------------|----------------|
| Oxygen                 |       | 1 cylinder      |       | Pad                                              |       | N/A            |
| Nitrogen               |       | N/A             |       | LN Tank                                          |       | N/A            |
| Pos. Photoresist       |       | 1 Gallon        |       | Cabinet                                          |       | By others      |
| Neg. Photoresist       |       | 1 Gallon        |       | Cabinet                                          |       | “         |
| Pos. DeveloperCabinet  |       | 3 Gallons       |       | Cabinet                                          |       | Neutralization |
| Neg. Devel (Xylene)    |       | 5 Gallons       |       | fire rated cabinet                               |       | By others      |
| Sulfuric Acid          |       | 5 Gallons       |       | Outside Pad                                      |       | Neutralization |
| Hydrofluoric Acid (HF) |       | 1 Gallon        |       | “      “ |       | By others      |
| Ammonium Fluoride      |       | 5 Gallons       |       | “      “ |       | “         |
| Ammonium Hydroxide     |       | 1 Gallon        |       | “      “ |       | Neutralization |
| Hydrogen Peroxide      |       | 2 Gallons       |       | “      “ |       | “         |
| Potassium Hydroxide    |       | 1 Gallon        |       | “      “ |       | “         |
| Nitric Acid            |       | 1 Gallon        |       | “      “ |       | “         |
| Acetic Acid            |       | 1 Gallon        |       | “      “ |       | “         |
| Phosphoric Acid        |       | 2 Gallon        |       | “      “ |       | “         |
| Hydrochloric Acid      |       | 1 Gallon        |       | “      “ |       | “         |
| Potassium Iodide Etch  |       | 1 Quart         |       | “      “ |       | “         |
| Positive Resist strip  |       | 4 Gallons       |       | “      “ |       | “         |
| Isopropyl Alcohol      |       | 2 Gallons       |       | fire rated Cabinet                               |       | “         |
| Acetone                |       | 3 Gallons       |       | “      “ |       | By others      |

 

**OPTIONALS**

 
| **Material**          | ** ** | **Monthly Use** | ** ** | **Storage**                                      | ** ** | **Disposal**      |
|-----------------------|------------|-----------------|------------|--------------------------------------------------|------------|-------------------|
| Hydrogen              |       | 1 cylinder      |       | Outside Pad                                      |       | N/A               |
| HCl gas               |       | 0.1 cylinder    |       | “      “ |       | Scrubber          |
| Silane                |       | 0.1 cylinder    |       | “      “ |       | “            |
| PH3 5% in Argon       |       | 0.1 cylinder    |       | “      “ |       | Decompose to P205 |
| Ammonia               |       | 0.1 cylinder    |       | “      “ |       | Scrubber          |
| Silicon Tetrachloride |       | 10 grams        |       | “      “ |       | “            |
| Nitrogen Triflouride  |       | 0.1 cylinder    |       | “      “ |       | “            |
| Sulfur Hexaflouride   |       | 0.1 cylinder    |       | “      “ |       | “            |

 

Please note that due to thevery low quantities of the above materials, it may be permissible to store themwithin the clean room, using a ‘Lecture bottle’ size container. This will haveto be confirmed with the governing agencies.

 

This outline is intended todisclose the materials and requirements for our operations; primarily to definea suitable site. Details of installation and costs are always negotiable.

 

Applications Lab:

This area will be class10,000 with services available in the area, electrical, air, vacuum, like alight electronics assembly area. The area is expected to be 750 to 1000 squarefeet.

 

Assembly / Test:

This area will be class10,000 with services available in the area, electrical, air, vacuum, suitablefor electronics assembly. The area is estimated at 2500 square feet.

 

----

 

AMENDMENTTO LEASE

 

THIS AGREEMENT made andentered into this 29 day ofJuly, 1993, by and between 3000 OAKMEAD VILLAGE DRIVE, LTD., as Landlord, andGHz TECHNOLOGY INC., as Tenant, for the following:

 

WHEREFORE, ON THE 17th dayof June 1991, Landlord and Tenant entered into an Agreement to Lease forapproximately 9,850 square feet of space in that certain premises known asSuite #100 of that certain building complex known as 3000 Oakmead VillageDrive, Santa Clara, California, for a period of ten (10) years commencing June1, 1991 and terminating on May 30, 2001; and

 

Landlord and Tenant nowdesire to amend the terms and conditions of that Lease as follows:

 

WITNESSETH

 

1.             COMMENCEMENT DATE:   The commencement date for the term of thislease shall be August 1, 1991 and shall terminate ten (10) years thereafter onJuly 31, 2001.

 

2.             Except as herein provided, all other terms ofthe Lease Agreement shall remain unchanged.

 

IN WITNESS HERETO the Tenantand Landlord have executed this document on the date first above written.

 

 
|   | LANDLORD: |
|--------|-----------|
|   |      |
|   |      | 3000 OAKMEAN VILLAGE  DRIVE, LTD. |
|   |      |
|   |      | By |   |   |
|   |      |
|   |      |
|   |      |
|   | TENANT:   |
|   |      |
|   |      | GHz TECHNOLOGY, INC. |
|   |      |
|   |      | By |   |   |
|   |      |   |   |
|   |      |   |   |
|   |      | By |   |
|        |           |  |  |  |  |  |  |

 

----

 

SECONDAMENDMENTTO LEASE

 

THIS SECOND AMENDMENT TOLEASE made and entered into this 5 day of July, 2000 by and between 3000OAKMEAD VILLAGE DRIVE, LTD., as Landlord, and GHz TECHNOLOGY, INC., as Tenant,for the following:

 

WHEREAS, Landlord and Tenantentered into an Agreement to Lease dated June 17th, 1991 and as amended byAmendment to Lease dated July 29, 1993 (“Lease”) for the building complexlocated at 3000 Oakmead Village Drive, Santa Clara, California (‘“Complex”),

 

WHEREAS, Tenant desires thatcertain repairs and replacements be made to the roof and heating, ventilationand airconditioning equipment of the Complex by Landlord,

 

WHEREAS, Landlord desiresthat Tenant extend the lease term provided in the Lease and that annual rentaladjustments be made for the additional term,

 

Landlord and Tenant nowdesire to amend the terms and conditions of the Lease in the followingparticulars:

 

WITNESSETH

 

1. Paragraph 1. of the Leaseshall be deleted in its entirety and there shall be inserted in its place thefollowing: “TERM. The term of this Lease shall be for fifteen (15) yearscommencing on August 1, 1991, and ending on the 31st day of July 2006, unlessthe tem of the Premises hereby demised shall be sooner terminated ashereinafter provided.”

 

2. Subparagraph (B) ofParagraph 3. of the Lease shall be amended as follows: The phrase “or asadjusted in accordance with Paragraph 43. of this Lease,” shall be deleted in itsentirety and the following shall be added to the schedule of Base Rent::

 

“Year11 - $61,464.00 per month

Year12 - $63,927.00   “   “

Year13 - $66,488.00   “   “

Year14 - $69,147.00   “   “

Year15 - $71,905.00   “   “

 

3. The first sentence ofParagraph 44.(A) of the Lease is deleted in its entirety and the followingsentence is inserted in its place: “Provided that Tenant is not in defaulthereunder, either at the time of exercise or at the time the extended termcommences or has not been in Default at any time during the term of the Lease,Tenant shall have the option to extend the fifteen (year) term of the thisLease for one (1) additional period of five (5) years(“Option Period”), on thesame terms, covenants and conditions provided hereunder, except that upon suchrenewal, the monthly rent due hereunder shall be determined pursuant toParagraph 44.(B).”

 

4. Paragraph 47. is addedand made a part of this Lease: “47. Improvements to the Premises. Landlordagrees to expend up to Two Hundred Thousand Do1lars ($200,000) for thereplacement of the roof and any structural repairs required in connectiontherewith and the replacement of the following airconditioning equipment.Should the cost of the foregoing exceed Two Hundred Thousand Do1lars ($200,000)then and in that event the additional cost shall be paid by Tenant within ten(10) days of Landlord’s request to Tenant, which shall be accompanied by achange order from Landlord’s contractor detailing the nature of the additionalcost and the cost breakdown attendant. A

 

----

 

description of the work tobe performed is attached hereto as Exhibit “A”.

 

5. Effectiveness of Lease.Except as set forth in the Amendment to Lease dated July 29, 1993, and thisSecond Amendment to Lease all other terms of the Lease shall remain unchanged.

 

IN WITNESS HERETO theLandlord and Tenant hve executed this document on the date first above written.

 

 

 

3000 Oakmead Village DriveLtd,a partnership formed under the lawsof California

 

 
| By:                                 |   |   |
|-------------------------------------|--------|--------|
|                                |
| Landlord                            |
|                                |
|                                |
|                                |
| Ghz Technology, Inc., a  California |
| corporation                         |
|                                |
| By:                                 |   |   |
|                                |
|                                |
| Tenant                              |

 

----

 

**THIRD AMENDMENT TO LEASE**

 

THIS THIRD AMENDMENT TOLEASE made and entered into this 26 day of September, 2000, by and between 3000OAKMEAD VILLAGE DRIVE, LTD., as Landlord, and GHz TECHNOLOGY, INC., as Tenant,for the following:

 

WHEREAS, Landlord and Tenantentered into an Agreement to Lease dated June 17, 1991 and as amended byAmendment to Lease dated July 29, 1993, and Second Amendment to Lease datedJuly 5, 2000 (“Lease”) for the building complex located at 3000 Oakmead VillageDrive, Santa Clara, California (“Complex”).

 

WHEREAS, Tenant desires thatthe security deposit be returned by Landlord prior to expiration of the Term,

 

Landlord and Tenant nowdesire to amend the terms and conditions of the Lease in the followingparticulars:

 

WITNESSETH

 

Paragraph 3(H) SECURITYDEPOSIT. shall be deleted in its entirety.

 

Except as set forth in theAmendment to Lease dated July 29, 1992 and the Second Amendment to Lease datedJuly 5, 2000, all other termsof the Lease shall remain unchanged.

 

IN WITNESS HERETO theLandlord and Tenant have executed this document on the date first abovewritten.

 

**LANDLORD**3000 Oakmead VillageDrive, Ltd.,a California partnership

 
| By:                      |                |   |
|--------------------------|---------------------|--------|
|                     | Mark  T. Gates, Jr. |   |
|                     | General  Partner    |   |
|                     |                |
| **TENANT**               |                |
| GHz Technology, Inc.,    |                |
| a California corporation |                |
|                     |                |
| By:                      |                |   |
|                     | F.  W. Schneider    |   |
|                     | President           |   |
|                          |                     |        |  |

 

----

 

**FOURTH AMENDMENT TO LEASE**

 

THIS FOURTHAMENDMENT TO LEASE (this “Amendment”) dated this 29 day of March,2002, is by and between 3000 OAKMEAD VILLAGE DRIVE, LTD., as landlord (“Landlord”),and GHZ TECHNOLOGY, INC., as tenant (‘Tenant”).

 

RECITALS

 

A.            Landlordand Tenant entered into that certain Lease dated as of June I 7, 1991, as amendedby Amendment to Lease dated July 29, 1993, by Second Amendment to Lease datedJuly 5, 2000, by Third Amendment to Lease dated September 26, 2000(collectively, the “Lease”), pursuant to which Tenant leased certainpremises (the “Premises”) commonly known as APN #216-48-025 located at3000 Oakmead Village Drive, Santa Clara, Santa Clara, California.

 

B.            Tenantwill assign to GHz Acqujsition, Inc. (“GHz Acquisition”) and GHz Acquisitionwill assume all of the rights, interests and obligations of Tenant under theLease by that certain Assignment and Assumption Agreement of even dateherewith.

 

B. Landlordand Tenant now desire to modifY the Lease upon the terms and conditionshereinafter provided.

 

NOW,THEREFORE, in consideration of the covenants set forth in this Amendment andother valuable consideration, the receipt and adequacy of which is herebyacknowledged. Landlord and Tenant hereby agree to amend the Lease as follows:

 

AGREEMENT

 

1.             Guaranty.Advanced Power Technology, Inc. (“Guarantor”) shall guaranty the due, punctual,and full payment of all Base Rent *(*as defined in the Lease) andAdditional Rent (as defined in the Lease) payable by Tenant and GHz Acquisitionpursuant to the terms of the Lease. If Guarantor defaults pursuant to the termsof the Guaranty, Tenant shall be deemed to have committed all event of defaultunder the Lease and Landlord shall be entitled to exercise all of the remediesavailable pursuant to the terms of the Lease and at law or in equity. TheGuaranty shall be in the form of Exhibit “A” attached hereto.

 

2.             Ratification.Except as modified hereby, the Lease is hereby ratified and affirmed byLandlord and Tenant and remains in full force and effect.

 

3.             Counterparts.This Amendment may be executed in any number of counterparts, each of whichshall be deemed to be an original and all of which taken together shall bedeemed one and the same instrument.

 

4.             Brokers.Landlord and Tenant each represent and warrant to the other that they have hadno dealings with any real estate broker; agent or finder in connection with thenegotiation or execution of this Amendment. Each party hereto shall indemnifyand hold harmless the other party from any claims, including reasonableattorney’s fees, by a broker, agent or finder for any leasing commission which may be claimed as a result of the actions of the indemnifying party.

 

----

 

5.             DefinedTerms. Except as expressly setforth herein to the contrary, all defined terms used in the Amendment shallhave the same meanings as attributed to such terms in the Lease.

 

IN WITNESSWHEREOF, Landlord and Tenant have caused this Amendment to be executed as ofthe day and year first above written.

 

“LANDLORD”

 

3000 OAKMEADVILLAGE DRlVE, LTD.

 
| By:                   |   |   |
|-----------------------|--------|--------|
|                  |
| Print Name:           |   |   |
|                  |
| Its:                  |   |   |
|                  |
| ‘TENANT”    |
|                  |
| GHZ  TECHNOLOGY, INC. |
|                  |
| By:                   |   |   |
|                  |
| Print Name:           |   |   |
|                  |
| Its:                  |   |   |
|                       |        |        |  |  |  |  |

 

----

 

**EXHIBIT A**

**FORM OF GUARANTY**

 

----

 

**UNCONDITIONALGUARANTY OF LEASE**

 

THIS GUARANTY(“Guaranty”) is made as of March     , 2002, by ADVANCEDPOWER TECHNOLOGY, INC., a Delaware corporation Guarantor”), in favor of 3000OAKMEAD VILLAGE DRIVE, LTD. (“Landlord”).

 

RECITALS

 

A. Concurrentlyherewith, Landlord and GHz Technology, Inc. (‘Tenant”), entered into thatcertain Lease dated as of .June 17, 1.991., as amended by Amendment to Leasedated July 29, 1993, by Second Amendment to Lease dated July 5, 2000, by ThirdAmendment to Lease dated September 26, 2000, and by Fourth Amendment to Leaseof even date herewith, and as may be further amended nom time to timehereafter. and as assigned by Tenant to GHz Acquisition, Inc. (“GHz Acquisition”)by Assignment and Assumption Agreement (the “Assignment Agreement”) of evendate herewith (the “Lease”), concerning that certain premises (“Premises”)commonly known as APN #216-48-025 located at 3000 Oakmead Village Drive, SantaClara. Santa Clara, California, and as more particularly described in theLease.

 

B. Landlordwould not consent to the Assignment Agreement if Guarantor did not execute anddeliver to Landlord this Guaranty. As an inducement to Landlord to consent tothe Assignment Agreement, Guarantor is willing to enter into and perform in accordancewith this Guaranty.

 

NOW THEREFORE,Guarantor unconditionally guaranties and agrees as follows:

 

1.             DefinedTerms.  All terms not specificallydefined herein shall have the meaning assigned to such terms in the Lease.

 

2. Guaranty. Guarantor hereby unconditionally andirrevocably guaranties the due, punctual, and full payment of all Base Rent (asdefined in the Lease) and Additional Rent (as defined in the Lease) payable byTenant and GHz Acquisition. As referred to in the immediately preceding sentence,each and every such rental and other sum payable by Tenant and GHz Acquisitionunder the Lease are hereby individually and collectively referred to as the “Obligations.”All Obligations shall be payable by Guarantor to Landlord immediately upon demandupon default by Tenant or GHz Acquisition under the Lease. It is the intentionof Landlord and Guarantor that the term, Obligations be defined to mean thefull amount owed to Landlord and any trustee, including without limitation anyinterest, default interest, costs, and fees (including without limitationattorneys’ fees and costs) that would have accrued under the Lease but for thecommencement of a case under the Bankruptcy Code or any other law governing insolvency, bankruptcy,reorganization, liquidation, or like proceeding. Without limitation, thisGuaranty is a guaranty of prompt and punctual payment of the Obligations,whether at stated maturity, by acceleration or otherwise, and is not merely aguaranty of collection.

 

----

 

3.             Rights of Landlord. Guarantor authorizes Landlord at any time inLandlord’s sole discretion, withoutgiving notice to Guarantor or obtaining Guarantor’s consent and withoutaffecting the liability of Guarantor for the Obligations, from time to time to:

 

(a)           alter,compromise, settle, modify, renew, amend, extend, suspend, waive, discharge theperformance of, change the manner or terms or time for payment, enforce ordecline to enforce, or release any of the Obligations;

 

(b)           totake and hold security for the performance of the Obligations and to exchange,enforce, waive, release, and direct the order or manner of sale thereof asLandlord may determine;

 

(c)           applypayments received by Landlord from Tenant or GHz Acquisition to the Obligationsin such order as Landlord shall determine;

 

(d)           declareall Obligations due and payable upon the occurrence of an event of defaultunder the Lease;

 

(e)           assignthis Guaranty in whole or in part; and

 

(f)            torelease, substitute or add anyone or more guarantors.

 

4.             Guarantor’sWaivers. Guarantor waives to the fullest extent permitted by applicablelaw:

 

(a)           anyright to require Landlord to proceed against Tenant and GHz Acquisition or anycollateral, or pursue any other remedy in Landlord’s power whatsoever, andGuarantor waives any additional rights arising under California Civil Codesection 2845;

 

(b)           anyright to require Landlord to marshall any assets in favor of Guarantor, Tenant,GHz Acquisition or any other guarantor or other person liable for theObligations or against or in payment of any Obligations.

 

(c)           anynotice of any default by Tenant or GHz Acquisition with respect to anyObligation;

 

(d)           anynotice of acceptance by Landlord of this Guaranty;

 

(e)           anydefense based upon the legal disability of Ten ant or GHz Acquisition. any otherguarantor, or any other person, or by reason of the cessation or limitation ofthe liability of Tenant and GHz Acquisition from any cause (other than fullpayment of all Obligations);

 

(f)            anydefense based upon any lack of authority of the officers, directors, partners,or agents acting or purporting to act on behalf of Tenant, GHz Acquisition orany principal of Tenant or GHz Acquisition or any defect in the formation ofTenant or GHz Acquisition or any principal of Tenant or GHz Acquisition;

 

----

 

(g)           anydefense based on Landlord’s failure at any time to require strict performanceby Tenant or GHz Acquisition of any term, condition or covenant of the Lease orby Guarantor of this Guaranty, and Guarantor agrees that such failure shall notwaive, alter or diminish any right of Landlord thereafter to demand strictcompliance and performance therewith;

 

(h)           anydefense based on a modification or amendment to the Lease agreed to by Landlordand GHz Acquisition which changes the scope of Guarantor’s risks hereunder;

 

(i)            anydefense based on Landlord’s election of any remedy against Guarantor, Tenant,GHz Acquisition or any other guarantor or other person or some or all of them,or any defense based on the order in which Landlord enforces its remedies; and

 

(j)            anydefense based upon Landlord’s failure to disclose to Guarantor any informationconcerning the financial condition of Ten ant or GHz Acquisition or any othercircumstances bearing on the ability of Tenant or GHz Acquisition to pay orperform the Obligations.

 

5.             Subrogation.Guarantor shall not exercise any rights it may acquire by reason of any paymentmade hereunder, whether by way of subrogation, reimbursement or otherwise,until (i) the prior payment, in full and in cash, of all Obligations and (ii)termination or expiration of the Lease. Any amount paid to Guarantor by or onbehalf of Tenant or GHz Acquisition on account of any payment made by Guarantorhereunder prior to the payment in full of all Obligations and termination orexpiration of the Lease shall be held in trust for the benefit of Landlord. Solong as any Obligations remain outstanding or the Lease remains in existence,Guarantor shall refrain from taking any action or commencing any proceeding orotherwise, to recover any amounts in respect of payments made to Landlord underthis Guaranty.

 

6.             Subordination.Guarantor does hereby subordinate all existing or future indebtedness of Tenantand GHz Acquisition to Guarantor to the Obligations owed to Landlord under theLease and this Guaranty.

 

7.             IndependentLiability. The obligations of Guarantor hereunder shall be in addition to,and shall not limit or in any way affect, the obligations of Ten ant and GHzAcquisition under the Lease. This Guaranty may be enforced by Landlord withoutthe necessity at any time of having to proceed against the Tenant and GHzAcquisition or to pursue any other remedy or enforce any other right. Nothingcontained herein shall prevent Landlord from exercising any other rightsavailable to it under the Lease or otherwise. The exercise of any of theaforesaid rights shall not constitute a discharge of Guarantor’s obligationshereunder, it being the purpose and intent of Guarantor that Guarantor’sobligations hereunder shall be absolute, independent and unconditional underany and all circumstances. Neither Guarantor’s obligations under this Guarantynor any remedy for the enforcement thereof shall be impaired, modified, changedor released in any manner whatsoever by any impairment, modification, change,release, or limitation of the liability of Ten ant or GHz Acquisition or byreason of the bankruptcy or insolvency of Ten ant Or GHz Acquisition.

 

8.             Guarantor’sAcknowledgment. Guarantor acknowledges that Landlord would not consent tothe Assignment Agreement but for this Guaranty and that this Guaranty is amaterial inducement to Landlord consent to the Assignment Agreement.

 

----

 

9.             Term.This Guaranty is irrevocable by Guarantor. It is a continuing guaranty andshall terminate only upon the full satisfaction of the Obligations andtermination or expiration of the Lease, as such Lease term may be extended.With respect to any Obligation of Tenant and GHz Acquisition that survivesexpiration or termination of the term of the Lease, as may be extended,Guarantor’s liability hereunder as to such Obligation likewise shall surviveand continue co-extensively. If, notwithstanding the foregoing, Guarantor shallhave any nonwaivable right under applicable law or otherwise to terminate orrevoke this Guaranty, Guarantor agrees that such termination or revocationshall not be effective until written notice of such termination or revocationis received by Landlord. Such notice shall not affect the right and power ofLandlord to enforce rights arising prior to receipt thereof.

 

10.           Bankruptcyof Tenant and GHz Acquisition. In any bankruptcy or other proceeding inwhich the filing of claims is required by law, Guarantor shall file all claimswhich Guarantor may have against Tenant or GHz Acquisition relating to anyindebtedness of Tenant or GHz Acquisition to Guarantor and shall assign toLandlord all rights of Guarantor thereunder. If Guarantor does not file anysuch claim, Landlord, as attorney-in-fact for Guarantor, is hereby authorizedto do so in the name of the Guarantor, or, in Landlord’s discretion, to assignthe claim to a nominee and to cause a proof of claim to be filed in the name ofsuch nominee. The foregoing power of attorney is coupled with an interest andcannot be revoked. Landlord or its nominee shall have the right, in itsreasonable discretion, to accept or reject any plan proposed in such proceedingand to take any other action which a party filing a claim is entitled to take.In all such cases, whether in administration, bankruptcy or otherwise, theperson(s) authorized to pay such claim shall pay to Landlord the amount payableon such claim, and, to the full extent necessary for that purpose, Guarantorhereby assigns to Landlord all of Guarantor’s rights to any such payments ordistributions; provided however, that Guarantor’s obligations hereunder shallnot be satisfied except to the extent that Landlord receives cash by reason ofsuch payment or distribution. If Landlord receives anything hereunder otherthan cash, the same shall be held as collateral for amounts due under thisGuaranty. Further. notwithstanding any termination of the Guaranty or Guarantor’sobligations hereunder, the liability of Guarantor hereunder shall be reinstatedand revived, and the rights of Landlord shall continue, with respect to any amountat any time paid by Tenant or GHz Acquisition on account of the Lease whichLandlord shall be required to restore or return upon the bankruptcy,insolvency, or reorganization of Tenant or GHz Acquisition, all as though suchamount had not been paid.

 

11.           Costsand Expenses: Attorney’s Fees. Guarantor agrees to pay Landlord’sreasonable out-of-pocket costs and expenses, including but not limited to legalfees and disbursements, incurred in any effort to collect or enforce any of theObligations or this Guaranty. Without limiting the provisions of the precedingsentence, in the event of any action or proceeding at law or equity arising nomor based upon this Guaranty, the prevailing party shall be entitled to recovernom the other reasonable attorney’s fees and costs. If Landlord, without faulton Landlord’s part, be made a party to any litigation or proceeding institutedby or against Guarantor, Guarantor shall pay to Landlord all costs and expensesincurred by Landlord, including attorney’s fees and costs.

 

12.           Notices.Unless otherwise provided herein, all notices or demands by any party relatingto this Guaranty shall be in writing, and shall be sufficiently served bypersonal delivery, or by delivery by nationally recognized overnight courierwhich maintains records of delivery (such as Federal Express), or by depositingthe same in the United States Mail, Certified and Return Receipt Requested,postage prepaid, and addressed to the addresses set forth below:

 

----

 
| To Landlord  at:  |   | 3000 Oakmead  Village Drive, Ltd. |
|-------------------|--------|-----------------------------------|
|              |   | 700 Emerson  Street               |
|              |   | Palo Alto,  California 94301      |
|              |   | Attn: Mark  Gates                 |
|              |   |                              |
| To Guarantor  at: |   | Advanced  Power Technology, Inc.  |
|              |   | 405 S. W.  Columbia Street        |
|              |   | Bend, Oregon  97702               |
|              |   | Attn:  Patrick Sireta             |

 

The partieshereto may change the address at which they are to receive notices hereunder,by notice in writing in the foregoing manner given to the other.

 

13.           Assignment:Binding Effect. Guarantor may not assign this Guaranty without the priorwritten consent of Landlord, in Landlord’s absolute discretion. Landlord mayassign this Guaranty only in conjunction with its assignment of the Lease; anysuch assignment shall not require the consent of Guarantor, Tenant or GHzAcquisition. This Guaranty shall be binding upon Guarantor, their successors, heirs,administrators, executors, legal representatives, and permitted assigns, andshall inure to the benefit ofLandlord and its successors, transferees and assigns. Each person or entitycomprising the Guarantor shall be jointly and severally liable under thisGuaranty.

 

14.           Deathof Guarantor. In the event of the death of any Guarantor, the obligation ofthe estate of the deceased Guarantor with respect to the Obligations shallcontinue in full force and effect.

 

15.           Remedies.No failure on the part of Landlord to exercise, no delay in exercising and nocourse of dealing with respect to any right hereunder shall operate as a waiverthereof; nor shall any single or partial exercise of any right hereunderpreclude any other or further exercise thereof Or the exercise of any otherright. The remedies herein provided are cumulative and not exclusive of anyremedies provided by law or equity.

 

16.           Guarantor’sDefault. Landlord may declare the Guarantor in default under this Guarantyif the Guarantor fails to perform any obligation under this Guaranty, becomesinsolvent, or becomes the subject of any bankruptcy, insolvency, arrangement,reorganization, or other debtor-relief proceeding under any federal or statelaw, whether now existing or hereafter enacted.

 

17.           Miscellaneous.The invalidity or unenforceability in whole or in part of anyone or moreprovisions of this Guaranty shall not affect the balance of such provision orany other provisions. This Guaranty shall be governed by California law withoutregard to its conflicts of laws principles, and may be amended only by awritten instrument executed by Guarantor and Landlord. This Guaranty containsthe entire agreement of Guarantor with Landlord covering the subject matterhereof, and no representation, condition, understanding or promise shall beenforceable with respect to this Guaranty unless it is expressly containedherein.

 

WE, THEUNDERSIGNED AS “GUARANTOR,” ACKNOWLEDGE THAT WE WERE AFFORDED THE OPPORTUNITYTO READ THIS DOCUMENT CAREFULLY AND REVIEW IT WITH AN ATTORNEY OF OUR CHOICEBEFORE SIGNING BELOW, AND THAT WE UNDERSTOOD THE MEANING AND EFFECT OF THISDOCUMENT BEFORE SIGNING BELOW.

 

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IN WITNESSWHEREOF, this Guaranty has been duly executed by the undersigned as of the datefirst written above.

 

 

**GUARANTOR:**

 

ADVANCED POWERTECHNOLOGY, INC.

 

 
| By:         |   |   |
|-------------|--------|--------|
|        |
| Print Name: |   |   |
|        |
| Its:        |   |   |
|             |        |        |  |  |  |

 

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**FIFTH AMENDMENT TO LEASE**

 

THIS FIFTHAMENDMENT TO LEASE (this “Amendment’”) dated as of this 1st day ofMarch, 2003 (the “Effective Date”), is by and between 3000 OAKMEAD VILLAGEDRIVE. LTD., as landlord (“Landlord”), and ADVANCED POWER TECHNOLOGY RF,INC., as tenant (“Tenant”).

 

RECITALS

 

A.            Landlordand Tenant’s predecessor-in-interest, GHz Technology, Inc., entered into thatcertain Lease dated as of June 17, 1991, as amended by Amendment to Lease datedJuly 29, 1993, by Second Amendment to Lease dated July 5, 2000, by ThirdAmendment to Lease dated September 26, 2000and by Fourth Amendment to Lease dated March 29, 2002 (collectively, the“Lease”), pursuant to which GHz Technology, Inc. leased certain premises(the “Premises”) commonly known as APN #216-48-025 located at 3000Oakmead Village Drive, Santa Clara, California.

 

B.            GHzTechnology, Inc. assigned all of**its rights, interest andobligations under the Lease to Tenant (which was formerly known as GHzAcquisition, Inc.) by that certain Assignment and Assumption Agreement datedMarch 29, 2002 which Landlord consented to in that certain Consent toAssignment and Assumption Agreement dated March 29, 2002.

 

C.            Bythat certain Unconditional Guaranty of Lease dated March 29, 2002**(the“Guaranty”), Advanced Power Technology, Inc. guaranteed the due,punctual, and full payment of all Base Rent and Additional Rent payable byTenant pursuant to**the terms of the Lease.

 

D.            Landlordand Tenant now desire to modify the Lease upon the terms and conditionshereinafter provided.

 

NOW,THEREFORE, in consideration of the covenants set forth in this Amendment andother valuable consideration, the receipt and adequacy of which is hereby acknowledged,Landlord and Tenant hereby agree to amend the Lease as follows:

 

AGREEMENT

 

1.             Term.  The expiration of the initial term of theLease is hereby extended from July 31, 2006 until February 28, 2011.

 

2.             Optionto Renew. Tenant shall have the option to extend the Lease for one (1)additional period of five (5) years beyond the end of the initial term on thesame terms, conditions, covenants and conditions as are provided in Paragraph44 of the Lease, as amended by Paragraph 3 of the Second Amendment to Lease,except that the initial Base Rent during the Option Period (as defined in theLease) shall be one hundred (100%) percent of the then fair market rental valueof the Premises (as provided in Subparagraph (B)(iii) of the Paragraph 44 ofthe Lease) and then adjusted annually thereafter in accordance withSubparagraph C of Paragraph 44 of the Lease.

 

3.             BaseRent. The following shall be deleted from Subparagraph (B) of Paragraph 3of

 

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the Lease, asamended by Paragraph 2 of**the Second Amendment to Lease,

 

Year 12 - $63,927.00 per month

Year 13 - $66,488.00 “           “

Year 14 - $69,147.00 “           “

Year 15 - $71,905.00 “           “

 

and replacedwith the following:

 
| “8/1/02 - 2/28/03 |   | $63,927.00 per month        |
|------------------------|--------|-----------------------------|
| 3/1/03 - 2/28/04       |   | $41,774.45 per month        |
| 3/1104 -  2/28/05      |   | $42,448.19 per month        |
| 3/1/05 -  2/28/06      |   | $43,142.15 per month        |
| 3/1/06 - 2/28/07       |   | $43,856.92 per month        |
| 3/1/07 - 2/28/08       |   | $44,593.13 per month        |
| 3/1/08 - 2/28/09       |   | $45,351.43 per month        |
| 3/1/09 - 2/28/10       |   | $46,132.48 per month        |
| 3/1/10 -  2/28/11      |   | $46,936.96 per month.” |

 

4.             ConditionPrecedent. The effectiveness of this Amendment shall be strictlyconditioned upon Advanced Power Technology, Inc. reaffirming the terms of theGuaranty in the form attached hereto as Exhibit “A”. If Advanced PowerTechnology, lnc. fails to reaffirm the terms of the Guaranty on or before March31, 2003, then this Amendment shall be null and void.

 

5.             Ratification.Except as modified hereby, the Lease is hereby ratified and affirmed byLandlord and Tenant and remains in full force and effect.

 

6.             Counterparts.This Amendment may be executed in any number of counterparts, each of whichshall be deemed to be an original and all of which taken together shall bedeemed one and the same instrument.

 

7.             Brokers.Landlord and Tenant each represent and warrant to the other that they have hadno dealings with any real estate broker, agent or finder in connection with thenegotiation or execution of this Amendment. Each party hereto shall indemnifyand hold harmless the other party from any claims, inc]uc1ing reasonableattorney’s fees, by a broker, agent or finder for any leasing commission whichmay be claimed as a result of the actions of the indemnifying party.

 

8.             DefinedTerms. Except as expressly set forth herein to the contrary, all definedterms used in the Amendment shall have the same meanings as attributed to suchterms in the Lease.

 

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IN WITNESSWHEREOF, Landlord and Tenant have caused thisAmendment to be executed as of the day and year first above written.

 

“LANDLORD”

 

3000 OAKMEADVILLAGE DRIVE, LTD.

 
| By:         |   |   |
|-------------|--------|--------|
|        |
| Print Name: |   |   |
|        |
| Its:        |   |   |
|             |        |        |  |  |

 

 

 

“TENANT”

 

ADVANCED POWERTECHNOLOGYRF, INC., formerly known as GHz Acquisition, Inc.

 
| By:                                      |   |   |
|------------------------------------------|--------|--------|
| Patrick  Sireta                          |
| President  & Chief Executive Officer |
|                                     |
|                                     |
| By:                                      |   |   |
| Charles C.  Leader                       |
| Vice  President                          |
|                                          |        |        |  |

 

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**EXHIBIT A**

 

**REAFFIRMATIONOF UNCONDITIONAL GUARANTY OF LEASE**

 

The undersigned (“Guarantor”)hereby consents to the terms, conditions and provisions of the Fifth Amendmentto Lease dated as of March 1, 2003 between 3000 Oakmead Village Drive, Ltd., aslandlord, and Advanced Power Technology RF, Inc., formerly known as GHzAcquisition, Inc., as tenant. Guarantor hereby ratifies and reaffirms the fullforce and effectiveness of the Unconditional Guaranty of Lease dated March 29,2002 (the “Guaranty”) in connection with the Lease dated June 17, 1991,as amended, as well as an acknowledgment that the obligations under theGuaranty are separate and distinct from those of Advanced Power Technology RF,Inc.

 

 

Dated this 1stday of March, 2003.

 

 

ADVANCED POWER TECHNOLOGY,INC.

 

 
| By:         |   |   |
|-------------|--------|--------|
|        |
| Print Name: |   |   |
|        |
| Its:        |   |   |
|             |        |        |  |  |

 

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