Exhibit
10.30


 


LEASE


 


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


 


3000
OAKMEAD VILLAGE DRIVE, LTD.


 


(hereinafter called
“Landlord”), and


 


GHz
TECHNOLOGY, INC,


 


(hereinafter called
“Tenant”).


 


Witnesseth:


 


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


 


Nine
Thousand eight hundred fifty (9,850) Square Feet


 


of rentable square feet


 


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


 


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


 


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


 


2.             POSSESSION.


 


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


to Tenant on the date above
specified for the commencement of the term of this Lease, this Lease shall not
be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom, but the expiration date of the above term shall be
extended by the same number of days that the Tenant’s possession of the
Premises was detained by Landlord’s inability to deliver possession, and in
such event Tenant shall not be liable for any rent until such time as Landlord
tenders delivery of possession of the Premises to Tenant with Landlord’s work
therein if any, substantially completed. Should Landlord tender possession of
the Premises to Tenant prior to the date specified for commencement of the term
hereof, and Tenant elects to accept such prior tender, such prior occupancy
shall be subject to all of the terms, covenants and conditions of this Lease,
including the payment of rent. Notwithstanding the above, if Landlord does not
deliver possession by August 1, 1991 Tenant can elect to terminate this lease
by giving written notice to Landlord within five (5) days after said date, in
which case the lease shall be terminated. However, delays caused by acts of
God, strikes, war, utilities, governmental bodies, weather, unavailable
materials, and delays beyond the Landlord’s control shall be excluded in
calculating such period.


 





















 


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


 


3.             RENT.


 


(A) Base Rent. Tenant
shall pay to Landlord as Base Rent for the Premises, in advance and subject to
adjustments as provided herein, the sum of eight thousand three hundred seventy
two 50/100


 


Dollars ($8,372.50) on or before the first day of each and every
successive calendar month thereafter during the term hereof, commencing August
1, 1991.


 


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


 


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 accordance
with Paragraph 43. of this Lease.


 


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


 


(i)
Taxes.


 


(a)           As Additional Rent and in accordance with
Paragraph 3D of this Lease, Tenant shall pay to Landlord Tenant’s proportionate
share of all Real Property Taxes, which prorata share shall be allocated to the
leased Premises by square footage or other equitable basis. The term “Real
Property Taxes”, as used herein, shall mean (i) all taxes, assessments, levies
and other charges of any kind or nature whatsoever, general and special, foreseen
and unforeseen (including all installments of principal and interest required
to pay any general or special assessments for public improvements and any
increases resulting from reassessments caused by any change in ownership of the
Complex) now or hereafter imposed by any governmental or quasi-governmental
authority or special district having the direct or indirect power to tax or
levy assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Complex (as now
constructed or as may at any time hereafter be constructed, altered, or
otherwise changed) or Landlord’s interest therein; any improvements located
within the Complex (regardless of ownership); the fixtures, equipment and other
property of Landlord, real or personal, that are an integral part of and
located in the Complex; or parking areas, public utilities, or energy within
the Complex; (ii) all charges, levies or fees imposed by reason of
environmental regulation or other governmental control of the Complex;
excluding those which may be imposed due to preexisting conditions of the
Complex, and (iii) all reasonable costs and fees (including attorneys’ fees)
incurred by Landlord in contesting any Real Property Tax and in negotiating
with public authorities as to any Real Property Tax. If at any time during the
term of this Lease the taxation or assessment of the Complex prevailing as of
the commencement date of this Lease shall be altered so that in lieu of or in
addition 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 or
assessment, creation of a new tax or charge, or any other cause) an alternate
or additional tax or charge (i) on the value, use o-r occupancy of the Complex
or 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 the
Complex, or computed in any manner with respect to the operation of the
Complex, then any such tax or charge, however designated, shall be included
within the meaning of the term “Real Property Taxes” for purposes of this
Lease. If any Real Property Tax is based upon property or rents unrelated to
the Complex then only that part of such Real Property Tax that is fairly
allocable to the Complex shall be


 





















 


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


 


(b)           (i) Tenant shall be liable for and shall pay
ten days before delinquency, taxes levied against any personal property or
trade fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant’s personal property or trade fixtures are levied against Landlord or
Landlord’s property or if the assessed value of the Premises is increased by
the inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof, but only under proper protest if
requested by Tenant. Tenant shall upon demand, as the case may be, repay to
Landlord the taxes so levied against Landlord, or the propertion of such taxes
resulting from such increase in the assessment; provided that in any such event
Tenant shall have the right, in the name of Landlord and with Landlord’s full
cooperation, to bring suit in any court of competent jurisdiction to recover
the amount of any such taxes so paid under protest, and any amount so recovered
shall belong to Tenant. (ii) If the Tenant improvements in the Premises,
whether installed, and/or paid for by Landlord or Tenant and whether or not
affixed 10 the real property so as to become a part thereof, arc assessed for
real property tax purposes at a valuation higher than the valuation at which
standard office improvements in other space in the Complex are assessed, then
the real property taxes and assessments levied against Landlord or the Complex
by reason of such excess assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
3(C)(i)(a) above. If the records of the County’ Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
improvements are assessed at a higher valuation than standard office
improvements in other space in the Complex, such records shall be binding on
both the Landlord and the Tenant. If the records of the County Assessor are not
available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.


 


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


 


(ii)           Property Insurance. 
Landlord shall purchase and keep in force and as Additional Rent
and in accordance with Paragraph 3D of this Lease, and Tenant shall pay
to Landlord Tenant’s proportionate share (calculated on a square footage or
other equitable basis as calculated by Landlord) of the cost of a policy or
policies of insurance covering loss or damage to the Premises and Complex in
the amount of the full replacement value thereof, providing protection against
those perils included within the classification of “all risks” insurance and
flood and/or earthquake insurance, if available, at a reasonable cost as
compared to other insurance policy premiums, plus a policy of rental income
insurance in the amount of one hundred (100%) percent of twelve (12) months
Basic Rent, plus sums paid as Additional Rent. If such insurance cost is
increased due to Tenant’s use of the Premises or the Complex, Tenant agrees to
pay to Landlord the full cost of such increase. Tenant shall have no interest in
nor any right to the proceeds of any insurance procured by Landlord for the
Complex.


 


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


 


(iii) Expenses of
Operation, 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 by
Landlord) of all expenses of operating, management, maintenance and repair of the
Common Areas of the Complex including, but not limited to, license, permit, and
inspection fees; security; utility charges associated with exterior landscaping
and lighting (including water and sewer charges); all charges incurred in the
maintenance 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 the
buildings; salaries and employee benefits of personnel and payroll taxes to the
extent that such employees are employed in the management or maintenance of the
Common Areas of the Complex applicable thereto; supplies, materials, equipment
and tools; the cost of capital expenditures which have the effect of reducing
operating expenses, provided, however, that in the event Landlord makes such
capital improvements, Landlord may


 





















 


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


 


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


 


As Additional Rent, Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common 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 the
Premises are located. The maintenance items herein referred to include, but are
not 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 as
compressors, fans, air handlers, ducts, boilers, heaters), store fronts, roofs,
downspouts, building common area interiors (such as wall coverings, window
coverings, floor coverings and partitioning), ceilings, building exterior
doors, skylights (if any), automatic fire extinguishing systems, and elevators;
license, permit, and inspection fees; security; salaries and employee benefits
of personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect of
reducing operating expenses, provided, however, that in the event, Landlord
makes such capital improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of fifteen (15 %) percent per
annum on the unamortized balance) as an operating expense in accordance with
standard accounting practices, provided, that such amortization is not at a
rate greater than the anticipated savings in the operating expenses. Tenant
hereby waives all rights under, and benefits of, subsection 1 of Section 1932
and Sections 1941 and 1942 of the California Civil Code and under any similar
law, statute or ordinance now or hereafter in effect.


 


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


 


Landlord shall not be liable
for and Tenant shall not be entitled to any abatement or reduction of rent by
reason of any interruption or failure of utility services to the Premises when
such interruption or failure is caused by accident, breakage, repair, strikes,
lockouts, or other labor disturbances or labor disputes of any nature, or by
any other cause, similar or dissimilar, beyond the reasonable control of
Landlord. Tenant agrees that at all time it will cooperate fully with Landlord
and abide by all regulations and requirements that Landlord may prescribe for
the proper functioning and protection of the building heating, ventilating and
air conditioning systems. If Tenant shall require water, gas, or electric
current in excess of that usually furnished or supplied to Premises, Tenant
shall first obtain the written consent of Landlord, which consent shall Dot be
unreasonably withheld and Landlord may cause an electric current, gas, or water
meter 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 of
any such meter and of the installation, maintenance and repair thereof, all
charges for such excess water, gas and electric current consumed (as shown by
such meters and at the rates then charged by the furnishing public utility);
and any additional expense incurred by Landlord in keeping account of electric
current, gas, or water so consumed shall be paid by Tenant, and Tenant agrees
to pay Landlord therefor promptly upon demand by Landlord.


 


The Additional Rent due
hereunder shall be paid to Landlord (i) within five (5) days after presentation
of invoice from Landlord setting forth such Additional Rent and/or (ii) at the
option of Landlord, Tenant shall pay to Landlord monthly, in advance, Tenant’s
pro rata share of an amount estimated by Landlord to be Landlord’s approximate
average monthly expenditures for such Additional Rent items, which estimated
amount shall be reconciled at the end of each calendar year as compared to
Landlord’s actual expenditure for said Additional Rent items, with Tenant
paying to Landlord, upon demand, any amount of actual expenses expended by
Landlord in excess of said estimated amount, or Landlord refunding to Tenant
(providing Tenant is not in default under this Leases) any amount of estimated
payments made by Tenant in excess of Landlord’s actual expenditures for said


 





















 


Additional Rent items.


 


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


 


(D)             Time for Payment.  In
the event that the term of this Lease commences on a date other than the first
day of a calendar month, on the date of commencement of the term hereof Tenant
shall pay to Landlord, as rent for the period from such date of commencement to
the first day of the next succeeding calendar month, that proportion of the
monthly rent hereof which the number of days beyond such date of commencement
and 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 other
than the last day of a calendar month, on the first day of the last calendar
month of the tenn hereof, Tenant shall pay to Landlord, as rent for the period
from said first day of the last calendar month to and including the last
calendar day of the term hereof, that proportion of the monthly rent hereof
which the number of days beyond said first day of said last calendar month and
the last day of the term hereof bears to thirty (30).


 


(E)           Late Charge. Notwithstanding any other provision of this Lease, if Tenant is in
default in the payment of rental as set forth in this Paragraph 3 when due, or
any part thereof, Tenant agrees to pay Landlord, in addition to the delinquent
rental 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 in
default.


 


(F)           First Month’s Rent. Lessor acknowledges receipt from Tenant on
the execution hereof, the sum of Eight thousand three hundred seventy two and
50/100 Dollars ($8,372.50) constituting rent for first month of the term
hereof.


 


(G)           Place of Payment of Rent and Direct Expenses. All rental hereunder and all payments
hereunder for Operating Expenses and Taxes shall be paid to Landlord, without
deduction or offset, in lawful money of the United States of America, at the
office of Landlord at


 


700
Emerson Street, Palo Alto, CA 94301


 


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


 


(H)             Security Deposit. Concurrently with Tenant’s execution of
this Lease, Tenant shall deposit with Landlord the sum of Twenty thousand and
no/100 Dollars ($20.000.00).  Said sum
shall be held by Landlord as a Security Deposit for the faithful performance by
Tenant of all of the terms, covenants, and conditions of this Lease to be kept
and performed by Tenant during the term hereof. If Tenant defaults with respect
to any provision of this Lease, including, but not limited to, the provisions
relating 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 any
part of this Security Deposit for the payment of any other amount which
Landlord may spend by reason of Tenant’s default or to compensate Lessor for
any other loss or damage which Landlord may suffer by reason of Tenant’s
default. If any portion of said Deposit is so used or applied, Tenant shall,
within ten (IO) days after written demand therefor, deposit cash with Landlord
in 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. Landlord
shall not be required to keep this Security deposit separate from its general
funds, and Tenant shall not be entitled to interest on such Deposit. If Tenant
fully and faithfully performs every provision of this Lease to be performed by
it, the Security Deposit or any balance thereof shall be returned to Tenant (or
at Landlord’s option, to the last assignee of Tenant’s interest hereunder) at
the expiration of the Lease term and after Tenant has vacated the Premises. In
the event of termination of Landlord’s interest in this Lease, Landlord shall
transfer said Deposit 10 Landlord’s successor in interest whereupon Tenant
agrees to release Landlord from liability for the return of such Deposit or the
accounting therefor.


 


4.             USE. Tenant shall use the Premises for the manufacturer of semiconductor
products, wafer fabrication, assembly and testing, and general office purposes
and shall not use or permit the Premises to be used for any other purpose
without the prior written consent of Landlord. Tenant shall not use or occupy
the Premises in violation of


 





















 


law or of the certificate of
occupancy 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 the
Premises which is declared by any governmental authority having jurisdiction to
be a violation of law or of said certificate of occupancy. Tenant shall comply
with any direction of any governmental authority having jurisdiction, which
shall by reason of the nature of Tenant’s use or occupancy of the Premises
impose any duty upon Tenant or Landlord with respect to the Premises, or with
respect to the use of occupation thereof. Tenant shall not do or permit to be
done anything which will invalidate or increase the cost of any lire, extended
coverage or any other insurance policy covering the Complex and/or property
located therein. Tenant shall promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of Tenant’s failure to
comply with the provisions of this Paragraph. Tenant shall promptly upon demand
reimburse Landlord for any additional premium charged for such policy by reason
of Tenant’s failure to comply with the provisions of this Paragraph. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Complex, or injure or annoy them, or use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the Premises.


 


5.             NOTICES.  Any notice required or
permitted to be given hereunder must be in writing and may be given by personal
delivery or by mail, and if given by mail shall be deemed sufficiently given
when sent by registered or certified mail addressed to Tenant at the Complex of
which the Premises are a part, or to Landlord at the address of Landlord set
forth in Paragraph 3 (G). Either party may by written notice to the other specify
a different address for notice purposes except that the Landlord may in any
event use the Premises as Tenant’s address for notice purposes.


 


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


 


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


 


7.             HOLDING OVER.  If
Tenant holds over after the expiration or earlier termination of the term
hereof without the express written consent of Landlord, Tenant shall become a
tenant at sufferance only, at double the market rental rate in effect upon the
date of such expiration and otherwise upon the terms, covenants and conditions
herein specified, so far as applicable. Acceptance by Landlord of rent after
such expiration or earlier termination shall not constitute a holdover
hereunder or result in a renewal. The foregoing provisions of this paragraph
are in addition to and do not affect Landlord’s right of re-entry or any other
rights of Landlord hereunder or as otherwise provided by law.


 


8.             CONDITIONS OF PREMISES. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises or the Complex or with respect, to the suitability of either
for the conduct of Tenant’s business. The taking of possession of the Premises
by Tenant shall conclusively establish that the Tenant’s Premises and said
Complex were at such time in satisfactory condition.


 


9.             ALTERATIONS. Tenant shall make no alterations, decorations, additions or
improvements in or to the Premises with a total cost in excess of three
thousand and no/100 Dollars
($3,000.00) without Landlord’s prior written consent, and then only by
contractors or mechanics approved by Landlord which approval shall not be
unreasonably withheld. Tenant agrees that there shall be no construction or
partitions or other obstructions which might interfere with Landlord’s free
access to mechanical installations or service facilities of the Complex or
interfere with the moving of Landlord’s equipment to or from the enclosures,
containing said installations or facilities. All such work shall be done at
such 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 in
full compliance with all laws, rules, orders, ordinances, directions,
regulations and requirements of all governmental agencies, offices,
departments, bureaus and boards having jurisdiction. Before commencing any
work, Tenant shall give Landlord at least five (5) days’ written notice of the
proposed commencement of such work, and shall, if required by Landlord,


 





















 


secure at Tenant’s own cost
and expense a completion and lien indemnity bond, satisfactory to Landlord, for
such work. Tenant further covenants and agrees that any mechanic’s lien filed
against the Premises or against the Complex for work claimed to have been done
for, or materials claimed to have been furnished to, Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after the filing thereof,
at the cost and expense of Tenant. All alterations, decorations, additions or
improvements upon the Premises made by either party, including (without
limiting the generality of the foregoing) all wallcoverings, built-in cabinet
work, paneling and the like, shall, unless Landlord elects otherwise, become
the property of Landlord and shall remain upon, and be surrendered with, the
Premises, as a part thereof, at the end of the term hereof, except that
Landlord may, by written notice to Tenant, require Tenant to remove all
partitions, counters, railings and the like installed by Tenant, and Tenant
shall’ repair or, at Landlord’s option, shall pay to the Landlord all costs
arising from such removal. It is hereby acknowledged that Tenant shall
construct a wall in the Complex which is to physically separate the Premises
from the balance of the Complex. Tenant is to provide floor plan which
specifies location and materials for Landlord’s approval.


 


All personal property,
equipment and trade fixtures on the Premises at the commencement of the Lease
shall remain the property of Landlord and shall be surrendered with the
Premises at the expiration of this Lease or sooner termination of the term
hereof. All personal property, office machinery and equipment trade fixtures,
furniture and moveable partitions owned by Tenant or installed by Tenant at its
expense in the Premises shall be and remain the property of Tenant and may be
removed by Tenant at any time during the lease term when Tenant is not in
default hereunder. If Tenant shall fail to remove all of its effects from said
Premises upon termination of this Lease for any cause whatsoever, Landlord may,
at its option, remove the same in any manner that Landlord shall choose, and
store said effects without liability to Tenant for loss thereof, and Tenant
agrees to pay Landlord upon demand any and all reasonable expenses incurred in
such removal, including court costs and attorneys’ fees and storage charges on
such effects for any length of time that the same shall be in Landlord’s
possession; 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 the
proceeds of such sale upon any amounts due under this Lease from Tenant to
Landlord and upon the expenses incident to the removal and sale of said
effects.


 


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 and
expense, keep the Premises and every part thereof in a high standard of
maintenance and repair and in good and sanitary condition and repair, ordinary
wear and tear and damage from causes beyond the reasonable control of Tenant
excepted. Tenant shall, upon the expiration or sooner termination of the term
hereof, surrender the Premises to Landlord in the same condition as when
received, ordinary wear and tear and damage from causes beyond the reasonable
control of Tenant excepted, with all interior walls painted, or cleaned so that
they appear freshly painted, repaired, and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed. Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the Premises
or any part thereof and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the conditions of the Premises or the
Complex except as specifically herein set forth.


 


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


 


12.           ENTRY BY LANDLORD. Landlord, upon reasonable prior notice to
Tenant, reserves and shall at any and all times have the right to enter the
Premises to inspect same, to supply janitorial services and any other service
to be provided to Tenant by Landlord hereunder, to submit said Premises to
prospective purchasers or tenants, to post notices of nonresponsibility, to
alter, improve or repair the Premises or any portion of the Complex, all
without being deemed guilty of an eviction of Tenant and without abatement of
rent, and may erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, provided that the
business of the Tenant shall be interfered with as little as is reasonably
practicable. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant’s business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord may at Landlord’s sole discretion
retain a key with which to unlock all of the doors in, upon and about the
Premises, excluding Tenant’s vaults and safes, and Landlord shall have the
right to use any and all means which Landlord may deem proper to open said door
in an emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord by any of said means, or otherwise, shall not
under any circumstances be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction of Tenant


 





















 


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


 


13.           INDEMNIFICATIONS. Tenant shall indemnify and hold harmless
Landlord against and from any and all causes and claims including, but not
limited to, those arising from Tenant’s use of the premises or the conduct of
its business or from any activity, work done, permitted or suffered by the
Tenant in or about the premises, from Landlord’s passive negligence, and shall
further indemnify and hold harmless Landlord against and from any and all
claims arising from any breach or default in the performance of any obligation
of Tenant’s part to be performed under the terms of this Lease, or arising from
any act, neglect, fault or omission of the Tenant, or of its agents or
employees, and from and against all costs, attorneys’ fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
thereon, and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend the same
at Tenant’s expense by counsel reasonably satisfactory to Landlord. Tenant, as
a material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to person in, upon or about the Premises from any
cause whatsoever except that which is caused by the neglect, willful conduct or
failure of Landlord to observe any of the terms and conditions to this Lease
notwithstanding anything in this Lease to the contrary. Landlord shall
indemnify and hold harmless Tenant against and from any and all causes and
claims arising from the active neglect or willful misconduct or intentional
failure of Landlord to observe any of the terms and conditions of this Lease,
and pre-existing contamination from hazardous materials as provided in Paragraph
45. of this Lease.


 


14.           DAMAGE TO TENANT’S PROPERTY. Notwithstanding the provisions of Paragraph
15 to the contrary, neither Landlord nor its agents shall be liable for any
damage to property entrusted to employees of the Complex, nor for loss of or
damage to any property by theft or otherwise, nor for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water or rain which may leak from any part of the Complex or
from the pipes, a1ppliances or plumbing works therein or from the roof, street
or sub-surface or from any other place or resulting from dampness or any other
cause whatsoever, unless the same is caused by the active negligence or willful
misconduct of the Landlord. Landlord or its agents shall not he liable for
interference with the light or other incorporeal hereditaments, nor shall
Landlord 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 the
Premises or in the Complex or of defects therein or in the fixtures or
equipment.


 


15.           INSURANCE SUBROGATION. The parties release each other, and their
respective authorized representatives, from any claims for damage to any person
or to the Premises and to the fixtures, personal property, Tenant’s
improvements, and alterations of either Landlord or Tenant in or on the
Premises that are caused by or result from risks insured against under any
insurance policies carried by the parties and in force at the time of any such
damage.


 


Each party shall cause each
insurance policy obtained by it to provide that the insurance company waives
all right of recovery by way of subrogation against either party in connection
with any damage coveted by any policy. Neither party shall be liable to the
other for any damages caused by fire and any of the risks insured against under
any insurance policy required by this Lease.


 


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


 





















 


satisfactory
to Landlord of payment of premiums. No policy shall be cancelable or subject to
reduction of coverage except after fifteen (15) days’ prior written notice to
Landlord. Tenant acknowledges and agrees that insurance coverage carried by
Landlord will not cover Tenant’s property within the Premises or the Complex
and that Tenant shall be responsible, at Tenant’s sole cost and expense, for
providing insurance coverage for Tenant’s movable equipment, furnishing, trade
fixtures 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 any
part thereof made by Tenant, in the event of damage or loss thereto from any
cause whatsoever.


 


(A)             Tenant’s Personal Property Insurance and
Workman’s Compensation Insurance. Tenant shall maintain a policy or policies of fire and property
damage insurance in “all risk” form with a sprinkler leakage endorsement insuring
the personal property, inventory, trade fixtures, and leasehold improvements
within the Premises for the full replacement value thereof. The proceeds from
any of such policies shall be used for the repair or replacement of such items
so insured.


 


Tenant shall also maintain a
policy or policies of workman’s compensation insurance and any other employee
benefit insurance sufficient to comply with all laws.


 


17.           DAMAGE OR DESTRUCTION.


 


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


 


(i) In the event of the
destruction of all or more than twenty-five percent (25%) of the full insurable
value of the Complex, or damage or destruction which is not covered by
insurance, at Landlord’s option, within a period of ninety (90) days
thereafter, commence repair, reconstruction and restoration of said Complex and
prosecute the same diligently to completion, in which event this Lease shall
remain in full force and effect, or within said ninety (90) day period elect
not to so repair, reconstruct or restore said Complex in which event this Lease
shall terminate. In either event, Landlord shall make its best effort to
provide notice or commence repairs as soon as practicable, but in no event
later than ninety (90) days from the date of the happening. Landlord shall give
the 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 be
deemed to have terminated as of the date of such total destruction.


 


(ii) In the event of a
partial 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 that
the Complex may be repaired, reconstructed or restored within a period of
ninety (90) days from the date of the happening of such casualty and Landlord
will 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 and
effect or Landlord may elect not to repair, reconstruct or restore and the
Lease shall in such event terminate. Under any of these conditions, the
Landlord shall give written notice to the Tenant of its intention within said
ninety (90) day period. In the event Landlord elects not to restore said
Complex, this Lease shall be deemed to have terminated as of the date of such
partial destruction.


 


(B)              Upon any termination of this Lease under any
of the provisions of this Paragraph, the parties shall be released thereby
without further obligation to the other from the date possession of the
Premises is surrendered to the Landlord except for items which have therefore
accrued and are then unpaid.


 


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


 


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


 





















 


upon the conditions expressly
stated in this Paragraph. Notwithstanding anything to the contrary contained in
this Paragraph, should Landlord be delayed or prevented from repairing or
restoring said damaged Premises within one (1) year after the occurrence of
such damage or destruction by reason of acts of God, war, governmental restrictions,
inability to procure the necessary labor or materials,
or other
causes beyond the reasonable control of
Landlord, the Landlord shall be relieved of its obligation to make such repairs or restoration and Tenant
shall 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 is
obligated to or elects to repair or restore as herein provided, Landlord
shall be obligated to make repairs or restoration only of those portions of
said Complex and said Premises which were originally provided at Landlord’s
expense; and the repair and restoration of items not provided at Landlord’s
expense shall be the obligation of Tenant.


 


(F)              Notwithstanding anything to the contrary
contained in this Paragraph, Landlord shall not have any obligation whatsoever
to repair, reconstruct or restore the Premises when the damage resulting from
any 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, Subdivision
2, and Section 1933, Subdivision 4, of the Civil Code of the State of
California are hereby waived by Tenant.


 


18.           EMINENT DOMAIN.  In
case the whole of the Premises,
or such part thereof as shall substantially interfere with the Tenant’s use and
occupancy thereof, shall be taken for any public or quasi-public purpose by any
lawful power or authority, by exercise of the right of appropriation, condemnation or eminent
domain, or sold to prevent such taking, the Tenant or the Landlord, may, at its
option, terminate this Lease effective as of the date possession is required to
be surrendered to said authority. Tenant shall not, because of such taking, assert any claim against
the Landlord or the taking authority for any compensation because of such
taking, and Landlord shall be entitled to receive the entire amount of any award without deduction for any estate
or 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 be
entitled to the entire amount of the
award without deduction for any estate or interest of Tenant, and Landlord at
its option may terminate this Lease. If Landlord does not so elect, Landlord
shall promptly proceed to restore the Premises to substantially their same
condition prior to such partial taking, and a proportionate allowance shall be
made to Tenant for the rent. corresponding to the time during which said
restoration is being made and to the part of
the Premises of which Tenant shall be so deprived on account of such taking and restoration. Nothing
contained in this Paragraph shall be deemed to give Landlord any interest in
any 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 the
following 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 by
Tenant from the Premises for five (5) days or longer while in default of any provision of this Lease.


 


(ii) The failure by Tenant
to make any payment of rent or
additional rent required to be made bi Tenant hereunder, within live (5) days
after written notice thereof from Landlord to Tenant.


 


(iii) The failure by Tenant
to observe or perform any of the express or implied covenants or provisions of this Lease to be observed or performed
by Tenant, other than as specified in (i) or (ii) above, where such failure
shall continue for a period of ten (10) days after written notice thereof from
Landlord 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 j
provided, further, that if the nature of Tenant’s default is such that more
than ten (10) days are reasonably required for its cure, then Tenant shall not
be deemed to be in default if Tenant shall commence such cure within said ten
(10) day period and thereafter diligently prosecute such cure to


 





















 


completion.


 


(iv) (1) The making by
Tenant of any general
assignment for the benefit of creditors; (2) the appointment of a trustee or receiver
to take possession of substantially
all of Tenant’s assets located
at the Premises or of Tenant’s interest in this Lease, where possession is not
restored to Tenant within thirty (30) days; or (3) the attachment, execution or other
judicial seizure of substantially all of Tenant’s assets located at the
Premises or of Tenant’s interest in this Lease
where 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 rights
of Tenant hereunder. In the event that Landlord shall. elect to so terminate
this Lease then Landlord may recover from Tenant:


 


(i) The worth at the time of
award 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 been
earned after termination until the time of
award exceeds the amount of such
rental loss Tenant proves could have been reasonably avoided; plus


 


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


 


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


 


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


 


(C)              In the event of any such default by Tenant,
Landlord shall also have the right, with or without terminating this Lease, to
re-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 at
the cost of and for the account of Tenant. No re-entry or taking possession of the
Premises by Landlord pursuant to this subparagraph shall be construed as an
election to terminate this Lease unless a written notice of such intention be
given to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction.


 


20.        ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily or by
operation of law assign; transfer, mortgage or otherwise encumber all or any
part of Tenant’s interest in this Lease or in the Premises and shall not sublet
all 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, at
the 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 to
pay rent and to perform all of the other obligations to be performed by Tenant
hereunder. The acceptance of rent by Landlord from any other person shall not
be deemed to be a waiver by Landlord of any provision of this Lease or to be a
consent of any assignment or subletting.


 


Each subletting or
assignment to which Landlord has consented shall be by an instrument in writing
in form satisfactory to Landlord and shall be executed by the sublessor or
assignor 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 the
Landlord 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. One
executed copy of such written instrument shall be delivered to the Landlord.


 





















 


Tenant agrees to reimburse Landlord for Landlord’s reasonable attorneys’
fees and such other reasonable charges which Landlord incurs or causes to be
incurred in conjunction with the processing and documentation of any such
requested subletting or assignment of this Lease or Tenant’s interest in and to
the 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 an
assignment or subletting all of any sums or other economic consideration
received by Tenant as a result of such subletting or assignment (other than the
rental or other payments received which are attributable to the amortization of
the cost of interior improvements in excess of the building standards and
allowance to the Premises or the sublet portion of the Premises, at the cost of
Tenant), whether denominated rentals under any sublease or otherwise, which
exceed in the aggregate the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations allocable to that
portion of the Premises, subject to any such sublease) shall be payable to
Landlord as additional rental under this Lease without affecting or reducing
any other obligation of Tenant hereunder. Provided, however, that Tenant shall
first be entitled to recover any costs of assignment or subletting incurred by
Tenant, including, without limitation, real estate commissions and advertising
expense.


 


Northwithstanding the
foregoing, Tenant shall have the right to assign this Lease and any. options to
extend 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’s
assets, provided that said assignee shall execute an instrument reasonably
satisfactory to Landlord assuming Tenant’s obligations hereunder, and provided
further that said assignee’s net worth both immediately prior to and
immediately after the merger, consolidation or purchase shall equal or exceed
that of Tenant, and provided further that such assignment shall not affect or
limit the liability of Tenant under the terms of this Lease.


 


21.        SUBORDINATION. This Lease shall be subject and subordinate
at all times to all ground and underlying leases which now exist or may
hereafter be executed affecting the Complex or the land upon which the Complex
is situated or both, and to the lien of any mortgages or deed of trust in any
amount or amounts whatsoever now or hereafter placed on or against the land and
Complex or either thereof, or on Landlord’s interest or Estate therein, or portion
thereof, or on or against any ground or underlying lease without the necessity
of the execution and delivery of any further instruments on the part of Tenant
to effectuate such subordination; provided, however, that so long as Tenant is
not in default, the terms of the Lease shall not be affected by termination
proceedings in respect to such ground or underlying lease or foreclosure or
other proceedings under such mortgages or deeds of trust. Tenant hereby
agreeing at the written request of the Landlord under such ground or underlying
lease 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 such
purchaser’s option, to enter into a new lease for the balance of the term
hereof upon the same terms and provisions as are contained in this Lease.
Notwithstanding the foregoing, Tenant will execute and deliver upon demand such
further instrument or instruments evidencing such subordination of the Lease to
the lien of any such mortgage or mortgages or deed of trust as may be required
by Landlord.


 


Nothwithstanding the
foregoing, this Lease shall not be subordinated to the lien of any future
encumbrance unless the bolder of said encumbrance first executes in favor of Tenant
a non-disturbance agreement reasonably satisfactory to Tenant confirming that
the older of said encumbrance agrees to honor this Lease in all events except
where Tenant is in default hereunder beyond any applicable cure or grace
period. Landlord shall use its best efforts to obtain a similar agreement from
its existing lender in favor of Tenant as soon as reasonably possible following
the 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 estoppel
certificate(s), (i) certifying that this Lease is unmodified and in full force
and effect or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect and the
date 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 the
part of the other party hereunder, or stating the nature of defaults if such
exist, and (iii) evidencing the status of the Lease, as may be required either
by a prospective or actual lender making a loan to Landlord or Tenant or a
purchaser of the Premises from Landlord or successor Landlord with respect to
some other interest in the Premises, Building or Lease;


 


(b)           (Tenant only): Deliver to Landlord its most
currently available financial statements, where reasonably required by a
prospective lender of Landlord. Any such financial statements shall be received
by


 





















 


Landlord and any such lender in confidence, and any such lender shall
execute any non-disclosure agreement with respect thereto reasonably requested
by Tenant.


 


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


 


23.           CONFLICT OF LAWS. This Lease shall be governed by and
construed 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 in
and adjacent to the Complex of which the Premises are a part subject to such
nondiscriminatory rules and regulations as may be adopted by Landlord.


 


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


 


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


 


27.           ATTORNEYS’ FEES. In the event that either party should bring
suit or commence arbitration under this Lease or because of the breach of any
provision of this Lease, then all costs and expenses, including reasonable
attorneys’ fees, incurred by the prevailing party therein shall be paid by the
other party, which obligation on the part of the other party shall be deemed to
have accrued on the date of the commencement of such action and shall be
enforceable whether or not the action is prosecuted to judgment.


 


28.        PERFORMANCE BY TENANT. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant’s sale cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than rent required to be paid
by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, without waiving or releasing Tenant
from any obligations of Tenant, but shall not be obligated to make, make any
such payment or perform any other such action on Tenant’s part to be made or
performed as in this Lease provided. Any amount due from Tenant to Landlord
hereunder which is not paid when due shall bear interest at an annual rate of
five percent (5%) per annum plus the annual percentage rate established by the
Federal Reserve Bank of San Francisco on advances to member banks under
Sections 13 and 13(a) of the Federal Reserve Act prevailing on the 25th day of
the 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 the
maximum rate permissible by law), until paid, unless otherwise specifically
provided herein, but the payment of such interest shall not excuse or cure any
default by Tenant under this Lease.


 


29.           RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and conditions of this
Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant’s employees, invitees and customers shall, in
common with other occupants of the Complex in which the Premises are located,
and their respective employees, invitees and customers, and others entitled to
the use thereof, have the non-exclusive right to use the access roads, parking
areas, and facilities provided and designated by Landlord for the general use
and convenience of the occupants of the Complex in which the Premises are
located, which areas and facilities are referred to herein as “Common Area”,
This right shall terminate upon the termination of this Lease, Landlord
reserves 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 to
promulgate such reasonable rules and regulations relating to the use of the
Common Area, and any part of parts thereof, as Landlord may deem appropriate
for the best interests of the occupants of the Complex. The Rules and
Regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant, and Tenant shall abide by them, and cooperate in their observance. Such
Rules and Regulations may be amended by landlord from time to time, with or
without advance notice, and all amendments shall be effective upon delivery of
a copy to Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Complex of any of said
Rules and Regulations.


 





















 


Landlord shall operate, manage
and maintain the Common Area. The manner in which the Common Area shall be
maintained in a standard equal to similar properties in the Santa Clara Valley
and the reasonable expenditures for such maintenance shall be at the discretion
of 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, shall
be limited to mean and include only the owner or owners at the time in question
of the fee of the Premises, and in the event of any transfer, assignment or
other conveyance or transfers of any such title, the Landlord herein named (and
in the case of any subsequent transfers or conveyances, the then grantor) shall
be automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability in respect to the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and, without further agreement, the transferee of
such title shall be deemed to have assumed and agreed to observe and perform
any and all obligations of the Landlord hereunder, during its ownership of the
Premises. Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed
a violation on Landlord’s part of any of the terms and conditions of this
Lease.


 


30.           WAIVER. The waiver by either party of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained
nor shall any custom or practice which may arise between the parties in the
administration 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 in
strict accordance with said terms. The subsequent acceptance of rent hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by
Tenant of any term, covenant or condition of this Lease, other than the failure
of Tenant to pay the particular rent so accepted, regardless of Landlord’s knowledge
of such preceding breach at the time of acceptance of such rent.


 


31.           PARKING. Tenant shall have the right to use with other tenants
the common parking areas of the Complex. Landlord shall have the right, at
Landlord’s sole discretion, to specifically designate the location of Tenant’s
parking spaces within the common parking areas of the Complex in the event of a
dispute among the tenants occupying the building and/or Complex referred to herein, in which
event Tenant agrees that Tenant, Tenant’s empIoyees, agents, representatives and/or
invitees shall not use any parking spaces other than those parking spaces
specifically designated by Landlord for Tenant’s use. Said parking spaces, if
specifically designated by Landlord to Tenant, may be relocated by Landlord at
any time, and from time to time. Landlord reserves the right, at Landlord’s
sole discretion, to rescind any specific designation of parking spaces, thereby
returning Tenant’s parking spaces to the common parking area. Landlord shall
give Tenant written notice of any change in Tenant’s parking spaces. Tenant
shall not, at any time, park, or permit to be parked, any trucks or vehicles
adjacent to the loading areas so as to interfere in any way with the use of
such areas, nor shall Tenant at any time park, or permit the parking of Tenant’s
trucks or other vehicles or the trucks and vehicles of Tenant’s suppliers or
others, in any portion of the common area not designated by Landlord for such
use by Tenant. Tenant shall not park nor permit to be parked, any inoperative
vehicles or equipment on any portion of the common parking area or other common
areas of the Complex. Tenant agrees to assume responsibility for compliance by
its employees with the parking provision contained herein. If Tenant or its
employees park in other than such designated parking areas, then Landlord may
charge 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 any
area other than that designated. Tenant hereby authorizes Landlord, at Tenant’s
sole expense, to tow away from the Complex any vehicle belonging to Tenant or
Tenant’s employees parked in violation of these provisions, or to attach
violation stickers or notices to such vehicles. Tenant shall use the parking
areas for vehicle parking only, and shall not use the parking areas for
storage.


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


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


(iii) no service of process
shall be made against any partner of Landlord (except as may be necessary to
secure jurisdiction of the partnership)


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


(vi) any judgment taken
against any partner of Landlord may be vacated and set aside at any time
without bearing;


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


(viii) these covenants and
agreements are enforceable both by Landlord and also by any partner of
Landlord.


 


Tenant agrees that each of
the foregoing covenants and agreements shall be applicable to any covenant or
agreement either expressly contained in this Lease or imposed by statute or at
common law.


 


40.           SIGNS. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or to any exterior windows of the Premises without the written
consent of Landlord first had and obtained which consent shall not be
unreasonably withheld and Landlord shall have the right to remove any such
sign, placard, picture, advertisement, name or notice without notice to and at
the expense of Tenant. If Tenant is allowed to print or affix or in any way
place a sign in, on, or about the Premises, upon expiration or other sooner
termination of this Lease, Tenant at Tenant’s sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.


 


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


 


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


 


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


 





















 


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


 





















 


IN WITNESS WHEREOF, the
parties 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:

  	
   

  	
   

  



 





















 


ADDENDUM
TO LEASE


 


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


 


44.           Options to Extend.


 


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


 


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


 


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


 


(ii) If the parties are
unable 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 ninety
five percent (95%) of the then current fair market rent value of the Premises
as determined in accordance with Paragraph 44(B) (iv).


 


(iii) The “then fair market
rental value of the Premises” shall mean the fair market monthly rental value
of the Premises as of the commencement of the option Period, taking into
consideration the uses permitted under this Lease, the quality, size, design
and 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 for
the option Period be less than the Base Rent last payable under the Lease.


 


(iv) Within seven (7) days
after the expiration of the fifteen (15) day period set forth. in Paragraph
44(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 time
commercial appraisal experience in the area in which the Premises are located
to appraise and set the then fair market rental value of the Premises for the
option Period. If a party does not appoint an appraiser within ten (10) days
after the other party has given notice of the name of its appraiser, the single
appraiser appointed shall be the sale appraiser and shall set the then fair
market rental value of the premises. If the two appraisers are appointed by the
parties as stated in this Paragraph, they shall meet promptly and attempt to
set the then fair market rental value of the Premises. If they are unable to
agree within thirty (30) days after the second appraiser has been appointed,
they shall attempt to elect a third appraiser meeting the qualifications stated
in this paragraph within ten (10) days after the last day the two appraisers
are given to set the then fair market rental value of the Premises. If they are
unable to agree on the third appraiser, either of the parties to this Lease, by
giving ten (10) days notice to the other party, can apply to the county Real
Estate Board, or the then presiding Judge of the Santa Clara county Superior
Court, for the selection of a third appraiser who meets the qualifications
stated in this Paragraph. Each of the parties shall bear one half (1/2) of the
cost 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 previously
acted in any capacity for either party.


 





















 


Within thirty (30) days
after the selection of the third appraiser, a majority of the appraisers shall
set the then fair market rental value of the Premises. If a majority of the
appraisers are unable to set the then fair market rental value of the Premises
within the stipulated period of time, the three appraisals shall be added
together and their total divided by


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


 


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


 


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


 


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


 


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


 


The base for computing the
adjustment is the Consumer Price Index for All Urban Consumers (base year
1982-84 = 100) for San Francisco-Oakland-San Jose, California published by the
United States Department of Labor, Bureau of Labor statistics (“Index”) which
is last published prior to the commencement of the option Period (“Beginning
Index”). If the Index which is last published prior to an adjustment date (“Extension
Index”) has increased over the Beginning Index, the Base Rent for the period
following the adjustment date and until the next adjustment date, if any, shall
be the Base Rent set forth in Paragraph 44 (B) multiplied by a fraction, the
numerator of which is the Extension Index and the denominator of which is the
Beginning Index. In no case shall the


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


 


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


 


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


 


A.            Definition of Hazardous Materials. As used
herein, the term “Hazardous Materials” shall mean any hazardous or toxic
substance, material or waste which is or becomes regulated by any local
governmental authority, the state of California, or the United States
Government. The term “Hazardous Materials” includes, without limitation any
material or hazardous substance which is (i) listed under Article 9 or defined
as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, (ii) defined as a “hazardous
waste” pursuant to section 1004 of the Federal Resource Conservation and
Recovery Act, section 42 U.S.C. section 901 et seq. (42 U.S.C. section 6903),
(iii) defined as a “hazardous


 





















 


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


 


B.            Use of Hazardous Materials. Tenant shall not
cause or permit any Hazardous Materials to be brought upon, kept or used in or
about the Premises by Tenant, its agents, employees, contractors or invitees
without prior written consent of Landlord. Landlord shall not unreasonably
withhold such consent so long as Tenant demonstrates to Landlord’s reasonable
satisfaction that such Hazardous Materials are necessary or useful to Tenant’s
business and will be used, kept and stored in a manner that complies with all
laws regulating the Hazardous Materials so brought upon or used or kept in or
about the Premises. Tenant, at its sole cost and expense, shall make any and
all improvements to the Premises necessary to assure legal and safe use of the
Hazardous Materials. Use of those Hazardous Materials listed in Exhibit C
attached hereto and incorporated herein by reference have approval of Landlord.
Tenant shall remove all Hazardous Materials used or brought onto the Premises
during the Lease Term from the Premises prior to the expiration or earlier
termination of the Lease.


 


C.            Annual Inspection. Each year upon the
anniversary of the commencement of the Lease (“anniversary Date”), Tenant
shall, at its sole cost and expense, (which base cost for the inspection shall
not exceed six thousand and no/100 ($6,000.00) for the initial lease year.  Said cost limitation shall increase by an amount
equal 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 published
prior to the commencement of the term) hire a qualified environmental
consultant, acceptable to Landlord, to evaluate
whether Tenant: is in compliance with all appl1aabh Hazardous Materials laws.
Tenant shall submit to Landlord a report from such environmental consultant
which discusses the environmental consultant’s finding within two (2) months of
each Anniversary Date. Tenant shall, in a timely manner, take all steps necessary
to correct any and all problems identified by the environmental consultant to
the extent such problems are not the subject of Landlord’s indemnification
pursuant to Paragraph 45.(K)


 


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


 


E.             Tenant’s Obligation to Promptly Remediate. Without
limiting the foregoing, if there is a release or discharge of any Hazardous
Materials _t, in onto or under _he Premises or contamination of the Premises
that is covered by Tenant’s Environmental Indemnity, Tenant shall promptly take
all action, at its sole cost and expense, as is necessary to return the
Premises to the condition existing prior to the introduction of any such
Hazardous Materials to the Premises, provided that Landlord’s approval of such
action shall first be obtained. Landlord’s approval shall not be unreasonably
withheld so long as such actions would not have any potential material adverse
long-term or short-term effect on the Premises.


 


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


 





















 


G.            Left blank intentionally.


 


H.            Landlord’s Right of Entry. Landlord and its
agents shall have the right, but not the duty, to inspect Premises during
reasonable business hours, to determine whether Tenant is complying with the terms
of this Lease. If Tenant is not in compliance with this Lease, Landlord shall
have the right to immediately enter upon the Premises to remedy any
contamination caused by Tenant’s failure to comply, notwithstanding any other
provision of this Lease. Landlord shall use its best efforts to minimize the
interference with Tenant’s business, but shall not be liable for any
interference caused thereby. Tenant shall promptly reimburse Landlord for all
costs and expenses incurred by Landlord pursuant to this Subparagraph H.


 


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


 





















 


or beneath the Premises, the
parties shall, immediately upon discovering such presence or suspected presence
of Hazardous Materials, give written noticeof the condition to the other. In
addition, each party shall immediately notify the other, in writing of (i) any enforcement, cleanup, removal or
other governmental regulatory action instituted, completed, or threatened
relating to any Hazardous Materials on or about the Premises, (ii) any claim made or threatened by any
person against either party or the Premises relating to damage, contribution,
cost recovery, compensation, loss or injury relating from or claimed to result
from any Hazardous Materials that have come to be located on or about the
Premises, and (iii) any reports made to any local state or federal
environmental agency arising out of or in connection with any Hazardous
Materials _n or about the Premises, including any complaints, notices, warnings
or certain violations in connection therewith, of which the party becomes
aware. Each party shall also supply the other as promptly as possible, and in
event within five (5) business days after receipt of copies of allclaims,
reports, complaints, notices, warnings or certain violations relating in any
way 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 remedies
set forth in this Lease.


 


K.            Landlord Indemnity. Landlord shall be solely
responsible for, and shall indemnify, defend, and hold Tenant and Tenant’s
agents, employees, contractors, licensees, and invitees (collectively, “Tenant’s
Agents”) harmless from and against any and all Environmental Claims as defined
in Paragraph 45.0. of this Lease, proceedings, or hearings (collectively “Non-Tenant
Claims”) due solely to the release of Hazardous Materials onto the Premises
through groundwater migration from another property (“Migration”) by anyone
other than Tenant and its Agents whatsoever, whenever occurring. Landlord
shall, promptly upon demand, at its own sole cost and expense, cause to be
performed solely any and all cleanup, refiting, or other alterations or
corrective work to the Premises necessitated by any such migration. Landlord
agrees to defend, on behalf of Tenant, with counsel acceptable to Tenant, all
such 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 shall
further agree to be solely responsible for and shall indemnify, defend, and
hold 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 work
required by any government agency having jurisdiction and which arises soley
from migration onto the Premises during Tenant’s occupancy of the Premises.


 


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


 


L.             Lease Termination. At the expiration of the
term, or earlier as provided herein, Tenant shall provide Landlord with a
statement certifying that there has been no release or discharge of any
Hazardous Materials at, in, onto or under the Premises or contamination of the
Premises. Tenant shall, at its sole cost and expense, upon the expiration of
the term, or earlier as provided herein, cause to be performed any and all
tests by qualified personnel approved by Landlord, and shall make any and all
improvements necessary to assure Landlord that there exists no Hazardous
Materials, other than Known Contaminants referred to in Section F of Paragraph
45., at, in, or under the Premises. 
Additionally, Tenant shall provide Landlord copies of all documentation
relating to the Tenant’s use of Hazardous Materials which have been caused or
contributed to by tenant throughout the term, on an annual basis.


 


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


 





















 


EXHIBIT
A


 


 


Site
Plan (Partial)


 


This Site Plan does not
include part of the facility’s parking.


 


 


 


Parcel
Map


 





















 


EXHIBIT
Al


 


PERSONAL
PROPERTY


 


	
  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.

  



 





















 


EXHIBIT B


 


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


 


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


 


Results from on-site
investigations indicated that the uppermost water bearing zone has been
impacted 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 Investigations
conducted at locations up-gradient and down-gradient from the subject site (J.
V. Lowney & Associates 1987, Weiss &; Associates 1986, Woodward Clyde
1985). These investigations indicated the absence and/or lower VOCs
concentrations both up-gradient and down-gradient from the 2986 Oakmead Village
Court.


 


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


 


The combined plume is
presently approximately 1,000 feet in length and 500 feet in width at its
down-gradient fringe, occupying an approximate aquifer volume of 170,000 cubic
yards. The general trend of the plume is in a northeastern direction along the
approximate hydraulic gradient of the potentiometric surface established in the
A-Zone. The greatest mass of VOC contaminants in A-Zone ground water is
comprised of TCE and TCA.  Other VOCs,
including Freon, DCA, DCE, and PCE also have been detected but in smaller
concentrations.


 


The proposed remedial
efforts are primarily focused on the plume’s center, which is presently
defined, 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 feet
in 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 VOCs
present in the A-Zone was estimated based on the thickness of the upper water
bearing zone (10 feet), the estimated average porosity (0.25) and the extent of
contamination. The area of the VOC plume within select isoconcentration
contours was estimated as a percent of the total plume area. The volume of
ground water contained within each Isoconcentration contour was then
calculated. Based on the above parameters, the total mass of VOCs present in
the aqueous phase in the A-Zone was calculated to be approximately 3 to 4
pounds, or 0.5 to 1 gallon.


 


These chemicals are not
readily amenable to biological or chemical breakdown under ambient ground water
conditions. In addition, they have a significant half-life. Thus, In our
opinion, remedial action will likely be required


 





















 


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


 


TABLE
2. Chemical Characteristics That Potentially Affect

Implementability of Remedial Technologies,

2986 and 3000 Qakmead Village Court

Santa 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 Public
Health Evaluation Manual,” 1986 and “Groundwater Chemicals Desk Reference,”
1990


 


The existing data, presented
in the Final RI, show that soil and ground water at 2986 Oakmead Village Court
have 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: Contaminant
migration from the site occurs primarily through ground water transport.
pollutants in ground water tend to be removed or reduced In concentration with
time and distance traveled. In general, actual solute movement in the ground
water is effected by advection, dispersion, sorption, dilution, and biochemical
degradation.


 


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


 


Microbiological activity
present 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 the
contaminants. The processe3 of biodegradation develops through a complex series
of enzymatic reactions that mayor
may not be inherent to a given bacterial species or group of bacteria.


 





















 


Rates of VOC
migration in the A-Zone were estimated from the distribution of TCA
between 1983 and 1986. The data suggests a solute migration rate of


 





















 


EXHIBIT C


 


stored on – site will not
exceed 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 the
very low quantities of the above materials, it may be permissible to store them
within the clean room, using a ‘Lecture bottle’ size container. This will have
to be confirmed with the governing agencies.


 


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


 


Applications Lab:


This area will be class
10,000 with services available in the area, electrical, air, vacuum, like a
light electronics assembly area. The area is expected to be 750 to 1000 square
feet.


 


Assembly / Test:


This area will be class
10,000 with services available in the area, electrical, air, vacuum, suitable
for electronics assembly. The area is estimated at 2500 square feet.


 





















 


AMENDMENT
TO LEASE


 


THIS AGREEMENT made and
entered into this 29 day of
July, 1993, by and between 3000 OAKMEAD VILLAGE DRIVE, LTD., as Landlord, and
GHz TECHNOLOGY INC., as Tenant, for the following:


 


WHEREFORE, ON THE 17th day
of June 1991, Landlord and Tenant entered into an Agreement to Lease for
approximately 9,850 square feet of space in that certain premises known as
Suite #100 of that certain building complex known as 3000 Oakmead Village
Drive, Santa Clara, California, for a period of ten (10) years commencing June
1, 1991 and terminating on May 30, 2001; and


 


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


 


WITNESSETH


 


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


 


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


 


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


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
   

  	
  3000 OAKMEAN VILLAGE
  DRIVE, LTD.

  
	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  	
  GHz TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
   

  
								



 





















 


SECOND
AMENDMENTTO LEASE


 


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


 


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


 


WHEREAS, Tenant desires that
certain repairs and replacements be made to the roof and heating, ventilation
and airconditioning equipment of the Complex by Landlord,


 


WHEREAS, Landlord desires
that Tenant extend the lease term provided in the Lease and that annual rental
adjustments be made for the additional term,


 


Landlord and Tenant now
desire to amend the terms and conditions of the Lease in the following
particulars:


 


WITNESSETH


 


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


 


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


 


“Year
11 - $61,464.00 per month


Year
12 - $63,927.00   “   “


Year
13 - $66,488.00   “   “


Year
14 - $69,147.00   “   “


Year
15 - $71,905.00   “   “


 


3. The first sentence of
Paragraph 44.(A) of the Lease is deleted in its entirety and the following
sentence is inserted in its place: “Provided that Tenant is not in default
hereunder, either at the time of exercise or at the time the extended term
commences 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 this
Lease for one (1) additional period of five (5) years(“Option Period”), on the
same terms, covenants and conditions provided hereunder, except that upon such
renewal, the monthly rent due hereunder shall be determined pursuant to
Paragraph 44.(B).”


 


4. Paragraph 47. is added
and made a part of this Lease: “47. Improvements to the Premises. Landlord
agrees to expend up to Two Hundred Thousand Do1lars ($200,000) for the
replacement of the roof and any structural repairs required in connection
therewith 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 a
change order from Landlord’s contractor detailing the nature of the additional
cost and the cost breakdown attendant. A


 





















 


description of the work to
be 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 this
Second Amendment to Lease all other terms of the Lease shall remain unchanged.


 


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


 


 


 


3000 Oakmead Village Drive
Ltd,

a partnership formed under the laws

of California


 


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Landlord

  
	
   

  
	
   

  
	
   

  
	
  Ghz Technology, Inc., a
  California

  
	
  corporation

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Tenant

  



 





















 


THIRD AMENDMENT TO LEASE


 


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


 


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


 


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


 


Landlord and Tenant now
desire to amend the terms and conditions of the Lease in the following
particulars:


 


WITNESSETH


 


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


 


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


 


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


 


LANDLORD

3000 Oakmead Village
Drive, 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 FOURTH
AMENDMENT 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.            Landlord
and Tenant entered into that certain Lease dated as of June I 7, 1991, as amended
by Amendment to Lease dated July 29, 1993, by Second Amendment to Lease dated
July 5, 2000, by Third Amendment to Lease dated September 26, 2000
(collectively, the “Lease”), pursuant to which Tenant leased certain
premises (the “Premises”) commonly known as APN #216-48-025 located at
3000 Oakmead Village Drive, Santa Clara, Santa Clara, California.


 


B.            Tenant
will assign to GHz Acqujsition, Inc. (“GHz Acquisition”) and GHz Acquisition
will assume all of the rights, interests and obligations of Tenant under the
Lease by that certain Assignment and Assumption Agreement of even date
herewith.


 


B. Landlord
and Tenant now desire to modifY the Lease upon the terms and conditions
hereinafter provided.


 


NOW,
THEREFORE, in consideration of the covenants set forth in this Amendment and
other valuable consideration, the receipt and adequacy of which is hereby
acknowledged. 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) and
Additional Rent (as defined in the Lease) payable by Tenant and GHz Acquisition
pursuant to the terms of the Lease. If Guarantor defaults pursuant to the terms
of the Guaranty, Tenant shall be deemed to have committed all event of default
under the Lease and Landlord shall be entitled to exercise all of the remedies
available pursuant to the terms of the Lease and at law or in equity. The
Guaranty shall be in the form of Exhibit “A” attached hereto.


 


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


 


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


 


4.             Brokers.
Landlord and Tenant each represent and warrant to the other that they have had
no dealings with any real estate broker; agent or finder in connection with the
negotiation or execution of this Amendment. Each party hereto shall indemnify
and hold harmless the other party from any claims, including reasonable
attorney’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.             Defined
Terms. Except as expressly set
forth herein to the contrary, all defined terms used in the Amendment shall
have the same meanings as attributed to such terms in the Lease.


 


IN WITNESS
WHEREOF, Landlord and Tenant have caused this Amendment to be executed as of
the day and year first above written.


 


“LANDLORD”


 


3000 OAKMEAD
VILLAGE DRlVE, LTD.


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  
	
  Its:

  	
   

  	
   

  
	
   

  
	
  ‘TENANT”

  
	
   

  
	
  GHZ
  TECHNOLOGY, INC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  
	
  Its:

  	
   

  	
   

  
							



 





















 


EXHIBIT A




FORM OF GUARANTY


 





















 


UNCONDITIONAL
GUARANTY OF LEASE


 


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


 


RECITALS


 


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


 


B. Landlord
would not consent to the Assignment Agreement if Guarantor did not execute and
deliver to Landlord this Guaranty. As an inducement to Landlord to consent to
the Assignment Agreement, Guarantor is willing to enter into and perform in accordance
with this Guaranty.


 


NOW THEREFORE,
Guarantor unconditionally guaranties and agrees as follows:


 


1.             Defined
Terms.  All terms not specifically
defined herein shall have the meaning assigned to such terms in the Lease.


 


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


 





















 


3.             Rights of Landlord. Guarantor authorizes Landlord at any time in
Landlord’s sole discretion, without
giving notice to Guarantor or obtaining Guarantor’s consent and without
affecting the liability of Guarantor for the Obligations, from time to time to:


 


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


 


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


 


(c)           apply
payments received by Landlord from Tenant or GHz Acquisition to the Obligations
in such order as Landlord shall determine;


 


(d)           declare
all Obligations due and payable upon the occurrence of an event of default
under the Lease;


 


(e)           assign
this Guaranty in whole or in part; and


 


(f)            to
release, substitute or add anyone or more guarantors.


 


4.             Guarantor’s
Waivers. Guarantor waives to the fullest extent permitted by applicable
law:


 


(a)           any
right to require Landlord to proceed against Tenant and GHz Acquisition or any
collateral, or pursue any other remedy in Landlord’s power whatsoever, and
Guarantor waives any additional rights arising under California Civil Code
section 2845;


 


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


 


(c)           any
notice of any default by Tenant or GHz Acquisition with respect to any
Obligation;


 


(d)           any
notice of acceptance by Landlord of this Guaranty;


 


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


 


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


 





















 


(g)           any
defense based on Landlord’s failure at any time to require strict performance
by Tenant or GHz Acquisition of any term, condition or covenant of the Lease or
by Guarantor of this Guaranty, and Guarantor agrees that such failure shall not
waive, alter or diminish any right of Landlord thereafter to demand strict
compliance and performance therewith;


 


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


 


(i)            any
defense 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)            any
defense based upon Landlord’s failure to disclose to Guarantor any information
concerning the financial condition of Ten ant or GHz Acquisition or any other
circumstances bearing on the ability of Tenant or GHz Acquisition to pay or
perform the Obligations.


 


5.             Subrogation.
Guarantor shall not exercise any rights it may acquire by reason of any payment
made 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 on
behalf of Tenant or GHz Acquisition on account of any payment made by Guarantor
hereunder prior to the payment in full of all Obligations and termination or
expiration of the Lease shall be held in trust for the benefit of Landlord. So
long as any Obligations remain outstanding or the Lease remains in existence,
Guarantor shall refrain from taking any action or commencing any proceeding or
otherwise, to recover any amounts in respect of payments made to Landlord under
this Guaranty.


 


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


 


7.             Independent
Liability. 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 GHz
Acquisition under the Lease. This Guaranty may be enforced by Landlord without
the necessity at any time of having to proceed against the Tenant and GHz
Acquisition or to pursue any other remedy or enforce any other right. Nothing
contained herein shall prevent Landlord from exercising any other rights
available to it under the Lease or otherwise. The exercise of any of the
aforesaid rights shall not constitute a discharge of Guarantor’s obligations
hereunder, it being the purpose and intent of Guarantor that Guarantor’s
obligations hereunder shall be absolute, independent and unconditional under
any and all circumstances. Neither Guarantor’s obligations under this Guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by any impairment, modification, change,
release, or limitation of the liability of Ten ant or GHz Acquisition or by
reason of the bankruptcy or insolvency of Ten ant Or GHz Acquisition.


 


8.             Guarantor’s
Acknowledgment. Guarantor acknowledges that Landlord would not consent to
the Assignment Agreement but for this Guaranty and that this Guaranty is a
material inducement to Landlord consent to the Assignment Agreement.


 





















 


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


 


10.           Bankruptcy
of Tenant and GHz Acquisition. In any bankruptcy or other proceeding in
which the filing of claims is required by law, Guarantor shall file all claims
which Guarantor may have against Tenant or GHz Acquisition relating to any
indebtedness of Tenant or GHz Acquisition to Guarantor and shall assign to
Landlord all rights of Guarantor thereunder. If Guarantor does not file any
such claim, Landlord, as attorney-in-fact for Guarantor, is hereby authorized
to do so in the name of the Guarantor, or, in Landlord’s discretion, to assign
the claim to a nominee and to cause a proof of claim to be filed in the name of
such nominee. The foregoing power of attorney is coupled with an interest and
cannot be revoked. Landlord or its nominee shall have the right, in its
reasonable discretion, to accept or reject any plan proposed in such proceeding
and 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, the
person(s) authorized to pay such claim shall pay to Landlord the amount payable
on such claim, and, to the full extent necessary for that purpose, Guarantor
hereby assigns to Landlord all of Guarantor’s rights to any such payments or
distributions; provided however, that Guarantor’s obligations hereunder shall
not be satisfied except to the extent that Landlord receives cash by reason of
such payment or distribution. If Landlord receives anything hereunder other
than cash, the same shall be held as collateral for amounts due under this
Guaranty. Further. notwithstanding any termination of the Guaranty or Guarantor’s
obligations hereunder, the liability of Guarantor hereunder shall be reinstated
and revived, and the rights of Landlord shall continue, with respect to any amount
at any time paid by Tenant or GHz Acquisition on account of the Lease which
Landlord shall be required to restore or return upon the bankruptcy,
insolvency, or reorganization of Tenant or GHz Acquisition, all as though such
amount had not been paid.


 


11.           Costs
and Expenses: Attorney’s Fees. Guarantor agrees to pay Landlord’s
reasonable out-of-pocket costs and expenses, including but not limited to legal
fees and disbursements, incurred in any effort to collect or enforce any of the
Obligations or this Guaranty. Without limiting the provisions of the preceding
sentence, in the event of any action or proceeding at law or equity arising nom
or based upon this Guaranty, the prevailing party shall be entitled to recover
nom the other reasonable attorney’s fees and costs. If Landlord, without fault
on Landlord’s part, be made a party to any litigation or proceeding instituted
by or against Guarantor, Guarantor shall pay to Landlord all costs and expenses
incurred by Landlord, including attorney’s fees and costs.


 


12.           Notices.
Unless otherwise provided herein, all notices or demands by any party relating
to this Guaranty shall be in writing, and shall be sufficiently served by
personal delivery, or by delivery by nationally recognized overnight courier
which maintains records of delivery (such as Federal Express), or by depositing
the 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 parties
hereto 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 prior
written consent of Landlord, in Landlord’s absolute discretion. Landlord may
assign this Guaranty only in conjunction with its assignment of the Lease; any
such assignment shall not require the consent of Guarantor, Tenant or GHz
Acquisition. This Guaranty shall be binding upon Guarantor, their successors, heirs,
administrators, executors, legal representatives, and permitted assigns, and
shall inure to the benefit of
Landlord and its successors, transferees and assigns. Each person or entity
comprising the Guarantor shall be jointly and severally liable under this
Guaranty.


 


14.           Death
of Guarantor. In the event of the death of any Guarantor, the obligation of
the estate of the deceased Guarantor with respect to the Obligations shall
continue in full force and effect.


 


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


 


16.           Guarantor’s
Default. Landlord may declare the Guarantor in default under this Guaranty
if the Guarantor fails to perform any obligation under this Guaranty, becomes
insolvent, or becomes the subject of any bankruptcy, insolvency, arrangement,
reorganization, or other debtor-relief proceeding under any federal or state
law, whether now existing or hereafter enacted.


 


17.           Miscellaneous.
The invalidity or unenforceability in whole or in part of anyone or more
provisions of this Guaranty shall not affect the balance of such provision or
any other provisions. This Guaranty shall be governed by California law without
regard to its conflicts of laws principles, and may be amended only by a
written instrument executed by Guarantor and Landlord. This Guaranty contains
the entire agreement of Guarantor with Landlord covering the subject matter
hereof, and no representation, condition, understanding or promise shall be
enforceable with respect to this Guaranty unless it is expressly contained
herein.


 


WE, THE
UNDERSIGNED AS “GUARANTOR,” ACKNOWLEDGE THAT WE WERE AFFORDED THE OPPORTUNITY
TO READ THIS DOCUMENT CAREFULLY AND REVIEW IT WITH AN ATTORNEY OF OUR CHOICE
BEFORE SIGNING BELOW, AND THAT WE UNDERSTOOD THE MEANING AND EFFECT OF THIS
DOCUMENT BEFORE SIGNING BELOW.


 





















 


IN WITNESS
WHEREOF, this Guaranty has been duly executed by the undersigned as of the date
first written above.


 


 


GUARANTOR:


 


ADVANCED POWER
TECHNOLOGY, INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  
	
  Its:

  	
   

  	
   

  
						



 





















 


FIFTH AMENDMENT TO LEASE


 


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


 


RECITALS


 


A.            Landlord
and Tenant’s predecessor-in-interest, GHz Technology, Inc., entered into that
certain Lease dated as of June 17, 1991, as amended by Amendment to Lease dated
July 29, 1993, by Second Amendment to Lease dated July 5, 2000, by Third
Amendment to Lease dated September 26, 2000
and 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 3000
Oakmead Village Drive, Santa Clara, California.


 


B.            GHz
Technology, Inc. assigned all of its rights, interest and
obligations under the Lease to Tenant (which was formerly known as GHz
Acquisition, Inc.) by that certain Assignment and Assumption Agreement dated
March 29, 2002 which Landlord consented to in that certain Consent to
Assignment and Assumption Agreement dated March 29, 2002.


 


C.            By
that 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 by
Tenant pursuant to the terms of the Lease.


 


D.            Landlord
and Tenant now desire to modify the Lease upon the terms and conditions
hereinafter provided.


 


NOW,
THEREFORE, in consideration of the covenants set forth in this Amendment and
other 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 the
Lease is hereby extended from July 31, 2006 until February 28, 2011.


 


2.             Option
to 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 the
same terms, conditions, covenants and conditions as are provided in Paragraph
44 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 the
Lease) shall be one hundred (100%) percent of the then fair market rental value
of the Premises (as provided in Subparagraph (B)(iii) of the Paragraph 44 of
the Lease) and then adjusted annually thereafter in accordance with
Subparagraph C of Paragraph 44 of the Lease.


 


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


 





















 


the Lease, as
amended 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 replaced
with 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.             Condition
Precedent. The effectiveness of this Amendment shall be strictly
conditioned upon Advanced Power Technology, Inc. reaffirming the terms of the
Guaranty in the form attached hereto as Exhibit “A”. If Advanced Power
Technology, lnc. fails to reaffirm the terms of the Guaranty on or before March
31, 2003, then this Amendment shall be null and void.


 


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


 


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


 


7.             Brokers.
Landlord and Tenant each represent and warrant to the other that they have had
no dealings with any real estate broker, agent or finder in connection with the
negotiation or execution of this Amendment. Each party hereto shall indemnify
and hold harmless the other party from any claims, inc]uc1ing reasonable
attorney’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.


 


8.             Defined
Terms. Except as expressly set forth herein to the contrary, all defined
terms used in the Amendment shall have the same meanings as attributed to such
terms in the Lease.


 





















 


IN WITNESS
WHEREOF, Landlord and Tenant have caused this
Amendment to be executed as of the day and year first above written.


 


“LANDLORD”


 


3000 OAKMEAD
VILLAGE DRIVE, LTD.


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  
	
  Its:

  	
   

  	
   

  
					



 


 


 


“TENANT”


 


ADVANCED POWER
TECHNOLOGY

RF, INC., formerly known as GHz Acquisition, Inc.


 


	
  By:

  	
   

  	
   

  
	
  Patrick
  Sireta

  
	
  President
  & Chief Executive Officer

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Charles C.
  Leader

  
	
  Vice
  President

  
				



 





















 


EXHIBIT A


 


REAFFIRMATION
OF UNCONDITIONAL GUARANTY OF LEASE


 


The undersigned (“Guarantor”)
hereby consents to the terms, conditions and provisions of the Fifth Amendment
to Lease dated as of March 1, 2003 between 3000 Oakmead Village Drive, Ltd., as
landlord, and Advanced Power Technology RF, Inc., formerly known as GHz
Acquisition, Inc., as tenant. Guarantor hereby ratifies and reaffirms the full
force 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 the
Guaranty are separate and distinct from those of Advanced Power Technology RF,
Inc.


 


 


Dated this 1st
day of March, 2003.


 


 


ADVANCED POWER TECHNOLOGY,
INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Print Name:

  	
   

  	
   

  
	
   

  
	
  Its: