NET LEASE AGREEMENT

Exhibit 10.34 NET LEASE AGREEMENT WILLOWS COMMERCE PARK L & A KESSLER FAMILY PARTNERS ET AL. - LANDLORD TFS ELECTRONIC MANUFACTURING SERVICES, INC. - TENANT DATED: NOVEMBER 19th, 2004 NET LEASE AGREEMENT WILLOWS COMMERCE PARK CONTENTS

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EXHIBITS: Exhibit A: Site Plan Exhibit A-1: Floor Plan Exhibit B: Legal Description and Permitted Encumbrances Exhibit C: Form of Subordination Agreement Exhibit D: Sign Standards Exhibit E: Rules and Regulations Exhibit F: Letter of Credit Exhibit G: Guaranty iv NET LEASE AGREEMENT This NET LEASE AGREEMENT ("Lease") is made as of the____________day of November, 2004, by and between L & A KESSLER FAMILY PARTNERS, L.P., a California limited partnership, MARILYN DREYFUSS, PHILLIP FRANCIS AND CURTIS BURR, AS TRUSTEES OF THE EDWARD S. AGENO 1992 REVOCABLE TRUST, and KAY ENTERPRISES, a California general partnership (collectively, "Landlord"), and TFS ELECTRONIC MANUFACTURING SERVICES, INC., a Delaware corporation ("Tenant"). GRANT Landlord, for and in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of Tenant, its successors and assigns, to be paid, kept, observed and performed, does hereby lease, rent, let and demise unto Tenant, and Tenant does hereby take and hire, upon and subject to the covenants, conditions and limitations hereinafter contained, the entirety of Building One (the "Building") located as shown and designated on the Site Plan attached hereto as EXHIBIT A (the "Site Plan") and containing approximately 135,286 square feet of rentable floor area as shown in the floor plan attached hereto as EXHIBIT A-1 (the "Premises"). The Premises are part of the property known as Willows Commerce Park (the "Park"), shown on the Site Plan and situated in the City of Redmond, County of King and State of Washington, described in EXHIBIT B attached hereto and made a part hereof, and Tenant is also hereby granted the non-exclusive license to use, in common with Landlord and other tenants of the Park and their respective officers, directors, licensees, permittees, and customers, all Common Areas (as hereinafter defined) of the Park and all rights appurtenant to the Premises as the same may exist from time to time, subject to the terms and conditions of this Lease. ARTICLE I. TERM OF LEASE SECTION 1.1 TERM OF LEASE. The initial term of this Lease shall be seven (7) years and shall commence on the date of mutual execution of this Lease (the "Commencement Date"), and shall end at midnight on December 31, 2011. The initial term of the Lease, as set forth above, is sometimes hereinafter referred to as the "Initial Term." Any reference to the term of this Lease or similar reference shall be a reference to the Initial Term together with any renewal terms (if any) of this Lease or any extensions to or modifications of the Initial Term (sometimes collectively referred to herein as the "Term"). SECTION 1.2 OPTION TO RENEW. Tenant shall have the right, subject to all provisions of this Section 1.2, to extend the term of this Lease for one (1) successive period of five (5) years commencing on the seventh (7th) anniversary of the Commencement Date and ending at midnight on the day prior to the twelfth (12th) anniversary of the Commencement Date (the "Renewal Term"), provided that: 1 (a) This Lease is in full force and effect and Tenant is not in default in the performance of any of the terms, covenants and conditions herein contained (after receipt of notice and expiration of any applicable cure period) at the time of exercise of the right of renewal or at the time set for commencement of the Renewal Term; (b) Tenant shall exercise its right to the Renewal Term provided herein, if at all, by notice to Landlord in writing of its election to exercise the right to renew the term of this Lease, at least twelve (12) months prior to the last day of the Initial Term; and (c) The Renewal Term shall be upon the same terms, covenants and conditions as provided in this Lease; provided, however, that the monthly Basic Rent shall be one hundred percent (100%) of the then "fair market rent" (defined below) for the Premises. For purposes of this Lease, "fair market rent" shall mean the rental rate per rentable square foot that willing, non-equity tenants are paying for comparable space in the Park and in comparable buildings in the Redmond area for leases having a five-year term, considering all relevant factors, including the Building improvements, fixtures and other property comprising the Premises or leased hereunder (including the Personalty), market rent escalation, and market rate allowances, concessions and commissions. Landlord shall advise Tenant in writing of Landlord's determination of fair market rent for the Premises not later than thirty (30) days after Tenant gives notice to Landlord that Tenant exercises its renewal right. Within thirty (30) days after notice of Landlord's determination of fair market rent, Tenant shall notify Landlord in writing whether or not Tenant accepts Landlord's determination of fair market rent. If Tenant disagrees with Landlord's determination of fair market rent, Tenant shall advise Landlord of Tenant's determination of fair market rent in the notice required pursuant to the preceding sentence. If Tenant fails to notify Landlord within such thirty-day period, then Landlord shall notify Tenant in writing that failure to provide Tenant's determination within ten (10) days after the notice shall mean that Tenant's notice exercising its renewal rights under this Section 1.2 shall be deemed null and void. If Tenant, within such ten-day period, provides Tenant's determination to Landlord then such determination shall be deemed to have been timely made. If Tenant does not accept Landlord's determination of fair market rent, and Tenant has given the notice required above, the parties shall promptly meet and attempt to resolve their differences. If the parties have not agreed on the fair market rent within ninety (90) days after Tenant has exercised its renewal right, then, unless otherwise agreed in writing by the parties, the parties shall submit the matter to arbitration in accordance with the terms described below. The last day of such ninety-day period shall be referred to in this Lease as the "Arbitration Commencement Date." The arbitration will be conducted by a single MAI real estate appraiser who has been active over the five-year period ending on the Arbitration Commencement Date in the appraisal of office and warehouse properties in the Redmond/Woodinville/Bothell area and has not worked for either party during that time, hi the event that the parties cannot agree 2 upon the appraiser, the appraiser will be appointed by the Seattle office of the American Arbitration Association upon the application of either party. Within thirty (30) days after the selection of the appraiser, the appraiser shall determine the fair market rent by selecting either the Landlord's or the Tenant's last determination of fair market rent, which determination may be modified by either party by notice to the other party given not later than ten (10) days after the Arbitration Commencement Date. The arbitrator may not select any other figure and shall have no power to modify the provisions of this Lease. The determination of the arbitrator will be final and binding upon Landlord and Tenant. The cost of the Arbitration will be shared equally by Landlord and Tenant. ARTICLE II. BASIC RENT SECTION 2.1 INITIAL GROSS RENT PERIOD. During the period from the Commencement Date through December 31, 2004 (the "Gross Rent Period"), Tenant shall pay to Landlord, without demand, setoff or deduction whatsoever, at the office of Landlord set forth in Section 2.2 below, the sum of $40,631.25 per month in advance. Landlord hereby agrees to grant Tenant a rent credit during the first two (2) months of the Gross Rent Period equal to $26,921.66 per month. Notwithstanding any other provision of this Lease to the contrary, including without limitation Article IV (Common Area Charges and Impositions), Tenant shall have no obligation during the Gross Rent Period to pay Common Area Costs and Taxes attributable to the Premises to the extent such charges are not greater than the costs for such items during the period of Tenant's occupancy of a portion of the Premises under that Sublease Agreement dated May 11, 2004 (the "Sublease") between SR Telecom Inc., as sublessor, and Tenant, as sublessee. During the Gross Rent Period, Tenant shall be responsible for any excess of such costs over the amounts for same during the Sublease term, together with all other sums and charges imposed on Tenant under this Lease that are not expressly covered by this Section 2.1. The parties acknowledge that the Sublease shall be terminated on or before the Commencement Date in connection with the Termination Agreement (defined in Section 19.35). On and after expiration of the Gross Rent Period, Tenant shall pay when due all sums and charges required to be paid by it under this Lease, including without limitation Common Area Costs and Taxes in accordance with the terms of this Lease. SECTION 2.2 BASIC RENT. In consideration of the leasing of the Premises under this Lease, Tenant covenants to pay Landlord, without previous demand therefor and without any right of setoff or deduction whatsoever (except as otherwise specifically permitted in this Lease), at the office of Landlord at: Willows Commerce Park c/o Kessler & Kessler 1000 Marina Village Parkway, Suite 130 Alameda, CA 94501 3 or at such other place or account as Landlord may from time to time designate in writing, a base monthly rental in the amount of $92,500.00 payable monthly, in advance, commencing on January 1, 2005, and continuing on the first day of each month thereafter for the balance of the Term, subject to adjustment as provided in Section 2.3. The rent provided for in Sections 2.1 and 2.2 is hereinafter called the "Basic Rent." Basic Rent in the amount of $92,500 for the first full month after the Rent Commencement Date shall be paid to Landlord upon execution of this Lease. If the Term of this Lease does not commence on the first day of a calendar month or end on the last day of a calendar month, the installment of Basic Rent for the partial calendar month at the commencement or the termination of the term shall be prorated on the basis of the number of days of the term within such calendar month. SECTION 2.3 BASIC RENT ADJUSTMENT. Commencing on January 1, 2006 and effective on January 1 of each year thereafter during the Term of this Lease, the Basic Rent shall be increased by an amount equal to three percent (3%) of the Basic Rent applicable during the immediately preceding year. For example, the Basic Rent for the period of January 1, 2006 through December 31, 2006 shall be $95,275.00 per month ($92,500.00 x 1.03), and the Basic Rent for the period of January 1, 2007 through December 31, 2007 shall be $98,133.25 ($95,275.00 x 1.03). SECTION 2.4 ADDITIONAL RENT. All sums of money (other than Basic Rent) that Tenant is required to pay to Landlord or any third party under this Lease is referred to herein as "Additional Rent", including without limitation any imposition, insurance premium, utility charge, maintenance repair or replacement expense which Tenant is obligated hereunder to pay. In the event Tenant fails to pay any Additional Rent when due, Landlord may, but shall not be obligated to pay the same after first providing Tenant with ten (10) days written notice specifying the payment to be made, and in that event Tenant shall immediately reimburse Landlord therefor, and Tenant hereby agrees to indemnify, defend and save Landlord harmless from and against any claim, liability, expense, loss or damage arising from or related to Additional Rent and Tenant's failure to pay Additional Rent as required hereunder. SECTION 2.5 DELINQUENT PAYMENTS. All payments of Basic Rent and Additional Rent shall be payable without previous demand therefor and without any right of setoff or deduction whatsoever (except as specifically provided herein), and in case of nonpayment of any item of Additional Rent by Tenant when the same is due, Landlord shall have, in addition to all its other rights and remedies, all of the rights and remedies available to Landlord under the provisions of this Lease or by law in the case of nonpayment of Basic Rent. The performance and observance by Tenant of all the terms, covenants, conditions and agreements to be performed or observed by Tenant hereunder shall be performed and observed by Tenant at Tenant's sole cost and expense. Any installment of Basic Rent or Additional Rent or any other charges payable by Tenant under the provisions hereof which shall not be paid when due shall bear interest at an annual rate equal to twelve percent (12%) from the date when the same is due hereunder until the same shall be paid, but in no event in excess of the maximum lawful rate permitted to be charged by Landlord against Tenant. Said rate of interest is sometimes hereinafter referred to as the "Maximum Rate of Interest." 4 In addition, any installment of Basic Rent or Additional Rent or any other charges payable by Tenant under the provisions hereof which shall not be paid when due and which remain unpaid ten days thereafter shall be subject to a late payment fee of three percent (3%) of the unpaid amount, provided that such late fee shall not apply to the first instance of such late payment in any twelve (12) month period. SECTION 2.6 SECURITY DEPOSIT - LETTER OF CREDIT. (a) Tenant shall deliver to Landlord the Letter of Credit described below, at Tenant's sole cost and expense, as security for Tenant's performance of all of Tenant's covenants and obligations under this Lease; provided, however, that neither the Letter of Credit nor any Letter of Credit Proceeds (as defined below) shall be deemed an advance rent deposit or an advance payment of any other kind, or a measure of Landlord's damages upon Tenant's default. Landlord shall not be required to segregate the Letter of Credit Proceeds from its other funds and no interest shall accrue or be payable to Tenant with respect thereto. Landlord may (but shall not be required to) draw upon the Letter of Credit and use the proceeds therefrom (the "Letter of Credit Proceeds") or any portion thereof to cure any Event of Default under this Lease or to compensate Landlord for any damage Landlord incurs as a result of Tenant's failure to perform any of its obligations hereunder, it being understood that any use of the Letter of Credit Proceeds shall not constitute a bar or defense to any of Landlord's remedies set forth in this Lease, including without limitation, the right to terminate this Lease and recover damages. Landlord shall only be entitled to draw upon the Letter of Credit upon the occurrence of an Event of Default under this Lease or any other document executed in connection with this Lease. In the event Landlord draws upon the Letter of Credit and elects not to terminate the Lease, but to use the Letter of Credit Proceeds to cure such Event of Default, and upon written notice from Landlord to Tenant specifying the amount of the Letter of Credit Proceeds so utilized by Landlord and the particular purpose for which such amount was applied, Tenant shall immediately deliver to Landlord an amendment Letter of Credit or a replacement Letter of Credit in an amount equal to one hundred percent (100%) of the amount specified in subsection (b) below. Tenant's failure to deliver such replacement Letter of Credit to Landlord within five (5) business days of Landlord's notice shall constitute an Event of Default hereunder. If Tenant breaches any of its obligations set forth in this Section, such breach shall constitute an Event of Default hereunder without the requirement of any notice or cure period. (b) As used herein, Letter of Credit shall mean an unconditional, irrevocable sight draft letter of credit in the form attached hereto as EXHIBIT F or another form approved by Landlord (the "Letter of Credit") issued by Silicon Valley Bank or a major national bank reasonably satisfactory to Landlord (the "Bank"), naming Landlord as beneficiary, in an amount equal to Six Hundred Thousand and No/100 Dollars ($600,000.00). The Letter of Credit shall provide: (i) that Landlord may make partial and multiple draws thereunder, up to the face amount thereof, (ii) that Landlord may draw upon the Letter of Credit up to the full amount thereof, as determined by Landlord, and the Bank will pay to Landlord the amount of such draw upon receipt by the Bank of a sight draft signed by Landlord certifying that an Event of Default has occurred; and (iii) that, in the event of Landlord's assignment or other transfer of its interest in this Lease, the Letter of Credit shall be freely transferable by Landlord, without charge and without recourse to Landlord, to the assignee or transferee of such interest in accordance with 5 Bank's customary procedures. Tenant shall pay all fees and charges required in connection with any transfer of the Letter of Credit. Landlord must transfer the Letter of Credit to any transferee of Landlord's fee interest in the Premises. Notwithstanding the provisions of the Letter of Credit, Landlord will not make any draw(s) upon the Letter of Credit in an amount in excess of the sum that Landlord reasonably deems necessary to cure the Event of Default and/or to compensate Landlord for any damages Landlord incurs as a result of Tenant's failure to perform any of its obligations under this Lease, except that Landlord may draw the entire amount of the Letter of Credit in the event of termination of this Lease by reason of an Event of Default. (c) The Letter of Credit shall be maintained for the Term of this Lease; provided, however, that the amount of the Letter of Credit shall be reduced for any extended or renewal period of the Term in an amount equal to (i) $125,000 if no Event of Default shall have occurred more than once in any calendar year or three times in the aggregate during the Initial Term or (ii) $300,000 if subsection (i) does not apply. Tenant shall provide an amendment Letter of Credit or replacement Letter of Credit for such reduced amount prior to the expiration of the Initial Term. ARTICLE III. USE OF PREMISES SECTION 3.1 PERMITTED USE. The Premises including all buildings or other improvements hereafter erected upon the same shall be used for offices, warehouse, research and development, and light manufacturing or any other use permitted under applicable laws and any conditions, covenants or restrictions recorded against the Premises (the "Permitted Use"), and no other use. Tenant shall not use or occupy the same, or knowingly permit them to be used or occupied, contrary to any law, statute, rule, order, ordinance, requirement or regulation applicable thereto, or in any manner which would violate any certificate of occupancy affecting the same, or which would make void or voidable any insurance then in force with respect thereto or which would make it impossible to obtain fire or other insurance thereon required to be furnished hereunder by Tenant, or which would cause structural injury to the improvements, or which would constitute a public or private nuisance or waste or would violate any Hazardous Materials Laws (as defined in Section 8.3), and Tenant agrees that it will promptly, upon discovery of any such use, take all necessary steps to compel the discontinuance of such use. SECTION 3.2 PRESERVATION OF PREMISES. Tenant shall not use, suffer, or permit the Premises, or any portion thereof, to be used by Tenant, any of its employees or agents, any third party or the public in such manner as might reasonably tend to impair Landlord's title to the Premises, or any portion thereof, or in such manner as might reasonably make possible a claim or claims of adverse usage or adverse possession by the public, as such, or third persons, or of implied dedication of the Premises, or any portion thereof. Nothing in this Lease contained and no action or inaction by Landlord shall be deemed or construed to mean that Landlord has granted to Tenant any right, power or permission to do any act or make any agreement that may create, or give rise to or be the foundation for any such right, title, interest, lien, charge or other encumbrance upon the estate of Landlord in the Premises. 6 SECTION 3.3 ACCEPTANCE OF PREMISES. Tenant accepts the Premises in its "as is" condition as of the Commencement Date except for (i) Landlord's Work (defined below) and (ii) Landlord's obligations expressly contained elsewhere in this Lease. On or before January 1, 2005, subject to delays due to force majeure and other causes beyond Landlord's control and delays caused by Tenant, Landlord, at Landlord's expense shall substantially complete the following work ("Landlord's Work"): (a) put the Premises in good order, condition and repair, with the core building systems (meaning the roof, structure, HVAC, plumbing and basic electrical systems for the Building) in good working order (and Landlord will warrant the core building systems shall remain in good working order for a period of three (3) months after the Commencement Date so long as Tenant maintains such systems to the extent required by this Lease), (b) clean the static control floor and carpet in the Premises, (c) patch holes in the wall at the loading dock with plywood and paint such plywood, (d) patch conveyor-system openings in the warehouse walls with drywall and paint such drywall, (e) remove rooftop antennas that are no longer in use, (f) supply Tenant with sufficient matching ceiling tiles for Tenant to replace the ceiling tiles that are damaged or missing as of the date of this Lease, (g) supply Tenant with sufficient lamps and bulbs for Tenant to replace such lamps and bulbs that are burned out as of the date of this Lease, and (h) repair and/or replace all existing moisture-damaged or loose static control floor tiles (and any other such tiles that need to be replaced) in the Building, which are estimated to number approximately 250-350 tiles. The core building systems referenced in subsection (a) above does not include any improvements, fixtures, equipment and personal property in the Building installed or abandoned by the prior tenant, including without limitation the Personalty referenced in Section 19.34, all of which is delivered in its "as is" condition, without any representation or warranty of any kind regarding its condition, suitability or usefulness for any purpose. For purposes of this Section 3.3, Landlord's Work shall be deemed "substantially complete" at such time as Tenant can use the Premises for their intended purposes without material interference attributable to the lack of full completion of Landlord's Work. In addition to Landlord's Work, Landlord agrees to install a "french drain" system at the north and east exterior sides of the Building within a reasonable time after the Commencement Date but not later than one hundred twenty (120) days after the Commencement Date. In the event that Landlord has not substantially completed Landlord's Work by January 1, 2005 (excluding the aforementioned french drain), subject to delays due to force majeure or other causes beyond Landlord's control or delays caused by Tenant, the Gross Rent Period, the commencement date for Basic Rent under Section 2.2, and the Term shall each be extended by the number of days from January 1, 2005, until substantial completion of Landlord's Work. Landlord shall have no obligation to alter, remove, improve, repair, decorate, or paint the interior of the Premises or any part thereof except as expressly provided in this Lease. Tenant acknowledges that except as expressly provided in this Lease, neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the Premises or the Building or with respect to the suitability or fitness of either for the conduct of Tenant's business or for any other purpose. Tenant shall comply with any and all covenants, conditions, restrictions, and encumbrances affecting the Premises and the Building that are provided or disclosed to Tenant before the date of this Lease. SECTION 3.4 STATIC CONTROL FLOOR TILES. Once each quarter during the Initial Term, Landlord shall inspect the static control floor tiles in the Building (the "Tiles") and repair or 7 replace any moisture-damaged or loose Tiles that are readily accessible and located in areas other than Essential Manufacturing Areas (defined below) so as to maintain the static control characteristics of the Tiles consistent with the manufacturer's specifications (the "Performance Standard"). With respect to Tiles located in Essential Manufacturing Areas, Landlord shall promptly repair or replace at any time during the Initial Term upon Tenant's request any readily-accessible Tiles that become moisture-damaged or loose and that fail to meet the Performance Standard. Tenant shall be responsible for moving any equipment or property as necessary to allow Landlord to make the repairs or replacements to the Tiles pursuant to this Section 3.4. After the expiration of the Initial Term, Tenant shall be solely responsible for all Tiles (including their compliance with the Performance Standard if such standard is necessary for Tenant's operations), and Landlord shall have no obligation or liability with respect thereto. For purposes of this Section 3.4, the "Essential Manufacturing Areas" shall refer to Tiles in those areas of the Building that materially impair Tenant's manufacturing process if they do not meet the Performance Standard. During the Initial Term, Landlord shall use its best efforts to ensure that the Tiles in the Essential Manufacturing Areas meet the Performance Standard. Tenant will immediately notify Landlord if it becomes aware or reasonably believes that such Tiles are not meeting the Performance Standard, and will provide Landlord with any relevant information received by Tenant regarding such nonperformance. Landlord will promptly investigate and assess the performance of such Tiles and use its best efforts to cause the Tiles to meet the Performance Standard. Tenant shall at all times cooperate with Landlord in good faith to assess, mitigate and seek to jointly resolve any failure of such Tiles to meet the Performance Standard, including modifying or relocating the manufacturing process to the extent such changes can reasonably be made without materially adversely affecting Tenant's manufacturing operations. Notwithstanding any other provision herein, Tenant, at Tenant's sole cost, shall perform normal, routine maintenance of the floor tiles as recommended by the manufacturer, Flexco. In order to give Tenant the ability to take immediate action with respect to any Tiles in Essential Manufacturing Areas that are not meeting the Performance Standard, Tenant may at any time during the Initial Term (and without prior notice to Landlord) repair or replace any Tiles in Essential Manufacturing Areas that are not meeting the Performance Standard, which action may be taken either independently or jointly with Landlord. Tenant shall notify Landlord as soon as reasonably possible that it has taken or intends to take such action. Landlord agrees to reimburse Tenant for all of its reasonable out-of-pocket costs incurred in making such repairs or replacements of the Tiles, up to an amount of not more than $50,000 in the aggregate during the Initial Term (unless Landlord otherwise agrees in advance) within thirty (30) days of written request by Tenant. If Landlord fails to so reimburse Tenant within such 30-day period, Tenant may offset any such sums due against the next installment of Basic Rent due under this Lease. During the Initial Term, if (i) Tenant has exhausted the self-help remedy set forth in the preceding paragraph (and reasonably concluded that any further efforts by it thereunder would be futile), (ii) the Tiles in Essential Manufacturing Areas that were subject to such self-help continue to fail to meet the Performance Standard, (iii) such failure causes Tenant to be unable to manufacture its product in a material portion of the Essential Manufacturing Areas due to the static control floor requirements of Tenant's customers, (iv) such failure cannot reasonably be 8 remedied by the relocation or reconfiguration of Tenant's manufacturing lines or process in the Premises, and (v) such cessation of manufacturing continues for five (5) consecutive business days, then Tenant shall have the right at any time thereafter (but prior to the time that any one of the foregoing are no longer true) to give Landlord a notice of termination ("Termination Notice") whereupon (1) this Lease shall terminate on the date specified in the Termination Notice (which effective termination date shall be no sooner than ninety (90) days after the Termination Notice) and (2) one-third of the Basic Rent shall be abated for the period from the Termination Notice until the earlier of the date of lease termination or the date Landlord causes such nonperforming Tiles that led to the Termination Notice to meet the Performance Standard; provided, however, that if Landlord causes such nonperforming Tiles that led to the Termination Notice to meet the Performance Standard at any time prior to Tenant's execution of a lease for space at another property, the Termination Notice given hereunder shall be null and void, the foregoing abatement of Basic Rent shall cease, and this Lease shall continue in full force and effect for the remaining stated Term. The foregoing right of termination shall only apply during the Initial Term. The parties agree that Tenant's self-help and termination rights set forth above in this Section 3.4 are Tenant's sole and exclusive rights and remedies with respect to the Tiles. Tenant hereby unconditionally waives, releases, covenants not to sue, acquits and forever discharges Landlord and its officers, directors, partners, trustees, employees, agents, attorneys, successors and assigns for, from and against any and all claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, including all statutory and common law rights of indemnification and contribution, direct or indirect, known or unknown, foreseeable or unforeseeable, present and future, that the Tenant may now have or may subsequently accrue to the Tenant whatsoever arising out of or related, directly or indirectly, to the performance or nonperformance of the Tiles in the Building or Landlord's efforts to maintain the static control performance of the Tiles, including without limitation, all claims of damage or injury to persons or property. Without limiting the generality of the foregoing release, Tenant waives all claims and releases Landlord from all liability for any consequential damages that Tenant may incur due to the nonperformance of the Tiles, including without limitation any claims based on product liability. Additionally, Tenant shall indemnify and defend Landlord and its officers, directors, partners, trustees, employees, agents, attorneys, successors and assigns from and against any and all claims, liabilities, damages, costs, penalties, forfeitures, losses or expenses (including attorneys' fees) for death or injury to any person or damage to any property whatsoever arising from or related to, directly or indirectly, from the performance or nonperformance of the Tiles in the Building or Landlord's efforts to maintain the static control performance of the Tiles, including without limitation any claims based on product liability. Tenant's covenants and obligations under the foregoing provisions shall survive the expiration or termination of this Lease. SECTION 3.5 REFURBISHMENT ALLOWANCE. On or after May 1, 2008, Landlord shall provide to Tenant an allowance of not more than One Hundred Twenty Five Thousand Dollars ($125,000) (the "Landlord's Allowance") to be applied solely toward the costs of refurbishing the Premises which may include repairing or replacing the wall covering and floor covering in the Premises (the "Refurbishment Work"). Provided no Event of Default exists and subject to the other conditions herein, Landlord shall disburse the Landlord's Allowance to Tenant within thirty (30) days after Tenant has completed the Refurbishment Work and delivered to Landlord 9 all of the following: (a) all invoices and proofs of payment for the Refurbishment Work, (b) unconditional lien waivers and releases, in a form acceptable to Landlord, executed by all contractors, subcontractors, material and other potential lien claimants in connection with the Refurbishment Work (or the period within which such potential lien claimants may file a lien shall have expired without the filing of any lien), and (c) a copy of all building permits and a final Certificate of Occupancy for the Premises, if applicable. The Landlord's Allowance must be disbursed by May 1, 2010 or shall be deemed forfeited with no further obligation by Landlord with respect thereto. ARTICLE IV. COMMON AREA CHARGES AND IMPOSITIONS SECTION 4.1 DEFINITIONS. "COMMON AREA" shall mean the entire area designated from time to time by Landlord for the common use or benefit of the tenants of the Park and other persons entitled to use the same, including, without limitation, parking lots (permanent and temporary), landscaped and vacant areas, passages for tracks and automobiles, area-ways, roads, walks, curbs, corridors, stairs and ramps, together with common utility facilities, storm water detention facilities, whether located within or outside of the Park, and including the exterior of buildings. "COMMON AREA COSTS" shall mean all costs and expenses of operating, maintaining, managing, repairing and replacing all or any part of the Park, including the Building or the Common Area, as applicable, and shall include, but not be limited to, all sums expended for operating, maintaining, repairing, lighting, cleaning, sealing, striping, inspecting, painting (including the exterior of buildings of the Park, and removing snow, ice, debris and surface water; all insurance costs incurred by Landlord in connection with the Park, including liability insurance for personal injury, death, and property damage and contractual liability, worker's compensation insurance, insurance against all risks of physical loss (including earthquake, terrorism and flood if and only if required by Landlord's Mortgagee) or other casualties, rental loss, workmen's compensation and employer's liability insurance, and including any "deductible" or self-insured retention cost (up to a maximum of $25,000) incurred in connection with any covered loss; surcharges levied upon or assessed against parking spaces or areas; payments to or for public transit or car pooling facilities or otherwise, as required by governmental authorities having jurisdiction over the Park; costs incurred by Landlord in connection with complying with applicable federal, state or local environmental or other legal requirements; the cost of repairing, cleaning and painting the exterior of all buildings in the Park, including the roof membrane; costs of providing security guards, if approved in advance by Tenant; the acquisition costs (rental fees and/or purchase price or, in lieu of purchase price, the annual depreciation applicable thereto) of machinery and equipment used in connection with the maintenance and operation of the Park; the costs of any capital improvements or capital replacements in the Park, provided, however, if under generally accepted accounting principles such costs should be capitalized, the amount included within any period shall equal the amount amortized over the useful life of the improvements; all costs and expenses of service and maintenance contracts, including, but not limited to, fire sprinkler systems, electronic intrusion and fire control and telephone alert system; machinery and equipment depreciation; all costs and expenses for inspecting, repairing and maintaining machinery and equipment used in the 10 operation of the Park; all costs and expenses of inspecting, maintaining, repairing and replacing drainage, landscaping, wetlands and irrigation systems, sanitary sewer systems, sprinklers and other fire protection systems, and electrical, gas and water systems; all reasonable costs and expenses paid or incurred by Landlord for professional and other services (including consultants, attorneys, appraisers and experts) in connection with contesting or attempting to lower Taxes or to resist increased Taxes provided that Landlord had a reasonable good faith basis to pursue such contest or reduction and, if the savings from such contest is less than the costs to pursue same, Tenant shall be responsible for not more than fifty percent (50%) of the excess costs; all costs and expenses of traffic regulation, directional signs and traffic consultants; all costs and expenses of planting and replacing flowers, shrubbery and planters; all costs and expenses of replacement of, and repairing, paving, curbs, sidewalks, walkways, roadways, loading docks shared by two or more tenants, parking surfaces, drainage, utilities, lighting facilities, and Park signage; all costs of supplies and materials used in connection with the operation and maintenance of the Park; all payroll taxes, unemployment insurance costs, vacation allowances, and the cost of providing hospitalization and any other expense imposed on Landlord, pursuant to law or pursuant to any collective bargaining agreement covering employees below the level of senior property manager engaged in the management of the Park or the operation, maintenance, repair or replacement of the Park; and a property management fee of not less than two and one-half percent (2.5%) of the Basic Rent hereunder nor greater than the market fees paid to third-party property managers of comparable property who provide comparable services to the landlord. Notwithstanding the foregoing, Common Area Costs shall not include: (1) the cost of any capital improvement or replacement of any capital item unless approved in advance by Tenant, mandated by laws not in effect on the Commencement Date or that actually reduce the Common Area Costs (whereupon the amortized costs of same over the useful life of the improvement or replacement shall be included in Common Area Costs); (2) repairs, restoration or other work occasioned by fire, windstorm or other insured casualty except for any applicable deductible or self-insured retention which shall not exceed $25,000; (3) expenses incurred in leasing or procuring tenants, leasing commissions, advertising expenses or expenses for renovating space for new or existing tenants; (4) legal expenses incident to enforcement by Landlord of the terms of any lease, or in connection with lease negotiations with prospective tenants, tort claims or disputes with Building tenants (other than Tenant); (5) interest or principal payments on, or any other costs related to, any Mortgage or other indebtedness of Landlord or costs of refinancing; (6) fines, penalties, and interest caused by Landlord or another tenant in the Park; (7) costs relating solely to any building other than the Premises; (8) the cost of decorating, improving for tenant occupancy, painting or redecorating portions of the Park to be leased to tenants; (9) advertising or marketing expenses relating to vacant space; (10) real estate brokers' or other leasing commissions; (11) lease concessions, rental abatements and construction allowances granted to specific tenants; (12) costs incurred in connection with the sale, financing or refinancing of the Building; (13) fines, interest and penalties incurred due to the late payment of Property Taxes or expenses; (14) organizational expenses associated with the creation and operation of the entity which constitutes Landlord; (15) any penalties or damages that Landlord pays to Tenant under this Lease or to other tenants in the Building under their respective leases; (16) fines or penalties incurred as a result of violation by Landlord of any applicable law; (17) charitable, civic or political contributions; (18) costs of purchasing or leasing sculptures, paintings or other works or decorative objects; (19) costs resulting from the negligence or willful misconduct of Landlord or it agents, employees or contractors; (20) costs of any work or service performed for or facilities furnished to any tenant to the extent Tenant would pay for the same level of such item 11 on an extra-cost basis under this Lease; (21) repairs, restoration, replacements or other work occasioned by the exercise of eminent domain or by casualty; or (22) any overhead or profit increments to any subsidiary or affiliate of Landlord for services on or to the Park, to the extent that the costs of such services materially exceed competitive costs for services obtained from an unrelated party of comparable scope and quality rendered by persons or entities of similar skill, competence and experience; (23) contribution to reserves, (24) costs attributable solely to another building in the Park, or (25) any cost for which Landlord is reimbursed by a third party. In the calculation of any expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts to effect an equitable proration of bills for services rendered to the Park and to any other property owned by Landlord. Landlord agrees to keep books and records showing the Common Area Costs in accordance with a system of accounts and accounting practices consistently maintained on a year-to-year basis and Tenant may inspect such records at any time on reasonable notice at the offices of Landlord where such records are kept. "LEASE YEAR" shall mean, in the case of the first Lease Year, that period from the Commencement Date to the first succeeding December 31; thereafter, "Lease Year" shall mean each successive twelve (12) calendar month period following the expiration of the first Lease Year, except that in the event of the termination of this Lease on any day other than on December 31, then the last Lease Year shall be the period from the end of the preceding Lease Year to such date of termination. "TAXES" shall mean all taxes and assessments against the land, buildings or improvements comprising the Park that are levied or assessed (that become due during the term of this Lease) by any lawful authority during each calendar year, including without limitation all personal property taxes of Landlord relating to Landlord's personal properly located on the Park and used or useful in connection with the operation and maintenance thereof, and all other governmental charges, general and special, ordinary and extraordinary, foreseen as well as unforeseen, of any kind and nature whatsoever, or other tax, however described, which is levied or assessed by the United States of America or the state in which the Park is located or any city, municipality or political subdivision thereof, against Landlord or all or any part of the Park excluding however any net income tax, estate tax, transfer tax or inheritance tax of Landlord. Taxes shall not include any fine, penalty, interest, or cost attributable to delinquent payment thereof. If Landlord does not elect to protest valuation of the property, Tenant may initiate proceedings to contest the valuation at Tenant's expense. "TENANT'S PRO RATA SHARE" shall mean the fraction the numerator of which is the rentable floor area of the Premises and the denominator of which is the number of square feet of rentable floor area of all buildings in the Park at the time, or such portion of the Park as is reasonably determined by Landlord to be applicable with respect to any charges which are not allocable to the entire Park; provided, however, the total rentable floor area of any tenant within the Park that does not benefit from nor participate in the reimbursement of any or all of such costs and/or expenses included within the term Common Area Costs shall not be included within the total square feet of rentable floor area within the Park for purposes of calculating Tenant's Pro Rata Share of the specific costs for which such tenant does not benefit from nor participate in the reimbursement thereof. As of the Commencement Date, the total rentable floor area of the Premises is approximately 135,286 square feet and the total rentable floor area of all buildings in the Park is approximately 206,261 square feet. 12 SECTION 4.2 PAYMENT. Tenant shall pay Landlord Tenant's Pro Rata Share of Taxes and Common Area Costs, as Additional Rent, in monthly installments on or before the first day of each calendar month, in advance, in an amount estimated by Landlord from time to time. Landlord shall, on or about March 31 of each calendar year, submit to Tenant a statement of estimated Common Area Costs and Taxes for such Lease Year and Tenant's proportionate share thereof, whereupon Tenant shall pay Landlord any deficit over Tenant's first quarter payments within thirty (30) days of receipt of Landlord's statement, and any overpayment by Tenant shall be credited to the next installments of Tenant's proportionate share of Common Area Costs or Taxes, as the case may be. Within ninety (90) days after the end of each Lease Year, Landlord shall furnish Tenant with a statement (the "Annual Statement") detailing the actual Common Area Costs and the actual amount of Tenant's proportionate share of such Common Area Costs and Taxes for such period. In the event the total of Tenant's monthly installments for any Lease Year does not equal Tenant's proportionate share as shown on the Annual Statement, then Tenant shall promptly pay Landlord any deficiency, but if such Annual Statement indicates an overpayment by Tenant, then Tenant shall be entitled to offset such excess against any sums next becoming due under this Lease or to the extent such excess exceeds $92,500 or if the Lease has terminated, such sum shall be refunded to Tenant. Landlord may from time to time revise such estimate by notice to Tenant, whereupon, starting with the next payment due at least ten (10) days after the date of the revised estimate, subsequent payments by Tenant for the remainder of the Lease Year shall be based upon such revised estimate. SECTION 4.3 COMMON AREA MAINTENANCE. Landlord shall operate and maintain the Common Area or shall cause the same to be operated and maintained in a manner deemed by Landlord reasonable or appropriate for the Park provided that the Park must be maintained in as good a condition as it is in at the date of this Lease and in compliance with all applicable laws and recorded restrictions. Subject to reasonable, nondiscriminatory rules and regulations to be promulgated by Landlord, and subject to the rights of Tenants, licensees or concessionaires already or to be granted therein, the Common Area is hereby made available to Tenant and its employees, agents, customers and invitees for their reasonable nonexclusive use in common with others, including Tenants and their employees, agents, customers, invitees, and Landlord for the purposes for which constructed. Landlord shall have the right: to change the location and arrangement of parking areas and other Common Area; to construct surface or elevated parking areas and facilities; to establish and change the level of parking surfaces; to close all or any portion of the Common Area to such extent as may, in the opinion of Landlord's counsel, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein or to make repairs or alterations; to close temporarily any or all portions of the Common Area; and to do and perform such other acts in and to said area and improvements as, in the exercise of good business judgment, Landlord shall determine to be advisable with a view to the improvement of the convenience and use thereof by Tenants and their agents, contractors, servants, employees, licensees, customers and business invitees, In the event Landlord exercises any right set forth in this Section, Landlord shall use reasonable efforts to minimize any material adverse interference with Tenant's operation of the Premises for the Permitted Use and shall use its best efforts to ensure that Tenant at all reasonable times has access to the Premises and the 13 parking designated for Tenant's use hereunder. Tenant shall not solicit business or display merchandise within the Common Area, or distribute handbills therein, or take any action which it has reason to know would unreasonably interfere with the rights of other persons to use the Common Area without the prior written consent of the Landlord. Landlord agrees that it shall not grant rights for any tenant, occupant or other party to occupy or use any portion of the Common Area that is also part of the Building, including the roof, without Tenant's prior consent, excluding the existing rights granted to AT&T Wireless referenced in Section 19.33. SECTION 4.4 PARKING. Tenant shall have the nonexclusive right to use at no additional charge parking stalls located within the Common Area of the Park (except such parking stalls located adjacent to other buildings in the Park that are reserved for the exclusive use of other tenants or their invitees) in common with all other occupants of the Park and their invitees, subject to the terms, rules and regulations of this Lease. Except as mandated by any governmental authority, Landlord agrees that it shall not (i) materially reduce the total number of unreserved parking spaces available in the Park, or (ii) provide reserved parking in the Common Area to any other tenant in the Park unless Landlord also provides a comparable amount of reserved parking (based on square feet of the respective premises) to Tenant adjacent to the Building. ARTICLE V. INSURANCE SECTION 5.1 LANDLORD'S PROPERTY INSURANCE AND WAIVER OF SUBROGATION. Landlord shall keep the improvements in the Park (including all improvements in the Premises on the Commencement Date and all equipment, fixtures and personal property in the Premises that are owned by Landlord) insured in an amount equivalent to the insurable replacement value thereof on an agreed amount basis without any co-insurance penalty (excluding foundation, grading and excavation costs) with deductibles reasonably acceptable to Landlord against: (a) Loss or damage by fire and other risks covered by the ISO "causes of loss - special" form of policy or such other comparable policy if that form is no longer generally available; and (b) such other risk or risks of a similar or dissimilar nature as are now, or may in the future be, required by Landlord's lender or customarily covered with respect to buildings and improvements similar in construction, general location, use, occupancy and design to the Park, including, but without limiting the generality of the foregoing, windstorm, hail, explosion, vandalism, malicious mischief, civil commotion and such other coverage as may be deemed necessary or desirable by Landlord, provided such additional coverage is obtainable and provided such additional coverage is such as is customarily carried with respect to buildings and improvements similar in construction, general location, use, occupancy and design to the Park. Notwithstanding anything to the contrary contained in this Lease, Landlord hereby waives, releases and discharges Tenant, its agents and employees from all claims whatsoever arising out of loss, 14 claim, expense or damage to or destruction of property covered by property insurance maintained or required to be maintained by Landlord under this Section 5.1 notwithstanding that such loss, claim, expense or damage may have been caused by Tenant, its agents or employees, and Landlord agrees to look to the insurance coverage only in the event of such loss. Landlord agrees to have its insurer waive any rights of subrogation that such insurer may have against Tenant by reason of the claims covered by the foregoing. SECTION 5.2 LIABILITY INSURANCE COVERAGE. During the term of this Lease, Tenant, at its sole cost and expense, shall obtain and continuously maintain in full force and effect commercial general liability insurance against any loss, liability or damage on, about or relating to the Premises, or any portion thereof, with limits of not less than Five Million Dollars ($5,000,000.00) combined single limit, per occurrence and aggregate, coverage on an occurrence basis, and contain a deductible or self-insured retention of not more than One Million Dollars ($1,000,000). Any such insurance obtained and maintained by Tenant shall name Landlord and its managing agent as additional insureds therein and shall be obtained and maintained from and with a reputable and financially sound insurance company authorized to issue such insurance in the state in which the Premises are located. Such insurance shall specifically insure (by contractual liability endorsement) Tenant's indemnity obligations under this Lease to the extent typically covered by the customary endorsement. SECTION 5.3 INSURANCE PROVISIONS. Each policy required under this Article VI shall be written by companies having a financial rating of at least "VIII" and a general policyholder's rating of "A-", as rated in the most current Best's Key Rating Guide Property-Casualty, and have attached thereto (a) an endorsement that such policy shall not be canceled or materially changed without at least 30 days' prior written notice to Landlord, and (b) an endorsement to the effect that the insurance as to the interest of Landlord shall not be invalidated by any act or neglect of Landlord or Tenant. All policies of insurance shall be written in companies licensed in the state in which the Premises are located. Certificates of insurance in the form customarily used by the insurer and evidencing the insurance coverages required hereunder, shall be delivered to Landlord prior to commencement of the Term and prior to expiration of each such policy. If the certificates are not satisfactory to Landlord, Tenant shall deliver to Landlord within ten (10) days after Landlord's request such additional evidence of the maintenance of insurance required hereunder as may be requested by Landlord (including without limitation copies of the policies and all endorsements if requested). SECTION 5.4 TENANT'S PROPERTY INSURANCE AND WAIVER OF SUBROGATION. Tenant shall keep all of its machinery, equipment, furniture, fixtures, personal property (including also property under the care, custody, or control of Tenant) and business interests which may be located in, upon or about the Premises insured in an amount equivalent to not less than eighty (80) percent of the insurable replacement value thereof against: (a) loss or damage by fire and other risks covered by the ISO "causes of loss - special" form of policy or such other comparable policy if that form is no longer generally available; and 15 (b) such other risk or risks of a similar or dissimilar nature as are now, or may in the future be, customarily covered with respect to a tenant's machinery, equipment, furniture, fixtures, personal property and business located in a building similar in connection, general location, use, occupancy and design to the Park, including, but without limiting the generality of the foregoing, sprinkler leakage, windstorms, hail, explosions, vandalism, theft, malicious mischief, civil commotion and/or such other coverage as Tenant may deem appropriate or necessary. Notwithstanding anything to the contrary contained in this Lease, Tenant hereby waives, releases and discharges Landlord, its agents and employees from all claims whatsoever arising out of loss, claim, expense or damage to or destruction of property covered by property insurance maintained or required to be maintained by Tenant under this Section 5.4 notwithstanding that such loss, claim, expense or damage may have been caused by Landlord, its agents or employees, and Tenant agrees to look to the insurance coverage only in the event of such loss. Tenant agrees to have its insurer waive any rights of subrogation that such insurer may have against Landlord by reason of the claims covered by the foregoing. SECTION 5.5 OTHER INSURANCE. Tenant shall maintain insurance coverage (including loss of use and business interruption coverage) upon Tenant's business and upon all personal property of Tenant or the personal property of others kept, stored or maintained on the Premises against loss or damage by fire, windstorm or other casualties or causes for such amount as Tenant may desire, and Tenant agrees that such policies shall contain a waiver of subrogation clause as to Landlord. SECTION 5.6 BLANKET INSURANCE COVERAGE. Nothing in this Article shall prevent Tenant from taking out insurance of the kind and in the amount provided for under the preceding paragraphs of this Article under a blanket insurance policy or policies (certificates thereof reasonably satisfactory to Landlord shall be delivered to Landlord) which may cover other properties owned or operated by Tenant as well as the Premises; provided, however, that any such policy of blanket insurance of the kind provided for shall not contain any clause which would result in the insured thereunder being required to carry any insurance with respect to the property covered thereby in an amount not less than any specific percentage of the Full Replacement Cost of such property in order to prevent the insured therein named from becoming a co-insurer of any loss with the insurer under such policy; and further provided, however, that such policies of blanket insurance shall, as respects the Premises, contain the various provisions required of such an insurance policy by the foregoing provisions of this Article V. ARTICLE VI. UTILITIES SECTION 6.1 PAYMENT OF UTILITIES. Landlord represents and warrants that to the best of its actual knowledge all utilities are separately metered to the Premises. During the term of this Lease, Tenant will pay, when due, all charges of every nature, kind or description for utilities furnished to the Premises or chargeable against the Premises, including all charges for water, sewage, heat, gas, light, garbage, electricity, telephone, steam, power, or other public or private 16 utility services. Prior to the Commencement Date, Tenant shall pay for all utilities or services at the Premises used by it or its agents, employees or contractors. SECTION 6.2 INTERRUPTION. Landlord shall not be liable in damages or otherwise, nor shall there be an abatement of rents, if the furnishing by any supplier of any utility service or other service to the Premises shall be interrupted or impaired by fire, accident, riot, strike, act of God, the making of necessary repairs or improvements, or by any other causes beyond Landlord's control; provided, however, if such interruption shall have been caused by Landlord's negligence and prevents Tenant from engaging in the Permitted Use in any material portion of the Premises for fo