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HomeMy WebLinkAboutAttachment E, Exhibit 1, ZAA - Interim LeaseEXHIBIT AA Interim Lease 3764-140621A113360 AG R Ml\ 1136768.6 3/1/13 r AIR AIR CO R•IA R ESTATE ASSOCIATION STANDARD INDUS RIA 1'.R M R IA LE TENANT LEASE -- NET (DO N •T US' FOR FOR 1 LTI- TENANT BUILDINGS) 1. Basic Provisions ( "Basic Prov 1.1 Parties: This Lease ("Lease°), dated for reference purposes only Is made by and between City of Tustin a California municipal corporation ("Lessor) and South Orange County Community College District, a California public agency ( "Lessee"), (collectively the "Parties," or individually a "Party "). 1.2 Premises: That certain real properly, including all Improvements therein or to be provided by Lessor under the terms of this Lease. and commonly known as ATEP located in the County of Orange , State of California and generallydescribed as (describe briefly the nature of the property and, if applicable, the "Project", if the property is located within a Project) Approximately 1 acre parcel (Area 9) improved with classroom buildings and an adjacent parking lot located on an approximate 2.98 acre parcel of real property (Area 7). Legal Descriptions-of Area 9 and Area 7 are attached as Exhibit A ( "Premises"). (See also Paragraph 2) 1.3 Term: 3 years and 0 months ( "Original Term ") commencing June , 2013 ("Commencement Date") and ending Juno , 2016 ,Lessee shall have the option to terminate this Lease on sixtyJ601 da prior notice to Lessor ( "Expiration Date "), (See also Paragraph 3) 1.4 Early Possession: If the Pre see mlabie see may have non- excl,sive possession of the Premises commencing N/A ( "Early Passes ton Date "). (See also Paragraphs 3,2 and 3.3) 1.5 Base Rent 31 .00 pe year Base Rent"), p"y"6L, on the first day of each the Or naL To- .. and o car.' succeeding arniversary date . (See also Paragraph 4) ❑ O this box is checked, there are provisions n this Lease fort e Base Rent to be adjusted. See Paragraph 1.6 Base Rent and Other Monies Paid Upon Execution: (a) Base Rent: $0.00 for the period (b) Security Deposit 50. 00 ( "Security Deposit "). (See also Paragraph 5) (c) Association Fees: $0. 00 for the period (d) Other. $0.00 for (e) Total Due Upon Execution of this Lease: 53.00 17 Agreed Use: Educational purposes . (See also Paragraph 6) 1.8 Insuring Party: Lesaar Lessee is the "Insuring Party" unless otherwise stated herein. (See also Paragraph 8) 1.9 Real Estate Brokers: (See also Paragraph 15) (a) Representation: The following real estate brokers (the "Broken ") and brokerage relationships exhlt in this transaction (check applicable boxes): ❑ None ❑ None ❑ None INITIALS (b) Payment to Brokers: Upon exetu0on an dative represents Lessor exclusively ("Lessors Broker"); rep, MS -Lessee exclusively ("Lessee's Broker'); or rep, sans both Lessor and Lessee ( "Dual Agency "). se by both Portia , Lessor shall pay to the Brokers for the brokerage INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN - 13.3110E services rendered by the Brokers the fee agreed to in the attached separate written agreement or if no such agreement is attached, the sum of or % of the total Base Rent payable for the Original Term, the sum of or Rent payable during any period of time that the Lessee occupies the Premises subsequent to the Original Term, and/or the sum of or % of the purchase price in th t that I ssee or an ne affil tedwith'Lessee trees from Lessor any rights to the Premises. 1.10 Guarantor. The obligations of es -r this l ea areo be guaranteed tyy Nona of the total Base ( "Guarantor"). (See also Paragraph 37) 1.11 Attachments. Attached h theta are h a[lrr' 'ng, al of wit h na i u e a part oft s Lease: o an Addendum consisting of Paragraphs ❑ a plot plan depicting the Premises; ❑ a current set of the Rules.and Regulations; ❑ a Work Letter, El other (specify): Legal Descriot ion of Premises 2. Premises. 2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the mntai, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Promises may have been used In the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size he determined to be different Note: Lessee is advised to verify the actual size prior to executing this Lease. 2.2 Condition. Lessor shall deliver the Premises to Lessee broom clean and free of debris on the Commencement Date or the Early Possession Date, whichever first occurs ("Start Date', and, so long as the required service contracts described In Paragraph 7.1(b) below are obtained by Lessee and In effect within thirty days following the Start Dale, warrants that the existing electrical, plumbing. Ore sprinkler, lighting, heating, ventilating and air conditioning systems ( "HVAC'), loading doors, sump pumps, if any, and all other such elements in the Premises, other than those constructed by lessee, shall be In good operating condition on said date, that the structural elements of the roof, bearing watts and foundation of any buildings on the Premises (the "Building") defined as toxic under applicable state or f elements should malfunction or fall within t as otherwise provided in this Lease, prom non-compliance, malfunction or failure, re at the Premises aid warranty exist shall Lessor Lessee setting not contain hazardous levels of any mold or fungi as of the Start Date, or it one of such systems or sole obligation with respect to such matter, except h with specificity the nature and extent of such penet h9 warranty periods »hall be as follows: O 6 months as to the HVAC systems, and 00 30 days as to the remain i • -tams a d oth: el- ments oft = Building. If Lessee) does not give Lessor the required notice within the appropriate warranty period, correction of any such noncompliance, malfunction or (allure shall be the obligation of Lessee at Lessee's sore cost and expense. 2.3 Compliance. Lessor warrants that to the best of its knowledge the Improvements on the Premises comply with the building codes, applicable laws, covenants or restrictions of record, regulations, and ordinances ("Applicable Requirements ") that were in effect at the time that each improvement, or portion thereof, was constructed. Said warranty does not apply to the use to which lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar taws as a result of Lessee's use (see Paragraph 50), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee Is responsible for determining whether or not the Applicable Requirements, and especially the zoning, are appropriate for Lessee's Intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, testily the same at Lessors expense. If Lessee does not give Lessor written notice of a noncompliance with this warranty within 6 months following the Start Date, correction of that non-compliance shall be the obligation of Lessee at Lessee's sole cast and expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Premises andier Building, the remedialion of any Hazardous Substance, or the reinforcement or other physical modification of the Unit, Premises and/or Building ( "Capital Expenditure "), Lessor and Lessee shall allocate the cost of such work as follows: (a) Subject to Paragra 3(c) bet such Capl I Expe itures -ere regek ea result of the specific and unique use of the Premises by Lessee as compared with use by le nts n lien at. Les e shall r fully reeponsib for the cost thereof, provided, however that if such Capital Expenditure is required during the I st 2 yea o� this L ase a d tit cost thereof exceeds 6 months' ease Rent, Lessee may instead terminate INITIALS ©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN-13-3/10E this Lease unless Lessor notifies Lessee, in willing, within 10 days alter receipt of Lessee's termination notice that Lessor has erected to pay the difference between the actual cost thereof and an amount equal to 6 months' Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days . thereafter. Such termination date shall, howayer, in =vent be ea 'r than - •a -- could legally utilize the Premises without commencing such Capital Expenditure. (b) If such Capital Expenditure Is mandated seismic modifications), then Lessor shall p e remainder of the term of this Lease or any extenslo h: r- - , on th- •ate tha on which the Base Rt nt is due, an amount equal to 411441$ 10% of the portion of such costs reasonably attributab e to I Pre is . Le- ee - - = - _ , _ may prepay its obligation at any time. If, however, such Capital Expenditure Is requ during he la 2 ears of IN Lease or if Lessor reasonably determines that it is not economically feasible to pay Its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt at Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender Its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, - wilts- Interest from Rent until Lessor's share of such costs have been Nlly paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor. • (c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non - voluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead, triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use andlor take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (I) complete such Capital Expenditure at its own expense- Lessee shall not, however, have any right to terminate this Lease. 2,4 Acknowledgements. Lessee acknowledges that: (a) It has been given an opportunity to inspect and measure the Premises, (b) it has been advised by Lessor and/or Brokers to satisfy Itself with respect to the size and condition of the Premises (Including but not limited to the electrical, NVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements and the Americans with Disabilities Act), and their suitability for Lessee's intended use, (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to he occupancy of the Premises (d) it Is not relying on any representation as to the size of the Premises made by Brokers or =sso , e) th squ {e footag • f the remises was not aerial to Lessee's decision to lease the Premises uh of eel • and unique use h Cap : •lilt :. nd'tassee s the Premises by Lessee (such as, governmentally only be obligated to pay, each month during the and pay the Rent stated herein, and (t) nei respect to said matters other than as set premises or warranties concerning Lessee' investigate the financial capability and/or s 26 Lessee as Prior Own upan0 Th e era have made a sec acknowledge ty to occupy the y oral or written representations or warranties with that: (I) Brokers have made no representations. mises, and (ii) it is Lessor's sale responsibility to Yra .noes mad sly Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary. corrective work. 3. Term. 3.1 3.2 Term. The Commencement Date. Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3 . Early Possession. Any provision herein granting Lessee Early Possession of the Premises Is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. My grant of Early Possession only conveys a non - exclusive right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession, All other terms of this Lease (including but not limited to the obligations to pay Real Property Taxes and insurance premiums and to maintain the Premises) shah be in effect during such period. Any such Early Possession shall not affect the Expiration Date. 3.3 Delay In Possession. Lessor agrees to use Its best commercially reasonable efforts to deliver possession of the Premises to Lessee by the Commencement Date. If, despite said efforts. Lessor Is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay taus by a acts - - • fissions of esee. fpossessio red within 60 days after the Commencement Date, as the same may be extended undo the ter a o any r •rk Let xecut d be Parties, Les ee may, at Its option, by notice in writing within 10 days after the end of such 60 day period, ancel thi ease. whtc lit tit Parties shall be ischarged from all obligations hereunder. If such INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN- 13.3/10E written notice is not received by Lessor within said 10 delivered within 120 days after the Commencement Dale, In writing. 3.4 Lessee Compliance. or shall obligation to provide evidence of insuran a (Pa ra obligations under this Lease from and aft pending receipt of such evidence of insu the Start Date shall occur but Lessor may 4. Rent. day period, Lessee's right to cancel shall terminate. If possession of the Premises is not this Lease shall terminate unless other agreements are reached between Lessor and Lessee, required • dative possession of the -sea to Lessee until Lessee complies with Its Pend i g derive ry of such eviden , Lessee shall be required to perform all of its ding a •aym4nt of Rent notwit standing Lessor's election to withhold possession other nditions prior to or concurrent with the Start Date, onditions are sail Had. 4.1. Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ( "Rent"). 4.2 Payment. Lessee shall cause payment of Rent to be received by Lessor In lawful money of the United States, without offset or deduction (except as speohcally permitted in this Lease), on or before the day on which it is due. All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor Is dishonored for any. reason, Lessee agrees to pay to Lesser the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Base Rent, Insurance and Real Property Taxes, and any remaining amount to any other outstanding charges or costs. 4.3 Association Fees. In addition to the Base Rent, Lessee shall pay to Lessor each month an amount equal to any owner's association or condominium fees levied or assessed against the Premises. Said monies shall be paid at the same lime and in the same manner as the Base Rent 5. Security.Deposite- Lessee- shalld of its obligatfons.undeethis Lease-If Les sWas- sesarfty -fer- Lessee's- fai0rfuepedennanse Lee soemay-use,appty tetaiaalterany- peeler fbe- due -in-t , son - thereof. -If Lessor-uses•or- applies- altoeeny tea- Mlh-Lesser compensa : ... _ .. ... portlon.of the-Security-Depasiteleesee -sh Dept - - ' - • _.. f- the-8a - Re s+'^ . :. - - -.. .. .... -. - east Pram Lessoc,- deposit-addit" otal - amount-ot- the -SeouMy - Deposit- shalhal- all - times- bear -tee- same - proportion- to-the increased- rity Deposit - bore- to•Ihe- initial• BaseRenL- ShouldmeAgreed- Usebe•amended -ta accommodate -a- material changrein•the .business- of-Lessee•or•to• accommodate -a- sublessee -ec- assignee; Leaser -shall- have - the- rightre -1 extenl-nesessarfrin4e w d- forany i wring -this Lease and following such charge the.financlat- condition of Lessee .is Ie LeS6006,.reasonable judgment; significantly- reducedr- Lessee- shag -deposit^such- eddltjonal me l be-su# -. commercially reoceeable-level-baser4-en-suehsheagein-financ • general-asoia90--daya-after- he.expiration•or temilnationaf tlls.Lease ;Lessor shall return mat- poruonof the Security Deposit not or applied byLeseor:No pan of the Security Deposit- shall-be eesssld torost-efe-be -pr by- Lesseeapde 9-Leasa 6. Use. 6.1 Use. Lessee shall use and occupy the Premises only far the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste cr a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agr the mechanical or electrical systems there shall within 7 days after such request give INITIALS will nottimpair•thestructu lintegrity of the improvements on the Premises or some to the Pre Ises, If Lessor elects to withhold consent, Lessor e shall include an explanation of Lessor's objections to the change in 02001 • AIR COMMERCIAL REAL ESTATE ASSOCIATION • INITIALS FORM STN - 13.3110E the Agreed Use. 6.2 Hazardous Substances. (a) Reportable Uses Require Consent. The term "Hazardous Substance" as used In this Lease shalt mean any product, nufact , •i se- tit l(er-byitself or in combination with other materials substance, or waste whose presence, us expected to be on the Premises, is either: II) Dote or monitored by any governmental authority or (Iii) a statute or common law theory. Hazardous Substanc products, by-products or fractions thereof. Les Hazardous Substances without the express a sposal, Ira o to the r tentia 0 Injun h for- s • - include but i n not eng - • e rn ten on t of porta(tge —er reke btc h dy of t•t be a a rlth, safety or wet m, the environment or the Premises, (II) regulated asset' to any go mental agency or third party under any applicable fitlledrS-hydroca ns, petroleum, gasoline, and/or crude o0 or any tivily in or on the Premises which constitutes a Reportable Use of and gaiety comp lance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (i) the Installation or use of any above or below ground storage tank, (Ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (ill) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination of damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, Injury and /or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or Increasing the Security Deposit. (b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on. under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance. (c) Lessee Remediatlon. Lessee shall not cause or permit any Hazardous Substance to be spilled or released tn, on, under,. or about the Premises (including through the Requirements and take all investigatory an of any contamination of, and for the malnt contributed to by Lessee, or pertaining to Lessee, or any third party. (d) Lessee Indemnific stem)(and shall prompt! reco mended, whether of the Premises or n ante brought onto the Indemnify, do = rib and hold Lessor, at Lessee's expense, comply with all Applicable r not formally ordered or required, for the cleanup ghboring properties, that was caused or materially Premises during the term of this Lease, by or for Its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents andfor damages, liabilities, Judgments, claims, expenses, penalties, and attorneys' and consultants' fees arising out of or invoking any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from adjacent properties not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remedlatton, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered Into by Lessor and Lessee shalt release Lessee from Its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement. (e) Lessor Indemnification. Lessor and its successors and assigns shall Indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages. including the cost of mmediatlon, which result from Hazardous Substances which existed on the Premoes prior to Lessee's occupancy or which are caused by the gross negEgence or willful misconduct of Lessor, its agents or employees. Lessors obligations, as and when required by the Applicable Requirements, shall Include, but not be limited to, the cost of investigation, removal, remedlatlon, restoration and /or abatement, and shall survive the expiration or termination of this Lease. (t) Investigations and Remedlatlons. Lessor shall retain the responsibility and pay for any investigations or remedlation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessee's occupancy, unless such remedia •' r easu ' ulred as result of Lessee's-use-( nit "Alterations', as defined In paragraph 7.3(a) below) of the Premises, in which event Les ee she bB espo ble for h pay ant Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and L ag to ha real nab a ace ss to the Premise at reasonable times in order to carry out Lessor's INITIALS INITIALS ©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN•10 -3110E investigative and remedial responsibilities. (g) Lessor Termination Option. If unless Lessee Is legally responsible therefor (in which Requirements and this Lease shall cantle full for may, at Lessors option, either (i) investig Lessors expense, in which event this Leas times the then monthly Base Rent or $100, of the occurrence of such Hazardous Subs notice. In the event Lessor elects to sly a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, case Lessee shall make the investigation and remediatlen thereof required by the Applicable effect, but object greater, of Less ubstance Conditi t, or (ii) if the esti . nolice1o'Lessee, rminate this Lea ice, / Lessee in '.'wit in 10 days th commitment to pay the amount by which the cost of the remediallon of such Hazardous Substance Condition exceeds an amount equal to 12 times the than monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance !hereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the data specified in Lessors notice of termination. 6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully, diligently and In a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire Insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate In any manner to the such Requirements, without regard to whether such Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days alter receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of (i) any water damage to the Premises and any suspected seepage, pooling, dampness ar offer condition conducive to the production of mold; or CO any mustiness or other odors that might indicate the presence of mold in the Premises. • 6.4 Inspection; Compliance. Lesser and Lessors "Lender' (as defined in Paragraph 30) and consultants shall have the right to enter into Premises at any lime, in the cas of mar =nc . -nd othe ! se at asonable times a er reasonable notice, for the purpose of Inspecting the condition of the Premises and for verify g comp,' n ; by L: ssee his Le se. The cost of a y such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or Hazardo s Sub . rice C •n (s era rah 9.1) I found to exist or be imminent, or the inspection is requested or ordered by a governmental a charily, 1 st case, L ::: ,,: g u on request reimb rse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the via 0 or • ntam ation. I Won, Lessee sha I provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of eceipt a a vat • -n •nest the 7- Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations. 7.1 Lessee's Obligations. (a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable Requirements), 7.2 (Lessors Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee's sole expense, keep the Promises, Utility Installations (intended for Lessee's exclusive use, no matter where located), and Alterations In good order, condition and repair (whether or not the portion of the Premises requiring repairs, or the means or repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fire protection system. fixtures, walls (interior and exterior), foundations, ceilings, roofs, roof drainage systems, floors, windows, doors, plate glass, skylights, landscaping, driveways, parking lots, fences, retaining walls, signs, sidewalks and parkways located In, on, of adjacent to the Premises. Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices, specifically Including the procurement and maintenance of the service contracts required by Paragraph 7.1(b) below. Lessee's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all Improvements thereon or a part thereof In good order, condition and slate of repair, Lessee shall, during the term of this Lease, keep the exterior appearance of the Buiiding in a first-class condition (including, e.g. graffiti removal) consistent with the exterior appearance of other simile facilities of comparable age and size in the vicinity, Including, when necessary, the exterior repainting of the Building. et-Paragraph B.2(d) and Paragraph 13). Lessor n, if required, as soon as reasonably possible at ated cost to remedlate such condition exceeds 12 ithln 30 days after receipt by Lessor of knowledge as of the date 60 days following the date of such reafter, give written notice to Lessor of Lessee's (b) Service Contracts. form and substance for, and with contracto INITIALS Osseo all at Les ee's so = =xpans special 'rg and xperie - • in the 02001 • AIR COMMERCIAL REAL ESTATE ASSOCIATION AGE B • F 22 , procure and mai maintenance of tt lain contracts, with copies to Lessor, in customary e following equipment and improvements, if any, If INITIALS FORM STN - 17.9110E and when installed on the Premises: (i) HVAC equipment, (h) boiler, and pressure vessels, (iii) fire extinguishing systems, including fire alarm and/or smoke detection, (iv) landscaping and irrigation systems, (v) roof covering and drains, and (vi) clarifiers. However, Lessor reserves the right, upon notice to Lessee, to procure and maintain any or all of such service contracts, and Lessee shall reimburse Lessor, upon demand, for the cost thereof. (c) Failure to PeAer Premises after 10 days' prior written not' obligations an Lessee's behalf, and put the of the cost thereof. Loss remises s to perk Les ° nsymde xcept the c of an 1remebrgency, in whl n •ood or er, con an repair, and Lesser Paragraph 7.1, Lessor may enter upon the case no notice shall be required), perform such hall promptly pay to Lessor a sum equal to 115% Replacement. Su • act to L - indemni cation a Le sir as set forth in Paragraph 8.7 below, and without relieving Lessee of liability resulting from Lessee's failure t ex-. • se a d p or good mai le ante practices, fan item described in Paragraph 7.1(b) cannot be repaired other than at a cost which is In excess of 50% of the cost of replacing such item, then such item shall be replaced by Lessor, and the cost thereof shaft be prorated between the Patties and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease, on We date on which Base Rent is due, an amount equal to the product of multiplying the cost of such replacement by a traction, the numerator of which is one, and the denominator of which Is 144 (ie. 1/144th of the cost per month). Lessee shall pay Interest on the unamorlised balance but may prepay its obligation at any time. 7.2 Lesson Obligations. Subject to the provisions of Paragraphs 22 (Condition), 2.3 (Compliance), 9 (Damage or Destruction) and 14 (Condemnation), it is intended by the Parties hereto that Lessor have no obligation, in any manner whatsoever, to repair and maintain the Premises, or the equipment therein, all of which obligations are intended to be that of the Lessee. It is the intention of the Parties that the terms of this Lease govern the respective obligations of the Parties as to maintenance and repair of the Premises, and they expressly waive the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease. 7.3 Utility Installations; Trade Fixtures; Alterations. (a) Definitions. The term 'Utility Installations" refers to all floor and window coverings, air and/or vacuum lines, power panels, electrical disidbution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing to or on the Premises. The term `Trade Fixtures" shag mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the Improvements, other than Utility Installations or Trade referee, whether by addition or deletion. "Lessee Owned Alterations and/or Utility Installations" are defused as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant t (b) Consent. Lessee Lessee may, however, make non - structural upon notice to Lessor, as long as they are will not affect the electrical. plumbing, HV Pa .'mph hall not a teration of visible fr C, an, or I fly teratic 5 . Utill till In tall= lion • to th the cutsbe.-do.n•t in 'fety s stems, a d Installations to t Premises without Lessor's prior written consent. interior of the Pre ices (excluding the roof) without such consent but olve puncturing, locating or removing the roof or any existing walls, e cumulative co thereof during this Lease as extended does not exceed a sum equal to 3 month's Base - the - ''reg- a •r a sum '. a to one month's Base Rent in any one year, Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and /or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (I) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner, Any Alterations or Utility installations shall be performed to a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with as -built plans and specifications. For work which costs an amount in excess of one month's Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee's posting an additional Security Deposit with Lessor. (c) Liens; Bonds. Lessee shell pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or matedarmen's lien against the Premises or any interest therein. Lessee shall give Lessor not 'ess than 10 days notice prior to the commencement of any work in. on or about the Premises, and Lessor shall have the right to post notices of non - responsibility. If Lessee shaft contest the validity of any such lien, claim or demand, then Lessee shall, at Its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested Gen, claim or de(naa inden g Lessor apalnst IILessor elects to participate in any such action, Lessee shall pay Lessor's attorneys' fees a INITIALS INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM 57N-13-3/10E 7.4 Ownership; Removal; Surrender, and Restoration. (a) Ownership. Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect In writing to be the owner of all or any specified part of the Less vned AI ons and U�ti��t7_r Into li -. ons nteseot Ise Instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Inst lotions hat at lh expir,"W' or t4rrmitration of this ease, become the property of Lessor and be surrendered by Lessee with the Premises. (b) Removal. By defiverrrr,++++u((((r,,,r to Less en noti f Le or no earlier th 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require th�t any or II a ee ownpWAlteia *on or Utility InsWBatl nit be removed by the expiration or termination of this Lease. Lessor may require the remora at rim of a or aP y part of Lessee Owned Aerations or Utility Installations made without the required consent (c) Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not Include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the forgoing, if this Lease is for 12 months or loss, then Lessee shall surrender the Premises In the same condition as delivered to Lessee on the Start Date with NO allawance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank Installed by or for Lessee. Lessee shall completely remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises) even if such removal would require Lessee to perform or pay for work that exceeds statutory requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shaft constitute a holdover under the provisions of Paragraph 26 below. Lessee shall have the right on termination to remove all office furniture, laboratory equipment, computer servers and other furniture, fixtures and equipment used for educational purposes. 8. Insurance; Indemnity. 8.1 • Payment For Insure= . ee hail y for a nsuran e required under Paragraph B exce t to the extent of the cost attributable to liability Insurance carried by k ssor u d Parag ph 8 ( in a oess of $2,000,0 per occurrence. Premiums for policy periods eQ � except prior to or extending beyond th Lease t r ssh be pr aced to co the Le se term. Payment shall be made by Lessee to Lessor within 10 days following receipt of an 4ivoice. 8,2 Liability Insurance. (a) Carried by Lessee. L shall bbtain'andlceep In for d Commercial Gendral Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal Injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage In an amount not less than 31.000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional Insured - Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra - insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "Insured contract" for the performance of Lessee's indemnity obligations under this Lease.' The limits of said insurance shall not, however, limo the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shag provide an endorsement on its ;lability pollcy(les) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose Insurance shall be considered excess Insurance only • (b) Carriers by Lessor. Lessor shall maintain liability Insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the Insurance required to be maintained by Lessee- Lessee shall not be named as an additional insured therein. 8.3 Property Insurance - Building, Improvements and Rental Value. Lesece Is insuring Party. (a) Building and Improvements. The Insuring Party shall obtain end keep in force a policy or policies in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and va ble ins 4M, value the of. Lefisee CSmEd /Cterartin -and Utility Installations, Trade Fixtures, and Lessee's personal property shall be insured y Lassen no by Le or. If coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physi l lass or`�1 mage�ercep .ants of flood andfor earthquake unless required by a Lender), including INITIALS ©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN - 13.3110E coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered lass. Said poky or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase In the annual property Insurance coverage amount by a factor of not less than the adjusted U.S. r - • - rtrnent . - bor Consu • : r Prl . - : r All nsumers for the city nearest to where the Premises are located. If such insurance erage s dedu his cis j, the d , uctible amount all not exceed $5,000 per occurrence, and Lessee shall be liable for such deductible amount (b).-Rental Ver Lessofand- any- LeaderF insuring- the -lies ed •rorce.a pokcy.or nod -ofa of- any - coinsura insurance-j. -Said- insurance -sha8- contain at :tn- iivision -in adjusted. annually. tareftect- the•projaded- Rent. otherwise- payable. by- Lesseer for - the- nex142. month.perled,•- Lessee - shall - loanable- fdr- arty&Audible amountin-el-such suclNoes. (c) Adjacent Premises. If the Premises am part of a larger building, or of a group of buildings owned by Lessor which are adjacent to the Premises, the Lessee shall pay for any increase In the premiums for the property Insurance of such building or buildings If said Increase is caused by Lessee's acts, omissions, use or occupancy of the Premises. 8.4 Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance. (a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property. Trade Fodures, and Lessee Owned Alterations and Utility instalaeons. Such Insurance shall be full replacement cast coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations. Lessee shall provide Lessor with written evidence that such insurance Is in force. btain -arid- maintain- toss -of -/come -and • extra -expense.insuwnee -in- amounts -as' i8 re(mbuse- Lessee-far-dirnd or'idkeet4eos eamings- ttribetabte- te- a{Laea a-ln- tae- busineez of Locoee or- attributableto.preventlon.of access tothe•Premlses-es- a- resultof such Perils,- - (c) Warkers Compensation Insurance. Lessee shall obtain and maintain Worker's Compensation Insurance in such amount as may be required by Applicable Requirements. (d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein ire adequate to cover Les e' pert , e ions or ligation under t is Lease. 8.5 Insurance Policies. I e by meanies maintaining during the policy term a "General Policyholders ales -in -the name of Lessor-wl h- loss- payableto demnity-k4-an-additimia14-80-days- (13ental -Value ce•clause,- and -t he- amount- of- coverage-shall -ba Rating' of at least A -, VII, as set forth in t Lessee shall not do or permit to be done $nything Lessor certified copies of policies of such ijj surannc�c the required insurance. No such policy shall- cancel e s surance q bu fired e most cbr -nt I h ss oper- on ein sh: B of tit• Invalidate or Insu m • cafes 'lb copie blear bent to mod 0 ante Guide" or soh other rating as may be required by a Lender. edict insurance edict Lessee shall, prior to the Start Date, deliver to the required endo ments evidencing the existence and amounts of tion except after 3 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or 'insurance binders" evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand, Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may. but shall not be required to, procure and maintain the same. 8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for toss of or damage to its properly arising out of or incident to the perils required to be insured against herein. The effect of such reteases and waivers is not limited by the amount of Insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective properly damage insurance canters waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby. 8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and Its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, toss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses anafor liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counset reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified. 8.8 Exemption of Lessor an Its Ag •. core LIabll Not standing th ce or breach of this Lease by Lessor or its agents, neither Lessor net its agents shall a Ilab under any Ircum s fo . (p Injury or dam lie to the person or goods, wares, merchandise or. other property of Lessee, Lessee's employ s, con • rs, invi :es, c sto ors, rany other perso in or about the Premises, whether such damage or INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN -13 -311 OE injury Is caused by or results from fire, steam, electricity, gas, water or rain. indoor air quality, the presence of mold or from the breakage, leakage. obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the building of which the Premises are a part, or from other sources or places, (ii) any damages adsin any a'• . ogled of :.y other neM -of Lessor fronethe failure of Lessor or its agents to enforce the provisions of any other lease in the Pr ed, or Ii) I fury fo essee'= usine or for any loss of Income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event a such da a es or Jury b.. a aim on the incur nee poticy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8. 6.9 Failure to Provide In ll any failure on its part to obtain cr maintain the insurance required herein will expose Lessor to risks and pot nliail caus Le or t. incur cost n t contemplated b this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the existence of the required insurance, the Base Rent shall be aulrznaticatly increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional riskfcosts that Lessor will incur by reason of Lessee's failure to maintain the required insurance. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, ncr relieve Lessee of its obligation to maintain the insurance specified in this Lease. 9. Damage or Destruction, 9.1 Definitions. (a) "Premises Partial Damage" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less from the date of the damage or destruction. Lessor shall notify Lessee In writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total. Notwithstanding the foregoing, Premises Partial Damage shall not Include damage to windows, doors, and/or other similar Items which Lessee has the responsibility to repair or replace pursuant to the provisions of Paragraph 7,1. (b) "Promises Total Destruction" shall mean damage or destruction to the Premises; other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired In 6 months or less frcm the date of the damage or destruction. Lessor shalt notify Lessee in writing within 30 days ram a date of damage r destr clion as to whethe or not the damage is Partial or Total. (c) "Insured Loss" sh 11 mean mega or estruc on o imp ovements on the remises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, w oh was aused an nt ui d he be covered by the insurance described in Paragraph 8.3(a), Irrespective of any deductible amounts or c (d) "Replacement Co erk shag son t cost t repair or F1eb rid the improvem nts owned by Lessor at the time of the occurrence to their condition existing Immediately prlbc ereto, (wreck dbmolitlon, dbt}is removal and grading required by the operation of Applicable Requirements, and without deduction for depreciation. (e) "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition invoNing the presence of, or a contamination by, a Hazardous Substance , in, on, or under the Premises which requires remedlatfon. 9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that Is an Insured Loss occurs, then Lessor Leesea shall, at Lessor's Lessee's expense, repair such damage ( but - not - Lesseeabode- Falures-or -Lessee - Owned - Alteration erd- Utiely-installatieas) as soon as reasonably possible and this Lease shall continue in full force and effect provided, however, that Lessee-shallrat-Lesseers-elediea, make- the - repair -of any- damage-or- elesfwotier the _total - lest- farepairof which•is.S10,006 onieterandr in such eveat7 Lessor shall make any applicable Insurance proceeds available to Lessee on a reasonable basis for that purpose. N ngelf-the- regeked- lesaranee -was -net e- ferso-or- kbeaaseranee proceedsare- net- suf(kk g-Pagy wired -to complete said repairs. -- In-the event; however, seeh-shonage -was due -te- the - fact - that — by- reason•ot the - unique nature of thelmprovementsrfull replacementcostina mecslallyteaseeabte- andavailable; 6eseeraheµ#ave-ee obligation to.payloethe -she fu*y- restere-the unique aspects -o€ the - premises - unless - Lessee- prevides-lassee- witR{he funds to cover s nse-thereof within •lodays•fdtowing.receiptof written - notice -otsuch- snortage -and request therefor, II-Lessor receives saidfunds or- adequate assurance- thereofwithin- said -t0 day-peeseleihe-parly-respeacible- fer-makingihe- repaiwshall oemplete-thernas -soon as-reasonably-possible-and-this Lore clragremain- ln- fellJarceand- etfeel If ouch funds o , Lessor may nevertheless elect by written notice to Lessee within 10 days after t., - eke sue restorat erdally reasonable with Lessor paying any shortage in proceeds, In which case this Lease sh Ire sin In ull for eft ct, or (i8) have thi Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contrib I.d by L: sae t it an such damage or destruction. Premises Partial Damage due to flood INITIALS INITIALS 02001 • AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN - 13.3110E or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such Insurance shall be made available for the repairs if made by either Party 9.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage that Is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which t Lesse 1 make th repairs pt- Lessee's eager ); Lessor may either. (I) repair such damage as soon as reasonably possible at Lessor's expense, w ich ev t this - -; . shag continue in full fo a and effect, or (I0 terminate this Lease by giving written notice to Lessee within 30 days after receipt essor kno' edg- of occurrence of h damage. Such termination shall be effective 60 days following the date of such notice. In the event L sill acts to rmin= e Ih tZ s ,'lessee s all have the right within 10 days after receipt of the termination notice to give written notice to _essor of eBs 's cam i ,i f l par for the repair of uch damage without reimbursement from Lessor. Lessee shall provide Lessor with said fund: ors fact rya ura - (hereof ', in 30 days after eking such commitment. In such event this Lease shall continue in fug force and effect, and Lessor shal proceed to make such repairs as soon as reasonably possible after the required funds am available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice. 9.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee Lessor shall have the right to recover Lessor's damages from Lessee except as provided In Paragraph 8.6, 9.5 Damage Near End of Term. If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 10 days after the date of occurrence of such damage. Notwithstanding -the Ion toast end - (his- LeaseaMo-pwchase-the- Pretelse , y; (a }exercising- sucta -ap6e 'Utiany- shortago-in- inswanse- preseeds{eFadequ ake-the repairs-en or-before-dm earlier-of {f).the date which -is 10 daysafter- Lessees- receipt - of Lesser 'written- noNCapurponingto terminate-this-teasecor -(ii) xplrer— ft-Lessee-duy- exercises- such- optionduring- such- P&Mod-alt pcmdictes-Lesser- with-fuMa (or adequateaseurease -there ranee- preseedsrtessoc-sh llat- L- esseresammewi air —such demagwassoon asreasonably, possible -andthle-Lease-shagteetinee e- futftereeandeffestri Pisses- faIis- le- exemisasuchopikm -and provide -suuh funds- orassumnce- durtngsus{-periodr then this ease- shag - laminate -en -the- date - speci fled- fn- fhe- larrnfnatienaettse- end- l,esseecreption- shall -be extinguished: 9.6 Abatement of Rent; L (a) Abatement In the which Lessee is not responsible under this damage shall be abated in proportion to th the Rental Value insurance. All other obli• damage, destruction, remediation, repair or ge oG Premises Total D trvction or a Hazardous Substance Condition for gee f r the period requi for the repair, remediation or restoration of such ich Las , ,Zfl[T_7 the Premises Is Impa red, but not to exceed the proceeds received from hereu) der shall be performed by Le ee, and Lessor shall have no ilabalty for any such avoided herein (b) Remedies. If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may. at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice. of Lessee's election to terminate this Lease on a date not lass than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair ar restoratlon is commented within such 30 days, this Lease shall continue In full force and effect, "Commence- shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs. 9.7 Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor, Lessor shall, In addition, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor. 10. Real Property Taxes. 10.1 Definition. As used herein, the term "Real Property Taxes" shall include any form of assessment real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Premises or the Project, Lessor's right to other income therefrom, and/or Lessor's business of leasing, by any authority having the direct a indirect power to tax and where the funds are generated with reference to the Building address and where the proceeds so generated are • = applied by- a city, cou or oth facal-texing -eut y-f a jurisdiction within which the Premises are located. Real Property Taxes shall also i dude _ t x, fee, evy, a smen or charge, or any increase therein: (i) Imposed by reason of events occurring during the term of this Lease, rduding 'vi not gr Ited t , ay tiangf in the ownershllj of the Promisee, and (ii) levied or assessed on INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN- 13 -3l1 0E machinery or equipment provided by Lessor to Lessee pursuant to this Lease. 10.2 Payment of Taxes. In addition to Base Rent, Lessee shall pay to Lessor an amount equal to the Real Properly Tax installment due at least 20 days prior to the applicable delinquency date. If any such installment shall cover any period of time prior to or after the expiration or termination of this Lease, Lessee's share o h install . • shall be pr rated. 1 Less a fate charge on any Rent payment, Lessor may estimate the current Real Property Taxes, a .quire at xes paid in advance o Lessor by Lessee monthly in advance with the payment of the Base Rant. Such monthly payment : hall . - art - eq to the amount o the estimated installment of taxes divided by the number of months remaining before the n onth in w i., :. ,install es a nq ent. en the actual amount of the applicable tax bill is known, the amount of such equal monthly Advance y - r s shall c adjust -d s required to provi a the funds needed to pay the applicable taxes. If the amount collected by Lessor is Insufficient to su Re. Prop dy Taxe wl en due, Lessee s all pay Lessor, upon demand, such additional sum as Is necessary. Advance payments may be Intermingled with other moneys of Lessor and shall not bear Interest. In the event of a Breach by Lessee in the performance of its obligations under this Lease, then any such advance payments may be treated by Lessor as an additional Security Deposit. 10.3 Joint Assessment. If the Premises are not separately assessed, Lessee's liability shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be conclusively determined by Lessor from the respective valuations assigned in the assessor's work sheets or such other Information as may be reasonably available. 10.4 Personal Property Taxes. Lessee shall pay, prior to delinquency, all taxes assessed against and levied upon Lessee Owned' Alterations. Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee (If any). When passble, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and blled separately from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee's property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's Property. 11. Utilities and Services. Lessee shaft pay for all water, gas, heat, light, power, telephone, trash disposal and other utilities and services supplied to the Premises, together with any taxes thereon, If any such services are not separately metered or billed to Lessee, Lessee shall pay a reasonable proportion, to be determined by Lessor, of all charges jointly metered or billed. Them shall be no abatement of rent and Lessor shall not be gable In any respect whatsoever for the Inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessors reasonable control or in cooperation with governmental request or directions. 12. Assignment and Subletting. 12,1 Lessors Consent Re uired. (a) Lessee shall not duntarlly r b dperati n of law nsfer, ortgage or encumber (collectively, "assign or assignment ") or sublet all or any part of L sea's ini r in this Le a ruin he remises without L ssoes prior written consent. (b) Unless Lessee Is a drpora on rtd scot Is publics tr ded on a national tock exchange, a change in the control of Lessee shall constitute an assignment requiring co The t nsfer, n cumulativ sis, of 25% or m re of the voting control of Lessee shall constitute a change In control for this purpose. (c) The involvement of Lessee or Its assets In any transaction, or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buy -out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net `North as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounting principles. (d) An assignment or subletting without consent shall, at Lessors option, be a Default curable after notice per Paragraph 13.1(c), or a noncurable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a noncurable Breach, Lessor may eiither. (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previousry in effect, and (ii) all fixed and non -fixed rental adjustments scheduled during the remainder of the Lease tern shall he increased to 110% of the scheduled adjusted rent (e) Lessee's remedy for any breech of Paragraph 12.1 by lessor shall be limited to compensatory damages andlor injunctive relief. f) Lessor may reasonably- vt(ihhold penspnt to a proposed aysg,,,ne,t orstrbkyt,, ft Lessee Is In Default at the time consent Is requested: (g) Notwithstanding t INITIALS on of the Prem 02001 • AIR COMMERCIAL REAL. ESTATE ASSOCIATION ie. 20 square feet or less, to be used by a third INITIALS FORM STN•13.3110E party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting. 12.2 Terms and Conditions Applicable to Assignment and Subletting. (a) Regardless of Less consent ssignment .r suble ' ( without the express written assumption by such assignee or sublessee of the obligatons of ss a and this L- . _, (ii) eiease Lessee of ny obligations hereunder, or (ill) alter the primary liability of Lessee for the payment of Rent o • for the rforman of a f obligations to be perfo ed by Lessee. (b) Lessor may accept Rent or ante o :- s obligations from an person other than Lessee pending approval of disapproval of an assignment. Neither a belay in t e ep al or •tsappr. al 9f such assignmen nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor's r ghl t xerci a it ¢ _. les for Le sap Default or Brea h. (c) Lessors consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting. (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease. including any assignee or sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefor to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessors considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36) (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering irate such sublease, or entering Into possession of the Premises or any portion thereof, he deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or Inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing. (g) Lessors consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing, (See Paragraph 392) 12,3 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises a sh bed ante included' all sub/ ases under this L ase whether or not expressly incorporated therein: (a) Lessee hereby ass ns and a stem i Le al nt Le see's Interest In a I Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee's o I' ails under / his L ass• rovided howeve that until a Breach shall occur In the performance of Lessee's obligations, Lessee may corteci said Ren I he event at.g:a me nt collected by Le sor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee. Les r al at, Dy ason d th foregoing or any ssignment of such sublease, nor by reason of the collection of Rent, be deemed liable to lF� tesse for a y f Uure of Le e to perform and comply with any of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor staling that a Breach exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to Inquire as to whether such Breech exists, notwithstanding any claim from Lessee to the contrary. (b) In the event of a Breach by Lessee, Lesser may, at Its option, require sublessee to adorn to Lessor. In which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. (c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lassoes prior written consent. (e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee. 13. Default; Breach; Remedies. 13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or ppdorm any of the terms, covenants. conditions or Rules and Regulations undaQ le Lease. "Broach" is defined a themccurrenco1 i(v rs or more of the following Defaults, and the failure of Lessee to cure such Default withirj any ap icable gee pert m. (a) The abandonment the Pr raises; o Na v of the Premises wittput providing a commercially reasonable level of INITIALS (02001. AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN•I3.3/10E security, or where the coverage of the property insurance described in Paragraph 8.3 Is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism. (b) The failure of Lessee to make any payment of Rent or any Security Deposit requited to be made by Lessee hereunder, whether to Lessor or to a third party, when due. to pwvtie re e evidence �f insur nee-er u:ely- fulfill any obligation under this Lease which endangers or threatens life or property, ere ch failure ontinu: or a e iod of 3 busin s days following mitten notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTI LESSORS RIGHTS, INCLUDING LESSO (c) The failure of Les ae to al w iL constituting public or private nuisance, and/ r an al act r following written notice to Lessee. (d) The failure by Lessee to provide (p reasonable written evidence of compliance with Applicable Requirements, (II) the service contracts, (rd) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate, or financial statements, (v) a requested subordination, (w) evidence concerning any guaranty and /or Guarantor, (vii) any document requested under Paragraph 42, (v5I) material safety data sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee. (e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default centimes for a period of 30 days afterwdden notice; provided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion, (0 The occurrence of any of the following events: (1) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as definedIn 11 U.S.C. §101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); Oil) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other ITY DEPOSIT SH U. NOT CONSTITUTE A WAIVER OF ANY OF R-OFTHE PREM SES. attests to the P emises or the commission of waste, act or acts Lessee. where s ch actions continue for a period of 3 business days judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest In this Lease, where such seizure is not discharged within 30 days; provided, however, In the event that any provision of this subparagraph Is contrary to any applicable taw, such provision shall be of no force or effect. and not affect the validity of (g) The discovery that . ny finan 'al fate t of L - or o any Guarantor giv n to Lessor was materially false, (h) If the performance f Lessee' o•Ilga' ns u lea is uaranteed: O the death of a Guarantor, (10 the termination of a Guarantor's liability with respect to this Le se other a' In accord- the terms of such gu rant'. pi) a Guarantor's becoming Insolvent or the subject of a bankruptcy filing, (iv) a Guara tor's're • sal o •nor th guaran o (v) a Guarantor's reach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 60 days + ' Ing wit ten m Ice of any suc ent, to provide rotten alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease, 13.2 Remedies. If Lessee tails to perform any of its affirmative duties or obligations, within 10 days after written notice (or In case of an emergency, without notice). Lessor may, at its option, perform such duty or obligation on Lessee's behalf, Including but not limited to the, obtaining of reasonably required bands, Insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may. with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach: (a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been eamed at the time of termination; (11) 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 that the Lessee proves could have been reasonably avoided; (l1 the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (Iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform Its obligations under this Lease or which in the ordinary course of things would be likery to result therefrom, Including but not limited to the cost of recovering possession of the Premises, expenses of re etting, including necessary renovation and alteration of the Premises, reasonable attorneys' fees, and that portio^ of ny leasi mmisston p a' id by L ssorkreonneeti is Lease applicable to the unexpired term of This Leese. The worth at the time of awe of th aunt re rued to(irfr provis�on (id) of the innn lately preceding sentence shall be computed by discounting such amount at the discount r to of the a oral R server an of t.Rle District within w ich the Premises are located'at the time of award INITIALS INITIALS ©2001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN-13-3/10E plus one percent. Efforts by Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover damages under Paragraph 12. If termination of this Lease Is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover In such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period 'red un a aragraph 1 .1 was Lice to pay rent or quit or to perform or quit given to Lessee under the unlawful detainer statu sir II also cons l' a the no Ice required by P ragraph 111. In such case, the applicable grace period required by Paragraph 13.1 and the untawfu d tanner tatute she run oncurrentfy, and t e failure of Lessee to cure the Default within the greater of the two such grace periods shall :onstituto unlawf defai era a Breath of this Lease entitling Lessor to the remedies provided for in this Lease andfer by said statute. (b) Continue the Lease and sse's right tot (losweetOr\atd recover the Rarit as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to rebel, andfor the appointment of a receiver to protect the Lessor's interests, shalt not constitute a termination of the Lessee's right to possession. (c) Pursue any other remedy now or hereafter available under the laws or Judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of (ha Premises. 113 Inducement Recapture. Any agreeriient for free or abated rent or other charges, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, Inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as 'Inducement Provisions,' shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, Inducement or consideration theretofore abated. given or paid by Lessor under such an inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breath which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance. 13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be Imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall bed e, t , wltout requi •pant for atica to Lessee, essee shall Immediately pay to Lessor a one -time late charge equal to 10% of each such ova and reasonable estimate of the costs Less constitute a waiver of Lessee's Default or B granted hereunder. In the event that a la notwithstanding any provision of this Lease - e cont rider, Base -- nt shall, at Cr. The Parties ereby agree that such late charge represents a fair wnent. Acceplan a of such late charge by Lessor shall in no event ount nor prevent he exercise of any of the other rights and remedies r or not collected for 3 consecutive installments of Base Rent, then sots cption, bee a due and payable quarterly in advance. 13.5 Interest Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due as to scheduled payments (such as Base Rent) or within 30 days following the date on which it was due for non - scheduled payment, shall bear Interest from the data when due, as to scheduled payments, or the 31st day after it was due as to non - scheduled payments. The Interest ( "Interest ") charged shall be computed at the rate of 10% per annum but shalt not exceed the maximum rate allowed by law. Interest Is payable in addition to the potential late charge provided for in Paragraph 13.4. 13,6 Breach by Lessor. (a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that If the nature of Lessors obligation Is such that more than 30 days are reasonably required for Its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or If having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost to perform such cure, provided, however, that such offset shall not exceed an amount equal to the greater of one month'Ie se Re n - e Security!RpCeposlt reserving- ghtlo seek reimbursement from Lessor for any such expense in excess of such offset, Le tie sir do omen he cosyo{ said cure and supply se documentation to Lessor. power Condemnation, If the Premises r any po 1. there •1 are 1pW a /..�ter�5c5rrundo the wer of ea nt domain or sold under the threat of the exercise INITIALS INITIALS 02001 -AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN- 13 -3110E of said power (collectively "Condemnation "), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the Building, or more than 25% of that portion of the Premises not occupied by any building, Is taken by Condemnation. Lessee may, at Lessee's option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such not! thin 10 . - after the condemning sMheiiy shall hayetaken possession) terminate this Lease as of the data the condemning authority takes such remain in full force and effect as to the pa utility of the Premises caused by such Co shall be made as compensation for diminut on in vale q Lessee shall be entitled to any compensati n par y possess, on on of the demnatfo Le: ee do sea emai temnatiLa e leasellhld, the ikatu emnddr for Less mr co 714'1 n aw Mate this Lease that the Base Re hdfor' payments s n accordance with the foregoing, this Lease shall t shall be reduced in proportion to the reduction In all be the property of Lessor, whether such award of the part taken. for for severance damages; provided, however, that relocation expens s, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shag be considered the property of the Lessee and Lessee shell be entitled to any and all compensation which Is payable therefor. In the event that this Lease is not terminated by mason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation. 15. Brokerage Fees. 15.1 Additional Commission. If a separate brokerage fee agreement is attached then in addition to the payments owed pursuant to Paragraph 1.9 above, and unless Lessor and the Brokers otherwise agree in writing. Lessor agrees that (a) if Lessee exercises any Option, (b) if Lessee or anyone affiliated with Lessee acquires any rights to the Premises or other premises owned by Lessor and located within the same Project, if any, within which the Premises is located, (c) if Lessee remains in possession of the Premises, with the consent of Lessor, after the expiration of this Lease, or (d) if Base Rent is Increased, whether by agreement or operation of an escalation clause herein, then, Lessor shall pay Brokers a fee In accordance with the schedule attached to such brokerage fee agreement. 15.2 Assumption of Obligations. Any buyer or transferee of Lessors Interest In this Lease shall be deemed to have assumed Lessors obligation hereunder. Brokers shaft be third party beneficiaries of the provisions of Paragraphs 1.9, 15, 22 and 31. If Lessor fails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. In addition, If Lessor falls to pay any amounts to Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and Lessee of such failure and if Lessor fails to pay such amounts within 10 days after said notice, Lessee shall pay said monies to its Broker and offset Such amounts against Rent In addition, Lessee's Broker shall be deemed to be a third party aria ry o� any remissiolj:gree ant entered Into b and/or between Lessor and Lessors Broker for the limited purpose of collecting any brokerage 15.3 Representations and ndemniti s of E er , . shit Lessee and L r each represent and warrant to the other that It N P� p has had no dealings with any person, firm, raker or f (other the . - r ..ker , if any) in conne on with this Lease, and that no one otherthan said named Brokers is entitled to any commiss n or fl er fe in co ection h ith. Lessee and ssor do each hereby agree to Indemnify, protect, defend and hold the other harmless from a d- ainst ii bility r .mpensati� Charges which m y be claimed by arty such unnamed broker, tinder or other similar party by reason of any dealings or actions of the Indemnifying Party, including any costs, expenses, attorneys' fees reasonably Incurred with respect thereto. 16. Estoppel Certificates. (a) Each Party (as "Responding Party ") shag within 10 days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current "Estoppel Certificate" form published by the AIR Commercial Real Estate Association, plus such additional information, confirmation andrer statements as may be reasonably requested by the Requesting Party. (b) If the Responding Party shall fall to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that (1) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, I there am no uncured defaults in the Requesting Party's performance, and (iii) if Lessor is the Requesting Party, not more than one month's rent has been paid in advance. Prospective purchasers and encumbrancers may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be °stopped from denying the truth of the facts contained in said Certificate. (c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof. Lessee and all Guarantors shall within 10 days after written notice from Lessor deliver to any potential tender or purchaser designated by Lessor such financial statements as may be reasonably required by such tender or purchaser, inchding but not limited to Lessee's financial statements for the past 3 years. All such financial statements shall be received by Lessor and such render or p sec in coca and s all be uSSSIIIed only for the purposes- herein set forth. 17. Definition of Lessor. The ter "Les s• use ereini II mesh the owner or owhers at the time in question of the fee title to the Premises, or if this Is a sublease, of the Le- see's int re in lh prior t.r`F; In file event of a transfl9r of Lessors title or Interest In the Premises or this INITIALS INITIALS W2001 • AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN- 13 -3110E Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shalt be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding o lye on the r as herein berm 18. Severability. The invalidity of a�ry prov ion of this ease, ;�deterntined by a court of competent Jurisdiction, shall In no way affect the validity of any other provision hereof. 19. Days. Unless otherwise specifi fly indirat d contra aid days - is used in this Lease shall mean and refer to calendar days. 20. Limitation on Liability. The o ligation of L sor unit• this L as shall not constitute personal obligations of Lessor or its partners. members, directors, officers or shareholde , an essee shaloc to the P - i9, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assets far such. satisfaction. • 21. Time of Essence. Time Is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease. 22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is retying solely upon, its own Investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibiely with respect thereto or with respect to any default or broach hereof by either Party. 23. Notices. 23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Malt, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served In a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Prem sea shall constitute Lessee's address for notice. A copy of alt notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from lime to time hereafter designate in wniing. -� 23.2 Date of Notice. Any delivery shown on the receipt card, or if no hours after the same Is addressed as requ courier that guarantees next day delivery transmitted by facsimile transmission or sir oboe se delivery d red beret a malted shall b de m give tit means hall b d fled jiail, return receipt ark thereon If sent b epald, Notices d er delivery of the upon telephone requested, shall be deemed given on the date of regular mail the notice shall be deemed given 72 livered by United States Express Mail or overnight same to the Postal Service or courier, Notices oniirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day. 24. Waivers. (a) No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. (b) The acceptance of Rent by Lessor shall not he a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to In writing by Lessor at or before the time of deposit of such payment. (c) THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE. 25, Disclosures Regarding The Na (a) When enter from the outset understand what type of a INITIALS Into ency a Re Es to Agency Ratio :.is sslon hit a r a estate reta io ship of repre en lion ii 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION AGE 17 OF 22 agent regarding regarding a has with the ager eel estate transaction, a Lessor or Lessee should or agents In the transaction. Lessor and Lessee INITIALS FORM STN-13-3/10E acknowledge being advised by the Brokers in this transaction, as follows: (i) Lessor_ ;Agent, A Lessor's agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor's agent or subagent has the following affirmative obligations: To the Lessor. A fiduciary duty of utmost care, integrity, honesty, and loyally in dealings with the Lessor. To th ee an. . Lessor a. •iligent re temkills and care In performance of the agent's duties. b. A duty of honest and fair dealing nd go' • fai h, a duty to 'I - ose II facts known tot o agent materially affecting the value or desirability of the property that are not Known to, orwi hin the di'• :Matte• Ion a d o• erva on of, the Parties. An agent is not obligated to reveal to either Party any confidential infoanation obtained from I e other P: - ch does of In .lye e a on ve duff ase( faith above. (II) Le; see's nt agent an ague to et as agent for th Lessee only. in these situations, the agent is not the Lessor's agent, even if by agreement t = a., ma race. a c•. pensatlo services rends , either in full or in pan from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. Ta the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor. a. Diligent exercise of reasonable skiffs and care in performance of the agent's duties. b. A duty of honest and fair dealing and good faith, C. A duly to disclose all facts known to the agent materially affecting the value or desirability of the property that we not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above. Oa) Anent Representing Both Lessor enci Usage A real estate agent. either acting directly or through one or more aseodate licenses. can legally be the agent of both the Lessor and the Lessee In a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the fallowing affirmative obligations to both the Lessor and the Lessee: a. A fiduciary duty of utmost care, integrity, honesty and royalty in the dealings with either Lessor or the Lessee. b. Other duties to the Lessor and the Lessee as stated above in subparagraphs (I) or (h). In representing both Lessor and Lessee, the agent may not without the express permission of the respective Party, disclose to the other Party that the Lessor will accept rent in an amount less than that indicated in the listing or that the Lessee is willing to pay a higher rent than that offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully reed all agreements to assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. (b) Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding Involving any breath of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the liabi ty I udin• cot costs an attome s' fees), of any B oker with respect to any such lawsuit andlor legal proceeding shall not exceed the fee receiv d by sue =roker p ratan to Is Le e; provided, hcv ver, that the foregoing limitation on each Brokers liability shall not be applicable to any gross egligenc• o will mace duct f su h Broker (c) Lessor and L ssee agr - identify t Broker as 'Confidential" any $ommunication or Information given Brokers that Is considered by such Party to be eonfidentia 26. No Right To Holdover. Lessee • . o right o reta ' pdsseseion of k Premises or any art thereof beyond the expiration or termination of This Lease. in the event that Lessee holds over, then the Base Rent shall be increased to 150% of the Base Rent applicable immediately preceding the expiration or termination. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee. 27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 28. Covenants and Conditions; Construction of Agreement. All provisions of this Lease to be observed or performed by Lessee are both covenants and conditions. In construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it 29. Binding Effect; Choice of Law. This Lease shag be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated In the county in which the Premises are located. 30. Subordination; Attornment; Non - Disturbance. 30.t Subordination. This Lease and any Option granted hereby hall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, "Security Device" , now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof, Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Le Lender may elect to have this Lease and Lessee, whereupon this Lease and suc INITIALS shall h o liability o- obiigatirnto- perform any mt'd here• uperi I to the lien of its :e deem • for t� such Security -the-obligations of Lessor under this Lease. Any ecunty Device by giving written notice thereof to evice, notwithstanding the relative dates of the INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN - 13.3110E documentation or recordation thereof. 30.2 Adornment. In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Devise to which this Lease is subordinated (i) Lessee shall, subject to the non - disturbance provisions of Paragraph 30.3. attorn to such new owner, and upon requezi enter into . new lease, containing a I of the terms ann>�nrnvlcions of this Lease, with such new owner for the remainder of the term hereof, or, at the electi owner, and (If) Lessor shall thereafter be ri tleved a except that such new owner shall not: (a) be liable fo ownership; (b) be subject to any offsets or defenses month's rent, or (d) be liable for the return o any s 30.3 Non - Disturbance. IA ith Lease tell automatically s he under and such :Qtr lessor or WI ainst any prior les to any . rio lessor which was Devices -njered into by Les come a new lease between Lessee and such new w owner shall assume all of Lessors obligations, respect to events occurring prior to acquisition of or, (c) be bound by prepayment of more than one of paid or credited to such new owner. or after the execution of this Lease, Lessee's subordination of this Lease shall be subject to receiving a commercially reasonable non - disturbance agreement (a "Non- Otsturbance Agreement") from the Lender which Non - Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, Including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and altorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall, If requested by Lessee, use its commercially reasonable efforts to obtain a Non- Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Promises. In the event that Lessor is unable to provide the Non - Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non - Disturbance Agreement. 30.4 Self- Executing. The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however. that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, adornment and/or Non-Disturbance Agreement provided for herein. 31. Attorneys' Fees. If any Party or Broker brings an action or proceeding Involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) In any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding Is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment. or the abandonment by the other Party or Broker of its claim or defense. Tho attorneys' fees award shall not be' to •ufo, act•rdan with a court f e schedule, but s 1 be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessors afi be en to st •rneys' cos and expenses i curred In the preparation and service of notices of Default and consultations In connection the ewith, wit -t - r o of a le • . •n Is try com enced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurren . such sery - - co ultation). 32. Lessors Access; Showing Pre Ism. p -irs. ease and Less•r agents shall hew the tight to enter the Premises at any time, in the case of an emergency, and otherwise at re re.sonable prier Notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there Is no material adverse effect to Lessee's use of the Premises. All such activities shag he without abatement of rent or liability to Lessee. 33. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction. 34, Signs, Lessor may place on the Premises ordinary 'For Sale' signs at any time and ordinary "For Lease" signs during the last 6 months of the term hereof. Except for ordinary "for sublease" signs, Lessee shall not place any sign upon the Premises without Lessor's prior written consent. All signs must comply with all Applicable Requirements. 35. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or ali existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shalt constitute Lessor's election to have such event constitute the termination of such interest. 36. Consents. Except as otherwise provided herein. wherever In this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (Including but not limited to architects', attorneys', engineers' and other consultan s) in In the con 8fderatio'briir'fesponstr d" -a"requesl by Lessee for any Lessor consent, including but not limited to consents to an assign nl, a sub /' ling or h8 prese�ce or use of a Hr zealous Substance, shall be paid by Lessee upon receipt of an invoice and supporting de mentati n there(• . Le so can nt to any act, ssignment or subletting shall not constitute an INITIALS 02001 - AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN-13-3/10E acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessors consent shall not preclude the imposition by Lesser at the time of consent of such further or other conditions as are then reasonable with reference to the particular - matter for . consent is event-that-either Party disagrees with any determination made by the other hereunder and reasonably requls I area ins !or with deist urination, the detefminfng party shall furnish its reasons in writing and in reasonable detail within 10 business days foilowin 37. • Guarantor. 37.1 Execution. The Guarantors, if y, $ . I each cute a u anty in the form t recently published by the AIR Commercial Real Estate Association, and each such Guarant ar sh a - the a bflgations s asses under this ease. 37,2 Default, It shall consb ute a Default of the Lessee If any Guarantor falls or refines, upon request to provide: (a) evidence of the execution of the guaranty, Including the a Monty of the party signing on Guarantor's behalf to obligate Guarantor, and In the case of a corporate Guarantor, a certified copy of a resolution of Its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or(d) written confirmation that the guaranty is still in effect. 38. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's pad to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof 39. Options. If Lessee Is granted an Option, as defined below, then the following provisions shall apply: No Option is being granted. 39.1 Definition. "Option" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has an other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other properly of Lessor, (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor. 39.2 Options Personal To Original Lessee. Any Option granted to Lessee in this Lease Is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, If requested by Lessor, with Lessee certifying that Lessee has no Intention of thereafter assigning or subletting. 39.3 Multiple Options. In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised. 394 Effect of Default on 0 (a) Lessee shall have continuing until said Default is cured, {'u) d during the time Lessee Is in Breach of this the Defaults are cured, during the 12 Mont (b) The period of time on o right to ring the ease, or period xOmists a erred o Optio me a Re ivj the even that - Ada ly pre Ing the which an Oph n ay be axe dud T is • x is g the period comn{encing with the giving of any notice of Default and old wit out reg rd to whether notice thereof Is given Lessee), (lii) has been given 3 r more notices of separate Default, whether or not rase of the Option d shag not be extended or enlarged by reason of Lessee's inability to n exercise an Option because of the provisions of Paragraph 39.4(a). (c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (0 Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessor to give notice thereof), or (ip if Lessee commits a Breach of this Lease. 40. Multiple Buildings. If the Premises are a part of a group of buildings controlled by Lessor Lessee agrees that it will abide by and conform to all reasonable rules and regulations which Lessor may make from time to time for the management, safety, and care of said properties, Including the care and cleanliness of the grounds and including the parking, loading and unloading of vehicles, and to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessee,also agrees to pay its fair share of common expenses incurred in connection with such rules and regulations. 41. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the ads of third parties. 42. Reservations. Lessor reserves to Itself the right, from time to time, to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do not unreasonably Interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effeclua such Basement rights, edlcati 43. Performance Under Protest. If at any e al (llsprl(e shall!sr as any amount or srm of money to be paid by one Party to the other under the provisions hereof, the Party agal st whom 4j obiIg-`)lon lorpay he m ney is asserted s all have the right to make payment "under protest' INITIALS (002001 • AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN•13.3110E and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If It shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not Initiate suit for the recovery of some paid "under protest" with 6 months shall be dee o have ed Its right t•,, otest 44. Authority; Multiple Parties; Exe orlon. (a) If either Part hereto corp alien link • liability comps y, partnership, or similar entity, each individual executing this Lease on behalf of such enti repress ad /warren.. e - - •u y authod ed to execute and deliver this Lease on its behalf. Each Patty shall, within 30 days after reque t, derive to It other P sat • evidence of suet authority. (b) If this Lease sex led m e th n one pe n or entity as 'Less er", each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document. (c) This Lease may be executed by the Parties In counterparts, each of which shall be deemed an original and aU of which together shall constitute one and the same instrument 45. Conflict. Any conflict between the printed provisions of this Lease and typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions. 46. Offer. Preparation of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto. 47. Amendments. This Lease may be modified only in writing, signed by the Parties In interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non - monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises. 48. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR. PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT, 49. Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties andfor Brokers arising out of this Lease ❑ is Q is not attached to this Lease. 50. Americans with Disabilities At Sin core Ian with the ° erica s with Disabilities ct ADA 1 dependent is de upon Lessee's e 'specific use p P of the Premises, Lessor makes -no warran y or rep s rattan to a et or not the Premises amply with ADA or any similar legislation. In the event that Lessee's use of the Premises r res coo I 40 or a• •lion to Ih Premises in aide to be In ADA compliance, Lessee agrees to make any such necessary modifications andfor a LESSOR AND LESSEE BY THE EXECUTION OHFATHIS LEASELS R�THEIIR INH •D AND VoLuNTARYECONSE MTHERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE CF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. ATTENTION. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO: 1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. 2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE ' WARNING' IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED. or INITIALS 02001 • AIR COMMERCIAL REAL ESTATE ASSOCIATION INITIALS FORM STN - 13.3110E The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures. Executed at - Executed at On: On: By LESSOR: CITY OF TUSTIN, a California municio By: Name Printed: Tide: By: Name Printed: Titre: Address: 300 Centennial Way Tustin, CA 92780 Name Printed: Title: By: Name Printed: Title; UNTY COMMUNITY COLLEGE ifornia public agency Address: 28000 Marguerite Parkway Mission Viejo, CA 92692 Attn: Jeffrey Parker, City. Manager Aztn: Debra Fitzsimons, Vice Chancellor of Telephone:() Business Onerations Facsimile:(714) 838 -1.602 Telephone-( ) Email: Facsimile:(949) 347 -2472 Email: Erna: Federal ID No. Email: Federal ID No. i1ROKER: With a copy to: Woodruff, Spredli.n & &ear Attn: David Rendi., Cit Att Tide: Fir Address: 555 Anton Blvd., sur0 Costa Mesa, CA 92626 Telephone:1 ) Facsimite:(714) 558 -7300 Email: son, DeMar tin: Andrew P Federal ID No. 8reker /Agent -DRE License es :o, Tidus s Peckenpaugh rnstein, Esq. ss: 2030 Main Street, Suite 1200 Itv.ne, CA 92514 Telephono:(949) 851 -7446 Fact mils:(949) 752 -0597 Emeltabernstein@jdtnLaw.com Federal ID No. Eroke#Agenl0 - Llsense-4. NOTICE: These forms are often modified to meet changing requirements of taw and Industry needs. Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate Association, 800 W 6th Street, Suite 800, Los Angeles, CA 90017. Telephone No. (213) 687.8777. Fax No.:(211) 887 -8618. INITIALS J Copyright 2001 - By AIR Commercial Real Estate Assocralian. All rights reserved. No part of these works may be reproduced In any farm without permission in writing. INITIALS 02001- AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM STN - 13.3110E EXHIBIT A LEGAL DESCRIPTIONS OF AREA 7 AND AREA 9 1142933.1 LTBKF iKal r,s. 5ul.nns'hLMANIS April 19, 2013 DKr No. 20122006 -13 • Page I oi•2 LEGAL DESCRIPTION OF AREA NO, i Tustin, CA Portion of,lpN 430 -282.1 Real property situated in the City of'rus[in, :County of Orange, Stale of California, described as follows: Being n'punion of I'.ARCEL.W-F4 as said pared is described in Iltat certain doctuncnl entitled "SIIoR -r FORM NOTICE OF LEASE IN FURTHERANCE OF CONVIIYANCR" filed for record on May 14, 2002 in pm No. 20020404590, Reeorils of Orange County, more Particularly describc•ns billows; COMMENCING at the most nurthedy corner of said PARCEL IV-1-4; Thence :tang thenorthcastetly line of said PARCEL IV -1 -4, South 49 °11150" Gast, 3$'1,01 lout;. Thence leaving said nordtcasiery line, Seelli 40"4031.6" West, 325.27 feet try the Slntthwcsterly line of said PARCEL 1V -J-4; Thartc:dont! srid'sputhwcslcrIy line the following three (3) courses: I. North 49019'54 " West, I2_9.9Sleer to the beginning of a tangent cer ve enlea\ C to the nnrthe4a4 having a radius of 3092.59 feet; Along said crve, through n corral angle of 29 S'04 ",:litr an nie leingth of 124.26 feet to the beginning ofa rcveae curve living a radius of 3104.59 feel; 3. Along said reverse curve, through a deturnfangle oi2"18'03 ", for an arc lengdrof 124,tt3 t ;:et; Thence leaving said southwesterly line and racing the northwesterly line ot'said PARCEL IV,J -4 rue following four (4)•etiorscs: I. North 04 °22'13" Wrsr..13.33 feel; 2. North 40'40'0" last, 237,97 feel; 3. North $S °)0'o5" East, 21.21 feet; • 4. North 4090106" I ?:rst, 43.35 fu[ to the POINT or' imorNNINO. raw. .1 dfz. Comninin! an area of 129,g0Isyunit lice or 2.980 aces more or Tess. Being a portion of Assrssur's INncci Number 430 -232 -1 .At shown on "Schelh :Il' I" matched bereft and made t part hereof. For: IiILC Cngineera fly Davis ll2rosh, P.L.S. No. 6S611 License expires: 09-30-2014 Dale: K ?Su12t2NlOra13 AfliPlaud Spa y114.01 A IARLLf iAl .SI AM) EXCIIANCJE 7a00 4- t9•Le:t3 Page 2 of 2 In 4 ft =3100.59' G- r1R'DS' L =124.(13' R =3092.59' 0=2'10'08" Lw124.26' 40'40'06" Y7 (R) 1.1494611)0149Palt c10140 N 40'40'08" C 237.97 N 0422'13' W • 3533' 'NN 40'40'11" E (R) N 85'40'05" E V.21' N 40'40'06" E 43.35' LAND EXCHANGE AREA NO. 7 129,801 sq.(1.t. 2.980 acres± PARCEL IV -J -4 DOC. NO. 20020404590 SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT APN: 430 - 282 -11 5 40'40'06- W 125.27' PROPOSED AREA 10. K: \$L402 \112001 -13 PLATS \LAN SWAP 7.0WG P.O.D. CITY OF TUSTIN APN: 430-282-26 N b r at LEGEND P.O.D, POINT OF DECINNING' PLAT TO ACCOMPANY LEGAL DESCRIPTION tit' 1 Wins wuImam= 600 SOUTH MAIN STREET SUITE 920 ORANGE, CA 92660 714 - 415 -0500 714 -415 -0599 (FAX) Subject SCIIEDULE I LAND EXCHANGE AREA 7 Job No 20122006 -13 ay !i1___ Date 4f19/13 Chkd. S „_ SHEET I OF t .10BRF meet„, ip)IL D PtANbtk% I.EaAl: Dr SCRIN91ON OF AREA NO. 9. 'Testis, CA Minion of APN: '130- 282 -13 April 19,2013 IMF No. 20122006.13 Poet I of 2 Rail property situated in the City of Tustin, County ofOrange, Stmt urCnlifornln, destribet3 as follows: Being all of PARCEL I -E _3 as ,,till parcel Is deseribed in that certain drxument entitled "QUITCLAItrl DEED E AND ENVIRONMENTA). RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471" filed for record on May 14, 2002 In Due. No: 20020404595, Records of Orange County, more purl letdarty described as follows; COMMENCING at the most suothataerly comer or said PARCEL I -E-3; Thence nlung the southeasterly line of said PARCEL 1.63 the roudwin ; ns o (2) courses: I. South 40'40'06" West; 123.89 feat; ?. SnutlrS7 °33'50" Wcs4 36.69 feet to the sendhsvuste:9y link nfsaid PARCEL. 1 -E -3; 'I bunco leaving i.:id wxrthun,ler;y line and .ham. avid southwesterly line the litllawinf eight (:r): courwas; • 1. 2. North 45 10'56" Wed, 9.92 feet In the ItegInniug ol'a tancutt atry . concave northeasterly, having a radius of 143.MIleut; Northcnstedy along szid curve, ihrungh a ce tral:ugh: of 12'4ft' 19 ", for on an: length of 31.99 feet; 3, North 32°2477" West, 28.61 feet to the hegiuuing of a 0mgdnt carve. concave soulhwcsterty, having u Troilus of•f59.5O reel; - Kotthwesterly along said curve, through a central angle 0G 11 °25116 ", for an are length of 31.70 5, North 4:749'53" West, 42.1'1 &a to the beginning of n einge n curve. concave sutalovestel ly; having radius or 1464.04 Net 6. Northwesterly along said cave, through a canral angle or 05'30'1 I•, for an arc length of 140.62 feel; 7, North 49`20'04" West, 1:5.29 feet; S...'Noah 04 °20150" Weat,36.78 Fact to Coe northwesterly lice nl'Haiti PARCEL. 1.12.3; 'fhome leaving said sottl)tenat:dy line mid along saki north tecsterly lice the following three (3) equenes: I. North 40 °3X'29" East, 50.006:6; 7. Sandi 49'21'31 " l last, 12.00 )deb .3, North 40 433"29" East, 41.13 felt to Ore mulhenstetly.11ne of said PARCEL I -E -3; Page I o12 Thence leaving said northwesterly line and nitmit said northeasterly line, South 4'Pl 754" Hass, 333.24 feat In the POINT OF [IHGINNINCi. Coniaininp on area of 43,597 square feel or 1.031 auto. more nr less. Beals a portion orAssessor's Panel Number 430 - 282.13 As shown on "Schedule I" atinched hereto and made a purl hereof. For. B1CF linttincers fly: Davis'lluesh, P.L.S. No. 6$68 Licansn a pires:0'9 -30 -2914 Uaii: - 4 - 1 I:- to II 3 RA.Swt3'.1210a6.1.1 MEP land Smor PtN1VGLNAI \'d, COMMAND t r's'ANia V.do: Page 2 of 2 LB / b L7 -LB L1 R =1494.04' 6= 5'10'11" L =140.82' 13 C2 L2 C1 _I- S 87'33'50' 'N Ll� 38,,E91 SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT za APN: 430- 282 -13 PARCEL 1 -E-3 DOC. NO. 20020404595 14 LAND EXCHANGE AREA NO. 9 �.` 43,597 sq. ft.t 1.001 acres ± LEGEND P 0.0 P.O.P. POINT OF BEGINNING S 4040'064 W 123,89' Lwt+OROS.WG9€ ROM PROPOSED AREA 7 SOUTH 'ORANGE COUNTY COMMUNITY COLLEGE DISTRICT APN: 430- 282 -11 H: \8JR12 \I2200 -13 (PLATS \LAND SWAP 9.0WC CITY OF TUSTIN APN: 430 -282-26 CURVE TABLE CURVE RADIUS DELTA LENGTH Cl 143.50' 12'48.10" 31 $9' C2 • 150.50' 11.2510•' 31.79' UNE TABLE LINE BEARING LENGTH L1 N 4510'56" VI 9,82' 1.2 N 52'24'37' W 78,81' 13 N 43'49'53m V1 42,11' L4 N 49'20'04" W 15,29' 15 t1S4'Q150' W 36.7W LB N 40'38;49" E 5Q.00' L7 5 49'21.31" E 12_00' LB H 40'38'29" E 41,11 I PLAT TO ACCOMPANY LEGAL DESCRIPTION s�BkF AIMS IMAMS COO SOUTH MAIN STREET SUITE 020 ORANGE, CA 9286B 714- 415 -0500 714 -415 -0599 (FAX) Subject SCHEDULE I LAND EXCHANGE AREL9 Job No 20122008 -13 By E Date 4/19113 Chkd YJS-1 SHEET 1 OF I