**Exhibit10.2**

** **

**LEASE**

**(Multi-Tenant;Net; ”AS IS”)**

 

 

**BETWEEN**

 

 

**THEIRVINE COMPANY**

 

 

**AND**

 

 

**4-D NEUROIMAGING**

 

----

 

**INDEXTO LEASE**

 
| ARTICLE I.   BASIC LEASE PROVISIONS                            |
|---------------------------------------------------------------------|
|                                                                |
| ARTICLE II.  PREMISES                                          |
| **SECTION 2.1.**                                                    |   | **LEASED PREMISES** |
| **SECTION 2.2.**                                                    |   | **ACCEPTANCE OF PREMISES** |
| **SECTION 2.3.**                                                    |   | **BUILDING NAME AND ADDRESS** |
|                                                                |   |   |
| ARTICLE III.  TERM                                             |
| **SECTION 3.1.**                                                    |   | **GENERAL** |
| **SECTION 3.2.**                                                    |   | **RIGHT TO EXTEND THIS LEASE** |
|                                                                |   |   |
| ARTICLE IV.  RENT AND OPERATING EXPENSES                       |
| **SECTION 4.1.**                                                    |   | **BASIC RENT** |
| **SECTION 4.2.**                                                    |   | **OPERATING EXPENSES** |
| **SECTION 4.3.**                                                    |   | **SECURITY DEPOSIT** |
|                                                                |   |   |
| ARTICLE  V.  USES                                              |
| **SECTION 5.1.**                                                    |   | **USE** |
| **SECTION 5.2.**                                                    |   | **SIGNS** |
| **SECTION 5.3.**                                                    |   | **HAZARDOUS MATERIALS** |
|                                                                |   |   |
| ARTICLE VI.  COMMON AREAS; SERVICES                            |
| **SECTION 6.1.**                                                    |   | **UTILITIES AND SERVICES** |
| **SECTION 6.2.**                                                    |   | **OPERATION AND MAINTENANCE OF COMMON AREAS** |
| **SECTION 6.3.**                                                    |   | **USE OF COMMON AREAS** |
| **SECTION 6.4.**                                                    |   | **PARKING** |
| **SECTION 6.5.**                                                    |   | **CHANGES AND ADDITIONS BY LANDLORD** |
|                                                                |   |   |
| ARTICLE VII.  MAINTAINING THE PREMISES                         |
| **SECTION 7.1.**                                                    |   | **TENANT’S MAINTENANCE AND REPAIR** |
| **SECTION 7.2.**                                                    |   | **LANDLORD’S MAINTENANCE AND REPAIR** |
| **SECTION 7.3.**                                                    |   | **ALTERATIONS** |
| **SECTION 7.4.**                                                    |   | **MECHANIC’S LIENS** |
| **SECTION 7.5.**                                                    |   | **ENTRY AND INSPECTION** |
|                                                                |   |   |
| ARTICLE VIII.  TAXES AND ASSESSMENTS ON TENANT’S PROPERTY |
|                                                                |
| ARTICLE IX.  ASSIGNMENT AND SUBLETTING                         |
| **SECTION 9.1.**                                                    |   | **RIGHTS OF PARTIES** |
| **SECTION 9.2.**                                                    |   | **EFFECT OF TRANSFER** |
| **SECTION 9.3.**                                                    |   | **SUBLEASE REQUIREMENTS** |
| **SECTION 9.4.**                                                    |   | **CERTAIN TRANSFERS** |
|                                                                |   |   |
| ARTICLE X.   INSURANCE AND INDEMNITY                           |
| **SECTION 10.1.**                                                   |   | **TENANT’S INSURANCE** |
| **SECTION 10.2.**                                                   |   | **LANDLORD’S INSURANCE** |
| **SECTION 10.3.**                                                   |   | **TENANT’S INDEMNITY** |
| **SECTION 10.4.**                                                   |   | **LANDLORD’S NONLIABILITY** |
| **SECTION 10.5.**                                                   |   | **WAIVER OF SUBROGATION** |
|                                                                |   |   |
| ARTICLE XI.  DAMAGE OR DESTRUCTION                             |
| **SECTION 11.1.**                                                   |   | **RESTORATION** |
| **SECTION 11.2.**                                                   |   | **LEASE GOVERNS** |
|                                                                |   |   |
| ARTICLE XII.  EMINENT DOMAIN                                   |
| **SECTION 12.1.**                                                   |   | **TOTAL OR PARTIAL TAKING** |
| **SECTION 12.2.**                                                   |   | **TEMPORARY TAKING** |
| **SECTION 12.3.**                                                   |   | **TAKING OF PARKING AREA** |
|                                                                |   |   |
| ARTICLE XIII.  SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS |
| **SECTION 13.1.**                                                   |   | **SUBORDINATION** |
| **SECTION 13.2.**                                                   |   | **ESTOPPEL CERTIFICATE** |
| **SECTION 13.3.**                                                   |   | **FINANCIALS** |
|                                                                |   |   |
| ARTICLE XIV.  EVENTS OF DEFAULT AND REMEDIES                   |
| **SECTION 14.1.**                                                   |   | **TENANT’S DEFAULTS** |
| **SECTION 14.2.**                                                   |   | **LANDLORD’S REMEDIES** |
| **SECTION 14.3.**                                                   |   | **LATE PAYMENTS** |
| **SECTION 14.4.**                                                   |   | **RIGHT OF LANDLORD TO PERFORM** |
| **SECTION 14.5.**                                                   |   | **DEFAULT BY LANDLORD** |
| **SECTION 14.6.**                                                   |   | **EXPENSES AND LEGAL FEES** |

 

----

 
| **SECTION 14.7.**                                       |   | **WAIVER OF JURY TRIAL**                                            |
|---------------------------------------------------------|--------|---------------------------------------------------------------------|
| **SECTION 14.8.**                                       |   | **SATISFACTION OF JUDGMENT**                                        |
| **SECTION 14.9.**                                       |   | **LIMITATION OF ACTIONS AGAINST LANDLORD**                          |
|                                                    |   |                                                                |
| ARTICLE XV.  END OF TERM                           |
| **SECTION 15.1.**                                       |   | **HOLDING OVER**                                                    |
| **SECTION 15.2.**                                       |   | **MERGER ON TERMINATION**                                           |
| **SECTION 15.3.**                                       |   | **SURRENDER OF PREMISES; REMOVAL OF PROPERTY**                      |
|                                                    |   |                                                                |
| ARTICLE XVI.  PAYMENTS AND NOTICES                 |
|                                                    |
| ARTICLE XVII.  RULES AND REGULATIONS               |
|                                                    |
| ARTICLE XVIII.  BROKER’S COMMISSION           |
|                                                    |
| ARTICLE XIX.  TRANSFER OF LANDLORD’S INTEREST |
|                                                    |
| ARTICLE XX.  INTERPRETATION                        |
| **SECTION 20.1.**                                       |   | **GENDER AND NUMBER**                                               |
| **SECTION 20.2.**                                       |   | **HEADINGS**                                                        |
| **SECTION 20.3.**                                       |   | **JOINT AND SEVERAL LIABILITY**                                     |
| **SECTION 20.4.**                                       |   | **SUCCESSORS**                                                      |
| **SECTION 20.5.**                                       |   | **TIME OF ESSENCE**                                                 |
| **SECTION 20.6.**                                       |   | **CONTROLLING LAW/VENUE**                                           |
| **SECTION 20.7.**                                       |   | **SEVERABILITY**                                                    |
| **SECTION 20.8.**                                       |   | **WAIVER AND CUMULATIVE REMEDIES**                                  |
| **SECTION 20.9.**                                       |   | **INABILITY TO PERFORM**                                            |
| **SECTION  20.10.**                                     |   | **ENTIRE AGREEMENT**                                                |
| **SECTION 20.11.**                                      |   | **QUIET ENJOYMENT**                                                 |
| **SECTION 20.12.**                                      |   | **SURVIVAL**                                                        |
| **SECTION 20.13.**                                      |   | **INTERPRETATION**                                                  |
|                                                    |   |                                                                |
| ARTICLE XXI.  EXECUTION AND RECORDING              |
| **SECTION 21.1.**                                       |   | **COUNTERPARTS**                                                    |
| **SECTION 21.2.**                                       |   | **CORPORATE, LIMITED LIABILITY COMPANY AND  PARTNERSHIP AUTHORITY** |
| **SECTION 21.3.**                                       |   | **EXECUTION OF LEASE; NO OPTION OR OFFER**                          |
| **SECTION 21.4.**                                       |   | **RECORDING**                                                       |
| **SECTION 21.5.**                                       |   | **AMENDMENTS**                                                      |
| **SECTION 21.6.**                                       |   | **EXECUTED COPY**                                                   |
| **SECTION 21.7.**                                       |   | **ATTACHMENTS**                                                     |
|                                                    |   |                                                                |
| ARTICLE XXII.  MISCELLANEOUS                       |
| **SECTION 22.1.**                                       |   | **NONDISCLOSURE OF LEASE TERMS**                                    |
| **SECTION 22.2.**                                       |   | **GUARANTY**                                                        |
| **SECTION 22.3.**                                       |   | **CHANGES REQUESTED BY LENDER**                                     |
| **SECTION 22.4.**                                       |   | **MORTGAGEE PROTECTION**                                            |
| **SECTION 22.5.**                                       |   | **COVENANTS AND CONDITIONS**                                        |
| **SECTION 22.6.**                                       |   | **SECURITY MEASURES**                                               |
| **SECTION 22.7.**                                       |   | **EXPIRATION OF EXISTING LEASE**                                    |

 

 
| **EXHIBITS**  |                             |
|---------------|----------------------------------|
| **Exhibit A** | **Description of  Premises**     |
| **Exhibit B** | **Environmental Questionnaire**  |
| **Exhibit C** | **Landlord’s  Disclosures** |
| **Exhibit D** | **Insurance  Requirements**      |
| **Exhibit E** | **Rules and  Regulations**       |
| **Exhibit Y** | **Project Site Plan**            |

 

----

 

**LEASE**

**(Multi-Tenant;Net; As Is)**

 

THIS LEASE ismade as of the 18th day of February, 2003, by and between THE IRVINECOMPANY, a Delaware corporation hereafter called “**Landlord**,” and 4-DNEUROIMAGING, a California corporation, hereinafter called “**Tenant**.”

# ** **

# **ARTICLE I.  BASIC LEASE PROVISIONS**

 

Each referencein this Lease to the “**Basic Lease Provisions**” shall mean andrefer to the following collective terms, the application of which shall begoverned by the provisions in the remaining Articles of this Lease.

 

1.                                       Premises: Suite No. N/A (the Premises are more particularly described inSection 2.1).

 

Address ofBuilding:  9727 Pacific HeightsBoulevard, San Diego, CA

 

2.                                       ProjectDescription (if applicable): Cornerstone Corporate Center

 

3.                                       Use ofPremises:  General office, research anddevelopment and light manufacturing.

 

4.                                       CommencementDate:  March 1, 2003

 

5.                                       ExpirationDate:  February 29, 2008

 

6.                                       Basic Rent:Twenty Seven Thousand Six Hundred Sixty-Six Dollars ($27,666.00) per month,based on $.60 per rentable square foot.

 

Basic Rent is subject to adjustment as follows:

 

Commencing March 1, 2004, the Basic Rent shall be Thirty Four ThousandFive Hundred Eighty-Three Dollars ($34,583.00) per month, based on $.75 perrentable square foot.

 

Commencing March 1, 2005, the Basic Rent shall be Forty Eight ThousandEight Hundred Seventy-Seven Dollars ($48,877.00) per month, based on $1.06 perrentable square foot.

 

Commencing March 1, 2006, the Basic Rent shall be Fifty Thousand TwoHundred Sixty Dollars ($50,260.00) per month, based on $1.09 per rentablesquare foot.

 

Commencing March 1, 2007, the Basic Rent shall be Fifty Two ThousandOne Hundred Four Dollars ($52,104.00) per month, based on $1.13 per rentablesquare foot.

 

7.                                       Guarantor(s):   None

 

8.                                       FloorArea:  Approximately 46,110 rentablesquare feet

 

9.                                       SecurityDeposit:  $57,314.00

 

10.                                 Broker(s):   None

 

11.                                 AdditionalInsureds:  Insignia/ESG, Inc.

 

12.                                 Addressfor Payments and Notices:

 
| **LANDLORD**                                                                                                                                                              |   | **TENANT**                                                                  |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-----------------------------------------------------------------------------|
|                                                                                                                                                                      |   |                                                                        |
| THE IRVINE COMPANY  c/o Insignia/ESG, Inc.  3655 Nobel Drive, Suite 510  San Diego, CA  92122                                                                        |   | 4-D NEUROIMAGING  9727 Pacific Heights Boulevard  San Diego, CA  92121 |
|                                                                                                                                                                      |   |                                                                        |
| with a copy of notices to:                                                                                                                                                |   |                                                                        |
|                                                                                                                                                                      |   |                                                                        |
| THE IRVINE COMPANY  dba Office Properties  8105 Irvine Center Drive, Suite 300  Irvine, CA  92618  Attn:  Senior Vice President,  Operations  Office Properties |   |                                                                        |

 

13.                                 Tenant’s LiabilityInsurance Requirement:  $2,000,000.00

 

14.                                 Vehicle ParkingSpaces:  One hundred fifty-seven (157)

 

1

----

 

# **ARTICLE II. PREMISES**

** **

**SECTION 2.1****.**                  **LEASEDPREMISES**.  Landlord leases toTenant and Tenant leases from Landlord the premises shown in Exhibit A(the “**Premises**”),containing approximately the rentable square footage set forth as the “**Floor Area**”****inItem 8 of the Basic Lease Provisions and known by the suite number identifiedin Item 1 of the Basic Lease Provisions. The Premises are located in the building identified in Item 1 of theBasic Lease Provisions (the Premises together with such building and theunderlying real property, are called the “**Building**”), and is a portion of the projectidentified in Item 2 of the Basic Lease Provisions and shown in Exhibit Y,if any (the “**Project**”).  If theProject is not already completed, Landlord makes no representation that theProject, if any, as shown on Exhibit Y, (a) will be completed or thatit will be constructed as shown on Exhibit Y without change, or(b) to the extent the Project is constructed, it will not be changed fromthe Project as shown on Exhibit Y. All references to “Floor Area” in this Lease shall mean the rentablesquare footage set forth in Item 8 of the Basic Lease Provisions.  The rentable square footage set forth inItem 8 may include or have been adjusted by various factors, including,without limitation, a load factor to allocate a proportionate share of anyvertical penetrations, stairwells, common lobby or common features or areas ofthe Building.  Tenant agrees that theFloor Area set forth in Item 8 shall be binding on Landlord and Tenant forpurposes of this Lease regardless of whether any future or differingmeasurements of the Premises or the Building are consistent or inconsistentwith the Floor Area set forth in Item 8.

 

**SECTION 2.2****.**                  **ACCEPTANCEOF PREMISES**.  Tenantacknowledges that neither Landlord nor any representative of Landlord has madeany representation or warranty with respect to the Premises, the Building orthe Project or their respective suitability or fitness for any purpose,including without limitation any representations or warranties regarding thecompliance of Tenant’s use of the Premises with the applicable zoning orregarding any other land use matters, and Tenant shall be solely responsible asto such matters.  Further, neitherLandlord nor any representative of Landlord has made any representations orwarranties regarding (i) what other tenants or uses may be permitted orintended in the Building or the Project, (ii) any exclusivity of use byTenant with respect to its permitted use of the Premises as set forth inItem 3 of the Basic Lease Provisions, or (iii) any construction ofportions of the Project not yet completed. Tenant further acknowledges that neither Landlord nor any representativeof Landlord has agreed to undertake any alterations or additions or constructany improvements to the Premises. Tenant is currently in possession of the Premises pursuant to the“Existing Lease” (as hereinafter defined), and Tenant’s lease of the Premisesshall be on an “as is” basis.  As of theCommencement Date, Tenant shall be conclusively deemed to have accepted thePremises and those portions of the Building and Project in which Tenant has anyrights under this Lease, which acceptance shall mean that it is conclusivelyestablished that the Premises and those portions of the Building and Project inwhich Tenant has any rights under this Lease were in satisfactory condition andin conformity with the provisions of this Lease.

 

**SECTION 2.3****.**                  **BUILDINGNAME AND ADDRESS**.  Tenantshall not utilize any name selected by Landlord from time to time for theBuilding and/or the Project as any part of Tenant’s corporate or tradename.  Landlord shall have the right tochange the name, address, number or designation of the Building or Projectwithout liability to Tenant.

 

# **ARTICLE III.  TERM**

# ** **

**SECTION 3.1****.**                  **GENERAL**.  Subject to the provisions ofSection 3.2 below, the term of this Lease (“**Term**”) shall commence on thedate set forth in Item 4 of the Basic Lease Provisions (the “**CommencementDate**”), and shall expire on the date set forth in Item 5 of theBasic Lease Provisions (the “**Expiration Date**”).

 

**SECTION 3.2****.**                  **RIGHT TOEXTEND THIS LEASE. **Providedthat no Event of Default has occurred under any provision of this Lease, eitherat the time of exercise of the extension right granted herein or at the time ofthe commencement of such extension, and provided further that Tenant isoccupying the entire Premises and has not assigned or sublet any of itsinterest in this Lease, then Tenant may extend the Term of this Lease for one(1) period of sixty (60) months.  Tenantshall exercise its right to extend the Term by and only by delivering toLandlord, not less than nine (9) months or more than twelve (12) months priorto the expiration date of the Term, Tenant’s irrevocable written notice of itscommitment to extend (the “**Commitment Notice”**).  The Basic Rent payable under the Leaseduring any extension of the Term shall be determined as provided in the followingprovisions.

 

If Landlord and Tenant have not by then been able to agree upon theBasic Rent for the extension of the Term, then within one hundred twenty (120)and ninety (90) days prior to the expiration date of the Term, Landlord shallnotify Tenant in writing of the Basic Rent that would reflect the prevailingmarket rental rate for a 60-month renewal of comparable space in the Project(together with any increases thereof during the extension period) as of thecommencement of the extension period (“**Landlord’s Determination”**).  Should Tenant disagree with the Landlord’sDetermination, then Tenant shall, not later than twenty (20) days thereafter,notify Landlord in writing of Tenant’s determination of those rental terms (“**Tenant’sDetermination**”).   In noevent, however, shall Landlord’s Determination or Tenant’s Determination beless than the Basic Rent payable by Tenant during the final month of theinitial Term.  Within ten (10) daysfollowing delivery of the Tenant’s Determination, the parties shall attempt toagree on an appraiser to determine the fair market rental.  If the parties are unable to agree in thattime, then each party shall designate an appraiser within ten (10) daysthereafter.  Should either party fail toso designate an appraiser within that time, then the appraiser designated bythe other party shall determine the fair market rental.  Should each of the parties timely designatean appraiser, then the two appraisers so designated shall appoint a thirdappraiser who shall, acting alone, determine the fair market rental for thePremises.  Any appraiser designatedhereunder shall have an MAI certification with not less than five (5) yearsexperience in the valuation of commercial industrial buildings in the vicinityof the Project.

 

Within thirty (30) days following the selection of the appraiser andsuch appraiser’s receipt of the Landlord’s Determination and the Tenant’sDetermination, the appraiser shall determine whether the rental rate

 

2

----

 

determined by Landlord or byTenant more accurately reflects the fair market rental rate for the 60-monthrenewal of the Lease for the Premises, as reasonably extrapolated to thecommencement of the extension period. Accordingly, either the Landlord’s Determination or the Tenant’sDetermination shall be selected by the appraiser as the fair market rental ratefor the extension period.   In makingsuch determination, the appraiser shall consider rental comparables for theProject (provided that if there are an insufficient number of comparableswithin the project, the appraiser shall consider rental comparables forsimilarly improved space within the vicinity of the Project with appropriateadjustment for location and quality of project), but the appraiser shall notattribute any factor for market tenant improvement allowances or brokeragecommissions in making its determination of the fair market rental rate.  At any time before the decision of theappraiser is rendered, either party may, by written notice to the other party,accept the rental terms submitted by the other party, in which event such termsshall be deemed adopted as the agreed fair market rental.  The fees of the appraiser(s) shall be borneentirely by the party whose determination of the fair market rental rate wasnot accepted by the appraiser.

 

Within twenty (20) days after the determination of the fair marketrental, Landlord shall prepare an appropriate amendment to this Lease for theextension period, and Tenant shall execute and return same to Landlord withintwenty (20) days.  Should the fairmarket rental not be established by the commencement of the extension period,then Tenant shall continue paying rent at the rate in effect during the lastmonth of the initial Term, and a lump sum adjustment shall be made promptlyupon the determination of such new rental.

 

If Tenant fails to timely comply with any of the provisions of thisparagraph, Tenant’s right to extend the Term shall be extinguished and theLease shall automatically terminate as of the expiration date of the Term,without any extension and without any liability to Landlord.  Any attempt to assign or transfer any rightor interest created by this paragraph shall be void from its inception.  Tenant shall have no other right to extendthe Term beyond the single sixty (60) month extension period created by thisparagraph.  Unless agreed to in awriting signed by Landlord and Tenant, any extension of the Term, whethercreated by an amendment to this Lease or by a holdover of the Premises byTenant, or otherwise, shall be deemed a part of, and not in addition to, anyduly exercised extension period permitted by this paragraph.

 

# **ARTICLE IV.  RENT AND OPERATING EXPENSES**

** **

**SECTION 4.1****.**                  **BASIC RENT.**  From and after the Commencement Date, Tenantshall pay to Landlord without deduction or offset, the rental amount for thePremises shown in Item 6 of the Basic Lease Provisions (the “**Basic Rent**”),including subsequent adjustments, if any. If adjustments to Basic Rent in Item 6 are to occur on the monthlyanniversary of the Commencement Date, then such adjustments shall be deemed tooccur on the specified monthly anniversary of the Commencement Date, whether ornot the Commencement Date occurs at the end of a calendar month.  The rent shall be due and payable in advancecommencing on the Commencement Date (as prorated for any partial month) andcontinuing thereafter on the first day of each successive calendar month of theTerm.  No demand, notice or invoiceshall be required for the payment of Basic Rent.

### ** **

### **SECTION 4.2**.                  OPERATINGEXPENSES.

### ** **

(a)                                  Tenantshall pay to Landlord, as additional rent, Tenant’s Share of all OperatingExpenses, as defined in Section 4.2(f), incurred by Landlord in the operationof the Building and the Project.  The term“**Tenant’sShare**” means that portion of any Operating Expenses determined bymultiplying the cost of such item by a fraction, the numerator of which is theFloor Area and the denominator of which is the total rentable square footage,as determined from time to time by Landlord, of (i) the Building, for expensesdetermined by Landlord to benefit or relate substantially to the Buildingrather than the entire Project, (ii) all of the buildings in the Project, asdetermined by Landlord, for expenses determined by Landlord to benefit orrelate substantially to the entire Project rather than any specific building or(iii) all or some of the buildings within the Project as well as all or aportion of other property owned by Landlord and/or its affiliates, for expenseswhich benefit or relate to such buildings within the Project and such otherreal property.  In the event thatLandlord determines in its sole and absolute discretion that any premiseswithin the Building or any building within the Project or any portion of abuilding or project within a larger area incurs a non-proportional benefit fromany expense, or is the non-proportional cause of any such expense, Landlordmay, allocate a greater percentage of such Operating Expense to such premises,building or project, as applicable.  Thefull amount of any management fee payable by Landlord for the management ofTenant’s Premises that is calculated as a percentage of the rent payable byTenant shall be paid in full by Tenant as additional rent.

 

(b)                                 Priorto the start of each full Expense Recovery Period (as defined in this Section4.2), Landlord shall give Tenant a written estimate of the amount of Tenant’sShare of Operating Expenses for the applicable Expense Recovery Period.  Failure to provide such estimate shall notrelieve Tenant from its obligation to pay Tenant’s Share of Operating Expensesor estimated amounts thereof, if and when Landlord provides such estimate orfinal payment amount.  Tenant shall paythe estimated amounts to Landlord in equal monthly installments, in advanceconcurrently with payments of Basic Rent. If Landlord has not furnished its written estimate for any ExpenseRecovery Period by the time set forth above, Tenant shall continue to pay monthlythe estimated Tenant’s Share of Operating Expenses in effect during the priorExpense Recovery Period; provided that when the new estimate is delivered toTenant, Tenant shall, at the next monthly payment date, pay any accruedestimated Tenant’s Share of Operating Expenses based upon the newestimate.  For purposes hereof, “**ExpenseRecovery Period**” shall mean every twelve month period during theTerm (or portion thereof for the first and last lease years) commencingJuly 1 and ending June 30, provided that Landlord shall have theright to change the date on which an Expense Recovery Period commences in whichevent appropriate reasonable adjustments shall be made to Tenant’s Share ofOperating Expenses so that the amount payable by Tenant shall not materiallyvary as a result of such change.

 

3

----

 

(c)                                  Withinone hundred twenty (120) days after the end of each Expense Recovery Period,Landlord shall furnish to Tenant a statement showing in reasonable detail theactual or prorated Tenant’s Share of Operating Expenses incurred by Landlordduring the period, and the parties shall within thirty (30) days thereaftermake any payment or allowance necessary to adjust Tenant’s estimated paymentsof Tenant’s Share of Operating Expenses, if any, to the actual Tenant’s Shareof Operating Expenses as shown by the annual statement.  Any delay or failure by Landlord indelivering any statement hereunder shall not constitute a waiver of Landlord’sright to require Tenant to pay Tenant’s Share of Operating Expenses pursuanthereto.  Any amount due Tenant shall becredited against installments next coming due under this Section 4.2, and anydeficiency shall be paid by Tenant together with the next installment.  Should Tenant fail to object in writing toLandlord’s determination of Tenant’s Share of Operating Expenses, or fail togive written notice of its intent to audit Landlord’s Operating Expensespursuant to the provisions of the next succeeding paragraph, within sixty (60)days following delivery of Landlord’s expense statement, Landlord’sdetermination of Tenant’s Share of Operating Expenses for the applicableExpense Recovery Period shall be conclusive and binding on the parties for allpurposes and any future claims to the contrary shall be barred.

 

Provided no Eventof Default has occurred, Tenant shall have the right to cause a certifiedpublic accountant, engaged on a non-contingency fee basis, to audit OperatingExpenses by inspecting Landlord’s general ledger of expenses not more than onceduring any Expense Recovery Period. However, to the extent that insurance premiums or any other component ofOperating Expenses is determined by Landlord on the basis of an internalallocation of costs utilizing information Landlord in good faith deemsproprietary, such expense component shall not be subject to audit so long as itdoes not exceed the amount per square foot typically imposed by landlords ofother first class business parks in San Diego County, California.  Tenant shall give notice to Landlord ofTenant’s intent to audit within sixty (60) days after Tenant’s receipt ofLandlord’s expense statement which sets forth Tenant’s Share of Landlord’sactual Operating Expenses.  Such auditshall be conducted at a mutually agreeable time during normal business hours atthe office of Landlord or its management agent where such accounts aremaintained.  If Tenant’s auditdetermines that actual Operating Expenses have been overstated by more thanfive percent (5%), then subject to Landlord’s right to review and/or contest theaudit results, Landlord shall reimburse Tenant for the reasonable out-of-pocketcosts of such audit.  Tenant’s rentshall be appropriately adjusted to reflect any overstatement in OperatingExpenses.  In the event of a disputebetween Landlord and Tenant regarding such audit, such dispute shall besubmitted and resolved by binding arbitration pursuant to Section 22.7below.  All of the information obtainedby Tenant and/or its auditor in connection with such audit, as well as anycompromise, settlement, or adjustment reached between Landlord and Tenant as aresult thereof, shall be held in strict confidence and, except as may berequired pursuant to litigation, shall not be disclosed to any third party,directly or indirectly, by Tenant or its auditor or any of their officers,agents or employees.  Landlord mayrequire Tenant’s auditor to execute a separate confidentiality agreementaffirming the foregoing as a condition precedent to any audit.  In the event of a violation of thisconfidentiality covenant in connection with any audit, then in addition to anyother legal or equitable remedy available to Landlord, Tenant shall forfeit itsright to any reconciliation or cost reimbursement payment from Landlord due tosaid audit (and any such payment theretofore made by Landlord shall be promptlyreturned by Tenant), and Tenant shall have no further audit rights under thisLease.  Notwithstanding the foregoing,Tenant shall have no right of audit with respect to any Expense Recovery Periodunless the total Operating Expenses per square foot for such Expense RecoveryPeriod, as set forth in Landlord’s annual expense reconciliation, exceed thetotal Operating Expenses per square foot during the initial Expense RecoveryPeriod during the Term, as increased by the percentage change in the UnitedStates Department of Labor, Bureau of Labor Statistics, Consumer Price Indexfor all Urban Consumers, Los Angeles — Riverside — Orange County Area Average,all items (1982-84 = 100) (the “Index”), which change in the Index shall bemeasured by comparing the Index published for January of the initial ExpenseRecovery Period during the Term with the Index published for January of theapplicable Expense Recovery Period.

 

(d)                                 Eventhough this Lease has terminated and the Tenant has vacated the Premises, whenthe final determination is made of Tenant’s Share of Operating Expenses for theExpense Recovery Period in which this Lease terminates, Tenant shall withinthirty (30) days of written notice pay the entire increase over the estimatedTenant’s Share of Operating Expenses already paid.  Conversely, any overpayment by Tenant shall be rebated byLandlord to Tenant not later than thirty (30) days after such finaldetermination..

 

(e)                                  If,at any time during any Expense Recovery Period, any one or more of theOperating Expenses are increased to a rate(s) or amount(s) in excess of therate(s) or amount(s) used in calculating the estimated Tenant’s Share ofOperating Expenses for the year, then the estimate of Tenant’s Share ofOperating Expenses may be increased by written notice from Landlord for themonth in which such rate(s) or amount(s) becomes effective and for allsucceeding months by an amount equal to Tenant’s Share of the increase.  If Landlord gives Tenant written notice ofthe amount or estimated amount of the increase, the month in which the increasewill or has become effective, then Tenant shall pay the increase to Landlord asa part of Tenant’s monthly payments of the estimated Tenant’s Share ofOperating Expenses as provided in Section 4.2(b), commencing with themonth following Tenant’s receipt of Landlord’s notice.  In addition, Tenant shall pay upon writtenrequest any such increases which were incurred prior to the Tenant commencingto pay such monthly increase.

 

(f)                                    Theterm “**OperatingExpenses**” shall mean and include all Project Costs, as defined insubsection (g), and Property Taxes, as defined in subsection (h).

 

(g)                                 Theterm “**ProjectCosts**” shall include all expenses of operation, repair andmaintenance of the Building and the Project, including without limitation allappurtenant Common Areas (as defined in Section 6.2), and shall include thefollowing charges by way of illustration but not limitation:  water and sewer charges; insurance premiumsand deductibles and/or reasonable premium and deductible equivalents shouldLandlord elect to self-insure all or any portion of any risk that Landlord isauthorized to insure hereunder; license, permit, and inspection fees; light;power; window washing; trash pickup; janitorial services to any interior CommonAreas;

 

4

----

 

heating, ventilating and airconditioning; supplies; materials; equipment; tools; the cost of anyenvironmental, insurance, tax or other consultant utilized by Landlord inconnection with the Building and/or Project; establishment of reasonablereserves for replacements and/or repairs; costs incurred in connection withcompliance with any laws or changes in laws applicable to the Building or theProject; the cost of any capital investments or replacements (other than tenantimprovements for specific tenants) to the extent of the amortized amountthereof over the useful life of such capital investments or replacementscalculated at a market cost of funds, all as determined by Landlord, for eachsuch year of useful life during the Term; costs associated with the maintenanceof an air conditioning, heating and ventilation service agreement, andmaintenance of an intrabuilding network cable service agreement for any intrabuildingnetwork cable telecommunications lines within the Project, and any otherinstallation, maintenance, repair and replacement costs associated with suchlines; capital costs associated with a requirement related to demands onutilities by Project tenants, including without limitation the cost to obtainadditional phone connections; labor; reasonably allocated wages and salaries,fringe benefits, and payroll taxes for administrative and other personneldirectly applicable to the Building and/or Project, including both Landlord’spersonnel and outside personnel; reasonable charges for the accelerateddepreciation of the HVAC equipment serving the Building in connection withTenant’s “after-hours” HVAC usage (that is, after 7:00 A.M. to 6 P.M. Monday throughFriday and 9:00 A.M. to 1 P.M. on Saturdays); any expense incurred pursuant toSections 6.1, 6.2, 6.4, 7.2, and 10.2; and a reasonable overhead/management feefor the professional operation of the Project. It is understood and agreed that Project Costs may include competitivecharges for direct services provided by any subsidiary, division or affiliateof Landlord.

 

(h)                                 Theterm “**PropertyTaxes**” as used herein shall include any form of federal, state,county or local government or municipal taxes, fees, charges or otherimpositions of every kind (whether general, special, ordinary or extraordinary)related to the ownership, leasing or operation of the Premises, Building orProject, including without limitation, the following:  (i) all real estate taxes or personal property taxes, as suchproperty taxes may be reassessed from time to time; and (ii) other taxes,charges and assessments which are levied with respect to this Lease or to theBuilding and/or the Project, and any improvements, fixtures and equipment andother property of Landlord located in the Building and/or the Project, (iii)all assessments and fees for public improvements, services, and facilities andimpacts thereon, including without limitation arising out of any CommunityFacilities Districts, “Mello Roos” districts, similar assessment districts, andany traffic impact mitigation assessments or fees; (iv) any tax, surchargeor assessment which shall be levied in addition to or in lieu of real estate orpersonal property taxes, other than taxes covered by Article VIII; and (v)taxes based on the receipt of rent (including gross receipts or sales taxesapplicable to the receipt of rent), and (vi) costs and expenses incurred incontesting the amount or validity of any Property Tax by appropriateproceedings.  Notwithstanding theforegoing, general net income or franchise taxes imposed against Landlord shallbe excluded.

 

**SECTION 4.3****.**                  **SECURITYDEPOSIT.**  Concurrently withTenant’s delivery of this Lease, Tenant shall deposit with Landlord the sum, ifany, stated in Item 9 of the Basic Lease Provisions, to be held by Landlord assecurity for the full and faithful performance of all of Tenant’s obligationsunder this Lease (the “**Security Deposit**”). Landlord shall not berequired to keep this Security Deposit separate from its general funds, andTenant shall not be entitled to interest on the Security Deposit.  Subject to the last sentence of thisSection, the Security Deposit shall be understood and agreed to be the propertyof Landlord upon Landlord’s receipt thereof, and may be utilized by Landlord inits sole and absolute discretion towards the payment of all expenses byLandlord for which Tenant would be required to reimburse Landlord under thisLease, including without limitation brokerage commissions and TenantImprovement costs.  Upon any Event ofDefault by Tenant (as defined in Section 14.1), Landlord may, in its sole andabsolute discretion, retain, use or apply the whole or any part of the SecurityDeposit to pay any sum which Tenant is obligated to pay under this Lease, sumsthat Landlord may expend or be required to expend by reason of the Event ofDefault by Tenant or any loss or damage that Landlord may suffer by reason ofthe Event of Default or costs incurred by Landlord in connection with therepair or restoration of the Premises pursuant to Section 15.3 of this Leaseupon expiration or earlier termination of this Lease.  In no event shall Landlord be obligated to apply the SecurityDeposit upon an Event of Default and Landlord’s rights and remedies resultingfrom an Event of Default, including without limitation, Tenant’s failure to payBasic Rent, Tenant’s Share of Operating Expenses or any other amount due toLandlord pursuant to this Lease, shall not be diminished or altered in any respectdue to the fact that Landlord is holding the Security Deposit.  If any portion of the Security Deposit isapplied by Landlord as permitted by this Section, Tenant shall within five (5)days after written demand by Landlord deposit cash with Landlord in an amountsufficient to restore the Security Deposit to its original amount. If Tenantfully performs its obligations under this Lease, the Security Deposit shall bereturned to Tenant (or, at Landlord’s option, to the last assignee of Tenant’sinterest in this Lease) within thirty (30) days after the expiration of theTerm, provided that Tenant agrees that Landlord may retain the Security Depositto the extent and until such time as all amounts due from Tenant in accordancewith this Lease have been determined and paid in full and Tenant agrees thatTenant shall have no claim against Landlord for Landlord’s retaining suchSecurity Deposit to the extent provided in this Section.  Tenant hereby authorizes Landlord to retainany remaining balance of the security deposit funded to Landlord under theExisting Lease (as defined in Section 22.7), which balance shall be applied byLandlord to offset the sums owing under this Section 4.3, and Tenant shall alsodeposit with Landlord any difference between the amount set forth in Item 9 ofthis Lease and said remaining balance of the security deposit under theExisting Lease in cash concurrently with Tenant’s execution and delivery ofthis Lease.

 

# **ARTICLE V.  USES**

# ** **

**SECTION 5.1****.**                  **USE.** Tenant shall use the Premises only for the purposes stated in Item 3 ofthe Basic Lease Provisions, all in accordance with applicable laws andrestrictions and pursuant to approvals to be obtained by Tenant from allrelevant and required governmental agencies and authorities.  The parties agree that any contrary useshall be deemed to cause material and irreparable harm to Landlord and shallentitle Landlord to injunctive relief in addition to any other availableremedy.  Tenant, at its expense, shallprocure, maintain and make available for Landlord’s inspection throughout theTerm, all governmental approvals, licenses and permits required for the proper

 

5

----

 

and lawful conduct of Tenant’spermitted use of the Premises.  Tenantshall not do or permit anything to be done in or about the Premises which willin any way interfere with the rights of other occupants of the Building or theProject, or use or allow the Premises to be used for any unlawful purpose, norshall Tenant permit any nuisance or commit any waste in the Premises or theProject.  Tenant shall not perform anywork or conduct any business whatsoever in the Project other than inside thePremises.  Tenant shall not do or permitto be done anything which will invalidate or increase the cost of any insurancepolicy(ies) covering the Building, the Project and/or their contents, and shallcomply with all applicable insurance underwriters rules.  Tenant shall comply at its expense with allpresent and future laws, ordinances, restrictions, regulations, orders, rulesand requirements of all governmental authorities that pertain to Tenant or itsuse of the Premises, including without limitation all federal and stateoccupational health and safety requirements, whether or not Tenant’s compliancewill necessitate expenditures or interfere with its use and enjoyment of thePremises.  Tenant shall comply at itsexpense with all present and future covenants, conditions, easements orrestrictions now or hereafter affecting or encumbering the Building and/orProject, and any amendments or modifications thereto, including withoutlimitation the payment by Tenant of any periodic or special dues or assessmentscharged against the Premises or Tenant which may be allocated to the Premisesor Tenant in accordance with the provisions thereof.  Tenant shall promptly upon demand reimburse Landlord for anyadditional insurance premium charged by reason of Tenant’s failure to complywith the provisions of this Section, and shall indemnify Landlord from any liabilityand/or expense resulting from Tenant’s noncompliance.

 

**SECTION 5.2****.**                  **SIGNS.**  Provided Tenant continues to occupy theentire Building, Tenant shall have the exclusive right to one (1) exterior signon the Building and the non-exclusive right to one (1) monument sign, suchsignage to be in its existing location. Except as provided in the foregoing or as otherwise approved in writingby Landlord, in its sole and absolute discretion, Tenant shall have no right tomaintain signs in any location in, on or about the Premises, the Building orthe Project and shall not place or erect any signs that are visible from theexterior of the Building.  The size,design, graphics, material, style, color and other physical aspects of anypermitted sign shall be subject to Landlord’s written determination, asdetermined solely by Landlord, prior to installation, that signage is incompliance with any covenants, conditions or restrictions encumbering thePremises and Landlord’s signage program for the Project, as in effect from timeto time and approved by the City in which the Premises are located (“**SignageCriteria**”).  Prior to placingor erecting any such signs, Tenant shall obtain and deliver to Landlord a copyof any applicable municipal or other governmental permits and approvals andcomply with any applicable insurance requirements for such signage.  Tenant shall be responsible for the cost ofany permitted sign, including the fabrication, installation, maintenance andremoval thereof and the cost of any permits therefor; provided, however, thatif Landlord shall reconfigure or reinstall the monument sign to accommodateanother tenant of the Project, such cost shall be borne solely byLandlord.  If Tenant fails to maintainits sign in good condition, or if Tenant fails to remove same upon terminationof this Lease and repair and restore any damage caused by the sign or itsremoval, Landlord may do so at Tenant’s expense.  Landlord shall have the right to temporarily remove any signs inconnection with any repairs or maintenance in or upon the Building.  The term “sign” as used in this Sectionshall include all signs, designs, monuments, displays, advertising materials,logos, banners, projected images, pennants, decals, pictures, notices,lettering, numerals or graphics.

### ** **

### **SECTION 5.3**.                  HAZARDOUSMATERIALS.

 

(a)                                  Forpurposes of this Lease, the term “**Hazardous Materials**” includes (i) any“hazardous material” as defined in Section 25501(o) of the CaliforniaHealth and Safety Code, (ii) hydrocarbons, polychlorinated biphenyls orasbestos, (iii) any toxic or hazardous materials, substances, wastes ormaterials as defined pursuant to any other applicable state, federal or locallaw or regulation, and (iv) any other substance or matter which may resultin liability to any person or entity as result of such person’s possession,use, release or distribution of such substance or matter under any statutory orcommon law theory.

 

(b)                                 Tenantshall not cause or permit any Hazardous Materials to be brought upon, stored,used, generated, released or disposed of on, under, from or about the Premises(including without limitation the soil and groundwater thereunder) without theprior written consent of Landlord, which consent may be given or withheld inLandlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, withoutobtaining prior written consent of Landlord, to utilize within the Premises areasonable quantity of standard office products that may contain HazardousMaterials (such as photocopy toner, “White Out”, and the like), providedhowever, that (i) Tenant shall maintain such products in theiroriginal retail packaging, shall follow all instructions on such packaging withrespect to the storage, use and disposal of such products, and shall otherwisecomply with all applicable laws with respect to such products, and(ii) all of the other terms and provisions of this Section 5.3 shallapply with respect to Tenant’s storage, use and disposal of all such products.  Landlord may, in its sole and absolutediscretion, place such conditions as Landlord deems appropriate with respect toTenant’s use of any such Hazardous Materials, and may further require thatTenant demonstrate that any such Hazardous Materials are necessary or useful toTenant’s business and will be generated, stored, used and disposed of in amanner that complies with all applicable laws and regulations pertainingthereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultantto assist in determining conditions of approval in connection with the storage,generation, release, disposal or use of Hazardous Materials by Tenant on orabout the Premises, and/or to conduct periodic inspections of the storage,generation, use, release and/or disposal of such Hazardous Materials by Tenanton and from the Premises, and Tenant agrees that any costs incurred by Landlordin connection therewith shall be reimbursed by Tenant to Landlord as additionalrent hereunder upon demand.

 

(c)                                  Priorto the execution of this Lease, Tenant shall complete, execute and deliver toLandlord an Environmental Questionnaire and Disclosure Statement (the “**EnvironmentalQuestionnaire**”) in the form of Exhibit B attachedhereto.  The completed EnvironmentalQuestionnaire shall be deemed incorporated into this Lease for all purposes,and Landlord shall be entitled to rely fully on the information containedtherein.  On each anniversary of theCommencement Date until the expiration or sooner termination of this Lease,Tenant shall

 

6

----

 

disclose to Landlord in writing the names and amounts of all HazardousMaterials which were stored, generated, used, released and/or disposed of on,under or about the Premises for the twelve-month period prior thereto, andwhich Tenant desires to store, generate, use, release and/or dispose of on,under or about the Premises for the succeeding twelve-month period.  In addition, to the extent Tenant ispermitted to utilize Hazardous Materials upon the Premises, Tenant shallpromptly provide Landlord with complete and legible copies of all the followingenvironmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications,permits, monitoring reports, emergency response or action plans, workplaceexposure and community exposure warnings or notices and all other reports,disclosures, plans or documents (even those which may be characterized asconfidential) relating to water discharges, air pollution, waste generation ordisposal, and underground storage tanks for Hazardous Materials; orders,reports, notices, listings and correspondence (even those which may beconsidered confidential) of or concerning the release, investigation of,compliance, cleanup, remedial and corrective actions, and abatement ofHazardous Materials; and all complaints, pleadings and other legal documentsfiled by or against Tenant related to Tenant’s use, handling, storage, releaseand/or disposal of Hazardous Materials.

 

(d)                                 Landlordand its agents shall have the right, but not the obligation, to inspect, sampleand/or monitor the Premises and/or the soil or groundwater thereunder at anytime to determine whether Tenant is complying with the terms of thisSection 5.3, and in connection therewith Tenant shall provide Landlordwith full access to all facilities, records and personnel related thereto.  If Tenant is not in compliance with any ofthe provisions of this Section 5.3, or in the event of a release of anyHazardous Material on, under or about the Premises caused or permitted byTenant, its agents, employees, contractors, licensees or invitees, Landlord andits agents shall have the right, but not the obligation, without limitationupon any of Landlord’s other rights and remedies under this Lease, toimmediately enter upon the Premises without notice and to discharge Tenant’sobligations under this Section 5.3 at Tenant’s expense, including withoutlimitation the taking of emergency or long-term remedial action.  Landlord and its agents shall endeavor tominimize interference with Tenant’s business in connection therewith, but shallnot be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, butnot the obligation, to join and participate in any legal proceedings or actionsinitiated in connection with any claims arising out of the storage, generation,use, release and/or disposal by Tenant or its agents, employees, contractors,licensees or invitees of Hazardous Materials on, under, from or about thePremises.

 

(e)                                  Ifthe presence of any Hazardous Materials on, under, from or about the Premisesor the Project caused or permitted by Tenant or its agents, employees,contractors, licensees or invitees results in (i) injury to any person,(ii) injury to or any contamination of the Premises or the Project, or(iii) injury to or contamination of any real or personal property whereversituated, Tenant, at its expense, shall promptly take all actions necessary toreturn the Premises and the Project and any other affected real or personalproperty owned by Landlord to the condition existing prior to the introductionof such Hazardous Materials and to remedy or repair any such injury orcontamination, including without limitation, any cleanup, remediation, removal,disposal, neutralization or other treatment of any such HazardousMaterials.  Notwithstanding theforegoing, Tenant shall not, without Landlord’s prior written consent, whichconsent may be given or withheld in Landlord’s sole and absolute discretion,take any remedial action in response to the presence of any Hazardous Materialson, from, under or about the Premises or the Project or any other affected realor personal property owned by Landlord or enter into any similar agreement, consent,decree or other compromise with any governmental agency with respect to anyHazardous Materials claims; provided however, Landlord’s prior written consentshall not be necessary in the event that the presence of Hazardous Materialson, under or about the Premises or the Project or any other affected real orpersonal property owned by Landlord (i) imposes an immediate threat to thehealth, safety or welfare of any individual and (ii) is of such a naturethat an immediate remedial response is necessary and it is not possible toobtain Landlord’s consent before taking such action.  To the fullest extent permitted by law, Tenant shall indemnify,hold harmless, protect and defend (with attorneys acceptable to Landlord)Landlord and any successors to all or any portion of Landlord’s interest in thePremises and the Project and any other real or personal property owned byLandlord from and against any and all liabilities, losses, damages, diminutionin value, judgments, fines, demands, claims, recoveries, deficiencies, costsand expenses (including without limitation attorneys’ fees, court costs andother professional expenses), whether foreseeable or unforeseeable, arisingdirectly or indirectly out of the use, generation, storage, treatment, release,on- or off-site disposal or transportation of Hazardous Materials (A) on, into,from, under or about the Premises during the Term regardless of the source ofsuch Hazardous Materials unless caused solely by Landlord or (B) on, into,from, under or about the Premises, the Building or the Project and any otherreal or personal property owned by Landlord caused or permitted by Tenant, itsagents, employees, contractors, licensees or invitees.  Such indemnity obligation shall specificallyinclude, without limitation, the cost of any required or necessary repair,restoration, cleanup or detoxification of the Premises, the Building and theProject and any other real or personal property owned by Landlord, thepreparation of any closure or other required plans, whether or not such actionis required or necessary during the Term or after the expiration of this Leaseand any loss of rental due to the inability to lease the Premises or anyportion of the Building or Project as a result of such Hazardous Material orremediation thereof.  If it is at anytime discovered that Hazardous Materials have been released on, into, from,under or about the Premises during the Term, or that Tenant or its agents,employees, contractors, licensees or invitees may have caused or permitted therelease of a Hazardous Material on, under, from or about the Premises, theBuilding or the Project or any other real or personal property owned byLandlord, Tenant shall, at Landlord’s request, immediately prepare and submitto Landlord a comprehensive plan, subject to Landlord’s approval, specifyingthe actions to be taken by Tenant to return the Premises, the Building or theProject or any other real or personal property owned by Landlord to thecondition existing prior to the introduction of such Hazardous Materials.  Upon Landlord’s approval of such cleanupplan, Tenant shall, at its expense, and without limitation of any rights andremedies of Landlord under this Lease or at law or in equity, immediatelyimplement such plan and proceed to cleanup such Hazardous Materials inaccordance with all applicable laws and as required by such plan and thisLease.  The provisions of this Section5.3(e) shall expressly survive the expiration or sooner termination of this Lease.

 

7

----

 

(f)                                    Landlordhereby discloses to Tenant, and Tenant hereby acknowledges, certain factsrelating to Hazardous Materials at the Project known by Landlord to exist as ofthe date of this Lease, as more particularly described in Exhibit Cattached hereto.  Tenant shall have noliability or responsibility with respect to the Hazardous Materials factsdescribed in Exhibit C, nor with respect to any Hazardous Materialswhich Tenant proves were neither released on the Premises during the Term norcaused or permitted by Tenant, its agents, employees, contractors, licensees orinvitees.  Notwithstanding the precedingtwo sentences, Tenant agrees to notify its agents, employees, contractors,licensees, and invitees of any exposure or potential exposure to HazardousMaterials at the Premises that Landlord brings to Tenant’s attention.  Tenant hereby acknowledges that thisdisclosure satisfies any obligation of Landlord to Tenant pursuant toCalifornia Health & Safety Code Section 25359.7, or any amendment orsubstitute thereto or any other disclosure obligations of Landlord.

# ** **

# **ARTICLE VI.  COMMON AREAS; SERVICES**

** **

**SECTION 6.1****.**                  **UTILITIESAND SERVICES.**  Tenant shallbe responsible for and shall pay promptly, directly to the appropriatesupplier, all charges for water, gas, electricity, sewer, heat, light, power,telephone, telecommunications service, refuse pickup, janitorial service,interior landscape maintenance and all other utilities, materials and servicesfurnished directly to Tenant or the Premises or used by Tenant in, on or aboutthe Premises during the Term, together with any taxes thereon.  If any utilities or services are notseparately metered or assessed to Tenant, Landlord shall make a reasonabledetermination of Tenant’s proportionate share of the cost of such utilities andservices, including without limitation, after-hours HVAC usage, and Tenantshall pay such amount to Landlord, as an item of additional rent, within ten(10) days after receipt of Landlord’s statement or invoice therefor.  Alternatively, Landlord may elect to includesuch cost in the definition of Project Costs in which event Tenant shall payTenant’s proportionate share of such costs in the manner set forth inSection 4.2.  Tenant shall also payto Landlord as an item of additional rent, within ten (10) days after receiptof Landlord’s statement or invoice therefore or as part of “Project costs”, anyafter-hours HVAC usage charges incurred by Tenant.  Landlord shall not be liable for damages or otherwise for anyfailure or interruption of any utility or other service furnished to thePremises, and no such failure or interruption shall be deemed an eviction orentitle Tenant to terminate this Lease or withhold or abate any rent duehereunder.  Landlord shall at allreasonable times have free access to the Building and Premises to install,maintain, repair, replace or remove all electrical and mechanical installationsof Landlord.  Tenant acknowledges thatthe costs incurred by Landlord related to providing above-standard utilities toTenant, including, without limitation, telephone lines, may be charged toTenant.

** **

**SECTION 6.2.**                  **OPERATIONAND MAINTENANCE OF COMMON AREAS. **Duringthe Term, Landlord shall operate all Common Areas within the Building and theProject.  The term “**Common Areas**” shall mean allareas within the exterior boundaries of the Building and other buildings in theProject which are not held for exclusive use by persons entitled to occupyspace, and all other appurtenant areas and improvements within the Projectprovided by Landlord for the common use of Landlord and tenants and theirrespective employees and invitees, including without limitation parking areasand structures, driveways, sidewalks, landscaped and planted areas, hallwaysand interior stairwells not located within the premises of any tenant, commonelectrical rooms and roof access entries, common entrances and lobbies,elevators, and restrooms not located within the premises of any tenant.

** **

**SECTION 6.3****.**                  **USE OFCOMMON AREAS.**  The occupancyby Tenant of the Premises shall include the use of the Common Areas in commonwith Landlord and with all others for whose convenience and use the CommonAreas may be provided by Landlord, subject, however, to compliance with allrules and regulations as are prescribed from time to time by Landlord.  Landlord shall operate and maintain theCommon Areas in the manner Landlord may determine to be appropriate.  All costs incurred by Landlord for themaintenance and operation of the Common Areas shall be included in Project Costsexcept to the extent any particular cost incurred is related to or associatedwith a specific tenant and can be charged to such tenant of the Project.  Landlord shall at all times during the Termhave exclusive control of the Common Areas, and may restrain or permit any useor occupancy, except as authorized by Landlord’s rules and regulations.  Tenant shall keep the Common Areas clear ofany obstruction or unauthorized use related to Tenant’s operations or use ofPremises, including without limitation, planters and furniture.  Nothing in this Lease shall be deemed toimpose liability upon Landlord for any damage to or loss of the property of, orfor any injury to, Tenant, its invitees or employees.  Landlord may temporarily close any portion of the Common Areasfor repairs, remodeling and/or alterations, to prevent a public dedication orthe accrual of prescriptive rights, or for any other reason deemed sufficientby Landlord, without liability to Landlord.

** **

**SECTION 6.4****.**                  **PARKING.**  Tenant shall be entitled to the number ofvehicle parking spaces set forth in Item 14 of the Basic Lease Provisions,which spaces shall be unreserved and unassigned, on those portions of theCommon Areas designated by Landlord for parking.  Tenant shall not use more parking spaces than such number.  All parking spaces shall be used only forparking of vehicles no larger than full size passenger automobiles, sportsutility vehicles or pickup trucks.  Tenantshall not permit or allow any vehicles that belong to or are controlled by Tenantor Tenant’s employees, suppliers, shippers, customers or invitees to be loaded,unloaded or parked in areas other than those designated by Landlord for suchactivities.  If Tenant permits or allowsany of the prohibited activities described above, then Landlord shall have theright, without notice, in addition to such other rights and remedies thatLandlord may have, to remove or tow away the vehicle involved and charge thecosts to Tenant.  Parking within theCommon Areas shall be limited to striped parking stalls, and no parking shallbe permitted in any driveways, access ways or in any area which would prohibitor impede the free flow of traffic within the Common Areas.  There shall be no parking of any vehiclesfor longer than a forty-eight (48) hour period unless otherwise authorized byLandlord, and vehicles which have been abandoned or parked in violation of theterms hereof may be towed away at the owner’s expense.  Nothing contained in this Lease shall bedeemed to create liability upon Landlord for any damage to motor vehicles ofvisitors or employees, for any loss of property from within those motorvehicles, or for any injury to Tenant, its visitors or employees, unlessultimately determined to be caused by the sole active negligence or willfulmisconduct of Landlord.  Landlord shallhave the right to establish, and from

 

8

----

 

time to time amend, and to enforce against all users all reasonablerules and regulations (including the designation of areas for employee parking)that Landlord may deem necessary and advisable for the proper and efficientoperation and maintenance of parking within the Common Areas.  Landlord shall have the right to construct,maintain and operate lighting facilities within the parking areas; to changethe area, level, location and arrangement of the parking areas and improvementstherein; to restrict parking by tenants, their officers, agents and employeesto employee parking areas; to enforce parking charges (by operation of metersor otherwise); and to do and perform such other acts in and to the parkingareas and improvements therein as, in the use of good business judgment,Landlord shall determine to be advisable. Any person using the parking area shall observe all directional signsand arrows and any posted speed limits. In no event shall Tenant interfere with the use and enjoyment of theparking area by other tenants of the Project or their employees or invitees.  Parking areas shall be used only for parkingvehicles.  Washing, waxing, cleaning orservicing of vehicles, or the storage of vehicles for longer than 48-hours, isprohibited unless otherwise authorized by Landlord.  Tenant shall be liable for any damage to the parking areas causedby Tenant or Tenant’s employees, suppliers, shippers, customers or invitees,including without limitation damage from excess oil leakage.  Tenant shall have no right to install anyfixtures, equipment or personal property in the parking areas.

** **

**SECTION 6.5****.**                  **CHANGES ANDADDITIONS BY LANDLORD.** Landlord reserves the right to make alterations or additions to theBuilding or the Project, or to the attendant fixtures, equipment and CommonAreas.  Landlord may at any timerelocate or remove any of the various buildings, parking areas, and otherCommon Areas, and may add buildings and areas to the Project from time totime.  No change shall entitle Tenant toany abatement of rent or other claim against Landlord, provided that the changedoes not deprive Tenant of reasonable access to or use of the Premises.

# ** **

# **ARTICLE VII.  MAINTAINING THE PREMISES**

** **

**SECTION 7.1****.**                  **TENANT’SMAINTENANCE AND REPAIR.** Tenant at its sole expense shall maintain and make all repairs andreplacements necessary to keep the Premises in the condition as existed on theCommencement Date (or on any later date that the improvements may have beeninstalled), excepting ordinary wear and tear, including without limitation allinterior glass, doors, door closures, hardware, fixtures, electrical, plumbing,fire extinguisher equipment and other equipment installed in the Premises andall Alterations constructed by Tenant pursuant to Section 7.3 below.  Any damage or deterioration of the Premisesshall not be deemed ordinary wear and tear if the same could have beenprevented by good maintenance practices by Tenant.  As part of its maintenance obligations hereunder, Tenant shall,at Landlord’s request, provide Landlord with copies of all maintenanceschedules, reports and notices prepared by, for or on behalf of Tenant.  All repairs and replacements shall be atleast equal in quality to the original work, shall be made only by a licensedcontractor approved in writing in advance by Landlord and shall be made only atthe time or times approved by Landlord. Any contractor utilized by Tenant shall be subject to Landlord’sstandard requirements for contractors, as modified from time to time.  Landlord may impose reasonable restrictionsand requirements with respect to repairs, as provided in Section 7.3, and theprovisions of Section 7.4 shall apply to all repairs.  Alternatively, Landlord may elect to perform any repair andmaintenance of the electrical and mechanical systems and any air conditioning,ventilating or heating equipment serving the Premises and include the costthereof as part of Tenant’s Share of Operating Expenses.  If Tenant fails to properly maintain and/orrepair the Premises as herein provided following Landlord’s notice and theexpiration of the applicable cure period (or earlier if Landlord determinesthat such work must be performed prior to such time in order to avoid damage tothe Premises or Building or other detriment), then Landlord may elect, butshall have no obligation, to perform any repair or maintenance requiredhereunder on behalf of Tenant and at Tenant’s expense, and Tenant shallreimburse Landlord upon demand for all costs incurred upon submission of aninvoice.

** **

**SECTION 7.2.**                  **LANDLORD’SMAINTENANCE AND REPAIR.** Subject to Section 7.1 and Article XI, Landlord shall provideservice, maintenance and repair with respect to any air conditioning,ventilating or heating equipment which serves the Premises (exclusive, however,of supplemental HVAC equipment serving only the Premises), and shall maintainin good repair the roof, foundations, footings, the exterior surfaces of theexterior walls of the Building (including exterior glass), and the structural,electrical and mechanical systems, except that Tenant at its expense shall makeall repairs which Landlord deems reasonably necessary as a result of the act ornegligence of Tenant, its agents, employees, invitees, subtenants orcontractors.  Landlord shall have theright to employ or designate any reputable person or firm, including anyemployee or agent of Landlord or any of Landlord’s affiliates or divisions, toperform any service, repair or maintenance function.  Landlord need not make any other improvements or repairs exceptas specifically required under this Lease, and nothing contained in thisSection shall limit Landlord’s right to reimbursement from Tenant formaintenance, repair costs and replacement costs as provided elsewhere in thisLease.  Tenant understands that it shallnot make repairs at Landlord’s expense or by rental offset.  Tenant further understands that Landlordshall not be required to make any repairs to the roof, foundations, footings,the exterior surfaces of the exterior walls of the Building (excluding exteriorglass), or structural, electrical or mechanical systems unless and until Tenanthas notified Landlord in writing of the need for such repair and Landlord shallhave a reasonable period of time thereafter to commence and complete saidrepair, if warranted.  All costs of anymaintenance, repairs and replacement on the part of Landlord provided hereundershall be considered part of Project Costs. Tenant further agrees that if Tenant fails to report any such need forrepair in writing within sixty (60) days of its discovery by Tenant, Tenantshall be responsible for any costs and expenses and other damages related tosuch repair which are in excess of those which would have resulted had suchneed for repair been reported to Landlord within such sixty (60) day period.

** **

**SECTION 7.3****.**                  **ALTERATIONS.**  Except as otherwise provided in thisSection, Tenant shall make no alterations, additions, fixtures or improvements(“**Alterations**”)****tothe Premises or the Building without the prior written consent of Landlord,which consent may be granted or withheld in Landlord’s sole and absolutediscretion.  In the event that anyrequested Alteration would result in a change from Landlord’s building standardmaterials and specifications for the Project (“**Standard Improvements**”),Landlord may withhold consent to such Alteration in its

 

9

----

 

sole and absolute discretion.  In the event Landlord so consents to achange from the Standard Improvements (such change being referred to as a “**Non-StandardImprovement**”), Tenant shall be responsible for the cost of replacingsuch****Non-StandardImprovement with the applicable Standard Improvement (“**Replacements**”) whichReplacements shall be completed prior to the Expiration Date or earliertermination of this Lease.  Landlordshall not unreasonably withhold its consent to any Alterations which cost lessthan One Dollar ($1.00) per square foot of the improved portions of thePremises (excluding warehouse square footage) and do not (i) affect theexterior of the Building or outside areas (or be visible from adjoining sites),or (ii) affect or penetrate any of the structural portions of theBuilding, including but not limited to the roof, or (iii) require anychange to the basic floor plan of the Premises (including, without limitation,the adding of any additional “office” square footage) or any change to anystructural or mechanical systems of the Premises, or (iv) fail to comply withany applicable governmental requirements or require any governmental permit asa prerequisite to the construction thereof, or (v) result in the Premisesrequiring building services beyond the level normally provided to othertenants, or (vi) interfere in any manner with the proper functioning of,or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems,facilities or equipment located in or serving the Building, or (vii) diminishthe value of the Premises including, without limitation, using lesser qualitymaterials than those existing in the Premises, or (viii) alter or replaceStandard Improvements.  Landlord mayimpose any condition to its consent, including but not limited to a requirementthat the installation and/or removal of all Alterations and Replacements becovered by a lien and completion bond satisfactory to Landlord in its sole andabsolute discretion and requirements as to the manner and time of performanceof such work.  Landlord shall in allevents, whether or not Landlord’s consent is required, have the right toapprove the contractor performing the installation and removal of Alterationsand Replacements and Tenant shall not permit any contractor not approved byLandlord to perform any work on the Premises or on the Building.  Tenant shall obtain all required permits forthe installation and removal of Alterations and Replacements and shall performthe installation and removal of Alterations and Replacements in compliance withall applicable laws, regulations and ordinances, including without limitationthe Americans with Disabilities Act, all covenants, conditions and restrictionsaffecting the Project, and the Rules and Regulations as described inArticle XVII.  Tenant understandsand agrees that Landlord shall be entitled to a supervision fee in the amountof five percent (5%) of the cost of the Alterations.  Under no circumstances shall Tenant make any Alterations orReplacements which incorporate any Hazardous Materials, including withoutlimitation asbestos-containing construction materials into the Premises, theBuilding or the Common Area.  If anygovernmental entity requires, as a condition to any proposed Alterations by Tenant,that improvements be made to the Common Areas, and if Landlord consents to suchimprovements to the Common Areas (which consent may be withheld in the sole andabsolute discretion of Landlord), then Tenant shall, at Tenant’s sole expense,make such required improvements to the Common Areas in such manner, utilizingsuch materials, and with such contractors, architects and engineers as Landlordmay require in its sole and absolute discretion.  Any request for Landlord’s consent to any proposed Alterationsshall be made in writing and shall contain architectural plans describing thework in detail reasonably satisfactory to Landlord.  Unless Landlord otherwise agrees in writing, all Alterations madeor affixed to the Premises, the Building or to the Common Area during the Termof this Lease (excluding moveable trade fixtures and furniture), shall becomethe property of Landlord and shall be surrendered with the Premises at the endof the Term; except that Landlord may, as provided in the next succeedingparagraph of this Section 7.3, require Tenant to remove by the Expiration Dateor sooner termination date of this Lease, all or any of the Alterationsinstalled either by Tenant or by Landlord at Tenant’s request during the Termof this Lease, and to repair any damage to the Premises, the Building or theCommon Area arising from that removal and restore the Premises to theircondition prior to making such Alterations.

 

As of theExpiration Date or earlier termination date of this Lease, Landlord shall havethe right to require Tenant to remove any Alterations made by Tenant to thePremises during the Term of this Lease and to replace same with the applicableReplacements, whether or not Landlord’s consent was required for suchAlterations.  Notwithstanding theforegoing, if at the time of requesting Landlord’s consent to any suchAlterations, Tenant shall request in writing whether or not Landlord shallrequire such Alterations to be removed and replaced as of the Expiration Dateor earlier termination date of this Lease, then Landlord’s right to requireTenant to remove and replace such Alterations shall be exercised, if at all, atthe time of Landlord’s consent thereto.

** **

**SECTION 7.4****.**                  **MECHANIC’SLIENS.**  Tenant shall keep thePremises free from any liens arising out of any work performed, materials furnished,or obligations incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly (but in no event laterthan five (5) business days following such request) cause any such lien to bereleased by posting a bond in accordance with California Civil Code Section3143 or any successor statute.  In theevent that Tenant shall not, within thirty (30) days following the impositionof any lien, cause the lien to be released of record by payment or posting of aproper bond, Landlord shall have, in addition to all other available remedies,the right to cause the lien to be released by any means it deems proper,including payment of or defense against the claim giving rise to the lien.  All expenses so incurred by Landlord,including Landlord’s attorneys’ fees, and any consequential or other damagesincurred by Landlord arising out of such lien, shall be reimbursed by Tenantupon demand, together with interest from the date of payment by Landlord at themaximum rate permitted by law until paid. Tenant shall give Landlord no less than twenty (20) days’ prior noticein writing before commencing construction of any kind on the Premises or CommonArea and shall again notify Landlord that construction has commenced, suchnotice to be given on the actual date on which construction commences, so thatLandlord may post and maintain notices of nonresponsibility on the Premises orCommon Area, as applicable, which notices Landlord shall have the right to postand which Tenant agrees it shall not disturb. Tenant shall also provide Landlord notice in writing within ten (10)days following the date on which such work is substantially completed.  The provisions of this Section shallexpressly survive the expiration or sooner termination of this Lease.

** **

**SECTION 7.5****.**                  **ENTRY ANDINSPECTION.**  Landlord shallat all reasonable times, upon written or oral notice (except in emergencies,when no notice shall be required) have the right to enter the Premises toinspect them, to supply services in accordance with this Lease, to have accessto install, repair, maintain, replace or remove all electrical and mechanicalinstallations of Landlord and to protect the interests of Landlord in thePremises, and to

 

10

----

 

submit the Premises toprospective or actual purchasers or encumbrance holders (or, during the lastone hundred and eighty (180) days of the Term or when an uncured Tenant Eventof Default exists, to prospective tenants), all without being deemed to havecaused an eviction of Tenant and without abatement of rent except as providedelsewhere in this Lease.  Landlord shallhave the right, if desired, to retain a key which unlocks all of the doors inthe Premises, excluding Tenant’s vaults and safes, and Landlord shall have theright to use any and all means which Landlord may deem proper to open the doorsin an emergency in order to obtain entry to the Premises, and any entry to thePremises obtained by Landlord shall not under any circumstances be deemed to bea forcible or unlawful entry into, or a detainer of, the Premises, or anyeviction of Tenant from the Premises.

# ** **

# **ARTICLE VIII.  TAXES AND ASSESSMENTS ON TENANT’S PROPERTY**

 

Tenant shallbe liable for and shall pay, at least ten (10) days before delinquency, alltaxes and assessments levied against all personal property of Tenant located inthe Premises, and, if required by Landlord, against all Non StandardImprovements to the Premises (as defined in Section 7.3) made by Landlord orTenant, and against any Alterations (as defined in Section 7.3) made to thePremises or the Building by or on behalf of Tenant.  If requested by Landlord, Tenant shall cause its personalproperty, Non-Standard Improvements****and Alterations to be assessed and billedseparately from the real property of which the Premises form a part.  If any taxes required to be paid by Tenanton Tenant’s personal property, Non-Standard Improvements and/or Alterations arelevied against Landlord or Landlord’s property and if Landlord pays the same,or if the assessed value of Landlord’s property is increased by the inclusionof a value placed upon the personal property, Non-Standard Improvements and/orAlterations and if Landlord pays the taxes based upon the increased assessment,Landlord shall have the right to require that Tenant pay to Landlord the taxesso levied against Landlord or the proportion of the taxes resulting from theincrease in the assessment.  Incalculating what portion of any tax bill which is assessed against Landlordseparately, or Landlord and Tenant jointly, is attributable to Tenant’sNon-Standard Improvements, Alterations and personal property, Landlord’sreasonable determination shall be conclusive.

 

# **ARTICLE IX.  ASSIGNMENT ANDSUBLETTING**

# ** **

### **SECTION 9.1**.                  RIGHTS OFPARTIES.

### ** **

(a)                                  Notwithstandingany provision of this Lease to the contrary, and except as to transfersexpressly permitted without Landlord’s consent pursuant to Section 9.4, Tenantwill not, either voluntarily or by operation of law, assign, sublet, encumber,or otherwise transfer all or any part of Tenant’s interest in this Lease or thePremises, or permit the Premises to be occupied by anyone other than Tenant,without Landlord’s prior written consent, which consent shall not unreasonablybe withheld in accordance with the provisions of Section 9.1(b).  No assignment (whether voluntary,involuntary or by operation of law) and no subletting shall be valid oreffective without Landlord’s prior written consent and, at Landlord’s election,any such assignment or subletting shall be void and of no force and effect andany such attempted assignment or subletting shall constitute an Event ofDefault of this Lease.  Landlord shallnot be deemed to have given its consent to any assignment or subletting by anycourse of action, including its acceptance of any name for listing in theBuilding directory, other than written consent.  To the extent not prohibited by provisions of the BankruptcyCode, 11 U.S.C. Section 101 et seq., (the “**Bankruptcy Code**”), includingSection 365(f)(1), Tenant on behalf of itself and its creditors, administratorsand assigns waives the applicability of Section 365(e) of the Bankruptcy Codeunless the proposed assignee of the Trustee for the estate of the bankruptmeets Landlord’s standard for consent as set forth in Section 9.1(b) of thisLease.  If this Lease is assigned to anyperson or entity pursuant to the provisions of the Bankruptcy Code, any and allmonies or other considerations to be delivered in connection with the assignmentshall be delivered to Landlord, shall be and remain the exclusive property ofLandlord and shall not constitute property of Tenant or of the estate of Tenantwithin the meaning of the Bankruptcy Code. Any person or entity to which this Lease is assigned pursuant to theprovisions of the Bankruptcy Code shall be deemed to have assumed all of theobligations arising under this Lease on and after the date of theassignment,  and shall upon demandexecute and deliver to Landlord an instrument confirming that assumption.

 

(b)                                 IfTenant desires to transfer an interest in this Lease or the Premises, it shallfirst notify Landlord of its desire and shall submit in writing toLandlord:  (i) the name and address ofthe proposed transferee; (ii) the nature of any proposed transferee’s businessto be carried on in the Premises; (iii) the terms and provisions of anyproposed sublease, assignment or other transfer, including a copy of theproposed assignment, sublease or transfer form; (iv) evidence that theproposed assignee, subtenant or transferee will comply with the requirements ofExhibit D hereto; (v) a completed Environmental Questionnairefrom the proposed assignee, subtenant or transferee; (vi) any other informationrequested by Landlord and reasonably related to the transfer and (vii) the feedescribed in Section 9.1(e).  Except asprovided in Section 9.1 (c), Landlord shall not unreasonably withhold itsconsent, provided that the parties agree that it shall be reasonable forLandlord to withhold its consent if: (1) the use of the Premises will not be consistent with the provisionsof this Lease or with Landlord’s commitment to other tenants of the Buildingand Project; (2) the proposed assignee or subtenant has been required by anyprior landlord, lender or governmental authority to take remedial action inconnection with Hazardous Materials contaminating a property arising out of theproposed assignee’s or subtenant’s actions or use of the property in questionor is subject to any enforcement order issued by any governmental authority inconnection with the use, disposal or storage of a Hazardous Material; (3)insurance requirements of the proposed assignee or subtenant may not be broughtinto conformity with Landlord’s then current leasing practice; (4) a proposedsubtenant or assignee has not demonstrated to the reasonable satisfaction ofLandlord that it is financially responsible or has failed to submit to Landlordall reasonable information as requested by Landlord concerning the proposedsubtenant or assignee, including, but not limited to, a certified balance sheetof the proposed subtenant or assignee as of a date within ninety (90) days ofthe request for Landlord’s consent, statements of income or profit and loss ofthe proposed subtenant or assignee for the two-year period preceding the requestfor Landlord’s consent, and/or a certification signed by the proposed subtenantor assignee that it has not been evicted or been in arrears in rent at anyother leased premises for the 3-year period

 

11

----

 

preceding the request forLandlord’s consent; (5) any proposed subtenant or assignee has not demonstratedto Landlord’s reasonable satisfaction a record of successful experience inbusiness; (6) the proposed assignee or subtenant is an existing tenant of theBuilding or Project or a prospect with whom Landlord is negotiating to become atenant at the Building or Project; or (7) the proposed transfer will imposeadditional burdens or adverse tax effects on Landlord.  If Tenant has any exterior sign rights underthis Lease, such rights are personal to Tenant and may not be assigned ortransferred to any assignee of this Lease or subtenant of the Premises withoutLandlord’s prior written consent, which may be withheld in Landlord’s sole andabsolute discretion.

 

If Landlordconsents to the proposed transfer, Tenant may within ninety (90) days after thedate of the consent effect the transfer upon the terms described in theinformation furnished to Landlord; provided that any material change in theterms shall be subject to Landlord’s consent as set forth in this Section9.1.  Landlord shall approve ordisapprove any requested transfer within thirty (30) days following receipt ofTenant’s written request, the information set forth above, and the fee setforth below.

 

(c)                                  Notwithstandingthe provisions of Section 9.1(b) above, in lieu of consenting to a proposedassignment or subletting, Landlord may elect, within the thirty (30) day periodpermitted for Landlord to approve or disapprove a requested transfer, to (i)sublease the Premises (or the portion proposed to be subleased), or take anassignment of Tenant’s interest in this Lease, upon substantially the sameterms as offered to the proposed subtenant or assignee (excluding termsrelating to the purchase of personal property, the use of Tenant’s name or thecontinuation of Tenant’s business), or (ii) terminate this Lease as to theportion of the Premises proposed to be subleased or assigned with aproportionate abatement in the rent payable under this Lease, effective thirty(30) days’ following written notice by Landlord of its election to so subleaseor terminate.  Landlord may thereafter,at its option, assign, sublet or re-let any space so sublet, obtained byassignment or obtained by termination to any third party, including withoutlimitation the proposed transferee of Tenant.

 

(d)                                 Inthe event that Landlord approves the requested assignment or subletting, Tenantagrees that fifty percent (50%) of any amounts paid by the assignee orsubtenant, however described, in excess of (i) the Basic Rent payable byTenant hereunder, or in the case of a sublease of a portion of the Premises, inexcess of the Basic Rent reasonably allocable to such portion as determined byLandlord, plus (ii) Tenant’s direct out-of-pocket costs which Tenantcertifies to Landlord have been paid to provide occupancy related services tosuch assignee or subtenant of a nature commonly provided by landlords ofsimilar space, shall be the property of Landlord and such amounts shall bepayable directly to Landlord by the assignee or subtenant or, at Landlord’soption, by Tenant within ten (10) days of Tenant’s receipt thereof.  Landlord shall have the right to review oraudit the books and records of Tenant, or have such books and records reviewed oraudited by an outside accountant, to confirm any such direct out-of-pocketcosts.  In the event that such directout-of-pocket costs claimed by Tenant are overstated by more than five percent(5%), Tenant shall reimburse Landlord for any of Landlord’s costs related tosuch review or audit.  At Landlord’srequest, a written agreement shall be entered into by and among Tenant,Landlord and the proposed assignee or subtenant confirming the requirements ofthis Section 9.1(d).

 

(e)                                  Tenantshall pay to Landlord a fee equal to the greater of (i) Landlord’s actual costsrelated to such assignment, subletting or other transfer or (ii) Five HundredDollars ($500.00), to process any request by Tenant for an assignment,subletting or other transfer under this Lease. Tenant shall pay Landlord the sum of Five Hundred Dollars ($500.00)concurrently with Tenant’s request for consent to any assignment, subletting orother transfer, and Landlord shall have no obligation to consider such requestunless accompanied by such payment. Tenant shall pay Landlord upon demand any costs in excess of suchpayment to the extent Landlord’s actual costs related to such request exceeds$500.00.  Such fee is herebyacknowledged as a reasonable amount to reimburse Landlord for its costs ofreview and evaluation of a proposed transfer.

 

**SECTION 9.2****.**                  **EFFECT OFTRANSFER.**  No subletting orassignment, even with the consent of Landlord, shall relieve Tenant of itsobligation to pay rent and to perform all its other obligations under thisLease.  Moreover, Tenant shall indemnifyand hold Landlord harmless, as provided in Section 10.3, for any act oromission by an assignee or subtenant. Each assignee, other than Landlord, shall assume all obligations ofTenant under this Lease and shall be liable jointly and severally with Tenantfor the payment of all rent, and for the due performance of all of Tenant’sobligations, under this Lease.  Noassignment or subletting shall be effective or binding on Landlord unlessdocumentation in form and substance satisfactory to Landlord in its reasonablediscretion evidencing the transfer, and in the case of an assignment, theassignee’s assumption of the obligations of Tenant under this Lease, isdelivered to Landlord and both the assignee/subtenant and Tenant deliver toLandlord an executed consent to transfer instrument prepared by Landlord andconsistent with the requirements of this Article.  The acceptance by Landlord of any payment due under this Leasefrom any other person shall not be deemed to be a waiver by Landlord of anyprovision of this Lease or to be a consent to any transfer.  Consent by Landlord to one or more transfersshall not operate as a waiver or estoppel to the future enforcement by Landlordof its rights under this Lease or as a consent to any subsequent transfer.

 

**SECTION 9.3****.**                  **SUBLEASEREQUIREMENTS.**  The followingterms and conditions shall apply to any subletting by Tenant of all or any partof the Premises and shall be deemed included in each sublease:

 

(a)                                  Eachand every provision contained in this Lease (other than with respect to thepayment of rent hereunder) is incorporated by reference into and made a part ofsuch sublease, with “**Landlord**” hereunder meaning the sublandlordtherein and “**Tenant**” hereunder meaning the subtenant therein.

 

(b)                                 Tenanthereby irrevocably assigns to Landlord all of Tenant’s interest in all rentalsand income arising from any sublease of the Premises, and Landlord may collectsuch rent and income and apply same toward Tenant’s obligations under thisLease; provided, however, that until there is an Event of Default by Tenant,Tenant shall have the right to receive and collect the sublease rentals.  Landlord shall not, by reason of thisassignment or

 

12

----

 

the collection of subleaserentals, be deemed liable to the subtenant for the performance of any ofTenant’s obligations under the sublease. Tenant hereby irrevocably authorizes and directs any subtenant, uponreceipt of a written notice from Landlord stating that an uncured Event ofDefault exists in the performance of Tenant’s obligations under this Lease, topay to Landlord all sums then and thereafter due under the sublease.  Tenant agrees that the subtenant may rely onthat notice without any duty of further inquiry and notwithstanding any noticeor claim by Tenant to the contrary. Tenant shall have no right or claim against the subtenant or Landlordfor any rentals so paid to Landlord.

 

(c)                                  Inthe event of the termination of this Lease for any reason, including withoutlimitation as the result of an Event of Default by Tenant or by the mutualagreement of Landlord and Tenant, Landlord may, at its sole option, take overTenant’s entire interest in any sublease and, upon notice from Landlord, thesubtenant shall attorn to Landlord.  Inno event, however, shall Landlord be liable for any previous act or omission byTenant under the sublease or for the return of any advance rental payments ordeposits under the sublease that have not been actually delivered to Landlord,nor shall Landlord be bound by any sublease modification executed withoutLandlord’s consent or for any advance rental payment by the subtenant in excessof one month’s rent.  The generalprovisions of this Lease, including without limitation those pertaining toinsurance and indemnification, shall be deemed incorporated by reference intothe sublease despite the termination of this Lease.  In the event Landlord does not elect to take over Tenant’sinterest in a sublease in the event of any such termination of this Lease, suchsublease shall terminate concurrently with the termination of this Lease andsuch subtenant shall have no further rights under such sublease and Landlordshall have no obligations to such subtenant.

 

**SECTION 9.4****.**                  **CERTAINTRANSFERS.**  The followingshall be deemed to constitute an assignment of this Lease; (a) the sale ofall or substantially all of Tenant’s assets (other than bulk sales in theordinary course of business), (b) if Tenant is a corporation, anunincorporated association, a limited liability company or a partnership, thetransfer, assignment or hypothecation of any stock or interest in suchcorporation, association, limited liability company or partnership in theaggregate of twenty-five percent (25%) (except for publicly traded shares ofstock constituting a transfer of twenty-five percent (25%) or more in theaggregate, so long as no change in the controlling interest of Tenant occurs asa result thereof), or (c) any other direct or indirect change of control ofTenant, including, without limitation, change of control of Tenant’s parentcompany or a merger by Tenant or its parent company.  Notwithstanding the foregoing, Landlord’s consent shall not berequired for the assignment of this Lease as a result of a merger by Tenantwith or into another entity or a reorganization of Tenant, so long as(i) the net worth of the successor or reorganized entity after such mergeris at least equal to the greater of the net worth of Tenant as of the executionof this Lease by Landlord or the net worth of Tenant immediately prior to thedate of such merger or reorganization, evidence of which, satisfactory toLandlord, shall be presented to Landlord prior to such merger orreorganization, (ii) Tenant shall provide to Landlord, prior to suchmerger or reorganization, written notice of such merger or reorganization andsuch assignment documentation and other information as Landlord may require inconnection therewith, and (iii) all of the other terms and requirementsSection 9.2 and 9.3 shall apply with respect to such assignment.

 

# **ARTICLE X.  INSURANCE ANDINDEMNITY**

# ** **

**SECTION 10.1****.**           **TENANT’S INSURANCE.**  Tenant, at its sole cost and expense, shallprovide and maintain in effect the insurance described in Exhibit D.  Evidence of that insurance must be deliveredto Landlord prior to the Commencement Date.

 

**SECTION 10.2****.**           **LANDLORD’S INSURANCE.**  Landlord may, at its election, provide anyor all of the following types of insurance, with or without deductible and inamounts and coverages as may be determined by Landlord in its sole and absolutediscretion:  property insurance, subjectto standard exclusions, covering the Building and/or Project, and such otherrisks as Landlord or its mortgagees may from time to time deem appropriate,including coverage for the Tenant Improvements constructed by Landlord pursuantto the Work Letter (if any) attached hereto, and commercial general liabilitycoverage.  Landlord shall not berequired to carry insurance of any kind on Tenant’s Alterations or on Tenant’s otherproperty, including, without limitation, Tenant’s trade fixtures, furnishings,equipment, signs and all other items of personal property, and Landlord shallnot be obligated to repair or replace that property should damage occur.  All proceeds of insurance maintained byLandlord upon the Building and/or Project shall be the property of Landlord,whether or not Landlord is obligated to or elects to make any repairs.  At Landlord’s option, Landlord mayself-insure all or any portion of the risks for which Landlord elects toprovide insurance hereunder.

 

**SECTION 10.3****.**           **TENANT’S INDEMNITY.**  To the fullest extent permitted by law,Tenant shall defend, indemnify, protect, save and hold harmless Landlord, itsagents, and any and all affiliates of Landlord, including, without limitation,any corporations or other entities controlling, controlled by or under commoncontrol with Landlord, from and against any and all claims, liabilities, costsor expenses arising either before or after the Commencement Date from Tenant’suse or occupancy of the Premises, the Building or the Common Areas, including,without limitation, the use by Tenant, its agents, employees, invitees orlicensees of any recreational facilities within the Common Areas, or from theconduct of its business, or from any activity, work, or thing done, permittedor suffered by Tenant or its agents, employees, invitees or licensees in orabout the Premises, the Building or the Common Areas, or from any Event ofDefault in the performance of any obligation on Tenant’s part to be performedunder this Lease, or from any act or negligence of Tenant or its agents,employees, visitors, patrons, guests, invitees or licensees.  Landlord may, at its option, require Tenantto assume Landlord’s defense in any action covered by this Section throughcounsel satisfactory to Landlord.  Theprovisions of this Section shall expressly survive the expiration or soonertermination of this Lease.  Tenant’sobligations under this Section shall not apply in the event that the claim,liability, cost or expense is caused solely by the active negligence or willfulmisconduct of Landlord.

 

13

----

 

**SECTION 10.4****.**           **LANDLORD’S NONLIABILITY.**  Landlord shall not be liable to Tenant, itsemployees, agents and invitees, and Tenant hereby waives all claims againstLandlord and knowingly assumes the risk of for loss of or damage to anyproperty, or loss or interruption of business or income, or any other loss,cost, damage, injury or liability whatsoever (including without limitation anyconsequential damages and lost profit or opportunity costs) resulting from, butnot limited to, Acts of God, acts of civil disobedience or insurrection, actsor omissions of third parties and/or of other tenants within the Project ortheir agents, employees, contractors, guests or invitees, fire, explosion,falling plaster, steam, gas, electricity, water or rain which may leak or flowfrom or into any part of the Premises or from the breakage, leakage,obstruction or other defects of the pipes, sprinklers, wires, appliances,plumbing, air conditioning, electrical works, roof, windows or other fixturesin the Building, whether the damage or injury results from conditions arisingin the Premises or in other portions of the Building.  It is understood that any such condition may require thetemporary evacuation or closure of all or a portion of the Building.  Landlord shall have no liability (includingwithout limitation consequential damages and lost profit or opportunity costs)and, except as provided in Sections 11.1 and 12.1 below, there shall be noabatement of rent, by reason of any injury to or interference with Tenant’sbusiness arising from the making of any repairs, alterations or improvements toany portion of the Building, including repairs to the Premises, nor shall anyrelated activity by Landlord constitute an actual or constructive eviction;provided, however, that in making repairs, alterations or improvements,Landlord shall interfere as little as reasonably practicable with the conductof Tenant’s business in the Premises. Should Tenant elect to receive any service or products from aconcessionaire, licensee or third party tenant of Landlord, Landlord shall haveno liability for any services or products so provided or for any breach ofcontract by such third party provider. Neither Landlord nor its agents shall be liable for interference withlight or other similar intangible interests. Tenant shall immediately notify Landlord in case of fire or accident in thePremises, the Building or the Project and of defects in any improvements orequipment.

 

**SECTION 10.5****.**           **WAIVER OF SUBROGATION.**  Landlord and Tenant each hereby waives allrights of recovery against the other and the other’s agents on account of lossand damage occasioned to the property of such waiving party to the extent thatthe waiving party is entitled to proceeds for such loss or damage under anyproperty insurance policies carried or required to be carried by the provisionsof this Lease; provided however, that the foregoing waiver shall not apply tothe extent of Tenant’s obligations to pay deductibles under any such policiesand this Lease.  By this waiver it isthe intent of the parties that neither Landlord nor Tenant shall be liable toany insurance company (by way of subrogation or otherwise) insuring the otherparty for any loss or damage insured against under any property insurancepolicies contemplated by this Lease, even though such loss or damage might beoccasioned by the negligence of such party, its agents, employees, contractors,guests or invitees.

 

# **ARTICLEXI.  DAMAGE OR DESTRUCTION**

# ** **

### **SECTION 11.1**.           RESTORATION.

### ** **

(a)                                  Ifthe Premises or the Building or a part thereof are materially damaged by anyfire, flood, earthquake or other casualty, Landlord shall have the right toterminate this Lease upon written notice to Tenant if:  (i) Landlord reasonably determines thatproceeds necessary to pay the full cost of repair is not available fromLandlord’s insurance, including without limitation earthquake insurance, plussuch additional amounts Tenant elects, at its option, to contribute, excludinghowever the deductible (for which Tenant shall be responsible for Tenant’sShare); (ii) Landlord reasonably determines that the Premises cannot, withreasonable diligence, be fully repaired by Landlord (or cannot be safelyrepaired because of the presence of hazardous factors, including withoutlimitation Hazardous Materials, earthquake faults, and other similar dangers)within two hundred seventy (270) days after the date of the damage;(iii) an uncured Event of Default by Tenant has occurred; or (iv) thematerial damage occurs during the final twelve (12) months of the Term.  Landlord shall notify Tenant in writing (“**Landlord’sNotice**”) within sixty (60) days after the damage occurs as to (A)whether Landlord is terminating this Lease as a result of such material damageand (B) if Landlord is not terminating this Lease, the number of days withinwhich Landlord has estimated that the Premises, with reasonable diligence, arelikely to be fully repaired.  In theevent Landlord elects to terminate this Lease, this Lease shall terminate as ofthe date specified for termination by Landlord’s Notice (which termination dateshall in no event be later than sixty (60) days following the date of thedamage, or, if no such date is specified, such termination shall be the date ofLandlord’s Notice).

 

(b)                                 IfLandlord has the right to terminate this Lease pursuant to Section 11.1(a) anddoes not elect to so terminate this Lease, and provided that at the time ofLandlord’s Notice neither an Event of Default exists nor has Landlord deliveredTenant a notice of any failure by Tenant to fulfill an obligation under thisLease which, unless cured by Tenant within the applicable grace period, wouldconstitute an Event of Default, then within ten (10) days following delivery ofLandlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminatethis Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifiesthat Landlord has determined that the Premises cannot be repaired, withreasonable diligence, within two hundred seventy (270) days after the date ofdamage or (ii) the casualty has occurred within the final twelve (12) months ofthe Term and such material damage has a materially adverse impact on Tenant’scontinued use of the Premises.  IfTenant fails to provide such termination notice within such ten (10) dayperiod, Tenant shall be deemed to have waived any termination right under thisSection 1l.1(b) or any other applicable law.

 

(c)                                  Inthe event that neither Landlord nor Tenant terminates this Lease pursuant tothis Section 11.1 as a result of material damage to the Building or Premisesresulting from a casualty, Landlord shall repair all material damage to thePremises or the Building as soon as reasonably possible and this Lease shallcontinue in effect for the remainder of the Term.  Landlord shall have the right, but not the obligation, to repairor replace any other leasehold improvements made by Tenant or any Alterations(as defined in Section 7.3) constructed by Tenant.  If Landlord elects to repair or replace suchleasehold improvements and/or Alterations, all insurance proceeds available forsuch repair or replacement shall be made available to Landlord.  Landlord shall have no liability to Tenantin the event that the Premises or the Building has not been fully repairedwithin the time period specified by Landlord in

 

14

----

 

Landlord’s Notice to Tenant asdescribed in Section 11.1(a). Notwithstanding the foregoing, the repair of damage to the Premises tothe extent such damage is not material shall be governed by Sections 7.1 and7.2.

 

(d)                                 Commencingon the date of such material damage to the Building, and ending on the soonerof the date the damage is repaired or the date this Lease is terminated, therental to be paid under this Lease shall be abated in the same proportion thatthe Floor Area of the Premises that is rendered unusable by the damage fromtime to time bears to the total Floor Area of the Premises, as determined byLandlord, but only to the extent that Landlord is entitled to reimbursementfrom the proceeds of the business interruption insurance required of Tenantpursuant to Exhibit D.

 

(e)                                  Landlordshall not be required to repair or replace any improvements or fixtures thatTenant is obligated to repair or replace pursuant to Section 7.1 or any otherprovision of this Lease and Tenant shall continue to be obligated to so repairor replace any such improvements or fixtures, notwithstanding any provisions tothe contrary in this Article XI.  Inaddition, but subject to the provisions of Section 10.5, in the event thedamage or destruction to the Premises or Building are due in substantial partto the fault or neglect of Tenant or its employees, subtenants, invitees orrepresentatives, the costs of such repairs or replacement to the Premises orBuilding shall be borne by Tenant, and in addition, Tenant shall not beentitled to terminate this Lease as a result, notwithstanding the provisions ofSection 11.1(b).

 

(f)                                    Tenantshall fully cooperate with Landlord in removing Tenant’s personal property andany debris from the Premises to facilitate all inspections of the Premises andthe making of any repairs. Notwithstanding anything to the contrary contained in this Lease, ifLandlord in good faith believes there is a risk of injury to persons or damageto property from entry into the Building or Premises following any damage ordestruction thereto, Landlord may restrict entry into the Building or thePremises by Tenant, its employees, agents and contractors in anon-discriminatory manner, without being deemed to have violated Tenant’srights of quiet enjoyment to, or made an unlawful detainer of, or evictedTenant from, the Premises.  Uponrequest, Landlord shall consult with Tenant to determine if there are safemethods of entry into the Building or the Premises solely in order to allowTenant to retrieve files, data in computers, and necessary inventory, subjecthowever to all indemnities and waivers of liability from Tenant to Landlordcontained in this Lease and any additional indemnities and waivers of liabilitywhich Landlord may require.

 

**SECTION 11.2****.**           **LEASE GOVERNS.**  Tenant agrees that the provisions of thisLease, including without limitation Section 11.1, shall govern any damage ordestruction and shall accordingly supersede any contrary statute or rule oflaw.

 

# **ARTICLE XII.  EMINENT DOMAIN**

# ** **

**SECTION 12.1****.**           **TOTAL OR PARTIAL TAKING.**  If all or a material portion of the Premisesis taken by any lawful authority by exercise of the right of eminent domain, orsold to prevent a taking, either Tenant or Landlord may terminate this Leaseeffective as of the date possession is required to be surrendered to theauthority.  In the event title to aportion of the Building or Project, whether or not including a portion of thePremises, is taken or sold in lieu of taking, and if Landlord elects to restorethe Building in such a way as to alter the Premises materially, either partymay terminate this Lease, by written notice to the other party, effective onthe date of vesting of title.  In theevent neither party has elected to terminate this Lease as provided above, thenLandlord shall promptly, after receipt of a sufficient condemnation award,proceed to restore the Premises to substantially their condition prior to thetaking, and a proportionate allowance shall be made to Tenant for the rentcorresponding to the time during which, and to the part of the Premises ofwhich, Tenant is deprived on account of the taking and restoration.  In the event of a taking, Landlord shall beentitled to the entire amount of the condemnation award without deduction forany estate or interest of Tenant; provided that nothing in this Section shallbe deemed to give Landlord any interest in, or prevent Tenant from seeking anyaward against the taking authority for, the taking of personal property andfixtures belonging to Tenant or for relocation or business interruptionexpenses recoverable from the taking authority.

 

**SECTION 12.2****.**           **TEMPORARY TAKING.**  No temporary taking of the Premises shallterminate this Lease or give Tenant any right to abatement of rent, and anyaward specifically attributable to a temporary taking of the Premises shallbelong entirely to Tenant.  A temporarytaking shall be deemed to be a taking of the use or occupancy of the Premisesfor a period of not to exceed ninety (90) days.

 

**SECTION 12.3****.**           **TAKING OF PARKING AREA.**  In the event there shall be a taking of theparking area such that Landlord can no longer provide sufficient parking tocomply with this Lease, Landlord may substitute reasonably equivalent parkingin a location reasonably close to the Building; provided that if Landlord failsto make that substitution within ninety (90) days following the taking and ifthe taking materially impairs Tenant’s use and enjoyment of the Premises,Tenant may, at its option, terminate this Lease by written notice to Landlord.  If this Lease is not so terminated byTenant, there shall be no abatement of rent and this Lease shall continue ineffect.

 

# **ARTICLEXIII.  SUBORDINATION; ESTOPPELCERTIFICATE; FINANCIALS**

# ** **

**SECTION 13.1****.**           **SUBORDINATION.**  At the option of Landlord or any lender ofLandlord’s that obtains a security interest in the Building, this Lease shallbe either superior or subordinate to all ground or underlying leases, mortgagesand deeds of trust, if any, which may hereafter affect the Building, and to allrenewals, modifications, consolidations, replacements and extensions thereof;provided, that so long as no Event of Default exists under this Lease, Tenant’spossession and quiet enjoyment of the Premises shall not be disturbed and thisLease shall not terminate in the event of termination of any such ground orunderlying lease, or the foreclosure of any such mortgage or deed of trust, towhich this Lease has been subordinated pursuant to this Section.  Tenant shall

 

15

----

 

execute and deliver any documentsor agreements requested by Landlord or such lessor or lender which provideTenant with the non-disturbance protections set forth in this Section.  In the event of a termination orforeclosure, Tenant shall become a tenant of and attorn to the successor-in-interestto Landlord upon the same terms and conditions as are contained in this Lease,and shall execute any instrument reasonably required by Landlord’s successorfor that purpose.  Tenant shall also,upon written request of Landlord, execute and deliver all instruments as may berequired from time to time to subordinate the rights of Tenant under this Leaseto any ground or underlying lease or to the lien of any mortgage or deed oftrust (provided that such instruments include the nondisturbance and attornmentprovisions set forth above), or, if requested by Landlord, to subordinate, inwhole or in part, any ground or underlying lease or the lien of any mortgage ordeed of trust to this Lease.  Tenantagrees that any purchaser at a foreclosure sale or lender taking title under adeed-in-lieu of foreclosure shall not be responsible for any act or omission ofa prior landlord, shall not be subject to any offsets or defenses Tenant mayhave against a prior landlord, and shall not be liable for the return of thesecurity deposit to the extent it is not actually received by such purchaser orbound by any rent paid for more than the current month in which the foreclosureoccurred.

 

### **SECTION13.2**.           ESTOPPELCERTIFICATE.

### ** **

(a)                                  Tenantshall, at any time upon not less than ten (10) days prior written notice fromLandlord, execute, acknowledge and deliver to Landlord, in any form thatLandlord may reasonably require, a statement in writing (i) certifying thatthis Lease is unmodified and in full force and effect (or, if modified, statingthe nature of the modification and certifying that this Lease, as modified, isin full force and effect) and the dates to which the rental, additional rentand other charges have been paid in advance, if any, and (ii) acknowledging that,to Tenant’s knowledge, there are no uncured defaults on the part of Landlord,or specifying each default if any are claimed, and (iii) setting forth allfurther information that Landlord or any purchaser or encumbrancer mayreasonably require.  Tenant’s statementmay be relied upon by any prospective purchaser or encumbrancer of all or anyportion of the Building or Project.

 

(b)                                 Notwithstandingany other rights and remedies of Landlord, Tenant’s failure to deliver anyestoppel statement within the provided time shall be conclusive upon Tenantthat (i) this Lease is in full force and effect, without modification except asmay be represented by Landlord, (ii) there are no uncured Events of Default inLandlord’s performance, and (iii) not more than one month’s rental has beenpaid in advance.

 

### **SECTION13.3**.           FINANCIALS.

### ** **

(a)                                  Tenantshall deliver to Landlord, prior to the execution of this Lease and thereafterat any time upon Landlord’s request, Tenant’s current tax returns and financialstatements, certified true, accurate and complete by the chief financialofficer of Tenant, including a balance sheet and profit and loss statement forthe most recent prior year, or, in the event Tenant is a publicly tradedcorporation on a nationally recognized stock exchange, Tenant’s currentfinancial reports filed with the Securities and Exchange Commission(collectively, the “**Statements**”), which Statements shallaccurately and completely reflect the financial condition of Tenant.  Landlord agrees that it will keep the Statementsconfidential, except that Landlord shall have the right to deliver the same toany proposed purchaser of the Building or Project, and to any encumbrancer ofall or any portion of the Building or Project.

 

(b)                                 Tenantacknowledges that Landlord is relying on the Statements in its determination toenter into this Lease, and Tenant represents to Landlord, which representationshall be deemed made on the date of this Lease and again on the CommencementDate, that no material change in the financial condition of Tenant, asreflected in the Statements, has occurred since the date Tenant delivered theStatements to Landlord.  The Statementsare represented and warranted by Tenant to be correct and to accurately and fullyreflect Tenant’s true financial condition as of the date of submission by anyStatements to Landlord.

 

# **ARTICLE XIV.  EVENTS OF DEFAULT AND REMEDIES**

# ** **

**SECTION 14.1****.**           **TENANT’S DEFAULTS.**  In addition to any other breaches of thisLease which are defined as Events of Default in this Lease, the occurrence ofany one or more of the following events shall constitute an Event of Default byTenant:

 

(a)                                  Thefailure by Tenant to make any payment of Basic Rent or additional rent requiredto be made by Tenant, as and when due, where the failure continues for a periodof three (3) days after written notice from Landlord to Tenant; provided,however, that any such notice shall be in lieu of, and not in addition to, anynotice required under California Code of Civil Procedure Section 1161 and1161(a) as amended.  For purposes ofthese Events of Default and remedies provisions, the term “**additional rent**” shall bedeemed to include all amounts of any type whatsoever other than Basic Rent tobe paid by Tenant pursuant to the terms of this Lease.

 

(b)                                 Theassignment, sublease, encumbrance or other transfer of this Lease by Tenant,either voluntarily or by operation of law, whether by judgment, execution,transfer by intestacy or testacy, or other means, without the prior writtenconsent of Landlord when consent is required by this Lease.

 

(c)                                  Thediscovery by Landlord that any financial statement provided by Tenant, or byany affiliate, successor or guarantor of Tenant, was materially false.

 

(d)                                 Thefailure of Tenant to timely and fully provide any subordination agreement,estoppel certificate or financial statements in accordance with therequirements of Article XIII.

 

(e)                                  Theabandonment of the Premises by Tenant.

 

16

----

 

(f)                                    Thefailure or inability by Tenant to observe or perform any of the express orimplied covenants or provisions of this Lease to be observed or performed byTenant, other than as specified in this Section 14.1, where the failurecontinues for a period of thirty (30) days after written notice from Landlordto Tenant or such shorter period as is specified in any other provision of thisLease; provided, however, that any such notice shall be in lieu of, and not inaddition to, any notice required under California Code of Civil ProcedureSection 1161 and 1161(a) as amended. However, if the nature of the failure issuch that more than thirty (30) days are reasonably required for its cure, thenTenant shall not be deemed to have committed an Event of Default if Tenantcommences the cure within thirty (30) days, and thereafter diligently pursuesthe cure to completion.

 

(g)                                 (i)The making by Tenant of any general assignment for the benefit of creditors;(ii) the filing by or against Tenant of a petition to have Tenant adjudged aChapter 7 debtor under the Bankruptcy Code or to have debts discharged or apetition for reorganization or arrangement under any law relating to bankruptcy(unless, in the case of a petition filed against Tenant, the same is dismissedwithin thirty (30) days); (iii) the appointment of a trustee or receiver totake possession of substantially all of Tenant’s assets located at the Premisesor of Tenant’s interest in this Lease, if possession is not restored to Tenantwithin thirty (30) days; (iv) the attachment, execution or other judicial seizureof substantially all of Tenant’s assets located at the Premises or of Tenant’sinterest in this Lease, where the seizure is not discharged within thirty (30)days; (v) Tenant’s convening of a meeting of its creditors for the purpose ofeffecting a moratorium upon or composition of its debts or (vi) the failure ofTenant to pay its material obligations to creditors as and when they become dueand payable, other than as a result of a good faith dispute by Tenant as to theamount due to such creditors.  Landlordshall not be deemed to have knowledge of any event described in this Section14.1(g) unless notification in writing is received by Landlord, nor shall therebe any presumption attributable to Landlord of Tenant’s insolvency.  In the event that any provision of thisSection 14.1(g) is contrary to applicable law, the provision shall be of noforce or effect.

 

### **SECTION 14.2**.           LANDLORD’S REMEDIES.

### ** **

(a)                                  Ifan Event of Default by Tenant occurs, then in addition to any other remediesavailable to Landlord, Landlord may exercise the following remedies:

 

(i)                                     Landlordmay terminate Tenant’s right to possession of the Premises by any lawful means,in which case this Lease shall terminate and Tenant shall immediately surrenderpossession of the Premises to Landlord. Such termination shall not affect any accrued obligations of Tenantunder this Lease.  Upon termination,Landlord shall have the right to reenter the Premises and remove all personsand property.  Landlord shall also beentitled to recover from Tenant:

 

(1)                                  Theworth at the time of award of the unpaid Basic Rent and additional rent whichhad been earned at the time of termination;

 

(2)                                  Theworth at the time of award of the amount by which the unpaid Basic Rent andadditional rent which would have been earned after termination until the timeof award exceeds the amount of such loss that Tenant proves could have beenreasonably avoided;

 

(3)                                  Theworth at the time of award of the amount by which the unpaid Basic Rent andadditional rent for the balance of the Term after the time of award exceeds theamount of such loss that Tenant proves could be reasonably avoided;

 

(4)                                  Anyother amount necessary to compensate Landlord for all the detriment proximatelycaused by Tenant’s failure to perform its obligations under this Lease or whichin the ordinary course of things would be likely to result from Tenant’s Eventof Default, including, but not limited to, the cost of recovering possession ofthe Premises, refurbishment of the Premises, marketing costs, commissions andother expenses of reletting, including necessary repair, the unamortizedportion of any tenant improvements and brokerage commissions funded by Landlordin connection with this Lease, reasonable attorneys’ fees, and any otherreasonable costs; and

 

(5)                                  AtLandlord’s election, all other amounts in addition to or in lieu of theforegoing as may be permitted by law. The term “rent” as used in the Lease shall be deemed to mean the BasicRent, Tenant’s Share of Operating Expenses and any other sums required to bepaid by Tenant to Landlord pursuant to the terms of this Lease, including,without limitation, any sums that may be owing from Tenant pursuant to Section4.3 of this Lease.  Any sum, other thanBasic Rent, shall be computed on the basis of the average monthly amountaccruing during the twenty-four (24) month period immediately prior to theEvent of Default, except that if it becomes necessary to compute such rentalbefore the twenty-four (24) month period has occurred, then the computationshall be on the basis of the average monthly amount during the shorterperiod.  As used in Sections 14.2(a)(i)(1) and (2) above, the “worth at the time of award” shall be computed byallowing interest at the rate of ten percent (10%) per annum.  As used in Section 14.2(a)(i)(3) above, the“worth at the time of award” shall be computed by discounting the amount at thediscount rate of the Federal Reserve Bank of San Francisco at the time of awardplus one percent (1%).

 

(ii)                                  Landlordmay elect not to terminate Tenant’s right to possession of the Premises, inwhich event Landlord may continue to enforce all of its rights and remediesunder this Lease, including the right to collect all rent as it becomesdue.  Efforts by the Landlord tomaintain, preserve or relet the Premises, or the appointment of a receiver toprotect the Landlord’s interests under this Lease, shall not constitute atermination of the Tenant’s right to possession of the Premises.  In the event that Landlord elects to availitself of the remedy provided by this Section 14.2(a)(ii), Landlord shall notunreasonably withhold its consent to an assignment or subletting of thePremises subject to the reasonable standards for Landlord’s consent as arecontained in this Lease.

 

17

----

 

(b)                                 Landlordshall be under no obligation to observe or perform any covenant of this Leaseon its part to be observed or performed which accrues after the date of anyEvent of Default by Tenant unless and until the Event of Default is cured byTenant, it being understood and agreed that the performance by Landlord of itsobligations under this Lease are expressly conditioned upon Tenant’s full andtimely performance of its obligations under this Lease.  The various rights and remedies reserved toLandlord in this Lease or otherwise shall be cumulative and, except asotherwise provided by California law, Landlord may pursue any or all of itsrights and remedies at the same time.

 

(c)                                  Nodelay or omission of Landlord to exercise any right or remedy shall beconstrued as a waiver of the right or remedy or of any breach or Event ofDefault by Tenant.  The acceptance byLandlord of rent shall not be a (i) waiver of any preceding breach or Event ofDefault by Tenant of any provision of this Lease, other than the failure ofTenant to pay the particular rent accepted, regardless of Landlord’s knowledgeof the preceding breach or Event of Default at the time of acceptance of rent,or (ii) a waiver of Landlord’s right to exercise any remedy available toLandlord by virtue of the breach or Event of Default.  The acceptance of any payment from a debtor in possession, atrustee, a receiver or any other person acting on behalf of Tenant or Tenant’sestate shall not waive or cure a breach or Event of Default under Section14.1.  No payment by Tenant or receiptby Landlord of a lesser amount than the rent required by this Lease shall bedeemed to be other than a partial payment on account of the earliest due stipulatedrent, nor shall any endorsement or statement on any check or letter be deemedan accord and satisfaction and Landlord shall accept the check or paymentwithout prejudice to Landlord’s right to recover the balance of the rent orpursue any other remedy available to it. No act or thing done by Landlord or Landlord’s agents during the Termshall be deemed an acceptance of a surrender of the Premises, and no agreementto accept a surrender shall be valid unless in writing and signed byLandlord.  No employee of Landlord or ofLandlord’s agents shall have any power to accept the keys to the Premises priorto the termination of this Lease, and the delivery of the keys to any employeeshall not operate as a termination of this Lease or a surrender of thePremises.

 

(d)                                 Anyagreement for free or abated rent or other charges, or for the giving or payingby Landlord to or for Tenant of any cash or other bonus, inducement orconsideration for Tenant’s entering into this Lease (“**Inducement Provisions**”) shallbe deemed conditioned upon Tenant’s full and faithful performance of the terms,covenants and conditions of this Lease. Upon an Event of Default under this Lease by Tenant, any such InducementProvisions shall automatically be deemed deleted from this Lease and of nofurther force or effect and the amount of any rent reduction or abatement orother bonus or consideration already given by Landlord or received by Tenant asan Inducement shall be immediately due and payable by Tenant to Landlord,notwithstanding any subsequent cure of said Event of Default by Tenant.  Theacceptance by Landlord of rent or the cure of the  Event of Default which initiated the operation of this Section14.1 shall not be deemed a waiver by Landlord of the provisions of this Section14.2(d).

 

### **SECTION14.3**.           LATEPAYMENTS.

### ** **

(a)                                  Anypayment due to Landlord under this Lease, including without limitation BasicRent, Tenant’s Share of Operating Expenses or any other payment due to Landlordunder this Lease, that is not received by Landlord within five (5) daysfollowing the date due shall bear interest at the maximum rate permitted by lawfrom the date due until fully paid.  Thepayment of interest shall not cure any breach or  Event of Default by Tenant under this Lease.  In addition, Tenant acknowledges that thelate payment by Tenant to Landlord of Basic Rent and Tenant’s Share ofOperating Expenses will cause Landlord to incur costs not contemplated by thisLease, the exact amount of which will be extremely difficult and impracticableto ascertain.  Those costs may include,but are not limited to, administrative, processing and accounting charges, andlate charges which may be imposed on Landlord by the terms of any ground lease,mortgage or trust deed covering the Premises. Accordingly, if any Basic Rent or Tenant’s Share of Operating Expensesdue from Tenant shall not be received by Landlord or Landlord’s designee withinfive (5) days following the date due, then Tenant shall pay to Landlord, inaddition to the interest provided above, a late charge, which the Tenant agreesis reasonable, in a sum equal to the greater of five percent (5%) of the amountoverdue or Two Hundred Fifty Dollars ($250.00) for each delinquentpayment.  Acceptance of a late charge byLandlord shall not constitute a waiver of Tenant’s breach or  Event of Default with respect to the overdueamount, nor shall it prevent Landlord from exercising any of its other rightsand remedies.

 

(b)                                 Followingeach second installment of Basic Rent and/or the payment of Tenant’s Share ofOperating Expenses within any twelve (12) month period that is not paid withinfive (5) days following the date due, Landlord shall have the option (i) torequire that beginning with the first payment of Basic Rent next due, BasicRent and the Tenant’s Share of Operating Expenses shall no longer be paid inmonthly installments but shall be payable quarterly three (3) months in advanceand/or (ii) to require that Tenant increase the amount, if any, of the SecurityDeposit by one hundred percent (100%). Should Tenant deliver to Landlord, at any time during the Term, two (2)or more insufficient checks, the Landlord may require that all monies then andthereafter due from Tenant be paid to Landlord by cashier’s check.  If any check for any payment to Landlordhereunder is returned by the bank for any reason, such payment shall not bedeemed to have been received by Landlord and Tenant shall be responsible forany applicable late charge, interest payment and the charge to Landlord by itsbank for such returned check.  Nothingin this Section shall be construed to compel Landlord to accept Basic Rent,Tenant’s Share of Operating Expenses or any other payment from Tenant if thereexists an Event of Default unless such payment fully cures any and all suchEvent of Default.  Any acceptance of anysuch payment shall not be deemed to waive any other right of Landlord underthis Lease.  Any payment by Tenant toLandlord may be applied by Landlord, in its sole and absolute discretion, inany order determined by Landlord to any amounts then due to Landlord.

 

**SECTION 14.4****.**           **RIGHT OF LANDLORD TO PERFORM.**  All covenants and agreements to be performedby Tenant under this Lease shall be performed at Tenant’s sole cost and expenseand without any abatement of rent or right of set-off.  If Tenant fails to pay any sum of money,other than rent payable to Landlord, or fails to perform any other act on itspart to be performed under this Lease, and the failure continues beyond any

 

18

----

 

applicable grace period setforth in Section 14.1, then in addition to any other available remedies,Landlord may, at its election make the payment or perform the other act onTenant’s part and Tenant hereby grants Landlord the right to enter onto thePremises in order to carry out such performance.  Landlord’s election to make the payment or perform the act onTenant’s part shall not give rise to any responsibility of Landlord to continuemaking the same or similar payments or performing the same or similar acts norshall Landlord be responsible to Tenant for any damage caused to Tenant as theresult of such performance by Landlord. Tenant shall, promptly upon demand by Landlord, reimburse Landlord forall sums paid by Landlord and all necessary incidental costs, together withinterest at the maximum rate permitted by law from the date of the payment byLandlord.

 

**SECTION 14.5****.**           **DEFAULT BY LANDLORD.**  Landlord shall not be deemed to be indefault in the performance of any obligation under this Lease, and Tenant shallhave no rights to take any action against Landlord, unless and until Landlordhas failed to perform the obligation within thirty (30) days after writtennotice by Tenant to Landlord specifying in reasonable detail the nature andextent of the failure; provided, however, that if the nature of Landlord’sobligation is such that more than thirty (30) days are required for itsperformance, then Landlord shall not be deemed to be in default if it commencesperformance within the thirty (30) day period and thereafter diligently pursuesthe cure to completion.  In the event ofLandlord’s default under this Lease, Tenant’s sole remedies shall be to seekdamages or specific performance from Landlord, provided that any damages shallbe limited to Tenant’s actual out-of-pocket expenses and shall in no eventinclude any consequential damages, lost profits or opportunity costs.

 

**SECTION 14.6****.**           **EXPENSES AND LEGAL FEES.**  All sums reasonably incurred by Landlord inconnection with any Event of Default by Tenant under this Lease or holding overof possession by Tenant after the expiration or earlier termination of thisLease, or any action related to a filing for bankruptcy or reorganization byTenant, including without limitation all costs, expenses and actualaccountants, appraisers, attorneys and other professional fees, and anycollection agency or other collection charges, shall be due and payable toLandlord on demand, and shall bear interest at the rate of ten percent (10%)per annum.  Should either Landlord orTenant bring any action in connection with this Lease, the prevailing partyshall be entitled to recover as a part of the action its reasonable attorneys’fees, and all other costs.  Theprevailing party for the purpose of this Section shall be determined by thetrier of the facts.

 

**SECTION 14.7****.**           **WAIVER OF JURY TRIAL.  LANDLORD AND TENANT EACH ACKNOWLEDGES THATIT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TOITS RIGHTS TO TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLYWAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING ORCOUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINSTITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATEDENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITHTHIS LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OFINJURY OR DAMAGE.**  **FURTHERMORE,THIS WAIVER AND RELEASE OF ALL RIGHTS TO A JURY TRIAL IS DEEMED TO BEINDEPENDENT OF EACH AND EVERY OTHER PROVISION, COVENANT, AND/OR CONDITION SETFORTH IN THIS LEASE.**

 

**SECTION 14.8****.**           **SATISFACTION OF JUDGMENT.**  The obligations of Landlord do notconstitute the personal obligations of the individual partners, trustees,directors, officers or shareholders of Landlord or its constituentpartners.  Should Tenant recover a moneyjudgment against Landlord, such judgment shall be satisfied only from theinterest of Landlord in the Project and out of the rent or other income fromsuch property receivable by Landlord or out of consideration received byLandlord from the sale or other disposition of all or any part of Landlord’sright, title or interest in the Project and no action for any deficiency may besought or obtained by Tenant.

 

**SECTION 14.9****.**           **LIMITATION OF ACTIONS AGAINST LANDLORD.**  Any claim, demand or right of any kind byTenant which is based upon or arises in connection with this Lease, includingwithout limitation any arising under a tort or contract cause of action, shallbe barred unless Tenant commences an action thereon within six (6) months afterthe date that the act, omission, event or default upon which the claim, demandor right arises, has occurred.

 

# **ARTICLE XV.  END OFTERM**

# ** **

**SECTION 15.1****.**           **HOLDING OVER.**  This Lease shall terminate without furthernotice upon the expiration of the Term, and any holding over by Tenant afterthe expiration shall not constitute a renewal or extension of this Lease, orgive Tenant any rights under this Lease, except when in writing signed by bothparties.  Any period of time following theExpiration Date or earlier termination of this Lease required for Tenant toremove its property or to place the Premises in the condition required pursuantto Section 15.3 (or for Landlord to do so if Tenant fails to do so) shallbe deemed a holding over by Tenant.  IfTenant holds over for any period after the Expiration Date (or earliertermination) of the Term without the prior written consent of Landlord, suchpossession shall constitute a tenancy at sufferance only and an Event ofDefault under this Lease; such holding over with the prior written consent ofLandlord shall constitute a month-to-month tenancy commencing on the first(1st) day following the termination of this Lease and terminating thirty (30)days following delivery of written notice of termination by either Landlord orTenant to the other.  In either of suchevents, possession shall be subject to all of the terms of this Lease, exceptthat the monthly Basic Rent shall be the greater of (a) one hundred fiftypercent (150%) of the Basic Rent for the month immediately preceding the dateof termination, or (b) the then currently scheduled Basic Rent for comparablespace in the Project.  The acceptance byLandlord of monthly holdover rental in a lesser amount shall not constitute awaiver of Landlord’s right to recover the full amount due for any holdover byTenant, unless otherwise agreed in writing by Landlord.  If Tenant fails to surrender the Premisesupon the

 

19

----

 

expiration of this Lease despitedemand to do so by Landlord, Tenant shall indemnify and hold Landlord harmlessfrom all loss or liability, including without limitation, any claims made byany succeeding tenant relating to such failure to surrender.  The foregoing provisions of this Section arein addition to and do not affect Landlord’s right of re-entry or any otherrights of Landlord under this Lease or at law.

 

**SECTION 15.2****.**           **MERGER ON TERMINATION.**  The voluntary or other surrender of thisLease by Tenant, or a mutual termination of this Lease, shall terminate any orall existing subleases unless Landlord, at its option, elects in writing totreat the surrender or termination as an assignment to it of any or allsubleases affecting the Premises.

 

**SECTION 15.3****.**           **SURRENDER OF PREMISES; REMOVAL OFPROPERTY.**  Subject to theprovisions of 7.3 of this Lease, upon the Expiration Date or upon any earliertermination of this Lease, Tenant shall quit and surrender possession of thePremises to Landlord in as good order, condition and repair as when received oras hereafter may be improved by Landlord or Tenant, reasonable wear and tearand repairs which are Landlord’s obligation excepted, and shall, withoutexpense to Landlord, remove or cause to be removed from the Premises allpersonal property and debris, except for any items that Landlord may by writtenauthorization allow to remain.  Tenantshall repair all damage to the Premises resulting from the removal, whichrepair shall include the patching and filling of holes and repair of structuraldamage, provided that Landlord may instead elect to repair any structuraldamage at Tenant’s expense.  If Tenantshall fail to comply with the provisions of this Section, Landlord may effectthe removal and/or make any repairs, and the cost to Landlord shall beadditional rent payable by Tenant upon demand. If Tenant fails to remove Tenant’s personal property from the Premisesupon the expiration of the Term, Landlord may remove, store, dispose of and/orretain such personal property, at Landlord’s option, in accordance with thenapplicable laws, all at the expense of Tenant. If requested by Landlord, Tenant shall execute, acknowledge and deliverto Landlord an instrument in writing releasing and quitclaiming to Landlord allright, title and interest of Tenant in the Premises.

 

# **ARTICLE XVI.  PAYMENTS AND NOTICES**

# ** **

All sumspayable by Tenant to Landlord shall be deemed to be rent under this Lease andshall be paid, without deduction or offset, in lawful money of the UnitedStates to Landlord at its address set forth in Item 12 of the Basic LeaseProvisions, or at any other place as Landlord may designate in writing.  Unless this Lease expressly providesotherwise, as for example in the payment of Basic Rent and the Tenant’s Shareof Operating Costs pursuant to Sections 4.1 and 4.2, all payments shall bedue and payable within five (5) days after demand.  All payments requiring proration shall be prorated on the basisof a thirty (30) day month and a three hundred sixty (360) day year.  Any notice, election, demand, consent,approval or other communication to be given or other document to be deliveredby either party to the other may be delivered in person or by courier orovernight delivery service to the other party, or may be deposited in theUnited States mail, duly registered or certified, postage prepaid, returnreceipt requested, and addressed to the other party at the address set forth inItem 12 of the Basic Lease Provisions, or if to Tenant, at that address or,from and after the Commencement Date, at the Premises (whether or not Tenanthas departed from, abandoned or vacated the Premises).  Either party may, by written notice to theother, served in the manner provided in this Article, designate a different address.  If any notice or other document is sent bymail, it shall be deemed served or delivered seventy-two (72) hours aftermailing.  If more than one person orentity is named as Tenant under this Lease, service of any notice upon any oneof them shall be deemed as service upon all of them.

 

# **ARTICLE XVII.  RULES AND REGULATIONS**

# ** **

Tenant agreesto observe faithfully and comply strictly with the Rules and Regulations,attached as Exhibit E, and any reasonable and nondiscriminatoryamendments, modifications and/or additions as may be adopted and published bywritten notice to tenants by Landlord for the safety, care, security, goodorder, or cleanliness of the Premises, Building, Project and Common Areas.  Landlord shall not be liable to Tenant forany violation of the Rules and Regulations or the breach of any covenant orcondition in any lease by any other tenant or such tenant’s agents, employees,contractors, guests or invitees.  One ormore waivers by Landlord of any breach of the Rules and Regulations by Tenantor by any other tenant(s) shall not be a waiver of any subsequent breach ofthat rule or any other.  Tenant’sfailure to keep and observe the Rules and Regulations shall constitute a breachof this Lease.  In the case of anyconflict between the Rules and Regulations and this Lease, this Lease shall becontrolling.

 

# **ARTICLE XVIII.  BROKER’S COMMISSION**

# ** **

The partiesrecognize as the broker(s) who negotiated this Lease the firm(s), if any, whosename(s) is (are) stated in Item 10 of the Basic Lease Provisions, and agreethat Landlord shall be responsible for the payment of brokerage commissions tothose broker(s) unless otherwise provided in this Lease.  Tenant warrants that it has had no dealingswith any other real estate broker or agent in connection with the negotiationof this Lease, and Tenant agrees to indemnify and hold Landlord harmless fromany cost, expense or liability (including reasonable attorneys’ fees) for anycompensation, commissions or charges claimed by any other real estate broker oragent employed or claiming to represent or to have been employed by Tenant inconnection with the negotiation of this Lease. The foregoing agreement shall survive the termination of thisLease.  If Tenant fails to takepossession of the Premises or if this Lease otherwise terminates prior to theExpiration Date as the result of failure of performance by Tenant, Landlordshall be entitled to recover from Tenant the unamortized portion of anybrokerage commission funded by Landlord in addition to any other damages towhich Landlord may be entitled.

 

20

----

 

# **ARTICLE XIX.  TRANSFER OF LANDLORD’S INTEREST**

# ** **

In the eventof any transfer of Landlord’s interest in the Premises, the transferor shall beautomatically relieved of all further obligations on the part of Landlord, andthe transferor shall be relieved of any obligation to pay any funds in whichTenant has an interest to the extent that such funds have been turned over,subject to that interest, to the transferee and Tenant is notified of thetransfer as required by law .  Nobeneficiary of a deed of trust to which this Lease is or may be subordinate,and no landlord under a so-called sale-leaseback, shall be responsible inconnection with the Security Deposit, unless the mortgagee or beneficiary underthe deed of trust or the landlord actually receives the Security Deposit.  It is intended that the covenants andobligations contained in this Lease on the part of Landlord shall, subject tothe foregoing, be binding on Landlord, its successors and assigns, only duringand in respect to their respective successive periods of ownership.

 

# **ARTICLE XX.  INTERPRETATION**

# ** **

**SECTION 20.1****.**           **GENDER AND NUMBER.**  Whenever the context of this Lease requires,the words “**Landlord**” and “**Tenant**” shall include the plural as well asthe singular, and words used in neuter, masculine or feminine genders shallinclude the others.

 

**SECTION 20.2****.**           **HEADINGS.**  The captions and headings of the articlesand sections of this Lease are for convenience only, are not a part of thisLease and shall have no effect upon its construction or interpretation.

 

**SECTION 20.3****.**           **JOINT AND SEVERAL LIABILITY.**  If more than one person or entity is namedas Tenant, the obligations imposed upon each shall be joint and several and theact of or notice from, or notice or refund to, or the signature of, any one ormore of them shall be binding on all of them with respect to the tenancy ofthis Lease, including, but not limited to, any renewal, extension, terminationor modification of this Lease.

 

**SECTION 20.4****.**           **SUCCESSORS.**  Subject to Articles IX and XIX, all rightsand liabilities given to or imposed upon Landlord and Tenant shall extend toand bind their respective heirs, executors, administrators, successors andassigns.  Nothing contained in thisSection is intended, or shall be construed, to grant to any person other thanLandlord and Tenant and their successors and assigns any rights or remediesunder this Lease.

 

**SECTION 20.5****.**           **TIME OF ESSENCE.**  Time is of the essence with respect to theperformance of every provision of this Lease.

 

**SECTION 20.6****.**           **CONTROLLING LAW/VENUE.**  This Lease shall be governed by andinterpreted in accordance with the laws of the State of California.  Any litigation commenced concerning anymatters whatsoever arising out of or in any way connected to this Lease shallbe initiated in the Superior Court of the county in which the Project islocated.

 

**SECTION 20.7****.**           **SEVERABILITY.**  If any term or provision of this Lease, thedeletion of which would not adversely affect the receipt of any materialbenefit by either party or the deletion of which is consented to by the partyadversely affected, shall be held invalid or unenforceable to any extent, theremainder of this Lease shall not be affected and each term and provision ofthis Lease shall be valid and enforceable to the fullest extent permitted bylaw.

 

**SECTION 20.8****.**           **WAIVER AND CUMULATIVE REMEDIES.**  One or more waivers by Landlord or Tenant ofany breach of any term, covenant or condition contained in this Lease shall notbe a waiver of any subsequent breach of the same or any other term, covenant orcondition.  Consent to any act by one ofthe parties shall not be deemed to render unnecessary the obtaining of thatparty’s consent to any subsequent act. No breach by Tenant of this Lease shall be deemed to have been waived byLandlord unless the waiver is in a writing signed by Landlord.  The rights and remedies of Landlord underthis Lease shall be cumulative and in addition to any and all other rights andremedies which Landlord may have.

 

**SECTION 20.9****.**           **INABILITY TO PERFORM.**  In the event that either party shall bedelayed or hindered in or prevented from the performance of any work or inperforming any act required under this Lease by reason of any cause beyond thereasonable control of that party, other than financial inability, then theperformance of the work or the doing of the act shall be excused for the periodof the delay and the time for performance shall be extended for a periodequivalent to the period of the delay. The provisions of this Section shall not operate to excuse Tenant fromthe prompt payment of rent or from the timely performance of any otherobligation under this Lease within Tenant’s reasonable control.

 

**SECTION 20.10.**    **ENTIREAGREEMENT.**  This Lease andits exhibits and other attachments cover in full each and every agreement ofevery kind between the parties concerning the Premises, the Building, and theProject, and all preliminary negotiations, oral agreements, understandingsand/or practices, except those contained in this Lease, are superseded and ofno further effect.  Tenant waives itsrights to rely on any representations or promises made by Landlord or otherswhich are not contained in this Lease. No verbal agreement or implied covenant shall be held to modify theprovisions of this Lease, any statute, law, or custom to the contrarynotwithstanding.

 

**SECTION 20.11****.**    **QUIET ENJOYMENT.**  Upon the observance and performance of allthe covenants, terms and conditions on Tenant’s part to be observed andperformed, and subject to the other provisions of this Lease, Tenant shall havethe right of quiet enjoyment and use of the Premises for the Term withouthindrance or interruption by Landlord or any other person claiming by orthrough Landlord.

 

21

----

 

**SECTION 20.12****.**    **SURVIVAL.**  All covenants of Landlord or Tenant whichreasonably would be intended to survive the expiration or sooner termination ofthis Lease, including without limitation any warranty or indemnity hereunder,shall so survive and continue to be binding upon and inure to the benefit ofthe respective parties and their successors and assigns.

 

**SECTION 20.13****.**    **INTERPRETATION. **This Lease shall not be construedin favor of or against either party, but shall be construed as if both partiesprepared this Lease.

 

# **ARTICLE XXI.  EXECUTION AND RECORDING**

# ** **

**SECTION 21.1****.**           **COUNTERPARTS.**  This Lease may be executed in one or morecounterparts, each of which shall constitute an original and all of which shallbe one and the same agreement.

 

**SECTION 21.2****.**           **CORPORATE, LIMITED LIABILITY COMPANY ANDPARTNERSHIP AUTHORITY.**  IfTenant is a corporation, limited liability company or partnership, eachindividual executing this Lease on behalf of the corporation, limited liabilitycompany or partnership represents and warrants that he or she is dulyauthorized to execute and deliver this Lease on behalf of the corporation,limited liability company or partnership, and that this Lease is binding uponthe corporation, limited liability company or partnership in accordance withits terms.  Tenant shall, at Landlord’srequest, deliver a certified copy of its board of directors’ resolution,operating agreement or partnership agreement or certificate authorizing orevidencing the execution of this Lease.

 

**SECTION 21.3.**           **EXECUTION OFLEASE; NO OPTION OR OFFER.** The submission of this Lease to Tenant shall be for examination purposesonly, and shall not constitute an offer to or option for Tenant to lease thePremises.  Execution of this Lease byTenant and its return to Landlord shall not be binding upon Landlord,notwithstanding any time interval, until Landlord has in fact executed anddelivered this Lease to Tenant, it being intended that this Lease shall onlybecome effective upon execution by Landlord and delivery of a fully executedcounterpart to Tenant.

 

**SECTION 21.4****.**           **RECORDING.**  Tenant shall not record this Lease withoutthe prior written consent of Landlord. Tenant, upon the request of Landlord, shall execute and acknowledge a “**short form**”memorandum of this Lease for recording purposes.

 

**SECTION 21.5****.**           **AMENDMENTS.**  No amendment or termination of this Leaseshall be effective unless in writing signed by authorized signatories of Tenantand Landlord, or by their respective successors in interest.  No actions, policies, oral or informalarrangements, business dealings or other course of conduct by or between theparties shall be deemed to modify this Lease in any respect.

 

**SECTION 21.6****.**           **EXECUTED COPY.**  Any fully executed photocopy or similarreproduction of this Lease shall be deemed an original for all purposes.

 

**SECTION 21.7****.**           **ATTACHMENTS.**  All exhibits, amendments, riders and addendaattached to this Lease are hereby incorporated into and made a part of thisLease.

 

# **ARTICLE XXII. MISCELLANEOUS**

# ** **

**SECTION 22.1****.**           **NONDISCLOSURE OF LEASE TERMS.**  Tenant acknowledges and agrees that theterms of this Lease are confidential and constitute proprietary information ofLandlord.  Disclosure of the terms couldadversely affect the ability of Landlord to negotiate other leases and impairLandlord’s relationship with other tenants. Accordingly, Tenant agrees that it, and its partners, officers,directors, employees and attorneys, shall not intentionally and voluntarilydisclose, by public filings or otherwise, the terms and conditions of thisLease (“Confidential Information”) to any third party, either directly orindirectly, without the prior written consent of Landlord, which consent may begiven or withheld in Landlord’s sole and absolute discretion.  The foregoing restriction shall not apply ifeither: (i) Tenant is required to disclose the Confidential Information inresponse to a subpoena or other regulatory, administrative or court order, (ii)independent legal counsel to Tenant delivers a written opinion to Landlord thatTenant is required to disclose the Confidential Information to, or file a copyof this Lease with, any governmental agency or any stock exchange; providedhowever, that in such event, Tenant shall, before making any such disclosure(A) provide Landlord with prompt written notice of such required disclosure,(B) at Tenant’s sole cost, take all reasonable legally available steps toresist or narrow such requirement, including without limitation preparing andfiling a request for confidential treatment of the Confidential Information and(C) if disclosure of the Confidential Information is required by subpoena orother regulatory, administrative or court order, Tenant shall provide Landlordwith as much advance notice of the possibility of such disclosure as practicalso that Landlord may attempt to stop such disclosure or obtain an orderconcerning such disclosure.  The formand content of a request by Tenant for confidential treatment of theConfidential Information shall be provided to Landlord at least five (5)business days before its submission to the applicable governmental agency orstock exchange and is subject to the prior written approval of Landlord.  In addition, Tenant may disclose the termsof this Lease to prospective assignees of this Lease and prospective subtenantsunder this Lease with whom Tenant is actively negotiating such an assignment orsublease.

 

**SECTION 22.2****.**           **GUARANTY.**  As a condition to the execution of thisLease by Landlord, the obligations, covenants and performance of the Tenant asherein provided shall be guaranteed in writing by the Guarantor(s) listed inItem 7 of the Basic Lease Provisions (“**Guarantor**”), if any, on aform of guaranty provided by Landlord (“**Guaranty**”).  Any default by a Guarantor under the Guaranty shall be deemed tobe an Event of Default under the terms of this Lease.  In addition, any filing by or against a Guarantor of a petitionto have such

 

22

----

 

Guarantor adjudged a Chapter 7debtor under the Bankruptcy Code or to have debts discharged or a petition forreorganization or arrangement under any law relating to bankruptcy (unless, inthe case of a petition filed against such Guarantor, the same is dismissedwithin thirty (30) days), a Guarantor’s convening of a meeting of its creditorsfor the purpose of effecting a moratorium upon or composition of its debts orthe failure of a Guarantor to pay its material obligations to creditors as andwhen they become due and payable, other than as a result of a good faithdispute by such Guarantor, shall be deemed to be an Event of Default by Tenant.

 

**SECTION 22.3****.**           **CHANGES REQUESTED BY LENDER.**  If, in connection with obtaining financingfor the Project, the lender shall request reasonable modifications in thisLease as a condition to the financing, Tenant will not unreasonably withhold ordelay its consent, provided that the modifications do not materially increasethe obligations of Tenant or materially and adversely affect the leaseholdinterest created by this Lease.

 

**SECTION 22.4****.**           **MORTGAGEE PROTECTION**.  No act or failure to act on the part ofLandlord which would otherwise entitle Tenant to be relieved of its obligationshereunder shall result in such a release or termination unless (a) Tenant hasgiven notice by registered or certified mail to any beneficiary of a deed oftrust or mortgage covering the Building whose address has been furnished toTenant and (b) such beneficiary is afforded a reasonable opportunity to curethe default by Landlord (which in no event shall be less than sixty (60) days),including, if necessary to effect the cure, time to obtain possession of theBuilding by power of sale or judicial foreclosure provided that suchforeclosure remedy is diligently pursued. Tenant agrees that each beneficiary of a deed of trust or mortgagecovering the Building is an express third party beneficiary hereof, Tenantshall have no right or claim for the collection of any deposit from suchbeneficiary or from any purchaser at a foreclosure sale unless such beneficiaryor purchaser shall have actually received and not refunded the deposit, andTenant shall comply with any written directions by any beneficiary to pay rentdue hereunder directly to such beneficiary without determining whether adefault exists under such beneficiary’s deed of trust.

 

**SECTION 22.5****.**           **COVENANTS AND CONDITIONS.**  All of the provisions of this Lease shall beconstrued to be conditions as well as covenants as though the wordsspecifically expressing or imparting covenants and conditions were used in eachseparate provision.

 

**SECTION 22.6****.**           **SECURITY MEASURES.**  Tenant hereby acknowledges that Landlordshall have no obligation whatsoever to provide guard service or other securitymeasures for the benefit of the Premises or the Project.  Tenant assumes all responsibility for theprotection of Tenant, its employees, agents, invitees and property from acts ofthird parties.  Nothing herein containedshall prevent Landlord, at its sole option, from providing security protectionfor the Project or any part thereof, in which event the cost thereof shall beincluded within the definition of Project Costs.

 

**SECTION 22.7****.**           **EXPIRATION OF EXISTING LEASE.**  It is understood that Tenant is presentlyleasing the Premises pursuant to a lease dated April 3, 1989 (the “ExistingLease”), which Lease was subsequently amended. The parties agree that the Existing Lease shall expire in accordancewith its terms as of the day preceding the Commencement Date of this Lease.

 
| **LANDLORD:**          | **TENANT:**                         |
|------------------------|-------------------------------------|
|                   |                                |
| **THE IRVINE COMPANY** | **4-D NEUROIMAGING,**               |
|                   |                                | a California corporation |
|                   |                                |   |   |
|                   |                                |   |   |
| By:                    |  /s/ William R. Halford        |   | By: |  /s/ D. Scott Buchanan |   |
|                   | William R. Halford, President       |   | Name: D. Scott Buchanan |
|                   | Office Properties                   |   | Title: President & CEO |
|                   |                                |   |   |
|                   |                                |   |   |
| By:                    |  /s/ Christopher Popma         |   | By: |  /s/ Eugene C. Hirschkoff |   |
|                   | Christopher Popma, Vice President   |   | Name:  Eugene C. Hirschkoff |
|                   | Asset Management, Office Properties |   | Title:  Corporate Secretary |

 

23

----

 

**EXHIBIT B**

 

THE IRVINE COMPANY - INVESTMENT PROPERTIES GROUP

 

HAZARDOUS MATERIAL SURVEY FORM

 

The purpose ofthis form is to obtain information regarding the use of hazardous substances onInvestment Properties Group (“IPG”) property. Prospective tenants and contractors should answer the questions in lightof their proposed activities on the premises. Existing tenants and contractorsshould answer the questions as they relate to ongoing activities on thepremises and should update any information previously submitted.

 

If additionalspace is needed to answer the questions, you may attach separate sheets ofpaper to this form. When completed, the form should be sent to the followingaddress:

 

INSIGNIA/ESG, INC.8105 Irvine Center Drive, Suite 350Irvine, CA 92618

 

Yourcooperation in this matter is appreciated. If you have any questions, please call your property manager at(949) 753-4744 for assistance.

 

1.                                       GENERALINFORMATION.

 
| Name of  Responding Company: |   | 4D Neuroimaging |
|------------------------------|--------|-----------------|
| Check all  that apply:       |   | Tenant          |   | ý |   | Contractor |   | o |
|                         |   | Prospective     |   | o |   | Existing |   | ý |

 

MailingAddress:  9727 Pacific Heights Blvd, SanDiego, California 92121

Contact person& Title:  Johanna Meyers - Directorof Manufacturing

TelephoneNumber:  (858) 458-5682

 

Current TIC Tenant(s):

 

Address ofLease Premises:  9727 Pacific HeightsBlvd, San Diego, CA 92121

 

Length ofLease or Contract Term:  5 years

 

Prospective TIC Tenants(s):

 

Address ofLeased Premises:

 

Address ofCurrent Operations:

 

Describe theproposed operations to take place on the property, including principal productsmanufactured or services to be conducted. Existing tenants and contractors should describe any proposed changes toongoing operations.

Medicaldiagnostic equipment

 

24

----

 

2.                                     HAZARDOUSMATERIALS.  For the purposes of thisSurvey Form, the term “hazardous material” means any raw material, product oragent considered hazardous under any state or federal law.  The term does not include wastes which areintended to be discarded.

 

2.1                                 Willany hazardous materials be used or stored on site?

 
| Chemical  Products                     |   | Yes |   | ý |   | No |   | o      |
|----------------------------------------|--------|-----|--------|--------|--------|----|--------|--------|
| Biological  Hazards/ Infectious Wastes |   | Yes |   | o      |   | No |   | ý |
| Radioactive  Materials                 |   | Yes |   | o      |   | No |   | ý |
| Petroleum  Products                    |   | Yes |   | ý |   | No |   | o      |

 

2.2                                 Listany hazardous materials to be used or stored, the quantities that will beon-site at any given time, and the location and method of storage (e.g.,bottles in storage closet on the premises).

 
| **Hazardous  Materials** |   | **Location and Method  of Storage** |   | **Quantity** |
|--------------------------|--------|-------------------------------------|--------|--------------|
|                     |   |                                |   |         |
| See attached  sheet      |   |                                |   |         |
|                     |   |                                |   |         |

 

2.3                                 Isany underground storage of hazardous materials proposed or currently conductedon the premises?  Yes  o  No  ý

 

If yes,describe the materials to be stored, and the size and construction of thetank.  Attach copies of any permitsobtained for the underground storage of such substances.

 

 

3.                                       HAZARDOUSWASTE.  For the purposes of thisSurvey Form, the term “hazardous waste” means any waste (including biological,infectious or radioactive waste) considered hazardous under any state orfederal law, and which is intended to be discarded.

 

3.1                                 Listany hazardous waste generated or to be generated on the premises, and indicatethe quantity generated on a monthly basis.

 
| **Hazardous  Materials** |   | **Location and Method  of Storage** |   | **Quantity** |
|--------------------------|--------|-------------------------------------|--------|--------------|
|                     |   |                                |   |         |
| See attached  sheet.     |   |                                |   |         |
|                     |   |                                |   |         |

 

25

----

 

3.2                                 Describethe method(s) of disposal (including recycling) for each waste.  Indicate where and how often disposal willtake place.

 
| **Hazardous  Materials**                                                                                                                                                    |   | **Location and Method  of Storage** |   | **Disposal Method** |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-------------------------------------|--------|---------------------|
|                                                                                                                                                                        |
| all  Hazardous Waste disposed by a Hazardous Waste Transporter Company - PFR  Environmental Services Inc. 1-2 times a year. 100 N [ILLEGIBLE] - West  Covina  CA 91791 |

 

3.3                                 Isany treatment or processing of hazardous, infectious or radioactive wastescurrently conducted or proposed to be conducted on the premise?Yes  o   No  ý

 

If yes, pleasedescribe any existing or proposed treatment methods.

 

 

3.4                                 Attachcopies of any hazardous waste permits or licenses issued to your company withrespect to its operations on the premises.

 

4.                                       SPILLS

 

4.1                                 Duringthe past year, have any spills or releases of hazardous materials occurred onthe premises?      Yes o          No ý

 

If so, pleasedescribe the spill and attach the results of any testing conducted to determinethe extent of such spills.

 

 

4.2                                 Wereany agencies notified in connection with such spills?  Yes  o   No  ý

 

If so, attachcopies of any spill reports or other correspondence with regulatory agencies.

 

4.3                                 Wereany clean-up actions undertaken in connection with the spills?Yes  o   No  ý

 

If so, brieflydescribe the actions taken. Attach copies of any clearance letters obtainedfrom any regulatory agencies involved and the results of any final soil orgroundwater sampling done upon completion of the clean-up work.

 

 

5.                                       WASTEWATERTREATMENT/DISCHARGE

 

5.1                                 Doyou discharge industrial wastewater to:

 
| o    storm drain?   |   | o    sewer?                 |
|-----------------------------------------|--------|-------------------------------------------------|
| o    surface water? |   | ý   no industrial discharge |

 

26

----

 

5.2                                 Isyour industrial wastewater treated before discharge?    Yes  o  No  ý

 

If yes,describe the type of treatment conducted.

 

 

*5.3                          Attachcopies of any wastewater discharge permits issued to your company with respectto its operations on the premises.

 

6.                                       AIRDISCHARGES.

 

6.1                                 Doyou have any air filtration systems or stacks that discharge into the air?Yes  o   No  ý

 

6.2                                 Doyou operate any equipment that require air emissions permits?Yes  o   No  ý

 

*6.3                          Attachcopies of any air discharge permits pertaining to these operations.

 

7.                                       HAZARDOUSMATERIALS DISCLOSURES.

 

7.1                                 Doesyour company handle an aggregate of at least 500 pounds, 55 gallons or 200cubic feet of hazardous material at any given time?    Yes  o   No  ý

 

7.2                                 Hasyour company prepared a Hazardous Materials Disclosure – Chemical Inventory andBusiness Emergency Plan or similar disclosure document pursuant to state orcounty requirements?      Yes  ý  No  o

 

If so, attacha copy.

 

7.3                                 Areany of the chemicals used in your operations regulated under Proposition 65?   No-

If so,describe the procedures followed to comply with these requirements.

 

 

7.4                                 Isyour company subject to OSHA Hazard Communication Standard Requirements?     Yes  ý  No  o

 

If so,describe the procedures followed to comply with these requirements.Company has a Safety plan & procedures that are used to train employees andcommunicate to employees.

 

8.                                       ANIMALTESTING.

 

8.1                                 Doesyour company bring or intend to bring live animals onto the premises forresearch or development purposes? Yes    o       No  ý

 

If so,describe the activity.

 

 

27

----

 

8.2                                 Doesyour company bring or intend to bring animal body parts or bodily fluids ontothe premises for research or development purposes?     Yes  o    No  ý

 

If so,describe the activity.

 

 

9.                                       ENFORCEMENTACTIONS, COMPLAINTS.

 

9.1                                 Hasyour company ever been subject to any agency enforcement actions,administrative orders, lawsuits, or consent orders/decrees regardingenvironmental compliance or health and safety?    Yes  o      No  ý

 

If so,describe the actions and any continuing obligations imposed as a   result of these actions.

 

 

9.2                                 Hasyour company ever received any request for information, notice of violation ordemand letter, complaint, or inquiry regarding environmental compliance orhealth and safety?    Yes  o     No  ý

 

9.3                                 Hasan environmental audit ever been conducted which concerned operations oractivities on premises occupied by you? Yes    o      No  ý

 

9.4                                 Ifyou answered “yes” to any questions in this section, describe the environmentalaction or complaint and any continuing compliance obligation imposed as aresult of the same

 

 
|   | By:    | /s/ Johanna  Meyers |
|--------|--------|---------------------|
|   |   | Name:               | Johanna  Meyers |
|   |   | Title:              | Director of  Mfg. |
|   |   | Date:               | 2/14/2003 |

 

28

----

 
| **DEC** |   | **DEPARTMENT OF ENVIRONMENTAL HEALTH  UNIFIED PROGRAM FACILITY PERMIT** |   | **2003** |
|---------|--------|-------------------------------------------------------------------------|--------|----------|

 

P.O. BOX 129261, SAN DIEGO, CA 92112-9261 619-338-2222/1-800-253-9933FAX 619-338-2377 www.sdcdeh.org

 
| OWNER/OPERATOR  NAME: |   |                                           |  |
|-----------------------|--------|------------------------------------------------|--|
| FACILITY  NAME:       |   | 4-D  NEUROIMAGING                              |
| FACILITY LOCATED  AT: |   | 9717 PACIFIC  HEIGHTS BLVD San Diego, CA 92121 |

 
| Mailing  Address |   | 4-D  NEUROIMAGING                                                      |    | *Gary  Erbec?    *DIRECTOR, DEH |
|------------------|--------|------------------------------------------------------------------------|---------|-----------------------------------------------------|
|             |   |                                                                   |    |                                                |
|             |   | 4-D  NEUROIMAGING  9717-27 PACIFIC HEIGHTS BL  SAN DIEGO CA 92121-3719 | PERMIT: | HK07-129644  6HK67                                  |

 

 

 

**ISSUEDATE:    31-DEC-2001**

 

EXPIRATION DATE :**    31-DEC-2003**,   RENEWAL IS REQUIRED BEFORE EXPIRATION DATE.

ANY CHANGES IN THE ABOVE OWNER, LOCATION OR NOTIFICATION(S) MUST BEREPORTEDBY SUBMITTING A NEW UNIFIED FACILITY PERMIT APPLICATIONVERIFY THE ABOVE MAILING ADDRESS AND REPORT ANY CHANGES

 

**PERMIT IS NOT VALID FOR ANY FACILITY LOCATIONOR OWNER NOT LISTED ABOVEPOST IN A CONSPICUOUS PLACE**

**A COPY OF THIS PERMIT MUST BE MAINTAINED ATTHE FACILITY LOCATION**

 

**Thispermit is provisional.  The Director ordesignee of the Director may order that the Unified Program Facility Permit orany permit element be denied, suspended or revoked for violation of anyrelevant requirement established or provided by law.**

 

----

 
|                                                  |   | **COUNTY OF SAN DIEGO** |
|--------------------------------------------------|--------|-------------------------|
| **DEPARTMENT OF ENVIRONMENTAL HEALTH**           |
| P.O. BOX 129261, SAN DIEGO, CA 92112-9261        |
| (619) 338-2222/(800) 253-9933 FAX (619) 338-2377 |
| Web Site : www.sdcdeh.org                        |

 

**INVOICE/RENEWALNOTICE**

 
| Permit Type:                      |   | HK07                       |   | GENERAL HAZARDOUS MATERIALS PERMIT |   | Permit Number:            |   | 129644 |
|-----------------------------------|--------|----------------------------|--------|------------------------------------|--------|---------------------------|--------|--------|
|                              |   |                       |   |                               |   |                      |   |   |
| Business Name and Mailing Address |   | Billing Date:              |   | 10/17/2002                         |
|                              |   | 4-D NEUROIMAGING           |   | Owner/Operator Name(s):            |   | 9717 PACIFIC HEIGHTS BLVD |
|                              |   |                       |   | Business Location:                 |   | SAN DIEGO, CA 92121       |
|                              |   | 4-D NEUROIMAGING           |   |                               |   |                      |
|                              |   | 9717-27 PACIFIC HEIGHTS BL |   | Payment Due Date:                  |   | 12/31/2002                |
|                              |   | SAN DIEGO CA 92121-3719    |   | Amount Due:                        |   | $672.50                   |
|                              |   |                       |   | Unit:                              |   |                      |
|                                   |        |                            |        |                                    |        |                           |        |        |  |  |  |  |

 

PERMIT RENEWAL PERIOD 12/31/2002-12/31/2003

 

BILLING ITEMIZATION

 
| **Fee Code**  |   | **Units** |   | **Description**               |   | **Amount** |   | **Fee Code** |   | **Units** |   | **Description** |   |
|---------------|--------|-----------|--------|-------------------------------|--------|------------|--------|--------------|--------|-----------|--------|-----------------|--------|
| 6HBASE-EF     |   | 0         |   | BASE FEE FOR NON-MEDICAL HAZ  |   | $          | 180.00 |         |   |      |   |            |   |   |
| 6HCUPA1E      |   | 0         |   | GENERAL STATE CUPA OVERSITE/S |   | $          | 17.50  |         |   |      |   |            |   |   |
| 6HWASTEE      |   | 240       |   | HAZARDOUS WASTE FEE           |   | $          | 240.00 |         |   |      |   |            |   |   |
| 6HMAT—EF |   | 235       |   | HAZ MAT INVENTORY FEE         |   | $          | 235.00 |         |   |      |   |            |   |   |

 

 
| Current Fees: |   | $ | 672.50 |   |              |   |   |   |
|---------------|--------|---|--------|--------|-------------------|--------|--------|--------|
| Payments:     |   | $ | 0.00   |   | TOTAL AMOUNT DUE: |   | $      | 672.50 |   |
|               |        |   |        |        |                   |        |        |        |  |

 

----

*Penalty fees are assessed at the rate of 50% or $50.00, whichever is less, ifthe payment is received after the expiration date on your permit.  An additional 100% or $100.00, for a totalof 150% or $150.00, whichever is less, will be assessed, if payment is notreceived on or before the last day of the month following the expiration dateof your permit.  YOUR PERMITEXPIRES: 12/31/2002

 

*Please detach andreturn the bottom stub with your payment.*

 

*Make check payableto: COUNTY OF SAN DIEGO, DEH.  Pleasemake any changes on the reverse side of your payment sn*

 

 
|                                      |                                                                       | Permit Type:       |   | HK07                                                    |
|-------------------------------------------|----------------------------------------------------------------------------|--------------------|--------|---------------------------------------------------------|
|                                      |                                                                       | Permit Number:     |   | 129644                                                  |
| COUNTY OF SAN DIEGO                       |                                                                       | Business Name:     |   | 4-D NEUROIMAGING                                        |
| DEPARTMENT OF ENVIRONMENTAL HEALTH        |                                                                       | Owner Name:        |   |                                                    |
| P.O. BOX 129261  SAN DIEGO, CA 92112-9261 |                                                                       | Business Location: |   | 9717 PACIFIC HEIGHTS BLVD  SAN DIEGO, CA 92121     |
|                                      |                                                                       |               |   |                                                    |
| o                                         | *Location/Ownership changes to your account?  Check here and see reverse.* |               | APN #: |                                                    | 341-370-11-00 |
|                                      |                                                                       |               |   |                                                    |
|                                      |                                                                       |               |   | PAYMENT DUE DATE:                                       |   | 12/31/2002 |
|                                      |                                                                       |               |   |                                                    |   |   |
|                                      |                                                                       |               |   | AMOUNT DUE:                                             |   | $672.50 |
|                                      |                                                                       |               |   |                                                    |   |   |
|                                      |                                                                       |               |   | AMOUNT PAID:                                            |   |   |
|                                      |                                                                       |               |   |                                                    |   |   |
|                                      |                                                                       |               |   | *If payment is made by Credit Card, Please  write your* |
|                                      |                                                                       |               |   |                                                    |
|                                      |                                                                       |               |   | *Confirmation #*                                        |
|                                           |                                                                            |                    |        |                                                         |  |  |  |  |

 

----

 
|             | HAZARDOUS MATERIALS BUSINESS  PLAN | OFFICE USE ONLY                                                                                                     |
|------------------|------------------------------------|---------------------------------------------------------------------------------------------------------------------|
|             |                               |                                                                                                                |
|             | II. EMERGENCY RESPONSE PLAN        | REVIEWED BY:                                                           |
|             |                               |                                                                                                                |
| Date 12-Feb-2003 |                               | DATE  :                   |
|             |                               |                                                                                                                |
| UPFP # 29644     |                               |                                                                                                                |

 

Dunnand Bradstreet #

 

1.               Business Name : 4D Neuroimaging

 

2.               Business Site Address: 9727 Pacific HeightsBlvd

 

3.               Business Telephone: (858) 453-6300                                                                                                                                                                                                  24-Hour: (619) 890-6350 x

 

Brief description of product manufactured any/or service provided:Medical Diagnostic Equipment

 

Evacuation Procedures: 1) Sound fire alarm. 2) Employees to exit bymeans of closest egress and assemble in the northwest area of the parking lot.3) Supervisors take roll call, everyone to remain outside until safetycoordinator allows for re-entry.

 

5.               Notification Procedures:

 

In the event of a release or threatened release of a hazardous materialthe following agencies are to be notified.

 
|   |                               |   | Phone #                            |
|--------|------------------------------------|--------|------------------------------------|
| A.     | Local Emergency Response Agencies  |   | 911                                |
| B.     | Hazardous Materials Division       |   | 338-2222 (911 after working hours) |
| C.     | State Office of Emergency Services |   | (916) 845-8991                     |
|   | Toll-Free Number                   |   | (800) 852-7550                     |

 

Name of person(s) responsible for completing notifications: MikePollard or Alternate: Johanna Meyers

 

Describe notification procedures : Call 911 if emergency response isneeded or after hours

 

Emergency Procedures : For large spill or fire : 1) Sound fire alarmand evacuate building. 2) Call 911. 3) Authorized personnel to evaluate thesituation and take measures to contain spill or use portable fireextinguishers.

 

For Small spill : 1) Notify above agencies. 2) Authorized personnelwill contain and clean spill.  Usedabsorbent and PPE will be handled and disposed of as hazardous material.

 

County of San DiegoDepartment of Environmental Health

 

23

----

 
| DATE   2/11/2003 |   | Submit to HMD |
|----------------------------|--------|---------------|
|                       |   | HE58          |

 
| (OFFICE USE ONLY) |   | HAZARDOUS MATERIALS BUSINESS PLAN |   |
|-------------------|--------|-----------------------------------|--------|
| ESTAB NUMBER      |   | II. EMERGENCY RESPONSE PLAN       |   |
|              |   |                              |   |
| H 296444          |   | EMERGENCY COORDINATOR INFORMATION |   |

2

 

PLEASE LIST THE NAME,TITLE/POSITION AND PHONE NUMBERS (OFFICE AND HOME/24-HR) OF THE EMERGENCYCOORDINATOR AND ALTERNATES WHO ARE QUALIFIED AND AUTHORIZED TO ASSIST EMERGENCYRESPONSE PERSONNEL (FOR EXAMPLE, FIRE PERSONNEL) IN THE EVENT OF AN EMERGENCY.

 
| ITEM |   | NAME OF  EMERGENCY COORDINATOR |
|------|--------|--------------------------------|
| 01   |   | MIKE POLLARD                   |
| 15   |   | 21                             |

 
| TITLE                  |   | WORK PHONE |   | HOME/24-HR  PHONE |
|------------------------|--------|------------|--------|-------------------|
| Production  Supervisor |   | 4585625    |   | 8584877359        |
| 51                     | 71     |       | 78     |              |

 
| NUMBER |   | STREET         |   | CITY      |
|--------|--------|----------------|--------|-----------|
| 16760  |   | Palmero  Drive |   | San Diego |
| 88     |   | 93             | 110    |      |

 
| ITEM |   | NAME OF  ALTERNATE |
|------|--------|--------------------|
| 02   |   | Johanna  Meyers    |
| 15   |   | 21                 |

 
| TITLE             |   | WORK PHONE |   | HOME/24-HR  PHONE |
|-------------------|--------|------------|--------|-------------------|
| Director of  MFG. |   | 4585682    |   | 6198906350        |
| 51                | 71     |       | 78     |              |

 
| NUMBER |   | STREET             |   | CITY      |
|--------|--------|--------------------|--------|-----------|
| 9454   |   | Twin Trails  # 102 |   | San Diego |
| 88     |   | 93                 | 110    |      |

 
| ITEM |   | NAME OF  ALTERNATE |
|------|--------|--------------------|
| 03   |   | Scott  Buchanan    |
| 15   |   | 21                 |

 
| TITLE           |   | WORK PHONE |   | HOME/24-HR  PHONE |
|-----------------|--------|------------|--------|-------------------|
| President,  CEO |   | 4585657    |   | 6199926365        |
| 51              | 71     |       | 78     |              |

 
| NUMBER |   | STREET             | CITY   |             |
|--------|--------|--------------------|--------|------------------|
| 4124   |   | Stone Bridge  Lane |   | Rancho Santa  Fe |
| 88     |   | 93                 | 110    |             |

 

County of San Diego

Department of Environmental Health

 

20

----

 
| Date:  2003-02-12  UPFP# 29644 |   | HAZARDOUS MATERIALS BUSINESS PLANIII.  EMPLOYEE TRAINING DESCRIPTION |   | OFFICE USE ONLY

 

REVIEWED  BY:              

 

DATE:                                 |
|-------------------------------------|--------|---------------------------------------------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

The following describes theemployee training provided for all employees that handle hazardous substances.

 
| 1.     | Training  Topic - Procedures for handling hazardous materials, including hazardous  wastes:                                                    |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------|
|   | Persons  Trained: Mike Pollard                                                                                                                 |   |   |   |   |
|   | Training  Time: 4 Hours                                                                                                                        |   | Refresher  Frequency: Annual |   | Refresher  Time: 1 Hour |
|   | Training  Content:  Hazardous Waste Operations  and Emergency Response 1st Responder at the awareness level                               |
|   |                                                                                                                                           |   |   |   |   |
| 2.     | Training  Topic - Procedures for coordination with emergency response agencies:                                                                |
|   | Persons Trained:  Mike Pollard                                                                                                                 |   |   |   |   |
|   | Training  Time: 4 Hours                                                                                                                        |   | Refresher  Frequency:  Annual |   | Refresher  Time 1 Hour |
|   | Training  Content:  In house procedures define  actions to be taken for various type of emergencies to include fire and  chemical spills. |
|   |                                                                                                                                           |   |   |   |   |
| 3.     | Training  Topic - Use of emergency response equipment and materials under the business  control:                                               |
|   | Persons  Trained: Mandatory Meeting for all Employees                                                                                          |
|   | Training  Time: 1 hour refresher                                                                                                               |   | Refresher  Frequency:  Annual |   | Refresher  Time: 1 Hour |
|   | Training  Content: Hazcom “Right to Know”                                                                                            |
|   |                                                                                                                                           |   |   |   |   |
| 4.     | Training  Topic - Emergency Response Plan Implementation:                                                                                      |
|   | Persons  Trained:  1) Mike Pollard, 2) Shannon  Micheal                                                                                   |
|   | Training  Time: 4 Hours                                                                                                                        |   | Refresher  Frequency: Annual |   | Refresher  Time: 1 Hours |
|   | Training  Content:  Hazardous waste operations  and emergency response.  “1st  Responder” at awareness level               |

 

25

----

 

 

----

 

The following information shallbe submitted for determination of occupancy group classification and/or aCEDMAT inspection declaration.  Anydeviations may require reclassification of this building.

 

List all of the followinghazardous materials, including waste materials, used or stored in yourbusiness:

 
| Explosives  or Blasting Agents     |   | Unstable  (Reactive) Materials   |   | Organic  Peroxides    |   | Radioactives          |
|------------------------------------|--------|----------------------------------|--------|-----------------------|--------|-----------------------|
| Compressed  Gases                  |   | Water-Reactive  Materials        |   | Oxidizers             |   | Corrosives            |
| Flammable  and Combustible Liquids |   | Cryogenic  Fluids                |   | Pyrophoric  Materials |   | Other Health  Hazards |
| Flammable  Solids                  |   | Highly Toxic  or Toxic Materials |   |                  |   |                  |

 
| **1.**                           |   | **2.**      |   | **3.**                                |   | **4.**                                           |   | **5.**                                     |   | **6.**                           | **QUANTITIES** |                               | **7.** |                |
|----------------------------------|--------|-------------|--------|---------------------------------------|--------|--------------------------------------------------|--------|--------------------------------------------|--------|----------------------------------|----------------|------------------------------------|--------|---------------------|
| **CHEMICAL NAME**                |   | **CAS NO.** |   | **CONCEN-  TRATION  (PERCENT-  AGE)** |   | **CLASSIFICATION  (UFC APPENDIX VI-A)   (MSDS)** |   | **PROPERTIES  (FLASH POINT,  LD-50,  pH)** |   | **a.**

**IN USE  OPEN  SYSTEM** |           | **B.**

**IN USE  CLOSED  SYSTEM** |   | **c.**

**STORAGE** |   | **LOCATION** |   |
| ACETONE                          |   | 67-64-1     |   | 100                                   |   | FLAMMABLE LIQUID                                 |   | 0°F                                   |   | 800ML                            |           | 0                                  |   | 4  GAL.             |   | MFG. STORAGE & FLOOR |   |
| ISOPROPATIC ALCOHOL              |   | 67-63-0     |   | 100                                   |   | FLAMMABLE LIQUID                                 |   | 53°F                                  |   | 500ML                            |           | 0                                  |   | 4  GAL.             |   | MFG STORAGE  & FLOOR |   |
| KESTER FLUX CLEANER              |   | 127-18-4    |   | 100                                   |   | OTHER                                            |   | NONE                                       |   | 1  QT.                           |           | 0                                  |   | 5  GAL.             |   | MFG. STORAGE & FLOOR |   |
| EPOXY PRIMER 5001-01A            |   | VARIED      |   | VARIED                                |   | FLAMMABLE LIQUID                                 |   | 100°F                                 |   | 0                                |           | 0                                  |   | 2  GAL.             |   | MFG. STORAGE |   |
| EPOXY PRIMER 5001-02B            |   | VARIED      |   | VARIED                                |   | FLAMMABLE LIQUID                                 |   | 100°F                                 |   | 0                                |           | 0                                  |   | 2  GAL.             |   | MFG. STORAGE |   |
| POLYURETHANE PAINT 4801          |   | VARIED      |   | VARIED                                |   | FLAMMABLE LIQUID                                 |   | 101°F                                 |   | 0                                |           | 0                                  |   | 2  GAL.             |   | MFG. STORAGE |   |
| POLYURETHANE PAINT CATALYST 4801 |   | VARIED      |   | VARIED                                |   | FLAMMABLE LIQUID                                 |   | 101°F                                 |   | 0                                |           | 0                                  |   | 1  GAL.             |   | MFG. STORAGE |   |
| PAINT THINNER 29E                |   | VARIED      |   | VARIED                                |   | FLAMMABLE LIQUID                                 |   | 21°F                                  |   | 0                                |           | 0                                  |   | 1  GAL.             |   | MFG. STORAGE |   |
| PRIMER THINNER #8                |   | VARIED      |   | VARIED                                |   | FLAMMABLE LIQUID                                 |   | 101°F                                 |   | 0                                |           | 0                                  |   | 1  GAL.             |   | MFG. STORAGE |   |
| EPOXY RESIN CU 303 A             |   | VARIED      |   | VARIED                                |   | OTHER                                            |   | 200°F                                 |   | 1  QT.                           |           | 0                                  |   | 3  QT.              |   | MFG. STORAGE & FLOOR |   |
| EPOXY RESIN CU 303 B             |   | VARIED      |   | VARIED                                |   | OTHER                                            |   | 200°F                                 |   | 1  QT.                           |           | 0                                  |   | 3  QT.              |   | MFG. STORAGE & FLOOR |   |
| EPOXY RESIN WEST SYSTEMS 105     |   | VARIED      |   | VARIED                                |   | OTHER                                            |   | 200° F                                |   | 1  GAL.                          |           | 0                                  |   | 0                   |   | MFG. FLOOR |   |
| EPOXY RESIN WEST SYSTEMS 205     |   | VARIED      |   | VARIED                                |   | OTHER                                            |   | 200°F                                 |   | 1  QT.                           |           | 0                                  |   | 0                   |   | MFG. FLOOR |   |
| CREAM WIRE STRIPPER              |   | VARIED      |   | VARIED                                |   | CORROSIVE                                        |   | 230°F                                 |   | 1  QT.                           |           | 0                                  |   | 0                   |   | MFG. FLOOR |   |
| VACCUM PUMP OIL                  |   | VARIED      |   | VARIED                                |   | OTHER                                            |   | 425°F                                 |   | 1  GAL.                          |           | 0                                  |   | 1  GAL.             |   | MFG. STORAGE & FLOOR |   |
| ACETYLENE                        |   | VARIED      |   | VARIED                                |   | FLAMMABLE GAS                                    |   | 0°F                                   |   | 0                                |           | 250.CU.FT.                         |   | 0                   |   | MFG. FLOOR |   |
| OXYGEN                           |   | 7782-44-7   |   | 100                                   |   | OXIDIZER                                         |   | NONE                                       |   | 0                                |           | 125  CU.FT                         |   | 0                   |   | MFG. FLOOR |   |
| [ILLEGIBLE]                      |   | 7440-59-7   |   | 100                                   |   | SIMPLE  ASPHYXSANT                               |   | NONE                                       |   | 0                                |           | 870  CU.FT.                        |   | 291  CU.FT.         |   | MFG. FLOOR |   |
| [ILLEGIBLE], LIQUID              |   | 7440-59-7   |   | 100                                   |   | SIMPLE  ASPHYXSANT                               |   | NONE                                       |   | 0                                |           | 100CT.                             |   | 100.  CT.           |   | MFG. FLOOR |   |
| [ILLEGIBLE], LIQUID              |   | 7727-37-9   |   | 100                                   |   | SIMPLE  ASPHYXSANT                               |   | NONE                                       |   | 0                                |           | 230CT.                             |   | 0                   |   | MFG. FLOOR |   |
| HYDROCHLORIC ACID                |   | 7647-01-0   |   | 100                                   |   | CORROSIVE                                        |   | NONE                                       |   | 1  GAL.                          |           | 0                                  |   | 0                   |   | MFG. FLOOR |   |
|                                  |        |             |        |                                       |        |                                                  |        |                                            |        |                                  |                |                                    |        |                     |  |  |  |  |

 

----

 

 
|                  | MIWP       |
|-----------------------|------------|
| THE CITY OF SAN DIEGO |
|                  | 2000066906 |

 

November 21, 2000

 

 

4-D Neuroimaging

9727 Pacific Heights Boulevard

San Diego, CA 92121

 
| Attention: |   | Scott  Buchanan                                      |
|------------|--------|------------------------------------------------------|
|       |   |                                                 |
| Subject:   |   | No  Requirement for Industrial User Discharge Permit |
|       |   | **Industry Number 02-0403**                          |

 

The Industrial WastewaterControl Program has evaluated the information supplied in your Industrial UserDischarge Permit Application for, and obtained in our on-site inspection of,the facility addressed above.

 

There is no current or proposeddischarge of industrial wastewater to sewer, therefore it has been determinedthat the subject permit is not required for this facility at this time.  **Should thecharacter or volume of industrial wastewater generated on-site changesignificantly in the future, or should an industrial discharge to sewer beproposed in the future, you must file a new application,** and permitapplicability will be reevaluated at that time.

 

If we can be of furtherassistance, please call 654-4100.

 

Sincerely,

 

 
| /s/ Barbara  Sharatz |   |
|----------------------|--------|
| BARBARA  SHARATZ     |
| Program  Manager     |

 

 

JRD:bjl

 

 
|  | **Metropolitan Pretreatment Program****•  Metropolitan Wastewater**9192 Topaz Way •  San Diego, CA 92123-1119  Tel (619) 654-4100 Fax (619) 654-4110 |   |
|--|----------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|