Complaint Unlimited Fee Applies

Cal. Super. - 6th Dist.March 29, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 DAWN C. SWEATT, CA STATE BAR N0. 238005 LEILA N. SOCKOLOV, CA STATE BAR N0. 282946 BERLINER COHEN, LLP TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 951 13-2233 TELEPHONE: (408) 286-5800 FACSIMILE: (408) 998-5388 dawn.sweatt@berliner.com leila.sockolov@berliner.com E-FILED 3/29/2021 4:15 PM Clerk of Court Superior Court of CA, County of Santa Clara 21CV381441 Reviewed By: M Vu ATTORNEYS FOR PLAINTIFF HARPEL ASSOCLATES, LLC SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA COUNTY UNLIMITED JURISDICTION HARPEL ASSOCIATES, LLC, a California limited liability company, Plaintiff, V. PHYSICAL CULTURE STRENGTH AND CONDITIONING, a California corporation, SHEILA LEICH MILLER, an individual, MITCHELL LANCE MILLER, an individual, MARNEL ELLEN KING, an individual, PATRICIA KATHLEEN LYNCH, an individual, and DOES 1 through 10, Inclusive, Defendants. Plaintiff HARPEL ASSOCIATES, LLC (“Plaintiff”) hereby alleges and complaints against Defendants PHYSICAL CULTURE STRENGTH AND CONDITIONING (“Tenant”), SHEILA LEICH MILLER, MITCHELL LANCE MILLER, MARNEL ELLEN KING, PATRICIA KATHLEEN LYNCH, and DOES 1 through 20, inclusive, (collectively, “Defendants”) as follows: CASE NO. 21 CV381441 COMPLAINT FOR BREACH OF LEASE AGREEMENTS AND BREACH OF GUARANTY AGREEMENTS PARTIES 1. Plaintiff is, and at all times relevant hereto was, a corporation organized and existing under the laws of the State of California, with its principal place 0fbusiness in Santa Clara County, California. -1- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 2. Tenant is, and at all times relevant hereto was, a corporation organized and existing under the laws ofthe State of California, with its principal place ofbusiness in Santa Clara County, California. Tenant operated its business in Campbell, Santa Clara County. 3. Plaintiff is informed and believes, and based thereon alleges, that Defendant SHEILA LEICH MILLER is an individual residing in Santa Clara County, California. 4. Plaintiff is informed and believes, and based thereon alleges, that Defendant MITCHELL LANCE MILLER is an individual residing in Santa Clara County, California. 5. Plaintiff is informed and believes, and based thereon alleges, that Defendant MARNEL ELLEN KING is an individual residing in Santa Clara County, California. 6. Plaintiff is informed and believes, and based thereon alleges, that Defendant PATRICIA KATHLEEN LYNCH is an individual residing in Santa Clara County, California. 7. Plaintiff does not know the true names and capacities, Whether individual, corporate, associate, or otherwise 0f Doe defendants sued herein as Does 1 through 10, inclusive. Plaintiff sues said defendants by such fictitious names and prays leave t0 amend this Complaint When the true names and capacities 0f said defendants have been ascertained. 8. Plaintiff is informed and believes and 0n that basis alleges that each of the parties named as defendants in this lawsuit, at all times relevant hereto, was the agent, servant, or employee 0fthe other, and in doing or omitting to do the things hereafter alleged, was acting within the course and scope of his, her, 0r its agency, and With the full knowledge and consent, either expressed or implied, of each of the other defendants. ALTER EGOS 9. Plaintiff is informed and believes and thereon alleges that there exists such a unity 0f interest and ownership between Defendants that the individuality and separateness 0f said Defendants have ceased t0 exist. The business affairs of said Defendants at all relevant times were and are so mixed and intermingled that the same cannot reasonably be segregated, and the same are in inextricable confusion. The recognition of the separate existence of Defendants would not promote justice in that it would permit Defendants t0 insulate themselves from personal liability t0 Plaintiff. Accordingly, Defendants constitute the alter egos of each other, and the fiction 0f -2- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 their separate existence must be disregarded. VENUE AND JURISDICTION 10. Venue is proper in the County of Santa Clara because it is Where the subject real property is located, where the contract was entered into, and where the acts giving rise to all other causes of action contained in this complaint occurred. 1 1. The relief sought is greater than $25,000, and thus this matter is properly designated as a case 0f Unlimited Jurisdiction. GENERAL ALLEGATIONS 12. Plaintiff owns a commercial building located at 1610 Dell Ave, Campbell, California, Which includes a 4,347 square foot rentable area leased by Tenant (“Unit A”) and a 6,036 square foot rentable area leased by Tenant (“Unit S”).M 13. On or about December 22, 2010, Plaintiff entered into a written lease agreement with Tenant to lease Unit A (“Unit A Lease”). A true and correct copy of the Unit A Lease is attached hereto as Exhibit A and is incorporated herein fully. 14. The Unit A Lease’s term was thirty-six (36) months commencing April 1, 201 1. Tenant had the option t0 exercise one (1) two-year option at market rate. 15. Pursuant t0 the rent schedule in the Unit A Lease, the monthly “Base Rent” was $3,695.00 for the first twelve months (months 1 - 12), $3,912.00 for the second twelve months (months 13 - 24), and $4,130.00 for the third twelve months (months 25 - 36). 16. “Additional Rent” was also due monthly with the Base Rent payment t0 cover Common Operating Expenses and taxes. 17. Base and Additional Rent was due on a monthly basis on the first of the month. The Unit A Lease provided a 10% late fee or a $100 late fee, Whichever was greater. 18. The Unit A Lease further provided that rent that was delinquent for a period in excess of 30 days would accrue interest at a 10% rate. 19. On 0r about January 14, 201 1, SHEILA LEICH MILLER, MITCHELL LANCE MILLER, MARNEL ELLEN KING, PATRICIA KATHLEEN LYNCH (collectively “the -3- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 Individual Defendants”) entered into a lease guarantee agreement for the Unit A Lease, guaranteeing the full performance 0f Tenant’s obligations under the Lease during the initial twelve-month term and guaranteeing the restoration of Unit A to its initial configuration and floorplan. (“Unit A Guarantee Agreement”). A true and correct copy 0f the Unit A Guarantee Agreement is attached hereto as Exhibit B and is incorporated herein fully. 20. On or about January 25, 2012, Plaintiff and Tenant entered into a First Amendment t0 the Unit A Lease, Which extended the lease term. Under the First Amendment t0 the Unit A Lease, the Base Rent was $3,695.00 for April 1, 2011 to March 3 1, 2012, $3,912 for April 1, 2012 t0 March 3 1, 2013, and $4,130 for April 1, 2013 t0 March 13, 2015. Tenant retained the option t0 exercise one (1) two-year option at market rate. Additional Rent remained at $261 monthly, unless Plaintiff notified Tenant otherwise. Other terms of the Unit A Lease remained the same. A true and correct copy of the First Amendment t0 the Unit A Lease is attached hereto as Exhibit C and is incorporated herein fully. 21. On 0r about February 27, 2015, Plaintiff and Tenant entered into a Second Amendment to the Unit A Lease, which extended the lease term t0 March 3 1, 2020. Under the Second Amendment to the Unit A Lease, the Base Rent was $4,564.00 for April 1, 2015 to March 31, 2016, $4,825.00 for April 1, 2016 to March 31, 2017, and $5,086 for April 1, 2017 to March 31, 2018. The periods April 1, 2018 to March 3 1, 2019 and April 1, 2019 t0 March 3 1, 2020 would be calculated in the method described therein. The Additional Rent was $392 per month, unless Plaintiffnotified Tenant otherwise. Except as expressly modified, other terms of the Unit A Lease remained the same. A true and correct copy of the Second Amendment t0 the Unit A Lease is attached hereto as Exhibit D and is incorporated herein fully. 22. Tenant continued to occupy Unit A past March 3 1, 2020. Under section 15.3 of the Unit A Lease Agreement, a month-to-month tenancy was created wherein Base Rent was 150% of the Base Rent during the last full calendar . 23. Tenant failed t0 pay Base and Additional Rent for Unit A from April through August 2020. Plaintiff has made efforts t0 assist Tenant or work out accommodations during the COVID-19 Pandemic, however Tenant ignored those efforts. Tenant then vacated Unit A. -4- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 24. Defendants owe $27,480.75 plus interest for Unit A. Un_itS 25. On or about January 25, 2012, Plaintiff entered into a written lease agreement With Tenant t0 lease Unit S (“Unit S Lease”). A true and correct copy 0f the Unit S Lease is attached hereto as Exhibit E and is incorporated herein fully. 26. The Unit S Lease’s term was thirty-six (36) months commencing April 1, 2012. The Unit S Lease contained a Lease rider giving Tenant had the option to exercise one (1) two- year option so long as Tenant did not default during the first twelve months. 27. Pursuant t0 the rent schedule in the Unit S Lease, the monthly Base Rent was 4,708 for the first twelve months (months 1 - 12), $4,890.00 for the second twelve months (months 13 - 24), and $5,010.00 for the third twelve months (months 25 - 36). 28. “Additional Rent” was also due monthly with the Base Rent payment t0 cover Common Operating. Expenses and taxes 29. Rent was due 0n a monthly basis 0n the first 0f the month. The Unit S Lease provided a 10% late fee or a $100 late fee, Whichever was greater. 30. The Unit S Lease further provided that rent that was delinquent for a period in excess of 30 days would accrue interest at a 10% rate. 31. The Unit S Lease contained a rider that provided that at the expiration of termination of the Lease, Plaintiff had the option to require Tenant t0 return Unit S to its substantially as Unit S existed prior to Tenant’s occupancy excepting normal wear and tear. 32. On 0r about February 1, 2012, the Individual Defendants entered into a lease guarantee agreement for the Unit S Lease, guaranteeing the full performance of Tenant’s obligations under the Lease during the initial twelve-month term (“Unit S Lease Guarantee Agreement”). Additionally, the Unit S Lease Guarantee Agreement guaranteed the restoration 0f Unit S to its initial configuration and floorplan. A true and correct copy 0f the Unit S Lease Guarantee Agreement is attached hereto as Exhibit F and is incorporated herein fully. 33. On or about February 27, 2015, Plaintiff and Tenant entered into a First Amendment to the Unit S Lease, Which extended the lease term. Under the First Amendment to -5- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 the Unit S Lease, the Base Rent was $6,338.00 for April 1, 2015 to March 31, 2017, $6,700.00 for April 1, 2016 t0 March 31, 2017, and $7,062.00 for April 1, 2017 to March 31, 2018. The Base Rent for April 1, 2018 to March 3 1, 2019 and April 1, 2019 t0 March 31, 2020 would be calculated in the method described therein. The Additional Rent was $544.00 monthly, subj ect to adjustment. Other terms of the Unit S Lease remained the same. A true and correct copy of the First Amendment to the Unit S Lease is attached hereto as Exhibit G and is incorporated herein fully. 34. Tenant continued t0 occupy Unit S past Mach 3 1, 2020. Under section 15.3 0f the Unit S Lease Agreement, a month-to-month tenancy was created herein Base Rent was 150% of the Base Rent during the last full calendar. 35. On 0r about May 12, 2020, Plaintiff and Tenant entered into a Second Amendment to the Unit S Lease, which created a month-to-month tenancy with Base Rent of $7,493.00. The Additional Rent was $1,295.00 per month through June 2020 and was adjusted t0 $1,380 per month in July 2020. A true and correct copy 0f the Second Amendment to the Unit S Lease is attached hereto as Exhibit H and is incorporated herein fully. 36. Tenant failed to pay Base and Additional Rent for Unit S from April through August 2020. Plaintiff has made efforts to assist Tenant 0r work out accommodations during the COVID-19 Pandemic, however Tenant has ignored those efforts. Tenant then vacated Unit S. 37. Defendants owe $18,553.70 plus interest for Unit S. 38. Plaintiff has demanded t0 performance by Tenant, but Tenant has not responded. FIRST CAUSE OF ACTION Breach 0f Contract - Unit A (Against All Defendants) 39. Plaintiff incorporates by reference and realleges Paragraphs 1 through 38, above, as though fully set forth herein. 40. Plaintiff and Tenant entered into a written Lease Agreement for Unit A, the First Amendment to the Unit A Lease Agreement, and the Second Amendment t0 the Unit A Lease Agreement. 41. Plaintiff has fulfilled all obligations required of it under both the Unit A Lease Agreement and the Second Amendment to the Unit A Lease Agreement, except those terms it was -6- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 prevented from performing due t0 Defendants’ actions. 42. Defendants breached the lease agreements by failing to pay Base Rent and Additional Rent when due for Unit A. Despite demands to cure these defaults, Defendants failed and refused t0 cure any of these defaults. 43. As a direct a proximate cause of Defendants’ breaches, Plaintiff has incurred, and Will incur, damages including Base Rent and Additional Rent due under the Lease, late fees and interest due thereunder, cleaning and repair expenses, and attorneys’ fees, all in an amount according t0 proof at trial, but not less than $27,480.75, plus interest which, at the time 0f this filing, amounts t0 $225.50. 44. WHEREFORE, Plaintiff prays judgment against Defendants as hereafter set forth. SECOND CAUSE OF ACTION Breach 0f Contract - Unit S (Against All Defendants) 45. Plaintiff incorporates by reference and realleges Paragraphs 1 through 44, above, as though fully set forth herein. 46. Plaintiff and Tenant entered into a written Lease Agreement for Unit S, the First Amendment to the Unit AS Lease Agreement, and the Second Amendment t0 the Unit S Lease Agreement. 47. Plaintiff has fulfilled all obligations required 0f it under both the Unit S Lease Agreement and the Second Amendment to the Unit S Lease Agreement, except those terms it was prevented from performing due to Defendants’ actions. 48. Defendants breached the lease agreements by failing t0 pay Base Rent and Additional Rent when due for Unit S. Despite demands t0 cure these defaults, Defendants failed and refused to cure any 0f these defaults. 49. As a direct a proximate cause of Defendants’ breaches, Plaintiff has incurred, and will incur, damages for all of the Base Rent and Additional Rent due under the Lease, late fees and interest due thereunder, cleaning and repair expenses, and attorneys’ fees, all in an amount according t0 proof at trial, but not less than $19,825.70, plus interest which, at the time 0f this filing, amounts to $144.26. -7- COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4828-1 233-4549V3 LSOCKOLOV\28423001 50. WHEREFORE, Plaintiff prays judgment against Defendants as hereafter set forth. THIRD CAUSE OF ACTION Contractual Indemnity (Against the Individual Defendants) 51. Plaintiff incorporates by reference and realleges Paragraphs 1 through 50, above, as though fully set forth herein. 52. Plaintiff and the Individual Defendants entered into written Guaranty Agreements for Unit A and Unit S. 53. Pursuant to the Unit A and Unit S Guaranty Agreements, the Individual Defendants expressly agreed to indemnify Plaintiff against Tenant’s failure to restore Unit A and Unit S t0 its original configuration. 54. Plaintiff has fulfilled all obligations required of it under the Unit A and Unit S Guaranty Agreements, except those terms it was prevented from performing by Defendants. 55. Despite demand t0 indemnify Plaintiff for Tenant’s defaults and breaches, the Individual Defendants have breached the Unit A and Unit S Guaranty Agreements by failing and refusing t0 indemnify Plaintiff for the resulting losses. 56. As a direct a proximate cause 0f the Individual Defendants’ breach, Tenant has incurred damages for the cleaning and repair charges for damages to Unit A and Unit S and attorneys” fees, all in an amount according t0 proof at trial, but not less than $5,585.00 for Unit A and $1,839 for Unit S. WHEREFORE, Plaintiff prays judgment against Defendants as hereafter set forth. PRAYER WHEREFORE, Plaintiff prays for judgment as follows: 1. An award of general damages according t0 proof; 2. An award 0f special damages for damages the Defendants knew or should have known would flow from the breach; 3. For reasonable attorney fees pursuant t0 the Unit A Lease Agreement, Unit S Lease Agreement, and Guaranty Agreements; 4. For an award 0f interest, including prejudgment interest at the legal rate; -8- COMPLAINT 1 5. For costs of suit incurred herein; and 2 6. For such other and further relief as the court deems just and proper. 4 DATED: MARCH 29, 2021 BERLINER COHEN, LLP : BY: M&W DAWN C. SWEATT LEILA N. SOCKOLOV 8 ATTORNEY FOR PLAINTIFF HARPEL ASSOCIATES LLC 1 0 1 1 12 13 14 1 5 16 1 7 18 19 20 21 22 23 24 25 26 27 28 -9- 4828-1233-4549v3 COMPLAINT LSOCKOLOV\28423001 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A LEASE DATED DECEMBER 22, 2010 BY AND BETWEEN HARPEL ASSOCIATES as Landlord and Physical Culture Strength and Conditioning (PCSC) a Calififornia Corp. as Tenant AFFECTING PREMISES COIWMONLY KNOWN AS 1610 DELL AVENUE, UNIT A CAMPBELL, CALIFORNIA 95008 SECTION (LEASE REFERENCE) A. (Introduction) B. (Introduction) C. (Introduction) D. (§1.15) E. (§1-16) F. (§1-6) G. (§1.21) H. (§4-4) I. (§2-2) J. (§1.13) @331) L. (§3-3) M. (§3-6) N. (§4.l) O. (§9-1) P. (§ 1.2) Q. (§1-2) R. (§1.12) BASIC LEASE TERMS TERMS Lease Reference Date: December 22, 2010 Landlord: HARPEL ASSOCIATES, a California general partnership Tenant: Physical Culture Strength and Conditioning (PCSC) a Calif. Corp. Premises: That area consisting of 4,347 square feet of rentabie area the address of which is 1610 Dell Avenue, Unit A, Campbell, California, Within the Building approximately as shown on Exhibit A. Project: The land and improvements shown on Exhibit A consisting of one (1) building the aggregate rentahle area of which is 33,750 square feet. Building: The building in which the Premises are located known as 1610 Deli Avenue containing 33,750 square feet of rentable area. Tenant's Share: 12.95% Tenant‘s Allocated Parking Stalls: Twelve (12) stalls. Scheduled Commencement Date: April 1, 2011 Lease Term: Thirty Six (36) calendar months (plus the partial month following the Commencement Date if such date is not the first day of a month). One (1) Zoyear Option at Market at the time the Option is exercised, in writing no later than 120 days prior t0 the lease termination date, with the requirement there are no uncured defaults per the [ease terms. Base Monthly Rent: Months 01 - 12 $3,695.00 Mouths 13 - 24 $3,912.00 Months 25 - 36 $4,130.00 Initial Monthlv COE Estimate $ 261.00 INITIAL MONTHLY RENT AND COE $3,956.00 Pregaid Rent and COE: $3,956.00 Securigx Degosit: $4,391.00 Permitted Use: Personalfgroup physical training classes, administrative offices, and all other legal related and Landlord approved uses. Tenant's Liabilitv Insurance Minimum: $1,000,000.00 Landlord’s Address: 14573 Big Basin “’ay Saratoga, CA 95070 Tenant’s Address: 1610 Del! Avenue, Unit A Campbefl, California 95008 Lease: This Lease includes the Summary of Basic Lease Terms, the Lease, and the following exhibits and addenda: Rider 1 (Additional Lease Terms), Exhibit A (site plan of the Project indicating location of the Premises), Exhibit B (Landlord’s Improvements), and Exhibit C (Sign Criteria). The foregoing Summary is hereby incorporated into and made a part 0f this Lease. Each reference in this Lease to any term of the Summary shall mean the respective information set forth above and shalt he construed to incorporate ail of the terms provided under the particular paragraph pertaining to such information. In the event 0f any conflict between the Summary and the Lease, the Summary shall control. LANDLORD: HARPEL ASSOC .- .TES " W. Leslie Peli a Title: Partner Dat-ed ///w//q/l TENANT: Physical CultureStr gth and Conditioning (PCSC) a California gnfppr 'on Signedw’f (/ WM Name: flM/C/fl /(- {E/J’7C/j Title: wig”??? 1137‘“ Dated: /%k%/§( TABLE OF CONTENTS Page ARTICLE 1 - DEFINITIONS .......... ........ ........... ........... . ..... l 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 AdditionalRent..." ........... ............. ................. 1 Address for Notices ............ ......... ................ ......................... 1 Agents ............... 1 Agreed InterestRate.................... ....... .............. ............... 1 BaseMonthlyRent.............................. ............ .............. ..... . ........... 1 Building ........ ..... . ........ ............ I Common Area ..... ..... ........... ............... 1 Common Operating Expenses....... ........ ............ ......... I Effective Date............ .............. ......... ............... ................................. 1 Landlord’sinsurance Law ..... ............ Lease ............ ............... ................ LeaseTenn................... ........... ......... L6Hd61'............. ..... ........... .............. #Hflflflw Premxses............... ....... ............... P ' 1ro;ect........................ ........ ....... ............... .......................... Real Property Taxes ........ ........... Secunty Instrument ................. ............. Summary .............. . ..... ..................... Tenant's Alterations ............ 1 1 1 1 Tenant‘s Share. ..... ............ .................... I ARTICLE 2 - DEMISE, CONSTRUCTION, AND ACCEPTANCE .............. .................... I 2.1 2.2 2.3 Demise ofPremises ......... ............... ............... I Commencement Date ........... .............. ..................... .......... I Delivery and Acceptance ofPossessmn ...... .. ..... 2 ARTICLE 3 - RENT ......... .............. 2 3.1 3.2 3.3 3.4 3.5 3.6 Base Monthly Rent.............. .......... ......... ..................... Additional Rent ....... ..... . ........ Payment ofRent ..... ............ .................. Late Charge and interest on Rent in Default ............ Returned Check Fee ............ ............. Security Deposit. ....... ...... .............. ................ MNNNMN ARTICLE 4 - USE OF PREMISES ......... ......... 2 4.1 4.2 4.3 4.4 4.5 Limitation 0n Use ..... ............... 2 Compliance with Law ............... ........................ S'1gns. ........... ........... ............. ............... M Parkmg.......... ........ .................. 2 2 Rules and Regulations ........... 3 ARTICLE 5 - TRADE FIXTURES AND ALTERATIONS ......... .................. 3 5.1 5.2 5.3 5.4 5.5 Trade Fixtures.... ........ .......... .................... 3 Tenant's Aiterations ............ ............. ................ ........................... Alterations Required by Law ......... 3 Mechanic‘s Liens.................... ....... ............ 3 Taxes on Tenant's Property.......... .......... ...... . ............. 3 LA) ARTICLE 6 - REPAIR AND MAINTENANCE .............. ..... . ............ .............. 3 6.1 6.2 6.3 Tenant's Obh'gation t0 Maintain ..... ................ ..... . ............... 3 Landlord's Obligation t0 Mamtam ..................... 3 Contra} of Common Area................ .......... ...................... ...... . ............................. 3 ARTICLE 7 - WASTE DISPOSAL AND UTILITKES ........................................................................................................................................... 3 7.1 Waste Disposal ........................................................................................................................................................................ 3 7.2 Hazardous Materials ................................................................................................................................................................ 3 7.3 Utilities .................................................................................................................................................................................... 4 ARTICLE 8 ~ COMMON OPERATING EXPENSES ........................................................................................................................................... 4 8.1 Tenant‘s Obligation to Reimburse Common Operating Expenses ........................................................................................... 4 8.2 Common Operating Expenses Defined .................................................................................................................................... 4 8.3 Tenant’s Obiigation t0 Reimburse Real Property Taxes and Landlord's Insurance ................................................................ 4 8.4 Real Property Taxes Defined ................................................................................................................................................... 4 ARTICLE 9 ~ INSURANCE ................................................................................................................................................................................... 5 9.1 Tenant's Insurance ................................................................................................................................................................... 5 9.2 Landlord's Insurance ................................................................................................................................................................ 5 9.3 Release and Waiver of Subrogation ......................................................................................................................................... 5 ARTICLE 10 - LIMITATION 0N LANDLORD'S LIABILITY AND INDEMNITY ........................................................................................... 5 10.1 Limitation on Landlord's Liability ........................................................................................................................................... 5 10.2 Limitation on Tenant's Recourse ............................................................................................................................................. 5 10.3 Indemnification of Landlord .................................................................................................................................................... 5 ARTICLE 11 - DANIAGES TO PREMISES .......................................................................................................................................................... 5 11.1 Landlord's Duty t0 Restore ...................................................................................................................................................... 5 11.2 Landlord's Right to Terminate ................................................................................................................................................. 5 11.3 Abatement of Rent ................................................................................................................................................................... 6 ARTICLE 12 - CONDEMNATION ....................................................................................................................................................................... 6 12.1 Landlord's Termination Right .................................................................................................................................................. 6 12.2 Tenant's Termination Right ..................................................................................................................................................... 6 12.3 Abatement of Rent ................................................................................................................................................................... 6 12.4 Division of Condemnation Award ........................................................................................................................................... 6 ARTECLE 13 - DEFAULT AND REMEDIES ....................................................................................................................................................... 6 13.1 Events 0f Tenant's Default ....................................................................................................................................................... 6 13.2 Landlord's Remedies ................................................................................................................................................................ 6 13.3 Waiver ..................................................................................................................................................................................... 7 13.4 Waiver by Tenant of Certain Remedies ................................................................................................................................... 7 ARTICLE 14 - ASSIGNMENT AND SUBLE’ITING............................................................................................................................................ 7 14.1 Transfer by Tenant ................................................................................................................................................................... 7 14.2 Transfer by Landlord ............................................................................................................................................................... 7 ARTICLE 1S - GENERAL PROVISIONS ............................................................................................................................................................. 7 15.1 Landlord's Right to Enter ......................................................................................................................................................... 7 15.2 Surrender 0f the Premises ........................................................................................................................................................ '7 15.3 Holding Over ........................................................................................................................................................................... 8 15.4 Subordination .......................................................................................................................................................................... 8 1 5 .5 Attomment ............................................................................................................................................................................... 8 _II_ 15.6 15.7 15.8 15.9 15.10 15.11 EXI-HBITS Lease Rider Exhibit A Exhibit B Exhibit C Exhibit D Estoppel Certificates ................................................................................................................................................................ 8 Notices ..................................................................................................................................................................................... 8 Attomeys‘ Fees ........................................................................................................................................................................ 8 Corporate Authority ................................................................................................................................................................. 8 Miscellaneous .......................................................................................................................................................................... 8 Entire Agreement ..................................................................................................................................................................... 8 Additional Lease Terms Site plan 0f the Project Landlord’s improvements Sign Criteria Tenant Information ~III~ LEASE ARTICLE 1 DEFINITIONS 1.1 ADDITIONAL RENT: The term "Additional Rent" is defined in §3.2. 1.2 ADDRESS FOR NOTICES: The term "Address for Notices" shall mean the addresses set forth in Sections P and g2 of the Summary; provided, however, that after the Commencement Date, Tenant's Address for Notices shall be the address of the Premises. 1.3 AGENTS: The term "Agents" shed} mean the following: (i) with respect to Landlord or Tenant, the agents, employees, contractors, and invitees of such party; and (ii) in addition with respect to Tenant, Tenant's subtenants and their respective agents, employees, contractors, and invitees. 1.4 AGREED lNTEREST RATE: The term ”Agreed interest Rate" shall mean the lesser of (i) ten percent (10%) or (ii) the maximum interest rate permitted by Law. 1.5 BASE MONTHLY RENT: The term "Base Monthly Rent" shall mean the fixed monthly rent payable by Tenant pursuant to $3.1 which is specified in Section K 0f the Summary. 1.6 BUILDlNG: The term "Building" shall mean the building in which the Premises are located which Building is identified in Section F 0f the Summary, the rentable area 0f which is referred to herein as the "Building Rentable Area." 1.7 COMMON AREA: The term "Common Area" shall mean ail areas and facilities within the Project that are not designated by Landlord for the exclusive use of Tenant or any other lessee 0r other occupant of the Project, including the parking areas, access and perimeter roads, pedestrian sidewaiks, landscaped areas, trash enclosures, recreation areas and the fike. 1.8 COMMON OPERATING EXPENSES: The term "Common Operating Expenses" is defined in $8.2. 1.9 EFFECTIVE DATE: The term "Effective Date" shall mean the date the last signatory to this Lease whose execution is required t0 make it binding on the parties hereto shall have executed this Lease. 1.10 LANDLORD’S INSURANCE: The term “Landlord’s Insurance” is defined in $9.2. 1.11 LAW: The term "Law" shall mean any judicial decision, statute, resolution, regulation, rule, administrative court order, or other requirement of any municipal, county, state, federal or other government agency or authority having jurisdiction over the parties t0 this Lease or the ?remises, or both, in effect either at the Effective Date or any time during the Lease Term. 1.12 LEASE: The term "Lease" shah mean the Summary and ail elements of this Lease identified in Section R of the Summary, all 0f which are attached hereto and incorporated herein by this reference. 1.13 LEASE TERM: The term "Lease Term" shall mean the term 0f this Lease which shall commence 0n the Commencement Date and continue for the period specified in Section J 0f the Summary. 1.14 LENDER: The term "Lender" shall mean any beneficiary, mortgagee, secured party, lessor, 0r other holder of any Security instrument. 1.15 PREMISES: The term "Premises" shall mean the rentable area within the Building described in SectionD 0f the Summary Iocated approximately as shown on Exhibit A. 1.16 PROJECT: The term "Project" shall mean that real property and the improvements thereon which are specified in Section E of the Summary, the rentable area 0f which is referred t0 herein as the "Project Rentable Area." 1.17 REAL PROPERTY TAXES: The term "Real Property Taxes" is defined in $8.4. 1.18 SECURITY INSTRUMENT: The term ”Security Instrument" shafl mean any underlying lease, mortgage or deed of trust which now or hereafter affects any portion of the Project. _IV_ 1.19 SUMMARY: The term "Summary" shafl mean the Summary of Basic Lease Terms executed by Landlord and Tenant that is part 0f this Lease. 1.20 TENANT'S ALTERATIONS: The term "Tenant's Alterations" shafl mean all improvements, additions, alterations, and fixtures installed in the Premises by Tenant at its expense. 1.21 TENANT‘S SHARE: The term "Tenant‘s Share" shall mean the percentage obtained by dividing Tenant's rentable area by the Building Rentable Area, which as 0f the Effective Date is the percentage identified in Section G 0f the Sumary. ARTICLE 2 DEMISE, CONSTRUCTION, AND ACCEPTANCE 2.1 DEMISE 0F PREMISES: Landlord hereby leases to Tenant, and Tenant leases from Landlord, the Premises for the Lease Term upon the terms and conditions hereof. 2.2 COMMENCEMENT DATE: The Lease Term shall begin on the first to occur of the following, which shall be the "Commencement Date": (i) the date specified in Sectioni of the Summary (the "Scheduled Commencement Date") if Landlord is not required t0 construct improvements under Exhibit B' or (ii) the date Landlord offers to deliver possession 0f the Premises to Tenant following substantial completion of all improvements to be constructed by Landlord under Exlfibit B except for punchh’st items which d0 not prevent Tenant from using the Premises; 0r (iii) the date Tenant enters into occupancy of the Premises. 2.3 DELIVERY AND ACCEPTANCE 0F POSSESSION: If Landlord is unable t0 deliver possession of the Premises to Tenant 0n or before the Scheduled Commencement Date for any reason whatsoever, this Lease shall not be void or voidable, and Landlord shall not be Iiable to Tenant for any loss or damage resuIting therefrom; provided that, the Lease Term shall not commence until Landlord delivers possession of the Premises to Tenant. At the time Landlord deh‘vers possession 0f the Premises to Tenant, Tenant agrees to accept possession of the Premises in its then existing condition, "as-is”, including all patent and latent defects, subject only to any defects in the Premises existing at the time Tenant takes possession and 0f which Tenant notifies Landlord in wn'ting within thirty (30) days 0f the Commencement Date. 2.4 CONTINGENCY: This Lease and Lessee’s obfigations hereunder arc subject to Tenant’s obtaining all governmental permits required to Operate and conduct Lessee’s business and use of the Premises for Lessee’s intended use. Lessee shall use diligent and good faith efforts t0 obtain all of the foregoing in a timely manner and will be responsible for all associated costs. If, despite using diligent and good faith efforts, Lessee is unable to obtain the foregoing by the Commencement Date, both Lessee or Lessor may elect to terminate this Leasegnlyafier-exhausfing In the event the Lease is terminated, Lessor shafl return to Lessee all prepaid rent and security deposit monies that have been3W paid- Ail pavhee; artifice {'o meef 0n orbeéb‘r WMA w; Mil ofiw O‘Hi ‘HM WVWS Wm acme +0 remove ‘Hfi’s cmhwqey‘cvimouz f’fi‘figmsi w camel flu: lease. Pav- ‘Hn’c. claus‘u-wn-MHRENTV/APM ..... 3.1 BASE MONTHLY RENT: Throughout the Lease Term, Tenant shall pay to Landlord the Base Monthly Rent set forth in Section K 0f the Summary (the "Base Monthly Rent"). 3.2 ADDITIONAL RENT: All charges due from Tenant under this Lease shal} be deemed additional rent (the "Additional Rent"). 3.3 PAYMENT OF RENT: Concurrently with the execution of this Lease, Tenant shall pay to Landiord the amount set forth 1°11 Section L of the Summary as prepayment of rent for credit against the first installment(s) of Base Monthly Rent. Al} rent required to be paid in monthly installments shail be paid in advance on the first day 0f each calendar month during the Lease Term t0 Landlord at the address set forth in Section P of the Summary or to such other address as Landlord may from time to time indicate. A11 rent shall be paid in lawful money of the United States, without any abatement, deduction or offset whatsoever, and without any prior demand therefor. Landlord shall have the right to apply any and all amounts received in the manner Landlord determines, in its sole discretion; and Tenant waives the benefits 0f Civil Code Section 1479 or any successor statute or law. 3.4 LATE CHARGE AND INTEREST ON RENT IN DEFAULT: If any Base Monthly Rent 0r Additional Rent is not received by Landlord from Tenant when due, then Tenant shall immediately pay to Landlord a late charge equal to the greater of (i) ten percent (I 0%) of such delinquent rent or (ii) One Hundred Dollars ($100.00), as liquidated damages for Tenant's failure t0 make timely payment. If any rent remains delinquent for a period in excess of thirty (30) days then, in addition to such late charge, Tenant shall pay to Landlord interest on any rent that is not paid when due at the Agreed Interest Rate following the date such amount became due until paid. This paragraph shall not be deemed to grant Tenant an extension 0f time within which to pay rent or prevent Landlord from exercising any other right or remedy. 3.5 RETURNED CHECK FEE: A Twenty Five DoIIar ($25.00) charge will be paid by Tenant as Additional Rent to Landlord for each check returned unpaid by the bank and Tenant shall replace the payment with a Cashier’s Check 0r Certified Check. if Tenant has two (2) 0r more checks returned for insufficient funds at any time during its tenancy, Landlord, at its Option, may request all payments, current and future, be made by Cashier’s Check or Certified Check. 3.6 SECURITY DEPOSIT: On the Effective Date, Tenant shall deposit with Landiord the amount set forth in Section M of the Summary as security for the performance by Tenant of its obligations under this Lease, and not as prepayment of rent (the "Security Deposit"). Landlord may from time to time apply ail or any portion of the Security Deposit to remedy any default by Tenant to the extent permitted by Law. if any part 0f the Security Deposit is so used, Tenant agrees to pay promptly upon demand an amount in cash sufficient t0 restore the Security Deposit to the full original amount. Landlord shall not be damned a trustee of the Security Deposit, may use the Security Deposit in business, and shall not be required to segregate it from its general accounts. Tenant shall not be entitled to any interest on the Security Deposit. ARTICLE 4 USE OF PREMISES 4.1 LIMITATION 0N USE: Tenant shall use the Premises solely for the use specified in Section N of the Summary (the "Permitted Use“). Tenant shafl not do anything in or about the Premises which will cause any damage or structural injury to the Building or Common Area or operate any equipment within the Premises which will overload, damage 0r impair electrical systems, HVAC, Sprinkler systems, sanitary sewer systems 0r other mechanical equipment servicing the Building 0r the Project. Tenant shall not attach, hang or susPend anything from the ceiling, roof, walls or columns of the Building 0r set any load on the floor in excess of the load limits for which such items are designed nor operate hard wheel forklifts within the Premises. Tenant shafl not change the exterior of the Building or install any equipment 0r antennas on 0r make any penetrations 0f the exterior or roof of the Building. Tenant shafi not commit or permit any waste 0r nuisance in or about the Premises. Tenant shall not conduct on any portion of the Premises 0r the Project any sale of any kind. N0 articles of any kind shall be stored upon or permi tted to remain outside 0f the Premises. 4.2 COMPLIANCE WITH LAW: Tenant shall comply with, and shall not use the Premises in any manner which violates any Laws 0r covenants, conditions and restrictions 0r other restrictive covenants 0r agreements now or hereafter affecting the Project. Tenant shall not use the Premises in any manner which wiH cause a cancellation of any insurance poficy covering the Building or which poses an unreasonable risk of damage or injury t0 the Premises. Tenant shall comply with all reasonable requirements of any insurance company, insurance underwriter, or Board of Fire Underwriters which are necessary to maintain the insurance coverage canied by either Landlord or Tenant pursuant to this Lease. 4.3 SIGNS: Tenant shall not place on any portion 0f the Premises any signage or communicative material which is visible from the exterior 0f the Building without the prior written approval of Landlord. A11 such approved signs shall strictly conform t0 all Laws, restrictive covenants and Landlord's sign criteria attached as Exhibit C, and shall be installed and maintained in good condition at the expense of Tenant throughout the Lease Term. 4.4 PARKING: Tenant shali be entitled to the non-cxclusive use 0f unreserved and unassigned parking spaces equal to the number of’i‘enant's Ailocated Parking Stalis contained within the Project described in Section H of the Summary for its use and the use of Tenant‘s Agents, the location of which may be designated from time t0 time by Landlord. Tenant and Tenants Agents shall park vehicles 110 larger than full size passenger automobiles 0r pick-up trucks at the Project and any oversized vehicles (i.e., larger than full size passenger automobiles 0r pick-up trucks) may be parked at the Project only 0n a temporary basis for pick-up and delivery purposes. Tenant shall not at any time park or permit the parking 0f Tenant’s vehicles or trucks, or the vehicles or trucks of its emp10yees, invitees or others, in any portion 0f the Common Area not designated by Landlord for such use by Tenant. Tenant shall not abandon any imperative vehicles or equipment on any portion of the Common Area, nor shall Tenant, its empioyees, invitees, suppliers or others park or store any vehicle 0n any portion of the Common Area, including designated parking areas, unattended for any pen’od longer than twenty-four (24) hours. Landlord reserves the right, after having given Tenant reasonable notice, to have any vehicles owned by Tenant or Tenant's Agents utilizing parking spaces in excess 0f the parking Spaces aIIowed for Tenant‘s use or parked in unauthorized areas t0 be towed away at Tenant's cost. 4.5 RULES AND REGULATIONS: Landlord may promulgate reasonable rules and regulations applicable to the occupants 0f the Project. Such rules and regulations shall be binding upon Tenant upon delivery 0f a cepy to Tenant, and Tenant agrees to abide by such rules and regulations. ARTICLE 5 TRADE FIXTURES AND ALTERATIONS 5.1 TRADE FIXTURES: Throughout the Lease Term, Tenant may provide and install, and shall maintain in good condition, any trade fixtures required in the conduct of its business in the Premises. A11 trade fixtures shall remain Tenant's property. _VI .. 5.2 TENANT'S ALTERATIONS: Tenant shall not construct any Tenant‘s Alterations 0r otherwise alter the Premises without Landford‘s prior written approval. At the expiration 01“ sooner termination 0f the Lease Term, a]! Tenant's Alterations shall be surrendered t0 Landlord as part of the realty and shall then become Landlord's property, and Landlord shall have no obligation to reimburse Tenant for all or any portion of the value or cost thereof; provided, however, that if Landlord requires Tenant t0 remove any Tenant's Alterations, Tenant shall so remove such Tenant's Alterations prior t0 the expiration or sooner termination 0f the Lease Term. A11 Tenant's Alterations shall be constructed by a licensed contractor in accordance with a1} Laws, using new materials 0f good quality. 5.3 ALTERATIONS REQUIRED BY LAW: Tenant shall make any alteration, addition 0r change of any sort to the Premises that is required by any Law because of (i) Tenant's particular use or change 0f use 0f the Premises, (ii) Tenant's application for any permit 0r governmental approval, 0r (iii) Tenant's construction or installation of any Tenant's Alterations or trade fixtures. 5.4 MECHANICS LIENS: Tenant shall keep the Project free from any liens and shall pay when due all bills arising out of any work performed, materials furnished, 0r obh'gations incurred by Tenant or Tenant's Agents. If any claim of lien is recorded, Tenant shall bond against or discharge the same within IO days after the same has been recorded against the Project. 5.5 TAXES ON TENANT'S PROPERTY: Tenant shall pay before delinquency any and all taxes, assessments, license fees and public charges imposed against Tenant or Tenant's estate in this Lease or the preperty of Tenant. ARTICLE 6 REPAIR AND MAINTENANCE 6.1 TENANT'S OBLIGATION T0 MAINTAIN: Tenant shall, at its sole cost and expense, clean and maintain in good order, condition, and repair and replace when necessary the ?remises and every pan thereof regardless 0f whether the damaged portion 0f the Premises or the means of repairing the same are accessible to Tenant, including but not limited to, floors, ceilings, windows, doors, skylights, interior walls, and the interior surfaces of the exterior walls, plumbing, all wall mounted HVAC equipment serving only the ?remjses, telecommunications equipment and intrabuilding network cabling, electrical and lighting facilities and equipment including circuit breakers, and exterior lighting attached to the Premises. All glass, both inten'or and exterior, is at the sole risk of Tenant and any broken glass shall promptly be replaced by Tenant at Tenant's expense with glass of the same kind, size and quality according t0 the current local code. In the event Tenant fails to perform Tenant's obligations under this $6.1, Landlord shall give Tenant notice to do such acts as are reasonably required t0 so maintain the Premises. If Tenant, within ten (10) days after notice from Landlord, fails t0 commence t0 do the work and diligently prosecute it to completion, then Landlord shall have the right (but not the obligation) to do such acts and expend such funds at the expense of Tenant as are reasonany required to perform such work. Any amount so expended by Landlord shall be paid by Tenant promptly after demand with interest at the Agreed Interest Rate from the date of such work until paid. Landlord shall have n0 liability to Tenant for any damages, inconvenience or interference with the use of the Premises by Tenant as a result 0f performing any such work. All repairs and replacements required 0f Tenant shall be promptly made with new materials of like kind and quality. if the work affects the stmctural parts of the Building or if the estimated cost 0f any item of repair or replacement is in excess of One Thousand Dollars ($1 £00.00), then Tenant shall first obtain Landlord's written approval 0f the same in accordance with $5.2 hereof. 6.2 LANDLORD'S OBLIGATION TO MAINTAIN: Landlord shall, at its sole cost and expense (subject t0 reimbursement as set forth in this Lease), repair, maintain and operate the Common Area and repair and maintain the exten‘or roof, all roof mounted HVAC equipment, the exterior and structural pants of the Building so that the same are kept in good order and repair and if there is building service equipment andfor utility facilities serving portions of the Common Area and/or both the Premises and other parts of the Building, Landlord shafl maintain and operate (and replace when necessary) such equipment. Landlord shafl not be responsible for repairs required for damage caused to any part of the Project by any act 0r omission of Tenant or Tenant's Agents and Tenant shall be 501er rCSponsible for such repairs. 6.3 CONTROL 0F COMMON AREA: Landlord shall at all times have exclusive control 0f the Common Area. Landlord shall have the right, without the same constituting an actual or constructive eviction and without entitling Tenant to any abatement of rent, to close any part of the Common Area for any reason, eliminate from or add to the Proj ect any land 0r improvement, make changes t0 the Common Area, remove unauthorized persons from the Project, audio: change the name or address of the Building or Project. Landlord shall have n0 obligation t0 provide guard services 0r other security measures for the benefit 0f the Project and Tenant assumes all IBSponsibih'ty for the protection of Tenant and Tenant‘s Agents from acts 0f third parties. ARTICLE 7 WASTE DISPOSAL AND UTILITIES 7.1 WASTE DISPOSAL: Tenant shafl cause all of its waste to be stored only in designated areas and regularly removed from the Premises at Tenant's sole cost; provided that, Landlord may elect t0 provide for waste disposal at the Premises andfor Project and the cost thereof -VII- shall be considered a Common Operating Expense. Tenant shall keep all fire corridors and mechanical equipment rooms in the Premises free and clear of all obstructions. 7.2 HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect t0 the existence 0r use 0f Hazardous Materials on the Project: A. Any handling, transpofiation, storage, treatment, disposal or use of Hazardous Materials by Tenant and Tenant's Agents in 0r about the Project shal} strictly comply with all applicable Hazardous Materials Laws. Tenant shall indemnify, defend upon demand with counsel reasonany acceptable to Landlord, and hold hamfless Landlord from and against any and all liabilities, losses, claims, damages, lost profits, consequential damages, interest, penalties, fines, monetary sanctions, attomeys‘ fees, experts' fees, court costs, remediation costs, investigation costs, and other expenses which result from or an'se in any manner whatsoever out of the use, storage, treatment, transportation, release, or disposal 0f Hazardous Materials 0n 0r about the Project by Tenant or Tenant's Agents. B. 1f the presence 0f Hazardous Materials 0n or about the Project caused or permitted by Tenant or Tenant's Agents results in contamination of water or soil, then Tenant shafl promptly take any and all action necessary to investigate and remediate such contamination as required by Law 0r as a condition to the issuance or continuing effectiveness 0f any govcmmental approval which relates to the use 0f the Project 0r any part thereof. Tenant shall further be solely responsible for, and shall defend, indemnify and hoid Landlord and its agents harmless from and against, all claims, costs and liabilities, including attomeys' fees and costs, an'sing out of or in connection with any investigation and remediation t0 return the Project to its condition existing prior to the appearance 0f such Hazardous Materials. C. Tenant shall give written notice to Landlord as soon as reasonably practicable of (i) any communication received from any governmental authon‘ty concerning Hazardous Matefiais which relates to the Project, and (ii) any contamination 0f the Project by Hazardous - Materials which constitutes a violation of any Hazardous Materials Law. Tenant may use such Hazardous Materials as are necessary t0 the operation of Tenant's business of which Landlord receives notice prior to such Hazardous Materials being brought onto the Premises and t0 which Landlord consents in writing. At any time during the Lease Term, Tenant 311311, within five days after written request therefor received from Landlord, disclose in writing all Hazardous Materials that are being used by Tenant 0n the Project, the nature and quantity of such use, and the manner of storage and disposal. D. Landlord may cause testing wells t0 be instalicd on the Project, and may cause the ground water to be tested to detect the presence of Hazardous Material by the use of such tests as arc then customarily used for such purposes. The cost of such tests and of the installation, maintenance, repair and rep1acement of such weHs shall be paid by Tenant if such tests disclose the existence 0f facts which give rise to liability of Tenant pursuant t0 its indemnity given in ‘ETQA and or $7.23. E. As used herein, the term "Hazardous Material," means any hazardous or toxic substance, material or waste which is 0r becomes regulated by any local governmental authority, the State 0f Califomia or the United States Govemment. As used herein, the term ”Hazardous Material Law“ shafl mean any Law which regulates the use, storage, release or disposal of any Hazardous Material. F. The obligations of Landlord and Tenant under this [£12 shall survive the expiration or earlier termination of the Lease Term. The rights and obligations of Landlord and Tenant with reSpect to issues relating to Hazardous Materials are exclusiveiy established by this 917.2. In the event of any inconsistency between any other part of this Lease and this $7.2, the terms of this ‘fl12 shall control. 7.3 UTILITIES: Tenant shall promptly pay, as the same become due, all charges for water, gas, electricity, telephone, sewer service, waste pick-up and any other utilities, materials or services furnished t0 0r used by Tenant 0n or about the Premises during the Lease Term, including, without limitation, meter, use andfor connection fees, hook-up fees, or standby fees, and penalties for discontinued or interrupted service. Landlord may, at Landlord’s Option, require Tenant to place any utility service serving only the Premises in Tenant’s name. 1f any utility service is not separately metered to the Premises, then Tenant shall pay its pro rata share of the cost 0f such utility service with all others served by the service not separately metered. However, if Landlord determines that Tenant 1's using a diSprOponionate amount of any utility service not separately metered, then landlord at its election may (i) periodicafly charge Tenant, as Additional Rent, a sum cqual to Landlord’s reasonable estimate of the cost of Tenant’s excess use of such utility service, or (ii) install a separate meter (at Tenant’s expense) to measure the utility service supplied to the Premises. ARTICLE 8 CONIMON OPERATING EXPENSES 8.1 TENANT'S OBLIGATION TO REIMBURSE COMMON OPERATING EXPENSES: As Additionak Rent, Tenant shall pay Tenant‘s Share (specified in Section G 0f the Summary) 0f all Common Opcrating Expenses; provided, however, that if the Project contains more than one building, then Tenant shall pay Tenant‘s Share of all Common Operating Expenses fairly aflocable to the Building, and provided further, that Tenant shall pay all Common Operating Expenses fairly allocable to the Premises. Tenant shall pay such share of the actual Common Operating -VIII~ Expenses incurred or paid by Landlord but not theretofore billed t0 Tenant within ten (10) days after receipt of a written bill therefor from Landlord, on such periodic basis as Landlord shah designate, but in n0 event more frequently than once a month. Alternatively, Landlord may from time to time require that Tenant pay Tenant’s Share of Common Operating Expenses in advance in estimated monthiy or, at Landlord’s Option, quarterly installments, in accordance with the following: (i) Landlord shall deliver t0 Tenant Landlord‘s reasonable estimate 0f the Common Operating Expenses it anticipates will be paid or incurred for the Landlord's fiscal year in question, (ii) during such Landlord‘s fiscal year, Tenant shall pay Tenant's Share 0f the estimated Common Operating Expenses in advance in equal monthly installments due with each instaflment of Base Monthly Rent, and (iii) within ninmy (90) days after the end 0f such Landlord's fiscal year, Landlord shall furnish t0 Tenant a statement in reasonable detail of the actuai Common Operating Expenses paid or incurred by Landlord in accordance with this paragraph during the just ended Landlord's fiscal year, and thereupon there shall be an adjustment between Landlord and Tenant, with payment to or repayment by Landlord, as the case may require, within 10 days after delivery by Landlord to Tenant of such statement, so that Landlord shall receive the entire amount of Tenant's Share of all Common Operating Expenses for such Landlord's fiscal year and no more. 8.2 COMMON OPERATING EXPENSES DEFJNED: The term "Common Operating Expenses" shall mean all costs and expenses incurred by Landlord with respect to the Operation, protection, improvement, maintenance, repair, replacement, and restoration of the Project, including, without limitation, the following: (i) the operation, repair, maintenance and replacement 0f the roof (excluding replacement 0f the roof structure and/or membrane), the exterior surfaces and interior improvements of a1} buildings located 0n the Project, the roof mounted HVAC equipment, utility facilities and other building service equipment, and the Common Areas; (ii) reserves set aside for Common Operating Expenses or for maintenance, repair andfor repiacement of the Common Area; (iii) the amounts 0f any "deductible" and "coinsurance" paid by Landlord with respect to damage caused by an "Insured Peril" (as hereinafter defined) or amounts incurred in connection with an "Uninsured Peril" (as hereinafter defined) up t0 a maximum amount in any twelve (12) month period equal t0 two percent (2%) of the replacement cost 0f the buildings or other improvements damaged; and (v) reasonable management fees. 8.3 TENANTS OBLIGATION TO REIMBURSE REAL PROPERTY TAXES AND LANDLORD’S INSURANCE: As Additional Rent, Tenant shall pay Tenant’s Share (specified in Section G of the Summary) of the amount (if any) by which Real Property Taxes andfor Landlord’s Insurance costs paid or incurred in any Landlord’s fiscal year during the Lease Term exceed the Real Property Taxes and/or Landlord’s Insurance costs, respectively, paid or incurred during the fiscal year in which the Commencement Date occurs (which excess is referred to herein as the “Excess Expenses”) for any annual period 0r portion thereof. If the Project contains more than one building, then Tenant shall pay Tenant’s share of the Excess Expenses for the Landlord’s fiscal year in question based upon the Real Property Taxes andlor Landlord’s Insurance costs fairly allocable to the Building. Tenant shafl pay such share of the Excess Expenses 0n the same payment terms as are contained in $8.1 hereof regarding payment of Common Operating Expenses. 8.4 REAL PROPERTY TAXES DEFINED: The term "Real Property Taxes" shall mean all taxes, assessments, levies, and other charges of any kind or nature whatsoever, general and special, foreseen and unforeseen, now 0r hereafter imposed by any governmental or quasi- govemmental authority or special district having the direct 0r indirect power t0 tax or levy assessments, which are levied or assessed against, 0r with respect to the value, occupancy 0r use of, a1] or any portion 0f the Project 0r the rents derived therefrom (except federal and state net income taxes).w INSURANCE 9.1 TENANT'S INSURANCE: Tenant shall maintain insurance complying with all 0f the following: A. Tenant shall procure, pay for and kaep in full force and effect: (i) commercial general liability insurance, including property damage, against liability for personal injury, bodily injury, death and damage to property occurring in or about, or resulting from an occurrence in 0r about, the Premises with combined single limit coverage 0f not less than the amount Specified in Section O of the Summary, which insurance shall contain a "contractual liability" endorsement insuring performance of Tenant's obligation to indemnifir Landlord contained in ‘]{10.3; (ii) fire and property damage insurance in so-called "afl risk“ form insuring Tenant's Alterations for their full actual replacement cost; and (iii) such other insurance and amounts of insurance as are either (1) reasonably required by any Lender, 0r (2) reasonably required by Landlord and customan’ly carried by tenants 0f similar property in similar businesses. B. Where applicable and required by Landlord, each policy of insurance required to be carried by Tenant pursuant to this $9.1: (i) shall name Landlord and such other parties in interest as Landlord reasonany designates as additional insured; (ii) shall be primary and not secondary 0r contributing; (iii) shall be in a form and canicd with companies reasonably acceptable t0 Landlord; (iv) shall provide that such policy shall not be subject to canceflatjon, }apse or change except after at least thirty (30) days prior written notice to Landlord; (v) shal} not have a "deductible" in excess of such amounts as are approved by Landlord; and (vi) shall contain a cross liability endorsement and a "severability" clause. C. A copy 0f each paid-up policy evidencing the insurance required t0 be cam'ed by Tenant pursuant to this 'E9.1 (appropriately authenticated by the insurer) shall be delivered to Landlord prior t0 the time Tenant or any of its Agents enters the Premises and upon renewal of such policies, but not less than five (5) days prior t0 the expiration of the term 0f such coverage. _IX_ 9.2 LANDLORD’S INSURANCE: Landlord shall maintain a policy 0r policies of fire and property damage insurance in so~called "all risk" form insuring Landlord (and such others as Landlord may designate) from physical damage to the Project with coverage of not less than the full replacement cost thereof, and if Landford elects, a commercial general liability policy (“Landlord’s Insurance”). Such insurance may be endorsed to cover Ioss caused by such additional perils against which Landlord may elect to insure (including earthquake andfor flood), and to provide such additional coverage as Landlord reasonably requires, and shall contain reasonable "deductibles" which, in the case of earthquake and flood insurance, may be up to such amount as is then commercially reasonable. Landlord shall not be required to cause such insurance to cover any 0f Tenant's Alterations or trade fixtures. 9.3 RELEASE AND WAIVER 0F SUBROGA’I‘ION: The parties hereto release each other, and their respective agents and employees, from any liability for injury to any person or damage t0 property that is caused by or results from any risk insured against under any valid and collectible insurance policy carried by either of the paflies which contains a waiver 0f subrogation by the insurer and is in force at the time of such injury or damage; subject t0 the following limitations: (i) the foregoing provision shall not apply t0 the commercial genera} liability insurance described by subpaxagraph $9. 1A; and (ii) Tenant shall not be released from any such liability to the extent any damages resulting from such injury or damage are not covered by the recovery obtained by Landlord from such insurance, but only if the insurance in questions pennits such partial release in connection with obtaining a waiver 0f subrogation from the insurer. Each party shall use reasonable efforts to cause each insurance policy obtained by it t0 provide that the insurer waives all right 0f recovery by way of subrogation against the other party and its agents and employees. ARTICLE 10 LIMITATION 0N LANDLORD‘S LIABILITY AND INDEMNITY 10.1 LIMITATION 0N LANDLORD'S LIABILITY: Landlord shall not be liable t0 Tenant, nor shall Tenant be entitled to terminate this Lease or t0 any abatement of rent, for any injury to Tenant 0r Tenant's Agents, damage to the property of Tenant or Tenant's Agents, 0r loss t0 Tenant's business resulting from any causa whatsoever unless same is proximately caused by Landlord's wfllfill misconduct 0r gross negligence 0f which Landlord has actual notice and a reasonable opportunity to cure but which it fails to so cure. 10.2 LIMITATION ON TENANT'S RECOURSE: Tenant shafi have recourse only t0 the interest ofLandlord in the Project for the satisfaction of the obfigations 0f Landlord and shall not have recourse to any other assets of Landlord or to the assets 0f any officers, directors, trustees, partners, joint venturers, members, owners, stockholders, or other principals or representatives of Landlord for the satisfaction of such obligations. 10.3 INDEMMFICATION 0F LANDLORD: Tenant shall hold harmless, indemnify and defend Landlord, and its employees, agents and contractors, with competent counsel reasonably satisfactory to Landlord, from all liability, penalties, losses, damages, costs, expenses, causes of action, claims andfor judgments an'sing from or relating to (i) any cause 0r causes whatsoever (other than the willful misconduct 0r gross negligence 0f Landlord of which Landlord has had notice and a reasonable time to cure, but which Landlord has failed to cure) occurring in or about or resulting from an occurrence in or about the Prerhises during the Lease Term, (ii) the negligence or wiIIful misconduct of Tenant or Tenant‘s Agents, wherever the same may occur, or (iii) an Event of Tenant's Default. The provisions of this ‘fll 0.3 shall survive the expiration or sooner termination 0f this Lease. ARTICLE 11 DAMAGES TO PREMISES 11.1 LANDLORD'S DUTY TO RESTORE: If the Premises are damaged by any peri}, Landlord shalI restore the Premises unless the Lease is terminated by Landlord pursuant to $1.2. AH insurance proceeds avaflable from the fire and property damage insurance caxried by Landlord pursuant to $9.2 shall be paid to and become the property of Landlord. Landlord‘s obligation to restore shall be limited t0 the Premises and interior improvements constructed by Landlord as they existed as of the Commencement Date, excluding any Tenant's Alterations, trade fixtures andfor personal property. Tenant shafl foflhwith replace or fully repair all Tenant's Alterations and trade fixtures existing at the time 0f the damage. 11.2 LANDLORD'S RIGHT TO TERMINATE: Landlord shall have the right t0 terminate this Lease in the event any of the following occurs: (i) either the Project 0r the Building is damaged by an Insured Peril to such an extent that the estimated cost to restore exceeds thirty three (33%) of the then actual replacement cost thereof; (ii) either the Project or thc Building is damaged by an Uninsured Pen] to such an extent that the estimated cost to restore exceeds two percent (2%) 0f the then actual replacement cost thereof; or (iii) the Premises are damaged by any pen‘l within twelve (12) months of the last day 0f the Lease Term. As used herein, "insured Peril" shall mean a peril actualiy insured against for which the insurance proceeds actu ally received by Landlord are sufficient (except for any "deductible" amount Specified by such insurance) to restore the Project under thenfiexjsting building codes to the condition existing immediately prior to the damage; and "Uninsured Peril" shall mean any peril which is not an Insured Peril. Notwithstanding the foregoing, if the "deductible" for earthquake or flood insurance exceeds two percent (2%) 0f the replacement cost of the improvements insured, such peril shall be deemed an "Uninsured Peril." 11.3 ABATEMEN’I‘ OF RENT: In the event of damage to the Premises which does not result in the termination of this Lease, the Base Monthly Rent and the Additional Rent shall be temporafily abated during the pen'od of restoration in proportion t0 the degree t0 which Tenant's use of the Premises is impaired by such damage. Tenant shali not be entitled to any compensation or damage from Landlord for loss of Tenant's business 0r property caused by such damage or restoration. Tenant hereby waives the provisions of California Civil Code Sections 1932(2) and 1933(4) and the provisions of any similar law hereinafter enacted. ARTICLE 12 CONDEMNATION 12.1 LANDLORD'S TERMINATION RIGHT: Landlord shall have the right t0 terminate this Lease if, as a result of a condemnation, all or any part of the Premises or Building is so taken. 12.2 TENANT'S TERMINATION RIGHT: Tenant shall have the right t0 terminate this Lease if, as a result 0f any condemnation, ten percent (10%) or more 0f the Premises is taken and the remaining part of the Premises cannot be restored within a reasonable period 0f time and thereby made reasonably suitable for the continued operation of the Tenant's business. 12.3 ABATEBIENT OF RENT: If any part 0f the Premises is taken by condemnation and this Lease is not terminated, Base Monthly Rent shall be reduced in the same proportion th at the floor area of that part of the Premises so taken (less any addition thereto by reason of any reconstruction) bears t0 the original floor area of the Premises. 12.4 DIVISION OF CONDEMNATION AWARD: Any award made as a result of any condemnation of the Premises or the Common Area shall belong t0 and be paid to Landlord, and Tenant hereby assigns t0 Landlord all of its fight, title and interest in any such award. ARTICLE 13 DEFAULT AND REMEDIES 13.1 EVENTS 0F TENANT'S DEFAULT: Tenant shall be in default 0f its obligations under this Lease if any 0f the following events occurs (an "Event 0f Tenant‘s Default"): A. Tenant shafl have failed to pay Base Monthly Rent or Additional Rent when due, and such faflure is not cured within 3 days after delivery of wn'tten notice {tom Landiord specifying such failure t0 pay; or B. Tenant shall have failed to perform any term, covenant, or condition of this Lease other than those requin'ng the payment of Base Monthly Rent or Additional Rent, and Tenant shall have failed to cure such braach within thirty (30) days after written notice from Landlord specifying the nature of such breach where such breach could reasonably be cured within said thirty (30) day period, 0r if such breach could not reasonably be cured within said thirty (30) day period, Tenant shall have fafied to commence such cure within said thirty (30) day period and thereafter continue with due difigence t0 prosecute such cure to completion within such time pefiod as is reasonably needed; or C. Tenant shall have sublet the Premises or assigned its interest in the Lease in violation of the provisions contained in Article 14; or D. Tenant shall have abandoned the Premises or left the Premises substantially vacant; or E. (i) The making by Tenant of any general arrangements or assignments for the benefit of creditors; (ii) Tenant becomes a "debtor" as defined in IIUSC 31101 or any successor statute thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession 0f substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thin}; (30) days; or (iv) the attachment, execution or other judicial seizure 0f substantially 31} of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this fill 3.1E is contrary t0 any applicable Law, such provision shali be of no force or effect; or F. Tenant shall have failed t0 deliver documents required 0f it pursuant to 9115.4 0r 9115.6 within the time periods specified therein. _XIH 13.2 LANDLORD'S REIWEDIES: If an Event 0f Tenant's Default occurs, Landlord shall have the following rights and remedies in addition to all other rights and remedies provided by Law or otherwise provided in this Lease, to which Landlord may resort cumulatively or in the altemative: A. This Lease shall not terminate unless Landlord gives Tenant written notice of its electiOn t0 terminate and n0 act by 0r on behalf of Landlord intended to mitigate the adverse effect of such breach shall constitute a temination of Tenant‘s right to possession unIess Landlord gives Tenant written notice 0f termination. Should Landlord not terminate this Lease by giving Tenant wn'tten notice, Landlord may enforce ail 0f its rights and remedies under this Lease or available at law or in equity, including ('1) the right to perform Tenant's obligations and be reimbursed by Tenant for the cost thereof together with interest at the Agreed Interest Rate from the date any sum is paid by Landlord until Landiord is reimbursed by Tenant, and (ii) the remedy described in California Civil Code Section 1951 .4 (Landlord may cominue Lease in effect after Tenant's breach and abandonment and recover rent as it becomes due, if Tenant has fight to sublet or assign, subject only to reasonable limitations). B. Landlord may terminate this lease, in which event Landlord shall be entitled, at Landlord‘s election, t0 damages in an amount as set forth in California Civil Code Section 1951.2. For purposes of computing damages pursuant to California Civil Code Section 1951.2: (1) an interest rate equal t0 the Agreed interest Rate shall be used where permitted; and (ii) the term "rent" includes Base Monthly Rent and Additional Rent. Such damages shall include: (i) the worth at the time of award 0f the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of Such rental loss that Tenant proves could be reasonably avoided, computed by discounting such amount at the discount rate of the Federal Reserve Bank 0f San Francisco at the time of award plus one percent (1%); and (ii) any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure t0 perform Tenant's obligations under this Lease, or which in the ordinary course 0f things would be likely to result therefrom. C. The remedies set forth herein are not intended to be exciusive and shall be in addition to the rights and remedies granted t0 Landlord by Law or in equity. Nothing in this 3113.2 shat} limit LandIord's fight to indemnification from Tenant as provided in $7.2 and $10.3. Any notice give by Landlord in order to satisfy the requirements 0f 'EIBJA or $13.13 above shall also satisfy the notice requirements 0f California Code of Civil Procedure Section I 161 regarding unlawful detainer proceedings. 13.3 WAIVER: Landlord's consent to 0r approval of any act by Tenant requiring Landlord's consent 0r approval shall not be deemed to waive or render unnecessary Landlord's consent t0 0r approval of any subsequent similar act by Tenant. The receipt by Landlord 0f any rent or payment with or with out knowledge of the breach 0f any provision hereof shall not be deemed a waiver 0f or consent to any such breach unless such waiver is in writing and signed by Landlord. No delay or omission in the exercise 0f any right or remedy accruing to Landlord upon any breach by Tenant shall impair such Light or remedy 0r be construed as a waiver 0f any such breach theretofore or thereafter occurring. The waiver by either party of any breach of any provision of this Lease shall not be deemed to be a waiver of any subsequent breach of the same or of any other provisions herein contained. 13.4 WAIVER BY TENANT 0F CERTAIN REMEDIES: Tenant waives the provisions 0f Sections 1932(1), 1941 and 1942 of the California Civil Code and any similar 0r successor law regarding Tenant's right to temfinate this Lease or to make repairs and deduct the expenses 0f such repairs from the rent due under this Lease. Tenant hereby waives any right of redemption or relief from forfeiture under the laws of the State of Cafifomia, 0r under any other present 0r future law, including the provisions of Sections 1174 and 1179 of the Cah'fomia Code of Civil ?rocedure. ARTICLE l4 ASSIGNLIENT AND SUBLETTING 14.1 TRANSFER BY TENANT: The following provisions shall appiy to any assignment, subletting 0r other transfer by Tenant or any subtenant or assignee or other successor in interest of the original Tenant (collectively referred to in this $4.1 as "Tenant"): A. Tenant shall not d0 any 0f the following (coflectively referred t0 herein as a "Transfer"), whether voluntarily, involuntarily or by Operation of law, without the prior written consent 0f Landlord, which consent shall not be unreasonably withheld or delayed: (i) sublet all or any part of the Premises or allow it t0 be sublet, occupied or used by any person or entity other than Tenant or assign its interest in this Lease; (ii) mortgage 0r encumber the Lease (or otherwise use the Lease as a security device) in any manner; or (iii) amend or modify an assignment, sublease 0r other transfer that has been previously approved by Landlord. The dissolution, merger, or other reorganization of Tenant or the sale, transfer, withdrawal, or substitution of twenty five percent (25%) 0r more 0f the ownership interests in Tenant shall be deemed a Transfer. Any attempted Transfer without Landlord's censent shall constitute an Event of Default and shall be voidable at Landlord's option. N0 Transfer, even with the censent of Landlord, shall relieve Tenant of its persona] and primary obligation to pay the rent and to perform all 0f the other obligations to be performed by Tenant hereunder. Tenant shall reimburse Landlord for all reasonable costs and attomeys' fees in connection with the processing and/or documentation of a requested Transfer, whether or not Landlord's consent is given. In the event Landlord consents to any proposed Transfer, Tenant agrees t0 pay t0 Landlord, as Additional Rent, one hundred percent (I 00%) 0f any and all rents 0r other consideration (including key money) "XII- received by Tenant from the transferee by reason of such Transfer in excess of the rent payable by Tenant to Landlord under this Lease (less any brokerage commissions, attorneys' fees and advertising expenses incurred by Tenant in connection with the Transfer). B. At least thirty (30) days before a preposed Transfer is t0 become effective, Tenant shall give Landlord written notice of the proposed terms of such Transfer and request Landlord's approval, which notice shall include the name and legal composition 0f the proposed transferee, a current financial statement and financial statements 0f the transferee covering the preceding three years if the same exist a1} of which statements prepared in accordance with generally accepted accounting principles, the nature of the proposed transferee‘s business t0 be carried on in the Premises, and the form of Transfer agreement t0 be used. Tenant shall provide to Landlord such other infomation as may be reasonabiy requested by Landlord, and Tenant shall immediately notify Landlord of any material modification to the proposed terms of such Transfer. C. In the event that Tenant seeks to make any Transfer, Landlord shall have the right to terminate this Lease or, in the case of a sublease 0f less than all of the Premises, terminate this Lease as to that part of the Premises proposed t0 be so sublet. Upon such termination, Tenant shall be released from any further obligation under this Lease if it is terminated in its entirety, or shall be released from any further obfigation under the Lease with reSpect to the Space proposed t0 be sublet in the case of a proposed partial sublease. In the case 0f a partial temfination of the Lease, the Base Monthly Rent and Tenant’s Share shali be reduced to an amount which bears the same relationship to the original amount thereof as the area of that par, .; the Premises which remains Subject t0 the Lease bears to the original area 0f the Premises. Landlord and Tenant shafl execute a cancellation and reiease with reSpect to the Lease t0 effect Such termination. 14.2 TRANSFER BY LANDLORD: Landlord and its successors in interest shall have the right to transfer their interest in this Laase and the Project at any time. In the event of any such transfer, the Landlord originally named herein (and, in the case of any subsequent transfer, the transferor) shall automatically be relieved, from the date of such transfer and without any further act by any person or entity, of all liability for the performance of the obligations of the Landlord hereunder which may accrue afier the date of such transfer. ARTICLE 15 GENERAL PROVISIONS 15.1 LANDLORD’S RIGHT TO ENTER: Landlord and its agents may enter the Premises at any reasonable time afier giving at least twenty four (24) hours' prior notice to Tenant (and immediately in the case of emergency) for any reasonable purpose including, without limitation, showing the Premises t0 prospective purchasers, mortgagees or tenants and posting upon the Premises ordinary "for lease" signs or "for sale" signs. Landlord shall have the fight to use any and all means Landford may deem necessary and proper to enter the Premises in an emergency. Any entry into the Premises obtained by Landlord in accordance with this $15.1 shall not be a forcible 0r unlawful entry into, 0r a detainer 0f, the Premises, or an actual or constructive eviction of Tenant from the ?remises. 15.2 SURRENDER OF THE PREMISES: Upon the expiration 0r sooner termination 0f this Lease, Tenant shall vacate and surrender the Premises to Landlord in the same condition as existed at the Commencement Date, broom clean, ordinary wear and tear excepted. Tenant, at its sole cost and expense, agrees t0 repair any damage to the Premises caused by Tenant or caused by 0r in connection with the removal 0f any articles 0f personal property, business or trade fixtures, machinery, equipment, or furniture, including without limitation thereto, repairing the floor and patching and painting the walls where required by Landlord to Landlord’s reasonable satisfaction. Tenant shafl indemnify Landlord against any loss or liability resulting from delay by Tenant in so surrendering the Premises, including without limitation, any claims made by any succeeding tenant founded on such delay. If the Premises are not so sunendered at the temu'nation of this Lease, Tenant shall be liable to Landlord for all costs incurred by Landlord in returning the Premises to the required condition, plus interest 0n all costs incurred at the Agreed Interest Rate. Tenant shall indemnify Landlord against loss or liability resulting from deiay by Tenant in so surrendering the Premises. 15.3 HOLDlNG OVER: This Lease shall terminate without further notice at the expiration of the Lease Term. Any holding over by Tenant after expiration of the Lease Term shall not constitute a renewal or extension of the Lease 0r give Tenant any fights in or to the Premises except as expressly provided in this Lease. Any holding over after such expiration with the written consent of Landlord shall be construed to be a tenancy from month to menth 0n the same terms and conditions herein specified insofar as applicable except that Base Monthly Rent shafl be increased t0 an amount aqua} t0 one hundred and fifty percent (150%) 0f the Base Monthly Rent payable during the Iast full calendar month 0f the Lease Term. 15.4 SUBORDINATION: This Lease is subject and subordinate t0 afl Security Instruments now 0r hereafier encumbering the Premises. However, if any Lender so requires, this Lease shall become prior and superior to any such Security instrument. Tenant shall upon request execute any document 0r instrument reasonably required by any Lender to make this Lease either superior or subordinate t0 a Security Instrument, which may include such other matters as the Lender reasonably requires in connection with such agreements. Tenant's failure to execute any such document or instrument within ten (I 0) days after written demand therefor shall constitute an Event of Tenant‘s Default. -XIII- 15.5 ATTORNMENT: Tenant shall attorn t0 any purchaser of the Premises at any foreclosure sale or private sale conducted pursuant t0 any Security Instrument encumbering the Premises, or t0 any grantee 0r transferee designated in any deed given in lieu of foreclosure. 15.6 ESTOPPEL CERTIFICATES: At all times during the Lease Term, Tenant agrees t0 execute and deiiver t0 Landlord within 10 days following delivery of Landlord's request an estoppel certificate certifying such infonnation about the Lease and such financial information 0f Tenant as may be reasonably required by Landlord. 15.7 NOTICES: Any notice required or desired t0 be given regarding this Lease shall be in writing and may be given by personal delivery, by facsimile tclecoPy, or by mail. A notice shall be deemed to have been given (i) on the third business day after mailing if such notice was deposited in the United States mail, cefiified 0r registered, postage prepaid, addressed to the party to be served at its Address for Notices, (ii) when delivered if given by personal delivery, and (iii) in all other cases when actualiy received at the party‘s Address for Notices. Either party may change its address by giving notice 0f the same in accordance with this $15.7, provided, however, that any address t0 which notices may be sent must be a California address. 15.8 A’ITORNEYS' FEES: If either Landlord or Tenant shall bring any action or legal proceeding for an alleged breach of any provision 0f this Lease, to recover rent, t0 terminate this Lease 0r otherwise l0 enforce, protect or establish any term or covenant 0f this Lease, the prevailing party shaH be entitled to recover as a part of such action 0r proceeding, or in a separate action brought for that purpose, reasonable attomeys' fees, court costs, and experts' fees as may he fixed by the court. 15.9 CORPORATE AUTHORITY: If Tenant is a corporation or partnership, each individual executing this Lease 0n behalf of Tenant represents and warrants that he or she is duly aufhorizcd t0 execute and deiiver this Lsase 0n behalf 0f such corporation‘or panncrship and that this Lease is binding upon such corporation 0r partnership in accordance with its terms. 15.10 MISCELLANEOUS: Time is of the essence of this Lease. This Lease shall, subject t0 the provisions regarding assignment, apply to and bind the respective heirs, successors, executors, adrm'nistrators and assigns 0f Landlord and Tenant. 1f Tenant consists of more than one person or entity, then all members of Tenant shall be jointly and severafly liable hereunder. The language in all parts of this Lease shall in all cases be construed as a whole according to its fair meaning, and not strictly for 0r against either Landlord or Tenant. Landlord and Tenant agree that (i) the rentable area 0f the Premises is measured from the exterior faces of exterior walls t0 the ccnterlinc or interior partitions and includes any atriums, depressed loading docks, covered entrances 01‘ egresses, and covered loading areas, and (ii) all measurements of area contained in this Lease are conclusively agreed t0 be correct and binding upon the parties for all purposes hereunder, even if a subsequent measurement 0f any one 0f these areas determines that it is more 0r less than the amount of area reflected in this Lease. Any prevention, deiay 0r stoppage due to inclement weather, inability to obtain labor 0r materials, governmental restn’ctions, fire or other acts of God, and other causes beyond the reasonable control of the party obligated t0 perform (except financial inability) shaii excuse the performance, for a period equal to the period of any said prevention, delay 0r stoppage, of any obligation hereunder except the obligation of Tenant t0 pay rent 0r any other sums due hereunder. 5.11 ENTIRE AGREENIENT: This Lease constitutes the entire agreement between the parties, and there are n0 agreements or representations between the parties except as expressed herein. This Lease supersedes and cancels any and all previous negotiations, arrangements, brochures and understandings, if any, between Landlord and Tenant. N0 modification to this Lease shall be effective unless in writing signed by the parties. This Lease shat} not be legally binding until fuIIy executed by Landlord and Tenant. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease t0 be effective as of the Effective Date. LANDLORD: TENANT: HARPEL ASSOCIA a California general ?hysical Culture Strength and Conditioning (PCSC) a California Cor 01‘ ' S' : Name: _-' ‘ ' Name: fl"; Lilac d Mfir/ Title: Partner I Title: pi V/n-é" /igK’f Dated: :V I [/2d// I i Dated: // / 3 / fl Signed: -XIV- LEASE RIDER ADDITIONAL LEASETERMS 1. Surrender Condition. At thc expiration or earlier termination of the Lease, Landlord shall have the option of requiring Tenant :o return the Premises to its original configuration and improvements, substantially as the Premises existed prior to Tenant’s occupancy excepting normal wear and tear. 2. Delivery of Premises at Commencement: If Landford is unable to deliver possession of the Premises to Tenant on or before [he Scheduled Commencement Date for any reason whatsoever, this Lease shall not be void or voidable and Landlord shall not be liable to Tenant for any loss or damage resulting therefrom; provided that, the Lease Term shall not commence untii Landlord delivers possession of the Premises to Tenant. Tenant: L,Li Initial: gx é Iféltij‘ 1’? Site Plan 161 0 DELL AVENUE “x, H-.;.__mea .. : mm . IQ, I .owl E" . .1.” g". w“... " I :, ‘ "d m Tim l‘ “‘3‘1} . - : L-I' F"- m n. L-vl :0 Lu IWJ l’l I i I n ‘ t ic’vd aWWH I” 4 C) ‘* fl Ir: mm}! 1f .. I\ ,me w d1 - w; 6 :‘ '\ u'.‘ )n pEXHIBIT A . ~~~:-.rr‘j;AMw Dated: Q-«W/ “I li/Zx’ TABLE 0F CONTENTS AdditiomlRent ............................................................................................. I Address for Notices“ AgreedlntereflRale ............. ....... . .................................. . .............................. . ....................................................... 1 Base. \[onlhly Rent .... Common Area........‘.... ............................... ..... . ...................................... . ............................................. Common Operating Expenses....‘......... Efi'cciichate Landimd’slnsmance ....................................................... . ............... . .................... 1.11 Law ............. . ..... . ...... .. 3.12 Lease L13 Lease‘l‘erm ..................................................... . ........................... 1.14 Lender . .. 1.I5 Premises ....................................... ......... . .................................................. . ............................................................. l 1.16 Project ........................................................................... l 1.17 Real Propczty Taxes .. ................................. I 1.18 Securilylnstmment ................................ ...... .. .. 1.19 Summary ......................................................... .. 1.20 Tenant’s Aitemfions . . 1.21 Tenanfs Sham ................................ . \o'mLa‘mbrln'L-Jiu... H I-nO ARTICLE 2 v DENISE, CONSTRUCTION, AND ACCEPTANCE . 2.1 Demise ofPrchses......... ...... . ................................... ........................................ I 2.2 Commencement Bate..... ..................... ..... 2.3 Delivery and Acceptance of Possession ........................................... ........... . ....................................................... ..... 2 ARTICLEB ~RENTW ...................... ..................................... 2 3.1 Base MonthfyRent‘ ......................... ................ . ....... . ................. 2 3.2 AdditionalRent... .. .. ........................................... . ......... . ....... 3.3 PamcntofRean ... 3.4 Late. Charge and Interesi on Rent 1n Default ....... 3.5 Retunmt Check Pea ....................................... 3.6 SecurityDeposit......‘...-........... ....... . ....................... ....... ‘ ..... ................................................................................... 2 ......... 2 ....... . ................................... 2 ARTICLE 4 - USE OF PREMISES .................. .......................................................... . 2 4.1 Linfilation on Use ........................................ . ...................................................................... ..................................... 2 4.2 Compliance with Law.....,... 4.4 Parking................................ . 4.5 Rules and Regulations.................................... ................................................................ 3 ARTICLE 5 - TRADEFIXTURES AND ALTERATIONS 3 5.1 Trade Fixtures.....~.........A.. ..................................... . ..... ....... . ............................................................................................. 5.2 Tenant‘s Mutations ................ ...................... ...... . .................“w... 5.3 Alterations Required by Law ..... . .............................................. ......................................... 5.4 Mechanic‘s Liens...” .................... 5.5 Taxes on Tenant‘s Propefi) L999 uh) ‘JJ ‘AARTICLE 6 - REPAIR AND MAINTENANCE ................ ...................................................... 6.1 Tenant‘s Obligation to Matntam ..... 3 6.2 Landlord's Obligation to h-iainzain ...... . ............... .. 6.3 Central ofCOmmon Area ....................................... ....... , ............................................................................. 3 ARTICLE 7 - WASTE DISPOSAL AND UTILITIES .............................................................................................................. 3 7.1 Waste Disposal .............................. . ...... . ...... ......................... 3 ?.2 Hazardous Materiais.............. ....................................... 3 7.3 Uliiiliesmm... ............................ ......................................................... .. .......... ................................ 4 .nno..ua.-.-.. ............................. ARTICLE 8 - COMMON OPERATING EXPENSES ................ . ........... ......................................... .......................... 4 8.1 Tenant's Obligation to Reimburse Common Operating Expenses, ................................. ........................... 4 8.2 CommonDpemIing Expenses Dcfined,. ........................................... .. ... .... ... ... 4 8.3 Tenant‘sDbligaliontoReimbursc Real Proped) Taxes and Landlord‘slnsumnce....m: ... .... .... ... . 8.4 Real Property Tm‘es Defined ... ..................... .............................................................. . .................. 4 ARTICLBQ-INSURANCE .............. . ............................ .. ..... . ............................................ . ......... .................... . ........ 5 9.1 Tenant'slnsmance.......... . .. . . S 9.1 Landlmd‘s Jflsmanw ................................... . . ........... 5 9.3 Release and Waiver ofSubrogafion. ..... . ..... ARTICLE 10 - LIMlI‘ATION0N LANDLORD‘S LIABILITY AND INDEMNITY .......................................................................................... 5 I01 Limitation on Landlonl's Liability .......................................................................................................................................... 5 10.2 Limitation on Tenant‘s Recourse.... 5 [0.3 Indemnificau'on ofLandlord .................................................................................................................................................. S ARTICLE II - DAMAGES TO PREMISES ......................................................................................................................................................... S {1.1 landlord's Duty to Restom ............................................................................................................................................ . ........ 5 £12 Landlosd's Right to Terminate ...................... 11.3 Abatementot‘cht ......... ARTICLE 12 - CONDEMNATEON ...................................................................................................................................................................... 6 12.1 Landtom‘s'fenninalion Right ................................................................................................................................................. 5 12.2 Tenant's Tennination Right........ 12.3 Abatement of Rent ..................................... 12.4 Division of Candemnation Award .......................................................................................................................................... 6 ARTICLE 13 - DEFAULT AND REMEDIES...................................................................................................................................................... 6 13.1 Events of'I‘enant’s Defiiuh ..................................................................................................................................................... 6 13.2 Landlord‘s Remediés.......................... 13.3 Waiver....................................................... 13.4 Waiver by Tenant nfCertahl Remedics .................................................................................................................................. 7 ARTICLE 14 - ASSIGNMENT AND SUBLETTING........................................................................................................................................... ? 14.1 Transfer by Tenant............................................................................................................ 7 14.2 Transfer by Landlord ....................................................................................................... 7 ARTICLE 15 - GENERAL PROVISIONS ............................................................................................................................................................ 7 I5.I Landlord’s Right to Enter...................................... 15.2 Smender ofme Premises... 15.3 Holding Over ....... . 15.4 Subordination ........... ........ 15.5 :‘xttomment ................................ 15.6 Esloppel Certificates .............................. 15,? Notices ................................................... 15.8 Auomeys‘ Fees................. 15.9 Corporate Authority... [5.10 Miscellaneous .................................... 15.11 Entire Agreement ...................................................................................................................................... E {BITS Lease Rider Additional Lease Terms Exhibit A Site plan ofzhe Project Exhibit B Landlord's Improwments Exhibit C Sign Criteria Exhibit D Tenant Infomaliog Exhibit Ii Lease Gumty ”II- LEASEw DEFiNlTIONS 1.1 ADDITIONAL RENT: The Ienn “Additional Rent“ is defined In §3.2. 1.2 ADDRESS FOR NOTICES: The term "Address for Notices“ shall mean the addresses set forih in Sections? and Q of the Summazy; provided, howaver, that afler aha Commencement Date, Tenant's Address for Notices shall bc the address ofthc Premises. 1,3 AGENTS: The term "Agents“ shali mean tho following: (ihw'th respect to Landlord or Tenant, the ageals, employees, contractors, and invitees of such patty; and (ii) in addition with respect t0 Tenant, Tenant's subtenants and their Iespective agents, employees, contractors, and inviiecs. 2.4 AGREED INTEREST RATE: The term “Agreed Interest Rate“ shall mean 1119 lesser of (i) ten percent (10%) or (ii) the maximum interest rate permitted by Law. 1.5 BASE MONTHLY RENT: The term “Base Monthly Rem“ shatl mean 1h: fixed 1110111th rent payable by Tenant pursuant to {3.} which is specified in Section K ofthc Summary. 1.6 BUILD TNG: Th6 term "Building” shall mean the buiIding in which tho Premises are located which Building is Identified in Section F ofthc Summary, the rentabie area ofwhich is referred lo herein as 1115 "Building Renlable Area." 1.7 COMMON AREA: The term “Common Area" shail mean all areas and faciiilies within the Project that ale not designated by Landlmd for the exciusive use ofTenant or any olher lessee or other occupant ofthc Project, including the parking areas, access and petimeier roads, pedesuian sidewalks, landscaped areas, traih enclosures, recreation areas and 1113 like. {.8 COMMON OPERATINGEXPENSES: The term “Common Operating Expensm‘“ is defined in $3.2. 1.9 EFFECTIVE DATE: The ram “Effective Date" shali mean ihe daze the last slgmaiory to this Lease whose execution Is required lo make it hindiag on the parties hereto shall have executed this Lease. 1.10 LANDLORD’S INSURANCE: The term “Landlord’s Insurance“ is defined in $9.2. 1.11 LAW: 11:6 lcrm ”Law" shall mean anyjudicial decision, statute, resoluiioa, regulation, r1116, administrative court order, or mher requirement ofany municipal. county, 5mm, federal or other government agency 01' auihoriiy haringjurisdiclion over the panics to this Lease or the Premises, or both, in effect either at the Efl‘eclive Date many time dun'ng the Lease Term. 1.12 LEASE: Th¢ Ieml “L¢ase“ shall meat: the Summaxy and ali elements of this Lease idanfifled 1'11 Section R fifths Summary, all ofwhich are attached hereto and incorporated herein by lhis reference. 1.13 LEASE THEM: 'Ihc term ”Leasa Tenn" shall mean the term ofthis Lease which shall commence on the Commenc’sment Dale and continue forthe period specified in Section l oflhe Summaxy. 1.14 LENDER: The term "Leaflet” snail mean my hcneficimy, mortgagee, secured pang, lessor, or olher Imider of any Security Instrumenl. 1.15 PREMISES: The term ”Premises“ shall mean the rentable area within the Building descn‘hed in SecflnnD of the Summary located approxhnaleiy as shown on Exhibit A. l. i6 PROJECT: The tam “Project“ shall mean that real propeny and the improvemems thereon which are Specified in Section B of the Summary, the rentahie area ofwhich is refened to heteln as the “iject Rentable Area.“ 1.17 REAL PROPERTYTAXES: The 1cm “Real Properiy Taxes" is defined in 18.4. 1.18 SECURITY INSTRUMENT: The term ”Security Instrument" shall mean any underiying lease, mortgage or deed of tmst which now or hereafter affects any pofiion oftlle Project. 1.19 SUMMARY: The term “Summary” shall mean the Summary of Basic Lease Terms executed by Landlord and Tenant that 55 pan 01‘1th Lease. 1.20 TENANT'S ALTERATIONS: Tha mm “Tcnanl‘s Mutations" shall mean ail improvements, additions, alzerafions. and fixtures inslafled in lhePreml'ses by Tenant at its emense. 1.2! TENANT‘S SHARE: The term ”I‘eth‘s Share" shat? mean 11m percentage obtained by dividing Tenant's renlabfc area by the Bailding Rentable Area, which as ofthe Efieclive Date J's the percentage identified in Sgclian £3 of lha Summary. ARTICLE 2 DENISE, CONSTRUCNON, AND ACCEPTAKCE 2.1 DENISE 0F PREMISES: Landlord hereby icases to Tenant, and Tenant leases from Landlord, the Premises for the Lease Term upon lha terms and condiiions hereof. 2.2 COMMENCBMENT DATE: The Lease Term shall begin on ins first to octur of the following, which shall be the "Commencement Data”: {i} the date specified in Section i of 1h: Summary {lhe "Sthechfied Commencement Dam") if Landtord is no! required Io constant improvements under ExhibitB' or (I'DIhe date Landktrd afi‘ers {o defix‘er possession ofthe Pnemises to Tenant foilowing subsiamial "IIIH compielion ofall improvements lo bc constructed by 1.dede under Exhibit B except for punchlisl items which d0 noi prevent Tenant fiom using the Premises; orfiii) {he date Tenant Enters into occupancy ofths Premises. 2.3 DELIVERY AND ACCEPTANCE 0}“ POSSESSION: HLandIord is unable £0 deliver possession of the Premises t0 Tenant on or heron: the Schcdulcd Commencement Date for any rcasma whatsoever, ain's Lease shali not be void or midabie, and Landlord shali not be liable to Tenant for any loss or damage resuiling Lherefmm; provided that, the Lease “Fem: shalt n01 commence until Landiord delivers possession of me: Ptamises to Tenant. At the time Landloui delivers possession ofihe Premises lo Tenant, Tenant agrees to accept possessiunof the Premises in Rs lhen existing condition, “as-is", including all patent and latent defecls, subject only to any defects in the hemises existing at the time Tenant takes possesfion and ofwhich'fcnant notifies Landtoid in midngwithin thiny (30) days ofthe Commencement Daie.w RENT 3.1 BASE MONTHLY RENT: Throughout lhe Lease Term, Tenant shall pay I0 Landlord the Base Monthly Rent se{ fen]: in Section K oflhe Summary (lhe "Base MonZth Rent”). 3.2 ADDITIONAL RENE: AI! €113:ch due from Tenant under this Lease shall be deemed additional rent [1116 "Additional Rent"). 3.3 PAYMENT 0F RENT: Concurrently with me atecution of this Lease, Tenant shali pay to Landlord the amoum set forth in Section L of the Summary as prepayment of rent for czedit agaigst lhc first installment(3) of Base Monthly Rent. A11 rent required lo be paid in monthiy installments shall be paid in advance on {he fitst day 0f each calendar month during the Ltasc Term Io Landtord at the address set forth in Section P of the Summary or to such oLher address as Landlord may from flute to Iims indicate. A11 rent shafl be paid in lawful money ofthe United States, wilhout any abalement, deduclion or offset whatsoever, and without any pdor demand therefor. Landiord shall have the fight Io appiy any and aiI amounts received in the manner Landlord determines, in its sole discretion; and Tenant waives the benefits ofCivEI Code Section 1479 or any successor siamla or law. 3.4 LATE CHARGE AND INTEREST ON RENT 1N DEFAULT: Ifarly Base Monthly Rent or Additionai Rent is not received by Landlord ficm Tenant when due, then Tenant shall immediately pay to Landford a late charge equal to the greater of (i) ten percent (10%) afsndt delinquent rent or (ii) One Hundred Dollars ($100.00), as quuidalcd damages for Tenant's failure t0 make timely payment. Ifaixy rent remains delinquent for a period in eccass ofthirty (30) days 111cm, in addition Io such late charge, Tenant shall pay to Lnndltxd interest on any rent that is not paid when due at the Agreed lniercst Rate following the date such amount became due until paid. This paragraph shafl net b3 deemed to grant Tenant an extension offirne m‘thin which to pay rent or prevent landiord fiom exercising any other right 0r remedy. 3.5 RETURNED CHECK FEB: A Twenty Five Dollar ($25.00) charge wili be paid by Tenant as Additional Rent to Landlonl for each check returned unpaid by the bank and Tenant shall repiace lhe payment with a Cashier’s Check or Certified Check. if Tenant has two (2) or mme checks rammed for insufficient funds at any time dun'flg its 1603M}; Landlord, at its optiom may request all paymenlg cun‘ent and future, b¢ madc by Cashier‘s Check orCcdificd Check. 3.6 SECURITY DEPOSIT: On the Efi‘eclive Date, Tenant shah deposit with Landlord the amount set fonh in Eamon M of [he Smmnaxy as security for the performance by Tenant of its obligations under {his Lease, and not as prepayment of ten! (the "Security Deposit“). Landiord may from time Io fima appiy all or any portion offlie Security Deposit to remedy any defanlt by Tenant t0 the extent permilled by Law. If‘ any part ofll‘w Sccun'ty Deposit is so used, Tenant agrcts to pay prompib' upon demand an amoum in cash sufficient to restore the Secun‘ty Déposlt Io the filll nrfgiual amount. Landlord shall 110$ be deemcd a lmslee: ofihe Security DepOsH, may use the Security Deposit in business, and shall not he required to segregate it fmm its general accounts. Tenant shall not be entitled {a any interest on the Semrity Deposit. ARTICLE g USE 0P PREMISES 4.1 LLulTATION ON USE: Tenant shafl use the Premises solely for the 1156 spccificd in Sgggjon 1N! of the Summary [tha “Pennitled Use'}. Tenant shall not do anything in or about the Premises which will cause any damage, or stmclurai injury to 11w Building or Commo‘n Area or operate any equipment wiihin the Premises which wiil ovedoaci, damage or imyair electrical systems, HVAC, sprinkler systems, sanitary sewe: systems or other mechanical equipment servicing the Bniiding or aha Project. Tenant shat! not attach, hang or suspend anything fiom lhe ceiling, roof, walls or columns of the Building or set any load on lhe floor in excess of the load limits for which such items are designed nor operate hard wheel forklifts within the Premises. Tenant shalt not change the exterior of the Building o: instali any equipment or antennas on or make any peneuations of the extedor or roof 0f [ha Building. Tenant shall not commit or permit any waste or nuisance 5:1 or about the Pmmisei. Tenant shall no: conduct on any purfion oflhe Premises r}: the Project any sale ofany kind. N0 alticks ofany kind shall be stored upon 0r perrniiied to remain outside ofthe Premises. 4.2 COMPLIANCE “1TH LAW: Tenant sh all comply wilh, and shall not use the Premises in any manner which violates any Laws or covenants. conditims and resm'cfions or other resln'ctive covenanis or agreemenls now or hereafler affecting lhe Project. Tenant shall net use 111: Prtmiscs in any manner which will cause a cancellation ofany insurance policy covering the Building or which poses an unreasonable Iisk of dam age or injury to the Premises. Tenant shall comply with all reasonable requirements ofany insurance company, insurance underwriter. or Board ot‘Fire Underwriters which am necessary to maintain 1he insurance courage canied by either Landiorrl or Tenant pursuant to Itfis Leasé. 4.3 SIGNS: Tenant shall not place (m any ponion of the Premises any signage or cormmmicative matedal which 1's visible from the exterior of me Building without the prior written approval of Landlord. All such approved signs shall striclly conform 10 all Laws, restriclive covenants and Landlord’s sign criteria attached as Exhibit C. and shall be insialled and maintained in good condition at lhe expense of Tenant thmughout the Lease Term. 4.4 PARKING: Tenant shall be entii!ed t0 the non-exciusive use ofunresen'ed and unaSSigned paxking spaces aqua! to the number of'l'enant‘s Allocated Faking Stalls contained within the Project described In §ggiion :1 ofthe Summary for its use and the use of Tenant's Agents, the Iocaiim efwhich may be designated fmm time 10 time by Landioni Tenant and Tenants Agents shail park vehicles no larger than full size passenger automobiles nr pick-up trucks at the Project and any Oversized vehicles (i.e., larger than fidl size passenger auzomobfies or pick-up Imcks) may be parked at the Project only nu a lempmary basis for pick-up and delivery purposcs. Tenant shall not at any time p311: or permit thapaficing of Tenant‘s vehicles or trucks, or the vehicles or trucks of its empioyees, invitees or others, in 3113' ponion of [ha Common-Area not designated by Landlwd for such use by Tenant. Tenant shall 1104 abandon any inoperative vehicles or equipment on any ponion of the Common Area, rm: shalt Tenant, iis employees, invitees, suppiiers or olhers park or store any vehicfe on any portion of the Common Area, including designated parking ”1v... areas, unauenéed for any pcn‘od longer than hventy~four (24) hours. Landlotd reserves lhe right. after having given Tenant reasonable nmice, to have any vehicles mmed by Tenant or Tenant's Agents utiIizing parking spaces in excess of the puking spaces allowed for Tenant's use or parked in unauflmrized meas to he lowed away at Tenant's cost. 4.5 RULES AND REGULATIONS: Landtord may promulgate reasonable rifles and Icgulalions applicable Io the occupants of the Project. Such rules and reguIations shall be binding upon Tenant upon delivery ofa copy Io Tenani, and Tenant agrees Io abide by such rules and regulations. ARTICLE § TRADE FIXTURES AND ALTERATIONS 5.2 TRADE FLYTURES: Throughout the, Lease Term, Tenant may provide and install, and shall maimain in good condition, any trade fixtures required in the conduct ofils business in {ha Premises- A13 trade fixtures shall remain Tenam’s propeny. 5.2 TENANI‘S ALTERATIONS: Tenant shall not consimct any Tenant‘s Alterations or otherwise alter the Premises without Landlord's prior \m'zten approval. At lhe expfiation or some: termination of the Lease Term, ail Tenant's Alterations shed! be surrendemd to Landlord as pm of the really and shall then become Landlmd's property, and Landlord shall have no obligation to reimburse Tenant for all or any portion ofthe value or cost lhereofi provided, however, {hat if Landlord requires Tenant lo remove any Tenant's Alterations, Tenant shafl so remova such Tenant's Alterations ptior to the expiration or sooner terminatim of the Lease Tami. All Tenant's Alterations shail be constmded by a licensed contractor in accordance wiih all Laws, using new materials ofgood quality. 5.3 ALTERATIONS REQUIRED BY LAW: Tenant shall make any alteration, addition or change of any son to the Premises that 1's required by any Law because of (iJTenani’s particular use or change of use of the Pmnism, (iDTeDant’s application for any penni: or governmental approval, o: (iii) Tenant's construction or inslallaiion afany Tenant's Alterations or trade flames. 5.4 MECHANICS LIENS: Tenant shall keep the Project free from any liens and shall pay when due all bills arising out of any work performed, materials furnished, or obligations incurred by Tenant or Tenant's Agents. If any claim of lien is recorded, Tenant shall bond against 0r dischaxge the same within 10 days ans: the same has been recorded against the Project. 5.5 TAXES 0N TENAN’I'S PROI’ERT Y: Tenant sh all pay befoxe delinquency any and a1! taxes, assessments, license: fees and public chaxges imposed against Tenant or Tenant's estate in this Lease or the progeny of Tenant. ARTICLE 6 REPAYR AND MAINTENANCE 6.1 TENANT‘S OBLIGATION T0 MMNTMN: Tenant shall, at its soze cost and expense, clean and maintain in 300d order, condition, and repair and replace when necessary the Premises and every part mercof regaldiess ofwheiher the damaged ponion ol‘ lhe Premises or the means ofrepairing the same arc accessible to Twain, including bu: not limited to, floors, ceilings, windows, doors, skylights, intefim mils, and the inicn'or surfaces of the exterior avails, piumbing, all wall mounted HVAC equipment sensing only the Premises, telecommunicazions equipmenl and intrahuilding network cabiing. electricai and lighting facilities and equipment including circuit breakers, and exterior lighting attached to lhe Premises. MI glass, bolh intefior and exterior, is at the sole risk of Tenant and any broken glass shall prompfiy be replaced by Tenant at Tenant’s cxpenm with glass of the same kind, size and quality according 10 lite current local code. In the event Tenant fails to perform Teaant‘s obligaiions under 13315 $6.1, Landlord shafl give Tenant noiice {o do such acts a5 am reasonably required to so maintain the Premises. IfTenant, within ten (10) days after nofice from Landlord, faiis to conunencc {a do the work and diiigenfly proswule it to completion, then Landiord shali have tho fight (but no! the obligation) lo do such acts and expend such funds at the expense of Tenant as arc reasonably required to perform such wed»; Any amount so expended by Landloxd shall be paid by Tenant promptly after dcmand with interns: at the Agreed Interest Rate from the date ofsuch work until paid. Landlrn'd shall have no liability to Tenant 1‘0; any damages, inconvenienca or inierfetence \fith the use of me Premises by Tenant as a result of performing any such wed; All repairs and replacemenks required of Tenant shall be promptly madc with new materiats oflfiw kind and quality. If the “-011: afi‘ects me slmctuml pans ufflle Building or iflhe estimated cost ofmy item ofxepair or replacement is in excess ofOne Thousand Dollars ($1,000.00), then Tenant shaii first ohiain Landimd‘s mitten approval ofthe same in accordance with 55.2 hereof. 6.2 LANDLORD'S OBLIGATEON T0 MAZNI‘AIN: Landlord shed}, at its sole cost and expense (subject to reimbursement as set fmth in this Lease), repair, maintain and operate the Comnmn Area and repair and maintain she emetic: roof, all roof mounted HVAC equipment, tho exterior and structure! parts ofihe Building so that the same arc kept in good order and repair and ifmere is buiiding service equipment andlor utility facilifies serving ponions of tha Common Area andfor bozh the Premises and other pans ofthe Buiiding, Landiord shall maintain and operate (anc? replace when necessary) such eqtflpment. Landloré shall nu: be mmnfible for repairs required for damage caused to any part of the Project by any act or omission of Tenant or Tenant’s Agents and Tartan! shalt be 501er responsible for such repairs. 6.3 CONTROL 0F COMMON AREA: Landlord shali at all times have exclusive control of the Common Area Landlord shall have the right, wiihoul the same constituting an actual or constructive efiaion and without enliiling Tenant to any abatement of rent, to close my part of 1hr: Common Area for any reason, eliminate fiom oradd [n lhc Project any land or improvement, make changes to the Common Area, remove unauflmrized persons from the Project, andfor change the name or address of the Building or Project. Landlord shall have no obligation to provide guard services or other security measures For 1h: benefit of the Project and Tenant assumes alt responsihiiibr for the proiecliou of Tenant and Tenant's Agents from acts ofthird panics. éRT {CL}; 7 “'ASTE DISPOSAL AND UTILITIES ?.i WASTE DISPOSAL: Tenant shall cause ait of its waste to be stored oniy in designated areas and regularly removed from the Premises at Tenant's sole cost; provided that, Landlord may elect to profidc for waste disposal at the Premises audio: Project and the cost thereof shall be considered a Common Operating Expense. Tenant shall keep all fire corridors and mechanical equipment rooms in lhe Premises flee. and clear ofail obstructions. 7.2 JEAZARDOUS MATERIALS: Landlord and Tenem! agree as follows with Iespecl to tha existence: 0r um of Hazardous Malen‘als on the Project: A. Any handling. transportation, storage, treatment disposal Dr use 0fHamdous Materials by Tenant and Tenant‘s Agenls in or about Lhe Project shafl shiclly compiy with 311 applicable Hazardous Materials Laws. Tenant shall indemnify, defenti upon demand with cmmsel reasonably acceptable t0 Landlord, and hold hamfless Landlord from and against any and all liabilities, Iosscs, cial'ms, damages, lost profits, consequential damages, interest, penanies, fines. monetary sanctions, attorneys‘ fees, cxpcris‘ fees, court costs, remediation costs, investigation costs, and clher Expenses which result finm or an‘se in any manner whatsoever out of the use. storage, treatmenj, transportation, release, or disposai of Hazardous Materials on or about the Project by Tenant or Tenant‘s Agents. B. If the presencc of Hazardous Maien’ais on or about the Project caused or pemfificd by Tenant or Tenant‘s Agems results in contamination ofwater or soil, then Tenant shall promptly take any and all action necessary to investigate and mnediatc such contamination as required by Law or as a condition t0 the issuance or continuing effectiveness O_f any gm'emmenml approval which Isfatcs to the use of the Project or any pan lhereofi Tenant shail further be $01er rasponsible for, and shall defend, indemnifi' and hold Landlord and its agents hamless from and against alI claims, costs and liabjiities, incIuding armmeys' fees and costs, arising out of ax in connection with any investigation and remediation to return the Project to its condition exisling prior to the appearance of5uch Hazardous MaIerIaJs. C. Tenant shall 31w “fitted nolice to Landlord as soon as reasonably practicable of (i) any communication received front any gm'emmenial authority concemiag Hazardous Materiah which relates to {he Project, and (iijany contamination of the Project by Hawdous Materials which constitutes a violaiion of any Hazardous Maten‘als Law. Tenant may use such Hazardous Maten‘als as are necessary to the operation of Tenant‘s business ofwhhch LamflMd receives notice prior Io such Hazardous Materials being bmugbt onto the Premises and 10 which Landlord consents in “filing. At any time during the Lease Term, Tenant shall, within five days after mitten requesl thetefor received from Landierd, disclose in “Thing all Hazardous Malen‘als that are being used by Tenant m1 the Project, the nature and quantiiy ofsuch usc, and (he manner ofstorage and disposal. D. Landlord may cause testing wells to be installed on the iject, and may cause tho ground water lo be tested to detect the presence of Hazardous Matedal by {he use ofsuch tests as are then customarily used for such purposes. The cost ofsuch tests and ofthe mstaifation, maintenance, repair and replacement of such wens shall be paid by Tenant ff such tests disclose the existence of facts which give rise Io liability 11f Tenant pursuant to its indemnity given in $7.221 and or i121}. ' E As used herein, the 1cm] “Hazardous Malcn‘al," means any hazardous or toxic subszance, material or waste which is or hecmncs regulated by any local gm'emmeniat aumcn‘ty, the State of California or the United States Gm‘emment. As used herein, the term "Hazardoushiatefial Law“ shat! meat: any Law which regulates the use, storage, release or diaposa] of any Hazardous Material. F. The obligations of Landlord and Tenant under this $7.2 shali survive the expiration or earlier tenninaiion of Lhc Laue Term. The rights and obiigations ofLandIord and Tenant with respect Io issues reiatt’ng to Hazardous Matefials are exclusively established by this $7.2. In [he event ofany inconsistency betwem any other part afthis Lease and this $3.2, the terms ofthis $7.2 shall comm}. 7.3 UTILITIES: Tenant shall promptly pay, a5 lhc same become due, a“ charges for water, gas, ekfln'city, telephOne, sewer senicc, waste pick-up and any other utilities, materials or services filmished to or used by Tenant on or about the Premises during the Lease Term, inctuding. without limitation, meter, use andfor connection fees, lwok-up fees, or standby fea, and penalties for discontinued or inlermptcd senicc. Landlord may, at Landlord‘s option, require Tenant to place any utility service sewing oniy the Premises in Tenant‘s name. Ifany utility service is not separaleiy metered Io the ?remises, then Tenant Shall pay its pro Iata sham ofthc cost ofsuch utility sen’icc with all omen“. served by the service not separately metered. However, if Landlord ddemfines that Tenant is using a éispmportlonate amount of any utility sewice 11m separately metered, then Landlord at its electionmay (i) peflodicaily charge Tenant, as Additionai Rem, a sum equal to Landlord‘s reasonable esfimate of the cost ofTenant‘s excess use ofsuch uliiiiy service, 0r (ii) install a sepaxate meter (at Tenant’s expense) to measure lhe utility service. supplied to lhe Premises. ARTICLE 8 COMMON OPERATING EXPENSES 3.1 TENANT'S OBLIGATION ’IO REiMBURSE COMMON OPERATING EXPENSES: AS Additional Refit, Tenant shall pay Tenant's Shale (specified ia SeclionG of the Summary) of ali Common Operating Expenses; provided, however, mat if the Project conlains more than one building, then Tenant shall pay Tenant's Share of ail Common Operating Expenses faidy aIlo-cable to the Building and provided fluihcr, that Tenant shall pay all Common Operating Expenscs fairiy allocabla to 1h: Premises. Tenant shaEl pay such share oflhe actuai Common Operating Expenses incuned or paid by Landlord but not memtufom billed to Tenant wiihin ten (E0) days afier receipt ofa wn‘uen hi8 lheict‘or from Landlord, on such periodic basis as Landlord shail designate. but in no event more frequently than once a month Aitemmivety, Landlord may fiom time to time require that Tenant pay Tenant’s Share. of Common Opi‘rating Expenses in advance in esiimated monthly or, at Landlord's Option, quarterly insiallmcnts, in accmdanm with the following: (i) Landford shall deliver Io Tonanl Landlord‘s reasonable estimate of‘ the Common Operating Expenses it anticipazes wiii be paid or incurred for me Landlonfs fiscai year in quesiion, (ii) during such Landlord's fiscal year, Tenant shall pay Tenani‘s Share of tho estimated Common Operating Expenses in advance in equal momhly installmenis due with each installment ofBase Monihly Rent, and (iii) within ninefy {90} days after the end of such Landlord's fiscal year, Landiord shah fiJmish {o Tenant a statement in reasonable detail oFihe actual Common Operating Expenses paid 0r interred Ely Landlord in accordance with this paragraph during {he just ended Landiord's fiscal year, and thereupon {here shali be an adjustmeni heiweeg Landlord and Tenant, with payment lo or repayment by Landlord, as {11¢ case may require, m'thin If) days alter delivery $1)! Landlord to Tenant ofsuch statement, so that Landlord shaii receive Lila entire amount ofTenant’s Share ofall Common Operazing Expenses for such Landford's fiscal yearand no more. 8.2 COMMON OPERATING EXPENSES DEFINED: Tha term ”Common Operating Expenses” shall mean all costs and expenses [mulled by landlord \vilh respect to the operation, protection, improvement, maintenance, repair, Iepiacemenl, and restmmion of the Project, including, without limitation, the foiimving‘. (i) tho operation, repair, maintenance and replacement of the roof (excluding replacement of tha roofstrutture and’or membrane), the exterior surfaces and interior improvem eats ofall buildings Iocaled on the Project, lhe roofmounled HVAC equipment, utility faciliiics and other building service equipment, and the Commen AIMS; {ii} reserves set aside for Common Operating Expenses or for maintenance, repair audio: repiaccment of tha Common Ana; (iii) the amounts of any “deductible" and “coinsurance“ paid by Landlord with respect lo damage caused by an "Insurefi Peril“ (as hereinafter defined) Gr amuunls incurred in connection with an ‘Um’nsureé Peril“ (as hereinafter defined) up to a mfimum amour“ in any twelve (I2) month period equal Io two patent (2%) of the replacement cos! of the buildings or other improvements damaged; and (v) reasonable managcmcni fees. _VI... 8.3 TENANTS OBLIGATION TO REIMBURSE REAL PROPERTY TAXES AND LANDLORD'S INSURANCE: AS Additionai Rem, Tenant shail pay Tenant‘s Share {specified in Section G ofthe Summary) of the amount (if any) by which Real Pmperty Taxes audio: Lendiord’s Insurance costs paid or incurred in any Landlord’s fiscal year dufing the Lease Term exceed tha Real Property Taxes andfor Landlord's Insurance costs, respectively, paid or {named during the fiscal year in which tho Commencement Date occms (which excess is referred lo herein as the “Excess Expenses“) for any annual periml or portion thereof. 1f the Project coniains more than one building. then Tenant shaii pay Team‘s sham of 1113 Excess Expenses for (he Landlcni‘s fiscal year in question based upon the Rea! Property Taxes andfor Landlord‘s Insurance costs fairiy aliocable lo the Building. Tenant shall pay such sham ofthe Excess Expenses on the same payment 1611115 as an: contained In $8.1 hereaf regarfiing payment ofCornmoa Operating Expense: 8.4 REAL PROPERTY TAXES DEFINED: 11m term "Rea! Properly Taxes" shall mean a]! taxes, assessments, levies, and olher charges of any kiné or nature whatsoever, general and special, foreseen and unforaccn, now or hereafler imposed by any govemmemal or quasi- gm'emmental authority or Special district havisg llae dixecl or indirect power to tax or law assessments, which are laded or assessed against, or with respect ta the value, occupancy or use of, all or any ponion oflhe iject OI the rents defived therefrom (except federal and slate net income lites). ARTICLE 9 INSURANCE 9.! Tl-INANT'S INSURANCE: Tenant shall maintain insurance complying With all ofihe foilowing: A. Tenant shall procme, pay for am! keep in full force and effect: {i} commemfal general Zlabmty insurance, including property damage, against iiabifity for personal injury, bodiiy injury, death and damage Io property occum'ng in or abous, or resulting fmm an occun'ence in or about, the Premises with combined singie limit coverage ofnot less than the amount specified in Sedion O of the Summary, which insurance snail cunlain a “contractual liability“ endorsement insuring performance of Tenant’s obligation to indemnify Landlord contained in $10.3; (ii) fine and property damage insurance in so-callcd ”all risk“ form insuring Tenant’s Alletmions for their fill! actual tepiacement cost; and (iii)such other insumncc and amaums of insurance as are either (1) reasonably required by any Lender, or (2) reasonably required by Landlord and customarily carried by tenants of similar property in similar businesses. B. Where nppkica'bla and required by Lundiord, each policy of immature required to b6 carried by Tenant pursuant {0 ibis $9.1: (f) shail name Landlord and such other parties In intents: as landlord reasonably designates as additional insured; (ii) shall be primaxy and not secondary or contributing, {iii} shall be in a fem and carried with companies reasonably acceptabla to Landlord; (iv) shall provide that such poiicy shalI not he subject tn cancellaiion, lapse or change except after at least thirty {30) days prier wn'ltm notice to Landlord; (v) shail not ham a "deductible" in excess ofsuch amounts as are approved by Landlord; and (vi) shali contain a cross liability endorsement and a ‘severability" chase. C. A copy ofeach paid-up poticy evidencing iha insurance required to be cam'ed by Tenant pursuant lo 1111's $9.1 (appropxiately authenticated by the insurer) shall be delivered Io Landlord prior to the time Tenant or any of its Agents enters the Premises and upon renewal of such poiicies, but not I355 than five {5} days prim to the expiration oftl'le term ofsuch caverage. 9.2 LANDLORD'S INSURANCE: Landlord shail maimain a policy or policies offire and property damage insurance in socallcd “3]! Iisk" form insuring Landlord {and such others as Landlord may dfiignale) from physicat damage to the Project with coverage: of no! less than 1h: full repiacemeni cost thereof, and if Landlord elecls, a commercial general liability pom)! ("Landlord’s Insumnce"}. Such insumnce may be endorsed to cover loss caused by such addilicmal pen'Es agafnst which Landlord may elect to insure (including earthquake and’m flood}, and to provide such additions! coverage as Landloa’d reasonahiy requires, and shali coniain reasonable ”deductibles“ which, In the case of earthquake and flood insurance, may be up to such amount as is lhen commelcially reasonabie. landlord shall no: be :equired to cause such insurance lo cover any ofTenant‘s Aiterations or lrade fixtures. 9.3 RELEASE AND WAIVER OF SUBROGATION: The panics hereto release each othfi, and their respective agents and employees, from any liability for injury to any person or damage to propcny that is caused by or rasulls fiom any risk insured against under any valid and collectible insurance policy carried by either of the parties which conzains a waiver of subrogation by the insuze: and is in force at the time of such injury or damage; subject to {he foflowing limitations: (i) the fouregoing pmvision shall not apply 10 the commercial general liabiliiy insurance described by subparagraph $9.1m and (ii) Tenant shall not be released fiom arty such liability lo lhc cxteni any damages resulting fium such injury or damage axe not conned by the recovery obtained by Landlord fiom suchinsumnce, but only ifthe insurance in quesiions parmils such pattial release in connection with obtaining a waiver ofsubrogazion fwm the insurer. Bach party shail use reasonatzle efforts to cause each insurance poiicy obtained by it Io provide lhat the a'nsuzer waives ail fight cf recovery by way of submgation against {ha other party and its agents and employees. EXRTICLE 1i] LIMITATEON ON LANDLORD‘S LIABILITY AND INDEMNITY 10.1 LlB-HTATION 0N IANDLORD‘S LLABiLlTY: Landiord shall not be Iiable to Tenant, nor shall Tenant be entitled to terminate this Lease 0r to any abatement chem, for any injury to Tenant or Tenant's Agents, damage {o the properly oI'Tenan: or Tenant‘s Agents, or Icss to Tenant's business resulting from any cause \vhatsoever uniess same 1's proximately caused by Landlord‘s wiltfid misconduct or gloss negligence ofwhich Landlord has actual notice and a reasonable opportunity ta cure but which it fails Io so tune. 10.2 LIMITATION ON TENANT'S RECOURSE: Tenantshal] have recourse mix to theinierest ofLandlorrI in the Project for {ho satisfaclion of the obligazions of Landlord and shall not have recourse to any ozher assets of Landloxd or to the assets cf any officers, directors, trustees, panners, joint venrums, members, owners, stockholders, or other pdncipals or representatives of Landlord for the satisfaction of such obiigations. 10.3 INDEMNIFICATION OF LANDLORD: Tenant shall hoId harmless, indemnify and defend Landlord, and its employees, agents and contractors, wilh competent counsel reasonabiy satisfaciory to Landlord, fi'om all liability, penalties, losses, damages, c0515, expenses, cause; ofaction, datum andfarjndgments arising Emu or relating to {i} any cause o: causes whatsoaver (other 111m 11m wiiifill miscenduct or gmss negligence of Landlord ofwhich Landlord has had notice and a reasonable time to cum, but which Landlord has faiied Io cure) occurring in or about 0r resulting from an occuntnce in or about the Premises during tha Lease Trim, {ii} tha negiigencc or \fiilful misconduct of Tenant or 'i‘euant‘s Agents, wherever the same may occnr, or (iii)an Event of Tenant's Default. The provisions of this 1}le shail survive lha expiialion or sooner icminalion ofthis Leasc. ...VII.- ARTICLE 11 DAMAGES T0 PREMISES 11.1 LANDLORD'S DUTY T0 RESTORE: If‘the Premises are damaged by any peril, Landlord shall restore the Premises unless the Lease is terminated by Landford pursuant 10 ‘fi l 1.1 Alt insurance proceeds availabie fiom the fire and pmgcny damage insurance carried by Landlord pursuant to $9.2 shall be paid to and become the propefiy afl.andlord. Landlord‘s obiigation to restore shall be limited to the Premises and interior improvement; constructed by Landlord as they existed as of the Commencement Date, excluding any Tenant‘s Altaations, trade fixtures andfor pcrsmal propeny, Tenant shall forthwith replace ur fillly repair all Tenant‘s Alteraiions and trade fixtures exisling at the time ofthe damage. 11.2 LANDLORD‘S RIGHT TO TERMINATE: Landlord shall have the fight to terminate this Lease in Ihe event any of 111a following occurs: (i) either the Project or the Building is damaged by an Insured Petil lo such an men! aha! Ihe estimated cost to restore exceeds thirty three (33%) oftfie 111m actuai replacement cost thereof: {ED either the Project or the Buiiding is damaged by an Uninsured Peril to such an extent that the estimated cost to restore exceeds two percent (2%) of the then actual repiacement cost Ihereof; or (iii) the Premises are damaged by any peril within tweh‘e {12) months of the lasl day of the Leasa Tea]; As used herein, “Insured Pexil" shall mean a pedl actual}; insured against for which 11w insurance proceeds actuaily Ieceived by Lanélmd are sufficient (except for any “deductibla” amount specified by such insurance) lo restore me Project under then-exisling building codes tn the condition existing immediataly prior to lha damage; and "Uninsured Peril“ shall mean any pelii which is not an lnsmed Peri}- Notwifiistanding the foregoing, if the "deductible" for earthquake or flood insurance exceeds two percent (2%) ofthe replacement cast ofthe improvements fumed, such peril shall be deemed an “Uninsmed Peril.“ 11.3 ABATEMENT 0F RENT: In 11m event of damage lo the Flemises which does not result in the Iemfination of this Lease, the Base Monthly Rent and the Addiliona! Rent shali be temporarily abaled during me period ofnzstoration in proporiion Io the degrea to which Tenant‘s use of the Premises 1's impaired by such damage. Tenant shall. not be entitled to any compensation or damage from Landford forloss of’I‘enant‘s business or property caused by such damage Gr :estoration. Tenant hereby waives {he provisions 0f Cafifomia Civii Code Sections 1932(2) and 1933(4) and tho provisions ofany similar law hereinafier enacted. flIQJi-ii CONDEMNATION 12.1 LANDLORD'S TERMINATION RIGHT: Landlord shalt have the 11‘qu to temflnata this Lease if, as a rewlt of a condemnation, all er any pad ofthe Premises or Building 1's so taken. 12.2 TENANT'S TERMINATION RIGHT: Tenant shail have the right to terminate Ibis Lease if, as a result of any condemnation, ten percent {10%) or more of the Premisxs is taken and the remaining par: ofthe Premises tantra be resisted within a reasonable period oftimc and thereby made reasonably suitable for the continued operation oftha Tenant's business. 12.3 ABATEMENT 0F BENT: If any pm of the Premises is 1aken by condemnation and {his Lease is not lenninated, Base Monthly Rent shafl be reduced in the same proportion that the floor area ofthat pan of 1h»: Premises so taken (less any addiiion thereto by reason of any reconstruction) beam 10 the original floor area ofthe Premises. 12.4 DIVISION 0F CONDEMNATIDN AWARD: Any award made as a remit of any condemnation of the Premises“ or the Common Area shall belong 10 and be paid to Lendfmd, and 'l‘enanthercb)‘ assigns to Landlord alt ot‘ils right, tide and interest in any such award. RTICLE l3 DEFAULT AND REMEDIES 13.1 EVENTS OF TENAN’I'S DEFAULT: Tenant shall b3 in default ofits obligations under 1M5 Lease ifany oflha foiiom'ug events ccmrs (an ”Event ofTenant’s Defauii“): A Tenant shall have failed m pay Base Monthly Rent or Additional Rent when due, and Such [hilure 1's not cured within 3 days after delivery of written notice fium Landlord specifying such failure 10 pay; or B. Tenant shall have failed to perfonn any tam], covenant, or condition of this Lease olher than those requiring the paymenz of Base Monthly Rent or Additional Rent, am} Tenant shalt have failed i0 cure. such breach within thiaty {30) days after milieu notice from Landiord specifying the nature of such breach where such breach could reasonably be cured within said thirty (30} day periad, or if such breach could not reasonably be cured within said thin)! (3U) day pedod, Tenant shali have failed to commence such cure wilhin said thifly (30) day period and thereafier continue wilh due diligence to prosecute such cure to completion within such timc period as ismasonably needed; or C. Tenant shall have sublet the Premises or assigned its inlerast in the Lease in violation of the provisions contained in Aflfcle 14; or I), Tenant shafl have abandoned lhe Premises or Iefi the Premises substantialiy vacant; or B, (ij'ihe making by Tenant of any general arrangements or assignments for zhe benefit of creditom; {ii} Tenant becomes a "debtor" as defined in 11 USC $101 or any successor statue thereto (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days); {iii} the appointment of a tmstee or receiver lo take possession of substantiajiy all of Tenant‘s assess localed at the Premises or of Tenant's interest 1‘11 this Lease, where possession is not restored to Texan! within thirty {30) days; or (iv) {ha attachment, execution or other juds‘cial seizutc of subsmatlaliy all of Tenant's asses located at Ihe Premises or of Tenant‘s inteiest in this Lease, where such seizure is not discharged wizhm thirty [30) days; provided, however, in the event that any provision of this $13.1E is contrary to any applicable Law. such provision shall be ofnn fame or efl‘ecl; or F‘ Tenant shali have iaflad lo deliver documents required ot‘ it pursuant Io 515.4 or 115.6 within the time periods specified therein j3.2 LANDLORD’S REMEDIES: Ifan Event of Tenant's Defauit occurs, Landlord shall have the following tights and remedies in addifion Io all other rights and remedies provided by Law er otherwise provided in this Lease, ta which Landlord may resort cumulatively or in the akematim: "VIII- A. This Lease shafl not terminate unless Landlord gives Tenant \m‘iten notice of its election to terminate and no act by or on behalf of Landlord intended to mitigate the adverse effect of such breach shall constimte a lenuinafion of Tenani‘s right to posswsion unless Landlord gives Tenant wriiten notice of termination. Should Landiord not temfinate Ibis Lease try giving Tenant miller: notice, Landlcrd may enforce all ufits rights and remedies under this Lease or availabla at law or in eqxxity, including (i) the right to perfonn Tenant‘s ohfigaliuns and be reimbursed by Tenant for tho cost ibereoftogethcr with interesi at the Agreed Interest Rate from the date any sum is paid by Landlord umii Landiord is reimbursed by Tenant, and (ii) lite tcmedy desm‘bed in Caiff‘omia Civil Code Section 1951A (Landlord may cmtiuue Lease in effect afler Tenanl‘s breach and abandonment and recover rem as it becomes du e, if Tenant has tight to sublet or assign, subject only to reasonabie Iimiiatlons). B. Landlcmi may tenninaie this lease, in which event LandIOrd shall be entitled, at Landlord's election, to damages in an amount as set forth In California Civil Code Secu‘on 1951.2. For purposes of‘wmpuling damages pursuant to Califomia Civii Code Section 1951.2: (I) an interest rate equal 10 the Agreed Intetest Rate shali be used where permitted; and (ii) the Ierm “rent“ includes Base Monthly Rent and Additionat Rent. Such damages shall include; (i) the wonh at {ha lime of awald 0E the amount by which 1113 unpaid rent for the balance ofthe term afler lhe time ofaward exceeds {he amoum of such rental loss that Tenant proves couid be reasonably avoided, computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco a‘ the time or” award plus one percent (1%); and (ii) any other amount necessary to compensate Landlord for all dcm’ment proximately caused by Tenant‘s failure to perform Tenant‘s obligations under tlu’s Lease, or which En lhe ordinary course ofihings xs‘ouid be likely lo result sherefrnm. C. The rcmcdie-s set forth herein am not intended to he exclusive and shall be in addition to the rights and remedies granted to Landlord by Law or in equity. Nothing in this fi 13.2 shall limit Landlord's right to indemnification fwm Tenant as provided in 17.2 and 110.3- Any notica give by Landlord in mder {o satisfy the requirements offilfljA orfiIllB above shah also satisfy the notice requirements of California Coda quivii Procedure Section 1161 rcganiing unlawful ddainer proceedings. 13.3 WAIVER: Landlord‘s consent Io or apprm-al ofany act by Tenani requiiing Landlord‘s consent or approval shall not be deemed to waive or render mnecessary Landlord's consent to or approval of any subsequent similar ate by Tenant. Tho receipt by Landlord of any rent or payment with or wiihmu knowledge of the breach ofany provision hereufshal! not be deemed a waiver of‘or consent to En}; such breach uniess such waiver is in writing and signed by Landlord. No delay or omissiOn in the exercise cfany right or rem Edy accruing to Landlord upon any breach by Tenant shall impair such fight or remcdy o: be construed as a waiver of any such breach theretofore or thereafter «carting. The waiver by either party of any breach of any provision of this Lease shall not be deemed to be a waiver of any subsequent breach of the same or 0f any mher provisions herein contained. {3.4 WAIVER BY TENANT 0F CERTMN REMEDIES: Tenant waives tbs provisions of Sections 1932(1), 1941 and 1942 of the California Ciu'l Code and any similar or successor lass- regarding Tenant’s righi lo terminate this lease or m make repaits and deduct the expenses of such repairs fiom me rent due under lhis Lease. Tenant hereby waives any right ofredemplion or :elieffiom ferfefmre under the laws of the Stale ofCalit‘omia, or under any other present or future law, including lhe provisions ofSections 1174 and 1179 ofihe CaIifomia Code ofCivii Pmedure. .igTICLE 1-! ASSIGNMENT AND SUBLETTING 1-1.1 TRANSFER BY TENANT: The foliowing provisions shaH apply 10 any assignment, sublerllng or other Iransfer by Tenant or any subtenant or assignee m other succesgor En interest ofthe original Tenam (coilectively referrefi to in this $14.1 as “Tenant"; A. Tenant shall not do any ofihe following (coilectis‘ely referred to herein as a “Transfer“; whethef voiuntarily, invalunlaxfly or by operation of law, withnut the prior written consen! of Landlord, which consent shall not be unreasonably withheld or delayed: (i) sublet all or any part of the Premises or allow it to be sublet, occupied or used by any person or entity other 111311 Tenant or assign its interesi in {his Lease; (ii) mortgage or enenmhcr lhe Lease (or othem‘ise use lhc Lease as a security device) in any manner; or (iii) amend or modify an assignment, sublease or outer transfer that has been prefiously approvtd by Landiord. The dissolulimi, merger, or other reorganization oETenant or the sale, transfer, wilhdmwai, or substitution of twenty five percent {2 5%) or more of 11w mmsrship intereszs in 'I'enant shalt bra deemed a Transfer. Any attempted Tranyfer without Landlord‘s consent shaIl constitute an Event of Defaalt and shalt ha voidable at Landlmd's option. No Transfer, even with 11w consent of Landlord, shaii relieve Tenant of its personal and primary obligation to pay lhe rent and £0 perform alt of the other obligations to be pen’onned by Tenant hereunder. Tenant 51131] reimburse Landford for a1! masouablc costs and attomeys‘ fees in connection with the processing and!or documentation of a requested Transfer, whelher m not Landlord‘s consent is giwu. In the event Landiord consents to any proposed Tmfer, Tenant agrees 10 pay to Landlord, as Additional Rent, one hundzed percent {161336) of any and all rams er other consideration (iuciuding key money) received by Tenant fi'om the hansferee by reason of such Transfer in excess of (ha rent payable by Tenant to Landlord under this Lease (less any brokerage cmmissions, allomeys‘ fees and advertising expenses incurred by Tenant in conncction \viIh zhe Transfer). B. At least thirty [30) days before a proposed Transfer is to become effective. Teaant shall give Landlmfl mitten notice oflhe proposed terms of such Tiansfer and request Landlord's appromi, which notice shall include 111a name and legal composition of the proposed tmnsferec, a cunent financial statement and financial statements of the transferee covering tho prcccding thxee years if the same exist all 0f which statements prepared in accordance with generally accepted accounting principles, the nature ofthe proposed transferee‘s business to ha carded 0a in the Premises, and the form of Transfer agreement to be used. Tenant shall provide to Landlozd such Olher information as may be reasonably requested by Landlord, and Tenant shall immediately notify Landiord ofany :natefialmodificatfon to the propmed terms ofsuch Transfer. C. In ihe event lhat Tenant seeks to make any Transfer, Landlord shad! have the fight to Ianninale this Lease or, ia the case, ofa subiease ofless than ail of {he Premises, terminate this Lease as to sh at part ofthe Premises preposed lo be so sublet Upon such termination, Tenant shall be released from any Ibrther obligation unfier lhis Lease {fit is terminated in its enzirety, or shall be reieased fiom any funher obligation under [ha Lease m‘lh r¢5p¢ci to the space proposed to be sublet in lhe case: ofa proposed panial sublease, 1n the case ofa partial termination ofthe Lease, the Base Monthly Rent and Tenant‘s Share shall be reduced to an amouni which beans :ha same relalionship {o the origin} amount thereof as Ihe area of that pad ofihe Premises which Iematns subject to the Lease hears to the original area ofihe Premises. Landlord and Tenaat shall execute a canceilallon and release With respect to the Lease Io effect such lemlfnation. 14.2 TRANSFER BY LANDLORD: Landlord and its successms in interest shalt have. tho nigh! to imnsfer their intcrcsc in this Lease anti the iject at any time. in tbs went of any such tmnsfer, the Landlcerd en‘gimily named herein (and, in the case of any subsequent transfer, the transferor) shall automaticaliy be relieved, from the date of such Imnsl‘er and without any further act by any person or entity, of a1! liability for the pcrfonnance of the obiigatians ofthe Landlord hereunder which may accrue after the date nfsuch ttansfer. HIX... ARTICLE 15 GENERAL. PROVISIONS 15.! LANDLORD'S RZGHT TO ENTER: Lamiiord and its agents may enter the Ptemises e! any reasonable time afler giving at [east hveMy four (24) hours‘ prior noiice lo Tenant (and immediately in the cam of emergency} for any reasonable pmpose including, wilhom limitation, showing Ihe ?rcmises 10 pimpeczlvc purchasers, nwngagees or tenants and posting upon the Premises ordinary “for lease“ signs or ”for sale“ signs, Landlord shall have 11w right to use any and ali means Landlord may deem necessary and proper to enter the Premises in an emergency. Any entry into {he Premises obtained by Landlord in accordance with this $15.1 shall not be a fomible m- mfiawfill entry into, ora detainer uf‘, the Premises, or an actual or constmclive eviction of Tenant from the ?rernises. 15.2 SURRENDER 0F THE PREMISES: Upon Ihe expiration 0r sooner tennfnaiic-n of this Lease, Tenant shall vacaie and surrender the Premises :o Landlord in the same condition as existed a! the Commencement Date, broom clean, ordinary wear and tear excepted Tenant, at its sole cost and expense, agrees lo repair any damage Io the Premises caused by Tenani or caused by or in connection with the removal of any articles ofpcrsonal property, business 0r trade fixturcs, machinery, equipment, or fium‘mre, including without limitation thereto, repairing tho floor and patching and painting {he wail: where required by Landlord to Landlord's reasonable satisfaction. Tenant shall indemnify Landloni against any loss or liability remlting from deiay by Tenant in so sumendcring the Premises, including Without limitation, any claims made by any succeeding tenant founded on such delay, iflhe Premises are no! so surrendered at the ten’ninalion of this Lease, Tenant shali he liable {o Landlord for all costs incurred by Landlord in {eruming 111a Premises to the required condition, plus interest on all costs incurred at the Agreed Interest Rate. Tenant 511a}! indemnify Landlord against loss or liability resulting fmm delay by Tenant in so sunenden‘ng the Premises. 15.3 HOLDING OVER: This Lease shall iemfimle without fimher mlice at the expiration ofihe Lease Term. Any holding over by Tenant afler expiration of the Lease Term shall not conslitute a renewal 0r extension of the Lease or give Tenant any rights in or lo the Premises except as expressly provided in this Lease. Any holding over afier such expiration with {he mitten consent of Landloid shall be constzued £0 be a tenancy from month {a month on Ike same tenns 331d conditions herein specified insofar as applicable except that Bass Monthly Rent shall be increased Io an amount aqml to one hundred and fifty percent (150%) of the Base Monzhiy Rent payable during Lha East full caiendar monlh of 1h: Lease Term. 15.4 SUBORDINATION: This Lease is subject 3nd sn‘oordinaie tn all Security Instruments now or hereafler encumhering the Premises. However, if any Lender so requires, this Lease 5115311 become prior and superior [a any such Secun'ly Instrument. Tenant shall upon request execute any éccumeut or instrument reasonahiy :equired by any Lender to make this Leas: either superior or subozdinate lo a Secun'ty Instrument, which may include such ether matters as the Lender reasonably requires in connection with such agreements. Tenant‘s failure to cxccuta any such document or instrumenl wimin ten (1 0} days afler wrilten demand therefor shall constitute an Event ofTenant’s Default. 15.5 ATIORNMENT: Tenant shat! attom to any purchaser of the Premises at any foreclosure sale or private. sale conducted pmuant tn any Security Instmment encumbning 1116 Piemises, or i0 any gIantee or transferee designated in any deed given in lieu efforcclosm. 15.6 ESTOPPEL CERTIFICATES: M all times during the Lease Term, Tenam agrees to execute and deliver to Landlord “1min 10 days following delivery of Landlord’s request an esmppel certificate certififing such information abet“ the Lease and such finantiaI information of Tenant as may ht Imonably required by Landlord. 15.7 NOTICES: Any nufice required or desired to be given :regarding this Lease shall he in miting and may he. given by personai delivew, by facsimiie teiecopy, or by mail. A noiico snail be deemed lo have been given (i) on the third business day after mailing ifsuch mike was dcpofitcd in the United States mail, cefiified o: registered, postage prepaid, addressed 1c: thc party to he served at its Address for Notices, (ii) when detiveted if given by personal delivery, and (iii) in 31% other cases when adually received at the party's Afidress for Notices. Either pany may change its address by giving notice ofthe same in accordance with this 'El 5.7, providcfi, however, lha: any address to which notices may he sent 1111131 be a Califomia address. [5.8 ATIORNBYS' FEES: If either Landlord 0r Tenant shall bring any actinn or legal proceeding for an alleged breach of any proxision ofthis Lease, to recover rent, to terminate Ihis lease 0r otherm'se Io enforce, protect or establish any term or covenant of this Lease, the prevailing party shall be entitled to recover a3 a part of such action or proceeding, or in a separate action brought for that pmpose, reasonablfi altomefl fees, com costs, and cxpads‘ fees asmay be fixed by 1116 court. 15.9 CORPORATE AUTHORITY: If Tenant is a corporation or partnership, each individual executing this Lease on behaif of Tenant represents and \vaJrants that ha or she i5 duly authorized £0 execute and deliver this Leass on behalfOf SUCh COIPOmtiGIl 0r pannership and that {his Lease is binding upon such corporation orpannership in accordance with its teuns. 15.10 RHSCELLANEOUS: Time is of [ha essence 0f this Lease. This Lease shall, subject t0 the provisions regarding assignmem, apply to and bind the respective heirs, successors, executors, adminisirators and assigns of Landlmd and Tenant. Ichnant consists ofmorc than one person or entity, then all members chenant shah bajoinlly and severally liable hereunder. Th6 language in all parts ofthis Lease shall in all cases be construed as a whole according to its fair meaning, and not shictly for or against either Landfmd o: Tenant. Landlord and Tcaant agree that (i) the rentable area ofthe PIemises is measured from the eMedor faces ofexteriar wafls lo the centerline or interior partitions and includes any animus, depressed Imding docks, covered entrants or egTésscs, and covered loading areas, and (ii) all measureme nts of area contained in this Lease me conclusively agreed to be correct and bimiing upon the panics for all pumoses hereunder, even if a subsequent measuremeni of any one of these areas determines that it is more or less than the amount ofaiea reflected 111 this Lease. Any prevention, delay or sloppaga dua to inclement masher, inabiiity to obtain laborm materials, governmental restrictions, fire or other acts of God, and other causes beyond {he reasonable control ofthe party obligated to petform (except financial inability) shail amuse the perfonnance, for a period equal 10 the pefiod of an)! said prevention, delay 0r stoppagé, ofany obligation hereunder except the ohiigaiion ofTenant to pay rent or any other sums due hereunder. 5.11 ENTIRE AGREEMENT: This Lease constitutes the entire agreement between ihe parties, and mere ale no agreements or represemalions between the panics except as expressed herein. This Lease supersedes and canccis any and ail prefious negotiations, arrangements, brochures and undersland‘mgs, if any. between Landlord and Tenant. No modification i0 this Lease shall be effective unless in miting signed by Lhe panics. This Lease shall not be Iegaily binding anti! fully execuled by Landlonl and Tenant. IN WITNESS WHEREOF. Landlord and Tenant have executed tlfls Lease to be effective as oftha Effective Dale. LANDLORD: fix}- TENANI‘: Phgsical Culture Strength and Conditioning fFCSC) a Caiifomla Cor/ggcaliogjjfi 5°" Signed? .. ...... fi'g: Zn: 4.! ¢ A‘V‘I‘A‘il’ Title: #35 5/ Izfiyfir’ Dated: 1““‘/ L Qé/ L Landlmd: Initial: LEASE RIDER ADDITIONAL LEASE TERMS Surrender Condiliun. At the expiration or earlier termination ofthe Lease, Landlord shall have file upzion ofrequiring Tenant to return 1133 Ptcmisecs :o its original con figuration and impmvcmcnts, substaniially as lhc Premises existed prior lo Tenant‘s occupancy excepling normal wear and teaJ. Delivery of Premises at Commencement: if Landlord is unable to deliver possession of the Premises {o Tenant on or before the Scheduled Commencement Date for any reason whatsoever, this Lease shaH n0! be Void or voidabie and Landlord shall not be liable to Tenant fur any loss or damage remixing merefmm; provided thal, the Lease Term shalt not commence until Landlord defivers possession uflhe Premises lo Tenant. Early Occapanty. Landlord and tenant agree that the tenant aha]! occupy the premises on or after Febnmy 1, 2012 and all terms anti conditions ofiha Iea3¢ agreement ska}! be in full fotce and efi‘ecl, except for lhe payment ofrem. Tenant shall be Iesponslble fur the monthly CAM during the early occupancy pefiod and shall provida the landlord wilh proofofliability insurance per lease paragraph 9.1 prior Io early occupancy. Option (o Exleud. Tho Option to extend the lease term for two (2) years a! the current market rate shali remain in filll force an effect a3 long a3 file Tenant does not defaufl during the filst twelve (I2) months ofthe lease term. ms is a one limo Option and shali not be transferable without she written cement ofthe landlord. The Option shall be exetcised 120 days in writing prim to leasetermination date. T afl!‘ Initial: E [4 ZS. “XIIH Site Plan 161 0 DELL AVENUE Ci WQJl EXHIBIT A‘ \L; (3,5? CW}? F?!) ch- Cm ?}d 7?), JETS\ :‘J‘J’l :J“ -..\:‘M> (F; \ESLfLV I, 3f “\nqw BXfiIIllT l] Landlord's Improvements l. Tenant to accept the pscmises in its “as-is" condition. Landlord shall deiiver the Premises broom ciean with all existing genera! pu so beefing, venlllaling, ajr-Condilioumg and utility systems in working order. T nant: Initial: {b unv- ENI-flIJIT C Sign Criteria T311321: shall install a sign cantatm'ng Tenant's name on the monument sign at the enhance ofthe 1610- Dell Avenue drive. Tenant shall have the right to Install signage on the {agree of the building at Tenant's sole expense, subject to compliance with Landiurd‘s signage program and any applicable City of Campbell ordinances. “HIE: Tenant shall be responsible for the costs ofany signagé. The location, size, styic, color and content of at} signage a: me Premises shall 1m dacnnined by Landlord and shall be consistent with the existing signage at the Project. Tho designated sign company is Adversigns a! 408.871.0695. Te ant: initial: L ;_\ _xv‘_ EXHIBIT D Tenant Infurmation COBIPANY NABEE: PREMESES ADDRESS: MAILING ADDRESS: CONTACT: CELL PHONE NUMBER: ON-SITE PHONE NO: OTHERPHONEN0 (please specify): FAX NUMBER: BILLING MAILING ADDRESS: BILLING CONTACT: BILLINGPHONE NO: EMERGENCY CONTACT: EBEERGENCYPHONE N0: 1NSURANCE COAIPANY: 1NSURANCE AGENT: INSURANCE CO. PHONE NO: BANK BRANCH LOCATION: BANK PHONE N0: BANK ACCOUNT N0: FED ID NOISOCIAL SECURITY NO: HOME ADDRESS: "XVI- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT F GUARANTY OF LEASE THIS GUARANTY OF LEASE is made by, Sheila Leich Miller, an individual, Mitchel Lance Miller, an individual, Mame! Ellen King, an individual, and Patricia Kathleen Lynch, an individual (“Guarantor”) for the benefit 0f Harpe} Associates, a California General ?artnership, (“Landlord”). RECITALS Physical Culture Strength and Conditioning (PCSC), a Calif. Corporation (“Tenant”) has agreed to lease from Landlord approximately 6,036 square feet of space located at 1610 Dell Avenue, Unit S, Campbell, California, pursuant t0 the terms of a written lease dated January 25, 2012. B. Guarantor has received and read a copy 0f the Lease, and is familiar with all its terms and conditions. C. As a condition to its agreement t0 execute the Lease, Landlord has required that Guarantor execute this Guaranty 0f Lease, guaranteeing performance during the INITIAL TWELVE MONTH term 0f the Lease 0f a}! 0f the covenants 0n Tenant’s part to be perfonned pursuant t0 the Lease. Additionally, Guarantor, at its sole cost and expense, shall guaranty the Restoration of the Unit t0 its original configuration and floor plan. NOW THEREFORE, in order t0 induce Landlord to enter into the Lease and Amendments attached there to and for other good and valuable consideration, receipt 0f which is hereby acknowledged, Guarantor hereby agrees t0 unconditionaliy guarantee t0 Landlord, its successors and assigns, the full and faithful performance by Tenant 0f all 0f the provisions and covenants 0n the part 0f Tenant t0 be performed under the Lease within the time and in accordance with the terms 0f the Lease, including, without limitation, any damages for breach of Lease, attorneys fees incurred by Landiord, late charges, the obligation t0 pay all rent and additional rent or any arrears thereof, other charges required t0 be paid by Tenant under the terms 0f the Lease, and any and ali post-Lease term obiigations 0f Tenant, without any notice whatsoever from Landlord t0 Guarantor of Tenant's default of any such above obligation 0r obligations DURING THE INITIAL TWELVE MONTH TERM. This Guaranty 0f Lease shall continue unchanged by any bankruptcy, reorganization 0r insolvency of the Tenant, 0r any successor 0r assignee thereof, 01‘ by any disaffil‘mance (rejection) 01' abandonment by a trustee 0f Tenant 0r Tenant, and shall continue unchanged by any termination ofTenant's liability t0 Landlord from any cause. Landiord may, without notice, assign this Guaranty 0f Lease in whole or in part and n0 assignment 0r transfer 0f the Lease shall Operate t0 extinguish 0r diminish the liability 0f Guarantor hereunder. The iiability of Guarantor under this Guaranty of Lease shall be primary. Guarantor waives the right t0 require Landlord t0 (1) proceed first (0r jointly) against Tenant; (2) exhaust any security held by Landlord for Tenant‘s obligations; 0r (3) pursue any other remedy. Until all 0f Tenant‘s obligations to Landlord have been discharged in fuil, Guarantor shall have no right 0f subrogation against Tenant. Guarantor waives any right t0 participate in any security now 0r later held by Landlord for any oingation 0f Tenant. Guarantor shall pay reasonable attorney‘s fees and all costs and other expenses incurred in any collection, attempted collection, or negotiations relative t0 the obligations hereby guaranteed or in enforcing this Guaranty 0f Lease against the undersigned, individually 01' jointiy. The liability hereunder shall in 110 way be affected or diminished by reason 0f any modification or alteration 0f Lease, extension of time or alteration of premises, that may be granted by Landiord to Tenant. The obligations 0f Guarantor contained in this Guaranty 0f Lease shall be deemed to be joint and several.Wém \M‘QJM zx‘vLmL SheJageivghfivigiel an indiéfilual Date _, ”r /W_“fix f _ ‘93 “'7’ - 2f / L Mucih/f kance Miner, an nmaflal Date Q; W) *P Qr§f Z4" Dfii/Aa ,, mdividual Da e Dig M, .‘ OIL-Lfiyfffiyindmdual IN WITNESS WHEREOF Guarantor has executed this Guaranty of Lease 0n the dale below. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT G HARPEL ASSOCIATES FIRST AMENDMENT TO LEASE FIRST AMENDMENT DATED FEBRUARY 27, 2015 T0 THAT CERTAIN LEASE (THE “LEASE”) BY AND BETWEEN HARPEL ASSOCIATES, LANDLORD, AND PHYSICAL CULTURE STRENGTH AND CONDITIONING, A CALIFORNIA CORPORATION, FOR THE LEASED PREMISES AT 1610 DELL AVENUE, UNIT S, IN CAMPBELL, CALIFORNIA, DATED AUGUST 11, 2011. All capitalized terms used herein and not otherwise defined herein shall have the same meaning as set forth in the Lease. Landlord and Tenant do hereby agree to modify the terms and conditions of the Lease in the following manner: 1. TERM: The Lease Term shall be extended sixty (60) Months to March 31, 2020: 2. RENT: Base Monthly Rent shall be as follows Months 01-12 - $6,338.00 - (April 1, 2015 to March 31, 2016) Months 13-24 - $6,700.00 - (April 1, 2016 to March 31, 2017) Months 25-48 - $7,062.00 - (April 1, 2017 to March 31, 2018) Months 37-48 - CPI increase Min 3%-Max 7% (April 1,2018 to March 31, 2019) Months 49-60 - CPI increase Min 3°/o-Max 7% (April 1, 2019 to March 31, 2020) Unless you are notified to the contrary, the monthly Common Operating Expense (COE) estimate shall be $544.00 per month. This is in addition to the above stated monthly rent. 3. FORM OF SIGNATURES, COUNTERPARTS: Faxed or scanned signatures on this Amendment are acceptable, but the parties ultimately should exchange original signatures. Failure to exchange original signatures shall not invalidate this Amendment. This Amendment may be signed in counterparts, each of which is an original, but all of which taken together shall constitute one (1) executed original. 4. BASE MONTLY RENT INCREASES: The Base Monthly Rent shall be payable during the first three Lease Years as set forth in section 2 of this First Amendment to Lease. Upon the commencement of the Months 37-48, and Months 49-60, the then current Base Monthly rent shall increase by the greater of (i) three percent (3%) or (ii) ninety-five percent (95%) 0f the percentage increase in the CPI (as hereinafter defined) between the CPI published for the applicable Earlier Month (as hereinafter defined) and the applicable Later Month (as hereinafter defined), calculated by dividing the difference between the CPI for said Later Month and the CPI for said Earlier Month by the CPI for said Earlier Month and converting the quotient (rounded to the nearest 1/1000) to a percent. The maximum annual increase shall be seven percent (7%). As used herein, “CPI” shall mean the consumer price index now known as “United States Department of Labor, Bureau of Labor Statistics, Consumer .n Price Index, U.S. City Average for all Urban Consumers, Seasonally Adjusted, A|| items, (1982-84=100).” As used herein, “Later Month” shall mean the calendar month 2 months prior to the anniversary of the Commencement Date on which the increase shall occur. As used herein, “Earlier Month” shall mean the same month as the Later Month of the calendar year that is one year prior to the year of the applicable Later Month. By way of example only, if the Commencement Date is June 1 , 201 1, then the seventh Lease Year will commence on June 1 , 2017, the Later Month for the purpose of calculating the Base Monthiy Rent during the seventh Lease Year will be April of 201 7 and the Earlier Month win be April of 2016 and if the CPI published for the Earlier Month is 156 and the CPI published for the Later Month is 168, then the CPI increase would be 7.3 percent (7.3%) (168 - 156 = 12; 12 + 156 =.0769231; rounded to .077; .077 x .95 = 0.07315; rounded to .073, which is the equivalent of 7.3%, which is greater than 3%). If at any time while this Lease is in effect, the CPI shall be discontinued, the Landlord shall have the right to substitute any nationally recognized comparable index calculating changes in consumer prices for CPI hereunder in written notice to Tenant; provided that, if the CPI shall be discontinued and if Landlord has not designated a comparable index in writing to Tenant hereunder, then said increase shall be 3 percent (3%). 4.5 RULES AND REGULATIONS: Landlord may promulgate reasonable rules and regulations applicable to the occupants of the Project. Such rules and regulations shall be binding upon Tenant upon delivery of a copy to Tenant, and Tenant agrees to abide by such rules and regulations. Tenant shall comply with the following rule and regulation. Landlord shall not be responsible to Tenant for the nonperformance of this rule and regulation by any other tenant or Building occupant: 1. Animals: Tenant shall not bring into, or keep within, the Premises, Building or Project any animal. 6. OTHER TERMS: Except as expressly modified herein, all remaining terms and conditions of the Lease shall remain the same. AGREED AND APPROVED AGREED AND APPROVED HARPEL ASSOCIATES, Physical Culture Strength and Conditioning, . A Califor L/By: Name: dang; M //;V /Tit|e: General Partner Title: ///,_/ ffl/mfik DATE: bg/e/fi/ DATE: 8’/0 ‘//, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT H DocuSign Envelope ID: 9ECBBEF6-41 51 4290-AD35-44391 8641 8E6 HARPEL ASSOCIATES, LLC SECOND AMENDMENT TO LEASE SECOND AMENDMENT DATED MAY 12, 2020 TO THAT CERTAIN LEASE (THE “LEASE") BY AND BETWEEN HARPEL ASSOCIATES LLC, LANDLORD, AND PHYSICAL CULTURE STRENGTH AND CONDITIONING. A CALIFORNIA CORPORATION TENANT, FOR THE LEASED PREMISES AT 1610 DELL UNIT S CAMPBELL, CALIFORNIA, DATED AUGUST 11, 2011 AND AMENDED FEBRUARY 27, 2015. All capitalized terms used herein and not otherwise defined herein shall have the same meaning as set forth in the Lease. Landlord and Tenant do hereby agree to modify the terms and conditions of the Lease in the following manner: 1. TERM: The Lease Term shall be month-to-month 2. RENT: Base Monthly Rent April 1, 2020 - month-to-month $7,493.00 The Estimated Monthly CAM shall be $1,295.00 per month (in addition to the above stated rent) and shall be subject to adjustment upon Landlord's periodic reconciliation per the lease. 3. FORM OF SIGNATURES, COUNTERPARTS: Landlord and Tenant agree that electronic signatures, including those delivered by PDF or signed through the electronic signature system known as “DocuSign”, and/or signatures transmitted by telecopy shall be vaIid and effective to bind the party so signing and shall have the same effect as originals. All parties to this Lease waive any and all rights to object to the enforceability of this Lease based on the form or delivery of signature. Each party agrees to promptly deliver an execution original of this Lease with i8 actual signature to the other party, but a failure to do so shall not affect the enforceability of this Lease; it being expressly agreed that each party to this Lease shall be bound by its own electronically created and/or teleoopied signature and shall accept the electronically created and/or telecopied or electronically transmitted signature of the other party to this Lease. Failure to exchange original signatures shall not invalidate this Amendment. This Amendment may be signed in counterparts, each of which is an original, but all of which taken together shall constitute one (1) executed original. 4. RULES AND REGULATIONS: Landlord may promulgate reasonable rules and regulations applicable to the occupants of the Project. Such rules and regulations shall be binding upon Tenant upon delivery of a copy to Tenant, and Tenant agrees to abide by such rules and regulations. Tenant shall comply with the following rules and regulations. Landlord shall not be responsible to Tenant for the nonperformance of these rules and regulations by any other tenant or Building occupant: 1. Animals: Tenant shall not bring into, or keep within, the Premises, Building or Project any animal. 2. Vehicle Parking: Tenant shall not bring into, park or store any motorized vehicle inside the Premises. 5. CASp INSPECTIONS: Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Lease, the Premises has not undergone inspection by a “Certified Access Specialist” (“CASp”) to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53. Landlord hereby discloses pursuant to California Civil Code Section 1938 as follows: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises Pclio & Associates, Inc. 14573 Big Basin Way, Saratoga, CA 95070 408.872.9500 Fax 408.872.9505 {/vx/ l“ DbcuSign Envelope ID: 9ECBBEF6-4151-4290-AD35-443918641 8E6 DAV comply with all of the applicable oonstructlon-related accessibility standards under state law. Although state law does not require a CASp Inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises." Landlord and Tenant hereby acknowledge and agree that in the event that Tenant elects to perform a CASp inspection of the Premises hereunder, such CASp inspection shal| be performed at Tenant’s sole cost and expense and Tenant shall be so|e|y responsible for the cost of any repairs, upgrades, alterations and/or modifications to the Premises or the Building necessary to correct any such violations of construction-related accessibility standards identified by such CASp inspection as required by applicable law, which repairs, upgrades, alterations and/or modifications may, at Landlord's option, be petformed by Landlord at Tenant’s expense, payable as Additional Rent within ten (10) days following Landlord’s demand. OUTSIDE STORAGE: Tenant shall not store, nor permit any of its agents, employees, affiliates, contractors, consultants, vendors, licensees, invitees or other representatives to store, any goods, material, equipment or other personaI property, including, without limimtion, inventory and/or vehicles, vans or trucks, of any kind outside the Premises. In the event of any breach by Tenant of the terms of the immediately preceding sentence, in addition to all other rights and remedies available to Landlord under this Lease or at law or in equity, Tenant shall pay to Landlord a $250.00 per day fee for each day that such breach continues. Tenant acknowledges that any breach by Tenant of the provisions of this Paragraph 6 will cause Landlord to incur costs and damages not contemplated by this Lease, the exact amount of such costs and damages being extremely difficult and impractical to determine. Such costs and damages include, without limitation, impairing the use of the Common Area by Landlord and other tenants and/or occupants of the Project, the diminution in the value of the Project due to the inability to keep the Common Area in a clean and safe condition. The parties hereto agree that the $250.00 per day fee represents a fair and reasonable estimate of the costs and damages that Landlord will incur or suffer by reason of such Tenant's breach of its obligation set forth in the first sentence of this Paragraph 6. Acceptance of such $250 per day fee shau not constitute a waiver of Tenant’s obligation set forth in the first sentence of this Paragraph 6 or prevent Landlord from exercising any of the other rights and remedies available to Landlord by reason of Tenant's breach of its obligation under the first sentence of this Paragraph 6. If Landlord provides Tenant with written notice of Tenant's breach of its obligation under the first sentence of the immediately preceding paragraph on two (2) separate occasions during any twelve (12) month period, then Tenant’s subsequent breach of such obligation under the first sentence of the immediately preceding sentence shall, at Landlord’s option, be an uncurable Event of Tenant's Default under the Lease and, in such event, Landlord shall be entitled to pursue any or all of its rights and remedies under the Lease or at law or in equity. Anything herein to the contrary notwithstanding, if Tenant breaches its obligation set forth 'm the first sentence of the first paragraph of this Paragraph 6 and Tenant does not remedy such breach within 24 hours of receipt of notice from Landlord (which notice may be given by facsimile or pdf. email transmission or by any other means referred to in Paragraph 15.7 of the Lease), Landlord shall have the right to remove such items that Tenant or any of its agents, employees, affiliates, contractors, consultants, vendors, licensees, invitees or other representatives are storing outside of the Premises and, to the extent permitted by |aw, dispose of the same or store such items off site at Tenant’s cost. If Landlord exercises its rights under this paragraph, Tenant shall, within ten (10) business days following receipt of a written invoice from Landlord, reimburse Landlord for all of the costs incurred by Landlord in connection with the exercise of rights under this paragraph. Pelio & Associates, Inc. 14573 Big Basin Way, Saratoga, CA 95070 408.872.9500 Fax 408.872.9505 F“ i \. [age , .‘,.:v.x~ uSign Envelope ID: 9ECBBEF6-41 51 -429C-AD35-44391 8641 8E6 7. TERMINATION NOTICE: During month-to-month tenancy, either party hereto shall have a right to terminate the Lease, as amended hereby, by giving thirty (30) days prior written notice to the other party. 8. OTHER TERMS: Except as expressly modified herein, all remaining terms and conditions of the Lease shall remain the same. AGREED AND APPROVED AGREED AND APPROVED HARPEL ASSOCIATES, LLC, a California limlted PHYSICAL CULTURE STRENGTH AND CONDITIONING. A Liability Company CALIFORNIA CORPORATION By: PELIO ASSET MANAGEMENT COMPANY, LLC a California limited liability company, i3 Manager, av: ch‘gigbfi; by: W. Luliewwnmzm 2 20 .. DATE: 6/8/ 0 DATE: $ 7” M14 Pelio & Associates, Inc. 14573 Big Basin Way, Saratoga, CA 95070 408.872.9500 Fax 408.872.9505 bx