LEASE AGREEMENT BY AND BETWEEN SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware limited liability company AS LANDLORD and THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK, a New York education corporation, on behalf of SUNY POLYTECHNIC INSTITUTE AS TENANT DATED May 26, 2017 la- 1 342 702 TABLE OF CONTENTS Page ARTICLE I Grant; Use of Premises ........................................................................................... 1 Section 1.01 Section 1.02 Section 1.03 Section 1.04 Section 1.05 Section 1.06 Section 1.07 Grant of Lease ........................................................................................... 1 Permitted Uses ........................................................................................... 1 Restrictions on Uses .................................................................................. 2 Recorded Matters...................................................................................... 2 Building Common Areas. ......................................................................... 3 Indemnification ......................................................................................... 4 Equity Owners........................................................................................... 4 ARTICLE II Term of Lease; Commencement of Term; Delivery of Premises ...................... 4 Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Section 2.06 Section 2.07 Section 2.08 Term ........................................................................................................... 4 Landlord’s Work ...................................................................................... 8 Intentionally Omitted ............................................................................... 9 Commencement Date; Tender of Premises ............................................ 9 Early Entry .............................................................................................. 10 Building and Premises Condition .......................................................... 10 Determination of Rentable Area............................................................ 10 Failure to Deliver Premises .................................................................... 10 ARTICLE III Rent ..................................................................................................................... 11 Section 3.01 Section 3.02 Section 3.03 Section 3.04 Section 3.05 Section 3.06 Base Rent ................................................................................................. 11 Additional Rent. ...................................................................................... 12 Rent Obligations...................................................................................... 21 Place of Payment of Rent ....................................................................... 21 Late Charge ............................................................................................. 21 Security Deposit ...................................................................................... 22 ARTICLE IV Acceptance and Surrender of Premises ........................................................... 23 Section 4.01 Section 4.02 Acceptance ............................................................................................... 23 Surrender ................................................................................................. 23 ARTICLE V Alterations and Repairs....................................................................................... 23 Section 5.01 Section 5.02 Section 5.03 Section 5.04 Section 5.05 Section 5.06 Alterations by Tenant. ............................................................................ 23 Protection of Landlord. .......................................................................... 25 Repairs and Maintenance of the Premises............................................ 26 Standards Relating to Tenant’s Maintenance and Repair Work ....... 26 Indemnification ....................................................................................... 27 Alterations and Improvements Required to Comply with Applicable Laws, Codes and Ordinances ................................................................. 27 ARTICLE VI Utilities and Other Services; Property Management ...................................... 28 Section 6.01 Section 6.02 la-1342702 Normal Use of Building Services. .......................................................... 28 Intentionally Omitted. ............................................................................ 29 i Section 6.03 Section 6.04 Interruption of Building Services .......................................................... 29 Designation of Property Manager ......................................................... 29 ARTICLE VII Taxes on Tenant Personal Property and Leasehold Improvements ............ 30 ARTICLE VIII Insurance and Indemnification ...................................................................... 31 Section 8.01 Section 8.02 Section 8.03 Section 8.04 Section 8.05 Tenant’s Insurance ................................................................................. 31 Landlord’s Insurance ............................................................................. 33 Mutual Waiver of Subrogation. ............................................................. 34 Release of Landlord; Indemnification by Tenant ................................ 34 Indemnification by Landlord ................................................................. 35 ARTICLE IX Special Covenants of Tenant ............................................................................. 36 Section 9.01 Section 9.02 Section 9.03 Section 9.04 Section 9.05 Section 9.06 Section 9.07 Section 9.08 Section 9.09 Section 9.10 Compliance with Laws ........................................................................... 36 Liens ......................................................................................................... 36 Assignment and Subletting..................................................................... 37 Subordination to Mortgages and Ground Leases ................................ 38 Entry by Landlord .................................................................................. 39 Environmental Provisions. ..................................................................... 40 Signs ......................................................................................................... 43 Parking.. ................................................................................................... 44 Special Equipment .................................................................................. 45 Financial Statements ............................................................................... 45 ARTICLE X Default and Remedies. ......................................................................................... 45 Section 10.01 Section 10.02 Section 10.03 Section 10.04 Section 10.05 Events of Default ..................................................................................... 45 Tenant Bankruptcy Proceedings ........................................................... 46 Remedies .................................................................................................. 47 Waivers; No Release. .............................................................................. 49 Remedies Cumulative ............................................................................. 50 ARTICLE XI Abandonment ..................................................................................................... 50 ARTICLE XII Damage and Destruction; Eminent Domain .................................................. 51 Section 12.01 Section 12.02 Occurrence of Damage or Loss. ............................................................. 51 Eminent Domain. .................................................................................... 53 ARTICLE XIII Sale or Conveyance by Landlord ................................................................... 55 ARTICLE XIV Holding Over ................................................................................................... 55 ARTICLE XV Estoppel Certificates ......................................................................................... 56 ARTICLE XVI Right of Landlord to Perform ........................................................................ 57 ARTICLE XVII Safety and Security Systems and Programs ................................................ 57 Section 17.01 Section 17.02 la-1342702 No Landlord Responsibility ................................................................... 57 Landlord Safety and Security Requirements ....................................... 58 ii ARTICLE XVIII Attorneys’ Fees ............................................................................................. 58 ARTICLE XIX Default by Landlord; Limitation of Liability ............................................... 58 Section 19.01 Section 19.02 Landlord Default..................................................................................... 58 Limitation of Landlord’s Liability ........................................................ 59 ARTICLE XX RIGHT OF FIRST OFFER; TERMINATION RIGHT ............................... 59 Section 20.01 Section 20.02 Section 20.03 Section 20.04 Intentionally Omitted ............................................................................. 59 Right of First Offer to Purchase Building ............................................ 59 Tenant’s Termination Option ................................................................ 60 Landlord’s Termination Option ............................................................ 60 ARTICLE XXI General Provisions .......................................................................................... 61 Section 21.01 Section 21.02 Section 21.03 Section 21.04 Section 21.05 Section 21.06 Section 21.07 Section 21.08 Section 21.09 Section 21.10 Section 21.11 Section 21.12 Section 21.13 Section 21.14 Section 21.15 Section 21.16 Section 21.17 Section 21.18 Section 21.19 la-1342702 Waivers .................................................................................................... 61 Notices. ..................................................................................................... 61 Examination of Lease ............................................................................. 62 Authority to Execute ............................................................................... 62 Consent..................................................................................................... 62 Brokers ..................................................................................................... 63 Use of Building Name; Change in Address of Building....................... 63 Choice of Law; Venue............................................................................. 63 Severability .............................................................................................. 63 Successors and Assigns ........................................................................... 63 Interpretation .......................................................................................... 63 Joint and Several Liability ..................................................................... 64 Time For Performance.. ......................................................................... 64 Recording ................................................................................................. 64 Incorporation of Prior Agreements; Amendments .............................. 64 Rules and Regulations ............................................................................ 64 Survival of Obligations ........................................................................... 65 Quiet Enjoyment ..................................................................................... 65 Confidentiality ......................................................................................... 65 iii SCHEDULES AND EXHIBITS Schedule 1 – Tenant Liability Insurance Requirements Schedule 2 – Tenant Property Damage and Income Replacement Insurance Requirements Schedule 3 – Tenant Contractor Insurance Requirements Exhibit A – Description of Land Exhibit B – Outline and Designation of Premises Exhibit C – Work Letter Exhibit D – Rules and Regulations Exhibit E – Depiction of Parking Lot Exhibit F – Memorandum of Lease Exhibit G – Janitorial Services Schedule Exhibit H – Permitted Hazardous Materials Exhibit I – Form of Licensee Acknowledgment la-1342702 iv BASIC LEASE TERMS The Basic Lease Terms set forth below constitute a part of this Lease (“Basic Lease Terms”). Each reference in this Lease to the Basic Lease Terms shall mean and refer to the following terms, the application of which shall be governed by the provisions in this Lease. Capitalized terms contained in the Basic Lease Terms that are not otherwise defined in this Lease shall have the meanings set forth in the Basic Lease Terms. Lease Date: May 26, 2017 Landlord: Semiconductor Components Industries, LLC, a Delaware limited liability company Landlord’s Address for Notices: Semiconductor Components Industries, LLC 1964 Lake Avenue Rochester, New York 14615 Attn: Joe Shufelt Telephone: (585) 784-5662 Email: joe.shufelt@onsemi.com With a copy to: Semiconductor Components Industries, LLC 1964 Lake Avenue Rochester, New York 14615 Attn: Legal Department Telephone: (602) 244-6600 Email: bobbi.kiese@onsemi.com Tenant: la-1342702 The Research Foundation for The State University of New York, a New York education corporation, on behalf of SUNY Polytechnic Institute i Tenant’s Address For Notices: Prior to Term Commencement Date: The Research Foundation for The State University of New York o/b/o SUNY Polytechnic Institute Attn: Operations Manager 257 Fuller Road Albany, New York 12203 Telephone: (518) 437-8686 Email:pkelly2@sunypoly.edu With a like copy to: The Research Foundation for The State University of New York o/b/o SUNY Polytechnic Institute Attn: General Counsel’s Office P.O. Box 9 Albany, New York 12201-009 Telephone: (518) 434-7045 Facsimile: (518) 935-6707 Email: RFLegal@rfsuny.org After Term Commencement Date: Same parties and addresses listed above, plus: Integrated Photonics Institute for Manufacturing Innovation The Premises Attn: Ed White, Corporate Outreach Executive Telephone: Tenant to provide to Landlord following Scheduled Commencement Date Email: EWhite@sunypoly.edu Land: The parcel or parcels of land located in Monroe County, New York set forth in Exhibit A (the “Land”). Building: That certain 7- story building situated on the Land (the “Building”) which is intended to be leased and occupied by Tenant and various other third party tenants or occupants, and located in the business park known as Eastman Business Park. Building Common Areas: Any and all parking areas, landscaped areas, walkways, sidewalks, driveways, entrances and exits, and other improvements and facilities on the Land that provide access to, from, or within the Building, or that are otherwise associated with the Building, and are designated by Landlord from time to time for the primary or exclusive common use and convenience of the tenants, occupants and visitors of the Building, including, without limitation, the bridge across Lake Avenue to the cafeteria area and the Auditorium (as defined in Section 1.01 below) (collectively, the “Building Common Areas”). Address of Building: 1964 Lake Avenue, Rochester, New York Rentable Area of the Building: 263,000 square feet of Rentable Area, calculated in the manner provided in Section 2.07 of this Lease (the “Rentable Area of the Building”). Description of Tenant’s Premises: Tenant’s leased portion of the Building consists of 30,450 square feet of Rentable Area in the aggregate on the fourth and fifth floors of the Building (subject to the exclusions set forth in Section 1.01 hereof) as outlined in black and depicted as the “Tenant Perimeter” on Exhibit B attached to this Lease but excluding the areas thatched in green and noted as “Shared Space” on Exhibit B, which are Building Common Areas (the “Premises”), and calculated in the manner provided in Section 2.07 of this Lease (the “Rentable Area of the Premises”). Landlord and Tenant agree that, upon the Scheduled Term Commencement Date, this Lease shall be amended to replace Exhibit B with an updated drawing showing the Premises as actually constructed pursuant to the Work Letter. Tenant’s Proportionate Share: As of the date of this Lease, a percentage amount equal to 11.58% (calculated by dividing the Rentable Area of the Premises by the Rentable Area of the Building), subject to adjustment as provided in this Lease (“Tenant’s Proportionate Share”). Initial Term of Lease: A period of sixty (60) full calendar months, plus any partial month at the commencement of the Term (as defined below), commencing on the Scheduled Term Commencement Date (as defined below). Scheduled Term Commencement Date: August 1, 2017, as the same may be extended (i) on a day-forday basis for any “Landlord Delays” (as defined in the Work Letter) and (ii) on a day-for-day basis for any “Tenant Delays” (as defined in the Work Letter) provided that the Scheduled Term Commencement Date shall not be extended for more than ninety (90) days because of Tenant Delays (as the same may be extended, the “Scheduled Term Commencement Date”). Initial Term Expiration Date: The date that is the last day of the sixtieth (60th) full calendar month following the Scheduled Term Commencement Date (the “Initial Term Expiration Date”). Initial Monthly Base Rent: Subject to the incorporation of each Substantially Complete TI Construction Space on a rolling basis in accordance with the Base Rent payment schedule set forth in Section 3.01(a) hereof, the following: Function Lab Cleanroom Office Subtotal Proposed Sq. Ft. Annual Rate Per Sq. Ft. Initial Monthly Base Rent 12,400 × = 7,840 × = 10,210 × = 30,450 = $69,463 Rent Escalations: Commencing on the first anniversary of the Scheduled Term Commencement Date, as further defined in, and governed by, Section 3.01(b) of this Lease. Base Year: Calendar Year 2016 (the “Base Year”) Security Deposit: Permitted Uses of Premises: Test, assembly and packaging center for photonics devices, general office use, and uses directly incidental to the foregoing. Parking Spaces Allocated to Premises: An aggregate number of 60 nonexclusive and undesignated parking spaces located in the parking area to the South entrance of the Premises as depicted in Exhibit E. LEASE AGREEMENT THIS LEASE AGREEMENT (this “Lease”) is entered into on and as of May 26, 2017 (the “Lease Date”), by and between SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware limited liability company (“Landlord”), and THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK, a New York education corporation, on behalf of SUNY POLYTECHNIC INSTITUTE (“Tenant”). ARTICLE I GRANT; USE OF PREMISES Section 1.01 Grant of Lease. Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from Landlord, on and subject to the terms and conditions set forth in this Lease, and Tenant covenants as a material part of the consideration for this Lease to perform and observe each and all of such terms, covenants and conditions. Tenant shall have the right to use, as an appurtenance to Tenant’s use and occupancy of the Premises, (i) the Building Common Areas, provided that such right shall be exercised on a nonexclusive basis, shall be subject to the terms and conditions set forth in this Lease, and shall not be exercised by Tenant except in connection with Tenant’s use and occupancy of the Premises, (ii) the Building Systems in accordance with the terms hereof, and (iii) the auditorium on the first floor of the Building (the “Auditorium”) on an as-available basis, provided that Tenant shall provide at least 48 hours prior written notice to Landlord and Landlord shall have confirmed the Auditorium is available for Tenant’s use. For the avoidance of doubt, the Premises expressly excludes any and all (a) Building Common Areas, (b) the Building Structure, (c) the Building Systems other than such Building Systems located within the Premises which were installed or constructed by or on account of Tenant pursuant to the Work Letter, (d) all exterior windows, window frames, plate glass and related glazing, (e) Building security systems and supporting conduits, cables and wires wherever located in the Building (but excluding therefrom any security system installed by or at the direction of Tenant, which shall be part of the Premises), and (f) the escalators, elevators, pipes, ducts, causeways, conduits, cables, wires and appurtenant fixtures and other facilities serving, or situated in, any portion of the Building other than such escalators, elevators, pipes, ducts, causeways, conduits, cables, wires and appurtenant fixtures and other facilities which are located solely within the Premises and were installed or constructed by or on account of Tenant pursuant to the Work Letter. For these purposes, the term “Building Structure” shall mean any and all load bearing walls, elevators and related equipment and machinery, roofs, exterior walls, support beams, foundations, exterior doors, concrete floor slabs, support columns of the Building and all other structures, materials or systems which serve to reinforce, support or insulate the Building or protect the Building from the elements wherever located in the Building, including without limitation the Premises. Notwithstanding any other provision of this Lease to the contrary, Landlord shall ensure that the Common Areas include, at all times during the term hereof, such walkways, hallways, access doors and other areas as are necessary to ensure that Tenant has ingress and egress to the Premises. Section 1.02 Permitted Uses. Tenant shall use the Premises solely for testing, assembling and packaging of photonics devices, general office use and uses directly incidental thereto and for no other purpose or purposes whatsoever (the “Permitted Uses”). In addition, la-1342702 1 Tenant’s use of the Premises, and any Building Common Areas which Tenant is permitted to use on a nonexclusive basis as provided in this Lease, shall at all times be in strict compliance with all applicable Federal, State and local laws, regulations, rules and ordinances, including any and all land use, zoning, building, disability, and health and safety laws and codes which apply to the Premises or to the use and occupancy thereof or to the Building Common Areas. No change in or expansion of Tenant’s business operations or activities on the Premises that would alter, or be inconsistent with, the nature or character of the Permitted Uses shall constitute a permitted use of the Premises unless Tenant first obtains Landlord’s prior written consent. Section 1.03 Restrictions on Uses. Except as otherwise expressly set forth herein, Tenant shall not do or permit any Tenant Party to do in, on or about the Premises, or bring or keep or permit any Tenant Party to bring or keep in, on or about the Premises, (a) anything that is prohibited by, or that could, under the applicable insurance policies required or permitted to be carried by Landlord under the provisions of Section 8.03, increase the existing rate of, cause a cancellation of, or otherwise adversely affect, any property damage, liability or other insurance carried by Landlord covering the Premises or any part thereof, or any contents within the Premises, or any activities on the Premises (each, an “Insurance Increase”), provided that Landlord represents that the Tenant’s use of the Premises (i) as a photonics device testing, assembling and packaging operation, which use includes without limitation bonding/debonding, lithography, plating, solder reflow, dicing, flip chip, underfill, wire bonding, fiber attach, surface mount, testing and metrology activities associated with these processes, (ii) for general office uses, and (iii) for any other activities expressly approved by Landlord in accordance with the terms of this Lease, will not, in each instance set forth in romanettes (i) through (iii), result in any such Insurance Increase; or (b) anything that could obstruct or materially interfere with the rights of, or injure, other tenants, occupants or visitors of the Building, provided that Landlord represents that the Permitted Use will not result in such obstruction or interference of any existing tenant as of the Lease Date and agrees to not enter into any leasing arrangement with a third-party which will result in the Permitted Use causing such obstruction or interference. Tenant shall not cause, maintain or permit any Tenant Party to cause any nuisance in, on or about the Premises. Tenant shall not (1) place, or permit any Tenant Party to place, any load upon or affecting any of the floors, walls, or ceilings of the Premises which could weaken or otherwise endanger the condition or support characteristics of such floors, walls or ceilings or any structural element of the Building, or (2) overload, or permit any Tenant Party to overload, any existing electrical, gas, plumbing, mechanical, water, wastewater, or other building or utility systems of or serving the Building, provided however that Landlord represents that such systems are adequate for the Permitted Use as contemplated on the date hereof. All waste materials and refuse on or from the Premises shall be deposited only in trash containers placed inside exterior enclosures in areas designated by Landlord for such purpose. No materials, supplies, equipment, finished products or semi-finished products, raw materials, or articles of any nature that are permitted by this Lease to be generated or kept on the Premises shall be stored or otherwise permitted to remain outside the Premises, and any storage areas or facilities located on or within the Premises for any such items shall be kept in a neat and orderly condition fully screened from view from outside the Premises. Tenant shall not commit or permit any Tenant Party to commit any waste in, on or about the Premises. Section 1.04 Recorded Matters. Tenant shall comply with any recorded covenants, conditions, restrictions or other similar agreements affecting or encumbering the Building or the la-1342702 2 Land as of the Lease Date but only to the extent copies of such recorded documents have been provided by Landlord to Tenant prior to the Lease Date, and any such item affecting or encumbering the Building or the Land after the Lease Date but only to the extent such item is required by Applicable Law or the Eastman Business Park association (collectively, “Recorded Matters”). Landlord shall provide a copy of all Recorded Matters to Tenant, and Tenant shall be obligated to comply with such Recorded Matters unless compliance would deprive Tenant of, or require Tenant to expend a material monetary amount to receive the benefits of, a specific right or benefit expressly set forth in this Lease. Section 1.05 Building Common Areas. (a) Nonexclusive Right to Use Common Areas. Tenant and Tenant’s Parties (as defined in Section 1.07), shall have the right during the Term to use the Building Common Areas in common with any and all other persons from time to time approved or permitted by Landlord, subject to compliance with Landlord’s Rules and Regulations (as defined in Section 21.16), and subject to all applicable provisions of this Lease, including all security and safety requirements imposed from time to time by Landlord at or for the Building. (b) Management of Common Areas; Alterations and Changes by Landlord. Landlord agrees to operate, manage and maintain the Building Common Areas and the Auditorium in such manner as Landlord determines from time to time, in Landlord’s good faith reasonable judgment, will be in the best interests of preserving and maintaining the condition, reputation and value of the Building in the same condition as similar Buildings located in the City of Rochester, New York, but in all instances the Building Common Areas shall be maintained in at least a good and working order. Notwithstanding the foregoing, Landlord reserves the right, at any time and from time to time, without the consent of, and without incurring liability of any kind whatsoever to, Tenant, (i) to make alterations or additions to the Building, any Building Systems (as defined in Section 6.01(b) of this Lease) or other Building services or facilities, any Building Common Areas, or any portion thereof, other than the Premises; (ii) to change, add to, eliminate or reduce the extent, size, height, bulk, location, view, treatment, shape, appearance, composition, number or configuration of any aspect of the Building, other than the Premises, or the Building Common Areas, including any entrances or passageways, doors and doorways, corridors, stairs, building equipment, parking areas or equipment, landscaping, fencing, or other features or amenities of or associated with the Building and the Building Common Areas, Building Systems or other Building services or facilities; (iii) to close to the general public, at any time and from time to time, all or any portion of the Building or the Building Common Areas, to the extent and for such period as may be necessary in Landlord’s reasonable judgment to avoid dedication to the public, to make any repairs and replacements, or to undertake any further construction on or within the Building or the Building Common Areas, as well as under any other circumstances rendering any such action advisable in Landlord’s reasonable judgment; (iv) to convert any Building Common Areas to rental space or restricted use areas, or convert any rental space (other than the Premises) to common areas or restricted use areas; (v) to utilize any portions of any Building Common Areas for purposes of entertainment, displays, product shows, the leasing of temporary or permanent kiosks, or such other uses as, in Landlord’s reasonable good faith judgment, may attract the public or otherwise enhance the Building; and (vi) to change the name, address, number or other designation by which the Land or the Building is commonly known, as more fully set forth in Section 21.07 of la-1342702 3 this Lease. In undertaking any activity provided for in this paragraph (b) relating to the Building, other than the Premises, and the Building Common Areas, Landlord agrees to use reasonable efforts to avoid interfering with Tenant’s use or occupancy of the Premises or with the Permitted Uses. Notwithstanding the foregoing, nor any other provision of this Lease to the contrary, Landlord shall (1) not exercise any of its rights to modify or change (etc.) set forth in this Section 1.06 in a manner that directly or indirectly materially adversely affects the Premises or the Building Systems servicing the Premises; (2) subject to Article 17 below, not eliminate the security system at the entrances to the Building and the manned security system at the front door of the Building; and (3) ensure that the Building Common Areas include, at all times during the Term, the Auditorium, and such walkways, hallways, access doors and other areas as are necessary to ensure that Tenant and the Tenant Parties have reasonable ingress and egress from and to the parking lot area and the Premises. Section 1.06 Indemnification. Except and to the extent that such Losses (hereinafter defined) are caused by the gross negligence or willful misconduct of a Landlord Party (hereinafter defined) or any of their respective employees, agents, contractors or invitees, Tenant shall indemnify, defend (with legal counsel reasonably approved by Landlord), and hold Landlord, and all of Landlord’s officers, directors, managers and management personnel, any lender holding a lien on or against any portion of the Land, and any Equity Owner of Landlord (individually, a “Landlord Party” and collectively, the “Landlord Parties”), harmless from and against any and all claims, demands, causes of action, damages, losses, liabilities, fines, penalties, sanctions, administrative and judicial proceedings, judgments, awards, orders, and costs and expenses, including reasonable attorneys’ fees and disbursements (collectively, “Losses”), arising directly or indirectly, in whole or in part, from or in connection with any act or omission of Tenant, or any of Tenant’s Equity Owners, officers, directors, managers, management personnel, agents, or employees, Permitted Licensees (as defined below), any subtenants of Tenant which are subleasing any portion of the Premises, any contractors or subcontractors of Tenant, or any of Tenant’s invitees (individually, a “Tenant Party” and collectively, the “Tenant Parties”), whether or not knowing or intentional, which is not in full compliance with, or which otherwise violates, any of the foregoing provisions of this Article I. Section 1.07 Equity Owners. As used in this Lease, the term “Equity Owner” shall mean, as to any specified person or entity, any partner, co-owner, shareholder or member of, or any other holder of any equity, beneficial or other ownership interest in, such specified person or entity (at any tier of ownership, and without regard to whether such partner, co-owner, shareholder, member, or other holder is an individual or an entity). ARTICLE II TERM OF LEASE; COMMENCEMENT OF TERM; DELIVERY OF PREMISES Section 2.01 Term. (a) Term. The term of this Lease (the “Term”) shall commence on the Commencement Date (as defined in Section 2.04), and shall, subject to Section 2.01(b), end on the last day of the sixtieth (60th) full calendar month following the Scheduled Term la-1342702 4 Commencement Date or on such earlier date that this Lease may be terminated pursuant to any express provision of this Lease (the “Termination Date”). (b) Extension Options. Tenant shall have three (3) options (each, an “Extension Option”) to extend the Term of this Lease, for the entirety of the Premises being leased at the time of exercise of the Extension Option, for a period of five (5) years each (each, an “Extension Term”). The first Extension Term shall commence on the day immediately following the Initial Term Expiration Date, the second Extension Term shall commence on the day immediately following the expiration of the first Extension Term, and the third Extension Term shall commence on the day immediately following the expiration of the second Extension Term. Each Extension Term shall be deemed to be a continuation of the Term of this Lease. The Initial Term Expiration Date, as extended by each Extension Term, shall be referred to in this Lease as the “Scheduled Term Expiration Date.” The Extension Options shall be personal to the original Tenant named in this Lease and may not be exercised by any sublessee, assignee, or any other successor or assign of Tenant. An Extension Option shall be exercisable only if, at the time of Tenant’s exercise of such Extension Option as well as at the time of the commencement of the applicable Extension Term, no Event of Default has occurred and is continuing and no event has occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default. To exercise an Extension Option, Tenant shall give Landlord written notice of its exercise of such Extension Option not less than four (4) months prior to the date on which the applicable Extension Term would be scheduled to commence (the “Extension Notice”). This Lease will terminate in its entirety at the end of the then applicable Extension Term (or upon any earlier termination of this Lease as may be provided for in this Lease) unless the Term is extended as provided in this Section 2.01(b), and Tenant will have no further right or option to renew or extend the Term of this Lease. (c) Base Rent in Extension Terms. (i) The Base Rent payable during each Lease Year during each Extension Term (other than the first Lease Year of the second Extension Term which shall be adjusted as set forth in subsection (c)(ii) below) shall be an amount equal to the Base Rent in effect immediately prior to the commencement of the subject Lease Year as such amount may be adjusted pursuant to Section 3.01(b) below. (ii) The Base Rent payable during the first Lease Year of the second Extension Term shall be an amount equal to the greater of (1) the Base Rent in effect immediately prior to the commencement of the second Extension Term as such amount may be adjusted pursuant to Section 3.01(b) below, and (2) the amount that a landlord and tenant, each under no compulsion to lease the Premises, would be expected to agree upon at arm’s length as the Base Rent for the Premises for the second Extension Term, as of the commencement date of the second Extension Term (the “Prevailing Market Rate”), provided that the Prevailing Market Rate shall not exceed of the amount described in the immediately preceding subclause (1) under any circumstances and regardless of the findings of the Appraiser (hereinafter defined). The Prevailing Market Rate shall be based upon the base rent paid under non-subleased, non-encumbered, non-equity lease transactions that are entered into during the six (6) month period immediately preceding the date of the Extension Notice for the second Extension Term (“Comparison Leases”) for the rental of lab, research and la-1342702 5 development, warehouse and office space in the Building and in comparable first-class buildings in the Rochester, New York area (“Comparison Buildings”), and may include periodic increases. Rental rates payable under Comparison Leases shall be adjusted to account for variations between this Lease and the Comparison Leases with respect to any relevant matters, including (i) the length of the Extension Term compared to the lease term of the Comparison Leases; (ii) rental structure, including additional rent and any other periodic payments in the nature of rent, and taking into consideration any “base year” or “expense stops” and any negotiated exclusions for the pass-through to tenants of real property taxes and building or project expenses; (iii) the size of the Premises compared to the size of the premises under the Comparison Leases; (iv) utilities provided, location of premises (including floor levels, views and other amenities which differentiate the Premises from any relevant premises under the Comparison Leases), and efficiencies of the layout or floor plan of the Premises compared to the premises under the Comparison Leases; (v) the age and quality of construction of the Building as compared to any Comparison Buildings; (vi) the provision and scope of termination rights under such Comparison Leases; and (vii) the financial condition and credit history of Tenant compared to the tenants under the Comparison Leases. In determining the Prevailing Market Rate, no consideration shall be given to (A) whether or not Landlord or the landlords under Comparison Leases are paying real estate brokerage commissions in connection with Tenant’s exercise of the Extension Option or in connection with the Comparison Leases, and (B) any increase in value to, or condition of, the Building or the Premises as a result of Landlord’s Work or any Alterations, it being the parties intent that the Prevailing Market Rate shall be based upon the condition of the Premises without the value of Landlord’s Work or such Alterations. (d) Procedures for Determining Prevailing Market Rate. (i) If Tenant exercises the second Extension Option in a timely manner, then not later than fifteen (15) days after receipt of Tenant’s Extension Notice, Landlord shall deliver to Tenant Landlord’s reasonable good faith written proposal for the Prevailing Market Rate for the Premises during the second Extension Term. Within thirty (30) days after receipt of Landlord’s proposal, Tenant shall notify Landlord in writing either that (A) Tenant accepts Landlord’s proposal, or (B) Tenant rejects Landlord’s proposal. If Tenant either accepts Landlord’s proposed Prevailing Market Rate, or fails to give Landlord notice of Tenant’s acceptance or rejection of Landlord’s proposed Prevailing Market Rate within such thirty (30) day period, then Landlord’s proposed Prevailing Market Rate for the second Extension Term shall be deemed to have been accepted by Tenant. (ii) If Tenant rejects Landlord’s proposal for the Prevailing Market Rate within the thirty (30) day period specified in clause (i) above, Landlord and Tenant shall negotiate in good faith for a period of fifteen (15) days following Landlord’s receipt of Tenant’s rejection notice (the “Negotiation Period”) in an attempt to agree upon the Prevailing Market Rate for the second Extension Term. If Landlord and Tenant are able to agree on the Prevailing Market Rate within the Negotiation Period, such agreement shall constitute a determination of Prevailing Market Rate for purposes of this Section 2.01. If Landlord and Tenant are unable to agree upon the Prevailing Market Rate within the Negotiation Period, then within five (5) days after the expiration of the Negotiation Period, the parties shall meet and concurrently deliver to each other their respective final written proposals for the Prevailing Market Rate for the second Extension Term (individually, a “Final Determination,” and collectively the “Final la-1342702 6 Determinations”), which proposals shall be supported by factual justification based on the criteria for the determination of the Prevailing Market Rate. If Landlord fails to deliver Landlord’s Final Determination, or if Tenant fails to deliver Tenant’s Final Determination, within such five (5) day period, then the Prevailing Market Rate shall be the amount specified by the party which has delivered its Final Determination of the Prevailing Market Rate in a timely manner. If both Landlord and Tenant deliver their respective Final Determinations of the Prevailing Market Rate and the higher of such Final Determinations is not of the lower of such Final Determinations, then the Prevailing Market Rate shall be the average of the two Final Determinations. If the Prevailing Market Rate is not resolved by exchange of the Final Determinations as provided above, then the Prevailing Market Rate shall be determined in the manner set forth in clause (iii) below. (iii) Within ten (10) days after the parties have exchanged their respective Final Determinations as provided above, each party shall appoint an appraiser who is certified as an MAI or ASA appraiser and who shall have at least ten (10) years’ experience, immediately prior to his or her appointment, as a real estate appraiser of commercial properties in the City of Rochester, New York, including significant experience appraising industrial buildings comparable to the Building. No appraiser so appointed by Landlord or Tenant shall have performed appraisal services for the party appointing such person, or for any Affiliate (as defined in Section 3.02) of such party, during the five (5) year period immediately preceding such appointment. For the purposes of this Lease, an “MAI” appraiser means an individual who holds a MAI designation conferred by, and is an independent member of, the American Institute of Real Estate Appraisers (or its successor organization, or, if there is no successor organization, the organization and designation most similar); and an “ASA” appraiser means an individual who holds the Senior Member designation conferred by, and is an independent member of, the American Society of Appraisers (or its successor organization, or, if there is no successor organization, the organization and designation most similar). If either Landlord or Tenant fails to appoint an appraiser within the foregoing ten (10) day period, then the Prevailing Market Rate for the second Extension Term shall be the Final Determination of the Prevailing Market Rate previously submitted by the party that timely appointed an appraiser. Landlord’s and Tenant’s appraisers shall work together in good faith to appoint an impartial third party MAI or ASA appraiser within fifteen (15) days after the selection of the second of such appraisers, and shall promptly notify both Landlord and Tenant of such selection. If for any reason the two appraisers appointed by Landlord and Tenant are not able to agree upon an impartial appraiser within such fifteen (15) day period, then either party shall be entitled to refer such appointment to the American Arbitration Association (“AAA”), and neither party shall object to the authority of AAA to make the appointment of the impartial third appraiser. The impartial third appraiser shall be referred to herein as the “Appraiser.” (iv) Within five (5) days following the selection or appointment of the Appraiser, Landlord and Tenant shall submit copies of their respective Final Determinations to the Appraiser. Each party shall be bound to its respective Final Determination previously submitted to the other party so that the respective Final Determinations previously submitted by the parties shall constitute the only two choices available to the Appraiser for the determination of the Prevailing Market Rate. The Appraiser shall proceed to work diligently and in good faith to decide which of the two (2) Final Determinations more closely reflects the Prevailing Market Rate for the Premises for the second Extension Term, and shall use his or her best efforts to la-1342702 7 reach a final decision regarding the Prevailing Market Rate within twenty-five (25) days following the selection or appointment of the Appraiser. In making a decision regarding the Prevailing Market Rate, the Appraiser shall be obligated to select either Landlord’s Final Determination or Tenant’s Final Determination as the Prevailing Market Rate for the Premises for the second Extension Term, and shall have no right to propose a middle ground or to modify either of the two (2) Final Determinations or any of the provisions of this Lease. The Appraiser may conduct a hearing, at which Landlord and Tenant may each make supplemental oral or written presentations, with an opportunity for rebuttal by the other party and for questioning by the Appraiser. The decision of the Appraiser shall be final and binding upon the parties, and may be enforced in accordance with the provisions of Applicable Law. If for any reason the Appraiser is not able to reach a decision as to the Prevailing Market Rate prior to the first day of the second Extension Term, the second Extension Term shall nevertheless commence and, pending a final decision by the Appraiser, Tenant shall commence paying on such commencement date Base Rent for the second Extension Term in the amount of the Base Rent calculated pursuant to Section 2.01(c)(ii)(1) (the “Standard Adjusted Base Rent”) until such time that the Appraiser has made his or her final determination as to the Prevailing Market Rate, at which point (1) if the Prevailing Market Rate has been determined to be in excess of the Standard Adjusted Base Rent, Tenant shall pay to Landlord with the next installment of Base Rent a one-time payment in the amount of the difference between the amounts paid by Tenant during such Lease Year at the Standard Adjusted Base Rent and the amount which would have been paid by Tenant under the Prevailing Market Rate, and (2) if the Prevailing Market Rate has been determined to be less than the Standard Adjusted Base Rent, for the avoidance of doubt, the provisions of Section 2.01(c)(ii) shall control and Tenant shall not owe Landlord any additional Base Rent. (v) All fees and expenses of the Appraiser, and any costs and expenses incidental to any proceedings held by the Appraiser, shall be paid by the party whose Final Determination is not selected by the Appraiser; provided that notwithstanding the foregoing, each party shall be responsible for paying any costs and expenses incurred by such party in connection with the preparation of any Final Determination or in connection with any negotiations with the other party relating thereto, as well as any fees and other costs incurred by such party in connection with the retention or use of any attorneys, accountants or other experts, or otherwise in the course of any hearings before or presentations (written or oral) made to the Appraiser, in connection with the appraisal process set forth in this subparagraph (d). Section 2.02 Landlord’s Work. Landlord agrees to perform such construction and build-out work and make such improvements and installations in and to the Premises as are expressly made the responsibility of Landlord in the Work Letter attached as Exhibit C (the “Work Letter”). Any such work and installations are herein referred to as “Landlord’s Work”. The cost of Landlord’s Work shall be paid by Tenant in the manner provided in the Work Letter. Landlord shall have no responsibility for any deficiencies in design or materials (including the composition or quality of, or other elements or features of, such materials), or for the quality of any work, relating to any portion of Landlord’s Work. Without limiting the foregoing, Landlord is making no representation or warranty to Tenant, and is providing no guaranty or other assurance to Tenant, with respect to (i) the accuracy, sufficiency or suitability of any plans, specifications, drawings or other construction-related documents, and Tenant alone shall have the responsibility for verifying the accuracy, sufficiency and suitability of any and all la-1342702 8 such plans, specifications, drawings, and other construction-related documents, or (ii) the accuracy, sufficiency or suitability of any of Landlord’s Work for Tenant’s use and occupancy of the Premises or the conduct of the Permitted Uses. Section 2.03 Intentionally Omitted. Section 2.04 Commencement Date; Tender of Premises. (a) Landlord and Tenant acknowledge that Landlord will complete Landlord’s Work on a rolling basis, with each phase of construction referred to as “TI Construction Space”, all as more particularly defined and described in the Work Letter. As used in this Lease, the “Commencement Date” shall be the date on which the first TI Construction Space is Substantially Complete (as defined in the Work Letter) and tendered by Landlord to Tenant as provided in Section 2.04(b) below. (b) Upon Substantial Completion of each TI Construction Space, Landlord will, by written notice to Tenant, tender possession of such TI Construction Space to Tenant, and Tenant agrees to accept possession of the TI Construction Space as soon as possession is tendered by Landlord. Tenant shall be deemed to have accepted possession of the tendered TI Construction Space upon Tenant’s receipt of Landlord’s written notice tendering possession of the TI Construction Space to Tenant (such date the “Tenant Acceptance Date”), provided that Tenant is able to immediately thereafter gain reasonable access to, and use of, the TI Construction Space as necessary for the Permitted Uses, as applicable. By accepting possession of the TI Construction Space, Tenant shall be deemed to have acknowledged and agreed that the TI Construction Space is in the condition required by this Lease, subject to completion (in accordance with the provisions of the Work Letter) of any normal punch list items. If for any reason (other than a Landlord Delay) Tenant is delayed in taking actual occupancy of the TI Construction Space following Landlord’s notice tendering delivery of the TI Construction Space to Tenant, no such delay by Tenant in taking occupancy of the TI Construction Space shall impose any liability on Landlord to Tenant with respect to the TI Construction Space or otherwise, or operate to extend the Scheduled Term Commencement Date or the Scheduled Term Expiration Date of this Lease, or otherwise excuse Tenant from performing any of Tenant’s obligations under this Lease. Tenant agrees that, except solely to the extent of any Landlord’s Work specified in the Work Letter and the removal of all of the previous tenant’s tools and equipment (including any free standing air compressors and chilling units but excluding any ceiling mounted HEPA filters and associated duct work), Landlord shall have no obligation to perform any preparatory work, construction, improvement, installation, clean-up work, or other work of any type or nature on, in or with respect to the Premises or the Building prior to or in connection with this Lease or the tendering of possession of the Premises to Tenant. (c) Notwithstanding anything to the contrary in this Lease, the term “Premises” shall only refer to each TI Construction Space that has been Substantially Completed la-1342702 9 and tendered to Tenant as provided in this Section 2.04. For the avoidance of doubt, until the Tenant Acceptance Date for a TI Construction Space, Tenant shall have no obligations or liabilities with respect to such TI Construction Space, including, without limitation, the payment of Base Rent or Additional Rent with respect to such TI Construction Space. Section 2.05 Early Entry. Landlord shall not be obligated to provide any right of entry to Tenant upon the Premises prior to the Commencement Date, except to the extent expressly provided in this Lease or the Work Letter. Section 2.06 Building and Premises Condition. Landlord represents and warrants that the Building, including the Premises (but excluding Landlord’s Work), are and will be on the Scheduled Commencement Date in good and working order and condition and in compliance with all applicable local, state and federal laws, ordinances, rules and regulations applicable thereto, including without limitation the Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990), as the same has been amended from time to time. Following the completion of all Landlord’s Work, and except to the extent, if any, expressly provided otherwise in this Lease, Landlord shall not be required to make, nor be responsible for any costs required or expended in connection with, any repair, restoration, or improvement to or of the Premises. Other than as set forth in Section 1.03 or this Section 2.06 or otherwise expressly stated in this Agreement, Landlord makes no warranty or representation of any kind or nature whatsoever as to the condition or repair of the Premises or the Building, and Tenant shall be solely responsible for satisfying itself in all respects with regard to the condition of the Premises and the Building. Section 2.07 Determination of Rentable Area. Landlord and Tenant agree that, for the purposes of this Lease, the Rentable Area (as defined below) of the Tenant’s Premises and the Building, respectively, shall conclusively be deemed to be equal to the respective square footage measurements for the Building’s Rentable Area and the Rentable Area of Tenant’s Premises, as set forth in the Basic Lease Terms. As used in this Lease, the term “Rentable Area” shall mean the area within the Premises or the Building, as applicable, measured in number of square feet, that is leased or intended to be leased to third parties or is occupied or intended to be occupied by Landlord or any third party, including any Affiliate of Landlord (whether or not any such area is actually leased or occupied at the time of the determination of Rentable Area). Section 2.08 Failure to Deliver Premises. If Landlord, for any reason whatsoever other than an act by or omission of Landlord or a Landlord Party or any of their respective employees, agents or contractors, is unable to tender possession of the Premises (or any portion thereof) to Tenant on or before the Scheduled Term Commencement Date, (a) this Lease shall not be void or voidable and shall remain in full force and effect, (b) Tenant shall have no right or option to terminate this Lease, (c) no obligation of Tenant under or with respect to this Lease shall be affected thereby (except, for the avoidance of doubt, such obligations which by their nature would not ripen or apply in the absence of Tenant’s receipt of possession of the Premises, including without limitation the obligation to pay Rent, to insure the Premises and to maintain the Premises), and (d) neither Landlord nor any Landlord Party shall incur any liability of any nature to Tenant for any loss, damage or liability to Tenant resulting from such inability, whether or not foreseeable and whether or not capable of being mitigated. la-1342702 10 ARTICLE III RENT Section 3.01 Base Rent. Tenant agrees to pay to Landlord, without, except as otherwise expressly provided herein, deduction, counterclaim, offset, prior notice or demand, and Landlord agrees to accept, in lawful money of the United States of America, rent (“Base Rent”) for the Premises, payable as follows: (a) Base Rent Payment Schedule. Tenant shall pay to Landlord (or to the Property Manager if so directed in writing by Landlord at least thirty (30) days prior to the due date of the next succeeding payment of Base Rent) monthly in advance during the Term, which sum shall be due and payable on the first day of each and every month, as follows: (i) For the first (1st) full calendar month following the Commencement Date and continuing monthly thereafter until the Tenant Acceptance Date of the second Substantially Complete TI Construction Space, Tenant shall pay Base Rent in the amount of the “Monthly Base Rent” for the particular “Functions” of the demised Premises comprising the first Substantially Complete TI Construction Space. For example, if the first Substantially Complete TI Construction Space is the “Office Space”, the monthly Base Rent payable by Tenant would be . (ii) For the first (1st) full calendar month following the Tenant Acceptance Date of the second Substantially Complete TI Construction Space and continuing monthly thereafter until the Tenant Acceptance Date of the third and final Substantially Complete TI Construction Space, Tenant shall pay Base Rent in the amount of (1) the Base Rent payable to Tenant under Section 3.01(a)(i) above plus (2) the “Monthly Base Rent” for the particular “Functions” of the demised Premises comprising the second Substantially Complete TI Construction Space. For example, if the second Substantially Complete TI Construction Space is the “Lab Space”, the aggregate monthly Base Rent payable by Tenant would be (i.e., for the “Lab” function plus for the amount payable under subsection (i) above). (iii) For the first (1st) full calendar month following the Tenant Acceptance Date of the final Substantially Complete TI Construction Space and continuing monthly thereafter, Tenant shall pay Base Rent in the amount of the “Monthly Base Rent” for the entire Premises described in the Basic Lease Terms ( (b) Rent Escalations. Commencing on the first anniversary of the Scheduled Term Commencement Date and continuing annually thereafter on the anniversary of such date during the Term (each such twelve month period referred to herein as a “Lease Year”), the monthly Base Rent payable under this Lease shall be multiplied by a fraction (i) the numerator of which shall be the Consumer Price Index (Northern Urban – Size Class B/C Cities – All Items December 1996=100) issued by the Bureau of Labor Statistics of the United States Department of Labor (the “CPI”) for the annual period ending closest to the last day of the Lease Year just ended and for which the relevant figures have been published (the “Adjustment Year”), and (ii) the denominator of which shall be the CPI for the twelve month period immediately preceding la-1342702 11 the Adjustment Year, provided that the CPI adjustment shall not be less than one and one-quarter percent . In the event the compilation or publication of the CPI shall be discontinued, then the index most nearly the same as the CPI as reasonably determined by Landlord shall be used to make such calculation. In no event shall the new monthly Base Rent be less than the monthly Base Rent payable for the month immediately preceding such Base Rent adjustment. (c) Proration of Rent. In the event that the Tenant Acceptance Date for a Substantially Complete TI Construction Space is a date other than the first day of a calendar month, then Tenant shall pay to Landlord, as Base Rent for the period of days commencing on the Tenant Acceptance Date up to (but not including) the first day of the next succeeding calendar month, a portion of the monthly Base Rent payable hereunder prorated for such period on a daily basis. In the event that the Termination Date of this Lease is a date other than the last day of a calendar month, then on the first day of the last calendar month of the Term of this Lease, Tenant shall pay to Landlord as Base Rent for the period of days commencing on the first day of the last calendar month to and including the last day of the Term of this Lease, a portion of the monthly Base Rent payable hereunder prorated for such period on a daily basis. Section 3.02 Additional Rent. (a) Method of Calculation. Commencing on the Commencement Date, Tenant shall pay in addition to the Base Rent, or Tenant shall be entitled to an offset against Base Rent, as applicable, for each Computation Year (as defined below), an amount determined in accordance with the following (referred to in this Lease, collectively, as “Additional Rent”): (i) Tenant shall pay an amount equal to Tenant’s Proportionate Share (as defined below) of the aggregate net dollar increases in the following items applicable to such Computation Year over the amounts that were incurred for such items in the Base Year, or Tenant shall be entitled to an offset against Base Rent in an amount equal to Tenant’s Proportionate Share of the aggregate net dollar decrease in the following items applicable to such Computation Year under the amounts that were incurred for such items in the Base Year, as applicable: (A) the Building Expenses (as defined below) incurred in such Computation Year over or under, as applicable, the Base Year Building Expenses (as defined below); (B) the Building Taxes (as defined below) attributable to such Computation Year over or under, as applicable, the Base Year Building Taxes (as defined below); (ii) Tenant shall pay the costs of any item of Building Expenses to the extent that such item results directly from (1) Tenant’s negligence or willful misconduct, (2) Tenant’s specific use of the Premises (for the avoidance of doubt, excluding mere occupancy and office uses) excluding normal wear and tear, or (3) Tenant’s breach of this Lease. (iii) Tenant shall pay all of the costs of any capital improvements or alterations made to the Premises, the Building or the Building Common Areas by the Landlord la-1342702 12 that are required under any governmental law or regulation that was not applicable to the Building or the Premises on the Lease Date and which are required because of Tenant’s specific use of the Premises (for the avoidance of doubt, excluding mere occupancy and office uses) reasonable wear and tear excepted; (iv) Tenant shall pay Tenant’s proportionate share of the costs of any capital improvements or alterations made to the Building or the Building Common Areas that are required under any governmental law or regulation that was not applicable to the Building on the Lease Date, and such capital improvements or alterations are required because of Tenant’s specific use (for the avoidance of doubt, excluding mere occupancy and office uses) of the Premises and Landlord’s specific use of its demised premises in the Building (for the avoidance of doubt, Tenant’s proportionate share of such costs shall be determined by comparing the Rentable Area of the Premises to the Rentable Area of such other tenants’ demised premises in the Building); (v) All charges, payments, reimbursements, costs and expenses of any type or nature which Tenant is required to pay to Landlord under or pursuant to this Lease, other than Base Rent and any other Additional Rent referred to in the immediately preceding clauses (i) and (ii), together with any and all interest and penalties that may accrue thereon in the event of Tenant’s failure to pay any of such amounts in a timely manner, all in accordance with the express terms of the provisions of this Lease applicable thereto. (b) Definitions. As used in this Lease, the following terms shall have the meanings set forth below. (i) “Base Year Building Expenses” shall mean the amount of Building Expenses incurred for the Base Year, subject to any adjustments specifically provided for in this Lease. (ii) “Base Year Building Taxes” shall mean the amount of Building Taxes payable in respect of the Base Year. (iii) “Building Taxes” shall mean, for any applicable period and without duplication, and subject to any exclusions expressly set forth below in this subparagraph (iii), all real property taxes and general and special assessments (provided that the amount of any such special or extraordinary assessment shall be amortized over the useful life of the capital project giving rise to such assessment and only such annual amortized amount which falls within a particular Computation Year shall be included in Building Taxes for such Computation Year), all public benefit charges, fees or special assessments, all maintenance fees or charges for infrastructure or other public improvements, public service facilities, or other public assets, all charges, fees or assessments for the provision, support or subsidizing of any governmental services, and all other taxes, fees, assessments, charges and excises, however denominated; but only if and to the extent that any of the foregoing taxes, fees, assessments, charges and excises are levied, assessed or otherwise imposed (whether on the Lease Date or at any time thereafter) by any federal, state, county, regional board or commission, municipality, district, or any other governmental authority with taxing powers, on or with respect to any of the following: la-1342702 13 (A) the Building and the Building Common Areas, or any portion thereof or Landlord’s interest therein, or on any personal property of Landlord used exclusively in the maintenance or operation of the Building and the Building Common Areas; or (B) the use or occupancy of the Building or the Building Common Areas, or any portion thereof, including any tax or levy made against any rents or gross receipts received by Landlord from the Building and the Building Common Areas. The term Building Taxes shall also include all reasonable direct, out-of-pocket legal fees, costs and disbursements incurred in good faith by Landlord as a party in or to any administrative or judicial proceedings brought in good faith by Landlord or any other person or entity on behalf of Landlord to contest, determine or reduce any Building Taxes (a “Tax Challenge”), except to the extent that such fees, costs and disbursements are paid or reimbursed to Landlord out of any reduction in, credit for, or refund of Building Taxes received by Landlord as a result of any determination made in favor of Landlord in any such proceedings. If Tenant reasonably determines that the Building Taxes applicable to all or any portion of the Building or the Land could be successfully challenged, Tenant shall have the right to require Landlord to pursue a Tax Challenge provided that Tenant reimburses Landlord for all of Landlord’s direct, out-of-pocket legal fees, costs and disbursements incurred in connection therewith. In addition, if at any time during the Term of this Lease the method of property taxation or assessment for the Building, as the property taxation system is in effect on the Lease Date, shall be altered so that in lieu of or in addition to any of the Building Taxes described above there shall be levied, assessed or imposed an alternate, substitute, or additional tax, charge or imposition on the value, use or occupancy of any portion of the Building, or on any interest of Landlord therein, or if any such Building Taxes shall, following the Lease Date, be computed or calculated in any manner based on, or with respect to, the revenues realized from or on account of the leasing or operation of any portion of the Building, then any such tax, charge or imposition, however denominated, shall be included within the meaning of the term Building Taxes for the purposes of this Lease; provided, however, that any such new type of tax or assessment included within the definition of Building Taxes shall be limited to the extent that such tax would be payable if the Land and the Building or the revenues therefrom were the only property of the Landlord subject to such new type of tax or assessment. Notwithstanding the foregoing provisions, the term Building Taxes shall exclude (1) any Tenant Taxes (as defined in Article VII), or similar amounts, if any, payable directly by other tenants of the Building, (2) any franchise, estate, inheritance, capital levy or gift taxes payable by Landlord, (3) any federal or state net income tax imposed on Landlord’s income from all sources, (4) any delinquency penalties or similar fees, and (5) if the Building or the Land is or becomes subject to an arrangement with a taxing authority such that taxes are not to be paid but payments in lieu of tax (“PILOT Payments”) are to be paid in place thereof, Building Taxes shall not include any PILOT Payments to the extent the same are in excess of that which would have been owed in the absence of such PILOT Payments arrangement, it being the parties understanding that such cap shall operate to eliminate the risk to Tenant of the front-loading of Building Taxes on the Building or the Land. la-1342702 14 (iv) “Building Expenses” shall mean, subject to the exceptions, limitations and carve-outs set forth in the last full paragraph of this Section 3.02(b)(iv), for any applicable period, and without duplication, the aggregate of all direct out-of-pocket costs and expenses that are paid or incurred by Landlord, or for the account of Landlord, for or in connection with the management, operation, maintenance, repair, supervision, insurance, administration, remediation, alteration or improvement of all or any portion of the Building, including: (A) the costs of HVAC (as defined in Section 6.01(e) of this Lease), steam, electricity, gas, water, sewer service, storm drainage, and all other utilities for or serving the Building Common Areas, as well as the cost of supplies and equipment, and any maintenance and service contracts, paid or incurred in connection therewith; (B) the costs of repairs, replacements, general maintenance, and cleaning services for all or any portion of the Building and the Building Common Areas (other than the Premises or the leased space of other tenants), including the cost of janitorial and other property-related service agreements and trash removal, except to the extent (i) separately billed to, or separately provided or paid by, Tenant or any other tenants or occupants of the Building (and including for the avoidance of doubt, any such items which would be billed to Landlord in its capacity as an occupant of the Building, regardless of whether or not actually charged), or (ii) incurred by Landlord to remedy or cure any latent defect in the Building or the Land or NonConformance in the Building or the Land existing on the Scheduled Term Commencement Date; (C) the costs of all insurance that Landlord deems appropriate to carry, or is required to carry by any Creditor under any Mortgage (as such terms are defined in Section 9.04), with respect to all or any portion of the Building and the Building Common Areas or any interest therein for or on account of any physical loss or damage to or of all or any portion of the Building or the Building Common Areas, or any interest therein, or for or on account of any of Landlord’s or Landlord’s Property Manager’s personal property used in the management or operation of all or any portion of the Building and the Building Common Areas, or for or on account of the loss of any rental or other business income from all or any portion of the Building and the Building Common Areas, as well as the cost of all liability insurance coverage (including any umbrella or excess coverage) carried by Landlord in connection with Landlord’s ownership, leasing or operation of the Building and the Building Common Areas (provided that if any of such insurance is provided under blanket, wrap or equivalent policies covering any real property owned by Landlord other than the Building and the Building Common Areas, the cost of such insurance that is allocable to the Building or the Building Common Areas shall be determined by Landlord on a reasonable and equitable basis), together with, for all of the foregoing policies of insurance, the amount of any deductibles or self-insured retentions for which Landlord is responsible under the applicable policy and which have been paid or expended by Landlord during the period for which such costs of insurance are being calculated; provided, however, that in no event shall any such insurance applicable to, covering or concerning Landlord’s operations as an occupant of the Building, or any personal property or fixtures of Landlord located within any part or portion of the Building occupied solely by Landlord, be included in Building Expenses; la-1342702 15 (D) subject to the limitations set forth below in the last paragraph of this Section 3.02(b)(iv), wages, salaries, payroll taxes, employee retirement savings, health care coverage or other employment benefits, and other costs of labor incurred for or with respect to any and all employees of Landlord, or the employees of Property Manager, who are physically located on the Land and are performing services primarily or exclusively for the use or benefit of all or any portion of the Building (excluding any such amounts paid to such employees for or in connection with the construction or installation of any leasehold improvements for any rentable areas of the Building), together with an allocable share (as reasonably determined by Landlord on a reasonable and equitable basis) of such costs for all employees of Landlord, or Property Manager, who are not physically located on the Land based on the extent to which such employees are regularly engaged in the operation, management, maintenance or repair of all or any portion of the Building vis-à-vis any other buildings or properties for which such employees perform similar services; (E) reasonable fees, charges and other costs, payable to any independent contractors engaged by Landlord for or in connection with the operation, management, maintenance and repair of all or any portion of the Building and the Building Common Areas; (F) all costs and fees for licenses, inspections or permits that Landlord may be required to obtain for or with respect to all or any portion of the Building, or the occupancy thereof (excluding certificates of occupancy obtained for tenant spaces in the Building or obtained by Landlord in its capacity as an occupant of the Building); (G) the costs of any items which under generally accepted accounting practices are properly classified as capital improvements or alterations made to all or any portion of the Building or the Building Common Areas after the Lease Date that are reasonably intended to reduce Business Expenses, which amounts shall be amortized over a time period equal to the useful life of the particular capital improvement or alteration (as determined by Landlord in a manner consistent with generally accepted accounting practices), and only such amortized amounts shall be included as Building Expenses for the applicable period for which Building Expenses are being determined and only up to the amount of the actual savings or reductions in Building Expenses; (H) exterior and interior hard and soft landscaping costs (including maintenance contracts and fees payable to landscaping consultants) for all or any portion of the Building or the Building Common Areas; (I) fees, charges and other costs incurred by Landlord for the supervision or management of any parking facilities or parking areas serving all or any portion of the Building, or that are otherwise used by any tenants or occupants of or visitors to the Building, together with the costs of resurfacing and restriping any such parking facilities or areas; (J) legal fees, costs and disbursements reasonably incurred by Landlord in good faith in connection with any legal, administrative or judicial proceedings (including appellate proceedings) concerning any governmental or judicial order, judgment or directive relating to the validity or enforcement of any third party warranty or guaranty relating la-1342702 16 to all or any portion of the Building or the Building Common Areas, or concerning the entitlement to or collection of any insurance proceeds or eminent domain awards relating to the Building, the Building Common Areas, or any portion thereof or interest therein (excluding, for the avoidance of doubt, such items to the extent attributable to insurance applicable to, covering or concerning Landlord’s operations as an occupant of the Building, or any personal property or fixtures of Landlord located within any part or portion of the Building occupied solely by Landlord); and (K) reasonable reserves set aside for the future payment of any items or obligations that, when paid, would constitute a Building Expense (provided that any subsequent payment of any such Building Expense out of such reserves shall be excluded in calculating the Building Expenses for the applicable period). Notwithstanding the foregoing, “Building Expenses” shall not include the following: (i) charges for depreciation of the Building or Building equipment and any Mortgage or other financing charges; (ii) costs of repair due to total or partial destruction or condemnation of the Building; (iii) costs of any items which under generally accepted accounting principles are properly classified as capital expenditures other than those Building Expenses described in Section 3.02(b)(v)(G) above; (iv) any expense paid to a related or affiliated corporation or entity, including without limitation any Affiliate of Landlord or Property Manager, in excess of what would have been paid in the absence of such relationship; (v) any payments to a ground lessor or sublessor of the Building or the Land; (vi) the cost of complying with Legal Requirements (including without limitation Environmental Laws) dealing with the handling, storage and disposal of Hazardous Materials, including cleanup costs; (vii) compensation of any form for Landlord’s or Property Manager’s directors, officers and executive personnel; (viii) compensation of any form for Landlord’s or Property Manager’s employees who devote less than fifty percent (50%) of their time to the management or servicing of the Building and the Land; (ix) expenses incurred in marketing space in the Building or at the Land; (x) leasing commissions, attorneys’ fees, costs and disbursements and other expenses incurred in connection with negotiations or disputes with tenants, other occupants, or prospective tenants and occupants; (xi) costs associated with any fit-up or improvement work done to other space in the Building or on the Land at the request of, or in anticipation of the leasing by, any other tenant or other occupant of the Building or the Land; (xii) any expenses for services or other benefits of a type which are not provided to Tenant, but which are provided to other tenants or occupants of the Building or the Land; (xiii) all items and services for which Tenant is separately charged; (xiv) the cost of any items for which Landlord or Property Manager are reimbursed by insurance, condemnation, refund, warranty, rebate or otherwise; (xv) costs related to Landlord’s or Property Manager’s maintenance of its existence as a corporation or other entity; (xvi) items or costs arising from or related to any space in the Building or on the Land occupied or operated by Landlord or Property Manager for any purpose other than the management of the Building, including without limitation such costs or items arising from or related to the CCD silicon fab operated by Landlord in the Building; or (xvii) the costs of HVAC, steam, electricity, gas, water, sewer service, storm drainage, and all other utilities for or serving all or any portion of the Premises, as well as the cost of supplies and equipment, and any maintenance and service contracts, paid or incurred in connection therewith. la-1342702 17 (v) “Computation Year” shall mean each consecutive period of twelve (12) full calendar months following the completion of the Base Year, commencing January 1 of each calendar year during the Term. (c) Calculation of Additional Rent Payments. Within sixty (60) days after the end of the Base Year and each Computation Year, or as soon thereafter as reasonably practical, Landlord shall give Tenant written notice of Landlord’s good faith estimate (“Estimate”) of the total amounts that will be payable by Tenant under this subparagraph (c) as Additional Rent for the then applicable Computation Year. If the Estimate reflects an aggregate increase in Building Expenses and Building Taxes during the Computation Year over the Base Year (as adjusted in accordance with Section 3.02(h) hereof), Tenant shall pay to Landlord an amount equal to onetwelfth (1/12) of such estimated Additional Rent on a monthly basis, in advance, on the first (1st) day of each calendar month following delivery of Landlord’s notice to Tenant of Landlord’s Estimate (with the first such monthly payment to include Tenant’s Proportionate Share of any Additional Rent owing for each of the calendar months during such Computation Year preceding the month in which Tenant’s estimated Additional Rent payments for such Computation Year shall commence, as offset by any Additional Rent payments received by Landlord from Tenant during such period) (“Estimated Payments”). If the Estimate reflects an aggregate decrease in Building Expenses and Building Taxes during the Computation Year over the Base Year, Tenant shall receive a credit against any Rent (including, for the avoidance of doubt, Base Rent) payable by Tenant under this Lease next becoming due in an amount equal to one-twelfth (1/12) of Tenant’s Proportionate Share of such estimated decrease. Tenant shall continue to make such Estimated Payments or receive such credit for each month during such Computation Year, and shall continue making such payments or receiving such credits during the next succeeding Computation Year unless and until Landlord provides Tenant with the Estimate for the next succeeding Computation Year or a revised calculation of the Estimated Payments due from Tenant for the then current Computation Year (a “Revised Estimate”). Landlord may provide a Revised Estimate to Tenant at any one or more times during any Computation Year. Any Revised Estimate shall be based on Landlord’s reasonable determination that the amount of Building Expenses or Building Taxes to be incurred during the applicable Computation Year will likely vary in a material amount from the then most recent Estimate or Revised Estimate given by Landlord to Tenant. In the event that Landlord provides Tenant with a Revised Estimate, all Estimated Payments payable by Tenant of Additional Rent for the applicable Computation Year shall be based upon such Revised Estimate, commencing with the first Estimated Payment that is due more than fifteen (15) days following Tenant’s receipt of the Revised Estimate. (d) Additional Rent Confirmation Statements. Landlord shall provide to Tenant, on or before April 1 of each calendar year, a statement (“Additional Rent Confirmation Statement”) showing the final amount of Additional Rent determined to be owing to Landlord for the immediately prior Computation Year and a line item list of the constituent parts, and the costs incurred in connection therewith, making up the final amount of Additional Rent for the immediately prior Computation Year. If the total of the Estimated Payments that Tenant has made for such prior Computation Year shall be less than the final amount of Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the deficiency to Landlord in a lump sum within thirty (30) days after Tenant’s receipt of the applicable Additional Rent Confirmation Statement. Any overpayment by Tenant of Additional Rent for the prior Computation Year shall, at Landlord’s option, either be credited la-1342702 18 against Tenant’s Estimated Payments next becoming due or returned to Tenant in a lump sum payment within thirty (30) days after delivery of the applicable Additional Rent Confirmation Statement. (e) Objections to Additional Rent Confirmation Statement. Tenant shall have a period of thirty (30) days following receipt of the Additional Rent Confirmation Statement within which to assert, by written notice to Landlord, any objection to the calculations contained therein. Failure of Tenant to deliver to Landlord written notice of Tenant’s objection to the Additional Rent Confirmation Statement within such thirty (30) day period (time being of the essence) shall be deemed a waiver of any such objection, absent a manifest error in mathematical calculation. In the event that Tenant objects in a timely manner to any Additional Rent Confirmation Statement, Landlord shall promptly proceed to review Landlord’s calculations with Tenant, and for such purpose Tenant shall have the right, at Tenant’s sole cost and expense (but with no obligation to reimburse Landlord for any costs incurred in connection therewith), to inspect and audit, at a mutually convenient time at Landlord’s office, any business records of Landlord or Landlord’s Property Manager that specifically concern the items of Building Taxes and Building Expenses that are the subject of Tenant’s objection to the applicable Additional Rent Confirmation Statement. Such audit shall be conducted by Tenant’s own employees, or by an independent nationally recognized accounting firm that is not being compensated by Tenant or other third party on a contingency fee basis. Notwithstanding anything to the contrary contained in this Lease, no subtenant of Tenant shall have any right to conduct an audit of the books or records of Landlord or Landlord’s Property Manager. In the event of any timely objection made by Tenant to any Additional Rent Confirmation Statement, Tenant shall nevertheless continue to make all payments of Base Rent, Additional Rent, Estimated Payments, and any other payments required under this Lease pending the final resolution of such objection. In the event that the parties are not able to resolve Tenant’s objection to any Additional Rent Confirmation Statement within forty-five (45) days following delivery of Tenant’s notice of objection, then a final and binding determination of the items in dispute shall be made by a reputable certified public accountant to be selected by Landlord and Tenant, both acting reasonably and in good faith, which certified public accountant shall not be an employee or Affiliate of Landlord or Tenant and shall not have performed any accounting or consulting work for either Landlord or Tenant within a period of three (3) years prior to the date of such person’s selection. No delay by Landlord in providing any Additional Rent Confirmation Statement shall be deemed a waiver of Landlord’s right to require payment of any Additional Rent. As used in this Lease, the term “Affiliate” as applied to any specified person or entity, shall mean any other person or entity that, directly or indirectly, is in control of, is controlled by, or is under common control with such specified person or entity, or is a director, officer, manager, managing member, or Equity Owner of such specified person or entity. The word “control” and its derivatives, as such terms are used in the immediately preceding sentence, shall mean the power to direct the management and policies of any person or entity, either directly or indirectly, whether through the ownership of voting securities or other beneficial or ownership interests, through debt or other covenants, by contract, by family relationship, or otherwise. (f) la-1342702 Procedure Following Termination of Lease. 19 (i) Upon the expiration or any earlier termination of this Lease, Landlord shall provide to Tenant, within ninety (90) days following the Termination Date, a reconciliation of the Estimated Payments made by Tenant for the Computation Year in which the Termination Date occurs and the amount of Additional Rent owing by Tenant for the portion of such Computation Year that is included within the Term of this Lease (“Partial Computation Year”), as reasonably determined by Landlord based on Landlord’s good faith estimate of the amount of Building Expenses and Building Taxes that are allocable to such Partial Computation Year (“Reconciliation Report”). Landlord shall either invoice Tenant for any Additional Rent due based on the Reconciliation Report (which invoice shall be payable by Tenant in full within thirty (30) days after receipt of such invoice) or shall reimburse Tenant for any overpayment of Additional Rent (which reimbursement shall be made by Landlord to Tenant in full within thirty (30) days following delivery of such Reconciliation Report, subject to Landlord’s right to offset against such reimbursement the amount of any and all unpaid sums for which Tenant is liable to Landlord, including any Losses and any damages suffered by Landlord on account of any Event of Default). Tenant shall have the right to object to and audit such Reconciliation Report in accordance with the provisions of Section 3.02(e) hereof. (ii) In addition to providing Tenant with a Reconciliation Report for any Partial Computation Year, Landlord shall also submit a final Additional Rent Confirmation Statement to Tenant for the full Computation Year in which the Termination Date shall occur within one hundred twenty (120) days following the last day of such Computation Year, and any underpayment or overpayment of Additional Rent made by Tenant, as determined on the basis of such final Additional Rent Confirmation Statement and taking into account any amounts paid to Landlord or reimbursed to Tenant pursuant to any Reconciliation Report, shall be made by Tenant or reimbursed to Tenant, as applicable, in the same manner and subject to the same conditions as are set forth in clause (i) above with respect to the Reconciliation Report. (g) Survival. Even though the Term of this Lease has expired and Tenant has vacated the Premises, Tenant shall remain liable to Landlord for the payment of any and all amounts due to Landlord on account of Additional Rent accrued during the Term, and such obligation of Tenant shall survive the expiration or any other termination of this Lease. (h) Base Year Adjustments. In the event that, during the Base Year, the Building is not at least one hundred percent (100%) occupied by tenants (including Landlord) or other occupants which have accepted their leased premises and commenced business operations on such leased premises, then the Building Expenses for such Base Year shall, to the extent that such Building Expenses could reasonably be expected (in Landlord’s good faith judgment) to vary with Building occupancy levels to a material degree, be equitably adjusted to reflect Landlord’s good faith estimate of the Building Expenses that would have been incurred had the Building been at least one hundred percent (100%) occupied by such tenants or other occupants during the entirety of such Base Year. (i) Other Building Expenses Adjustments. (i) With respect to any Building Expenses that are accrued but not actually paid by Landlord in any Computation Year, such Building Expenses shall only be included in the calculation of Additional Rent payable for such Computation Year to the extent la-1342702 20 that such inclusion is consistent with commonly utilized commercial real estate accounting principles uniformly applied over all relevant Computation Years. (ii) The Building Expenses and Building Taxes, as applicable, for any Computation Year shall be reduced by the amount of all reimbursements, recoupments, refunds, rebates, credits, allowances or other payments made or provided to Landlord by the payee of such Building Expenses or Building Taxes, if and to the extent that such amounts are received by Landlord in respect of any items previously included as Building Expenses or Building Taxes, as applicable, in the calculation of Tenant’s Additional Rent payments for such Computation Year or any prior Computation Year (collectively, “Credits”); provided that (A) Landlord may include in the Building Expenses or Building Taxes, as applicable, for the applicable Computation Year the reasonable and actual costs and expenses, if any (including reasonable attorneys,’ accountants’ and other experts’ fees and disbursements), incurred by Landlord in obtaining any such Credits to the extent the cost thereof does not exceed the monetary amount of the subject Credit received, and (B) in no event shall any payments of Additional Rent made to Landlord by Tenant or any other tenant or occupant of the Building be deemed or construed to constitute a Credit received by Landlord. Notwithstanding the foregoing, Landlord shall not be obligated to provide or pay over to Tenant its Proportionate Share of any Credits if and to the extent that such Credits are actually paid or provided to Landlord after the later of the end of the Term or more than six (6) months after the last day of the Computation Year in which the Termination Date occurs, even if any such Credit relates to or is allocable to any event, occurrence, overcharge or overpayment arising during the Term of the Lease. (iii) In no event shall Landlord (following the delivery of the Additional Rent Confirmation Statement for any Computation Year) invoice tenants or other occupants of the Building (including Tenant) for any sums that would result in Landlord receiving more than one hundred percent (100%) of the Building Expenses or Building Taxes actually paid or incurred by Landlord in any Computation Year, nor shall Landlord knowingly receive any double recovery of any item of Building Expense. Landlord shall use commercially reasonable efforts to manage and operate the Building in an economically responsible manner consistent with the management and operation of other comparable office buildings in the geographic area in which the Land is located. Section 3.03 Rent Obligations. As used in this Lease, the term “Rent” includes all Base Rent and Additional Rent. If the Termination Date shall occur on a day other than the last day of a calendar year, the Additional Rent incurred for the calendar year in which the Term expires or otherwise terminates shall be determined and settled on the basis of Landlord’s Statement of the Additional Rent finally determined to be owing for such calendar year, and shall be prorated in the proportion that the number of days in such calendar year preceding the Termination Date bears to 365. Section 3.04 Place of Payment of Rent. All Rent payable under this Lease shall be paid to Landlord by wire transfer to such account designated in writing by Landlord to Tenant at least five (5) business days prior to the due date thereof. Section 3.05 Late Charge. Notwithstanding any other provision of this Lease, if Landlord (or Landlord’s Property Manager, as applicable) does not receive payment of the Base la-1342702 21 Rent or Additional Rent (including any Estimated Payments), or any other amounts due from Tenant under this Lease (other than a Late Charge, as defined below), within fifteen (15) days of the due date thereof, Tenant shall pay Landlord, in addition to the delinquent Base Rent, Additional Rent, and any such other amounts that may be due, and without limiting any other rights or remedies of Landlord, a late charge equal to ten percent (10%) of the amount of each payment of Base Rent, Additional Rent, and any such other amount not received by Landlord (or Landlord’s Property Manager, as applicable) within fifteen (15) days of the due date thereof (“Late Charge”). The Late Charge shall be paid by Tenant within thirty (30) days after presentation of an invoice from Landlord (or from Landlord’s Property Manager) setting forth the amount of the Late Charge payable by Tenant. Notwithstanding anything to the contrary in this Lease, Landlord’s failure to impose a Late Charge for or with respect to any delinquent payment shall not be considered a waiver of Landlord’s right to collect such Late Charge, and Landlord may demand payment of any such Late Charge at any future time for any and all delinquent payments. Section 3.06 Security Deposit. Concurrently with Tenant’s execution of this Lease, Tenant shall deposit with Landlord by wire transfer of immediately available funds, the sum of (“Security Deposit”). The Security Deposit shall be held by Landlord as security for the faithful and timely performance by Tenant of all of the terms, covenants, and conditions of this Lease to be kept and performed by Tenant, including the payment of Rent, the making of any and all repairs to or of the Premises, and the restoration of the Premises by Tenant upon the expiration or earlier termination of this Lease as provided in Section 4.02. If any Event of Default shall occur, Landlord may (but shall not be required to) use, apply or retain all or any part of the Security Deposit for the payment of any sums that Landlord may expend by reason of such Event of Default and to compensate Landlord for any other loss or damage which Landlord may suffer on account of such Event of Default in accordance with the terms of Section 10.03 hereof. If any portion of the Security Deposit is so used or applied, Tenant shall, within five (5) days after written demand, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original sum. Tenant’s failure to restore the full amount of the Security Deposit within such five (5) day period following demand shall constitute an immediate Event of Default, without the requirement for any additional notice to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default. Landlord shall not be required to keep the Security Deposit separate from its general funds or to otherwise segregate the Security Deposit from any other funds or assets of Landlord, and Tenant shall not be entitled to the payment of interest or any other return on the Security Deposit regardless of whether or not Landlord may elect to place any of the Security Deposit in an interest bearing account or other investment. The Security Deposit (or any remaining balance thereof, as applicable) shall be returned to Tenant (or at Landlord’s option, to the last permitted assignee of Tenant’s interest under this Lease, if any) within thirty (30) days following the Termination Date, or such earlier date as may be required by Applicable Law, provided that Tenant has vacated the Premises. Without limiting any rights of Landlord under Applicable Law or any provisions of this Lease, at the time of any return of the Security Deposit to Tenant, Landlord may withhold from the Security Deposit such amounts as may be necessary (a) to cover the cost of restoration of the Premises if Tenant fails to restore the Premises as required under Section 4.02 of this Lease, (b) to apply toward the cure or remedy of any then uncured Event of Default, (c) to pay to Landlord any other amounts owed by Tenant under this Lease, and (d) to compensate Landlord la-1342702 22 for any damage or loss suffered by Landlord on account of any Event of Default in accordance with the provisions of Section 10.03. In the event of the transfer of Landlord’s entire interest in this Lease to any third party, whether voluntarily or by operation of law, and whether or not made in connection with any sale, conveyance or other transfer of title by Landlord referred to in Article XIII of this Lease, Landlord may transfer the Security Deposit to Landlord’s successor in interest and provide written notice to Tenant of such transfer (including the name and address of the transferee), in which event, automatically and without further action by the parties, Landlord shall be released from any further liability for the return of the Security Deposit and for any accounting for the Security Deposit, and Tenant shall look solely to Landlord’s successor in interest for the return of the Security Deposit and any accounting therefor. ARTICLE IV ACCEPTANCE AND SURRENDER OF PREMISES Section 4.01 Acceptance. On and as of the Scheduled Term Commencement Date, Tenant shall be deemed to have accepted the Premises, the Building, the Building Common Areas, in their then existing condition, and, except as expressly set forth in Sections 1.03 and 2.06 above or expressly stated elsewhere in this Lease without any representation or warranty by Landlord as to the condition of the Premises, the Building, or the Building Common Areas except as otherwise expressly set forth in this Lease. Section 4.02 Surrender. Upon the expiration or earlier termination of this Lease, Tenant shall, on or before the Termination Date, surrender the Premises promptly and peaceably to Landlord in Good Condition and Repair (as defined below). As used herein, the term “Good Condition and Repair” shall mean that, at Tenant’s sole cost and expense, Tenant shall restore the Premises substantially to its condition when first delivered to Tenant on the Scheduled Term Commencement Date and shall remove from the Premises all of Tenant’s personal property or movable equipment and any Alterations made by Tenant to the Premises other than Landlord’s Work or such other Alterations that Landlord has previously agreed in writing need not be removed from the Premises, subject in all instances to normal wear and tear, and damage by casualty or any other event not caused by Tenant or any Tenant Party (as defined in Section 8.01). Without limiting the foregoing, Tenant shall be responsible for, and shall pay the full cost and expense of, repairing any damage caused by any installation or removal by or for Tenant of any Alterations or leasehold or tenant improvements which Tenant is required or permitted to remove in accordance with the provisions of this Lease, and the removal of any of Tenant’s trade or movable fixtures or other property which Tenant is required or permitted to remove from the Premises upon the termination of this Lease. ARTICLE V ALTERATIONS AND REPAIRS. Section 5.01 Alterations by Tenant. (a) Requirements for Landlord’s Consent. Tenant shall not make or permit any Tenant Party to make, any alterations, additions or improvements in, to or of any portion of la-1342702 23 the Premises (collectively, “Alterations”) without first obtaining the written consent of Landlord for such proposed Alterations, provided that Landlord’s consent shall not be required for any Alterations that (1) in the aggregate cost less than twenty five thousand dollars ($25,000) in a calendar year and (2) do not require any alteration to the structure or mechanical systems of the Building. Such written consent will be considered and evaluated by Landlord only after Tenant delivers to Landlord a written request for approval of Tenant’s proposed Alterations (“Alteration Request”), which Alteration Request shall include, at a minimum: (i) a detailed description of the proposed Alterations, and the plans and specifications therefor in such level of detail as shall be reasonably required by Landlord, (ii) the name(s) of the design professional(s), contractor(s) and mechanic(s) who will be responsible for the design, construction or installation of the Alterations, and a true and complete copy of the contract(s), purchase order(s) and other agreement(s) to be entered into for the design, construction or installation of the Alterations, (iii) the proposed schedule for commencing and completing the construction and installation of the Alterations, (iv) a statement as to whether or not Tenant wishes to remove the Alterations from the Premises at the end of the Term of this Lease, (v) a cost breakdown, reasonably satisfactory to Landlord in scope and level of detail, for the design, construction and installation of the Alterations showing the estimated costs for the Alterations, as provided to Tenant by Tenant’s contractor or construction cost estimator, and (vi) evidence reasonably satisfactory to Landlord that Tenant has the financial resources required to pay for the lien-free completion of the Alterations. Landlord shall either approve or deny Tenant’s Alteration Request within seven (7) business days after Landlord’s receipt of the Alteration Request, provided that such review period shall be extended if Landlord reasonably determines that the Alteration would reasonably be expected to result in a health, safety or environmental exposure or a material Building or business impact. If Landlord determines that a longer review period is necessary, Landlord shall so notify Tenant during the seven (7) business day review period and shall thereafter diligently proceed with all due speed to complete its review of the Alteration and inform Tenant of its decision as soon thereafter as possible. No consent by Landlord to any Alterations shall be valid unless and until a written notice from Landlord evidencing such consent is delivered to Tenant (“Consent to Alterations”), which notice may specify such terms and conditions of approval as Landlord may reasonably impose. In addition, the Consent to Alterations shall indicate whether Landlord will require that the proposed Alterations be removed from the Premises at the end of the Term of this Lease (any such removal to be at the sole cost and expense of Tenant). Without limiting the grounds upon which Landlord may reasonably disapprove any proposed Alteration Request, Tenant acknowledges and agrees that it shall be reasonable for Landlord to withhold approval of any proposed Alterations that could, in the reasonable good faith judgment of Landlord or any consulting design professional or contractor retained by Landlord, (A) cause or create any incompatibility or conflict with any then-existing Building Systems or other Building services, utility systems or services of the Building or any Building Common Areas, or (B) in any way impair or compromise the structural integrity of the Building or any structural feature or element of the Building, or (C) be visible from the exterior of the Building or otherwise create any uneven or undesirable effect on the exterior appearance of the Building, or (D) potentially void or otherwise adversely affect any third party warranty or guaranty applicable to any portion of the Premises or the Building, or potentially invalidate, increase the cost to Landlord of, or otherwise adversely affect any insurance coverage maintained by Landlord with respect to any loss, damage or injury occurring on or with respect to the Premises or to any person or property thereon, including potentially la-1342702 24 causing the disallowance of any sprinkler credits, including under any so-called “Protective Safeguards Endorsement” or equivalent policy provision, or (E) require any additional building, health and safety, accessibility, or other code alterations or improvements to be made by Landlord to the Building or any Building Common Areas. (b) Ownership of Alterations. Any Alterations of or to the Premises shall, upon completion, become a part of the Premises and belong to Landlord, except for any moveable furniture and trade fixtures and any Alterations that Landlord requires or permits to be removed by Tenant at the end of the Term. Tenant shall retain, during the Term of this Lease, title to all moveable furniture and trade fixtures placed in the Premises, as well as to any Alterations that are required or permitted to be removed by Tenant at the end of the Term. Upon the expiration or earlier termination of this Lease, any and all Alterations that have not been removed by Tenant in accordance with the provisions of this Lease and which are not otherwise the property of Landlord, shall immediately be and become the property of Landlord without payment of any charge, fee, cost or other compensation to Tenant. The parties agree that, for the purposes of this Lease, any and all lighting, plumbing, electrical, HVAC, mechanical, security or communications systems, any floor to ceiling partitioning, any drapery, carpeting, and floor installations that have or will become an integral part of the Premises as part of any Alterations, shall not be deemed to be moveable furniture or trade fixtures. Section 5.02 Protection of Landlord. (a) Costs of Alterations. All costs and expenses incurred for or in connection with the design, fabrication, delivery, construction and installation of any Alterations shall be paid by Tenant. In addition, Tenant shall pay all direct, out-of-pocket expenses reasonably incurred by Landlord in connection with reviewing any Alteration Request and providing any Consent to Alterations relating thereto, including any reasonable fees paid by Landlord to any contractor, design professional, engineering firm, or consultant in connection with such review or consent, incurred by Landlord in connection with reviewing any Alteration Request or preparing any Consent to Alterations. (b) No Landlord Representations. No consent by Landlord to any Alterations shall be construed to constitute any representation or warranty by Landlord with respect to the design, fabrication, construction, quality, operation, sufficiency, safety, suitability, or any other feature or attribute of any Alterations, or to impose any liability whatsoever on Landlord in connection with any Alterations. (c) Alterations Work. Upon Landlord’s delivery to Tenant of a Consent to Alterations, if such Consent to Alterations requires that Tenant remove the Alterations upon the expiration or earlier termination of this Lease, Tenant shall have the option to either agree to such removal obligations or refrain from commencing construction of the Alteration. If Tenant chooses to proceed with construction, Tenant shall promptly commence construction and installation of the Alterations so approved, and shall diligently complete such construction and installation within the parameters of the construction schedule included in the Alteration Request and in compliance with all terms and conditions set forth in Landlord’s Consent to Alterations. la-1342702 25 (d) No Landlord Responsibility for Alterations. Landlord shall not be required to inspect or observe, or otherwise review or monitor, any Alterations made by Tenant, and any inspection, observation, review or monitoring of any Alterations which Landlord may elect to make shall be solely for the protection of Landlord’s interests and shall not expose Landlord to any liability with respect to such Alterations or any work or conditions relating to such Alterations. Section 5.03 Repairs and Maintenance of the Premises. (a) Tenant’s Repair Obligations. Tenant shall, at its sole cost and expense, at all times keep and maintain the Premises and every part thereof in at least the same condition of maintenance and repair as the same was in on the Scheduled Term Commencement Date, and otherwise in good and sanitary order and condition, and shall make such replacements and repairs to and within the Premises as may be required from time to time to maintain such quality of the Premises. (b) Landlord’s Responsibility. Except as provided in Section 5.03(a) as being the obligation of Tenant, Landlord shall repair, maintain and replace, as necessary, all remaining parts or portions of the Building and the Land, including without limitation the Building Common Areas, the Building Structure, and any Building Systems located outside the Premises that serve the Building, provided that Landlord shall have no responsibility for repairing, maintaining or replacing any portions of the Building, the Building Systems, or the Building Common Areas, to the extent that the need for any such repair, maintenance, or replacement arises directly from Tenant’s specific use (for the avoidance of doubt, excluding mere occupancy and office uses) of the Premises excluding normal wear and tear, Tenant’s breach of the Lease, or Tenant’s negligence or willful misconduct (collectively, “Tenant Fault”). Tenant shall be obligated to pay or reimburse Landlord, within thirty (30) days following written demand, for the cost of any and all repairs, maintenance or replacements of any portion of the Premises, the Building, and the Building Common Areas, if and to the extent that the need for any such repairs, maintenance or replacements is directly attributable to any Tenant Fault. (c) No Limitation Implied. Nothing contained in this Section 5.03 shall be construed to modify or limit any rights, remedies, duties, responsibilities or obligations of the parties described or referred to in Section 5.06 or Section 9.06. Section 5.04 Standards Relating to Tenant’s Maintenance and Repair Work. All maintenance, repair and replacement work performed or undertaken at or for the Premises by or on behalf of Tenant shall be carried out and completed (a) at Tenant’s cost, expense and risk, (b) by contractors, mechanics or other personnel which have been reasonably approved by Landlord in writing, or which are otherwise regularly performing comparable work or services for Landlord or other tenants in the Building, (c) so as to be at least equal in quality of materials, workmanship, use and function to the original work or installation, (d) at such times and in such a manner so as not to unreasonably interfere with the use and enjoyment of the Land, the Building, and the Building Common Areas, by Landlord, by any other tenants or occupants of the Building, or by any other persons using, providing any contractual services for, or visiting the Building, and (e) in accordance with the requirements of (i) Legal Requirements, (ii) any third party warranty or guaranty contract or agreement covering all or any portion of the Premises or la-1342702 26 the Building, or any installations, equipment, or systems in or on the Premises or the Building of which Tenant has been provided with reasonable prior written notice, (iv) all requirements of any insurance agent or broker, insurance company, board of fire underwriters, insurance services offices, or other similar insurance authority providing any insurance coverage for or with respect to the Premises, the Land, the Building, and the Building Common Areas, and (v) all Rules and Regulations from time to time published by Landlord. Section 5.05 Indemnification. Tenant shall indemnify, defend (with legal counsel reasonably approved by Landlord), and hold Landlord and all Landlord Parties harmless from and against any and all Losses arising directly or indirectly, in whole or in part, from or in connection with the making, construction or installation of any Alterations or the performance of any maintenance, repair, replacement or other improvement work by or for Tenant. Section 5.06 Alterations and Improvements Required to Comply with Applicable Laws, Codes and Ordinances. Any non-conformance of any portion of the Premises, the Land, Building, or the Building Common Areas with applicable land use, building, environmental, or health and safety laws, codes and ordinances (excluding any non-conformance with any Environmental Laws relating to Hazardous Materials, which shall be governed by the provisions of Section 9.06 of this Lease), or with any laws, codes and ordinances relating to disability or accessibility, including in any such instance all rules and regulations issued under any of such laws, codes and ordinances (collectively, “Non-Conformance”), which any governmental authority having jurisdiction over any portion of the Premises, the Land, the Building, and the Building Common Areas, as applicable, may require to be remedied or corrected during the Term of this Lease, shall be remedied or corrected (i.e., brought into conformance with such laws, codes, ordinances, rules and regulations) at the cost and expense of Landlord (any such Non-Conformance a “Landlord Compliance Obligation”), provided that any Non-Conformance of any portion of the Premises which is directly attributable to any of the following (referred to herein as a “Tenant Compliance Obligation”) shall be remedied or corrected at the sole cost and expense of Tenant: (a) any leasehold or tenant improvements, trade fixtures, personal property, or Alterations made or installed by or for Tenant; (b) any maintenance, repair or replacement work done by or for Tenant (for the avoidance of doubt, other than any such maintenance, repair or replacement work done by or for Landlord pursuant to the terms of this Lease); (c) any business conducted on or from the Premises by Tenant which is not a Permitted Use or any Non-Conformance arising from Tenant’s specific use of the Premises (for the avoidance of doubt, excluding mere occupancy and office uses) reasonable wear and tear excepted; or (d) any variance or similar request made to any governmental authority by or on behalf of Tenant. In the case of any Tenant Compliance Obligation, Landlord shall determine whether any remedial corrective action necessary to remove or correct the Non-Conformance will be carried out by Landlord or Tenant, and in either such instance Tenant shall be solely responsible for the payment of any and all costs and expenses required to remedy or correct such Non-Conformance; provided that if Landlord determines that Tenant will carry out any such remedial corrective action, (i) Landlord shall only be entitled to the reimbursement from Tenant of Landlord’s reasonable, direct out-of-pocket costs and expenses; and (ii) Tenant shall comply with all provisions of Section 5.01 relating to Alterations with respect to such remedial corrective action, whether or not such remedial corrective action would otherwise constitute an Alteration. Any costs and expenses incurred by Landlord in connection with making any improvements or alterations to or of the Premises, the Land, the Building, or the la-1342702 27 Building Common Areas for the purpose of correcting any Non-Conformance that constitutes a Landlord Compliance Obligation or that is not a Tenant Compliance Obligation shall be payable by Landlord, and shall not be considered to be part of the Building Expenses for purposes of calculating the Additional Rent payable by Tenant. ARTICLE VI UTILITIES AND OTHER SERVICES; PROPERTY MANAGEMENT Section 6.01 Normal Use of Building Services. (a) Standard Business Hours. Landlord shall furnish to the Premises and the Building Common Areas between the hours of 8:00 am and 6:00 pm, Mondays through Sundays (“Standard Business Hours”) reasonable quantities of electrical, steam, gas, water, sewer service, cleanroom make-up air, heating, ventilating, and air conditioning (“HVAC”), and elevator or escalator service for areas of the Premises that are located above ground level. Tenant may, from time to time, use and occupy the Premises outside Standard Business Hours, including on a twenty-four (24) hour-a-day, seven (7) day-a-week schedule. If Tenant determines that it will operate on a regular basis outside of Standard Business Hours, Landlord and Tenant shall agree at such time upon a monthly fee to be paid by Tenant, as Additional Rent, for such regular usage of Building Services outside of Standard Business Hours to reimburse Landlord for its out-of-pocket costs actually incurred as a direct result of such additional usage, which amount of the monthly fee shall be determined by Landlord and Tenant acting reasonably and in good faith. (b) Meters. Landlord shall install and maintain separate meters for the Premises, at Landlord’s sole cost and expense, for the monitoring of electric and processed water provided to the “Lab,” “Cleanroom,” “Gowning Room,” or “Storage/Mechanical Areas” (as such areas are defined and shown on Exhibit B as the same may be amended pursuant to the Basic Lease Terms). Such meters shall be installed only to track Tenant’s consumption of electricity and processed water in such areas of the Premises, and not to track the usage of such utilities by Landlord or any other tenant or occupant of the Building. Tenant shall pay as Additional Rent to Landlord the cost of Tenant’s consumption of electric and processed water in the portions of the Premises comprising “Lab”, “Cleanroom”, “Gowning Room”, and “Storage/Mechanical” as well as humidity and temperature control units in the “Cleanrooms” at the following rates (which rates include a 2% management fee): Service Electric Processed Water (including waste fees) Rate $0.077/(kW-hr) $6.41/kgal Tenant shall have the right, at Tenant’s sole cost and expense, to inspect and audit, at a mutually convenient time at Landlord’s office, any business records of Landlord that specifically concern Landlord’s calculation of the rates charged for electric and processed water in accordance with the provisions set forth in Section 3.02(e) above. (c) Solvent Waste. The handling, storage and disposal of “solvent waste” generated by Tenant in its use of the Premises shall be the obligation of Tenant, at Tenant’s sole la-1342702 28 cost, expense and liability, in compliance with all Applicable Law, regulations and orders and Landlord shall have no obligation to provide such services for Tenant or to the Premises. Tenant shall not store more than one hundred ten (110) gallons of solvent waste at the Building at any time. (d) Janitorial Services. Landlord shall provide janitorial services to the Building Common Areas in accordance with the Janitorial Services Schedule attached hereto as Exhibit G, in such frequency as set forth therein. Landlord shall have no obligation to provide janitorial services to the Premises, which services shall be provided by Tenant at its sole cost and expense. (e) Protection of Building Systems. Tenant agrees that, at all times, Tenant will cooperate fully with Landlord and comply fully with all reasonable rules, regulations and requirements that Landlord may from time to time prescribe (on a non-discriminatory basis with respect to any comparable uses or activities engaged in by other tenants of the Building and providing that such rules and regulations shall not deprive Tenant of any rights hereunder or cause Tenant to incur any additional monetary costs in compliance therewith) for the proper functioning and protection of (a) any and all systems or facilities within the Building and any Building Common Areas that provide to or for all or any portion of the Building or any of the Building Common Areas any electrical, gas, plumbing, HVAC, water or wastewater services, or any other utility services, or (b) any other mechanical, communications, digital, security, access or life safety systems or facilities serving the Building and the Building Common Areas (all of the systems and facilities referenced in the foregoing clauses (a) and (b) are referred to collectively as “Building Systems”). Section 6.02 Intentionally Omitted. Section 6.03 Interruption of Building Services. Tenant shall have no claim of constructive eviction, or be entitled to any abatement or reduction of Rent, or otherwise be relieved from any other obligation of Tenant under this Lease by reason of, nor shall Landlord be liable to Tenant on account of, any disconnection, interruption, interference, suspension, limitation, restriction, reduction or failure of any utility or other services to the Land, the Premises, the Building, or any Building Common Areas, or any failure, inferior performance, or inadequacy of any Building Systems to the extent that the same is beyond the reasonable control of Landlord and Landlord has promptly begun and is diligently pursuing the remedy of such disconnection, interruption, interference, suspension, limitation, restriction, reduction or failure. Notwithstanding the foregoing nor any other provision of this Lease to the contrary, if Landlord fails to provide any of the services necessary for Tenant’s use and enjoyment of the Premises for the Permitted Use, including, without limitation, providing HVAC or electrical service, for a period of seven (7) consecutive calendar days after Landlord’s receipt of written notice from Tenant, then Base Rent shall be abated until such time as Landlord provides such services to the Premises (and, for the avoidance of doubt, if such failure continued for a period of thirty (30) days, such failure would constitute a default by Landlord hereunder). Section 6.04 Designation of Property Manager. Landlord reserves the right at any time and from time to time to designate any person or entity, including an Affiliate of Landlord, to act as the property manager for the Building (the “Property Manager”). Landlord shall give la-1342702 29 Tenant written notice of the name and address of any Property Manager as soon as reasonably practicable following the designation of such Property Manager. Tenant acknowledges and agrees that the function of the Property Manager will be to manage the ongoing day-to-day operation of the Building and the Building Common Areas on such terms and conditions as are set forth in a property management agreement to be entered into between Landlord and the Property Manager. ARTICLE VII TAXES ON TENANT PERSONAL PROPERTY AND LEASEHOLD IMPROVEMENTS Tenant shall be liable for, and shall pay in full not later than ten (10) days prior to delinquency, any and all property, sales, use or similar taxes levied against (a) any personal property or trade fixtures owned or leased, or placed or used, by Tenant in, on or about the Premises, and (b) any specialized leasehold or tenant improvements installed by or for Tenant in, on or about the Premises (which shall mean any leasehold or tenant improvements which are separately taxed, including, without limitation, Landlord’s Work, other than demising walls, partitions, and normal office space leasehold or tenant improvements customarily provided to tenants of the Building for general office purposes) (collectively, “Tenant Taxes”). If any Tenant Taxes are levied against Landlord or any of Landlord’s property, or if the presence of any personal property, trade fixtures or specialized leasehold or tenant improvements installed by or for Tenant in, on or about the Premises (other than improvements that Tenant is not required to remove upon the expiration or earlier termination of this Lease) increases the assessed value of the Premises or the Building (in any such instance as reasonably determined by Landlord based on the applicable tax billing or other information received from the applicable taxing authority), then Tenant shall be obligated to pay such Tenant Taxes or the amount of any increased taxes payable by Landlord attributable to any such increase in assessed value, as applicable. Tenant shall make any such payment directly to the applicable taxing authorities within five (5) days after written demand from Landlord; or if Landlord has previously paid to the taxing authorities any portion of the amount so owing by Tenant (whether or not such payment is made under protest), then Tenant shall reimburse Landlord for such payment made by Landlord within five (5) days after written demand from Landlord. If Tenant or Landlord pays any Tenant Taxes under protest, Tenant shall have the right, in the name of Landlord (if required by the procedural requirements applicable to such payment) and in any event with Landlord’s cooperation, but at the sole cost, expense and risk of Tenant, to commence a proceeding in any court or other tribunal of competent jurisdiction to recover the amount of such Tenant Taxes so paid under protest, and any amount so recovered shall belong to Tenant. Tenant agrees to indemnify, defend (with legal counsel reasonably approved by Landlord), and hold Landlord and all Landlord Parties harmless from and against any and all Losses arising directly or indirectly, in whole or in part, from or in connection with any proceeding commenced by Tenant to recover any Tenant Taxes paid under protest. la-1342702 30 ARTICLE VIII INSURANCE AND INDEMNIFICATION Section 8.01 Tenant’s Insurance. Tenant shall obtain and maintain, or cause to be obtained and maintained, as applicable, at Tenant’s sole cost and expense (except as otherwise expressly permitted below), all insurance coverage specified in this Section 8.01. (a) General Liability Insurance Coverage. Tenant shall obtain and maintain in full force and effect at all times during the applicable Insuring Period (as defined in subparagraph (h) below) all policies of liability insurance required by the provisions of Schedule 1 (Tenant Liability Insurance Requirements) attached to this Lease. (b) Property Damage and Income Replacement Insurance Coverage. Tenant shall obtain and maintain in full force and effect at all times during the applicable Insuring Period all policies of property damage insurance and income replacement insurance required by the provisions of Schedule 2 (Tenant Property Damage and Income Replacement Insurance Requirements) attached to this Lease. (c) Tenant’s Contractors. Tenant shall cause all persons and entities performing for or on behalf of Tenant any construction, installation or substantial repair work on or affecting the Premises or any other portion of the Building or Building Common Areas (including work on any Alterations, but excluding in connection with the Landlord’s Work), whether in the capacity of a direct contractor with Tenant or a subcontractor, to obtain and maintain all policies of insurance required by the provisions of Schedule 3 (Tenant Contractor Insurance Requirements). Such policies shall be provided at the sole cost and expense of Tenant or the applicable contractor or subcontractor, and shall be maintained in effect during the applicable Insuring Period. (d) Additional Insured Status. Landlord, and any Landlord Parties designated from time to time by no less than thirty (30) days prior written notice from Landlord to Tenant, shall be named as additional insureds on each policy referred to in subparagraphs (a), (b) and (c) above, pursuant to one or more endorsements meeting the requirements set forth in Schedule 1, Schedule 2, and Schedule 3, as applicable. (e) Evidence of Insurance. Tenant’s compliance with the insurance coverage requirements referred to in this Section 8.01 shall be evidenced by the delivery to Landlord of a certificate of insurance evidencing the above. For the policies referred to in subparagraphs (a) and (b) above, such delivery shall be made by Tenant within ten (10) days following the Lease Date and in any event prior to any physical entry by Tenant or any Tenant Party onto the Premises. For the policies referred to in subparagraph (c) above, such delivery shall be made by Tenant not later than five (5) business days prior to the date on which any construction, installation or substantial repair work on or affecting the Premises or any other portion of the Building or the Building Common Areas is to be commenced by or for Tenant. Tenant shall deliver to Landlord certificates for renewal policies within thirty (30) days after renewal of each policy referred to above. la-1342702 31 (f) Intentionally Deleted. (g) Landlord’s Policies Not Affected. All insurance coverage which Tenant is required to maintain or cause to be maintained pursuant to this Lease shall be primary to and shall not seek contribution from or by any insurance carried by or available to Landlord or any Landlord Party. The policies of insurance referred to in subparagraphs (a), (b) and (c) above shall be endorsed to provide such primary and noncontributory liability in favor of Landlord and any other additional insureds. Any liability insurance coverage that may be maintained by Landlord or any Landlord Party shall be in excess of and secondary to the policies of insurance referred to in subparagraphs (a), (b) and (c) above, and shall not be called upon to contribute with any insurance required by this Lease to be provided by Tenant or any contractor or subcontractor of Tenant. (h) Period of Insurance Coverage. All policies of insurance referred to in subparagraphs (a), (b) and (c) above, including all required endorsements thereto, shall be maintained in full force and effect for the following respective periods (each an “Insuring Period”): (i) in the case of the policies of insurance referred to in subparagraphs (a) and (b) above, for a period equal to the greater of (A) the full Term of this Lease, (B) any period of holding over or possession of the Premises by Tenant under this Lease following the Termination Date, or (C) any period during which Tenant shall be obligated to Landlord or any Landlord Party which is an additional insured for any bodily injury, property damage, or other liability insurable under any one or more of such policies of insurance; and (ii) in the case of the policies of insurance referred to in subparagraph (c) above, for the full period during which Landlord or any third party would be permitted under applicable statutes of limitation to commence an action or proceeding by reason of the occurrence of any bodily injury or property damage attributable to or arising out of any construction, installation or repair work performed by the applicable contractor or subcontractor, including both ongoing operations and completed operations. The obligations of Tenant under this subparagraph (h) shall survive the expiration or other termination of this Lease. (i) Notifications. Tenant shall provide Landlord with prompt written notice of the occurrence of any event or condition on or affecting the Premises or any other area within the Building or any Building Common Areas of which Tenant has knowledge without duty of inquiry (and without any liability arising from any failure to so provide such notice), or any act or omission of Tenant or any Tenant Party on or affecting the Premises or any other portion of the Building or any Building Common Areas of which Tenant has knowledge, which in either such instance could (i) result in a claim being made against Landlord that would be covered by any insurance policy required to be maintained pursuant to the provisions of this Section 8.01, or (ii) cause the loss, invalidation, or reduction of any insurance coverage, or an increase in the premium payable for such coverage, whether the applicable policy is carried by Tenant or Landlord, with respect to the Land, the Premises, the Building, or the Building Common Areas. (j) Policy Deductibles. Any deductibles that are payable by Tenant under the terms of any insurance policies maintained by Tenant as required by this Lease shall be reasonable in relation to the nature of the insured risk and the financial resources of Tenant, and shall be reasonably satisfactory to Landlord based on advice or input received from a reputable insurance broker, agent or advisor. la-1342702 32 (k) Single Policies. In Tenant’s discretion, such insurance may be carried by Tenant under one or more policies that also insure any other assets or properties owned or leased by Tenant, wherever located. Section 8.02 Landlord’s Insurance. Throughout the Term of this Lease, Landlord shall purchase and keep in force the following insurance for the Building and the Land, which insurance shall be maintained on a basis consistent with Landlord’s standard insurance practices for other comparable properties owned or operated by Landlord. (a) Property Damage Insurance. Landlord shall maintain one or more policies of property damage insurance under a Causes of Loss—Special Form policy which on a collective basis will cover physical loss or damage to the Building and the Building Common Areas, including all Landlord-owned equipment and other personal property serving the Building or the Building Common Areas, for an amount equal to one hundred percent (100%) of the replacement cost of the covered property on an agreed value basis, exclusive of foundations, footings and other below ground improvements. In Landlord’s discretion, such insurance may be carried by Landlord under one or more policies that also insure other any other real property interests owned or ground leased by Landlord, wherever located. In addition, Landlord shall maintain appropriate property damage insurance coverage with respect to Landlord’s Work consistent with Landlord’s standard practices. Any property damage policies maintained by Landlord (i) shall be issued on an ISO CP 10 30 form of policy (or equivalent form acceptable to Landlord), (ii) shall name as insureds or additional insureds such persons or entities as Landlord may designate, and (iii) shall include a waiver of subrogation by the insurer as to Landlord, as well as Tenant (provided that Tenant’s insurance policies that are maintained pursuant to this Article VIII shall contain a valid corresponding waiver of subrogation in favor of Landlord and any Landlord Parties designated by Landlord in accordance with the requirements of this Article VIII), and such other persons or entities as Landlord may designate. Landlord shall determine the amount of any deductibles payable under any such policy maintained by Landlord, and the extent to which any additional coverage (including Business Income and Extra Expense, Rental Value, Ordinance or Law, Terrorism, Flood and Earthquake) should be included in the applicable policy. (b) Commercial General Liability. Landlord shall maintain one or more policies of commercial general liability insurance, issued on an occurrence basis, in such amount (inclusive of any umbrella or excess liability coverage) as Landlord may reasonably determine from time to time is appropriate to cover the potential liability of Landlord given the nature of the Building and its operations, including any rental, leasing and construction activities carried on by Landlord or its agents, but in all such events not less than Two Million Dollars ($2,000,000) per occurrence. Such determination may be made by Landlord based in whole or in part on advice or input from a reputable insurance broker, agent or advisor selected by Landlord. Any such insurance shall be issued on the current edition of ISO CG 00 01, or an equivalent form of policy acceptable to Landlord. Any such policy shall be endorsed to include a waiver of subrogation by the insurer as to all Landlord Parties and such other persons or entities as Landlord may designate, including without limitation, Tenant to the extent permitted under such policies, as well as blanket additional insured status as required by contract. la-1342702 33 The cost of all insurance carried by Landlord, as well as Landlord’s share of any deductibles or self-insured retentions payable under the applicable insurance policies, to the extent allocable (as reasonably determined by Landlord) to the Building and the Building Common Areas (but excluding in all cases any insurance maintained by Landlord covering or concerning its operations as an occupant of the Building), shall be included as part of the Building Expenses, as provided in Section 3.02. Without limiting the provisions of this Section 8.02, if the premium cost payable by Landlord for any of Landlord’s insurance coverage for the Building or the Building Common Areas is increased due to Tenant’s specific use of the Premises (for the avoidance of doubt, excluding mere occupancy and office uses) reasonable wear and tear excepted, or due to any other negligence or willful misconduct of Tenant or any Tenant Party, or due to any Alterations made by or for Tenant, Tenant agrees to pay to Landlord the full amount of such increased premium cost within five (5) days after receipt of written notice from Landlord that includes a copy of the applicable invoice. Except as otherwise expressly provided hereunder, in no event shall Tenant have any interest in, or any right to receive or participate in, the proceeds of any insurance procured by Landlord for or with respect to the Land, the Premises, the Building, or the Building Common Areas. Section 8.03 Mutual Waiver of Subrogation. Each party to this Lease hereby waives as against the other party, and any officers, directors, managers, management personnel, Equity Owners, and employees of such other party, and any mortgagees of such other party which hold any lien on or security interest in the Premises (collectively, including such other party, “Subrogation Beneficiaries”), any and all claims and rights of recovery against all Subrogation Beneficiaries for any loss or damage to the waiving party’s property or the property of others under its control, and for any bodily injury or personal injury, arising from any cause insured against under any policies of insurance which are carried by the waiving party, provided that such a waiver of subrogation is not expressly prohibited by the applicable policy and is permitted by Applicable Law. Section 8.04 Release of Landlord; Indemnification by Tenant. Except as otherwise expressly provided herein, including without limitation Section 8.05, as between Landlord and Tenant, Tenant hereby assumes full liability and responsibility with respect to (1) the occurrence of any loss, damage, bodily or personal injury in, on or about the Premises caused by Tenant or a Tenant Party, and (2) the negligence or willful misconduct of Tenant or any Tenant Parties relating to or affecting the Premises or any other portion of the Building or the Land. (a) Release of Landlord. Subject to the limitations provided in subparagraph (c) below, and subject in all respects to the provisions of Section 8.05 and Article XIX, and without affecting in any way Tenant’s abatement rights expressly set forth herein, neither Landlord nor any Landlord Party shall be liable to Tenant or any Tenant Party for or in respect of, and Tenant (for itself and for all Tenant Parties) hereby irrevocably and unconditionally releases and waives all claims against Landlord and all Landlord Parties for and with respect to, any injury to or death of any person, and any and all damage, loss or destruction to or of any property, that may occur or arise in, on or about the Premises, the Building, or any Building Common Areas, from or by reason of any cause whatsoever, including any malfunction of any Building Systems or any failure to provide, or any deficiency in, any services to or for the Premises, the Land, the Building, or the Building Common Areas, as well as any leakage, discharge or emission of any type or character from, or any condition of any type or nature la-1342702 34 existing on, within or affecting the roof, walls, windows, doors, ceilings, basements, or any other portion of the Premises, the Building, or the Building Common Areas. (b) Indemnification of Landlord. Without limiting any other provisions of this Lease that provide for Tenant’s indemnification of Landlord, including the provisions of Section 1.06, but subject to the limitations expressly provided in subparagraph (c) below and elsewhere in this Lease, Tenant shall indemnify, defend (with legal counsel reasonably approved by Landlord), and hold Landlord and all Landlord Parties harmless from and against (i) any and all Losses arising or occurring, directly or indirectly, in whole or in part, in, on or about the Premises caused by Tenant or a Tenant Party, and, and (ii) any and all Losses arising or occurring, directly or indirectly, in whole or in part, in, on or about the Land, the Building, or the Building Common Areas, to the extent attributable, directly or indirectly, in whole or in part, to the negligence or willful misconduct of Tenant or any Tenant Party. (c) Limitations on Release and Indemnification of Landlord. Notwithstanding the foregoing provisions of this Section 8.03, the foregoing release and waiver of claims provided in subparagraph (a) above, and the foregoing indemnification against Losses provided in subparagraph (b) above, shall not be applicable if and to the extent that the injury, death, damage, loss or destruction to which such release and waiver relates, or the Losses covered by the foregoing indemnification obligation, shall be directly caused by the gross negligence or willful misconduct of a Landlord Party. As used in this Lease, the term “gross negligence” shall mean any act or omission which is taken or made with reckless disregard for the consequences of such act or omission, and under circumstances where the person or entity taking such action or making such omission either knew, or could reasonably have been expected to know, that a significant injury, loss or other harm would be likely to result from such act or omission. Section 8.05 Indemnification by Landlord. la-1342702 35 ARTICLE IX SPECIAL COVENANTS OF TENANT Section 9.01 Compliance with Laws. Tenant, at its sole cost and expense, shall use and occupy the Premises, the Land, the Building and the Building Common Areas in compliance with (a) all federal, state and local laws, statutes, codes, ordinances, rules, regulations and requirements, and any administrative or judicial judgments, orders or directives, that are now or hereafter in effect governing, relating to, or otherwise applicable to the Land or all or any part of the Building, including any applicable laws relating to accessibility, health and safety, employment, energy use or consumption, and environmental protection and conditions (collectively, “Applicable Law,”), and (b) the requirements of any board of fire underwriters, insurance services offices, or other similar body now or hereafter constituted relating to all or any portion of the Premises (all of the forgoing are referred to collectively herein as “Legal Requirements”). Notwithstanding the foregoing, Tenant may contest by appropriate legal proceedings the validity of, or the application to Tenant or the Premises of, any Legal Requirements, provided that (i) Tenant shall provide written notice to Landlord of Tenant’s election to contest the application of any Legal Requirements, (ii) any such proceedings shall be undertaken and prosecuted at Tenant’s sole cost and expense, shall be commenced by Tenant promptly following Tenant’s knowledge of any violation or alleged violation by Tenant of any Legal Requirements, shall be diligently pursued by Tenant, and shall be finally concluded before the date upon which any non-compliance with any Legal Requirements could result in any limitations, restrictions, liens, forfeitures, charges or other adverse effects upon Landlord or any portion of the Land, the Building, or the Building Common Areas, (iii) no Event of Default shall have occurred and be continuing, (iv) such proceedings will operate to prevent the enforcement of all Legal Requirements so contested during the pendency of such proceedings, including during any appeal therefrom, (v) Landlord will not be subject to any claim or liability of any type or nature as a result of or in connection with such proceedings, and (vi) such proceedings will not adversely affect any other tenant or occupant of the Building, or give any such other tenant or occupant any right to terminate its lease or reduce or limit any of its obligations owing to Landlord under such tenant’s lease. Any such proceedings commenced by Tenant shall be prosecuted to final conclusion or settlement diligently and with continuity, and Tenant shall indemnify, defend (with legal counsel reasonably approved by Landlord), and hold Landlord and all Landlord Parties harmless from and against any and all Losses that may arise directly or indirectly, in whole or in part, from any failure of Tenant to comply with or perform any Legal Requirements. Section 9.02 Liens. Tenant shall keep the Premises, the Land, and the Building free from any and all liens, charges and other encumbrances arising out of or with respect to any work performed, materials furnished or obligations incurred by or on behalf of Tenant (collectively, “Liens”), as well as any claims that could ripen into any Lien, and Tenant shall give Landlord prompt written notice of the existence of any such Liens or claims. In the event that Tenant fails, within fifteen (15) days following written notice of the imposition of any Lien, or the assertion of any claim that could ripen into a Lien, to cause such Lien, at Tenant’s cost and expense, to be fully released of record or such claim to be withdrawn, discharged or abandoned, as applicable, Landlord shall have, in addition to and without limiting any other rights or remedies provided in this Lease, or otherwise available at law or in equity, the right, but not the la-1342702 36 obligation, to cause such Lien to be released, or such claim to be withdrawn, discharged or abandoned, as applicable, by such means as Landlord shall deem proper, including payment of any claim relating to or underpinning any Lien without any obligation on the part of Landlord to verify or substantiate the validity or amount of such claim or Lien; provided that Landlord shall give Tenant not less than two (2) business days’ notice of Landlord’s intent to take any of such actions. Any and all sums paid by Landlord for such purpose, and all costs and expenses incurred by Landlord in connection therewith (including reasonable attorneys’ fees and disbursements), shall be payable to Landlord by Tenant as Additional Rent within five (5) days following written demand. Section 9.03 Assignment and Subletting. (a) General Restrictions. Tenant shall not (i) sell, convey, assign, encumber, pledge, hypothecate, or otherwise transfer, by any means whatsoever (whether occurring voluntarily or involuntarily, by operation of law or otherwise), the leasehold estate under this Lease, or any portion thereof or interest therein, or (ii) sublet the Premises, or any part thereof, or any right or privilege appurtenant thereto, or permit any other person or entity (and officers and employees of Tenant conducting Tenant’s business on or from the Premises) to occupy (on more than a transient basis) the Premises, or any portion thereof (collectively, a “Transfer”), without, in each instance, first obtaining the prior written consent of Landlord; provided, however, that a license granted to a Permitted Licensee in accordance with the provisions set forth in Section 9.03(d) below shall not constitute a “Transfer” for purposes of this Lease. For purposes of the foregoing provision, if Tenant is a corporation, limited liability company, partnership or other entity, each of the following shall be deemed to constitute a Transfer, and shall require the prior written consent of Landlord as provided above: (i) a transfer of any percentage interest of the stock or beneficial ownership interest, as the case may be, of Tenant (at any level and however accomplished, whether in a single transaction or in a series of related or unrelated transactions), (ii) a transfer by operation of law or otherwise, of Tenant’s interest in this Lease, and (iii) any increase in the amount of issued or outstanding shares of capital stock of any corporate Tenant, or partnership interests of any partnership Tenant, or membership interests of any limited liability company Tenant (however accomplished, whether in a single transaction or in a series of related or unrelated transactions), with the result in either (i), (ii) or (iii) that the Tenant shall no longer be controlled by the beneficial and record owners of the capital stock, partnership interests or membership interests, as applicable, as of the Lease Date. The consent of Landlord to any one or more Transfers shall not be deemed to constitute consent to any other or subsequent Transfer. (b) Unpermitted Transfers. Any Transfer that is made, or purported to be made, by Tenant without first obtaining Landlord’s written consent as provided in this Section 9.03 shall be void and shall constitute an immediate Event of Default under this Lease, without the requirement for any additional notice to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default, and Landlord may thereupon exercise any and all rights and remedies available to Landlord for such Event of Default. If this Lease be assigned, whether or not in violation of the provisions of this Lease, Landlord may, after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the assignee. If the Premises or any part thereof are sublet or used or occupied by anybody other than Tenant or a Permitted Licensee, whether or not in violation of this Lease, Landlord may, la-1342702 37 after default by Tenant, and expiration of Tenant’s time to cure such default, collect rent from the subtenant or occupant. In either event, Landlord may apply the net amount collected to the Rent and Additional Rent, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of any of the provisions of Section 9.03(a) above, or the acceptance of the assignee, subtenant or occupant as tenant, or as a release of Tenant from the performance by Tenant of Tenant’s obligations under this Lease. (c) Landlord’s Costs. Tenant agrees to pay, as Additional Rent, all reasonable out-of-pocket costs and expenses incurred by Landlord (including reasonable fees and disbursements of any attorneys, accountants or other advisors) in connection with any consent requested by Tenant or in reviewing any proposed Transfer. (d) Permitted Licensees. Provided that no Event of Default exists, and upon reasonable prior written notice to Landlord, Tenant shall be permitted to grant third-parties that are collaborating with Tenant in connection with the Permitted Uses (the “Permitted Licensees”) a limited license to enter upon and utilize the Premises in accordance with, and subject to, the terms of this Lease. Every Permitted Licensee, as a condition to entering the Premises, shall acknowledge in writing (which acknowledgment shall be in form and substance identical to the form attached as Exhibit I) that (i) the Permitted Licensee has no possessory rights in the Premises in the event of an Event of Default by Tenant hereunder, (ii) the Permitted Licensee has a limited revocable license to use the Premises for the Permitted Use and such use does not constitute a sublease of the Premises, (iii) Landlord shall have no obligations to the Permitted Licensee pursuant to the Permitted Licensee’s use of the Premises or under the acknowledgment executed by Permitted Licensee, and such Permitted Licensee shall have no recourse against Landlord whatsoever on account of any failure by Landlord to perform any of its obligations under this Lease, (iv) if this Lease is terminated for any reason, the Permitted Licensee’s license to use the Premises will automatically terminate without any action or notice by Landlord, and (v) Permitted Licensee’s use of the Premises and the Building Common Areas is expressly subject to all of the terms, covenants, conditions and obligations on Tenant’s part to be observed and performed under this Lease, including Tenant’s obligation to indemnify Landlord to the extent and as set forth herein. Tenant shall require, and certify to Landlord, that the Permitted Licensee’s use of the Premises and conduct of operations in the Premises is in compliance with all Legal Requirements. Tenant shall indemnify and hold Landlord harmless from and against Landlord’s out-of-pocket costs in evicting any Permitted Licensees, including without limitation reasonable attorneys’ fees and court costs. Any violation of any provision of this Lease by a Permitted Licensee shall be deemed to be a default of Tenant under such provision. Section 9.04 Subordination to Mortgages and Ground Leases. In the event that Landlord’s interest in the Land, the Premises, the Building, the Building Common Areas, or any part thereof, is now or hereafter becomes encumbered by one or more mortgages or deeds of trust (collectively, a “Mortgage”) securing any obligation of Landlord to one or more creditors (collectively, “Creditor”), or in the event that Landlord now or hereafter holds a ground leasehold interest in all or any portion of the Land pursuant to a ground lease naming Landlord or any predecessor-in-interest as the lessee (a “Ground Lease”), then Tenant agrees that this Lease, Tenant’s leasehold estate, and all rights and interests of Tenant under this Lease, shall be subject and subordinate at all times to any such Mortgage and the rights and interests of the la-1342702 38 Creditor holding such Mortgage, and to any such Ground Lease and the rights and interests of the ground lessor thereunder (“Ground Lessor”), respectively, provided that such Creditor or Ground Lessor enters into a written agreement (“SNDA”) on such Creditor or Ground Lessor’s customary form which is otherwise in a form reasonably acceptable to Landlord and Tenant, provided in all instances that such SNDA confirms (i) the subordination of this Lease and Tenant’s leasehold estate, rights and interests hereunder, to the lien of such Mortgage or to such Ground Lease, as applicable, and (ii) that in the event of any foreclosure (or conveyance in lieu of foreclosure) under any Mortgage or any termination of any Ground Lease (herein, collectively, a “Termination Event”), (A) this Lease shall be and remain in full force and effect and be recognized by such Creditor or Ground Lessor and their respective Successor Owners (hereinafter defined) notwithstanding any such Termination Event for the remaining Term of this Lease provided that no Event of Default then exists, (B) Tenant shall attorn to and recognize as Landlord under this Lease, the person or entity acquiring title to the Land pursuant to the Termination Event (herein, a “Successor Owner”), and (C) Tenant shall continue to pay all Rent and perform all other obligations of Tenant under this Lease to and for the benefit of the Successor Owner. The SNDA shall not require Tenant to materially amend the terms of this Lease (provided, for the avoidance of doubt, that any amendment resulting in a direct or indirect increase in the financial obligations of Tenant under this Lease shall, in all instances, be conclusively deemed material), or waive any claims against Landlord, Creditor, Ground Lessor, or Successor Owner, as applicable (excluding claims against Landlord for the construction of Landlord’s Work). Section 9.05 Entry by Landlord. Landlord reserves the right, from time to time upon not less than twenty-four (24) hours’ prior written notice to Tenant (except in emergencies, for which no prior notice will be required), which notice shall state the reason for entry and, if known by Landlord at the time of notice, the person or persons entering the Premises, for itself and its agents and contractors, including the Property Manager, to enter upon the Premises (a) to make inspections, (b) to perform any services or make any repairs permitted or required to be performed or made by Landlord under this Lease or pursuant to Legal Requirements, to perform any other obligations of Landlord under this Lease, or to facilitate the performance of any services or other obligations of Landlord to any other tenants or occupants of the Building, (c) to deal with any hazardous, dangerous or other conditions in, on or affecting the Premises, the Land, the Building, or the Building Common Areas, (d) to show the Premises to prospective purchasers or mortgagees, or (during the final six (6) months of the Term of this Lease) to show the Premises to other prospective tenants, and (e) to post notices of non-responsibility or any other notices permitted to be placed by Landlord upon the Premises pursuant to any provisions of this Lease or Legal Requirements; provided, however, that other than in connection with emergencies or as necessary to perform any obligation of Landlord under this Lease or to perform maintenance and repair work in the isolated room on the fourth (4th) floor (which contains Landlord’s equipment servicing the Landlord’s demised space in the Building), each of the foregoing as determined by Landlord in its reasonable discretion, Landlord shall not enter the Premises more than five (5) times in any calendar year without the prior written consent of Tenant, which consent shall not be unreasonably withheld, conditioned, or delayed. Any such entry or activities on the Premises by Landlord, or any agent or contractor of Landlord, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or a detainer of the Premises, or an eviction, actual or constructive, of Tenant or any other person or entity from the Premises or any portion thereof, or entitle Tenant to any abatement or reduction la-1342702 39 of Rent except as otherwise expressly provided herein, or give Tenant any right to terminate this Lease, or otherwise affect any obligations of Tenant under this Lease. Landlord and Tenant agree that, due to the sensitive nature of Tenant’s Permitted Use, Landlord shall ensure that all persons entering the Premises at the request or at the behest of Landlord or a Landlord Party shall (x) have a picture ID badge or pass, and (y) been previously reviewed and approved by Tenant for compliance with ITAR or other similar federal or state laws. Section 9.06 Environmental Provisions. (a) Defined Terms. As used in this Lease: (i) “Hazardous Materials” shall mean and include any and all “hazardous substances” (as defined in the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. Sec. 9601 et seq., as amended from time to time), “hazardous wastes” (as defined in the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. Sec. 6902 et seq., as amended from time to time), petroleum and petroleum-related products, by-products, or derivatives, mold (and precursors to mold), biotoxic or biohazardous materials or waste (including medical waste), radon, radioactive material or waste, asbestos, and any other pollutant, contaminant, or hazardous, dangerous or toxic waste, chemical, material, gas, liquid, or substance within the meaning of any Environmental Laws (as defined below) relating to or imposing any liability or obligation, or any standards of conduct, with respect to any hazardous, toxic, or dangerous waste, chemical, material, gas, liquid, or substance, or any other material or substance of any nature which is subject to governmental regulation by reason of its adverse effect or potential adverse effect on human health or safety or the environment. (ii) “Hazardous Materials Use” shall mean the generation, presence, existence, use, handling, storage, release, transport, treatment, deposit, discharge or disposition of any Hazardous Materials (including any Permitted Hazardous Materials) on, in, under or about the Land, the Premises, the Building, and the Building Common Areas. (iii) “Environmental Laws” shall mean any and all present and future federal, state and local laws, codes, ordinances, rules and regulations (including any amendments or supplements thereto, and any administrative or judicial interpretations thereof) concerning or relating to the environment or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, medical, biological, infectious, toxic, hazardous or similar substances or wastes into the environment including, without limitation ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, medical, biological, infectious, toxic, hazardous or similar substances or wastes or the cleanup or other remediation thereof. (b) Covenants of Tenant. (i) Tenant shall obtain Landlord’s prior written consent, which may be given or withheld in Landlord’s sole and absolute discretion, before commencing, engaging in, or otherwise permitting to occur, any Hazardous Materials Activities (as defined below) on or la-1342702 40 within any portion of the Premises, or on or within any portion of the Land, the Building, and the Building Common Areas which is at the time being used or occupied by Tenant or any Tenant Party, provided that Landlord’s consent shall not be required for (a) Tenant’s use, in full compliance with all applicable Environmental Laws, of those Hazardous Materials set forth on Exhibit H attached hereto, and (b) the normal use, in full compliance with all applicable Environmental Laws, of customary household and office supplies commonly employed in connection with general office uses and kept on the Premises only in limited quantities ((a) and (b) collectively, the “Permitted Hazardous Materials”). As used in this Lease, the term “Hazardous Materials Activity(ies)” shall mean any Hazardous Materials Use on, in, under, at or about any portion of the Premises, the Land, the Building, and the Building Common Areas by Tenant or by any Tenant Party. (ii) Tenant agrees that any and all Hazardous Materials Activities (A) shall be conducted and carried out, at Tenant’s cost and expense, in strict and full compliance with all applicable Environmental Laws, the requirements of all governmental authorities having jurisdiction over or with respect to the subject Hazardous Materials, and any insurance policy requirements applicable to the Premises or Tenant (provided that, with respect to any such insurance policy maintained by Landlord, Landlord has provided Tenant with prior written notice thereof), and only after any and all required governmental permits and approvals have been obtained by Tenant, at Tenant’s cost and expense, for all such Hazardous Materials Activities, and (B) shall in no event result in any contamination of any portion of the Premises, the Land, the Building, or the Building Common Areas. (iii) Tenant shall not under any circumstances discharge or release of, or permit any Tenant Party to discharge or release, any Hazardous Materials onto any portion of the Land or into any plumbing system, sewer or septic system, water features or ponds, and storm drains or drainage areas on or serving the Premises, the Land, the Building, or the Building Common Areas. Tenant shall provide Landlord with immediate written notice of any spill, release or other discharge of any Hazardous Materials (other than Permitted Hazardous Materials) on or about any portion of the Premises during the Term which is known to Tenant. Tenant agrees to provide Landlord with immediate written notice of any violation of Environmental Laws in connection with any Hazardous Materials Activities which is caused by Tenant or a Tenant Party which would reasonably be discoverable in the exercise by Tenant of ordinary diligence in connection with the carrying out of such Hazardous Materials Activities. (c) Mold Prevention. Tenant acknowledges the necessity of adopting and enforcing good maintenance practices to identify, prevent, and rectify potential sources of mold or fungus contamination in or about the Premises, including maintaining adequate ventilation and exercising vigilant moisture control on and about the Premises (collectively, “Mold Prevention Practices”). Without limiting any obligations of Tenant relating to maintenance and repair of the Premises as set forth in this Lease, Tenant will, at its cost and expense, maintain at all times during the Term of this Lease commercially reasonable Mold Prevention Practices. Tenant shall promptly notify Landlord in writing if Tenant has knowledge that any visible mold, black mold, fungus growth or similar contamination, shall exist in the Premises, and if such mold has been proximately caused by the actions or omissions of Tenant or a Tenant Party, shall promptly retain, at Tenant’s cost and expense, a qualified environmental consultant and contractor to inspect (and conduct appropriate tests on) the Premises and areas immediately la-1342702 41 adjacent to the Premises to determine whether any such mold, fungus or similar contamination, are present in, at, on or about the Premises. If such inspection reveals the presence of any actual mold, fungus or similar contamination proximately caused by the actions or omission of Tenant or a Tenant Party, Tenant shall promptly undertake, at Tenant’s cost and expense, any and all remedial action required to completely and fully eliminate, or (if permitted by Applicable Law) otherwise thoroughly remediate (by such means as permanent neutralization, containment and encapsulation), all such mold, fungus or other similar contamination (collectively, “Mold Elimination Work”). Any and all Mold Elimination Work shall be carried out and completed, at Tenant’s cost and expense, in accordance with all applicable Environmental Laws, using best environmental practices, including obtaining all permits and approvals required by any governmental authority relating to such work. Upon completion of any such Mold Elimination Work, Tenant shall provide to Landlord a final report of its consultant and contractor showing that all mold, fungus, and similar contamination has been eliminated or remediated as provided above in full compliance with all applicable Environmental Laws. (d) Hazardous Materials Removal and Remediation upon Lease Termination. Prior to the Termination Date, Tenant, at its sole cost and expense, shall (i) properly remove from the Land, the Premises, the Building, and the Building Common Areas, all Hazardous Materials which may have come to be located on or about the Premises, the Building, the Land, or the Building Common Areas, in connection with or as a result of any Hazardous Materials Activities, and (ii) fully comply with and complete all facility closure requirements contained in or imposed under any applicable Environmental Laws with respect to any Hazardous Materials Activities, including (A) properly restoring and repairing the Land, the Premises, the Building, and the Building Common Areas, to the extent damaged or disturbed in connection with completing any such closure activities, and (B) obtaining from each federal, state and local environmental or health and safety office or department having jurisdiction over any such closure requirements, a written concurrence of such governmental authority that closure has been completed in compliance with all applicable Environmental Laws. Tenant shall promptly provide Landlord with true and complete copies of any and all claims made or asserted, notices received or given, work plans and related data prepared or generated, and reports prepared, received or submitted, in connection with any such closure activities. (e) Rights and Obligations of Landlord. (i) Notwithstanding the foregoing provisions of this Section 9.06, Tenant shall not be liable or responsible to Landlord for any Hazardous Materials situated at, on, within, under or about the Land or the Building, including without limitation the Premises, by reason of any action or omission of any person, including without limitation Landlord, any Landlord Party, or any of their respective employees, agents, representatives or invitees, other than Tenant and the Tenant Parties (collectively, a “Third Party Responsibility”). As between Landlord and Tenant, and without affecting any rights that Landlord may have against any third party, Landlord shall be responsible for taking, or causing to be taken, any and all remedial and other action that may be required under any Environmental Laws on account of any Hazardous Materials situated at, on, within, under or about the Land or the Building that are a Third Party Responsibility. Any costs and expenses incurred by Landlord in connection with any such remedial or other actions shall not be included as part of Building Expenses. Without limiting the foregoing, Tenant shall have no obligation to remove or remediate, or otherwise cure any la-1342702 42 violation of Environmental Laws with respect to, any Hazardous Materials that were brought onto the Premises by Landlord (other than as necessary for the performance of Landlord’s Work), or that existed in or on the Premises on the Commencement Date and were not brought onto or introduced to the Premises by Tenant or any Tenant Party. (ii) If Landlord reasonably determines that any portion of the Land, the Building, or the Building Common Areas has become (or may have become) contaminated or otherwise requires (or may require) any remediation or other corrective action to be taken as a result of any Hazardous Materials Activities, Landlord may, in addition to and without limiting any other rights it may have under this Lease or under any Environmental Laws, enter upon the Premises or any other area of the Land, the Building, or the Building Common Areas, and conduct such inspections, investigations, tests, sampling and analyses (collectively, “Investigations”) as Landlord may deem prudent in its sole and absolute discretion, including obtaining and analyzing samples of soil and groundwater, for the purpose of determining whether any contamination may exist or whether any remediation or other corrective action may be required. In the event that any such Investigations disclose any contamination, or any need for remediation or other corrective action, which is attributable to any Hazardous Materials Activities, Tenant shall reimburse Landlord on demand for any and all costs of such Investigations (including the reasonable fees and costs of any consultants, contractors, attorneys or other experts that Landlord may retain in connection therewith), as well as the costs of any cleanup, removal, treatment, remediation, or other corrective actions that may be required under or pursuant to any applicable Environmental Laws (collectively, “Remediation Costs”). All Remediation Costs so incurred by Landlord shall be reimbursed by Tenant to Landlord as Additional Rent within thirty (30) days of Landlord’s delivery to Tenant of written documentation setting forth such costs. Without limiting Tenant’s obligations to Landlord with respect to any Hazardous Materials Activities, including payment of the costs of Investigations and reimbursement of Remediation Costs incurred by Landlord, Tenant shall take all actions necessary to preserve any claims that Tenant may have against any third parties, including any of Tenant’s insurers, with respect to any Losses arising in connection with any Hazardous Materials Activities. Except to the extent required by applicable Environmental Laws, Tenant shall not, without obtaining Landlord’s prior written consent, undertake or perform any physical sampling, testing, or drilling on, under or at the Premises, the Land, the Building, or the Building Common Areas, for the purpose of identifying or evaluating the presence or release of any Hazardous Materials. Tenant shall promptly provide Landlord with true and complete copies of any and all claims made or asserted, notices received or given, work plans and related data prepared or generated, and reports prepared, received or submitted, in connection with any such sampling, testing or drilling work undertaken by Tenant. (f) Survival. All of Tenant’s covenants and obligations under this Section 9.06 shall survive the expiration or any earlier termination of this Lease. Without limiting any other rights or remedies of Landlord, Landlord shall have the right to seek any form of equitable relief, including specific performance and injunctive and declaratory relief, in connection with enforcing any such covenants and obligations of Tenant. Section 9.07 Signs. No sign, placard, picture, drawing, photo, painting, advertisement, name or notice (collectively, “Sign”) shall be placed, installed, inscribed, displayed, printed or affixed by or for Tenant on or to any part of the Land, or on or to any exterior portion of the la-1342702 43 Premises, the Building, or on or in the Building Common Areas, or on or to any exterior windows of the Premises or the Building, in each instance without the prior written consent of Landlord. Notwithstanding the foregoing provisions, Tenant shall be permitted, at Tenant’s cost and expense, (a) to place or install on the Premises any Sign that is expressly depicted in any drawings prepared for the Premises and approved by Landlord as part of the Work Letter, provided that the same is placed only at the location or locations expressly designated in such drawings, and conforms in all respects to any specifications shown for such Sign in the drawings or accompanying notes, including content, color, material, luminescence, size and dimensions, and (b) to inscribe or place Tenant’s name, trade name or other name assigned to the operations constituting the Permitted Use on an existing monument sign, exterior Building directory, and interior lobby directory maintained for the Building in which the Premises are located (with the exact placement, method of inscription, appearance and size of Tenant’s name to be approved by Landlord). Any Sign which Landlord permits to be installed by or for Tenant shall be removed by Tenant, at Tenant’s sole cost and expense, on or before the Termination Date, and all damage caused by such removal shall be repaired at Tenant’s sole cost and expense so as to restore the appearance of the area or improvement on which such Sign is located or to which such Sign is attached to its condition immediately prior to the placement or installation of the Sign, reasonable wear and tear excepted. Section 9.08 Parking. Tenant shall have the right to use, on a non-exclusive and selfservice basis (i.e., non-valeted), the vehicular parking areas depicted on Exhibit E and such other vehicular parking areas located on the Land that are designated by Landlord from time to time as being available for the use of Tenant or any Tenant Party working at or visiting the Premises (collectively, “Parking Permittees”); provided that the number of parking spaces available for use by any Parking Permittees shall be equal to the number of unreserved parking spaces allocated to the Premises as specified in the Basic Lease Terms. The parking areas that are made available from time to time to Tenant under this Lease (collectively, “Tenant Parking Areas”), shall be used by any Parking Permittees in strict compliance with all reasonable rules and regulations adopted by Landlord from time to time for the Tenant Parking Areas. Use of the Tenant Parking Areas shall be limited to the parking of standard-size passenger automobiles and vans, pick-up trucks, and sport utility vehicles. Any construction vehicles and delivery vehicles associated with any construction activities on or deliveries to the Premises shall be parked only in such locations on the Land as Landlord may from time to time designate for such uses. The location, size, and configuration of any parking spaces, the location and design of any vehicular or pedestrian ingress, egress and access to and from any parking spaces, and the design and existence of any signs, medians, curbs, directional cones, striping, or other parking controls of any type or nature, shall be determined from time to time by Landlord in its sole and absolute discretion. Any and all use of the Tenant Parking Areas by any Parking Permittees shall be at the sole risk of Tenant and all Parking Permittees, and except to the extent the same results from the gross negligence or willful misconduct of Landlord, any director, officer, employee or agent of Landlord, or any Landlord Party, neither Landlord nor any director, officer, employee or agent of Landlord nor any Landlord Party shall be liable for: (i) any loss of or damage to, from any cause or circumstance whatsoever, any vehicle (or any personal property within such vehicle) parked in or operating in any Tenant Parking Areas; or (ii) any injury to or death of any person in, on, about or around any Tenant Parking Areas, whether as a pedestrian, cyclist, or driving or riding in or on any vehicle or device, or otherwise. la-1342702 44 Section 9.09 Special Equipment. Tenant shall not install or operate in or on the Premises any equipment or machinery of any kind or nature whatsoever which will or may necessitate any changes in or to, or any replacements or additions to or of, or otherwise potentially adversely affect the normal use for general office purposes of, the water system, sewer or waste discharge system, plumbing system, HVAC system, electrical system, or any other Building System serving the Premises or the Building, without first obtaining the prior written consent of Landlord, except to the extent that such equipment or machinery is specifically identified or shown in the Work Letter as being installed, placed or operated in the Premises. Section 9.10 Financial Statements. Upon Landlord’s written request from time to time (but not more frequently than twice in any calendar year), Tenant shall promptly furnish Landlord with a copy of Tenant’s most-current Form 990 (or such other form that may replace the Form 990 for tax exempt organizations), provided that if Tenant no longer qualifies as a tax exempt organization for federal tax purposes, then Tenant shall furnish to Landlord such financial statements reasonably requested by Landlord showing Tenant’s then-current financial condition (including a balance sheet, income and cash flow statement, and statement of net worth). ARTICLE X DEFAULT AND REMEDIES. Section 10.01 Events of Default. The occurrence of any one or more of the following shall constitute an “Event of Default” under this Lease: (a) Any failure of Tenant to pay any Rent, or any other monetary obligation of Tenant under this Lease, as and when the same shall become due, and such failure continues for a period of five (5) days after notice thereof from Landlord (herein, a “Monetary Default”). (b) Any failure of Tenant to perform any obligation of Tenant under this Lease (excluding any Monetary Default and any failure or other occurrence described or referred to in any of the succeeding subparagraphs (c) through (e) of this Section 10.01), if such failure shall continue for a period of thirty (30) days after written notice of such failure is given by Landlord to Tenant, provided that if more than thirty (30) days are reasonably required for the complete cure or remedy of such failure, an Event of Default shall not be deemed to have occurred if and for so long as (i) Tenant commences such cure or remedy within such thirty (30) day period and thereafter diligently prosecutes such cure to completion within a reasonable time, but in any event not more than ninety (90) days following the expiration of such thirty (30) day period, and (ii) such failure does not create (as reasonably determined by Landlord) any violation of Applicable Law, any risk of liability on the part of Landlord to any third party, or any material adverse effect on any portion of the Premises, the Land, or the Building which, in each instance, Tenant is unable or unwilling to mitigate. (c) The commencement by or against Tenant of any action or proceeding under any federal or state insolvency, reorganization, bankruptcy or other debtor-relief statute or law now or hereafter existing (collectively, “Debtor-Relief Proceeding”), unless in the case of la-1342702 45 any Debtor-Relief Proceeding which is commenced against Tenant, such proceeding is finally dismissed, subject to no further appeal, within sixty (60) days following the date of commencement; or the appointment of a trustee or receiver for Tenant or for all or any substantial portion of Tenant’s assets or business, or the attachment or sequestration of Tenant’s leasehold estate in the Premises or Tenant’s assets at the Premises, unless such appointment, attachment or sequestration is finally dismissed, subject to no further appeal, within thirty (30) days after such appointment was made or such attachment or sequestration was made or ordered. Any event or occurrence referred to in this subparagraph (c) shall constitute an immediate Event of Default under this Lease, without the requirement for any notice to be given by Landlord to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default. (d) In the event of any termination of this Lease, whether on the Scheduled Term Expiration Date or upon any earlier termination pursuant to the provisions of this Lease, Tenant fails to immediately vacate and surrender to Landlord the Premises in Good Condition and Repair on or before the Termination Date. Any such failure by Tenant referred to in this subparagraph (d) shall constitute an immediate Event of Default under this Lease, without the requirement for any notice to be given by Landlord to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default. (e) The occurrence of any other event, condition, default, breach, act or omission that, pursuant to any express provision of this Lease, constitutes an immediate Event of Default under this Lease. Section 10.02 Tenant Bankruptcy Proceedings. In the event that Tenant, at any time during the Term of this Lease, becomes the subject of any Debtor-Relief Proceeding, then unless and until such Debtor-Relief Proceeding shall have been finally dismissed (subject to no further appeal) or this Lease shall otherwise have been lawfully terminated, (a) any continuing occupancy or possession of the Premises, or any portion thereof, by Tenant or by any trustee, receiver or debtor-in-possession, or by any subtenant of Tenant, whether or not this Lease shall have been affirmed or rejected in such Debtor-Relief Proceeding, shall, to the extent permitted by Applicable Law, be subject to the payment by the party occupying or possessing the Premises, or any such portion thereof, of all Rent owing for or with respect to the period of occupancy or possession, and to the performance by such party of all obligations of the Tenant under this Lease that become due or performable during such period of occupancy or possession, and (b) within not more than sixty (60) days following the commencement of such Debtor-Relief Proceeding, and whether or not any Transfer under this Lease shall have occurred by reason of or in connection with or following the commencement of such Debtor-Relief Proceeding, the trustee, receiver or debtor-in-possession, as applicable, shall (i) be obligated to cure (or provide adequate assurance, to the reasonable satisfaction of Landlord, that such trustee, receiver or debtor-in-possession will cure within a reasonable time) any and all defaults of the Tenant under this Lease, (ii) compensate Landlord for all actual monetary losses suffered by Landlord on account of any such defaults, whether or not the same shall have been cured, and (iii) provide adequate assurance of the future performance of all of Tenant’s obligations under this Lease to the reasonable satisfaction of Landlord. Adequate assurance of future performance, as such phrase is used herein, shall mean reliable and practical assurance by legally enforceable mechanisms that (A) all Rent and all other monetary obligations becoming due under this Lease la-1342702 46 will be paid as and when due, and (B) any Transfer of this Lease that may occur during the course of any such Debtor-Relief Proceeding will not materially breach any provision of this Lease relating to the use or occupancy of the Premises or to the conduct of any business thereon, and will be completed on terms and conditions sufficient to comply with all provisions of Section 9.03 relating to the particular type of Transfer to be effected. Notwithstanding the foregoing, nothing contained in this Section 10.02 shall affect any right of Landlord to refuse to accept or consent to any Transfer of this Lease or of Tenant’s rights under this Lease upon the commencement of or in connection with any Debtor-Relief Proceeding. Nothing contained in this Lease shall be construed as creating in favor of Tenant, or otherwise giving or granting to Tenant, any equity, beneficial or other ownership interest in or to the Premises or any portion thereof. Section 10.03 Remedies. If an Event of Default exists, Landlord shall have the following rights and remedies, in addition to any and all other rights and remedies available to Landlord at law or in equity (provided, however, in all instances following any termination of Tenant’s right to possession or other termination of this Lease, Landlord agrees to use commercially reasonable efforts to relet the Demised Premises at fair market rental rates and to otherwise mitigate any damages arising out of an event of default hereunder on the part of Tenant; provided, further, that (i) Landlord shall have no obligation to treat preferentially the Premises compared to other premises Landlord has available for leasing; (ii) Landlord shall not be obligated to expend any efforts or any monies beyond those Landlord would expend in the ordinary course of leasing space within the Building; (iii) in evaluating a prospective reletting of the Premises, the term, rental, use and reputation, experience, and financial standing of prospective tenants are factors which Landlord may properly consider; and (iv) Landlord is entitled to respect any exclusive use or prohibited use clauses of other tenants’ leases in the Building): (a) The right to terminate this Lease. If this Lease is terminated or Landlord reenters or obtains possession of the Premises by summary proceedings or any other legal action (which Landlord may do without further notice and without liability or obligation to Tenant or any occupant of the Premises), all of the provisions of this Section 10.03(a) shall apply (in addition to any other applicable provisions of this Lease). (i) Tenant (and all other occupants) shall vacate and surrender to Landlord the Premises in accordance with this Lease. (ii) Landlord, at Landlord’s option, may (1) relet the Premises, or any portion of the Premises, from time to time, in the name of Landlord, Tenant or otherwise, as determined by Landlord, to any person and on any terms, and (2) make any changes to the Premises as Landlord, in Landlord’s judgment, considers advisable or necessary in connection with a reletting, without imposing any liability or obligation on Landlord or relieving Tenant of any obligation or liability under this lease. Tenant shall pay Landlord all Rent payable to the date on which this lease is terminated or Landlord reenters or obtains possession of the Premises. (iii) Tenant shall also pay to Landlord, as damages, any deficiency between (1) the aggregate Rent for the period which otherwise would have constituted the unexpired portion of the Term (conclusively presuming the additional rent for each year thereof to be the same as was payable for the year immediately preceding the termination, re-entry or la-1342702 47 obtaining of possession) and any expenses incurred by Landlord in connection with the termination, reentry or obtaining of possession, and the reletting of the Premises, including all repossession costs, brokerage commissions, reasonable attorneys’ fees and disbursements, alteration costs and other expenses of preparing the Premises for reletting and (2) the rents, if any, applicable to that period collected under any reletting of any portion of the Premises. Tenant shall pay any deficiency in monthly installments on the days specified in this Lease for payment of installments of the Base Rent, and Landlord shall be entitled to recover from Tenant each monthly deficiency as the same arises. No suit to collect the deficiency for any month shall prejudice Landlord’s right to collect the deficiency for any subsequent month. Tenant shall not be entitled to any rents payable (whether or not collected) under any reletting, whether or not those rents exceed the Rent. (iv) Landlord may recover from Tenant, and Tenant shall pay Landlord, on request, in lieu of any further deficiency pursuant to paragraph (iii) above (as liquidated damages) the amount by which (1) the unpaid Rent for the period which otherwise would have constituted the unexpired portion of the Term (conclusively presuming the additional rent for each year thereof to be the same as was payable for the year immediately preceding the termination, re-entry or obtaining of possession) exceeds (2) the then fair and reasonable rental value of the Premises, including the Additional Rent for the same period, both discounted to present value at the annual rate of interest publicly announced by Citibank, N.A., New York, New York (or any successor thereto) as its “base rate” on the date of the Event of Default in question, or such other term as may be used by Citibank, N.A. from time to time for that rate (and if no longer publicly announced, then a similar rate selected by Landlord). If, before presentation of proof of liquidated damages, Landlord acting reasonably relets the Premises or any portion of the Premises for any period pursuant to a bona fide lease with an unrelated third party, the net rents payable in connection with the reletting shall be considered to be the fair and reasonable rental value for the Premises or the portion of the Premises relet during the term of the reletting. If Landlord acting reasonably relets the Premises, or any portion of the Premises, together with other space in the Building, the rents collected under the reletting and the expenses of the reletting shall be equitably apportioned for the purposes of this Section 10.03. (v) Nothing contained in this lease shall be considered to limit or preclude the recovery by Landlord from Tenant of the maximum amount allowed to be obtained as damages or otherwise by any Law. (b) The right to continue this Lease in effect after Tenant’s breach of this Lease and any abandonment of the Premises, and the right to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover Rent as it becomes due, for so long as Landlord does not terminate Tenant’s right to possession of the Premises. Acts of maintenance or preservation of the Premises, efforts to re-let or sublet the Premises, the appointment of a receiver upon Landlord’s initiative to protect its interest under this Lease, or Landlord’s failure or refusal to consent to a proposed Transfer of this Lease by Tenant pursuant to the exercise of Landlord’s rights under Section 9.03 of this Lease, shall not constitute a termination of Tenant’s right to possession. No taking possession of the Premises or any portion thereof by Landlord, and no re-letting or subletting of the Premises or any portion thereof by Landlord, shall be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such election to terminate is delivered by Landlord to Tenant. Without limiting the foregoing, so la-1342702 48 long as Landlord has not terminated Tenant’s right to possession of the Premises, Landlord shall have the right from time to time to re-let or sublet the Premises, or any part thereof, for such term or terms (which may extend beyond the Term of this Lease), at such Rent, and on such other terms and conditions as Landlord in its reasonable discretion may deem advisable, with the right to make alterations and repairs to the Premises in connection with any such re-letting or subletting. Upon any such re-letting or subletting, (i) Tenant shall be immediately liable to pay to Landlord the reasonable costs of such re-letting or subletting, including reasonable attorneys’ fees, any real estate commissions actually paid, and the cost of any alterations and repairs incurred by Landlord, and (ii) Landlord shall have the right to collect from Tenant, as and when due, the amount, if any, by which the Rent payable under this Lease for the Premises exceeds the amounts, if any, actually received by Landlord as Rent for any portions of the Premises which are the subject of any such re-letting or subletting during the period of such re-letting or subletting (to the extent that such period does not extend beyond the Term of this Lease). Any payments received by Landlord from any re-letting or subletting that may be in excess of the amount of Rent payable under this Lease by Tenant for the re-let or subleased portion of the Premises for the applicable period shall not be paid over to Tenant, but shall be held by Landlord as part of Landlord’s general funds (not in trust, and without any obligation to pay any interest or other return thereon) and shall be applied to the payment of future Rent owing by Tenant as such Rent becomes due under this Lease. Notwithstanding any such re-letting or subletting without termination of this Lease upon an Event of Default, Landlord may at any time following such re-letting or subletting elect to terminate this Lease for any such prior Event of Default by giving written notice of such election to Tenant. (c) The right and power to enter the Premises and remove therefrom all persons and property, to store such property in a public warehouse or elsewhere at the cost of and for the account of Tenant, and to sell such property (for cash or on credit) and apply the proceeds of such sale pursuant to Applicable Law. (d) The right to have a receiver appointed for Tenant and the Premises, upon application by Landlord, to take possession of the Premises. Any such receiver shall have the right, subject to the terms and conditions of the order appointing such receiver, to apply any Rent or other sums collected from or for the Premises against the obligations of Tenant under this Lease as the same become due and payable, as well as the right to exercise every other right and remedy granted to Landlord pursuant to subparagraph (b) above with respect to the Premises. (e) The right to obtain equitable relief (including specific performance and injunctive relief) with respect to any or all of Tenant’s obligations under this Lease, and the right to recover damages for any delay in or failure of performance by Tenant, including in any such instance any equitable relief or damages relating to the performance or enforcement of any of the provisions of Section 9.06, subject to any limitations imposed by Applicable Law. Section 10.04 Waivers; No Release. (a) In connection with any holdover or non-payment proceedings which Landlord may initiate to enforce the provisions of this Lease, Tenant expressly waives, for itself and for any person(s) claiming through or under Tenant, any rights which Tenant or any such la-1342702 49 person(s) may have under the provisions of Section 2201 of the New York Civil Practice Law and Rules and of any similar or successor law of like import then in effect. (b) Tenant waives the service of any notice of intention to re-enter or to institute legal proceedings to that end which may otherwise be required to be given under any present or future law. Tenant, on its own behalf and on behalf of all persons claiming through or under Tenant, including all creditors, further waives any and all rights which Tenant and all such persons might otherwise have under any present or future law to redeem the Premises, or to reenter or repossess the Premises, or to restore the operation of this Lease, after (i) Tenant shall have been dispossessed by judgment or by warrant of any court or judge, (ii) any re-entry by Landlord, or (iii) any expiration or termination of this Lease, whether such dispossession, reentry, expiration or termination shall be by operation of law or pursuant to the provisions of this Lease. (c) The surrender or acceptance of surrender of the Premises after an Event of Default or the removal of Tenant during the pendency of summary proceeding or action for ejectment or re-entry or resumption or retaking of possession of the Premises by Landlord by force, process of law or otherwise (and whether or not in a manner specifically described in this Lease) shall not operate to release or discharge Tenant of liability for Rent or damages and Tenant shall remain liable under this Lease unless expressly released and discharged in a writing signed by Landlord. Section 10.05 Remedies Cumulative. The exercise of any right or remedy provided by this Lease, or otherwise available to Landlord at law or in equity, shall not exclude the exercise of any other rights or remedies, and all rights and remedies of Landlord shall be cumulative. Tenant hereby irrevocably and unconditionally waives any right of redemption or relief from forfeiture following termination of, or the exercise of any right or remedy by Landlord with respect to, the Premises and this Lease. ARTICLE XI ABANDONMENT Tenant shall not vacate or abandon the Premises at any time during the Term of this Lease, and any such vacating or abandonment of the Premises shall constitute an immediate Event of Default under this Lease, without the requirement for any additional notice to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default. In addition, if Tenant shall vacate or abandon the Premises, or be dispossessed by the process of law, or otherwise surrender the Premises during the Term of this Lease, any personal property belonging to Tenant and left on the Premises shall be deemed to be abandoned, at the option of Landlord. la-1342702 50 ARTICLE XII DAMAGE AND DESTRUCTION; EMINENT DOMAIN Section 12.01 Occurrence of Damage or Loss. (a) Election of Landlord. In the event that all or any portion of the Premises or the Building shall be damaged or destroyed in whole or in part at any time during the Term of this Lease from any cause whatsoever (herein, “Damage”), Landlord may, at its option (exercised in Landlord’s sole and absolute discretion): (i) Rebuild or restore the Premises or the Building, as applicable, to substantially the same condition existing immediately prior to such Damage except to the extent such restoration is limited under Applicable Law (“Restoration”), subject to the provisions set forth in this Section 12.01; or (ii) Terminate this Lease, effective as of the date of Damage, provided that such termination of this Lease shall be permitted only if (A) the Damage to the Building equals or exceeds twenty-five percent (25%) of the replacement cost of the Building, exclusive of footings, foundations and floor slabs, whether or not there has been any damage or loss to the Premises, or (B) the Damage to the Premises equals or exceeds fifty percent (50%) of the replacement cost of the Premises (exclusive of that portion, if any, of such replacement cost for which Tenant is obligated to pay or reimburse Landlord as provided in this Section 12.01), or (C) the Damage is uninsured in whole or in part, and if in part, the amount of insurance proceeds payable to Landlord on account of the Damage (plus any deductibles owing from Landlord under such insurance) is not sufficient to cover one hundred percent (100%) of the reasonably estimated costs of Restoration, or (D) the reasonably estimated period of time required for completion of Restoration, assuming no extended use of overtime or night construction, would exceed one hundred and eighty (180) days from the date of Damage, or (E) as of the date of the Damage, the remaining Term of this Lease (after giving effect to any election by Tenant to extend or renew the Term of this Lease which has been duly exercised by Tenant prior to or within ten (10) days following the date of Damage) is less than twelve (12) months. In any instance referred to in the foregoing clauses (A) through (E) in which the estimated replacement costs of the Premises or Building, or the estimated period of time required to rebuild or restore the Premises or the Building, are to be determined, such determination shall be made by Landlord based on an analysis performed by a qualified independent construction contractor or consultant selected by Landlord which is not an Affiliate of Landlord and which has not performed other construction work for Landlord within the twenty-four (24) month period immediately preceding the date of Damage. (b) Timing of Landlord Election. Within thirty (30) days following the date of Damage, Landlord shall give Tenant written notice of Landlord’s election whether to undertake Restoration or to terminate this Lease as provided in subparagraph (a) above (“Election Notice”); provided that such thirty (30) day period shall be extended for a reasonable period of time (as specified by Landlord in a written notice given to Tenant prior to the expiration of such thirty (30) day period) if it is not reasonably feasible for Landlord to determine within such thirty (30) day period the estimated replacement costs of the Premises or the Building, the estimated la-1342702 51 period of time required for Restoration, or whether or not the Damage to the Building renders the continued leasing and operation of any substantial portion of the Building economically infeasible, as contemplated in subparagraph (a) above. If Landlord gives an Election Notice to Tenant as provided above stating that Landlord has elected to undertake Restoration, Landlord will include in such notice Landlord’s good faith estimate of the time period required to substantially complete such Restoration. If Landlord fails to provide an Election Notice to Tenant in a timely manner as provided above, Landlord shall be deemed to have elected to Restoration in accordance with the provisions of this Section 12.01. (c) Restoration Procedures. Any Restoration work undertaken by Landlord shall be commenced as promptly as reasonably practicable, and shall be carried out with diligence and continuity until completed. To the extent that the Damage has made all or any portion of the Premises untenantable or otherwise unusable for the normal conduct of the Permitted Uses, whether by total loss of ingress or egress to the Premises or otherwise, and so long as Tenant is not using any portion of the damaged area of the Premises for its business operations and the Damage is not due to any Tenant Fault, Tenant shall be entitled to an equitable reduction in Rent for the portion of the Premises that is not usable by Tenant for the normal conduct of the Permitted Uses (with such reduction to commence on the date of Damage and continue until the date that Landlord returns the damaged portion of the Premises to Tenant with the Restoration work substantially completed). The amount of such equitable reduction in Rent shall be based on the ratio that the Rentable Area of the portion of the Premises rendered untenantable or unusable by the Damage bears to the total Rentable Area of the Premises. (d) Tenant’s Right to Terminate. If Landlord has elected, or is deemed to have elected, to undertake Restoration, and Landlord determines at any time prior to or following the commencement of the Restoration work that the Restoration of the Premises or the Building will exceed a period of one hundred eighty (180) days (the “Allowed Restoration Period”), then Landlord shall provide Tenant, as soon as feasible, with written notice that such Restoration of the Premises or the Building will exceed the Allowed Restoration Period, and in such event Tenant may elect to terminate this Lease by giving written notice of termination to Landlord within fifteen (15) days following the date that Tenant receives Landlord’s written notice stating that the Restoration of the Premises or the Building, as applicable, will exceed the Allowed Restoration Period; provided that Tenant shall have such right to terminate this Lease only if (i) more than twenty-five percent (25%) of the Premises will remain untenantable or unusable for the normal operation of Tenant’s business following the expiration of the Allowed Restoration Period, and (ii) the Damage is not attributable to any Tenant Fault. If Tenant is entitled to terminate this Lease and does not give written notice of termination to Landlord within the five (5) day period specified above, Tenant shall conclusively be deemed to have elected not to terminate this Lease, and Tenant shall have no further right to terminate this Lease on account of such Damage. (e) Allocation of Restoration Costs. Any Restoration undertaken by Landlord shall be at Landlord’s cost and expense, except that Tenant shall be obligated to pay, or reimburse Landlord for, all costs and expenses of such Restoration which are incurred for or with respect to (i) any Damage that is attributable to any Tenant Fault, and (ii) the repair or replacement of Landlord’s Work and any of Tenant’s trade fixtures, moveable furniture and furnishings, business and service equipment, merchandise, and Alterations that were located in, la-1342702 52 on or serving the Premises prior to the Damage (collectively, “Tenant Replacement Property”), provided that Landlord shall make available to Tenant for such purpose any insurance proceeds, if any, actually received by Landlord under any policies of insurance carried by Landlord which are paid to Landlord for or on account of any such Tenant Replacement Property. (f) Continuation of Lease. Unless and until this Lease is terminated pursuant to the foregoing provisions of this Section 12.01, this Lease shall remain in full force and effect notwithstanding any Damage. (g) Waiver. Tenant expressly waives the provisions of Section 227 of the New York Real Property Law and agrees that the provisions of this Section 12.01 shall control. Section 12.02 Eminent Domain. (a) Taking Events. As used in this Lease, the term “Taking” shall mean (i) any condemnation of, exercise of the power of eminent domain with respect to, or other taking by any governmental or other authority having the power of eminent domain of, all or any portion of the Land, the Premises, the Building, or the Building Common Areas, or (ii) any conveyance made by Landlord in lieu of any such condemnation, exercise of the power of eminent domain, or other taking; but excluding, in any such instance referred to in the foregoing clauses (i) and (ii), any Temporary Taking (as defined below). A Taking shall be deemed to be effective on the earlier of the date that the authority responsible for the Taking acquires title to, or the date that such authority takes possession of, the portions of the Land, the Premises, the Building, or the Building Common Areas, which are the subject of the Taking (the “Date of Taking”). (b) Effect of Taking. In the event of any Taking of any part of the Premises, but not the entire Premises, this Lease shall terminate as to the portion of the Premises so taken, and in the event of any Taking of the entire Premises, this Lease shall terminate as to the entire Premises, with any such termination to be effective on the Date of Taking. Landlord shall have the right to terminate this Lease if (A) any portion of the Land, the Building (other than or in addition to the Premises), or the Building Common Areas is the subject of a Taking and, in the good faith judgment of Landlord, the loss of such portion of the Land, the Building or the Building Common Areas, will make it economically infeasible for Landlord to continue to lease or operate any material portion of the Building or the Building Common Areas following such Taking (herein referred to as “Economic Operation”), or (B) the amount of the Award (as defined below) that will be received and retained by Landlord on account of the Taking (after deducting any portion of such Award that is required to be paid over by Landlord to the holder of any Mortgage, or to the Ground Lessor under any Ground Lease) will not be sufficient to pay the total costs (as reasonably estimated by Landlord) required to be expended to rebuild, restore or reconfigure the Building or the Building Common Areas in order to make the same, in the reasonable good faith judgment of Landlord, suitable for Economic Operation, or (C) more than a total of one hundred and eighty (180) days would be required, in the reasonable estimation of Landlord, to rebuild, restore or reconfigure the Building or the Building Common Areas in order to make the same, in the reasonable good faith judgment of Landlord, suitable for Economic Operation. If Landlord is entitled to terminate this Lease upon a Taking as provided in this la-1342702 53 subparagraph (b), such termination shall be effected by written notice given as promptly as practicable, but in any event not later than ten (10) days following the Date of Taking. If this Lease is not terminated following a Taking, then to the extent that such Taking may require any modification to or restoration of any areas of the Premises, the Building, or any Building Common Areas, in order to make such areas architecturally complete facilities reasonably suitable for the functions for which such areas were designed or intended (herein referred to as “Reconstruction”), Landlord shall proceed to promptly commence and complete such Reconstruction, but excluding any replacement or restoration of any Tenant Replacement Property (unless Landlord has received the Award therefor, in which case such Restoration and the costs thereof shall be the sole responsibility of Landlord but only to the extent of such Award). Tenant shall be fully responsible for carrying out, and paying any and all costs and expenses of, any replacement or restoration of any Tenant Replacement Property (unless Landlord has received the Award therefor, in which case such Restoration and the costs thereof shall be the sole responsibility of Landlord but only to the extent of such Award). (c) Award. Landlord shall be entitled to receive for Landlord’s own account the entire award and other compensation of any type or nature, and all interest owing thereon, that is payable by the applicable governmental or other authority on account of any Taking of all or any portion of the Land, the Premises, the Building, or the Building Common Areas (“Award”), including any Award that may be made for or that is otherwise attributable to the value of the leasehold estate created by this Lease. Without limiting the foregoing, (i) Tenant shall have no claim against Landlord, any governmental or other authority responsible for the Taking, or any other person or entity, for the value of the unexpired Term of this Lease, which shall be deemed conclusively to be an asset belonging to Landlord and not to Tenant; (ii) no portion of any Award for any partial or entire Taking shall be apportioned between Landlord and Tenant; and (iii) Tenant hereby irrevocably and unconditionally waives and assigns to Landlord, any right, title and interest that Tenant may have in or to any Award that may be made in connection with any Taking. Notwithstanding the foregoing provisions, Tenant shall be entitled to claim against and receive from the governmental or other authority responsible for the Taking any compensation that is made in the form of a separate and specific award to Tenant for (A) Tenant’s relocation or moving expenses, (B) the value of any Tenant Replacement Property, (C) the value of Landlord’s Work and any other leasehold or tenant improvements paid for by or on behalf of Tenant, or of any Alterations paid for by or on behalf of Tenant, and (D) any loss of goodwill attributable to the interruption of or damage to Tenant’s business (“Tenant Special Award”), but only on the condition that any such Tenant Special Award will not reduce, in any manner or to any extent, the full amount of the Award that would otherwise be paid to Landlord, and in the event that any portion of a Tenant Special Award would reduce the full amount of the Award that would otherwise be paid to Landlord, Tenant hereby unconditionally and irrevocably waives any right to claim or receive such portion of the Tenant Special Award. (d) Reduction in Rent. To the extent that any such Taking has made all or any portion of the Premises untenantable or otherwise unusable for the normal conduct of the Permitted Uses, whether as a result of a direct Taking of a portion of the Premises or by loss of ingress or egress to the Premises or otherwise, Tenant shall be entitled to an equitable reduction in Rent for the portion of the Premises that is not usable by Tenant for the normal conduct of the Permitted Uses, with such reduction to commence on the Date of Taking and continue thereafter for the remainder of the Term with respect to any portion of the Premises subject to the Taking. la-1342702 54 The amount of such equitable reduction in Rent shall be based on the ratio that the Rentable Area of the portion of the Premises rendered untenantable or unusable by the Taking bears to the total Rentable Area of the Premises. (e) Temporary Taking. If a Taking shall consist solely of the acquisition of title to or possession of all or any portion of the Premises, the Land, the Building, or the Building Common Areas for a period of time which is less than one hundred eighty (180) days (a “Temporary Taking”), this Lease and the obligations of Tenant hereunder shall not be affected by such Temporary Taking. In such event, this Lease shall remain in full force and effect, and Tenant shall continue to pay, as and when the same becomes due, an amount equal to (i) the Rent that would be payable under this Lease for and during the period of the Temporary Taking, including for any portion of the Premises in the possession of the governmental or other authority responsible for the Temporary Taking, minus (ii) the amount of any Rent paid directly to Landlord, for and during the period of such Temporary Taking, by the governmental or other authority responsible for such Temporary Taking in respect of the portion of the Premises in the possession of such governmental or other authority, provided that the amount of such deduction shall not exceed the amount of the Rent described in the immediately preceding clause (i) of this subparagraph (e), and Landlord shall be entitled to receive and retain the entire amount of any excess. Tenant shall be permitted to claim and recover any Tenant Special Award relating directly to the portion of the Premises that is the subject of any such Temporary Taking, but only on the condition that such Tenant Special Award will not reduce, in any manner or to any extent, any portion of the Award that would otherwise be paid to Landlord on account of such Temporary Taking. ARTICLE XIII SALE OR CONVEYANCE BY LANDLORD Subject to the provisions of Section 21.01 and Section 21.02 hereof, Landlord (and any party comprising Landlord) and its successors in interest shall have the right to transfer their respective interests in this Lease, the Building and the Land at any time and to any person or entity. In the event of any such transfer(s), the Landlord originally named herein (and, in the case of any subsequent transfer(s), the applicable transferor(s)) shall be automatically relieved from the date of such transfer, without further act by any person or entity, of all liability under any and all of the covenants and obligations of Landlord contained in or derived from this Lease accruing from and following the date of such transfer, and, upon the request of Landlord, Tenant agrees to attorn to any entity purchasing or otherwise acquiring the Premises. ARTICLE XIV HOLDING OVER Any holding over by Tenant after the expiration of the Term of this Lease or any earlier termination of this Lease (“Holdover Period”) shall not constitute a renewal or extension of this Lease or give Tenant any rights in or to the Premises, except as expressly provided in this Lease. Any such holding over by Tenant shall constitute an immediate Event of Default as provided in Section 10.01(d) of this Lease, and Landlord may proceed to exercise any and all rights and la-1342702 55 remedies on account of such Event of Default. Whether or not Landlord elects to exercise any such rights and remedies, the parties agree that Tenant’s use and occupancy of the Premises during any Holdover Period shall constitute solely a tenancy-at-sufferance, on the same terms and conditions set forth in this Lease (other than any terms and conditions relating to the length of the Term of this Lease) insofar as the same are reasonably applicable to a tenancy-at-sufferance, provided that (a) Tenant shall not have or retain any right to exercise any option, if any, contained in this Lease to extend or renew the Lease Term or to lease any other premises in the Building, and (b) the monthly Base Rent shall automatically and without further action by the parties be increased for and during the Holdover Period to an amount equal to one hundred twenty-five percent (125%) of the monthly Base Rent payable for the last month of the Term preceding the commencement of the Holdover Period. In no event shall Tenant have any right to continue to lease or occupy the Premises for any specific period of time after the expiration of the Term of this Lease or any earlier termination of this Lease, and any Holdover Period and tenancy-at-sufferance shall automatically terminate, upon written notice from Landlord to Tenant, given at any time during the Holdover Period, of Landlord’s election to terminate the Holdover Period and this Lease. Tenant’s failure to vacate the Premises and to surrender the Premises promptly and peaceably to Landlord in Good Condition and Repair upon any termination of the Holdover Period shall constitute an immediate Event of Default, without the requirement for any notice to be given by Landlord to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default, and Landlord shall have all rights and remedies of Landlord provided under Article X of this Lease on account of such Event of Default. ARTICLE XV ESTOPPEL CERTIFICATES Tenant shall, from time to time within fifteen (15) days following Tenant’s receipt of written notice from Landlord, execute, acknowledge and deliver to Landlord in writing an estoppel certificate (“Estoppel Certificate”) certifying (a) that this Lease is unmodified and in full force and effect (or, if modified, stating the date and nature of each such modification and certifying that this Lease, as so modified, is in full force and effect), (b) the date(s) to which the Base Rent and Additional Rent have been paid in full, and whether any Base Rent or Additional Rent has been paid more than thirty (30) days in advance of the due date thereof, (c) there is no Event of Default under this Lease, nor has any event, circumstance or condition occurred that, with the giving of notice or the passage of time, or both, would become an Event of Default, (d) to Tenant’s knowledge, there are no uncured defaults or failures of performance on the part of the Landlord under this Lease (or specifying in reasonable detail such defaults or failures of performance, if any, are claimed), and (e) any additional matters relating to this Lease and the rights and obligations of the parties as Landlord may reasonably request. Any Estoppel Certificate may be conclusively relied upon by any prospective purchaser of the Land and any prospective Creditor or Ground Lessor for the purpose of any transaction pursuant to which such purchaser, Creditor or Ground Lessor is acquiring any right, title or interest in, or lien on or security interest in, all or any portion of the Land, the Building, and the Building Common Areas (“Transaction”). Tenant’s failure to deliver an Estoppel Certificate within fifteen (15) days following written request by Landlord (time being of the essence) shall constitute a conclusive representation and certification by Tenant, in favor of any purchaser, Creditor or Ground Lessor, la-1342702 56 that this Lease is in full force and effect, without modification, that the Base Rent and all Additional Rent have been paid in full and not more than thirty (30) days in advance of the due date thereof, that there is no Event of Default nor any event, circumstance or condition that, with the giving of notice or the passage of time, or both, would become an Event of Default, and that there are no uncured defaults or failures of performance on the part of Landlord. ARTICLE XVI RIGHT OF LANDLORD TO PERFORM If Tenant shall fail to timely perform any obligation of Tenant under this Lease, then without waiving or releasing Tenant from any obligation or liability of Tenant under this Lease, and without waiving or relinquishing any other rights or remedies of Landlord on account of such failure by Tenant, Landlord may, but shall not be obligated to, perform any such obligation on behalf of Tenant. No performance by Landlord shall be deemed to be a waiver or cure of any default or failure by Tenant. All reasonable out-of-pocket costs and expenses incurred by Landlord in making any such payment or in performing any such obligation (including reasonable attorneys’ fees and disbursements), together with interest thereon at a rate equal to the weighted average rate charged to Landlord on its unsecured borrowings as reasonably determined by Landlord from time to time (but not exceeding the maximum rate of interest that Landlord may lawfully charge to Tenant under the provisions of Applicable Law) from the respective date(s) that such costs and expenses were incurred, shall be reimbursed by Tenant to Landlord as Additional Rent within five (5) days after written demand by Landlord, and any failure of Tenant to reimburse Landlord within such five (5) day period shall constitute an immediate Event of Default by Tenant, without the requirement for any additional notice to Tenant and without any right on the part of Tenant to cure or remedy the cause of such Event of Default. ARTICLE XVII SAFETY AND SECURITY SYSTEMS AND PROGRAMS Section 17.01 No Landlord Responsibility. Except as otherwise set forth herein, Landlord shall have no obligation or liability to Tenant or any Tenant Party to provide any safety or security devices, protections, programs or services on or for the Land, the Premises, the Building, or the Building Common Areas, or for the manner or quality of operation of any such devices, programs or services that Landlord may elect, in Landlord’s sole and absolute discretion, to provide on or for the Land, the Premises, the Building, or the Building Common Areas. Except as set forth elsewhere in this Lease, Tenant and each Tenant Party shall bear the full risk that any safety or security device, protection, program or service that may be present or used on or for the Land, the Premises, the Building, or the Building Common Areas, may not be effective, or may malfunction or be circumvented. Tenant agrees to cooperate fully with any and all reasonable safety and security programs and requirements developed by Landlord at any time on or for the Land, the Premises, the Building, and the Building Common Areas, or that may be required by Legal Requirements, or that may be required or recommended by any governmental authorities or insurance carriers. la-1342702 57 Section 17.02 Landlord Safety and Security Requirements. Landlord may from time to time require Tenant and any Tenant Parties to comply (at no cost to Tenant or any Tenant Party) with such safety and security measures and precautions as Landlord (or Landlord’s Property Manager) may reasonably deem necessary or advisable for the safety, security and protection of persons and property at any time present on or about the Land, the Premises, the Building, and the Building Common Areas. The exercise of any such safety and security measures or precautions by Landlord (or Landlord’s Property Manager), and any resulting interruption of Building Systems or other services for any portion of the Premises, the Building, and the Building Common Areas, any inconvenience to or cessation of the Permitted Uses, or any other effect on Tenant’s use and occupancy of the Premises or on the conduct of the Permitted Uses on or from the Premises, shall not be deemed an eviction (constructive or otherwise) or disturbance of Tenant’s use and possession of the Premises, or any part thereof, or entitle Tenant to any abatement of or reduction in Rent, or render Landlord or any Landlord Parties liable to Tenant for any injury, damage or loss, or relieve Tenant from any of Tenant’s obligations under this Lease, or entitle Tenant to terminate this Lease. ARTICLE XVIII ATTORNEYS’ FEES In the event that Landlord and Tenant shall become parties to or participate in any action or proceeding before any judicial or administrative authority in which the interpretation or enforcement of any provisions of this Lease as between Landlord and Tenant is at issue, all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by the prevailing party in such action or proceeding, and in any appeal taken in such action or proceeding, shall be paid by the non-prevailing party promptly on demand. Such payment obligation of the non-prevailing party shall be enforceable whether or not the action or proceeding is prosecuted to judgment, and shall apply as well to any and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred in connection with any enforcement of any order or judgment issued in any such action or proceeding and with any appeal from any such order or judgment. ARTICLE XIX DEFAULT BY LANDLORD; LIMITATION OF LIABILITY Section 19.01 Landlord Default. Landlord shall not be in default under this Lease unless Landlord fails to perform an express obligation of Landlord specifically set forth in this Lease within a reasonable period of time (not exceeding thirty (30) days, except as provided below) after receipt of written demand from Tenant specifying in reasonable detail the particulars regarding such alleged failure of Landlord reasonably necessary to allow Landlord to remedy the same (“Landlord Default Notice”). If a period of more than thirty (30) days following Tenant’s written demand is reasonably required for Landlord’s performance of any such obligation, then Landlord shall not be in default if Landlord promptly commences performance of such obligation after receipt of Tenant’s written demand and thereafter diligently pursues such performance to completion, provided that in no event shall such extension of performance extend beyond an additional nine (9) months. Tenant shall also concurrently la-1342702 58 provide a copy of any Landlord Default Notice sent to Landlord to any Creditor holding a Mortgage on or affecting any portion of the Building, and to any Ground Lessor, so long as the name and address of such Creditor or Ground Lessor, as applicable, shall have previously been furnished to Tenant in writing, provided that Tenant’s failure to provide any such copy shall not in any way affect Landlord’s obligation to remedy the default hereunder. Section 19.02 Limitation of Landlord’s Liability. Tenant agrees, for itself and for all Tenant Parties, that in the event of any actual or alleged failure, breach or default under this Lease by Landlord, the sole and exclusive remedy of Tenant and any Tenant Parties shall be against the fair market value of Landlord’s ownership interest in the Land, the Building, and the Building Common Areas (excepting therefrom any interest of Landlord in any of Landlord’s or Landlord Party’s personal property or fixtures located in the Building or on the Land arising from Landlord’s occupancy in the Building as a tenant), and no other assets or interests of Landlord shall be subject to any claim or cause of action, or to the recovery of any judgment or order, arising from or in connection with this Lease. The obligations of Landlord under this Lease do not constitute the personal obligations of any Equity Owners of Landlord, and no Equity Owner of Landlord shall be named or joined as a party in any action or proceeding (including any arbitration proceeding) brought under this Lease. ARTICLE XX RIGHT OF FIRST OFFER; TERMINATION RIGHT Section 20.01 Intentionally Omitted. Section 20.02 Right of First Offer to Purchase Building. (a) Nature of First Offer Right. Subject to the terms of this Section 20.02, Tenant shall have a right of first offer (the “Purchase ROFO”) during the Term to purchase the Building and the Land (the “Purchase Property”) upon the terms and conditions set forth in the Offer Notice (as defined below). The Purchase ROFO shall be exercisable only when and if Landlord elects, in its sole and absolute discretion, at any time during the Term of this Lease, to market or offer for sale the Purchase Property to the public or if Landlord receives a proposal to purchase the Purchase Property from any third party. The Purchase ROFO shall be personal to the original Tenant named in this Lease, and shall not be transferable or assignable to any subtenant, assignee, or other successor-in-interest of Tenant. The Purchase ROFO shall be effective only if (i) no Event of Default shall have occurred and be continuing and (ii) no other event shall have occurred which, with the passage of time or the giving of notice or both, would become an Event of Default, at the time of exercise of the Purchase ROFO. Landlord shall not, following the Lease Date, grant any third party any right to purchase the Purchase Property that would have priority over Tenant’s Purchase ROFO. Landlord hereby represents and warrants to Tenant that Landlord has not, prior to the Lease Date, granted any right to purchase the Purchase Property to any third party that would have priority over Tenant’s Purchase ROFO. (b) Purchase Offer. If Landlord elects to sell the Purchase Property, Landlord shall promptly notify Tenant in writing of the terms and conditions upon which Landlord would be willing to sell the Purchase Property to Tenant (an “Offer Notice”), including the purchase la-1342702 59 price, closing date (which in no event shall be later than two (2) months after the date of the Tenant Acceptance Notice referred to below), and any other special terms and conditions with respect to the sale of the Purchase Property. Tenant shall have the right to purchase the Purchase Property on the terms and conditions specified in the Offer Notice by giving written notice (the “Tenant Acceptance Notice”) to Landlord not later than four (4) months after Tenant’s receipt of the Offer Notice. If Tenant fails to deliver the Tenant Acceptance Notice to Landlord on a timely basis as provided in the preceding sentence (time being of the essence) or if Tenant timely delivers the Tenant Acceptance Notice but the transaction fails to close within the period specified for closing in the Offer Notice due to the actions or omissions of Tenant, then Tenant shall be deemed to have elected not to exercise the Purchase ROFO, such Purchase ROFO shall automatically lapse and expire and shall be of no further force and effect (except as provided below), and Landlord shall have the right to sell the Purchase Property to any third party or parties on such terms and conditions as may be acceptable to Landlord in its sole and absolute discretion, provided that if (i) the purchase price is less than ninety five percent (95%) of the purchase price in the Offer Notice, or (ii) the terms of the sale to the third party are otherwise materially more favorable to the third party than those terms offered to Tenant in the Offer Notice; in either such instance, Landlord shall not be permitted to close such sale to the third party and shall instead be required to submit a new Purchase ROFO containing the terms being offered to such third party to Tenant in accordance with the provisions of this Section 20.02. Section 20.03 Tenant’s Termination Option. Landlord acknowledges that Tenant is a charitable education corporation which operates for the benefit of The State University of New York (“SUNY”) and will be relying exclusively upon the grant monies received by the Tenant pursuant to that Tenant shall have the right to terminate this Lease (the “Tenant’s Termination Option”) upon not less than four (4) full months prior written notice to Landlord. The Tenant’s Termination Option shall be personal to the original Tenant named in this Lease, and shall not be transferable or assignable to any subtenant, assignee, or other successor-in-interest of Tenant. If Tenant exercises the foregoing right to terminate this Lease at any time prior to the Scheduled Term Commencement Date, Tenant shall, at Tenant’s option exercised in its sole discretion, either (i) return the TI Construction Space that has not been Substantially Completed as of the date of Tenant’s exercise notice to the condition such portion of the Premises was in prior to the commencement of Landlord’s Work, all at Tenant’s sole cost and expense, or (ii) pay Landlord for one hundred percent (100%) of the costs and expenses incurred by Landlord for the Substantial Completion of Landlord’s Work. . Section 20.04 Landlord’s Termination Option. Landlord shall have the right to terminate this Lease (the “Landlord’s Termination Option”), which termination of this Lease la-1342702 60 shall be effective at any time following the expiration of the first Extension Term, upon not less than twelve (12) full months’ prior written notice to Tenant (the “Termination Notice”). Subject to Landlord’s compliance with the provisions of Section 20.02, Landlord shall be entitled to deliver the Termination Notice to Tenant if Landlord has entered into a contract to sell the Purchase Property to an unaffiliated third party and the termination of this Lease shall be conditioned on the closing under such contract. For the avoidance of doubt, if the closing of the sale of the Purchase Property occurs and the termination of this Lease becomes effective, the twelve (12)-month notice period shall run from the Effective Delivery Date (as defined below) of the Termination Notice and not from the closing date of the sale of the Purchase Property, provided that (i) if the Effective Delivery Date is more than twelve (12) months before the expiration of the first Extension Term, then this Lease shall terminate as of the last day of the first Extension Term, and (ii) if the Effective Delivery Date is less than twelve (12) months before, or any time after, the expiration of the first Extension Term, then this Lease shall terminate as of the last day of the twelfth (12th) month after the Effective Delivery Date. ARTICLE XXI GENERAL PROVISIONS Section 21.01 Waivers. Any waiver by Landlord or Tenant of the other party’s failure to perform or observe any term, covenant or condition set forth in this Lease must be in writing and shall apply only to the extent and on the conditions, if any, expressly set forth in such writing. No such waiver shall be deemed to be a waiver of the underlying term, covenant or condition of this Lease, or a waiver of any subsequent or other failure to perform or observe any term, covenant or condition of this Lease. No custom or practice which may develop between Landlord and Tenant during the Term of this Lease shall be deemed to be a waiver of, to amend or modify, or to in any other way affect, the provisions of this Lease or the right of either party to insist upon performance and observance by the other party in strict accordance with the provisions of this Lease. Section 21.02 Notices. (a) Method of Delivery. All notices, demands, requests, or other communications of any type or nature which may be given, or which are required to be given, by either party to the other under this Lease (collectively, “Notices”) shall be in writing. All Notices shall be delivered to the parties at their respective addresses for notices set forth in the Basic Lease Terms (as such addresses may be changed from time to time as provided in subparagraph (b) below), and shall be deemed sufficiently given or delivered if (i) personally served on the party to whom addressed by messenger or courier service, or by an agent or representative of the party sending such Notice (“Personal Delivery”), (ii) sent by United States Postal Service certified or registered mail (return receipt requested), postage prepaid (“Postal Delivery”), or (iii) sent by means of a reputable overnight or next business day commercial delivery service (“Commercial Delivery”). (b) Effective Delivery Date. Each Notice shall be deemed to have been effectively delivered to the party to whom addressed on the first to occur of the following (“Effective Delivery Date”): (i) the date of actual delivery (or deemed actual delivery as la-1342702 61 provided in clause (B) below), as shown (A) in the case of Personal Delivery, on a written delivery schedule or affidavit signed by the person performing the delivery, or (B) in the case of Postal Delivery, on the date of receipt shown on the United States Postal Service return receipt (provided that actual delivery shall be deemed to have occurred not later than the expiration of seventy-two (72) hours after the time of deposit of the Notice with the United States Postal Service), or (C) in the case of Commercial Delivery, on the date of delivery as shown on the records of the delivery service; or (ii) the date on which delivery is refused by the addressee, as shown on a notation, schedule, report or affidavit signed by the person attempting to make the delivery; provided that a Notice sent by a party designating a change in the address to which future Notices are to be sent to such party shall become effective only on and as of the expiration of the third (3rd) day following the Effective Delivery Date of such Notice as determined in accordance with the immediately preceding clause (A) or (B). Section 21.03 Examination of Lease. Submission of a copy of this Lease (whether in draft or final form) to Tenant for examination or signature shall not be construed to create any right or option in Tenant to enter into a lease of the Premises, or to reserve any space in the Building for lease by Tenant, and this Lease shall not be or become effective for any purpose whatsoever, and shall not create any rights or obligations on the part of either Landlord or Tenant, unless and until this Lease has been fully executed and delivered by both Landlord and Tenant. Section 21.04 Authority to Execute. Each of the parties executing this Lease warrants and represents to the other party that such party executing this Lease is properly authorized to execute and deliver this Lease and to perform all covenants and obligations of such party provided for in this Lease, and that this Lease binds such party and is enforceable against such party in accordance with its terms. In addition, if Tenant, or any Equity Owner of Tenant, is a corporation, partnership, limited liability company, limited liability partnership, trust, or other entity (“Tenant Entity”), each individual executing this Lease for or on behalf of any such Tenant Entity at any ownership or beneficial tier (whether in the capacity of a holder of any equity, beneficial or other ownership interest in, or of any management or other authority to act on behalf of, such Tenant Entity) (each, a “Signatory”), represents and warrants that such individual is duly authorized, in accordance with the governing documents of the applicable entity for which such Signatory is acting, to execute this Lease as a Signatory on behalf of such entity, and that this Lease is binding upon and enforceable against Tenant in accordance with its terms. Section 21.05 Consent. Whenever this Lease provides for the giving of consent or approval by Landlord, or for the making of any decision or determination by Landlord, such consent, approval, decision or determination shall not be unreasonably withheld, conditioned, delayed or made, as applicable, unless the provision of this Lease that requires or permits such consent, approval, decision or determination expressly provides that such consent, approval, decision or determination may be given, withheld or made in the sole and absolute discretion of Landlord, in which latter event Landlord shall be entitled to act unilaterally in any manner that Landlord, acting in good faith, determines to be in its own best interests, even if such action could be characterized for any reason as unreasonable or could adversely affect the rights or interests of Tenant or any third party. la-1342702 62 Section 21.06 Brokers. Each of Tenant and Landlord represents and warrants to the other party that it has not dealt with any real estate broker, agent, or finder in connection with this Lease, and knows of no real estate broker, agent or finder who may be entitled to a commission or other compensation of any type or nature in connection with this Lease (collectively, “Lease Commission”). Each party agrees to indemnify, defend, and hold the other party harmless from and against any and all Losses arising directly or indirectly, in whole or in part, from any claim or allegation made by any broker, agent or finder, that such broker, agent or finder may be entitled to any Lease Commission as a result of any act, omission, agreement, commitment or understanding (express or implied) on the part of the indemnifying party, whether in connection with this Lease or the Premises or otherwise. Section 21.07 Use of Building Name; Change in Address of Building. Tenant shall not, without the prior written consent of Landlord, use the name of the Building for any purpose other than as the address of the business conducted by Tenant in the Premises. Landlord reserves the right, at any time and from time to time, and without incurring any liability to Tenant or any other person or entity, to change the address, street or building number (subject to Landlord obtaining any approval for such change that is required by any governmental authority having jurisdiction over the Land or the Building, as applicable, or by any matters recorded in the public records of the Monroe County Clerk’s Office). In the event that the address, street or building number is changed, this Lease shall thereafter be deemed automatically amended to reflect the new address, street or building number, and Landlord shall have no liability to Tenant or any other person or entity for any costs or expenses incurred by Tenant or such other person or entity as a result of any such change in address, street or building number. Section 21.08 Choice of Law; Venue. This Lease shall in all respects be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any rules or principles of conflicts of law that might cause the application of the laws of any other jurisdiction. Each party expressly agrees and stipulates that the venue for any action or proceeding that may be filed or commenced by or on behalf of such party with respect to this Lease shall be solely in the county in the State of New York in which the Land is located. Section 21.09 Severability. If any provision of this Lease shall be determined to be invalid, unenforceable, or ineffective for any reason whatsoever, such provision shall nevertheless be enforced to the maximum extent permitted by Applicable Law, and despite such invalidity, unenforceability or ineffectiveness, all other provisions of this Lease shall be and remain in full force and effect. Section 21.10 Successors and Assigns. Subject to compliance by Tenant with the requirements of Section 9.03 of this Lease, the provisions of this Lease shall inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns of the parties to this Lease. Section 21.11 Interpretation. (a) Landlord and Tenant. Wherever used in this Lease, unless the context otherwise indicates a contrary intent, or unless otherwise specifically provided herein, the word “Tenant” shall mean and include both the original named Tenant and (subject to compliance la-1342702 63 with the provisions of Section 9.03 as applicable) any subsequent owner or owners of all or any portion of the leasehold estate in the Premises created by this Lease (excluding any subtenants), and the word “Landlord” shall mean and include both the original named Landlord and any direct or indirect successor or assign of the original named Landlord which acquires fee title to the Building, the Land, or any portion of the Land on which the Building is situated. (b) Other Terms. Whenever the context so requires in this Lease, the use of a particular gender in any provision of this Lease shall not restrict the application of such provision to the particular gender, but shall be deemed to include and refer to any other gender, and the singular number shall include the plural and conversely. The use of the word “including” shall be deemed in all instances to be followed by the words “without limitation.” Unless otherwise expressly stated, any references to “days” shall mean all calendar days, including without limitation weekend days. (c) Headings. The Section and paragraph headings of this Lease are for convenience of reference only and shall have no effect upon the construction or interpretation of any provisions of this Lease. Section 21.12 Joint and Several Liability. If at any time during the Term of this Lease there shall be more than one person or entity constituting Tenant, the obligations of all such persons and entities under this Lease shall be joint and several. Section 21.13 Time For Performance. Time is of the essence for the performance of each term, condition and covenant of this Lease. Section 21.14 Recording. Upon the parties’ determination of the Scheduled Term Commencement Date in accordance with the terms of this Lease, Landlord and Tenant shall execute a memorandum of this Lease for recording purposes, which memorandum shall be in the form of Exhibit F attached to this Lease. Section 21.15 Incorporation of Prior Agreements; Amendments. The Schedules and Exhibits attached to this Lease (together with any drawings, riders and other attachments, if any, that are signed or initialed by both Landlord and Tenant and affixed to this Lease) shall constitute a part of this Lease. This Lease, together with any such Schedules, Exhibits, drawings, riders or other attachments, constitutes the entire agreement between Landlord and Tenant relative to the Land, the Premises, the Building, and the Building Common Areas, and the respective rights, interests and obligations of the parties created by this Lease, and this Lease and any such Schedules, Exhibits, drawings, riders and other attachments may be altered, amended, modified or revoked only by an instrument in writing signed by both Landlord and Tenant. Landlord and Tenant agree that all prior or contemporaneous oral or written agreements between and among themselves and their agents or representatives relating to the leasing of the Premises, or otherwise concerning the Land, the Building, and the Building Common Areas, including any letters of intent, term sheets, outlines of deal terms, or interim drafts of this Lease, are fully merged into and revoked by this Lease. Section 21.16 Rules and Regulations. Tenant shall at all times observe and comply with, and cause all Tenant Parties to observe and comply with, the rules and regulations attached la-1342702 64 to this Lease as Exhibit D, and with all reasonable modifications, additions and supplements thereto from time to time adopted by Landlord and communicated to Tenant by Notice (the “Rules and Regulations”), provided that (i) in the event of any conflict between such Rules and Regulations and the provisions of the main body of this Lease, the provisions of the main body of this Lease shall control, and (ii) no such modification, addition or supplement shall be binding on Tenant if and to the extent that it would (x) be in conflict with any express provision of this Lease, or would otherwise deprive Tenant of a right or benefit expressly provided by the Lease which is not subject to the exercise of discretion by Landlord, or (y) cause Tenant to pay any outof-pocket costs to comply with the same. Section 21.17 Survival of Obligations. Upon any termination of this Lease, whether such termination occurs upon the Scheduled Term Expiration Date or upon any earlier termination of this Lease by reason of any Event of Default or pursuant to the mutual agreement of the parties or otherwise in accordance with the terms of this Lease (herein, collectively, “Final Termination”), any and all obligations of Tenant under this Lease which Tenant was required to perform on or prior to the date of Final Termination but which have not been fully performed in accordance with the provisions of this Lease as of such date of Final Termination, shall survive the Final Termination of this Lease and shall be fully enforceable by Landlord against Tenant by means of any action, proceeding or other process, whether at law or in equity, that may be permitted by or otherwise available under Applicable Law. Section 21.18 Quiet Enjoyment. Upon Tenant paying the Rent and performing all of Tenant’s obligations under this Lease as and when due, and so long as no Event of Default shall exist, Tenant may peacefully and quietly enjoy the Premises during the Term of this Lease as against all persons or entities claiming by or through Landlord. Section 21.19 Confidentiality. Landlord and Tenant acknowledge that the terms of this Lease are of a confidential nature. Except to the extent disclosure is required in accordance with Tenant’s Records Access Policy (http://www.rfsuny.org/media/RFSUNY/Policies/records_access_policy_pol.htm) or Applicable Law, Landlord and Tenant shall maintain the confidentiality of the terms of this Lease and shall not disclose the terms hereof except to its Affiliates and professional consultants and advisors in connection with this Lease or as may otherwise be required by law. Landlord hereby acknowledges that, as reflected in Tenant’s Records Access Policy, Tenant is subject to the New York Freedom of Information Law, N.Y. Pub. Off. Law §84, et seq., and may be required to disclose this Lease in compliance therewith. [SIGNATURE PAGES FOLLOW] la-1342702 65 IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease as Of the Lease Date. LANDLORD: SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware limited liability company Nam Bernard mond Cal and}. ?It the-f- Afflm Of?cer) Vtcc, Braidacl? and amt Covaztt Qawtmler [Signature Page Continues] 1a?1342?702 Signature Page TENANT: THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK, 21 New York education corporation, o/b/o SUNY POLYTECHNIC INSTITUTE By: Name: Paul Kelly Title: Operations Ma la-1342702 Signature Page SCHEDULE 1 TENANT LIABILITY INSURANCE REQUIREMENTS 1. Required Liability Policies. Tenant shall maintain the following liability policies of insurance for the applicable Insuring Period (collectively, “Tenant’s Liability Policies”): (a) Commercial General Liability. Tenant shall maintain a policy of commercial general liability (“CGL”) insurance, with a liability limit of not less than Ten Million Dollars ($10,000,000) per occurrence (inclusive of the liability limits contained in any umbrella or excess liability policy which coordinates with Tenant’s CGL policy, and which complies with the requirements set forth in subparagraph (d) below) covering (i) bodily injury and property damage occurring in, on or about the Premises, or in, on or about any other areas of the Land, the Building, or the Building Common Areas, including any parking and landscaped areas, which Tenant has the right to use, either exclusively or in common with others, or for which Tenant could otherwise have any liability or responsibility under Applicable Law or under the provisions of the Lease (collectively, including the Premises, “Tenant Use Areas”), (ii) personal and advertising injury, and (iii) contractual liability coverage. Tenant’s CGL policy shall be written on ISO Form CG 00 01, or a substitute form reasonably satisfactory to Landlord providing equivalent coverage. With respect to the contractual liability coverage provided by Tenant’s CGL policy or any such umbrella or excess liability policies, (A) such coverage shall apply to, but not be limited to, liability assumed by Tenant under the Lease (including the tort liability of any other person or entity assumed in a business contract), including any indemnification obligations of Tenant set forth in the Lease, (B) no endorsement shall be added to any such policy that would modify the definition of “Insured Contract” to eliminate tort liability assumed by Tenant under a contract or agreement pertaining to Tenant’s Business, including any contractual assumption of liability by Tenant for a Tenant Party’s sole negligence, and (C) any personal injury contractual liability exclusion contained in Tenant’s CGL policy or any such umbrella or excess liability policy shall be deleted by endorsement. (b) Worker’s Compensation and Employer’s Liability Insurance. Tenant shall maintain a policy or policies of (i) worker’s compensation insurance, with minimum limits in an amount no less than the statutory limits provided from time to time under the laws of the State in which the Premises are located, with such insurance to cover all employees of Tenant performing any work or services at or for the Premises and any other persons performing any work or services at or for the Premises for whom Tenant may be liable for workers’ compensation claims, and (ii) employer’s liability insurance, with minimum limits of not less than One Million Dollars ($1,000,000.00) for each accident and One Million Dollars ($1,000,000.00) for bodily injury attributable to disease. Without limiting the foregoing, each such policy shall be in form and content sufficient to comply with all worker’s compensation and employer’s liability coverage requirements imposed by Applicable Law with respect to Tenant and its business operations. (c) Business Auto Liability Insurance. Tenant shall maintain a business auto policy issued on an occurrence basis satisfying at least the following requirements: (i) the minimum liability amount of such policy shall be not less than One Million Dollars ($1,000,000.00) per accident (inclusive of the liability limits contained in any umbrella or excess liability policy which coordinates with such business auto policy, and which complies with the requirements set la-1342702 forth in subparagraph (d) below); (ii) the insurance shall be written on the current ISO edition of ISO CA 00 01, or an equivalent form of policy reasonably satisfactory to Landlord; and (iii) the policy shall cover damages attributable to bodily injury or property damage caused by an accident and resulting from the ownership, maintenance or use of an automotive vehicle, including owned, hired and nonowned vehicles. (d) Umbrella and Excess Liability Insurance. If any portion of the insurance coverage required by subparagraph (a) and (c) above is to be maintained by or through an umbrella policy or excess liability policy, such policy shall be issued on an occurrence basis satisfying at least the following requirements and otherwise reasonably acceptable to Landlord: (i) the insurance provided by such policy shall be excess over and be no less broad that the applicable coverages specified in subparagraphs (a) and (c) above, provided that the policy limits for the primary and umbrella or excess liability policies may be allocated between such policies as selected by Tenant; (ii) drop-down coverage shall be provided for reduction and exhaustion of underlying aggregate limits; and (iii) the policy shall include a duty on the part of the insurer to defend any insured, including any additional insured. 2. General Liability Policy Requirements. (a) Policy Issuance. Each of Tenant’s Liability Policies shall (i) be issued by a reputable insurance company licensed to transact an insurance business in the State of New York which has financial strength, credit and debt ratings from A.M. Best Company reasonably acceptable to Landlord (as applied by Landlord on a consistent basis to all tenants or occupants of the Building which have financial resources comparable to those of Tenant and which are using their respective premises for general office purposes), (ii) be endorsed to provide that Landlord shall receive thirty (30) days’ written notice of cancellation of the applicable policy, (iii) be endorsed to include a waiver of subrogation by the insurer as to Landlord and each other party which is named as an additional insured under such policy (as provided in subparagraph (b) below), and (iv) be endorsed to provide primary insurance coverage for Landlord and each other additional insured on the policy, and shall not seek contribution from or by any insurance maintained by Landlord or any other additional insured. (b) Additional Insured Requirements. Each of Tenant’s Liability Policies (excluding only the policies described in Paragraph 1(b) above): (i) shall name Landlord and Landlord’s mortgagee, Deutsche Bank AG New York Brank as Administrative Agent, with an address at 60 Wall Street, New York, New York 10005 (and, if requested in writing by Landlord, any one or more Landlord Parties) as an additional insured pursuant to one or more endorsements complying with the requirements set forth below in this subparagraph (b), and (ii) shall insure the liability of Landlord and each other additional insured, contingent or otherwise, for and with respect to (A) any acts or omissions of Tenant or any Tenant Parties occurring on or about the Premises or any other Tenant Use Areas, (B) any work relating to the maintenance or repair of the Premises or the construction or installation of any Alterations on or for the Premises performed by or for Tenant, and (C) any act, omission, conduct or transaction while on the Premises of any person or entity. No language excluding coverage for the acts or omissions of Landlord or any other additional insured shall be contained in any policy endorsement. The additional insured endorsements that are provided to Landlord (and any Landlord Parties requested by Landlord as provided above) shall be issued on ISO form CG 20 11 04 13, with the la-1342702 premises to be described in such endorsement as the Premises and the associated “Common Areas” to be described to include all other Tenant Use Areas. In addition, whenever any Alterations are to be constructed or installed by or for Tenant (except where all of the Alterations work is to be performed by a contractor under a direct contract with Landlord), or any substantial repair work is to be performed by or for Tenant on or for the Premises or any other Tenant Use Areas, Tenant shall, unless otherwise agreed by Landlord in writing, provide to Landlord prior to the commencement of such work an ISO form CG 20 10 04 13 endorsement (covering all ongoing Alterations or repair work to be performed by Tenant’s contractors and subcontractors) and an ISO form CG 20 37 04 13 endorsement (covering completed operations relating to such Alterations or repair work performed by Tenant’s contractors and subcontractors), in each such instance naming Landlord (and any Landlord Parties requested by Landlord) as an additional insured. Tenant may substitute for any of the foregoing specified endorsements one or more equivalent endorsements reasonably satisfactory to Landlord that provide no less coverage for each additional insured. If a CGL policy form other than ISO form CG 00 11 is used with Landlord’s written approval, the policy shall provide cross-liability coverage for all insureds as would be achieved under the standard ISO separation of insureds clause. (c) Prohibited Endorsements. Without limiting any other provisions of this Schedule 1, all exclusions from coverage that are contained in any endorsements attached to any of Tenant’s Liability Policies shall be subject to Landlord’s reasonable approval, and in no event shall any such endorsements exclude any liability or coverage which is expressly required to be included pursuant to this Schedule 1. la-1342702 SCHEDULE 2 TENANT PROPERTY DAMAGE AND INCOME REPLACEMENT INSURANCE REQUIREMENTS 3. Property Damage Insurance. Tenant shall maintain property insurance on a Causes of Loss—Special Form policy satisfying at least the following minimum requirements: (a) Scope of Coverage. The policy shall be issued for One Hundred Percent (100%) of the replacement cost, on an agreed value basis, of the following property interests (collectively, the “Insured Property”): (i) all improvements, including all items constituting part of Landlord’s Work, constructed or installed in the Premises, whether by Tenant or Landlord, in connection with Tenant’s initial occupancy of the Premises, (ii) all equipment and other property owned or leased by Tenant and used in connection with the Premises, including Tenant’s personal property at the Premises and any trade fixtures of Tenant, and (iii) any and all Alterations at any time constructed or installed by or for Tenant in or for the Premises. In addition, at Landlord’s option, the policy shall be endorsed (under one or more endorsements reasonably satisfactory to Landlord) to include coverage for earthquake, flood (with sprinkler leakage coverage), damage to plate glass, application of ordinance or law, terrorism, theft, and debris removal. (b) Form of Policy. The policy shall be issued on an ISO CP 10 30 form of policy, or an equivalent form of policy reasonably satisfactory to Landlord. (c) Landlord as Insured. The policy shall include Landlord as an additional insured or, at Landlord’s option, as a loss payee pursuant to an ISO form CG 12 19 06 07 endorsement, or an equivalent endorsement reasonably satisfactory to Landlord providing no less coverage for Landlord. In either such instance, the policy shall include an ISO endorsement, in form reasonably acceptable to Landlord, adding Landlord as an insured for loss of “rental value.” The policy shall not be subject to coinsurance. No exclusion shall be permitted for the acts or omissions of any insured or additional insured. 4. Work Under Construction; Builder’s Risk Coverage. During the course of construction or installation of any Alterations, Tenant shall maintain, or shall cause Tenant’s contractor to maintain, a policy of builder’s risk insurance satisfying the following requirements. (a) Amount of Coverage. The Alterations under construction shall be insured on a replacement cost basis, but in no event less than the total contract amount payable to Tenant’s contractor for the construction or installation of such Alterations, plus cost of debris removal. (b) Scope of Coverage. The policy shall be issued in the form of a Causes of Loss―Special Form policy (ISO Form 10 30, or an equivalent form reasonably satisfactory to Landlord), written to cover “all risks” of physical loss (including at a minimum fire, lightning, explosion, windstorm or hail, smoke, aircraft or vehicles, riot or civil commotion, theft, vandalism, malicious mischief, collapse, and such other additional occurrences as may be reasonably required by Landlord) except those specifically excluded in the policy form. The policy shall be written on a completed value, non-reporting form basis. No protective safeguard la-1342702 warranty shall be permitted. All exclusions and deductibles under the policy shall be subject to Landlord’s prior written approval. In the case of Alterations that are considered by Landlord to be major in nature, Landlord may, at its option, require additional endorsements to the policy for business income/rental value, delay expenses, damages arising from errors, omissions or deficiencies, debris removal, ordinance or law, mechanical breakdown, terrorism, earthquake, and other exposures or occurrences reasonably considered by Landlord to be appropriate for protection of Landlord’s interests in the Premises or the Building. (c) Covered Property. The policy shall insure, at a minimum, (i) all structures and other improvements under construction or being installed in or for the Premises as part of the Alterations, (ii) all temporary structures associated with such construction or installation, and (iii) all materials and supplies present on the Land, or in the Building or any Building Common Areas, for purposes of such construction or installation, or located off the site of the Land but intended for use at the Premises, or in transit to the Premises (other than by means of ocean transit) (“Covered Property”). (d) Named Insureds. Landlord, Tenant, Tenant’s contractor for the Alterations, any major subcontractors (as designated by Landlord) working on the Alterations, and any mortgagee of Landlord designated in writing by Landlord, shall be named as additional insureds in the policy. No exclusion shall be permitted for the acts or omissions of any insured. (e) Duration of Coverage. The policy shall be maintained in effect until the first to occur of the following: (i) the date on which all persons and organizations who are named insureds under the policy agree in writing that such policy can be terminated, (ii) the date of final payment for the Alterations, as provided for in the contract documents governing the construction or installation of the Alterations, or (iii) the date on which the insurable interests in the Covered Property of all insureds other than Tenant’s contractor have ceased. The policy shall be endorsed to permit occupancy of any portion of the Covered Property under construction or in the course of being installed. 5. Machinery Insurance. Tenant shall maintain machinery insurance satisfying at least the following requirements. (a) Scope of Coverage. Coverage shall be provided for all operations at the Premises, and shall cover damages arising out of any explosion, malfunction, or breakdown of any pressure vessels, hot water heaters, air conditioning and heating equipment, and electrical switchgear on or serving the Premises for which Tenant is responsible to maintain and/or replace pursuant to the terms of the Lease. (b) Form of Policy. The insurance shall be provided by endorsement to Tenant’s property damage policy or provided by a separate policy, in either instance written on a comprehensive form reasonably satisfactory to Landlord, including business income coverage. If a separate policy is provided, an ISO CP 12 72 Joint or Disputed Loss Agreement, or its equivalent, shall be added to both the primary policy and the machinery policy. (c) value basis. la-1342702 Amount of Policy. The insurance shall be written on replacement cost, agreed (d) Additional Insureds. Landlord and any mortgagee of Landlord designated in writing by Landlord, shall be named as additional insureds pursuant to an endorsement to the policy in form and content reasonably satisfactory to Landlord. No exclusion shall be permitted for the acts or omissions of Landlord or any other additional insured. 6. Income Replacement Coverage. Tenant shall maintain business income and extra expense insurance satisfying at least the following requirements. (a) Scope of Coverage. Coverage shall be provided for all operations of Tenant conducted on or from the Premises. (b) Amount of Coverage. Coverage shall be equal to no less than twelve (12) months of income and ongoing expenses of Tenant attributable to Tenant’s operations at or from the Premises. (c) Form of Policy. The policy shall be issued on an ISO CP 00 30 10 12 Business Income and Extra Expense Coverage form, on an agreed value basis. 7. General Policy Requirements. Each of Tenant’s policies described in this Schedule 2 shall (a) be issued by a reputable insurance company licensed to transact an insurance business in the State of New York which has financial strength, credit and debt ratings from A.M. Best Company reasonably acceptable to Landlord (as applied by Landlord on a consistent basis to all tenants or occupants of the Building which have financial resources comparable to those of Tenant and which are using their respective premises for general office purposes), (b) be endorsed to provide that Landlord shall receive thirty (30) days’ written notice of cancellation of the applicable policy, (c) be endorsed to include a waiver of subrogation by the insurer as to Landlord and each other party which is named as an insured or additional insured under such policy, and (d) be endorsed to provide that such policy will be primary as to Landlord and each other party which is named as an insured or additional insured under such policy, and shall not seek contribution from or by any other insurance maintained by Landlord or any other insured or additional insured, with such other insurance being excess, secondary and non-contributing. la-1342702 SCHEDULE 3 TENANT CONTRACTOR INSURANCE REQUIREMENTS During the course of construction or installation of any Alterations or the performance of any substantial repair work within or for the Premises (collectively, “Work”), Tenant shall cause Tenant’s contractor responsible for the performance of such Work (“Contractor”) to maintain the following insurance: 8. Commercial General Liability Insurance. A policy of commercial general liability insurance issued on an occurrence basis, in a minimum amount of coverage equal to Five Million Dollars ($5,000,000) per occurrence for bodily injury and property damage attributable to (a) any act or omission of Contractor, or any subcontractor or material supplier engaged directly or indirectly by Contractor in connection with the Work, or (ii) any condition created by Contractor, or any such subcontractor or material supplier, occurring in, on or about the Premises, or in or about any other Tenant Use Areas. If such policy contains a general aggregate limit, such limit shall apply separately to the Premises and other Tenant Use Areas pursuant to an ISO form CG 25 04 05 09 Designated Location(s) General Aggregate Limit, or an equivalent endorsement satisfactory to Landlord. (a) Completed Operations Coverage. The Contractor shall maintain Products-Completed Operations coverage with respect to bodily injury and property damage, and for construction defects where such coverage is available under Applicable Law, caused in whole or in part by or attributable to the Work for a period of 5 years after final completion of the Work. Such coverage shall be endorsed with an ISO form CG 20 37 04 13 endorsement scheduling Tenant, Landlord and any Landlord Parties designated by Landlord as additional insureds for the entirety of such post-completion period. (b) Form of Policy. The insurance shall be issued on an ISO CG 00 01 form of policy, and shall cover liability arising from premises, operations, Owner’s & Contractor’s Protective Liability for Contractor’s liability arising out of the hire of subcontractors and independent contractors, and incidental design liability arising from Contractor’s construction means and methods. Coverage shall also include (without limitation) liability assumed by the Contractor under its construction contract with Tenant (including tort liability of another party assumed in a business contract), and the personal injury contractual liability exclusion shall be deleted. (c) Additional Insureds. The policy shall be endorsed with an ISO CG 20 10 04 13 endorsement (or an equivalent endorsement reasonably satisfactory to Landlord) listing Tenant, Landlord, Landlord’s mortgagee (Deutsche Bank AG New York Brank as Administrative Agent, with an address at 60 Wall Street, New York, New York 10005) and any other Landlord Parties designated by Landlord as additional insureds. No exclusion shall be permitted for the acts or omissions of any additional insured. (d) Special Endorsement. The policy shall include an Electronic Data Liability endorsement in ISO form CG 04 37, with coverage to the full limits of the policy. la-1342702 (e) Prohibited Endorsements. Without limiting any other provisions of this Schedule 3, all exclusions from coverage that are contained in any endorsements attached to the policy shall be subject to Landlord’s reasonable approval, and in no event shall any such endorsements exclude any liability or coverage which is expressly required to be included pursuant to this Schedule 3. 9. Worker’s Compensation And Employer’s Liability Insurance. Contractor shall maintain a policy or policies of (i) worker’s compensation insurance, with minimum limits in an amount no less than the statutory limits provided from time to time under the laws of the State in which the Premises are located, with such insurance to cover all employees of Contractor performing any work or services at or for the Premises and any other persons performing any work or services at or for the Premises for whom Contractor may be liable for workers’ compensation claims, and (ii) employer’s liability insurance, with minimum limits of not less than One Million Dollars ($1,000,000.00) for each accident and One Million Dollars ($1,000,000.00) for bodily injury attributable to disease. In addition, where a Professional Employer Organization or “leased employees” are utilized, Contractor shall require its leasing company to provide worker’s compensation insurance for such workers, and such policy shall be endorsed with an Alternate Employer endorsement in favor of Landlord in a form reasonably acceptable to Landlord. Without limiting the foregoing, each such policy shall be in form and content sufficient to comply with all worker’s compensation and employer’s liability coverage requirements imposed by Applicable Law with respect to Tenant and its business operations. 10. Business Auto Liability Insurance. Contractor shall maintain a business auto policy issued on an occurrence basis satisfying at least the following requirements: (a) the minimum liability amount of such policy shall be not less than One Million Dollars ($1,000,000.00) per accident; (b) the insurance shall be written on the current ISO edition of ISO CA 00 01, or an equivalent form of policy reasonably satisfactory to Landlord; and (c) the policy shall cover damages attributable to bodily injury or property damage caused by an accident and resulting from the ownership, maintenance or use of an automotive vehicle, including owned, hired and nonowned vehicles. 11. Builder’s Risk Insurance. Contractor shall maintain a policy of builder’s risk insurance satisfying at least the requirements specified for such type of policy in Paragraph 2 of Schedule 2 attached to the Lease. 12. General Policy Requirements. Each of Contractor’s policies described in this Schedule 3 shall (a) be issued by a reputable insurance company licensed to transact an insurance business in the State of New York which has financial strength, credit and debt ratings from A.M. Best Company reasonably acceptable to Landlord (as applied by Landlord on a consistent basis to all tenants or occupants of the Building which are performing any Alterations work or substantial repair work on or affecting their premises, and which are using their respective premises for general office purposes), (b) be endorsed to provide that Landlord shall receive thirty (30) days’ written notice of cancellation of the applicable policy, (c) be endorsed to include a waiver of subrogation by the insurer as to Tenant, Landlord and each other party which is named as an insured or additional insured under such policy, and (d) be endorsed to provide that such policy will be primary as to Tenant, Landlord and each other party which is named as an insured or additional insured under such policy, and shall not seek contribution from or by any other la-1342702 insurance maintained by Tenant, Landlord or any other insured or additional insured, with such other insurance being excess, secondary and non-contributing. la-1342702 EXHIBIT A DESCRIPTION OF LAND ALL that tract or parcel of land, situate in the City of Rochester, Monroe, County, New York, known and described as Lot #AR-1a a re-subdivision of the B-81 Subdivision amended as set forth on map filed in the Monroe County Clerk’s Office November 29, 2000 in Liber 306 of Maps, Page 52. SAID Lot #AR-1a fronts on the east side of Lake Avenue and is of the dimensions shown on said map. TOGETHER with the benefits of Easement and Maintenance Agreement between Mark F. Cianca, John M. Scatigno and Eastman Kodak dated December 8, 2000 and recorded December 11, 2000 in Liber 9397 of Deeds, page 455. A-1 la-1342702 EXHIBIT OUTLINE AND DESIGNATION OF PREMISES [Attached] B?l lat-1342702 Exhibit B: Building 81 Existing 4th Floor LEGEND Description Sqft. I Description Sqft. Class 1000 Clea nroom 4600 Office Space 4613 Lab Space 6020 Gowning Room 100 The black line represents the perimeter of the floor 5-. (Si 2 i Genesee River Tenant Space f? 2 Shared Space I .1 (0.3 r, nu) L061 an; .4 I A . LIA .Lz. iiif?; I ?uvl vi 4/ (42Lake Avenue i ,1 1 . Exhibit B: Building 81 Existing 5th Floor LEGEND Description Sqft. Description Sqft. Class 1000 Cleanroom 3720 Existing Class 100 Cleanroom (400) Class 10000 Cleanroom 3180 Office Space 5597 Lab Space 2420 Gowning Area 200 The black line represents the perimeter of the floor i Genesee River 954- I 70*: - i A . E: Tenant Space D25hared Space . 0.99 [?3237, j. 2? Ii2111] J) I naru (OJ A 12 >1 EXHIBIT WORK LETTER C?l lat-1342702 1214342702 1214342702 1214342702 1214342702 1214342702 1214342702 1214342702 lat-1342702 EXHIBIT D RULES AND REGULATIONS 1. Common Rooms and Areas. Rooms and areas used in common by tenants of the Building shall be subject to all additional rules and regulations from time to time posted by Landlord in such rooms and areas. 2. Delivery Areas. To the extent practicable, all deliveries and pickups of goods and merchandise, and all removal of garbage and refuse, shall be made by using the rear exit of the Building, if possible, or such other area of the Building or the Building Common Areas as shall be designated from time to time by Landlord in order to minimize any disruption to the business operations of any tenants of the Building or the existence of any unattractive condition visible from within or outside the Building. At no time shall any tenant of the Building permit any goods or merchandise to be deposited or stored on any sidewalks or walkways adjacent to the Building or in or on any of the Building Common Areas. 3. Directory. A directory may be provided within the Building at such locations as may be designated by Landlord from time to time, for the purpose of displaying the name and location of the tenants which are leasing space within such Building. 4. Disposal of Trash and Rubbish. Tenants shall store all trash and garbage in enclosed bins or other receptacles within their separately demised premises, and will arrange for the pickup of such trash and garbage at their expense. No tenant shall burn, or chemically or biologically treat in any manner, any trash or garbage of any kind in, on or about any portion of the Land, the Building, or the Building Common Areas. No material shall be placed in trash boxes or receptacles if such material is of such nature as to be in violation of any law or ordinance governing disposal of such material. No rubbish or debris will be deposited by any tenant in the corridors of the Building, or elsewhere on or within the Land or the Building Common Areas, which has not been specifically designated by Landlord for such purpose. Landlord will permit Tenant to maintain, at Tenant’s sole cost and expense, one (1) dumpster in the designated area, provided that Landlord has previously approved the size and location in the designated area of Tenant’s dumpster. 5. Parking. Landlord shall have the right to adopt and promulgate reasonable rules and regulations from time to time with respect to all parking areas and other common areas located on the Land, including the right to designate parking areas for use by employees and other personnel of tenants and to prohibit such employees and other personnel from using parking areas designated exclusively for visitors and invitees. For the enforcement of such rules and regulations, Landlord shall have available to it all remedies that are available at law or in equity. 6. Lost or Stolen Personal Property. Landlord will not be responsible for lost or stolen personal property, equipment, money, jewelry, or anything of value from the Building or the Building Common Areas, including any parking areas, or from any public rooms, such as meeting rooms, cafeterias and auditoriums, regardless of whether any such loss or theft occurs when any such areas are locked or unlocked. D-1 la-1342702 7. Obstruction of Common Area. Except as otherwise authorized or approved by Landlord in writing, all Building Common Areas will be used only for ingress and egress to the tenants’ separately demised premises, and for such gathering, lounging and other purposes as are not prohibited under any rules and regulations adopted by Landlord from time to time and are either posted on such common areas or otherwise communicated to the tenants of the Buidling in writing. Only authorized employees or agents of Landlord will be permitted in areas housing mechanical or electrical equipment or machinery of any kind. 8. Service Areas. All loading and unloading of goods, materials and supplies, and all garbage and refuse disposal, shall be made only through loading areas and service ways provided for such purposes at the Building or within the Building Common Areas. 9. Signs, Screens and Awnings; Window Displays. No notice or advertisement visible from the exterior of the Building will be permitted without the prior written approval of Landlord. No tenant shall use any method or type of window advertising without Landlord’s prior written approval, which shall be given only if such tenant’s proposal is considered by Landlord to be consistent with the configuration, reputation, and character of the Building and is not otherwise inappropriate for the Building in Landlord’s good faith judgment. 10. Solicitors. Landlord reserves the right to eject from the Building, the Land, and the Building Common Areas any solicitors, canvassers, artisans, entertainers, or peddlers, or any other class of persons who, in the judgment of Landlord, may annoy or interfere with the operation of the business of Landlord or any tenant of the Building. 11. Use Restrictions. No cooking shall be done or permitted in a tenant’s separately demised premises or the Building Common Areas. Tenants shall not at any time bring, allow or keep upon the Land, the Building or the Building Common Areas any flammable, combustible or explosive fluid, chemical or substance in such quantity as may endanger or imperil the Building, or the health, safety or property of any person. No bicycles, skateboards, skates, or other wheeled methods of transportation, and no animals, birds, reptiles or insects of any kind, shall be brought into or kept in or about the Land, the Building or the Building Common Areas. No tenant shall, at any time, occupy (or permit occupancy of) any part of their separately demised premises, the Land, the Building or the Building Common Areas for sleeping or lodging purposes. No tenant shall be permitted to store any bicycles in any portion of the Building Common Areas not specifically designated for bicycle storage, which, as of the Lease Date, is located behind the fenced area in the North Parking Lot. 12. Violations. Landlord is not responsible to any tenant for the nonobservance or violation of these Rules and Regulations by any other tenant. 13. Washrooms. All lavatory facilities and other water dispensing equipment or fixtures located in the Building Common Areas shall not be used for any purpose other than that for which they were constructed or installed. The expense to repair any breakage, stoppage, or damage resulting from any violation of the preceding limitation shall be borne by the tenant whose employees, personnel or visitors have caused the same. D-2 la-1342702 14. Windows and Doors. No windows, glass doors, or any other light sources that allow light to enter into any Building Common Areas shall be obstructed or covered except in a manner approved in writing by Landlord. D-3 la-1342702 la- 1 342702 EXHIBIT DEPICTION 0F PARKING LOT 19643Lake Avenue Orthogonaynco ?x hastmm' Kodak Company Rum-amt] 8 EXHIBIT F MEMORANDUM OF LEASE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Research Foundation for The State University of New York o/b/o SUNY Polytechnic Institute 257 Fuller Road Albany, New York 12203 Attn: Operations Manager MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE (this “Memorandum”) is entered into on and as of [________________], 2017, by and between SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware limited liability company (“Landlord”), and THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK, a New York education corporation, on behalf of SUNY POLYTECHNIC INSTITUTE (“Tenant”). RECITALS A. Landlord and Tenant have entered into that certain unrecorded Lease Agreement dated as of May 26, 2017 (the “Lease”), pursuant to which Tenant leases the fourth and fifth floors of the building (the “Premises”) located on real property located in Monroe County, New York and more particularly described in Exhibit “A” attached hereto (the “Property”). B. Landlord and Tenant have executed and acknowledged this Memorandum and are recording the same for the purpose of providing constructive notice of the Lease and Tenant’s rights thereunder. Capitalized terms used and not defined herein have the meaning given the same in the Lease. NOW, THEREFORE, Landlord and Tenant hereby agree as follows: 1. Term. The initial term of the Lease shall be sixty (60) full calendar months from the _____________________, unless sooner terminated as provided for in the Lease. Tenant shall have the right, at its election, to extend the term of the Lease for three (3) renewal terms of five (5) consecutive years each. 2. Right of First Offer to Purchase. During the term of the Lease, Tenant shall have a right of first offer to purchase the Property (the “Purchase ROFO”) upon the terms and conditions set forth in the Lease. Tenant’s Purchase ROFO shall be exercisable only when and if Landlord elects, in its sole and absolute discretion, at any time during the term of the Lease, to F-1 la-1342702 market or offer for sale the Property to the public or if Landlord receives a proposal to purchase the Property from any third party. If Landlord elects to sell the Property, Landlord shall promptly notify Tenant in writing of the terms and conditions upon which Landlord would be willing to sell the Property to Tenant (an “Offer Notice”). Tenant shall exercise Purchase the ROFO within four (4) months after Tenant receives an Offer Notice. The terms pursuant to which the Purchase ROFO may be exercised and the conveyance of the Property are more particularly set forth in the Lease. Tenant’s Purchase ROFOR shall be personal to the original tenant named in the Lease, and shall not be transferable or assignable to any subtenant, assignee, or other successor-in-interest of Tenant. 3. Discharge of this Memorandum. If Landlord exercises the Landlord’s Termination Option pursuant to the terms of the Lease, Landlord may discharge this Memorandum from the land records by a unilateral affidavit of Landlord stating that (i) Landlord complied with the terms of the Purchase ROFO, (ii) Tenant failed to timely respond to the Offer Notice or declined its right to exercise the Purchase ROFO and purchase the Property, and (iii) Landlord was, at the time of the affidavit, closing on the sale of the Property to a third party in compliance with the provisions of Article 20 of the Lease. 4. Purpose. The terms, conditions and covenants of the Lease are incorporated herein by reference as though fully set forth herein. This Memorandum does not supersede, modify, amend or otherwise change the terms, conditions or covenants of the Lease, and this Memorandum shall not be used in interpreting the terms, conditions or covenants of the Lease. In the event of any conflict between this Memorandum and the Lease, the Lease shall control. 5. Counterparts. This Memorandum may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be one and the same instrument. [Intentionally left blank—signature page to follow] F-2 la-1342702 IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of Lease as of the Effective Date. LANDLORD: SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware limited liability company By: ______________________________ Name: Title: TENANT: THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK, a New York education corporation, o/b/o SUNY POLYTECHNIC INSTITUTE By: Name: Paul Kelly Title: Operations Manager F-3 la-1342702 EXHIBIT A (TO MEMORANDUM OF LEASE) DESCRIPTION OF THE PROPERTY ALL that tract or parcel of land, situate in the City of Rochester, Monroe, County, New York, known and described as Lot #AR-1a a re-subdivision of the B-81 Subdivision amended as set forth on map filed in the Monroe County Clerk’s Office November 29, 2000 in Liber 306 of Maps, Page 52. SAID Lot #AR-1a fronts on the east side of Lake Avenue and is of the dimensions shown on said map. TOGETHER with the benefits of Easement and Maintenance Agreement between Mark F. Cianca, John M. Scatigno and Eastman Kodak dated December 8, 2000 and recorded December 11, 2000 in Liber 9397 of Deeds, page 455. F-4 la-1342702 EXHIBIT G JANITORIAL SERVICES SCHEDULE Monday thru Friday:  7:00 am - Bathrooms  9:00 am - Conference rooms  10:00 am - Floors/Windows  1:00 pm - Take out the trash, check the recyclables G-1 la-1342702 EXHIBIT PERMITTED HAZARDOUS MATERIALS Servicef?aterial Peak Flow Flow Acid Exhaust {cfm} 4,560 General/Heat Exhaust (cfm) 16,357 Solvent Exhaust (cfm) 6,957 Base Exhaust (cfm 1,406 Caustic/Gas Cabinet Exhaust for HPM Rooms Exhaust (cfm) 3,000 Process Vacuum (cfm) 51 Low Purity Nitrogen (scfm) 145 290 3 High Purity Nitrogen (scfm) 64 127 Compressed Dry Air (scfm) 312 622 3 High Purity Argon (scfm) 4 8 5' High Purity Helium (scfm) 3 6 In High Purity Oxygen (scfm) 0.5 1.0 Natural Gas (scfm) 0.5 1.0 Soft Industrial Cold Water (gpm) 4 Process Cooling Water (gpm) 204 Acid Waste - Avg (gpm) 7 12 Acid Waste - Max (gpm) 53 105 Solvent Waste - Avg (gpm) 1.0 2.0 Solvent Waste - Max (gpm) 12 23 Base Waste - Avg (gpm) 0.5 1.0 Base Waste - Max (gpm) 1.0 2.0 Fluoride Waste - Avg (gpm) 3 5 Fluoride Waste - Max (gpm) 3 5 Ultra-Pure Water - Avg (gpm) 10 20 Ultra-Pure Water - Max (gpm) 28 55 120 Volt AC 179 357 203 Volt AC (Mm) 622 1,243 n- 430 Volt AC 184 368 Flamm (scfm) 15 29 U1 3 Oxygen {scfm} 15 29 Corrosive (scfm) 14 28 a Pyro (scfm) 14 28 Silane (scfm) 15 29 NF3 (scfm(scfm) 0.5 1.0 C02 (scfm) 0.5 1.0 HCI (scfm) 1.0 2.0 N20 (scfm) 1.0 2.0 (scfm) 0.5 1.0 Ethylene Glycol (gpm) 1.0 2.0 49% HF (gpm) 1.0 2.0 a BHF (gpm) 1.0 2.0 3 IPA (gpm) 0.5 1.0 3 H202 (gpm) 1.0 2.0 3- 112504 (gpm) 1.0 2.0 3 NH4OH (gpm) 1.0 2.0 HN03 (gpm) 1.0 2.0 lat-1342702 Potential Gases: COS (Carbonyl Sulfide), C4F6 (Hexafluro- 2-butyne), CH2F2 (Difluoromethane), NH3 (Ammonia) Potential Gases: PH3 (Phosphine), 82H6 (Diborane), (Disilane) EXHIBIT I FORM OF PERMITTED LICENSEE ACKNOWLEDGMENT ACKNOWLEDGMENT THIS ACKNOWLEDGMENT (this “Acknowledgment”) is made as of __________, 20___, by [INSERT LICENSEE], a [LICENSEE ENTITY] (“Licensee”), for the benefit of SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware limited liability company (“Landlord”). RECITALS A. The Research Foundation for the State University of New York, a New York education corporation, on behalf of SUNY Polytechnic Institute (“Tenant”), is the tenant under that certain Lease Agreement, dated as of May 26, 2017, by and between Landlord, as the “Landlord” therein and Tenant as the “Tenant” therein (the “Lease”), pursuant to which Tenant leases from Landlord approximately [___] rentable square feet on the fourth and fifth floors (the “Premises”) in that certain building located at 1964 Lake Avenue, Rochester, New York (the “Building”). Any terms used in this License without other definition shall have the meanings ascribed to such terms in the Lease. B. Tenant. Licensee wishes to temporarily use the Premises on a non-exclusive basis with C. Section 9.03(d) of the Lease requires that Licensee execute and deliver this Acknowledgment to Landlord prior to entering the Premises. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, Licensee hereby agrees as follows: 1. Licensee has no possessory rights in the Premises in the event of an Event of Default by Tenant under the Lease. 2. Licensee has a limited revocable license to use the Premises for the Permitted Use and such use does not constitute a sublease of the Premises. 3. Landlord shall have no obligations to the Licensee pursuant to the Licensee’s use of the Premises or pursuant to the terms of this Acknowledgment, and Licensee shall have no recourse against Landlord whatsoever on account of any failure by Landlord to perform any of its obligations under the Lease. 4. If the Lease is terminated for any reason, the Licensee’s license to use the Premises will automatically terminate without any action or notice by Landlord. 5. Licensee’s use of the Premises and the Building Common Areas is expressly subject to all of the terms, covenants, conditions and obligations on Tenant’s part to be observed I-1 la-1342702 and performed under the Lease, including Tenant’s obligation to indemnify Landlord to the extent and as set forth in the Lease. 6. All notices or other written communications related to or required by this Acknowledgment shall be in writing and either delivered personally to the party for whom intended, or to an agent of such party, or sent by United States registered or certified mail return receipt required or by overnight delivery by a nationally recognized overnight delivery service, if to Landlord, to 1964 Lake Avenue, Rochester, New York 14615, Attention: Joe Shufelt, with a copy to 1964 Lake Avenue, Rochester, New York 14615, Attention: Legal Department, and if to Licensee, to _________________________, Attention: ____________________, provided that either party may, by notice to the other, from time to time designate another address in the United States of America to which notices mailed more than ten (10) days thereafter shall be addressed. Notices sent hereunder shall be effective (i) three (3) days after mailing if mailed by United States mail, (ii) the next business day after being deposited for delivery with a nationally recognized overnight delivery service, or (iii) on the date personally delivered. 7. If any clause or provision of this Acknowledgment shall be deemed illegal, invalid or unenforceable under present or future laws, the remainder of this Acknowledgment shall not be affected by such illegality, invalidity or unenforceability, and in lieu of each clause or provision of this Acknowledgment that is illegal, invalid or unenforceable, there shall be added as a part of this Acknowledgment a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable. 8. This Acknowledgment cannot be changed or terminated orally, and can be modified only in writing, executed by Licensee and Landlord. 9. This Acknowledgment shall be governed by the laws of the locale in which the Premises are located. IN WITNESS WHEREOF, Licensee has executed this Acknowledgment as of the day and year first written above. LICENSEE: [INSERT LICENSEE], a [LICENSEE ENTITY] By: __________________________ Name: Title: I-2 la-1342702