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<br />9138-126780\1512539.3
<br />4.4 Hazardous Materials.
<br />4.4.1. Definition of Hazardous Materials. For purposes of this Lease, the term
<br />“Hazardous Material” or “Hazardous Materials” shall mean any hazardous or toxic substance,
<br />material, product, byproduct, or waste, which is or shall become regulated by any governmental
<br />entity, including, without limitation, the /or Agency acting in their governmental capacity, the State
<br />of California or the United States government.
<br />4.4.2. Use of Hazardous Materials. Except for those Hazardous Materials which
<br />are customarily used in connection with the construction, operation, maintenance and repair of the
<br />Improvements or used in connection with any permitted use of the Premises and Improvements under
<br />this Lease (which Hazardous Materials shall be used in compliance with all applicable Laws), Tenant
<br />or Tenant’s employees, agents, independent contractors, invitees or subtenants (collectively “Tenant
<br />Parties”) shall not cause or permit any Hazardous Materials to be brought upon, stored, kept, used,
<br />generated, released into the environment or disposed of on, under, from or about the Premises (which
<br />for purposes of this Section shall include the subsurface soil and ground water).
<br />4.4.3. Tenant Obligations. If the presence of any Hazardous Materials on, under
<br />or about the Premises caused or permitted by Tenant or Tenant Parties, and excluding Hazardous
<br />Materials existing on the Premises prior to the Effective Date (the “Existing Hazardous
<br />Materials”), results in (i) injury to any person, (ii) injury to or contamination of the Premises (or a
<br />portion thereof), or (iii) injury to or contamination or any real or personal property wherever situated,
<br />Tenant, at its sole cost and expense, shall promptly take all actions necessary or appropriate to return
<br />the Premises to the condition existing prior to the introduction of such Hazardous Materials to the
<br />Premises and to remedy or repair any such injury or contamination. Without limiting any other rights
<br />or remedies of Agency under this Lease, Tenant shall pay the cost of any cleanup or remedial work
<br />performed on, under, or about the Premises as required by this Lease or by applicable Laws in
<br />connection with the removal, disposal, neutralization or other treatment of such Hazardous Materials
<br />caused or permitted by Tenant or Tenant Parties, excluding the Existing Hazardous Materials.
<br />Notwithstanding the foregoing, Tenant shall not take any remedial action in response to the presence,
<br />discharge or release, of any Hazardous Materials on, under or about the Premises caused or permitted
<br />by Tenant or Tenant Parties, or enter into any settlement agreement, consent decree or other
<br />compromise with any governmental or quasi-governmental entity without first obtaining the prior
<br />written consent of the Lessor. All work performed or caused to be performed by Tenant as provided
<br />for above shall be done in good and workmanlike manner and in compliance with plans,
<br />specifications, permits and other requirements for such work approved by Lessor.
<br />4.4.4. Indemnification for Hazardous Materials.
<br />(a) To the fullest extent permitted by law, Tenant hereby agrees to
<br />indemnify, hold harmless, protect and defend (with attorneys acceptable to Lessor) Lessor, its
<br />elected officials, officers, employees, agents, independent contractors, and the Premises, from and
<br />against any and all liabilities, losses, damages (including, but not limited, damages for the loss or
<br />restriction on use of rentable or usable space or any amenity of the Premises or damages arising
<br />from any adverse impact on marketing and diminution in the value of the Premises), judgments,
<br />fines, demands, claims, recoveries, deficiencies, costs and expenses (including, but not limited to,
<br />reasonable attorneys' fees, disbursements and court costs and all other professional or consultant's
<br />expenses), whether foreseeable or unforeseeable (collectively, “Liabilities”), arising out of the
<br />presence, use, generation, storage, treatment, on or off-site disposal or transportation of Hazardous
<br />EXHIBIT 5
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