Attachment 12 Ground Lease.pdf — Chula Vista City Council, May 10, 2022

FINAL

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SAN DIEGO UNIFIED PORT DISTRICT

LEASE TO

RIDA CHULA VISTA, LLC

OF PROPERTY LOCATED IN

CHULA VISTA, CALIFORNIA

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TABLE OF CONTENTS

Clause Page

1. BASIC LEASE PROVISIONS ................................ ................................ ............................... 2

2. GENERAL DEFINITIONS ................................ ................................ ................................ .... 7

3. TERM................................ ................................ ................................ ................................ ... 8

4. USE. ................................ ................................ ................................ ................................ .... 8

5. RENT ................................ ................................ ................................ ................................ . 16

6. CONSTRUCTION OF THE RESORT HOTEL, THE PARKING IMPROVEMENTS AND ALTERATIONS ................................ ................................ ................................ .. 31

7. TITLE TO AND DEMOLITION OF ALTERATIONS AND IMPROVEMENTS ...................... 42

8. ENTITLEMENTS ................................ ................................ ................................ ................ 46

9. LIENS ................................ ................................ ................................ ................................ 47

10. LEASE FINANCING ENCUMBRANCE ................................ ................................ ............ 49

11. CONVENTION CENTER LEASES; SUBLEASES; ASSIGNMENT ................................ ... 67

12. EVENTS OF DEFAULT AND REMEDIES ................................ ................................ ........ 76

13. BANKRUPTCY ................................ ................................ ................................ ................ 81

14. EMINENT DOMAIN ................................ ................................ ................................ .......... 83

15. MAINTENANCE AND REPAIR ................................ ................................ ........................ 86

16. TAXES AND PROPERTY EXPENSES; REPORTING ................................ ..................... 93

17. EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION AND OFAC ............... 96

18. INSURANCE ................................ ................................ ................................ .................... 97

19. INDEMNITY ................................ ................................ ................................ ................... 102

20. DAMAGE OR DESTRUCTION ................................ ................................ ....................... 103

21. HAZARDOUS MATERIALS ................................ ................................ ........................... 105

22. “AS-IS” LEASE AND WAIVERS ................................ ................................ ..................... 111

23. QUITCLAIM OF TENANT’S INTEREST IN PRIVATE IMPROVEMENTS UPON TERMINATION ................................ ................................ ................................ ......... 114

24. PEACEABLE SURRENDER ................................ ................................ .......................... 115

25. WAIVER ................................ ................................ ................................ ......................... 115

26. HOLDOVER ................................ ................................ ................................ ................... 115

27. NOTICES ................................ ................................ ................................ ....................... 116

28. SECURITY DEPOSIT ................................ ................................ ................................ .... 116

29. GENERAL PROVISIONS ................................ ................................ ............................... 117

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DEFINITIONS ADDENDUM

EXHIBITS
EXHIBIT A-1 LEGAL DESCRIPTION OF PRE-EXPANSION PREMISES EXHIBIT A-2 LEGAL DESCRIPTION OF HOTEL LAND
EXHIBIT A-3 LEGAL DESCRIPTION OF CONVENTION CENTER LAND EXHIBIT B-1 DEPICTION OF PRE-EXPANSION PREMISES
EXHIBIT B-2 [RESERVED]
EXHIBIT B-3 DEPICTION OF CONVENTION CENTER LAND
EXHIBIT B-4 [RESERVED]
EXHIBIT B-5 DESCRIPTION OF NEIGHBORING IMPROVEMENTS

EXHIBIT C PLANS
EXHIBIT C-1 PRELIMINARY PARKING IMPROVEMENT PLANS
EXHIBIT D-1 CONSTRUCTION REQUIREMENTS (RESORT HOTEL AND PARKING

IMPROVEMENTS)
EXHIBIT D-2 CONSTRUCTION REQUIREMENTS (ALTERATIONS)

EXHIBIT E FORM OF COMPLETION GUARANTY

EXHIBIT F FORM OF MEMORANDUM OF LEASE

EXHIBIT G RENT ROLL

EXHIBIT H FORM OF ESTOPPEL STATEMENT
EXHIBIT I [RESERVED]

EXHIBIT J FORM OF LETTER OF CREDIT

EXHIBIT K LETTER OF CREDIT ISSUERS

EXHIBIT L FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

EXHIBIT M PRIOR AGREEMENTS

EXHIBIT N PRE-APPROVED ADVERTISING DEVICES

EXHIBIT O ENERGY REQUIREMENTS

EXHIBIT P FORMS OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT

AGREEMENT

EXHIBIT Q LANDLORD TRANSFER DOCUMENTS

EXHIBIT R FORM OF NON-DISTURBANCE AGREEMENT WITH HOTEL OPERATOR

EXHIBIT S APPROVED AGREEMENTS

EXHIBIT T DISTRICT DOCUMENTS

EXHIBIT U FORM OF DELAYED START GROUND LEASE EXPANSION AMENDMENT NOTICE

EXHIBIT V FORM OF DELAYED START GROUND LEASE EXPANSION AMENDMENT

EXHIBIT W FORM OF IMMEDIATE START GROUND LEASE EXPANSION AMENDMENT NOTICE

EXHIBIT X FORM OF IMMEDIATE START GROUND LEASE EXPANSION AMENDMENT

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LEASE
THIS LEASE (as amended, amended and restated, supplemented or otherwise modified from time to time, this “ Lease”) is entered into as of May ____, 2022 by and between the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“Landlord”) and RIDA CHULA VISTA, LLC, a Delaware limited liability company (together with its successors and permitted as signs, “Tenant”).

RECITALS
WHEREAS, pursuant to that certain Amended and Restated Joint Exercise of Powers Agreement, dated and effective as of July 25, 2019 and filed in the Office of the District Clerk as Document No. 70245, by and between the City of Chula Vista (the “City”) and Landlord, the City and Landlord created the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers authority pursuant to Article 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code (the “JEPA”).

WHEREAS, concurrently with the execution of this Lease, Landlord and the JEPA have entered into that certain Site Lease (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Site Lease”), pursuant to which, among other things, Landlord leases to the JEPA the real property more particularly described in Exhibit “A-3” attached hereto and depicted in Exhibit “B-3” attached hereto in the City of Chula Vista, California (the “Convention Center Land”) and all improvements that are located thereon, on the terms set forth therein.

WHEREAS, concurrently with the execution of this Lease, the JEPA, the City, Landlord and Tenant have entered into that certain Project Implementation Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Project Implementation Agreement ”), pursuant to which, among other things, Tenant will construct approximately 275,000 of net usable square feet of meeting space on the Conven tion Center Land (the “Convention Center”) and the Tenant’s Phase 1A Improvements (as defined below).

WHEREAS, concurrently with the execution of this Lease, the JEPA and the City have entered into that certain Facility Lease (as amended, amended and resta ted, supplemented or otherwise modified from time to time, the “ Facility Lease”), pursuant to which, among other things, the JEPA subleases to the City the Convention Center Land and leases or subleases to the City the Convention Center and all improvements located or to be located on the Convention Center Land (such improvements, together with the Convention Center, the “Convention Center Improvements”), on the terms set forth therein.

WHEREAS, concurrently with the execution of this Lease, the City and Te nant have entered into that certain Sublease Agreement (Chula Vista Bayfront Convention Center) (as amended, amended and restated, supplemented or otherwise modified from time to time, including as a result of the new sublease provision set forth in Sectio n 9.3(b)(iv) thereof, the “Convention Center Sublease” and, collectively with the Site Lease and the Facility Lease, the “Convention Center Leases”), pursuant to which, among other things, the City sub-subleases to Tenant the Convention Center Land and sub leases or sub-subleases to Tenant the Convention Center Improvements, on the terms set forth therein.

WHEREAS, except if the Convention Center Sublease terminates pursuant to Sections

5.1(d), Section 5.2(b) or Section 8.2(a) thereof, it is intended that up on the expiration of the

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Convention Center Leases in accordance with the terms thereof, the ownership of the Convention Center shall transfer automatically from the JEPA to Landlord.

WHEREAS, it is intended that, in accordance with the terms hereof, Landlo rd and/or Tenant shall have the right to expand the Premises (as defined below) such that, upon the exercise of such right in accordance with the terms hereof, the Premises (as defined below) shall expand to include the Convention Center Land and the Conve ntion Center Improvements (collectively, the “Expansion Premises”).

AGREEMENT
For good and valuable consideration, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the Term and upon the terms and conditions hereinafter set forth, the Premises described in Section 1.2 below, and subject to the terms of Article 23 of this Lease, Landlord conveys to Tenant, and Tenant accepts f rom Landlord, all of Landlord’s right, title and interest in and to the Existing Improvements on the Premises (as defined below), and Landlord and Tenant hereby agree as follows:

1. BASIC LEASE PROVISIONS
The following basic lease terms are referred to in other provisions of this Lease and constitute a part of this Lease and are to be read together with and constitute a part of the terms of this Lease.

1.1 Term (See Article 3):

Sixty-six (66) years as follows:

1.1.1 “Commencement Date”: THE DATE FIRST SET FORTH ABOVE.

1.1.2 “Expiration Date”: 66 YEARS AFTER THE COMMENCEMENT DATE.

1.2 Premises:

The “ Premises” consist of, prior to the Expansion Date, the real property more particularly described in Exhibit “A-1” attached hereto and depicted in Exhibit “B-1” attached hereto in the City of Chula Vista, California. The “Parking Premises” is the portion of the Premises that is shown and labeled as Parcel “B” on Exhibit “B-1”, and the “Hotel Land” is the remainder of the Premises that is more particularly described in Exhibit “A-2” attached hereto and depicted in Exhibit “B-1” attached hereto in the City of Chula Vista, California.

1.3 Permitted Use (See Article 4):

The Premises and the Improvements shall only be used as follows and for no other purpose (the “Permitted Use”): (i) a single-branded resort hotel with at least 1,570 Rooms but not more than 1,600 Rooms on the Hotel Land generally as shown and labeled as Parcel “A” on Exhibit “B-1” attached hereto, with an Acceptable Brand (the “Resort Hotel”); (ii) from and after the Expansion Date, the Convention Center; (iii) in connection with the Parking Premises, (1) for the parking of vehicles; (2) for pedestrian and vehicular access; and (3) for the development of a parking structure with at least 1,600 parking spaces, roadways and other means of pedestrian and vehicular access, and appurtenances thereto, such as access control systems and lighting, all in

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accordance with the Parking Improvement Plans (“ Parking Improvements” and such use, the “Parking Use”, and such use, together wi th the Resort, Hotel and the Convention Center, the “Primary Use”); (iv) any use which is ancillary or incidental to the Primary Use as described in Article 4; and (v) any other use of the Premises and the Improvements that is approved by the Landlord in i ts sole and absolute discretion in writing; provided that any such uses are not restricted or prohibited by the CDP or any Laws; and provided, further, that in the event of any conflict between the terms of this Section 1.3 and the CDP or any Laws, Tenant shall deliver notice to Landlord of such a conflict and the Parties shall meet and confer within ten (10) days of Landlord receiving Tenant’s notice to discuss the conflict and attempt to resolve the conflict in good faith. If the conflict cannot be resolv ed by the Parties within thirty (30) days after the meet and confer commences, then the Parties shall endeavor to resolve the dispute pursuant to Section 29.22.
“Acceptable Brand” shall mean the “ Gaylord Hotels” brand or any other hotel brand that has achieved “ AAA Four Diamond ” rating standards in a reasonable number of its hotels or the equivalent as determined by Landlord in its reasonable discretion; provided that Tenant shall not terminate the Hotel Management Agreement that is in effect as of the Comm encement Date before the date that is the third (3rd) anniversary of the later of: (a) the date that the Resort Hotel is open for business and (b) the date that the Convention Center is open for business, unless as set forth in Section 11.5.3(f). Tenant shall not name the Resort Hotel or Convention Center with any name that includes “San Diego”.

Tenant agrees to comply with all project conditions and all applicable mitigation measures, including, without limitation, those contained in the final Environment Impact Report “Chula Vista Bayfront Master Plan and Port Master Plan Amendment Final Environmental Impact Report,” (UPD# #83356 -EIR-658, SCH #2005081077; Document 56562), including, but not limited to, the “ Mitigation Monitoring and Reporting Program ”, and the resolution certifying said final Environmental Impact Report, Resolution No. 2010-79, adopted by the BPC on May 18, 2010 (collectively, the “EIR”), and in the CVBMP Documents.

Except as expressly provided herein, Tenant shall not use or permit the Pre mises and the Improvements to be used for any uses or purposes other than the Permitted Use. This restriction on use of the Premises and the Improvements absolutely prohibits a change in use by Tenant to a use that is not a Permitted Use.

1.4 Rent Commencement Date and Rental Periods (See Section 5.1.1):

The “Rent Commencement Date” shall be the Commencement Date.

The “Rental Periods” under the Lease shall be as follows:

First (1st) Lease Period: Lease Years 1 – 18
Second (2nd) Lease Period: Lease Years 19 – 23
Third (3rd) Lease Period: Lease Years 24 – 37
Fourth (4th) Lease Period: Lease Years 38 – 66

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1.5 Minimum Annual Rent (See Article 5):

The “Minimum Annual Rent” shall be as follows:

First (1st) Lease Period: $0 per Lease Year,
Second (2nd) Lease Period: $900,000 per Lease Year,
Third (3rd) Lease Period: $1,050,000 per Lease Year
Commencing on the first day of the Fourth (4th) Lease Period, Minimum Annual Rent shall be as provided in Section 5.3 of this Lease.

Each period of twelve (12) consecutive months commencing on the Rent Commencement Date and each successive twelve (12) month period thereafter during the Term shall be referred to herein as a “ Lease Year”; provided, however, that, if the first day of the first Lease Year of the First (1st) Lease Period is the not the first date of a month, such initial partial month shall be added to the first Lease Year of the First (1st) Lease Period so that such Lease Year will end on the last day of the month in which the first anniversary of the Rent Commencement Date occurs; and provided, further, that each subsequent Lease Year shall commence on the day after the end of the immediately preceding Lease Year and shall end on the anniversary of the end of the immediately preceding Lease Year, except that the last Lease Year shall expire on the Expiration Date. For the avoidance of doubt and by way of example, if the Rent Commencement Date is June 15, 2021, the first Lease Year would be June 15, 2021 to June 30, 2022 and the Expiration Date of the Lease would be June 14, 2087.
“Minimum Rent Look Back Adjustment Dates” (See Section 5.3.1): the first day of each of the 38th, 42nd, 49th, 56th and 63rd Lease Year.

1.6 Percentage Rent Rates (See Article 5):

The Percentage Rent Rates are set forth in Section 5.4.1.

1.7 Parking Rent (See Section 5.1.3):

Tenant shall pay the Parking Rent in accordance with Section 5.1.3.

1.8 Construction of Project (See Article 6):
(a) “Outside Construction Commencement Date ”: Ten (10) da ys after the Commencement Date.
(b) “Resort Hotel and Parking Improvements Outside Construction Completion Date”: Forty-Eight (48) months after the Outside Construction Commencement Date, as such date may be extended by one day for each day that a Force Majeur e Event delays Completion of the Resort Hotel and/or the Parking Improvements. (c) “Original Outside Construction Completion Date”: The date that is the latest of (a) forty-eight (48) months after the Outside Construction Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event or Municipal Breach (each as defined in the Project Implementation Agreement) delays (i) Completion (as

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defined in the Project Implementation Agreement) of the Project (as defined in the Proj ect Implementation Agreement) pursuant to the terms of the Project Implementation Agreement or (ii) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Project Implementation Agreement (if Tenant exe rcises a Sweetwater Park Option pursuant to and as defined in the Project Implementation Agreement) or (y) any Municipal Breach delays Completion (as defined in the Project Implementation Agreement) of the Project (as defined in the Project Implementation Agreement) pursuant to the terms of the Project Implementation Agreement, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Project Implementation Agreement (if Tenant does not exercise a Sweet water Park Option) only if Tenant has already Completed the Resort Hotel, the Convention Center, the Parking Improvements and Tenant’s Phase 1A Improvements, or (c) the Resort Hotel and Parking Improvements Outside Construction Completion Date as such date may be extended by one day for each day that (x) a Force Majeure Event delays Completion of the Resort Hotel and/or the Parking Improvements or (y) a Municipal Breach delays Completion of the Resort Hotel and/or the Parking Improvements. (d) “Outside Construction Completion Date”: The date that is the latest of (a) forty-eight (48) months after the Outside Construction Commencement Date (as defined in the Project Implementation Agreement), as such date may be extended by one day for each day that (x) a Force Majeure Event (as defined in the Project Implementation Agreement) delays (i) Completion (as defined in the Project Implementation Agreement) of the Project (as defined in the Project Implementation Agreement) pursuant to the terms of the Project Implement ation Agreement or (ii) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Project Implementation Agreement (if Tenant exercises a Sweetwater Park Option) or (y) a Municipal Breach delays Completion (as defined in the Project Implementation Agreement) of the Project (as defined in the Project Implementation Agreement) pursuant to the terms of the Project Implementation Agreement, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Project Implementation Agreement (if Tenant does not exercise a Sweetwater Park Option) only if Tenant has already Completed the Resort Hotel, the Convention Center, the Parking Improvements and Tenant’s Phase 1A Improvements, (c) if a Foreclosure Purchaser acquires the subleasehold interest under Section 9.6 of the Convention Center Sublease, the New Convention Center Outside Construction Completion Date (as such date is defined in the Convention Center Sublease) as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Convention Center Sublease) or Municipal Breach delays Completion (as defined in the Convention Center Sublease) of the Project (as defined in the Project Implementation Agreement), (d) the Resort Hotel and Parking Improvements Outside Construction Completion Date as such date may be extended by one day for each day that (x) a Force Majeure Event delays Completion of the Resort Hotel and/or the Parking Improvements or (y) a Municipal Breach delays Completion of the Resort Hotel and/or the Parking Improvements, or (e) if a Foreclosure Purchaser acquires the leasehold interest under Section 10.6.2 of this Lease, the New Outside Completion Date, as such date may be extended by one day for each day that a Force Majeure Event or Municipal Breach delays Completion of the Resort Hotel and/or the Parking Improvements.
(e) “Tenant Art Investment”: $4,774,400.

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1.9 Insurance (See Article 18):

1.9.1 Commercial General Liability:

Not less than Twenty Million Dollars ($20,000,000) per occurrence limit for bodily injury and property damage. The general aggregate limit shall be not less than Forty Million Dollars ($40,000,000) unless a Twenty Million Dollars ($20,000,000) per location aggrega te limit is provided by separate endorsement. All such limits may, at Tenant’s option, be satisfied by limits set forth in primary policies and excess policies.

1.9.2 Liquor Liability:

At any time that alcoholic beverages are served or sold on the Premises or Improvements, not less than Five Million Dollars ($5,000,000).

1.10 Security Deposit (See Section 12.2.4 and Article 28):

Six Hundred Fifty Thousand Dollars ($650,000).

1.11 Notice Addresses (See Article 27):

To Tenant:

RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner
With copy to:

RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Luke Charlton
and
Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
To Landlord:

Executive Director
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
With copy to:

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Director, Real Estate Department
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Port Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
With copy to:

City Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910

1.12 Completion Guaranty:

Tenant’s obligation to Complete the Resort Hotel and the Parking Improvements and obtain the final certificate of occupancy with respect to the Resort Hotel and the Parking Improvements shall be guaranteed by MFO Holding Company, LLC, a Delaware limited liability company and, if Tenant so elects, certain other Persons which are approved by Landlord, in Landlord’s reasonable discretion (each, a “ Completion Guarantor ” and, collectively, “Completion Guarantors ”).

Tenant shall cause the Completion Guarantor set forth in this Section 1.12 to execute and deliver to Landlord the Completion Guaranty substantially in the form attached hereto as Exhibit “E” and incorporated herein by reference ( “Completion Guaranty”) on or prior to the Commencement Date. Tenant shall cause each Replacement Guarantor (as defined in the Completion Guaranty) and Other Guarantor (as defined in the Completion Guaranty) to execute and deliver to Landlord a Completion Guaranty materially and substantially in the form of the Completion Guaranty, with any deviations from such form being reasonably acceptable to Landlord and Tenant, and at no time during the term of the Completion Guaranty (except to the extent such Completion Guaranty may terminate early in accordance with its terms) shall there be no Completion Guaranty that is in full force and effect.

2. GENERAL DEFINITIONS
Capitalized terms used in this Lease are more particularly defined or are cross-referenced in the “Definitions Addendum” attached hereto. The definitions set forth in the “Definitions Addendum” are incorporated herein by this reference.

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3. TERM

3.1 Term.

The “ Term” of this Lease shall be the period commencing on the Commencement Date and ending on the Expiration Date as described in Section 1.1, unless sooner terminated as provided in this Lease.

3.2 Prior Agreements.

Except for the documents set forth on Exhibit “M” attached hereto (“Prior Agreements”), any and all existing entry agreements, permits, licenses, leases, or rental agreements between Landlord and Tenant relating to the Premises which have not already expired or terminated, are hereby terminated as of the Commencement Date. Notwithstanding the foregoing, any obligations of Landlord or Tenant under such agreements which by their terms s urvive such termination, shall remain enforceable by Tenant or Landlord, as applicable.

4. USE.

4.1 Permitted Use.

Tenant agrees that the Premises and the Improvements shall be used only and exclusively for the Permitted Use described in Section 1.3 and for no other purpose whatsoever. This restriction on use of the Premises and the Improvements absolutely prohibits a change in use by Tenant to a use that is not a Permitted Use. Tenant acknowledges and agrees that the only parking it has a right to utilize in connection with the Permitted Use is as set forth in Section 4.2, Section 4.3 and any Contemporaneous Agreement. Tenant acknowledges and agrees that with respect to any public parking (other than the Parking Improvements) located adjacent to or proximate to the Premises, Tenant has only the rights of a member of the public notwithstanding any regular use of such parking by Tenant and/or its employees, Subte nants, independent contractors, visitors and patrons, and invitees and the Hotel Operator. For the avoidance of doubt, the foregoing shall in no way affect any parking rights granted under or specifically governed by any Contemporaneous Agreement or any agreement governing parking rights of the Hotel Operator.

4.2 Primary Use.

Tenant agrees that the Premises and the Improvements shall be used only and exclusively for the Permitted Use, including the following uses that are ancillary or incidental to the Primary Use and that are designed primarily for Resort Hotel guests, visitors or employees, or Convention Center guests, visitors or employees:
(a) Rental of Rooms;
(b) Rental of Meeting Space;
(c) Full-service restaurant and/or limited service restaurant, including cocktail lounge and any standalone bar or cocktail lounge;
(d) Snack bar, delicatessen and/or coffee shop(s);
(e) Banquet and other food and beverage uses;

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(f) Retail shop(s);
(g) Barber and beauty shop;
(h) Spa services;
(i) Health, recreational, and tennis facilities, including recreational lessons; (j) Bicycle rentals;
(k) Rental of automobiles;
(l) Motorcycle rentals;
(m) Boat rentals, beach equipment rentals and beach-related services; (n) Special temporary exhibition(s), including production shows (including any and all uses in connection with the pro duction of ICE! (including the use of the ICE! tent as temporary additional meeting space when such ICE! tent is not used for purposes of the ICE! production)) and outdoor entertainment (including ice skating and carnivals); (o) Vending machines, including telephones;
(p) Office and counter areas for Resort Hotel management and other ancillary services that are consistent with services provided by a convention center hotel comparable with the Resort Hotel;
(q) Back-of-house activities consistent with services provided by a convention center hotel comparable with the Resort Hotel, including but not limited to a shipping center, truck yard loading and unloading, sales, human resources, management, information technology management, repair and storage, employee cafeteria, employee gymnasium or other recreation space, and employee locker room or other storage and changing areas); (r) Office and logistics services;
(s) Construction, operation and maintenance of central plant facilities (including to serve the Resort Hotel);
(t) Installation and hosting of telecommunications equipment; (u) Building maintenance and workshop area;
(v) Parking and valet parking services;
(w) A security office;
(x) A parking management office;
(y) Storage areas consistent with services provided by a convention center hotel comparable with the Resort Hotel;

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(z) Bicycle parking;
(aa) Electronic vehicle charging stations;
(bb) Shuttle bus loading, unloading and management areas; (cc) Restrooms;
(dd) Any sign or other advertising device that complies with the CDP (as may be amended with the consent of the Tenant), the EIR and Laws and is (A) maintained or used to identify or advertise an establishment, occupancy, or service available on the Premises, (B) temporarily displayed in conjunction with promotional events, (C) related to the construction or operation of the Improvements (including, for example, directional, identification and related signage) or (D) approved by the Landlord in its sole and absolute discretion; (ee) From and after the Expansion Date, any use that is set forth in Section

6.1(b) of the Sublease that is not set forth in (a)-(dd) above; and (ff) Each other use that (i) is ancillary or incidental to the Primary Use, (ii) is customary for (A) a convention center hotel, conference center hotel, or resort hotel operating in the United States of America and that is comparable with the Resort Hotel and/or (B) a parking facility in connection with a convention center hotel, conference center hotel, or resort hotel operating in the United States of America and that is comparable with the Parking Improvements and (iii) is not prohibited by the CDP or any Laws.

4.3 Premises Surface Parking.

Tenant shall have the exclusive right to use any surface parking Tenant may develop on the Premises in accordance with the Plans (“Premises Surface Parking”).

4.4 Continuous Operations.

From and after sixty (60) days after the Completion of the Resort Hotel, excluding during any period of demolition in accordance with Article 7, Tenant shall actively and continuously use and operate the Premises and the Improvements (e xcluding Existing Improvements) in accordance with the Permitted Use, except to the extent a Force Majeure Event renders Tenant unable to do so (which inability, for the avoidance of doubt, shall be for the period of time that such Force Majeure Event prev ents the use and/or operation of the Premises and/or the Improvements (excluding the Existing Improvements)) and except for temporary interruptions reasonably and directly related to Alterations (provided that Tenant shall diligently prosecute construction of such Alterations to Completion in accordance with Section 6.3.3). Active and continuous use and operation shall (x) mean that the Improvements, including without limitation, the Resort Hotel, the Parking Improvements and, from and after the Expansion D ate, the Convention Center, but excluding the Existing Improvements, shall be continuously open for business, and appropriately staffed with personnel, on such days and for such hours as is customary for similar business operations in San Diego County, California and (y) shall include training activities and pre-opening activities after the Completion of the Resort Hotel and before opening the Resort Hotel to the public in an effort to open the Resort Hotel to the public, provided that Tenant diligently prosecutes such training activities and pre-opening activities. Notwithstanding anything to the contrary herein, Tenant may decide in its sole discretion and in good faith in order to maximize the long-term best interest of the Development, portions of the Re sort Hotel, the Parking Improvements and, from

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and after the Expansion Date, portions of the Convention Center which are not then in use may be temporarily closed (for example, floors of the Resort Hotel and restaurants may be temporarily closed during low occupancy periods and portions of the Resort Hotel may be closed temporarily for renovations; provided that such renovations are not otherwise prohibited by this Lease and provided, further, that Tenant diligently prosecutes such renovations to completion ). Tenant acknowledges and agrees that said active and continuous use and operation of the Premises and the Improvements (other than the Existing Improvements) enhances the value of the lands within Landlord’s jurisdiction; provides public service; and pro vides additional employment, taxes, and other benefits to the general economy of the area. Landlord acknowledges and agrees that Tenant shall not be in violation of this Section 4.4 for any failure to operate any retail, food service and other service spac e so long as Tenant has made and continues to make commercially reasonable efforts to lease such space.

4.5 Compliance with Laws.

Tenant shall in all activities on or in connection with the Premises and the Improvements, and in all uses thereof, including wi thout limitation the Permitted Use and any construction of the Tenant’s Initial Project Improvements or the making of any Alterations, abide by and comply with, and cause the Tenant Parties (other than Tenant) and Hotel Operator to abide by and comply with, all Laws at Tenant’s sole cost and expense, and Landlord shall not have any obligations or responsibilities to comply with any Laws as to the Premises and the Improvements or any use thereby by Tenant Parties or Hotel Operator. In particular and without limitation, Tenant shall have the sole and exclusive obligation and responsibility, at Tenant’s sole cost and expense, to comply with the requirements of the following, to the extent applicable: (i) the San Diego Unified Port District Code, including witho ut limitation, Article 10 (Stormwater Management and Discharge Control), (ii) the ADA, including but not limited to regulations promulgated thereunder, (iii) applicable federal, state and local laws and regulations regarding employment and labor practices, including, without limitation, the provisions of Section 6.8 and Article 17 below, (iv) any Coastal Development Permit (“CDP”) (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the California Environmental Quality Act (“CEQA”)) or any other California Coastal Commission (“ CCC”) regulations or local, state or federal requirements no w or hereafter affecting the Premises or the Improvements, including the use or development thereof, (v) the Port Master Plan (“ PMP”), (vi) any other development permits or approvals accepted by Tenant, and (vii) the policies adopted by the BPC.

During the Term, the BPC shall not adopt any Law that only applies to Tenant’s Initial Project Improvements, the Convention Center or Tenant, unless the Law is determined by the BPC, in its sole and absolute discretion, but in a manner that is neither arbitrary nor capricious, to be necessary for health and safety reasons, to protect the welfare of the people, or to exercise the Landlord’s police powers under the Port Act. The foregoing limitation on the adoption of certain Laws by Landlord shall not apply to the adoption of any ordinance that authorizes an amendment to this Lease or is adopted to authorize the enforcement of Landlord’s rights or the performance of Landlord’s obligations under this Lease, including without limitation, any ordinances adopted by the BPC as part of any discretionary approval. In the event of any conflict between the terms of a policy adopted by the BPC and this Lease, Tenant shall deliver notice to Landlord of such a conflict and the Parties shall meet and confer within ten (10) days of L andlord’s receipt of the notice to discuss the conflict and attempt to resolve the conflict in good faith. If the conflict cannot be resolved by the Parties within thirty (30) days after the meet and confer, then the Parties shall endeavor to resolve the conflict pursuant to Section 29.22. If the conflict is not resolved pursuant to Section 29.22, then the terms of this Lease shall control and Tenant shall be excused from complying with the terms of such policy adopted by the BPC to the extent of such conflict only.

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4.6 Tenant’s Contest Right.

4.6.1 General.

Subject to the terms and conditions of this Section 4.6, Tenant may pay the Property Tax Expenses under protest and Tenant may contest any amount of such Property Tax Expenses (each, a “ Property Tax Contest”); provided that (a) Tenant shall first provide Landlord with at least ten (10) Business Days’ written notice prior to commencing any such Property Tax Contest, (b) Tenant shall reasonably cooperate with Landlord with respect to any such Property Tax Contest and (c) Tenant shall cause the following conditions to remain satisfied:
(i) such Property Tax Contest shall not place the fee estate of the Premises in material danger of being forfeited or lost; (ii) such Property Tax Contest shall be without cost, liability, or expense to Landlord;
(iii) Tenant shall prosecute such Property Tax Contest with reasonable diligence and in good faith;
(iv) no Event of Default shall exist under this Lease at the time of or during such Property Tax Contest; and
(v) such Property Tax Contest shall not challenge any Property Tax Expenses payable under any Community Facilities District affecting the Premises or the Improvements that are in effect as of the Commencement Date or that Landlord has notified Tenant in writing and Tenant has approved at least ninety (90) days before the Commencement Date or that Tenant approves pursuant to the terms of this Lease.

4.6.2 Landlord Obligations and Protections
Provided the BPC has consented to Landlord’s participation, and subject to any conditions which may be required by the BPC, Landlord shall join in any Property Tax Contest only if such Property Tax Contest is legally required to be initiated or prosecuted in Landlord’s name. In such case, Landlord shall cooperate, as Tenant reasonably requests, and at Tenant’s sole cost and expense, to permit the Property Tax Contest to be prosecuted in Landlord’s name. Landlord shall give Tenant any publicly available documents requested by Tenant in writing that are in Landlord’s control and Tenant determines are reasonably necessary for Tenant to prosecute its Property Tax Contest except where (i) the document is subject to an exemption or exception under the California Public Records Act (California Government Code Sections 6250 et seq.); (ii) the document is confidential pursuant to another agreement between Landlord and another Person; (iii) the document is protected by the attorney-client privilege or work-product protections; (iv) the disclosure or release of such document would result in a breach of an agreement to which Landlord is a party; or (v) the disclosure or release of the document would result in a violation of Laws. Tenant shall pay all costs and expenses, including any legal costs, of any Property Tax Contest, including, without limitation, any costs and expenses res ulting from the withdrawal of a Property Tax Contest. If Tenant requests that Landlord assist Tenant with any Property Tax Contest in accordance with this Lease, and such assistance is consistent with the requirements of Section 4.6.1 and this Section 4.6.2, then Landlord shall, within fifteen (15) days after receipt of such request, notify Tenant of the total amount of Anticipated Assistance Costs. Tenant may, but shall have no obligation to, fund the Anticipated Assistance Costs (“ Tenant Funding”). If

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Tenant does not notify Landlord that Tenant will provide Tenant Funding to Landlord, then Landlord shall have no obligation to assist Tenant with such Property Tax Contest. If Tenant notifies Landlord that Tenant will provide Tenant Funding to Landlord and Tenant pays to Landlord an amount that is equal to or greater than the Anticipated Assistance Costs, then Landlord shall reasonably assist Tenant with such Property Tax Contest as Tenant reasonably requires. If the actual amount of Assistance Costs in connection with such assistance is at any time greater than the Tenant Funding provided at or before such time, then Landlord shall promptly notify Tenant thereof and the Parties shall follow the process set forth in the preceding three sentences.

Landlord shall have no obligation to reimburse Tenant for Tenant Funding up to the amount of Assistance Costs. Landlord shall have no liability to Tenant if Landlord does not assist, or continue to assist, with any Property Tax Contest if Tenant refuses to provide Tenan t Funding or the amount Tenant has advanced is not sufficient to cover the Assistance Costs or the Property Tax Contest is not in compliance with Section 4.6.1 or this Section 4.6.2. Landlord shall return to Tenant any portion of Tenant Funding that Landlo rd receives from Tenant and does not use for the Property Tax Contest within thirty (30) days after Landlord receives notice from Tenant that the Property Tax Contest is concluded or Tenant is withdrawing the Property Tax Contest.

4.6.3 Miscellaneous.

Tenant shall pay the contested Property Tax Expenses when due and payable regardless of any anticipated or ongoing Property Tax Contest. Tenant shall be entitled to any refund of any Property Tax Expenses (and penalties and interest) paid by Tenant whether such refund is made during or after the Term (except to the extent such refund includes any tax increase for which Tenant has been reimbursed by Landlord prior to receiving such refund); provided that Tenant shall be responsible for securing such refund and Landlord shall have no obligation or liability in connection with such refund. When Tenant concludes any Property Tax Contest, Tenant shall pay the amount of any Property Tax Expenses as has been finally determined in such Property Tax Contest to be due (except for any amounts that Tenant has already paid pursuant to this Section 4.6.3), and any costs, interest, penalties, or other liabilities in connection with such Property Tax Expenses.

4.7 Waste or Nuisance.

Tenant shall not use, or fail to maintain, the Premi ses or the Improvements in a manner that constitutes waste or nuisance.

4.8 Reservations.

Tenant shall take possession of the Property subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit “S” attached hereto and incorporated herein by reference (“Approved Agreements”). The Landlord Parties and any third party requested by Landlord shall have the right to enter the Premises and the Improvements for the purpose of constructing, installing, maintaining, repairing , replacing or removing monitoring wells during normal business hours and upon a three (3) Business Days’ prior notice to Tenant (except in the case of an emergency in which case no prior notice shall be required but each of such Landlord Parties and each of such third parties shall notify Tenant and, prior to the Completion of the Resort Hotel, Tenant’s Risk Construction Manager thereof by phone prior to entering the Premises) and Landlord shall, and shall cause each of such Landlord Parties and each of su ch third parties to:
(a) comply with all applicable security and safety procedures of Tenant of which Tenant informs Landlord in writing and with which such Landlord Party and such third party can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with Tenant’s

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operation and use of the Premises and the Improvements (and, if the Convention Center Land is not part of the Premises and the Convention Center is not part of the Improvements, Tenant’s operation and use of t he Convention Center Land and the Convention Center), while on the Premises and at the Improvements and, so long as such Landlord Parties and such third parties comply with such requirements and do not cause damage to the Premises or any Improvements separate and apart from the construction, installation, maintenance, repairing, replacing, and removal of the monitoring well in or from the Premises, Tenant shall not be entitled to any monetary payment or other remuneration for incidental costs imposed on Ten ant resulting from, any such access to the Premises or the Improvements by such Landlord Parties or such third parties. Landlord shall not cause any damage to the Premises or any Improvements in connection with the construction, installation, maintenance, repairing, replacing and removal of any monitoring wells in or from the Premises that adversely affects the use, operation or appearance of the Premises or any of the Improvements. Landlord shall reasonably cooperate with Tenant in determining the location of any new monitoring well that is required by an order of the SDRWQCB.

Except in the case of an emergency, Landlord shall consult with Tenant to ensure that the interference with Tenant’s operation and use of the Premises and the Improvements (and, if the Convention Center Land is not part of the Premises and the Convention Center is not part of the Improvements, Tenant’s operation and use of the Convention Center Land and the Convention Center) is minimized to the extent commercially reasonable efforts permit.

Landlord and Tenant shall independently have the right to grant on reasonable terms and notice to the other, a license or easement or other access agreement to Rohr, Inc., a United Technologies Aerospace Systems Company (together with its successo rs and assigns, “Rohr”) for Rohr and its authorized contractors and agents to access the Premises upon reasonable prior notice to Tenant for sampling, operation, maintenance, relocation, replacement, removal and closure of groundwater monitoring, soil vapo r or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement); provided, however, that if Landlord grants a license or easement or other access agreement to Rohr, it shall first consult with Tenant to attempt reasonably and in good faith, and shall use reasonable efforts, to avoid interference with Tenant’s day-to-day operations on the Premises which interference is (a) unreasonable or (b) both material and reasonably avoidable. Tenant shall have the right to coordinate with Rohr to install, relocate, and/or remove any Remediation Facilities (as defined in the Relocation Agreement), subject to (a) Rohr securing any necessary approvals from the SDRWQCB and (b) Tenant providing advance notice to Landlord that describes the proposed installation, relocation and/or removal of the Remediation Facilities and requests Landlord’s approval thereof (“ Remediation Facilities Notice”) and receiving Landlord’s written approval thereof (which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that, within twenty (20) days after Tenant provides any Remediation Facilities Notice to Landlord, Landlord shall provide notice to Tenant (“Remediation Facilities Response”) that (i) approves the activities described in such Remediation Facilities Notice or (ii) denies Landlord’s approval of some or all of the activities described in such Remediation Facilities Notice and describes in reasonable detail the reasonable basis for such denial; and provided, further, tha t if Landlord fails to provide a Remediation Facilities Response to Tenant within such twenty - (20-) day period, then Tenant may re -deliver its Remediation Facilities Notice to Landlord and, if Landlord fails to provide a Remediation Facilities Response th ereto within ten (10) days after Tenant provides such re -delivered Remediation Facilities Notice to Landlord, then Landlord’s approval of such Remediation Facilities Notice shall be deemed granted. Tenant and Landlord acknowledge and agree that neither Tenant nor Landlord shall be responsible to the other for any incidental costs or expenses (e.g., security, overtime, inspection, or management -related expenses) incurred by the other Party arising from or related to providing Premises access to Rohr and its authorized contractors and

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agents for the sampling, operation, maintenance, relocation, replacement, removal and closure of the groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement).

Landlord shall present to the BPC for its reasonable consideration any reasonable request by Tenant in writing for an easement on, over, under or across the Premises to others, including, without limitation, any Governmental Authority, for the purpose of constructing, installing, maintaining, repairing, replacing and removing utility systems in connection with the development, construction, use or operation of the Premises and the Improvements; provided, however, that, in each case, (A) the term of such ea sement shall not exceed the Term; (B) Landlord shall not be responsible for any cost or expense relating to such easement, including without limitation, maintenance thereof; (C) Landlord shall have the right to terminate such easement at no cost or expense to Landlord in the event of an early termination of this Lease; (D) Landlord shall have the right to relocate such easement, at any time, in Landlord’s sole and absolute discretion, at the grantee’s sole cost and expense with respect to the first relocati on of such easement and at Landlord’s sole cost and expense with respect to any subsequent relocation of such easement, unless agreed to otherwise by Landlord and the grantee (provided that Landlord shall not consider whether the prospective grantee has ag reed to bear such costs for any relocation of such easement after the first relocation in determining whether to grant such an easement); (E) Landlord shall have the right to approve the location and dimensions of the easement in Landlord’s reasonable discretion; and (F) at Landlord’s election, the grantee shall, at the grantee’s own cost and expense, remove any utility system constructed or installed pursuant to such easement at the expiration or earlier termination of the Lease.

Landlord shall not, withou t the prior written consent of Tenant and, while any Permitted Encumbrance remains outstanding or during any New Lease Period, each Permitted Lender, which consent shall not be unreasonably withheld, conditioned or delayed, encumber the Premises or the Imp rovements during the Term or during any New Lease Period, except for (i) any documents effectuating public financing by the Landlord, the City, and the JEPA, including any refinancing thereof, of the Premises or the Tenant’s Phase 1A Improvements that Tenant has agreed to prior to the Commencement Date, or the Convention Center that Tenant has agreed to prior to the Expansion Date, or that Tenant agrees to, in Tenant’s reasonable discretion, during the Term, except for any such document that may impose any new obligation, limitation or prohibition on Tenant, the Premises, the Improvements, the Convention Center prior to the Expansion Date, the Tenant’s Phase 1A Improvements, this Lease or any Contemporaneous Agreement, in which case Tenant’s consent shall be in Tenant’s sole discretion, (ii) the Special Tax District and any modifications thereto that Tenant agrees to, in Tenant’s reasonable discretion, (iii) as permitted under this Section 4.8, or (iv) as required by Laws (provided, that, any such encumbrance under this subsection (iv) shall not result in an encumbrance that is senior in right of priority to that of this Lease).

4.9 Neighboring Improvements.

Not later than thirty (30) days prior to submitting to the BPC for consideration a preliminary design review or conceptual plan for those parcels set forth in Exhibit “B-5” attached hereto and incorporated herein by reference (“ Neighboring Parcels”), Landlord shall provide Tenant with notice of the proposed agenda item related to such Neighboring Parcels. Withi n thirty (30) days of receiving such notice from Landlord, Tenant shall have the right to deliver written comments to Landlord on the proposed preliminary design review or conceptual plan for such Neighboring Parcels, as applicable, and Landlord shall act in good faith when considering, accepting or rejecting any of Tenant’s written comments; provided, however, that Landlord shall have no

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obligation and shall incur no liability resulting from (i) Landlord’s rejection of Tenant’s comments or (ii) Landlord’s failure to consider Tenant’s comments solely because they are not received by Landlord prior to the date of the decision of the BPC, and nothing in this Section 4.9 shall limit the discretion of the Landlord or the BPC in any manner to accept or reject the preliminary design review or conceptual plan for Neighboring Parcels, as applicable, in each case, in its sole and absolute discretion.

4.10 Energy Requirements.

Notwithstanding any other provision of this Lease to the contrary, the only obligations of Tenant with respect to Section 15 and Exhibit 3 of the Settlement Agreement and any indemnification obligations with respect thereto are set forth in Exhibit “O” attached hereto and incorporated herein by reference and in the Project Implementation Agreement.

4.11 Health Rating.

Tenant shall use commercially reasonable efforts to maintain the highest health rating given by the County of San Diego for any portion of the Premises and/or the Improvements that involves the sale and/or preparation of food.

5. RENT
Tenant agrees to pay to Landlord Greater Of Rent, Parking Rent and Additional Rent (collectively “Rent”) in accordance with this Article 5. All payments of Rent and other sums due to Landlord hereunder shall be paid in legal tender of the United States, without notice , invoice, setoff, deduction or demand, except as otherwise expressly provided herein. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the required amount of Rent shall be deemed to be a waiver of any current or preceding breach by Tenant of any provision hereof. No endorsement or statement on any check or any letter accompanying any check or payment as Rent shall be deemed an accord and satisfaction, and Landlord has the right to accept such check or payment without prejud ice to Landlord’s right to recover the balance of such Rent or pursue any other remedy in accordance with this Lease, at law or in equity. Tenant waives all rights that it may have under present or future law to designate the items of Rent to which any pay ments made by Tenant are to be credited. Tenant agrees that Landlord may apply any payments made by Tenant to such items of Rent as Landlord designates, irrespective of any designation or request by Tenant as to the items of Rent to which such payments should be credited.

All payments of Rent shall be delivered to and statements required under Section 5.4.3 below, shall be filed with Landlord’s Treasurer. Payments of Rent shall be made by ch eck, electronic wire transfer or automated clearing house (“ACH”) transfer. Checks shall be made payable to the San Diego Unified Port District and mailed to the San Diego Unified Port District, Finance Department, Post Office Box 120488, San Diego, California 92112-0488, or delivered to the San Diego Unified Port District, Finance Department, 3165 Pacific Highway, San Diego, California 92101. All payments of Rent by electronic wire transfer or ACH transfer shall be directed to (or such other location as Landlord may instruct by notice from time to time):

Beneficiary Bank: Wells Fargo Bank, N.A.

Bank Location: 420 Montgomery, MAC: A0112-102
San Francisco, CA 94104

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ACH/Wire Routing Number: 121000248
Beneficiary: San Diego Unified Port District
Beneficiary Account Number: 4944-983881
Type of Account: Deposit
Reference Description of payment
Required: Customer number and/or invoice(s) numbers
Landlord has the right to change the designated place of payment or filing at any time upon ten (10) Business Days’ written notice to Tenant. Tenant assumes all risk of loss and responsibility for Late Charges and interest at the Default Rate for late payments, as hereinafter described.

5.1 Rental Periods; Parking Rent.

5.1.1 Rental Periods.

The Term of this Lease shall be divided into the “Rental Periods” described in Section 1.4.

5.1.2 [Reserved].

5.1.3 Parking Rent.
(a) Parking Rent. On or before the twentieth (20 th) day of each month during the Term, Tenant shall pay to Landlord monthly rent for the use of the Parking Premises and the Premises Surface Parking equal to (x) during the First (1 st) Lease Period, Second (2 nd) Lease Period and the Third (3rd) Lease Period, the product of five percent (5%) multiplied by all Parking Revenue for the applicable calendar month and (y) during the Fourth (4 th) Lease Period, the product of seven and a half percent (7.5%) multiplied by all Parking Revenue for the applicable calendar month (“Parking Rent”). “Parking Revenue” means, for any period of time, the following amounts whether collected or uncollected, received, payable or accrued by Tenant, without any deductions or exclusions, whether paid in cash or for credit: (a) any amounts paid to Tenant by any Person for using a parking space at the Premises (including in the Parking Improvements) through the valet service for the Resort Hotel or the Convention Center and (b) any amounts paid to Tenant by any Person for self-parking at the Premises (including in the Parking Improvements) or Convention Center Land; provided, however, that Tenant may deduct from the Parking Revenue, for such period of time, any refunds, rebates, discounts or credits which Tenant issues to Tenant’s employees, Subtenants, indepe ndent contractors, visitors, patrons, customers, invitees or any other third party; provided, further, that, with respect to refunds only, Tenant may deduct any material refund only if such refund is documented in a reasonable form which is provided to Lan dlord as part of the Monthly Parking Report. Tenant shall operate the Parking Improvements in substantially the same manner as comparable parking improvements for a convention center hotel, conference center hotel, or resort hotel. (b) Parking Revenue. Parking Revenue shall not include any of the following:
(i) any sales or transient occupancy tax payable by Tenant or a Tenant Party to any Governmental Authority as a direct result of operations under this Lease; provided

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that the amount of such taxes is shown on the books and records elsewhere herein required to be maintained;
(ii) gratuities; provided that the customer voluntarily determines the amount of said gratuity to be paid, or the customer is aware that Tenant or a Tenant Party has added a pre -established grat uity to the charge for the services rendered and said additional amount is segregated and identified as a gratuity on the billing to the customer; or (iii) any Condemnation proceeds or any proceeds from a sale of the Improvements (or any portion thereof).

5.2 Greater Of Rent.

Commencing on the Rent Commencement Date, the “Greater Of Rent” for each Lease Year shall be the greater of (i) the Minimum Annual Rent for such Lease Year as periodically adjusted as provided in Section 5.3, and (ii) with respect to the Fourth (4th) Lease Period, the cumulative total of the Percentage Rent for such Lease Year as provided in Section 5.4 below.

5.2.1 Monthly Payments of Greater Of Rent.
(a) Calculation of Payments . Concurrently with the delivery of each Monthly Report, but in no event later than the twentieth (20th) day of each month during the Term, and on or before the twentieth (20 th) day following the last day of the month in which this Lease is terminated or expires, Tenant shall pay to Landlord the greater of the following two amounts as and for the Greater Of Rent due with respect to the immediately preceding month:
(i) For any period of time before the beginning of the Fourth (4th) Lease Period, Zero Dollars ($0), and during t he Fourth (4th) Lease Period, the total Percentage Rent computed for that portion of the Lease Year ending with and including the last day of the preceding month, less total Percentage Rent and monthly Minimum Annual Rent previously paid for the Lease Year, or
(ii) One-twelfth (1/12th) of the Minimum Annual Rent, multiplied by the number of full calendar months from the beginning of the Lease Year to and including the preceding month, plus the amount of Minimum Annual Rent due with respect to any initial partial month in the first Lease Year, less the total Percentage Rent and monthly Minimum Annual Rent previously paid for the Lease Year.
(b) Survival. The terms of this Section 5.2.1 shall survive the expiration or earlier termination of this Lease.

5.3 Minimum Annual Rent.

Minimum Annual Rent for each Lease Year of the First (1 st) Lease Period, Second (2 nd) Lease Period, and Third (3 rd) Lease Period is described in Section 1.5. Thereafter, Minimum Annual Rent shall be periodically adjusted by the “ Minimum Annual Rent Look Back Adjustments ” described in Section 5.3.1, which shall occur on the “ Minimum Rent Look Back Adjustment Dates” described in Section 1.5.

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5.3.1 Minimum Annual Rent Look Back Adjustments.

The Minimum Annual Rent shall be subject to adjustment on each Minimum Rent Look Back Adjustment Date set forth in Section 1.5 as follows. Within thirty (30) days following each Minimum Rent Look Back Adjustment Date, Landlord shall determine, and provide to Tenant, a written statement setting forth the calculation of, the average annual Greater Of Rent that was payable by Tenant (a) during the period from the first day of the Third (3rd) Lease Period until the first Minimum Rent Look Back Adjustment Date and (b) with respect to all subsequent Minimum Rent Look Back Adjustment Dates, during the period between the applicable Minimum Rent Look Back Adjustment Date and the prior Minimum Rent Look Back Adjustment Date. Effective as of the applicable Minimum Rent Look Back Adjustment Date, Minimum Annual Rent shall be adjusted to an amount equal to sixty-five percent (65%) of such average annual Greater Of Rent payable over the three (3) Lease Years that immediately precede such Minimum Rent Look Back Adjustment Date; provided that in no event shall such new Minimum Annual Rent be less than the Minimum Annual Rent payable for the Lease Year immediately preceding such Minimum Rent Look Back Adjustment Date. Following the determination of a new Minimum Annual Rent, Tenant shall pay any underpayment of Minimum Annual Rent to Landlord within thirty (30) days following such determination. Tenant shall pay Greater Of Rent based on the Minimum Annual Rent at the rate set forth in Section 1.5 or as determined in accordance with this Section 5.3.1, as applicable, until such Minimum Annual Rent is adjusted by a Minimum Annual Rent Look Back Adjustment in accordance with this Section 5.3.1.

5.4 Percentage Rent.
“Percentage Rent” is the product of the applicable percentage set forth in Section 5.4.1 below (each, a “Percentage Rent Rate”) multiplied by the Gross Income with respect to the applicable category described in Section 5.4.1 below. Percentage Rent shall be calculated on a monthly basis as provided in this Section 5.4 above and shall be paid in accordance with Section 5.2 above. During the First (1st) Lease Period, the Second (2nd) Lease Period and the Third (3rd) Lease Period, the amount of the Percentage Rent for each Lease Year shall be equal to Zero Dollars ($0).

5.4.1 Percentage Rent Categories.

Percentage Rents shall be based on the following percentages of the Gross Income, whether collected, uncollected, received, payable or accrued, in the Fourth (4th) Lease Period:
(a) Eight Percent (8%) or Nine Percent (9%) of the Gross Income, as applicable, from rental of Rooms, rental of in-Room movies, sale of similar in-Room entertainment services, charges for room service delivery, sale of telephone services, and sale of laundry and dry-cleaning services as follows:
(i) Lease Years 38 – 47: Eight Percent (8%)
(ii) Lease Years 48 – 66: Nine Percent (9%)
(b) Six Percent (6%) or Seven Percent (7%) of the Gross Income, as applicable, from rental of any meeting space, conference room, banquet room or event space in the Convention Center (after the Expansion Date), Resort Hotel or anywhere else on the Premises (collectively, the “Meeting Space”) and sale of related merchandise and services provided to the

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Meeting Space (including Gross Income from recovery charges for materials, utilities, security, and similarly related accommodations, sales and services) as follows:
(i) Lease Years 38 – 47: Six Percent (6%)
(ii) Lease Years 48 – 66: Seven Percent (7%)
(c) Four Percent (4%) or Five Percent (5%) of the Gross Income, as applicable, from sale of food and nonalcoholic beverages (including, without limitation, coffee, tea or milk) sold in conjunction with food, as follows:
(i) Lease Years 38 – 47: Four Percent (4%)
(ii) Lease Years 48 – 66: Five Percent (5%)
(d) Six Percent (6%) or Seven Percent (7%) of the Gross Income, as applicable, from sale of nonalcoholic beverages (including, without limitation, coffee, tea or milk) not served in conjunction with food for cons umption on the Premises and the Improvements, as follows:
(i) Lease Years 38 – 47: Six Percent (6%)
(ii) Lease Years 48 – 66: Seven Percent (7%)
(e) Six Percent (6%) or Seven Percent (7%) of the Gross Income, as applicable, from sale of alcoholic beverages for consump tion on the Premises and the Improvements, as follows:
(i) Lease Years 38-47: Six Percent (6%)
(ii) Lease Years 48-66: Seven Percent (7%);
(f) Three Percent (3%) of the Gross Income from sale of packaged alcoholic and nonalcoholic beverages for consumption off of the Premises and the Improvements; (g) Five Percent (5%) of the Gross Income from sale of merchandise including, but not limited to, gifts, novelties, souvenirs, clothing, luggage, jewelry, cigars, cigarettes, candy, sundries, and incidentals of any kind;
(h) Five Percent (5%) of the Gross Income from any admission, cover, or other entertainment charges;
(i) Five Percent (5%) of the Gross Income from rental of automobiles (whether or not the automobiles are stored or delivered at the Premises and the Improvements); (j) Five Percent (5%) of the Gross Income from sale of health club services, hair cutting and salon services, make -up and beauty services and/or sale of spa services, including but not limited to facials, massages, body wraps, and aromatherapy; (k) Fifteen Percent (15%) of the Gross Income from rental of bicycles and other recreational equipment;

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(l) Ten Percent (10%) of the Gross Income from sale of recreation lessons; (m) One-half Percent (0.5%) of the Gross Income from sale of any and all California State Lottery tickets;
(n) Ten Percent (10%) of the Gross Income from the rental of office space to tourism/visitor-serving tenants and maritime related tenants; (o) Three Percent (3%) of the Gross Income from sale of groceries; (p) Six Percent (6%) of the Gross Income from sale of passenger tickets for crew-operated excursion boats;
(q) Six Percent (6%) of the Gross Income from sale of passenger tickets for crew-operated sport fishing and whale-watching boats;
(r) Five Percent (5%) of the Gross Income from sale of merchandise and/or services through coin-operated vending or service machines or devices that are owned, rented, or leased by Tenant, Hotel Operator, or Subtenant;
(s) Twenty-five Percent (25%) of any commissions and other compensation received for the right to install and operate coin-operated vending or service machines or devices, including telephones, that are not owned, rented, or leased by Tenant, Hotel Operator, or Subtenant;
(t) Fifty Percent (50%) of the Gross Income from any and all telecommunications uses which shall include, but are not limited to, rooftop wireless antennas, antennas attached to a building façade, microwave antennas, paging antennas and cell phone equipment, excluding telecommunications uses that exclusively serve the uses on the Premises and the Improvements;
(u) Ten Percent (10%) of the Gross Income from sale of business services wherever provided on the Premises and the Improvements, including, without limitation, the sale of internet access or other telecommunication services (including, without limitation, sale of internet access or other telecommunication services in connection with the rental of Rooms, Meeting Space, unless such internet access or other telecommunication services are not separately charged and are incorporated within the rental charge of the relevant Room or Meeting Space);
(v) Ten Percent (10%) of any “mark-ups,” income, fees and commissions that Tenant receives as compensation for handling and/or selling tickets sold for activities or events occurring outside the Premises and the Improvements and in which n either Tenant, Hotel Operator, nor its Affiliate has a direct or indirect ownership interest (for example, admission tickets to the San Diego Zoo Safari Park located in the City of Escondido); provided, however, that, in the case of an Affiliate of Tenant that has a direct or indirect ownership interest in Tenant, such mark-ups, income, fees and commissions shall only be excluded if the Tenant does not retain any of the mark-ups, income, fees or commissions. For the avoidance of doubt and by way of example, if Tenant sells tickets to a Person at the Premises for an event at the Gaylord Rockies and Tenant maintains any portion of the mark-up, income, fee or commission of the tickets, then Tenant shall pay Landlord 10% of such mark-up, income, fee and commission;

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(w) Ten Percent (10%) of the Gross Income from any and all services or uses permitted under the terms of this Lease and not otherwise addressed within the foregoing provisions; and
(x) Twenty Percent (20%) of the Gross Income from any and all services or uses not permitted under the terms of this Lease and not otherwise addressed within the foregoing provisions.

5.4.2 Gross Income.
(a) Definition. “Gross Income” shall include all Revenue received by Tenant, Subtenant, and Hotel Operator without any deductions or exclusio ns except as provided in Section 5.4.2(b) below, resulting from, directly or indirectly, or connected to or generated from, the occupancy or use of the Premises and the Improvements, or any business conducted on the Premises and the Improvements for cash or credit, whether collected or uncollected, r eceived, payable or accrued and from whatever source derived, including, but not limited to, any type of sales arising from the customers of any Tenant Party and Hotel Operator receiving services, products or benefits on or from the Premises and the Improvements. For the avoidance of doubt and by way of example, Gross Income from lodging will include only Room revenues derived from the use of Rooms in the Resort Hotel, but it shall not include any revenues, fees or commissions from booking at the Resort Hotel of a room at a hotel other than the Resort Hotel; Gross Income from food and beverage sales will be limited to income from food and beverages served or delivered at or from the Improvements and Premises; Gross Income from Meeting Space usage will be limited to revenue from the use of Meeting Space located within the Improvements and Premises; and Gross Income from retail sales will be limited to revenues from the sales of goods that are delivered at the Improvements or for which the purchaser pays at the Improvements.

Without limitation of the foregoing, Gross Income shall be construed to include, without limitation, the entire amount of the actual sales price (including all finance charges received or paid by a Tenant Party or Hotel Operator) of all sale s, rentals, leases and licenses or for other transfer of merchandise or services, and other receipts whatsoever, including, without limitation, agency sales and all mail, catalogue, computer, facsimile, telephone, telecommunication, electronic and other orders filled, transmitted or received through any media. Gross Income shall include any manufacturer’s or importer’s excise tax included in the prices of the goods sold, even though the manufacturer or importer is also the retailer thereof, whether or not the amount of such excise tax is stated as a separate charge.
(b) Exclusions. Refunds for goods returned shall be deducted from current Gross Income upon their return. Bad debt losses shall not be deducted from Gross Income. Gross Income shall not include any of the following:
(i) sales of United States postage;
(ii) any sales or transient occupancy tax payable by Tenant or a Tenant Party to any Governmental Authority as a direct result of operations under this Lease; provided that the amount of such taxes is shown on the books and records elsewhere herein required to be maintained;
(iii) gratuities; provided that the customer voluntarily determines the amount of said gratuity to be paid, or the customer is aware that Tenant or a Tenant Party has added a pre -established grat uity to the charge for the services rendered and said additional amount is segregated and identified as a gratuity on the billing to the customer;

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(iv) proceeds of any disposition of Tenant’s trade fixtures (that is fixtures that relate uniquely to Tenant and w hich are removable without non -repairable damage to the Improvements), furnishings, moveable equipment and other personal property of Tenant located on the Premises or at the Improvements;
(v) any Parking Revenue;
(vi) any rent received by Tenant from any Subtenant pursuant to the applicable Sublease, which does not include percentage of Gross Income collected by Tenant from Subtenant pursuant to Section 5.4.1. For the avoidance of doubt, it is understood that Tenant will pay to Landlord Percentage Rent in an amount equal to the applicable Percentage Rent Rate times the Gross Income with respect to the applicable category set forth in Section 5.4.1 without regard to the amount of rent that such Subtenant actually pays to Tenant. For illustration purposes and by way o f example, if a Subtenant sells a passage ticket for $100, then Tenant will pay Landlord Six Dollars ($6.00) even if such Subtenant pays more or less in rent in connection therewith to Tenant;
(vii) interest received or accrued with respect to the funds in any repair and replacement reserve required to be maintained under a Hotel Management Agreement; provided that such interest is required to be credited to the reserve; (viii) any refunds, rebates, discounts and credits of a similar nature that are given, paid or returned in the course of obtaining Revenue or components thereof, which will be deducted from the Gross Income for the period in which such Revenue was earned; provided, however, that if any such refund, rebate, discount or credit is given, paid or returned, a s applicable, after such period, then the amount of Gross Income, Percentage Rent and Greater of Rent for the affected period will be recalculated, and Landlord shall promptly credit Tenant any overpayment of the Greater of Rent against the next installment of Greater of Rent; or (ix) any insurance proceeds, Condemnation proceeds or any proceeds from a sale of the Improvements (or any portion thereof) or any refinancing of the Development (or any portion thereof) other than the Tenant’s Phase 1A Improvements.

5.4.3 Reports of Gross Income and Parking Revenue.
(a) Monthly Reports. On or before the twentieth (20 th) day of each month following the beginning of the Fourth (4th) Lease Period, and on or before the twentieth (20th) day following the last day of the month in whic h this Lease is terminated or expires, Tenant shall deliver to Landlord, in a form reasonably prescribed by Landlord, a detailed cumulative report of Gross Income for that portion of the Lease Year which ends with and includes the last day of the previous calendar month (“ Monthly Report ”). Each Monthly Report shall be signed by an authorized representative of Tenant under penalty of perjury and shall include the following:
(i) The total Gross Income for said portion of the Lease Year, itemized as to each of the Percentage Rent categories for which a separate Percentage Rent Rate (or per unit charge, if applicable) is established;
(ii) The related itemized amounts of Percentage Rent computed, as herein provided, and the total thereof;

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(iii) The total Minimum Annual Rent and Percentage Rent previously paid by Tenant for the Lease Year within which the preceding month falls; and (iv) A calculation of the Greater Of Rent due for the preceding calendar month determined in accordance with the terms of Section 5.2.1(a).

On or before the twentieth (20 th) day of each month and on or before the twentieth (20th) day following the last day of the month in which this Lease is terminated or expires, Tenant shall deliver to Landlord, in a form reasonably prescribed by Landlord, a detailed cumulative report of Parking Revenue for that portion of the Lease Year which ends with and includes the last day of the previous calendar month (“Monthly Parking Report”). Each Monthly Parking Report shall be signed by an authorized representative of Tenant under penalty of perjury and shall include the following:
(v) The total Parking Revenue for said portion of the Lease Year; and (vi) The related itemized amounts of Parking Rent computed, and herein provided, and the total thereof.
(b) Record Keeping. Tenant shall, during the Term and, with respect to each record, for a period of seven (7) years after the date the record was created (or such longer period as Tenant may decide in its sole discretion), use commercially reasonable efforts to keep or cause to be kept, accurate and complete records and books of account of all financial transactions in the operation of all business activities, of whatever nature, cond ucted in pursuit of the rights granted herein (if conducted by or on behalf of Tenant, Hotel Operator, or any Subtenant). The records shall be supported by source documents of original entry such as sales invoices, cash register tapes, bank depository documentation, purchase invoices, or other pertinent supporting documents. A balance sheet and income/expense statement, based upon the books of account, shall be prepared periodically but not less often than once per annum. All sales and other financial transactions shall be recorded by means of a comprehensive system which includes sufficient business processes to ensure that all Gross Income and all Parking Revenue is clearly and accurately recorded and documented by reports and other original source documen ts. The system shall provide reporting and distinction of all sales and other income and Revenue categories and shall generate an audit trail of all transactions. Any recordation system for sales or other income and Revenue transactions shall be subject to the written approval of the Landlord (such approval not to be unreasonably withheld, conditioned or delayed); provided that, so long as Marriott is the Hotel Operator under the Hotel Management Agreement, the recordation system for sales or other income a nd Revenue transactions that is used by Marriott shall satisfy the requirements set forth in this Section 5.4.3(b) until such time as Landlord sends notice to Tenant that Landlord does not reasonably approve of such recordation system, in which case Landlo rd and Tenant shall cooperate reasonably and in good faith to agree on a new recordation system and, once agreed, Tenant shall then promptly implement the recordation system that has been so agreed between Tenant and Landlord. In the event of admission or cover charges, Tenant shall issue either preprinted serially numbered tickets for each such admission or cover charge or such other evidence of the issuance of each individual ticket, which may include digital records of such tickets. In the event of the rental of vehicles or vessels, Tenant shall issue or cause to be issued either preprinted serially numbered rental agreements for each such rental transaction or such other evidence of the issuance of each rental transaction, which may include digital records of such rental transactions.

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(c) Maintenance of Records; Audit. Tenant shall use commercially reasonable efforts to keep all of Tenant’s books of account, records, financial statements, and documentation related to this Lease or to business operations cond ucted within or from the Premises or the Improvements (the “Tenant Records”) during the Term and, with respect to each record, for a period of seven (7) years after the date the record was created (or such longer period as Tenant may decide in its sole discretion), either at the Premises (or, if the Convention Center Land is not part of the Premises, the Convention Center Land), the Improvements (or, if the Convention Center is not part of the Improvements, the Convention Center), Tenant’s main business off ice, any of Hotel Operator’s business offices or at a location in San Diego County, California as is reasonably acceptable to Landlord. In the event the Tenant does not make available to Landlord the Tenant Records, including in electronic form or hard cop y form delivered via a reputable overnight courier, within San Diego County, then Tenant agrees to pay all reasonable travel and other expenses incurred by Landlord Parties in conducting an audit at the location where the Tenant Records are kept. For the a voidance of doubt, Tenant Records in electronic form will be deemed to be kept at each location at which such Tenant Record reasonably may be accessed.

Without limitation of the foregoing, if there is any Subtenant or Hotel Operator occupying or operating from any portion of the Premises or the Improvements, then the books and records also shall include any occupancy, licensing, permit or operating agreements pertaining to such Hotel Operator and/or Subtenant, as well as the books of account, records, finan cial statements, and documentation, relating to the operations of such Hotel Operator and/or Subtenant at the Premises or the Improvements, as applicable. Upon at least forty-eight (48) hours’ prior notice to Tenant, Landlord shall have the right to examine and audit the Tenant Records, including, without limitation, for the purpose of determining the accuracy thereof, the accuracy of the Monthly Reports, the Monthly Parking Reports, and the accuracy of the Rent paid to the Landlord.

Landlord’s audit rights shall apply to the current Lease Year and all prior Lease Years and Tenant waives the right to assert any statute of limitations in connection with any audit or any underpayment disclosed pursuant to such audit. In the event that the business operations conducted within or from the Premises or the Improvements are part of a larger business operation, and any part of the Tenant Records herein is prepared only for the larger operation, and not solely for the business operations of the Premises or the Improve ments, then Landlord shall also have the right to examine and audit such books of account, records, financial statements, and documentation of the larger business operation as are necessary for Landlord to reasonably assess Tenant’s compliance with this Lease. If Tenant assigns its interest under this Lease, Tenant shall deliver to the Transferee the originals (or complete copies) of the Tenant Records which shall be retained by Transferee and available to audit on the same terms as under this Section 5.4.3(c).
(d) Failure to Maintain Records . Tenant shal l use commercially reasonable efforts to keep, or cause to be kept, each Tenant Record for a period of seven (7) years after the date the Tenant Record was created and to make each Tenant Record available for inspection by Landlord in accordance with the terms hereof. After the seven (7) year period has expired for a certain Tenant Record, Tenant shall deliver the original Tenant Record to Landlord at the address set forth in Section 1.11 or such other location designated by Landlord in writing, which may include the main offices of the City; provided, however, Tenant may elect to deliver all of the Tenant Records that expire in a given Lease Year at one time, in one delivery, within twelve (12) months after the end of the applicable Lease Year. Landlord may request that Tenant implement any additional accounting methods or controls that Landlord reasonably deems necessary, subject to prior written notice to Tenant. If Landlord does so, then Tenant will in good faith consider implementing such additional accounting methods or controls, as applicable, but Tenant may, in consultation with the Hotel Operator, elect in its reasonable discretion not to implement such

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additional accounting methods and controls. In the event the Tenant does not make available to Landlord the original Tenant Records, including in electronic form, within San Diego County, then Tenant agrees to pay all reasonable travel and other expenses incurred by Landlord Parties in conducting an audit at the location where the Tenant Records are kept. (e) Underpayment/Overpayment. If the audit conducted by Landlord under Section 5.4.3(c) above reveals an underpayment or an overpayment of the Rent due, Tenant shall pay to Landlord the amount of the underpayment within thirty (30) days following written notice thereof from Landlord, or Landlord shall refund the amount of the overpayment within thirty (30) days following the determination of such overpayment (or, at Landlord’ s option, Landlord shall credit the overpayment against the installment of Greater Of Rent and/or Parking Rent, as applicable, first coming due after such thirty- (30-) day period), as applicable. If the audit reveals a discrepancy of five percent (5%) or more between the Rent due as reported by Tenant and the Rent due as determined by the audit, and/or Tenant has failed to maintain (or has failed to cause to be maintained) complete and accurate Tenant Records as described in this Section 5.4 above, then Tenant shall also pay the cost of the audit within thirty (30) days after written notice thereof from Landlord.

The terms of this Section 5.4.3 shall survive the expiration or earlier termination of this Lease.

5.5 Additional Rent.

For each calendar year of the First (1st) Lease Period, Second (2nd) Lease Period, and Third (3rd) Lease Period, Tenant shall pay additional rent (“ Additional Rent ”) to Landlord equal to six percent (6%) (“Additional Rent Percentage”) of the amount by which the Net Operating Income for such calendar year exceeds eleven percent (1 1%) of the Actual Capital Investment (“Additional Rent Hurdle”).

For purposes of this Section 5.5, the following definitions shall apply:
“Net Operating Income ” shall mean for any calendar year the total Project Revenues less all Operating Expenses calculated on an annual basis.
“Actual Capital Investment” shall mean (a) the Advance Rent paid by Tenant, as the subtenant under the Sublease that is not captured in (b) and (b) the actual cost incurred by Tenant (but neither funded nor reimbursed by proceeds of casualty or condemnation (net of any taxes) or by the Landlord, the City, or JEPA) to design, construct and develop the Convention Center Improvements and the Tenant’s Initial Project Improvements , including, without limitation, all financing costs and o ther costs that are capitalized in accordance with generally accepted accounting principles, as certified by a reputable, certified public accountant as of the latest of the following dates: Completion of the Tenant’s Initial Project Improvements and the Completion (as defined in the Project Implementation Agreement) of the Convention Center Improvements. “Project Revenues” shall mean all income, receipts, proceeds, amounts, money, cash, assets, property or things of value actually received by Tenant for all goods and merchandise sold, room revenues derived from hotel operations, food and beverages sold, the charges for all services performed, or any other revenues generated by or otherwise payable to Tenant (and Tenant Parties) (including, without limitation, user fees, retail and commercial rent, revenue from rooms, accommodations, food and beverage, and the proceeds of business interruption insurance) in, at or from the Premises, the Convention Center Land, the Convention Center Improvements, the Tenant’s Initial Project Improvements, whether collected, uncollected, received, payable or

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accrued, and all rent actually received by Tenant from any Subtenant pursuant to the applicable Sublease and all rent actually received by Tenant from any Sub -subtenant (as defined in the Convention Center Sublease) pursuant to the applicable Sub -Sublease (as defined in the Convention Center Sublease). For the avoidance of doubt and by way of example, Project Revenues from lodging will include only Room revenues derived fro m the use of Rooms in the Resort Hotel; Project Revenues from food and beverage sales will be limited to income from food and beverages served or delivered at or from the Premises, the Convention Center Land, the Convention Center Improvements and the Reso rt Hotel; Project Revenues from Meeting Space usage will be limited to revenue from the use of Meeting Space located within the Resort Hotel, the Convention Center Land, the Convention Center Improvements and the Premises; and Project Revenues from retail sales will be limited to revenues from the sales of goods that are delivered at the Resort Hotel or the Convention Center Improvements or for which the purchaser pays at the Resort Hotel or Convention Center Improvements. Project Revenues shall exclude (a) any promotional allowances, (b) proceeds from any sale of the Project (or any portion thereof) or any refinancing of the Project (or any portion thereof), in each case, that are not prohibited by this Lease or the Convention Center Sublease, (c) proceeds of any disposition of Tenant’s trade fixtures (that is fixtures that relate uniquely to Tenant and which are removable without non - repairable damage to the Improvements or if prior to the Expansion Date, the Convention Center Improvements), furnishings, moveable equipment and other personal property of Tenant located on the Premises or Convention Center Land or at the Tenant’s Initial Project Improvements or the Convention Center Improvements, (d) bad debt losses, (e) all income, receipts, proceeds, amounts, money, cash, assets, property or things of value received by any Subtenant or any Sub- subtenant (as defined in the Convention Center Sublease) (but this exclusion (e) is not intended to exclude from Project Revenues rent actually received by Tenant from any Subtenant pursuant to the applicable Sublease or rent actually received by Tenant from any Sub -subtenant (as defined in the Convention Center Sublease) pursuant to the applicable Sub-Sublease (as defined in the Convention Center Sublease)), (f) interest received or accrued with respect to the funds in any repair and replacement reserve required to be maintained under a Hotel Management Agreement; provided that such interest is required to be credited to the reserve, (g) any refunds, rebates, discounts and credits of a similar nature that are given, paid or returned in the course of obtaining income or components thereof, which will be deducted from the Project Revenues for the period in which such income was earned; or (h) any insurance proceeds or Conde mnation proceeds. Any “Project Revenue” shall be calculated on an accrual basis promptly after an audit with respect to such Project Revenue has been completed. “Operating Expenses” shall mean expenses, costs, and amounts of every kind that Tenant pays or incurs during any calendar year because of or in connection with the ownership, operation, management, maintenance, repair, replacement, or restoration of, or Alterations to, the Premises, the Convention Center Land, the Convention Center Improvements and the Tenant’s Initial Project Improvements, or the operation or management of the business conducted thereon consistent with this Lease and the Convention Center Sublease, as applicable (collectively, “Operation”), including, by way of example, all direct and indirect employment expense (including wages, salaries, and other compensation and benefits of all persons engaged in Operation, including employer’s social security taxes, unemployment taxes, insurance, and any other taxes imposed on Tenant that may be levied on those wages, salaries, and other compensation and benefits), cost of goods sold, costs of supplies or materials consumed and any other cost or expense of any kind incurred in connection therewith; cost of equipment and fixtures installed in the Tenant’s Initial Project Improvements, the Convention Center Land, the Convention Center Improvements or the Premises (to the extent not included in the calculation of Actual Capital Investment); the cost of any utilities; the cost of operating, managing, maintaining, and repairing

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any building system; the cost of licenses, certificates, permits, and inspections; the cost of any Property Tax Contest; the costs incurred in connection with the implementation and operation of a transportation system management program or similar program; advertising and marketing expense of any kind (including the cost of participating in a reservation management or loyalty program); fees, charges, and other costs including management fees (or amounts in lieu of such fees), con sulting fees, legal fees, and accounting fees of all persons engaged by Tenant or otherwise reasonably incurred by Tenant in connection with the operation, management, maintenance, and repair of the Premises, the Convention Center Land, the Convention Cent er Improvements, and the Initial Tenant’s Project Improvements, or the operation of the business conducted thereon; payments under any easement, license, operating agreement, declaration, restrictive covenant, or instrument relating to the sharing of costs by the Premises, the Convention Center Land, the Convention Center Improvements or the Tenant’s Initial Project Improvements; payments under any operating agreement, including industry standard operator and franchise fees, replacement reserves, and replac ement costs in excess of reserves; asset management fees for the Tenant’s Initial Project Improvements and the Convention Center Improvements (which shall not exceed one percent (1%) of the Project Revenues); gross tax receipts for the Tenant’s Initial Pro ject Improvements or the Convention Center Improvements; sales, use, transient occupancy or similar tax; the cost of maintaining insurance premiums for the Tenant’s Initial Project Improvements and the Convention Center Improvements (including liability insurance); property taxes for the Tenant’s Initial Project Improvements and the Convention Center Improvements; possessory interest tax on Tenant’s leasehold interest (land value); incentive management fees (“ Management Incentive Fee ”) for the Tenant’s Init ial Project Improvements and the Convention Center Improvements (which, for any calendar year, shall not exceed twenty percent (20%) (“Maximum Incentive Fee Percentage”) of the portion of the Net Operating Income for such calendar year that exceeds Seventy-Five Million Six Hundred and Eighty Thousand Dollars ($75,680,000) (“Incentive Fee Hurdle”)); Rent actually paid by Tenant under this Lease; any other cost or expense that is properly allocated to the operation of the Premises, the Convention Center Land, the Tenant’s Initial Project Improvements and the Convention Center under USALI; and all other expenses categorized as “deductions” under the Hotel Management Agreement that are agreed to by Landlord in the reasonable exercise of its discretion. Operating Expenses shall exclude debt service (principal and interest) paid by Tenant for the Tenant’s Initial Project Improvements or its leasehold interest in the Convention Center Improvements; depreciation of the Tenant’s Initial Project Improvements and the Co nvention Center Improvements; income taxes paid by Tenant for Project Revenues related to the Tenant’s Initial Project Improvements or the Convention Center Improvements; and the costs or expenses of operating any business within any portion of the Premise s, the Convention Center Land, the Convention Center Improvements or the Tenant’s Initial Project Improvements that is subleased to any Subtenant or any Sub-subtenant (as defined in the Convention Center Sublease) (but not the costs incurred by Tenant (as sublandlord and as Tenant) in operating such portion of the Premises, the Convention Center Land, the Convention Center Improvements or the Tenant’s Initial Project Improvements (such as insurance costs, maintenance and repair costs and Property Tax Expenses)). Any “Operating Expense” shall be calculated on an accrual basis promptly after an audit with respect to such Operating Expense has been completed.

With respect to each calendar year in the First (1st) Lease Period, Second (2nd) Lease Period, and Third (3rd) Lease Period, on or before the fifteenth (15th) day after the earlier of: (a) the completion of Tenant’s audit of the Project’s financial records for such calendar year and (b) the date (as extended in accordance with the Law) by which Tenant is required by Law to file its U.S. federal income tax for the last taxable year that includes a portion of such calendar year, Tenant shall render to Landlord, an annual report of Net Operating Income for such calendar year and the

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Additional Rent due, if any. Each report shall be signed by Tenant or its authorized representative under penalty of perjury and shall be accompanied by payment of all Additional Rent due.

5.5.1 Additional Rent Example Calculation.

For the purpose of this Additional Rent example calculatio n only, the variables are as follows:

AR = Additional Rent
MIF = Management Incentive Fee
a = Additional Rent Percentage
b = Maximum Incentive Fee Percentage
c = Incentive Fee Hurdle
d = Additional Rent Hurdle
LNR = Landlord Net Revenue (Net Operating Income without deducting MIF) ONR = Operator Net Revenue (Net Operating Income without deducting AR) AR = a(LNR - b(ONR - c) - d)
1-ab

Assuming that the Net Operating Income for a year is $100 million, the Additional Rent will be calculated as follows:

AR = 6% ($100M - 20% ($100M - $75.68M) - $86.35M)
1 – (6% x 20%)

AR = 6% ($100M - 20% x $24.32M - $86.35M)
1-.012

AR = 6% ($100M - $4.864M - $86.35M)
.988

AR = 6% x $8.786M
.988

AR = $0.527M
.988

AR = $533.56 Thousand

5.6 Late Charges.

Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent will cause Landlord to incur costs not contemplated by this Lease. In the event Tenant has not paid the Rent due in

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accordance with the provisions of this Lease, within three (3) Business Days from when the Rent is due, Tenant shall pay, in addition to the unpaid Rent, five percent (5%) of the Rent due (“Late Charges”). The Parties hereby agree that said Late Charges are supplemental Rent and are not interest and that the Late Charges apply whether or not Tenant receives notice of its failure to pay Rent. Notwithstanding the foregoing, in no event shall any Late Charge be less than One Hundred Dollars ($100). Acceptance by Landlord of any Late Charge or the late payment of any Rent or any portion thereof shall in no event constitute a waiver of an Event of Default with respect to such overdue amount, nor shall it prevent Landlord from exercising any of its other rights and remedies hereunder. In addition to the application of a Late Ch arge, if Tenant fails to pay any Rent when due, then the unpaid Rent amount shall accrue interest at the Default Rate from the date due until paid, and such interest shall constitute supplemental Rent.

5.7 Net Lease.

Subject to the last sentence of this Section 5.7, Tenant acknowledges that the Rent will be absolutely net of any costs or expenses to Landlord relating to Premises or any Improvements and acknowledges and agrees that Landlord shall not be responsible for any costs, charges, expenses and outlays of any nature whatsoever arising from or relating to the Premises or any Improvements during the Term, whether foreseen or unforeseen and whether or not within the contemplation of the Parties as of the Commencement Date, except as shall be otherwise expressly provided in this Lease. Without limitation of the foregoing, Landlord shall not be required to construct, install, provide or arrange for any utilities, roadway, docks, tide walls, drainage or other improvements of any nature on, in, under or above the Premises or any other location, except as shall be otherwise expressly provided in this Lease. Except as expressly set forth herein, Tenant shall not be responsible for the payment of any administrative costs of the Landlord relating to the Premises or any Improvements, taxes based on income or profit by Landlord as a result of its interest in the Premises or Improvements or undertaking of the transactions contemplated herein, fees of auditors, accountants, attorneys or engineers, insurance premiums required to be paid for by the Landlord pursuant to this Lease, or any other administrative or overhead costs or expenses incurred by the Landlord in connection with this Lease.

5.8 Reimbursement.

The reimbursement procedur e set forth in this Section 5.8 shall be referred to as the “Reimbursement Procedure”. If under the terms of this Lease an amount expended by Landlord is to be reimbursed by Tenant pursuant to the Reimbursement Procedure, then Tenant shall reimburse Landlord for the subject amount within thirty (30) days of Tenant’s receipt of reasonable evidence of the nature and the amount of costs incurred by Landlord, including, without limitation, a reasonably detailed invoice or statement from Landlord for the subject amount and, if applicable, copies of any applicable third party invoices, and/or work description. Any amounts owed to Landlord pursuant to the Reimbursement Procedure shall constitute supplemental Rent and shall accrue interest at the Default Rate from t he date due until paid if not paid within the time period permitted under the Reimbursement Procedure.

5.9 Section 467 of the Code.

The parties acknowledge and agree that, for federal income tax purposes, amounts paid or funded by Tenant pursuant to Sections 5.5 (Additional Rent), 5.6 (Late Charges), 5.8 (Reimbursement),

7.1.2 (Public Improvements), 11.6 (Landlord Participation Fee) and Article 15 (Maintenance and Repair), and which are treated as Rent hereunder, shall constitute “contingent payments” for purposes of Section 467 of the Code and the regulations thereunder and shall be allocable to the

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period in which the requisite amounts are accrued. For purposes of the foregoing, (i) amounts paid or funded by Tenant pursuant to Sections 7.1.2 (Public Improvemen ts) and Article 15 (Maintenance and Repair) shall, to the extent such amounts would be required to be capitalized into the basis of the Public Improvements, be accrued on a “straight-line” basis from the date the relevant improvements are “placed in service” over the remaining Term and (ii) for the avoidance of doubt, no amounts paid or funded by the Tenant with respect to (x) the Private Improvements or (y) any property used in the Public Improvements but which is owned by Tenant, in each case, pursuant to Sections 7.1.2 or Article 15 (Maintenance and Repair), shall be treated as Rent hereunder.

6. CONSTRUCTION OF THE RESORT HOTEL,

THE PARKING IMPROVEMENTS AND ALTERATIONS

6.1 Construction of the Resort Hotel and Parking Improvements.

6.1.1 Commencement and Completion of the Resort Hotel.

Following the Commencement Date, but not later than the Outside Construction Commencement Date, Tenant shall commence the construction of the Resort Hotel. Tenant shall be deemed to have commenced the construction of the Resort Hotel w hen Tenant delivers a notice to proceed with respect to the construction of the Resort Hotel to Tenant’s contractor.

Thereafter, Tenant shall, subject to the terms of Section 6.5, diligently proceed with the construction of the Resort Hotel to Completion, and Complete the Resort Hotel by the Original Outside Construction Completion Date. If neither Tenant nor Foreclosure Purchaser (if applicable) Completes the Resort Hotel and Parking Improvements by the Original Outside Construction Completion Date, then, beginning with the first month following the Original Outside Construction Completion Date, and monthly thereafter until the Resort Hotel and the Parking Improvements are Complete, Tenant shall pay Construction Late Charges (as defined in the Project Implementation Agreement) using the formula set forth in Section 5.1.2 of the Project Implementation Agreement. Landlord and Tenant hereby agree that said Construction Late Charges constitute supplemental Rent under the Lease and not interest. The Parties further agree that the Construction Late Charges apply whether or not Tenant receives notice of its failure to Complete the Resort Hotel or Parking Improvements, and that said Construction Late Charges are appropriate to compensate the City, Landlord, the Spec ial Tax District and the JEPA. The Landlord agrees that such Construction Late Charges are its sole compensation and remedy for the failure to construct the Resort Hotel or the Parking Improvements by the Original Outside Construction Completion Date, inc luding any loss resulting from the loss of revenues that Landlord would have received if the Resort Hotel and Parking Improvements had been Completed by the Original Outside Construction Completion Date (as extended in accordance herewith).

Notwithstanding the preceding sentence, Tenant acknowledges and agrees that, as and to the extent provided in the next sentence, there will be an Event of Default for the failure to complete the Resort Hotel and Parking Improvements if (a) Tenant fails to Complete the Resort Hotel and Parking Improvements by the date that is three hundred sixty -five (365) days after the Outside Construction Completion Date (the “Extended Construction Period Deadline”) (as extended as a result of a Force Majeure Event) ("Late Completion") and (b) either (i) without limiting Section

12.1.2, Tenant does not pay the Construction Late Charges each month until Completion of the Resort Hotel and Parking Improvements (a "Construction Late Charge Failure") or (ii) if Tenant can reasonably Complete the Resort Hotel and Parking Improvements within thirty (30) days of the Extended Construction Period Deadline, Tenant does not Complete the Resort Hotel and Parking Improvements within such thirty (30) days, and if the nature of the Completion of the Resort Hotel and Parking Improvements is such that Tenant cannot reasonably Complete the

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Resort Hotel and the Parking Improvements within such thirty (30) days, Tenant does not diligently commence such cure within such thirty (30) days or thereafter fails to diligently proceed to rectify and cure such failure (a "Completion Cure Failure", and any Completion Cure Failure or any Construction Late Charge Failure, a " Post-Late Completion Failure "). Tenant acknowledges and agrees that if Late Completion occurs an d any Post-Late Completion Failure occurs, then Landlord may declare an Event of Default for the failure to Complete the Resort Hotel and Parking Improvements, and such Event of Default shall constitute a cross -default under the Convention Center Sublease and the Project Implementation Agreement, if Tenant does not cure its Post-Late Completion Failure within thirty (30) days of receipt of notice from Landlord, and Tenant shall not be entitled to any additional cure periods under Article 12 herein. Tenant acknowledges and agrees that the payment of Construction Late Charges does not constitute an exclusive remedy for any Event of Default under this Lease or Event of Default under the Project Implementation Agreement for failure to Complete the Resort Hotel a nd Parking Improvements, in the case of the Lease, and the Convention Center, in the case of the Project Implementation Agreement. Landlord acknowledges and agrees that if Tenant or Foreclosure Purchaser (if applicable) fails to Complete the Convention Ce nter and the Resort Hotel and Parking Improvements, Tenant shall only be required to pay one set of Construction Late Charges monthly and such Construction Late Charges shall not be doubled. Tenant shall pay the Construction Late Charges to the Trustee under the Project Implementation Agreement for failure to Complete either (a) the Convention Center, (b) the Resort Hotel and Parking Improvements, or (c) the Convention Center, Resort Hotel, and Parking Improvements using the formula set forth in Section 5.1.2 of the Project Implementation Agreement. Without limiting the generality of the foregoing, Tenant acknowledges and agrees that the cessation of construction of the Resort Hotel for more than thirty (30) consecutive days shall, unless caused by a Force Majeure Event or Municipal Breach, be deemed a failure by Tenant to diligently proceed with the construction of the Resort Hotel to Completion and shall constitute an Event of Default under this Lease without further notice or cure right by Tenant if Tenant does not resume construction of the Resort Hotel within ten (10) days after Tenant receives notice thereof from Landlord which notice shall include the following language: “ FAILURE BY TENANT TO RESUME CONSTRUCTION OF THE RESORT HOTEL (AS SUC H TERM IS DE FINED IN THE LEASE) WITHIN TEN (10) DAYS

AFTER THE DATE TENANT RECEIVES, OR IS DEEMED TO HAVE RECEIVED, THIS NOTICE SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE LEASE”. The Resort Hotel shall be constructed substantially in accordance, in all material respects, with the portions of the plans and specifications, including but not limited to working drawings, described in Exhibit “C” attached hereto (the “ Plans”) that are with respect to the Resort Hotel (the “ Resort Hotel Plans ”). The Plans have been previ ously approved in writing by Landlord. Changes to the Plans must be approved by Landlord in writing, in Landlord’s sole and absolute discretion, and, once approved, shall be considered a part of the “Plans”; provided, however, Landlord’s approval of any change in the Plans shall not be required if: (a) such change does not result in a use that is not a Permitted Use, (b) such change does not require modifications to the Plans for the structural portions of the Improvements, (c) such change does not change the design principles of the exterior appearance of the Resort Hotel, as set forth in the CDP, (d) such change is in compliance with the Chula Vista Building Code, (e) such change is in compliance with, and does not violate the provisions of, the PMP, CDP, the EIR, CVBMP Documents and any other Laws, (f) such change does not result in the removal of trees in violation of the CDP, (g) such change does not trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural BMPs, and (h) such change does not pave any area greater than twenty-five (25) square feet unless Tenant has previously secured the approval to perform such work from all applicable Governmental Authorities, including Landlord. Wi thin thirty (30) days of Landlord’s notice to Tenant, Tenant shall provide to Landlord a reasonably detailed explanation of all changes that

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Tenant has made to the Plans without the Landlord’s approval pursuant to this Section 6.1, including, without limit ation, an explanation of why such change did not require approval from Landlord, and copies of the revised Plans showing the changes, and Landlord shall have thirty (30) days from the receipt of such information to object to the changes to the Plans as req uiring the Landlord’s approval as provided in this Section 6.1. Any changes to the Plans that do not require Landlord’s approval shall be considered a part of the “ Plans”. The Plans are by this reference made a part hereof. In the event of any inconsistency between the Plans and the terms and conditions of this Lease, the terms and conditions of this Lease shall prevail.

In constructing the Resort Hotel, Tenant shall comply with all Construction Requirements set forth in Exhibit “D-1” attached hereto and al l Laws, including, without limitation, the PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals by any Governmental Authority for the Project and the Development, including any CDPs applicable to the Premi ses or the use or development thereof and any conditions of approval or mitigation measures or Project changes pursuant to any environmental review under CEQA.

6.1.2 Commencement and Completion of the Parking Improvements. (a) After Tenant commences construction of the Parking Improvements, Tenant shall, subject to the terms of Section 6.5, diligently proceed with the construction of the Parking Improvements to Completion, and Complete the Parking Improvements by the Original Outside Construction Completion Date. Tenant shall pay Construction Late Charges as set forth in Section 6.1.1 above only if and to the extent that the Parking Improvements are not Completed by the Original Outside Construction Completion Date. Without limiting the generality of the foregoing, Tenant acknowledges and agrees that the cessation of construction of the Parking Improvements for more than thirty (30) consecutive days shall, unless caused by a Force Majeure Event or Municipal Breach, be deemed a failure by Tenant to diligently proceed with the construction of the Parking Improvements to Completion and shall constitute an Event of Default under this Lease without further notice or cure right by Tenant if Tenant does not resume construction of the Parking Improvements within ten (10) days after Tenant receives notice thereof from Landlord which notice shall include the following language: “ FAILURE BY TENANT TO

RESUME CONSTRUCTION OF THE PARKING IMPRO VEMENTS (AS SUCH TER M IS DEFINED IN THE LEASE) WITHIN TEN (10) DA YS AFTER THE DATE TE NANT RECEIVES,

OR IS DEEMED TO HAVE RECEIVED, THIS NOTICE SHALL CONSTITUTE A N EVENT OF DEFAULT UNDER THE LEASE”.
(b) The Parking Improvements shall be constructed substantially in accordance, in all material respects, with plans and specifications, including but not limited to working drawings approved by Landlord in Landlord’s reasonable discretion (as such plans and specifications may be updated or otherwise modified in accordance herewith, the “ Parking Improvement Plans” ). The Parking Improvement Plans shall have advanced the design of the Parking Improvements in the preliminary plans that are described in Exhibit “C-1” attached hereto (as such plans and specifications may be updated or otherwise modified in accordance herewith, the “ Preliminary Parking Improvemen t Plans”) to a level sufficient to construct the Parking Improvements. The Preliminary Parking Improvement Plans have been previously approved in writing by Landlord. Changes to the Preliminary Parking Improvement Plans must be approved by Landlord in wri ting, and, once approved, such changes shall be considered a part of the Preliminary Parking Improvement Plans.

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6.1.3 Parking Plans and Construction of Parking Improvements. (a) Approval of Parking Plans. Except as set forth below, the Parking Improvement Plans and changes to the Parking Improvement Plans must be approved by Landlord in writing, and, once approved, such changes shall be considered a part of the Parking Improvement Plans, which approval shall be in Landlord’s reasonable discretion. Tenant shall deliver the Parking Improvement Plans to Landlord (and shall obtain Landlord’s approval thereof before Tenant commences construction of the Parking Improvements. Landlord’s approval of any change in the Parking Improvement Plans shall not be required if (i) such change does not result in a use that is not a Permitted Use, (ii) such change does not require modifications to the Parking Improvement Plans for the structural portion of the Parking Improvements, (iii) such change does not change the design principles of the Parking Improvements as set forth in the CDP (if any), (iv) such change is in compliance with the Chula Vista Building Code, (v) such change is in compliance with, and does not violate the provisions of, the PMP, CDP, the EIR, CVBMP Documents and a ny other Laws, (vi) such change does not result in the removal of trees in violation of the CDP, (vii) such change does not trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural B MPs, and (viii) such change does not pave any area greater than twenty-five (25) square feet unless Tenant has previously secured the approval to perform such work from all applicable Governmental Authorities, including Landlord.
(b) Within thirty (30) days of Landlord’s notice to Tenant, Tenant shall provide to Landlord a reasonably detailed explanation of all changes that Tenant has made to the Parking Improvement Plans without the Landlord’s approval pursuant to this Section 6.1.3(a), including, without limitation, an explanation of why such change did not require approval from Landlord, and copies of the revised Parking Improvement Plans showing the changes, and Landlord shall have thirty (30) days from the receipt of such information to object to the change s to the Parking Improvement Plans as requiring the Landlord’s approval as provided in this Section 6.1.3(a). The Parking Improvement Plans are by this reference made a part hereof. In the event of any inconsistency between the Parking Improvement Plans an d the terms and conditions of this Lease, the terms and conditions of this Lease shall prevail. (c) Construction Requirements. In constructing the Parking Improvements, Tenant shall comply with all Construction Requirements set forth in Exhibit “D-1” attached hereto and all Laws, including, without limitation, the PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals by any Governmental Authority for the Project and the Development, including any CDPs applicabl e to the Premises or the use or development thereof and any conditions of approval or mitigation measures or Project changes pursuant to any environmental review under CEQA.

6.2 [Reserved.]

6.3 Alterations.

6.3.1 Major Alterations.

The term “Major Alterations” means all Alterations other than Minor Alterations, the Initial Project Improvements and the Existing Improvements. Tenant shall comply with all Laws, at its sole cost and expense, including, without limitation, obtaining any permits and approvals required to be obtained for the Major Alterations from any Governmental Authority. Tenant may not make any Major Alterations without the prior written consent of Landlord. Landlord’s consent will not be

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unreasonably withheld. The foregoing is not intended to limit Landlord’s discretion when Landlord is exercising its police or regulatory powers as a Governmental Authority pursuant to the Port Act or is considering issuing any discretionary approval. Any Major Alteration shall be subject to Section 6.7. Landlord may condit ion its approval of a Major Alteration on compliance with the Laws and Tenant obtaining insurance coverages in addition to those required under Article 18 if such additional coverage is customarily obtained in connection with work similar in scope to the Major Alteration. All Major Alterations shall be in accordance with plans and specifications, including but not limited to working drawings (collectively, “ Alteration Plans”) submitted to and approved by Landlord in its reasonable discretion in writing prio r to the commencement of the Major Alterations. Following approval by Landlord, any changes in the Alteration Plans shall be subject to Landlord’s approval, in Landlord’s reasonable discretion. If Landlord approves the Alteration Plans, and if Tenant elect s to proceed with the Major Alterations, then Tenant shall construct and Complete all of the Major Alterations set forth in the Alteration Plans in one (1) integrated construction project with all due diligence; provided, however, that any Major Alterations may be Completed in phases if such phasing is permitted by the Laws.

6.3.2 Minor Alterations.

Tenant may make Minor Alterations without Landlord’s written consent except to the extent Landlord’s prior written consent must be obtained to comply with Laws. “ Minor Alterations” shall mean Alterations that do not: (i) significantly change the silhouette or appearance of the area, (ii) result in a use that is not a Permitted Use, (iii) require new subsurface utility installations, (iv) require structural modification s, (v) result in an exterior replacement that results in a substantial change to the exterior appearance of the Improvements, (vi) result in the removal of trees in violation of the CDP, (vii) pave any area greater than twenty-five (25) square feet, (viii) trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural BMPs, or (ix) violate any Laws or the CDP.

6.3.3 Diligent Construction; Continuous Operations.

Once construction of any Alteratio ns is commenced, Tenant shall diligently prosecute construction of the Alterations to Completion. During the course of the construction of the Major Alterations, Tenant shall continue to use and operate the Premises and the Improvements (other than the Exi sting Improvements) to the extent required by Section 4.4. Once an Alteration is Complete, Tenant shall use and operate the Alteration as part of the Premises and the Improvements, as applicable, throughout the Term.

6.3.4 Construction Requirements.

In constructing any Alterations, Tenant shall comply with all Construction Requirements and all Laws, including, without limitation, any PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals of the Project and the Development from any Governmental Authority, including any CDP applicable to the Premises or the use or development thereof and any conditions of approval or mitigation measures or project changes pursuant to any environmental review under CEQA.

6.4 Cost Reporting.

Tenant shall, during the Term and, with respect to each record, for a period of seven (7) years after the date such record is created (or such longer period as Tenant may decide in its sole discretion), use commercially reasonable efforts to maintain cu stomary records of construction

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costs incurred by Tenant in connection with the Improvements and any Major Alterations. Such records shall include, but are not limited to, a general ledger, vendor invoices, cancelled checks, agreements with third -party contractors and contractor progress payment billings. Tenant shall furnish to Landlord an itemized statement of the construction costs incurred and paid by Tenant in connection with the Improvements or any Major Alterations thereto, as applicable, within thirty (30) days after Tenant receives Landlord’s request therefor (which request shall not be provided to Tenant until the respective Improvements or the respective Major Alterations have been Completed). The statement shall be sworn to and signed, under penalty of perjury, by Tenant as fairly representing, to the best of Tenant’s knowledge, the construction costs incurred and paid by Tenant. Should Tenant perform any construction with its own personnel, Tenant shall during the Term and, with respect to each record, for a period of seven (7) years after the date of such record (or such longer period as Tenant may decide in its sole discretion), maintain the following records with respect to the actual work performed by its own personnel: a payroll journal, copies of cancelled payroll checks, and timecards or other payroll documents which show dates worked, hours worked, and pay rates. Books and records herein required shall be maintained and made available either at the Premises (or, if the Convention Center Lan d is not part of the Premises, the Convention Center Land), the Improvements (or, if the Convention Center is not part of the Improvements, the Convention Center), or at such other location in San Diego County, California as is reasonably acceptable to Lan dlord. Landlord shall have the right with 48 hours’ advanced notice and at reasonable times to examine and audit said books and records without restriction for the purpose of determining the accuracy thereof, and the accuracy of the aforesaid statement.

In the event Tenant does not make available the original books and records at the Premises (or, if the Convention Center Land is not part of the Premises, the Convention Center Land), the Improvements (or, if the Convention Center is not part of the Improvem ents, the Convention Center), or at such other location in San Diego County, California, then Tenant agrees to pay all expenses incurred by Landlord Parties in conducting an audit at the location where said books and records are maintained in accordance with Section 5.4.3. After the seven (7) year period has expired for any record subject to this Section 6.4, Tenant shall deliver the original of such record to Landlord at the address set forth in Section 1.11 or such other location designated by Landlord in writing, which may include the main offices of the City; provided, however, that Tenant may elect to deliver all of the records subject to this Secti on 6.4 that expire in a given Lease Year at one time, in one delivery, within twelve (12) months after the end of the applicable Lease Year.

6.5 Force Majeure Event.

6.5.1 Definition.
“Force Majeure Event ” means the occurrence of any of the following events (and th e actual collateral effects of such event), individually or in any combination, to the extent that (x) such event is beyond the reasonable control of Tenant and (y) such event and/or such actual collateral effect prevents Tenant from the performance of its obligations under this Lease and is approved by the Landlord pursuant to Section 6.5.5 below:
(a) A strike, or similar labor disturbances causing a work stoppage, excluding any such strike or work stoppage that could have been avoided had Tenant, Hotel Operator or a Tenant Party, as applicable, complied with Laws or labor agreements with respect to the Development, if any.
(b) Hurricanes, typhoons, tornadoes, cyclones, other severe storms, lightning or floods.

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(c) Days of precipitation or high winds in any month in excess of ten (10) year average for the area within Landlord’s jurisdiction.
(d) An earthquake, volcanic eruptions, explosions, disease, epidemics or other natural disaster.
(e) Fires (including wildfires).
(f) Inability to procure labor, utilities, equipment, materials, or supplies in the open market due to lack of availability (but, in each case, not attributable to a mere increase in price or Tenant’s, Hotel Operator’s or Tenant Parties’ acts or failure to act). (g) Acts of war or armed conflict, insurrections, riots, and acts of terrorism (including hijacking, chemical or biological events, nuclear events, disease related events, arson or bombing) or, with respect to any of the foregoing, any threat thereof. (h) Delays in the issuance of any approvals or authorizations from any Governmental Authority (excluding Landlord and the City) that is necessary to proceed with development or operation of the Initial Project Improvements ( provided that Tenant has timely and properly filed all applications, submitted all required documents and fees and taken all other reasonable actions that are necessary to obtain such approvals or authorizations and that Tenant, Hotel Operator or a Tenant Party is not responsible for the delay in the issuance of such approvals or authorizations).
(i) An act of God.
(j) Embargoes or blockades.
(k) Pre-Existing Hazardous Material (that is not the result of Material Exacerbation).
(l) Closures or work stoppages ordered by any Governmental Authority that do not arise from a breach of this Lease or misconduct by Tenant, Tenant Parties or Hotel Operator.

6.5.2 Calculation of Delay.

Actual delays resulting from the occurrence of one or more Force Majeure Events occurring concurrently shall be calculated concurrently and not consecutively.

6.5.3 Exclusions.

For purposes of this Section 6.5, a Force Majeure Event shall not include adverse general economic or market conditions not caused by any of the events described in 6.5.1(a) through (l) above.

6.5.4 Obligation to Pay Rent.

In no event will a Force Majeure Event excuse the payment of Rent or any other monies due to Landlord under this Lease.

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6.5.5 Notice and Acceptance Requirement.

Tenant shall notify Landlord of a Force Majeure Event in writing within ten (10) Business Days after Tenant learns of, and in no event later than thirty (30) days after commencement of, such Force Majeure Event. Such notice (the “ Initial Force Majeure Notice ”) must be made in good faith and describe the Force Majeure Event creating delay, why such delay is occurring, the estimated expected duration of such delay, and the commercially reasonable efforts that Tenant is taking to minimize the period of delay. Commencing on the date that is thirty (30) days after the date of the Initial Force Majeure Notice and for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exist (whichever is later), Tenant shall provide to Landlord monthly written updates on the estimated expected duration of such delay and the commercially reasonable efforts that Tenant is taking to minimize the period of delay. Within thirty (30) days after the Force Majeure Event or the actual collateral effects of such Force Majeure Event cease to exist (whichever is later), Tenant shall notify Landlord in w riting that the Force Majeure Event and the actual collateral effects of such Force Majeure Event, as applicable, have ceased to exist and of the number of days by which Force Majeure Event (including the actual collateral effects of such Force Majeure Eve nt) has delayed Completion of the Resort Hotel, Completion of the Parking Improvements, or Hotel Operator’s operation of the Improvements (excluding Existing Improvements), as applicable (the “Force Majeure Notice”). Within thirty (30) days after Landlord’s receipt of the Force Majeure Notice, Landlord shall provide notice to Tenant (“Force Majeure Response”) that either Landlord (a) requires additional information to make a determination regarding Tenant’s assertion of the existence of a Force Majeure Even t or the duration of the delay caused by the Force Majeure Event or the actual collateral effects of such Force Majeure Event, (b) approves the Force Majeure Notice, or (c) denies some or all of the Force Majeure Notice. Landlord’s approval or denial of th e Force Majeure Notice shall be in Landlord’s reasonable discretion. If Landlord denies some or all of the Force Majeure Notice, Landlord and Tenant will meet and confer in good faith within ten (10) days after Landlord’s delivery of the Force Majeure Resp onse to attempt to reach a mutually acceptable modification to the Force Majeure Notice that will result in Landlord approving the Force Majeure Notice as modified (“Meet & Confer Period”). If the Landlord and Tenant do not agree on a modification to the Force Majeure Notice during the Meet & Confer Period, Tenant may elect to withdraw the Force Majeure Notice and if Tenant does not withdraw the Force Majeure Notice, Landlord shall present the Force Majeure Notice to the BPC for its consideration to either approve or deny the Force Majeure Notice at a regularly scheduled meeting that shall take place within sixty (60) days after the expiration of the Meet & Confer Period. If the BPC denies the Force Majeure Notice, then the dispute shall be resolved by a cou rt of competent jurisdiction. If a court of competent jurisdiction determines in a final and non -appealable decision that the putative Force Majeure Event that was described in such Force Majeure Notice did not constitute a Force Majeure Event, the duratio n of such delay in the Completion of the Resort Hotel, Completion of the Parking Improvements or operation of the Improvements (excluding Existing Improvements), as applicable, specified therein was not reasonable, or the efforts that Tenant took to minimi ze the period of delay were not commercially reasonable, then, as Landlord’s sole and exclusive remedy for Tenant’s failure to perform any obligation under this Lease from which Tenant claimed to be excused as a result of such Force Majeure Event, but was not excused, Tenant shall make Landlord whole for any loss that Landlord suffered as a result of such failure.

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6.5.6 [Reserved.]

6.5.7 Limits on Term of Force Majeure.

In no event shall a Force Majeure Event cause the Outside Construction Completion Date to extend beyond the Term.

6.5.8 Resort Hotel and Parking Improvements Outside Construction Completion Date.

The Resort Hotel and Parking Improvements Outside Construction Completion Date shall be extended by one day for each day that a Force Majeure Event or Municipal Bre ach delays Completion of the Resort Hotel and/or the Parking Improvements.

6.6 Advertising Devices.

All signs, flags and other advertising devices (collectively, the “Advertising Devices”) visible from outside the Premises or the Improvements, as applicable, must be expressly approved in writing by Landlord prior to installation. As of the Commencement Date, the Advertising Devices described on Exhibit “N” attached hereto have been previously approved by the Landlord in writing (collectively, “Pre-Approved Advertising Devices”). Landlord’s written approval shall comply with the following: (1) Landlord’s approval of Advertising Devices that is not a Discretionary Entitlement shall not be unreasonably withheld; (2) Landlord’s approval of Advertising Devices that is a Discretionary Entitlement shall be subject to Landlord’s sole and absolute discretion; and (3) all approvals by Landlord of Advertising Devices, whether they are a Discretionary Entitlement or not, shall be in accordance with all Laws (collectively, “Review Processes”). During the Term, Tenant may submit to Landlord a list of Advertising Devices to be flown, installed, placed or erected on the Premises and the Improvements, to be approved or disapproved by Landlord in accordance with the Review Processe s. Such list shall specify, with respect to each proposed Advertising Device, its form, proposed location on the Premises or the Improvements, dimensions, frequency and duration of display and any other information that Landlord may request. From and after the Expansion Date, Tenant shall not sell any naming rights to any portion of the Convention Center without the prior written consent of the Landlord, which consent may be denied, conditioned, or withheld in the Landlord’s sole and absolute discretion, an d if Landlord consents to the sale of naming rights, Tenant shall pay Landlord percentage rent, in an amount to be mutually agreed to by Landlord and Tenant, based on the gross income for the sale of such naming rights. All signage in the Landlord’s jurisd iction is subject to all Laws, including without limitation, San Diego Unified Port District Code Section No. 8.30. If Landlord hereafter adopts any other ordinance or policy governing signage, Tenant shall comply with such ordinance or policy subject to any grandfathering terms thereof.

6.7 Tenant Percent for Art.

Tenant shall expend no less than the Tenant Art Investment amount set forth in Section 1.8.

Tenant acknowledges and agrees that any requests for proposed Alterations during the Term may be conditioned on the payment of additional commissions or purchases of artwork and/or in- lieu contributions.

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6.8 Prevailing Wage.

6.8.1 Tenant acknowledges and agrees that:
(a) Any construction, alteration, demolition, installation or repair work required or performed under this Lease constitutes “public work” under California Prevailing Wage Law, including Labor Code §§ 1720 through 1861, et seq. (“PWL”), and obligates Tenant to cause such work to be performed as “public work,” including, but not limited to, the payment of applicable prevailing wages to all Persons subject to the PWL.
(b) Tenant shall cause all Persons performing “public work” under the Leas e to comply with all applicable provisions of the PWL and other applicable wage Laws. (c) Landlord hereby notifies Tenant and Tenant hereby acknowledges that the PWL includes, without limitation, Labor Code § 1771.1(b) that provides that the following requirements described in Labor Code § 1771.1(a) shall be included in all bid invitations and “public work” contracts: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of § 4104 of the Public Contract Code, or engage in the performance of any contract for “public work,” as defined in this chapter, unless it is currently registered and qualified to perform “public work” pursuant to Section 1725.5. It is not a violation of this Section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Sections 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform “public work” pursuant to Section 1725.5 at the time the contract is awarded.”
(d) Tenant acknowledges that its obligations under the PWL include, without limitation, ensuring that:
(i) pursuant to Labor Code § 1771.1(b), a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor’s current registration to perform “public work” pursuant to § 1725.5; (ii) pursuant to Labor Code § 1771.4(a)(1), the call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”); (iii) pursuant to Labor Code § 1771.4(a)(2), it posts or requires the prime contractor to post job site notices, as prescribed by regulation; and (iv) pursuant to Labor Code § 1773.3(a)(1), it provides notice to the DIR of any “public works” contract subject to the requirements of the PWL, within thirty (30) days of the award, but in no event later than the first day in which a contractor has workers employed upon the public work. Pursuant to Labor Code § 1773.3(a)(2), the notice shall be transmitted electronically in a format specified by the DIR and shall include the name and registration number issued by the DIR pursuant to §1725.5 of the contractor, the name and registration number issued by the DIR pursuant to §1725.5 of any subcontractor listed on the successful bid, the bid and contract award dates, the contract amount, the estimated start and completion dates, job site location, and any additional information that the DIR specifies that aids in the administration and enforcement of the PWL. PWC-100 is the name of the form currently used by the DIR for providing the notice, but Tenant shall determine and use whatever form the DIR requires.

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(e) Landlord shall not be responsible for Tenant’s failure to comply with any applicable provisions of the PWL.
(f) Tenant’s violations of the PWL shall constitute a default under this Lease. (g) Notwithstanding anything in this Lease to the contrary, Tenant shall not be responsible for any Person’s failu re to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Landlord Party (other than by a Tenant Party or Hotel Operator, or on behalf of a Tenant Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a Tenant Party or Hotel Operator).

6.9 Historical Designation.

Neither Landlord nor Tenant shall designate, cause any Person to designate, submit or support any application to designate, the Premises or any Improvement s as a federal, state or local historical landmark or as a historical resource, without the other Party’s prior written consent, which may be withheld by such other Party in its sole and absolute discretion. The terms of this Section 6.9 shall survive the expiration or earlier termination of this Lease.

6.10 Submission of Redevelopment Plan.

Provided that there is no Event of Default, and subject to the restrictions set forth in Section 15.1 and Tenant’s submission of an Inspection Report and completion of any outstanding work pursuant to Section 15.3, Tenant shall have the right to submit a redevelopment plan to the Landlord for the Improvements (other than the Existing Improvements) (“Redevelopment Plan”) during or before the fifty-fifth (55th) Lease Year. The Redevelopment Plan shall be accompanied by the following documents, which collectively shall be referred to herein as, the “Redevelopment Plan Package”: (a) description of the development concept and the proposed project sufficient for the Landlord to understand the reason for the proposed redevelopment (including business expansion, modernization of facilities, aesthetic enhancement, increase in revenue s); (b) description of the development concept and the proposed project sufficient for the Landlord to understand the scope of the entire development concept and whether it covers some or all of the Premises or Improvements (other than the Existing Improvements), which may include renderings and drawings showing a scaled site layout, interiors and exteriors of all significant buildings, landscape development and layout, preliminary sign concept, and any other prominent features; (c) evidence that Tenant is a “tenant in good standing”, which means that the Tenant has (i) maintained the Premises and Improvements in good condition, free of deferred maintenance; (ii) a prompt payment history; (iii) not had an Event of Default; (iv) maximized the gross revenue of the Improvements; and (v) maintained accurate financial records that are accessible to the Landlord in accordance with the terms hereof; (d) any proposed changes to ownership; (e) description of the development team and its qualifications; (f) proforma ca sh flows for each part of the proposed redevelopment; (g) any proposed changes to the Acceptable Brand or Resort Hotel management team; (h) anticipated development cost, with repair and maintenance, furniture, fixture and equipment items separately identified; and (i) any proposed changes to the existing use. Within sixty (60) days after the Landlord’s receipt of the Redevelopment Plan Package, Landlord shall determine in its reasonable discretion whether additional information is required or if the Redevel opment Plan Package is complete. Landlord shall have the right to request additional information related to the Redevelopment Plan Package. Within ninety (90) days of the date that Landlord determines that the Redevelopment Plan Package is complete, Landlord’s staff shall present the Redevelopment Plan Package to the BPC for the BPC’s consideration, which the BPC may approve or disapprove in the BPC’s sole and absolute

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discretion. If the BPC approves the Redevelopment Plan, Tenant shall proceed with the Redevelopment Plan in accordance with the terms of this Lease related to Alterations, including, without limitation, Article 6 and Article 8 herein, and any other direction from the BPC. Tenant shall not implement the Redevelopment Plan or any portion thereof at any time prior to the Expansion Date. The terms of this Section 6.10 shall survive the expiration or earlier termination of this Lease.

6.11 Construction of the Convention Center and Tenant’s Phase 1A Improvements The Project Implementation Agreement requires Tenant to construct the Convention Center and Developer’s Phase 1A Infrastructure Improvements (“ Tenant’s Phase 1A Improvements ”), in each case, as provided in the Project Implementation Agreement.

7. TITLE TO AND DEMOLITION OF ALTERATIONS AND IMPROVEMENTS

7.1 Title.

7.1.1 Private Improvements.

All Private Improvements which may be installed, constructed or placed in, on, over or under the Premises, from time to time by Tenant in accordance with this Lease, (a) shall be so installed, constructed or placed at Tenant ’s sole cost and expense, (b) shall remain Tenant’s property during the Term, and (c) subject to the terms of Section 7.2, at the expiration or earlier termination of this Lease (other than in event a New Lease is entered into in accordance with Section 10.3.2 of this Lease, in which case no expiration or termination shall be deemed to have occurred for the purposes of this Article 7), shall either be demolished by Tenant at Tenant’s sole cost and expense or remain on the Premises and automatically become the property of Landlord without additional compensation from Landlord; provided that, subject to Section 7.3 below, Tenant’s trade fixtures (that is fixtures relating uniquely to Tenant and whic h are removable without non-repairable damage to the other Improvements), furnishings, moveable equipment and other personal property of Tenant shall remain the property of Tenant and shall be removed by Tenant as provided in Section 7.3. Upon Landlord’s request, following the expiration or earlier termination of this Lease, Tenant shall execute and deliver (at no cost or expense to Landlord) a quitclaim deed as provided in Article 23 to confirm Landlord’s ownership of the Private Improvements which are to remain on the Premises pursuant to Section 7.2, which obligation shall survive the expiration or earlier termination of this Lease. Notwithstanding the foregoing, if title to artwork in fulfillment of Tenant Art Investment is governed by a separate agreement between Tenant and the artist which has been approved by Landlord, then such agreement shall govern over this Lease with respect to the title of such artwork following the expiration or earlier termination of this Lease.

7.1.2 Public Improvements.

The Public Improvements which may be installed, construc ted or placed in, on, over or under the Premises, from time to time by Tenant in accordance with this Lease, the Convention Center Leases and other agreements, (a) shall, subject to Tenant’s obligations under Section 15.1, the Convention Center Sublease or such other agreements, as applicable, be so installed, constructed or placed at the JEPA’s, the City’s or Landlord’s, as applicable, sole cost and expense, and (b) shall remain the JEPA’s, the City’s or Landlord’s, as applicable, property during the Term; provided that, subject to Section 7.3 below, Tenant’s trade fixtures (that is fixtures relating uniquely to Tenant and which are removable without non -repairable damage to

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the other Improvements), furnishings, moveable equipment and other personal property of Tenant shall remain the property of Tenant and shall be removed by Tenant as provided in Section 7.3.

From and after the Expansion Date, any and all expenditures made by Tenant for reconstruction, maintenance or repair of, or for Alterations to, the Public Improvements (except with respect to Tenant’s trade fixtures and personal property) shall be treated as supplemental Rent for all purposes under this Lease; provided that, for the avoidance of doubt, such expenditures shall not modify, reduce, substitute or credit any of Tenant’s other Rent obligations under this Lease, including without limitation, the payment of Minimum Annual Rent, Percentage Rent, Additional Rent and Parking Rent.

7.2 Demolition of Private Improvements.

If the Redevelopment Plan is disapproved by the BPC pursuant to Section 6.10, and Tenant elects to demolish the Private Improvements (“ Tenant’s Demolition Election ”) by written notice to Landlord at any time before the end of the sixty-third (63 rd) Lease Year, then Tenant (a) shall demolish and remove all of the Private Improvements ( provided, however, that Tenant shall not demolish or remove any of the following Improvements if Landlord instructs Tenant not to demolish or remove such Improvements in a written notice (“ Landlord’s Non -Demolition Notice”) that is provided to Tenant no later than one (1) month after Tenant’s notice of Tenant’s Demolition Election: (i) any Existing Improvements on the Hotel Land or the Parking P remises and (ii) any public and private utilities on the Hotel Land or the Parking Premises); (b) shall perform all remediation work that is required pursuant to Section 21.3 by the Expiration Date, but not earlier than twelve (12) months prior to the Expiration Date; and (c) shall obtain all permits required to perform such work in advance of the Expiration Date. Tenant acknowledges that demolition and removal of the Private Improvements and demolition and removal of public and private utilities and/or the remediation work pursuant to Section 21.3 may require Tenant to obtain permits, certain of which may be discretionary. If Tenant makes Tenant’s Demolition Election, then Tenant shall surrender the Hotel Land and the Parking Premises to Landlord in a Buildable Condition. A “ Buildable Condition” means completion of the following work: (i) the demolition and removal of any subsurface Private Improvements (including foundations and pilings (but Tenant will not be required to remove any subsurface Private Improvements that are located more than one (1) foot above the highest water table)), the Existing Improvements on the Hotel Land and the Parking Premises, and the public and private utilities on the Hotel Land and the Parking Premises (provided, however, that a “ Buildable Condition” will not require the demolition or removal of such subsurface Private Improvements, Existing Improvements and/or public and private utilities if Landlord instructs Tenant not to demolish and remove them in the Landlord’s Non-Demolition Notice), any Hazardous Materials and Pre -Existing Materials but only as and to the extent required under Article 21, and any debris resulting from such demolition and removal; (ii) the remediation of any Hazardous Materials and Pre-Existing Materials but only as and to the extent required under Article 21; and (iii) the repair of any damage to the Hotel Land and the Parking Premises, Existing Improvements on the Hotel Land and the Parking Premises and/or public and private utilities on the Hotel Land and the Parking Premises, caused by (i) and (i i) above, pursuant to plans and specifications approved by Landlord in Landlord’s reasonable discretion. If Tenant makes Tenant’s Demolition Election with respect to the Private Improvements and the Convention Center has not been destroyed, demolished or C ondemned, then Tenant shall use commercially reasonable efforts to maintain the usability of the Convention Center as a standalone building after the demolition of the Private Improvements occurs, including, but not limited to, by capping system services and constructing a wall or other barrier at the point where the Convention Center and the Resort Hotel were connected prior to the demolition of the Private Improvements, pursuant to plans and specifications approved by Landlord in Landlord’s

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reasonable discretion (such obligations of Tenant, “ Tenant’s Standalone Convention Center Obligations”). If Tenant fails to surrender the Hotel Land or the Parking Premises to Landlord in a Buildable Condition or, if applicable, fails to satisfy Tenant’s Standalone Conv ention Center Obligations, in each case, within the period allowed under Section 7.4, Landlord may do so, without obligation, and may charge the cost thereof to Tenant pursuant to the Reimbursement Procedure, together with additional rent for estimated administrative costs in the amount of ten percent (10%) of such cost, and interest on all such sums at the Default Rate from the date incurred until paid . Nothing contained in this Section 7.2 shall be interpreted to limit Tenant’s indemnity obligations, including without limitation, Tenant’s obligations under Section 21.3.

Tenant acknowledges and agrees that, if (a) the Redevelopment Plan is not submitted by Tenant during or before the fifty-fifth (55th) Lease Year in accordance with Section 6.10, or (b) there is an early termination of this Lease by Tenant or due to an Event of Default, or (c) Tenant fails to implement the Redevelopment Plan approved by the BPC prior to the end of the sixty-third (63rd) Lease Year, then, within thirty (30) days after the early termination of this Lease or any time after the end of the sixty-third (63rd) Lease Year, as may be applicable, Landlord may notify Tenant in writing of what Private Improvements and public and private utilities on the Hotel Land and/or the Parking Premises Landlord in its sole discretion requires Tenant to demolish and remove (such notice is referred to herein as the “ Landlord End of Term Election ”). Unless Landlord has previously delivered to Tenant the Landlord End of Term Election, not later than one (1) year before the Expiration Date or within sixty (60) days after the earlier termination of this Lease, as applicable, Tenant shall request in writing from Landlord the Landlord End of Term El ection. If Landlord has not provided the Landlord End of Term Election within thirty (30) days thereafter, the same shall be deemed to be an election by Landlord for all Private Improvements to remain upon and be surrendered with the Hotel Land and the Parking Premises, and title to such Private Improvements shall vest in Landlord in accordance with Section 7.1 and Article 23 (but Tenant shall remain responsible for any remedial work that may be required in accordance with Section 21.3). If Landlord provides to Tenant the Landlord End of Term Election in accordance with this Section 7.2, then Tenant shall demolish and remove all of the Private Improvements set forth in such Landlord End of Term El ection, perform all remedial work in connection therewith pursuant to Section 21.3 and obtain all permits that are required to perform such work, by t he Expiration Date (but not earlier than six (6) months prior to the Expiration Date) or, in the event of an early termination of this Lease, by the date that is ninety (90) days after Tenant receives all of the permits that are required for Tenant to perf orm such work (“ Early Termination Date ”); provided that Tenant shall seek to obtain all of such permits in a diligent manner and provide Landlord with copies of such permits upon receipt by Tenant. Tenant acknowledges that demolition of the Private Improve ments and/or the remediation work in connection therewith pursuant to Section 21.3 may require Tenant to obtain permits, certain of which may be discretionary. Tenant shall repair any damage to the Hotel Land and the Parking Premises (and the Private Improvements which Landlord is not requiring Tenant to demolish and/or remove) caused by such demolition and removal, and Tenant shall surrender to Landlor d the Hotel Land and the Parking Premises in a Buildable Condition except with respect to any Private Improvements required by Landlord not to be demolished or removed. If the Landlord End of Term Election requires Tenant to demolish and remove the Private Improvements and the Convention Center has not been destroyed, demolished or Condemned, then Tenant shall not demolish the Convention Center and shall satisfy Tenant’s Standalone Convention Center Obligations. If Tenant does not make Tenant’s Demolition Election or if Landlord provides to Tenant the Landlord End of Term Election with respect to fewer than all of the Private Improvements, then Tenant shall not demolish and remove any Improvements that Tenant is not required to demolish, and, if any of the Improvements that Tenant or Landlord elect not to be demolished are not in full compliance

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with Article 15, then (subject to Tenant’s Standalone Convention Center Obligations, if applicable) Landlord may require, at Tenant’s sole cost and expense, that such Improvements be modified to a state and condition which complies with Article 15.

7.3 Removal of Personal Property.

Except as provided below, all of Tenant’s personal property including machines, appliances and equipment and trade fixtures (even though not personal property), located at or on the Premises and the Improvements, shall be removed by Tenant by the Expiration Date or earlier termination of this Lease. Tenant shall repair any damage occasioned by any removal of personal property and trade fixtures p ursuant to Section 7.3 by the Expiration Date or earlier termination of this Lease. Notwithstanding the foregoing, at least ninety (90) days before the Expiration Date or, in the case of earlier termination of this Lease, within ten (10) days after such te rmination, unless Landlord expressly elects within the same time periods to require Tenant to remove the same, any artworks that constitute personal property and that were provided to comply with Tenant Art Investment but which are not governed by a separa te agreement between Tenant and the artist relating to the removal of such artworks at the end of the Term, shall not be removed and shall remain located on the Premises or the Improvements, as applicable. If any personal property that is required to be removed is not removed by Tenant in accordance with this Section 7.3, then the same may be considered abandoned and, at the option of Landlord, shall thereupon become the property of Landlord, without cost to Landlord and without any payment to Tenant, except that Landlord shall have the right to have such personal property removed and to repair any and all damage occasioned by such removal, at the sole e xpense of Tenant pursuant to the Reimbursement Procedure.

7.4 Removal/Demolition/Remediation Period.

If (a) Tenant has made Tenant’s Demolition Election, or (b) Landlord has provided the Landlord End of Term Election, (c) Tenant is required to perform remediation work pursuant to Section 21.3 and/or (d) Tenant is performing Tenant’s Standalone Convention Center Obligations, then Tenant shall continue to pa y the full Rent to Landlord in accordance with this Lease during such demolition and removal work and/or any remediation work and until such work is complete. If Tenant’s demolition and removal work and remediation work is not completed by the Expiration Date or, in the event of an early termination of this Lease, by the Early Termination Date, then the terms of Article 26 regarding Rent payable during holdover shall apply. Notwithstanding any provision of this Article 7 to the contrary, if (i) Tenant has made Tenant’s Demolition Election, or (ii) Landlord has provided the Landlord End of Term Election other than because of an early termination of this Lease by Tenant or due to an Event of Default, and/or (iii) Tenant is required to perform remediation work pursuant to Section 21.3, and, in each case, the Demolition and Remediation Report indicates that the time period for completion of such demolition and removal work and/or remediation work is estimated to be greater than six (6) months, then Tenant shall commence such demolition and removal work and/or remediation work sufficiently prior to the Expiration Date so that such demolition and removal work and/or remediation work is anticipated to be completed no later than the Expiration Date (for example, if the estimated removal period is ten (10) months, then Tenant shall commence such work at least ten (10) months prior to the end of the Term).

7.5 Survival.

The terms of this Article 7 shall survive the expiration or earlier termination of this Lease.

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8. ENTITLEMENTS

8.1 Entitlement Costs.

If any discretionary approval, permit or entitlement, including, without limitation, environmental analysis under CEQA or the National Environmental Policy Act, the PMP, a Port Master Plan Amendment (“PMPA”), stormwater permits, a CDP and/or a Coastal Act exclusion (collectively, “Discretionary Entitlement”), are necessary, in Landlord’s sole and absolute determination, in connection with any Improvements or Alterations, demolition work, remediation work or other projects undertaken by Tenant on or at the Premises or the Improvements (each of the foregoing for which a Discretionary Entitlement is required, the “Discretionary Project”), then Tenant shall enter into agreements, consistent with the Landlord’s applicable standard practices at that time (if any) , with third -party experts, professionals and consultants to prepare reports and other materials (“Consultant Services”) that are required to process the Discretionary Project and for the Landlord or any other relevant Governmental Authority to consider th e Discretionary Entitlement or Discretionary Project. Tenant shall be directly responsible for the costs of the Consultant Services. Tenant shall reimburse Landlord pursuant to the Reimbursement Procedure for all reasonable costs and expenses incurred by L andlord in connection with preparing, processing, considering and approving any Discretionary Project, any Discretionary Entitlement or any appeal of any CDP or Coastal Act exclusion to the CCC. If Tenant fails to reimburse Landlord for such costs or expenses pursuant to the Reimbursement Procedure, then, in addition to any other remedies that Landlord may have, following three (3) Business Days’ prior written notice to Tenant, Landlord may, at its reasonable discretion, discontinue the preparing, processing, considering or approving of such Discretionary Project, Discretionary Entitlement or such appeal of a CDP or Coastal Act exclusion to the CCC, as applicable, until Tenant reimburses Landlord, and Tenant shall be responsible for any costs and expenses in curred by Landlord related to such discontinuance as supplemental Rent and if such failure continues for seven (7) additional Business Days after written notice from Landlord to Tenant, then such failure shall be an Event of Default. Nothing herein shall o bligate Landlord to seek, process or obtain any Discretionary Entitlement or any other third -party Governmental Authority approval for a Discretionary Project for the benefit of Tenant, and Landlord makes no warranty or representation to Tenant that Tenant will obtain any Discretionary Entitlement or ministerial approval. Landlord shall not be required to pay any Governmental Authority fees or costs and expenses for any Consultant Services associated with any Discretionary Entitlement or any other third -party Governmental Authority approval for a Discretionary Project. If Tenant requests Landlord’s assistance in obtaining from any third -party Governmental Authority any licenses, approvals, notifications, registrations or permits in connection with developmen t, use and operation of the Premises and the Improvements, including the construction of the Tenant’s Initial Project Improvements, Landlord will consider Tenant’s request and inform Tenant within thirty (30) days whether it will agree to reasonably assist Tenant.

8.2 Entitlements Indemnity.

Without limitation of Tenant’s other obligations under this Lease, Tenant agrees, at its sole cost and expense, and with counsel reasonably acceptable to Landlord, to indemnify, defend and hold harmless the Landlord Parties and the City Parties from any third-party claims, demands, actions, causes of action, suits and Related Costs, arising out of Landlord’s approval of any Discretionary Project, Discretionary Entitlement or appeal of a CDP or Coastal Act exclusion to the C CC.

Landlord may, in its sole and absolute discretion, participate in the defense of any claims, demands, actions and causes of action and suits, and Tenant shall reimburse Landlord for all reasonable costs that are incurred by Landlord in connection there with, including, without

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limitation, reimbursement for attorneys’ fees, experts’ fees and other costs. Landlord’s participation in such defense shall not relieve Tenant of any of its obligations under this Section 8.2. The foregoing indemnity obligations of Tenant are in addition to, and not in limitation of, any other indemnity obligations of Tenant contained in this Lease, and this Section 8.2 shall survive the expiration or earlier termination of this Lease.

8.3 Reservation of Discretion.

Tenant acknowledges and agrees that, notwithstanding the terms and conditions of this Lease, Landlord reserves its discretion to condition, approve or disapprove any Discr etionary Entitlements or Discretionary Project, including, without limitation, adoption of any and all feasible mitigation measures, alternatives to a Discretionary Project, including a no project alternative, and a statement of overriding consideration, i f applicable, and that nothing in this Lease will be construed as circumventing or limiting Landlord’s discretion with respect to any Discretionary Entitlement, or any Discretionary Project, including, without limitation, the exercise of eminent domain, co de enforcement and the making of findings and determinations required by Law.

Tenant acknowledges and agrees that any and all Discretionary Entitlements may be conditioned, approved or denied by Landlord, in its sole and absolute determination, and Tenant accepts the risk that Landlord may deny any and all Discretionary Entitlements, and hereby waives any claims, demands, actions, causes of action, suits against Landlord for such conditions or denial.

9. LIENS

9.1 No Right to Bind Landlord.

Neither Tenant, any Tenant Party nor the Hotel Operator shall have any power or authority to do any act or thing, or to make any contract or agreement, which shall bind Landlord in any way whatsoever, and Landlord shall have no responsibility to Tenant, Tenant Party, the Hotel Operator or other Person who performs, causes to perform, engages in or participates in any construction of any Improvements, Alterations or any other work on the Premises at the request of Tenant, Tenant Party, the Hotel Operator or other Persons. Landlord shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom.

9.2 Notice of Non-Responsibility.

Tenant shall give written notice to all contractors, subcontractors and materialmen of Landlord’s non-responsibility in connection with any construction of any Improvements, Alterations or any other construction work on the Premises, and shall immediately provide Landlord with true copies of such notices not less than ten (10) days prior to the commencement of any work on the Premises. The Landlord Parties shall have the right to post and keep posted thereon notices of non-responsibility, or such other notices which Landlord may deem to be proper for the protection of Landlord’s interest in the Premises. Tenant shall provide Landlord with any information required by Landlord to complete the notice of non-responsibility.

9.3 Mechanics’ Liens.

Tenant shall pay or cause to be paid all costs for work, labor, services or materials supplied to or performed on the Premises that might result in any mechanics’ lien or similar lien as and when Tenant is required to do so under Tenant’s agreement with the respective provider thereof. If Tenant receives notice that any mechanics’ lien or any similar lien is r ecorded against the

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Premises and Tenant is not contesting such lien in accordance herewith, then Tenant shall cause such lien to be released and removed of record within thirty (30) days after Tenant receives notice of the recordation of the mechanics’ lie n or similar lien. Tenant shall indemnify, defend, release and save Landlord free and harmless from and against any and all claims of lien of laborers or materialmen or others for work performed or caused to be performed or for materials or supplies furnished for or at the Premises or Improvements by or for any Tenant Party and the Hotel Operator and all Related Costs.

9.4 Contest of Lien.

If Tenant in good faith wishes to contest the amount or validity of any lien (other than any lien with respect to taxes), then Tenant shall have the right to do so; provided that (a) Tenant shall first provide Landlord with at least ten (10) Business Days’ written notice prior to any such contest, (b) Tenant shall first record a surety bond sufficient to release such lien; and (c) Tenant shall cause the following conditions to remain satisfied during such contest:
(i) such contest shall not place the fee estate of the Premises in material danger of being forfeited or lost;
(ii) such contest shall be without cost, liability, or expense to Landlord; (iii) Tenant shall prosecute such contest with reasonable diligence and in good faith; and
(iv) no Event of Default shall exist under this Lease at the time of or during such contest.

9.5 Landlord’s Right to Pay.

If Tenant shall be in default in paying any charge for which a lien claim has been filed, and if Tenant has not contested such lien in accordance with Section 9.4, then Landlord may, but shall not be so obliged to, pay said lien claim and any costs incurred in connection therewith, and the amount so paid, together with reasonable attorneys’ fees incurred in connection therewith, shall be immediately due and owing from Tenant to Landlord, and Tenant shall pay the same to Landlord pursuant to the Reimbursement Procedure, together with interest on the f ull amount thereof at the Default Rate from the date of Landlord’s payments until paid.

9.6 Notice of Liens.

Should any claims of lien be filed against the Premises or any Improvement or any action affecting the title to the Premises or Improvements be commenced, the Party receiving notice of such lien or action shall give the other Party written notice thereof within five (5) Business Days of receipt.

9.7 Right of Entry.

Nothing herein shall imply any consent on the part of Landlord to subject Landlord’s estate to liability under any mechanics’ lien or other lien. Without limiting Tenant’s obligations under Section 9.2 above, the Landlord Parties shall have the right, but not the obligation, to enter upon and inspect the portions of the Improvements that are generally accessible to the general public or the portions of the Premises where the operation of the Initial Project Improvements and any Alterations to the Initial Project Improvements is ongoing, during normal business hours and upon

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a three (3) Business Days’ prior notice to Tenant (except in the cas e of an emergency in which case no prior notice shall be required but each of such Landlord Parties shall notify Tenant and, prior to the Completion of the Resort Hotel, Tenant’s Risk Construction Manager thereof by phone prior to entering the Premises) and Landlord shall, and shall cause each of such Landlord Parties to: (a) comply with all applicable security and safety procedures of Tenant of which Tenant informs Landlord in writing and with which such Landlord Party can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with Tenant’s operation and use of the Premises and the Improvements (and, if the Convention Center Land is not part of the Premises and the Convention Center is not part of the Improvements, Tenant’s operation and use of the Convention Center Land and the Convention Center), while on the Premises and at the Improvements. Notwithstanding the foregoing, nothing herein shall limit the Landlord’s right to enter the Premises and Improvements at any time to exercise its police powers.

10. LEASE FINANCING ENCUMBRANCE

10.1 Restrictions on Encumbrance.

10.1.1 Landlord’s Consent.

Tenant shall not encumber or hypothecate this Lease, Tenant’s leasehold interest, or the Improvements thereon, or any part thereof or interest therein or grant any security interest in the direct or indirect equity interests of Tenant (such encumbrance, hypothecation or grant of any security interest in any direct or indirect equity interests of Tenant being referred to herein as, a “Financing Transaction ”), without Landlord’s prior written consent to each Financing Transaction, which consent, subject to the terms of Section 10.1.2, shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything in this Lease to the contrary, this Article 10 neither limits nor restricts, Landlord’s consent shall not be required for, and the term “Financing Transaction ” excludes any grant of any security interest in the indirect equity interests in any Person if a foreclosure of such security interests would not result in a Change of Control. Tenant shall submit its request for consent to the Financing Transaction in writing to Landlord, together with a term sheet, commitment letter or comparable summary of the proposed terms of the Financing Transaction, together with redacted versions of the drafts of all material documents proposed to be executed in connection with the Financing Transaction, including, but not limi ted to, any loan agreement, promissory note, deed of trust, pledge agreement (if applicable), all security documents and guaranties (if applicable) (each a “Loan Document” and, collectively, “Loan Documents”) as well as the documentation required in Sections 10.1.2(g), (h), (i) and (j). Within ten (10) days of receiving Tenant’s request, Landlord may request from Tenant additional information regarding the lender and/or the proposed Financing Transaction. Landlord shall provide its response to Tenant’s requ est for consent to the Financing Transaction within forty-five (45) days following Landlord’s receipt of Tenant’s request and all information reasonably requested by Landlord from Tenant. Such consent shall be deemed granted only upon Landlord’s written consent to the Financing Transaction as described above and which may be conditioned upon Tenant’s satisfaction of the following additional conditions to such consent: prior to the recordation of the encumbrance in connection with such Financing Transaction, Tenant shall, both at the time the Loan Documents are finalized and subsequent to execution thereof: (a) provide Landlord with the opportunity to review (but not copy) a complete set of the unredacted final, fully executed and acknowledged (where applicab le) Loan Documents for the Financing Transaction and a “redline” of such Loan Documents against the Loan Documents previously submitted by Tenant and most recently reviewed by Landlord, which review shall be conducted in person at the Premises, the Convention Center Land (in the case the Convention Center Land is not part of the Premises), the Initial Project Improvements, the Convention Center (in the case

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the Convention Center is not part of the Initial Project Improvements) or at such other location in San Diego County, California as is reasonably acceptable to Landlord, and following such review, Landlord shall have confirmed to its sole satisfaction that the material terms and conditions of the Loan Documents have not changed from those originally submitted to and reviewed by Landlord (or that any such revisions are reasonably acceptable to Landlord or are otherwise consistent with the requirements of Section 10.1.2 or Section 10.1.3, as applicable), and (b) deliver to Landlord, with a redacted copy of t he final, fully executed and acknowledged (where applicable) Loan Documents, an affidavit by an authorized representative of Tenant certifying under penalty of perjury that (x) the Loan Documents attached to the affidavit, in their unredacted form, conform to the conditions set forth in Section 10.1.2 or 10.1.3, as applicable, and (y) the name of the borrower and the name of the lender that is a party to the Permitted Financing Encumbrance have not changed from the Loan Documents most recently delivered to Landlord. If the affidavit required under this Section 10.1.1 is determined by Landlord, in its reasonable discretion, to be incorrect during the Term, then an Event of Default may be triggered as and to the extent set forth in Section 12.1.5. Tenant shall reimburse Landlord pursuant to the Reimbursement Procedure for all of Landlord’s reasonable costs and expenses associated with its review of the Financing Transaction, including without limitation, any “ Cost Recovery Fee ” pursuant to BPC Policy No. 106. Said costs shall include, without limitation, Landlord’s reasonable legal fees (whether with in-house or outside counsel or both) and disbursements relating to or arising out of Landlord’s review of any Financing Transaction, regardless of whether such Fina ncing Transaction is consented to by Landlord or consummated, and Landlord’s transaction processing fees charged by Landlord for Landlord’s analysis and processing of Tenant’s request.

10.1.2 Conditions to a Permitted Lease Financing Encumbrance.

Notwithstanding anything to the contrary herein, Landlord shall administratively grant consent to any Financing Transaction for a Permitted Lease Financing Encumbrance if all of the following conditions and requirements are satisfied to the reasonable satisfaction of Landlord:
(a) The lender that is a party to the Permitted Lease Financing Encumbrance is a Financial Institution;
(b) The maximum principal amount of all indebtedness that is secured by such Permitted Lease Financing Encumbrance does not exceed the greater of: (1) seventy-five percent (75%) of the value of the aggregate of (i) Tenant’s fee interest in the Resort Hotel pursuant to this Lease, provided that if the Resort Hotel is not Completed, the value that the Resort Hotel would have when it is first stabilized as de termined by an Appraisal, (ii) prior to the Expansion Date, Tenant’s sub-subleasehold interest in the Convention Center Land pursuant to the Convention Center Leases and Tenant’s subleasehold interest or sub-subleasehold interest, as applicable, in the Convention Center Improvements pursuant to the Convention Center Leases, provided that if the Convention Center is not Completed, the value that the Convention Center would have when the Convention Center is first stabilized as determined by an Appraisal, (iii) Tenant’s fee interest in any other Improvements (including, for the avoidance of doubt, the Parking Improvements if the Parking Improvements secure any of such indebtedness) pursuant to this Lease or any Contemporaneous Agreement; provided that if such other Improvements are not Completed, the value that such Improvements would have when they are first Completed in accordance with the applicable documents, (iv) Tenant’s leasehold interest in the Premises created by this Lease (including, for the avoidanc e of doubt, the Expansion Premises from and after the Expansion Date), as determined by an Appraisal without accounting for any indebtedness that is secured by any existing Permitted Lease Financing Encumbrance, and (v) the indebtedness that is secured by any existing Permitted Lease Financing Encumbrance; provided that the items set forth in

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clauses (i) – (v) above are not duplicative; or (2) the amount of repayment of an existing Permitted Lease Financing Encumbrance which the proposed Financing Transaction is intended to replace (provided that such Permitted Lease Financing Encumbrance was initially consented to by Landlord);
(c) With respect to any Permitted Lease Financing Encumbrance that is proposed to occur on or after the commencement of the Fourth (4 th) Lease Period, if requested by Landlord, Tenant has considered amendments to non -economic provisions of this Lease in good faith for the purpose of conforming this Lease to changes to the Laws that are then in effect; provided that any such amendment shall neither create any new obligations for Tenant, increase any obligations of Tenant nor limit any rights or remedies of Tenant that are set forth in this Lease, in each case, except to a de minimis extent;
(d) The loan secured by t he Permitted Lease Financing Encumbrance has a payment term that provides for the full repayment of the loan prior to the Expiration Date; (e) The loan secured by the Permitted Lease Financing Encumbrance is not cross-collateralized with other real property(i es) (other than the Resort Hotel, the Convention Center, or the Parking Improvements);
(f) The loan secured by the Permitted Lease Financing Encumbrance is not cross-defaulted with other financings that are not solely related to and for the Development; (g) Tenant provides to Landlord a written acknowledgment that Tenant will not seek Rent relief as a result of not being able to meet its debt service or debt repayment obligations with respect to the loan secured by the Permitted Lease Financing Encumbrance; (h) Tenant provides to Landlord a recent Appraisal in accordance with Section 10.1.2(b) that shows compliance with the loan to value ratio set forth in Section 10.1.2(b); (i) Tenant provides to Landlord cash flow projections of an annual budget for the Project;
(j) If two ( 2) Audited Fiscal Years have elapsed since the Commencement Date, Tenant provides to Landlord audited financial statements of Tenant for not less than the most recent two (2) Audited Fiscal Years, and if fewer than two (2) Audited Fiscal Years have elapsed since the Commencement Date, Tenant provides to Landlord audited financial statements of Tenant for the Audited Fiscal Year, if any; (k) Tenant provides such other documents, information and materials relating to the Permitted Lease Financing Encumbrance as Landlord may reasonably request within the ten (10) day period described in Section 10.1.1;
(l) Tenant has provided a term sheet, commitment letter or comparable summary of the proposed terms of the Financing Transaction with respect to the Financing Transaction in compliance with the procedures set forth in Section 10.1.1 above; and (m) Tenant has provided redacted versions of the draft Loan Documents, redacted versions of the final Loan Documents and the affidavit to Landlord in compliance with the procedures set forth in Section 10.1.1 above.

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Any Permitted Lease Financing Encumbrance shall be subject to the conditions set forth in Section 10.1.1 regarding the delivery of final Loan Documents. “Appraisal” shall be defined as a third party appraisal in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP) as modified from time to time and for so long as it is a generally accepted standard for commercial real estate appraisals or if the USPAP is no longer in existence or is not a generally accepted standard for commercial real estate appraisals, a successor or comparable acceptable standard for commercial real estate appraisals.

10.1.3 Permitted Equity Financing Encumbrance.

Notwithstanding anything to the contrary herein, Landlord shall administr atively grant consent to an encumbrance of the equity interests in Tenant or in any Person or Persons that own(s) direct or indirect equity interests in Tenant (“ Mezzanine Interests”) if all of the following conditions and requirements are satisfied to the reasonable satisfaction of Landlord:
(a) The secured party is (1) at any time, MICC (California), LLC, a Delaware limited liability company (“MICC”), an Affiliate of MICC, or is the financing arm of the Acceptable Brand; (2) after the date that is the later o f: (x) the date when the Resort Hotel is Complete and (y) the date when the Parking Improvements are Complete, a Financial Institution; or (3) a Permitted Mezzanine Lender;
(b) Each of the borrower and any indebted obligor (including a party pledging Mezzanine Interests to support an obligation to reimburse payments made pursuant to a Permitted Mortgage Guaranty) is a Person(s) that, in the aggregate, directly or indirectly, own all of the equity interests of Tenant (collectively, the “Pledgor”); (c) After the loan secured by the Mezzanine Interests is consummated, there will only be one outstanding loan encumbering any of the equity interests in Tenant, whether directly or indirectly (other than any loan that is secured by the equity interests in any Person if the fair market value of such Person’s direct or indirect equity interests in Tenant constitute less than ten percent (10%) of the fair market value of such Person’s assets); (d) The loan secured by the Mezzanine Interests shall not be syndicated prior to the date that is the later of: (i) the date when the Resort Hotel is Complete and (ii) the date when the Parking Improvements are Complete;
(e) The loan secured by the Mezzanine Interests has a payment term that provides for the full repayment of such loan prior to the Expiration Date; (f) The loan secured by the Mezzanine Interests is not cross -collateralized with other equity interests;
(g) The loan secured by the Mezzanine Interests is not cross -defaulted with other equity financing that is not solely related to and for the Development; (h) Tenant provides to Landlord a written acknowledgment that Tenant will not seek Rent relief as a result of not being able to meet its debt service or debt repayment obligations with respect to the loan secured by the Mezzanine Interests;

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(i) Tenant provides to Landlord cash flow projections of an annual budget for the Project;
(j) If two (2) Audited Fiscal Years have elapsed since the Commencement Date, Tenant provides to Landlord audited financial statements of Tenant for not less than the most recent two (2) Audited Fiscal Years, and if fewer than two (2) Audited Fiscal Years have elapsed since the Commencement Date, Tenant provides to Landlord audited financial statements of Tenant for the Audited Fiscal Year, if any; (k) Tenant provides such other documents, information and materials relating to the Permitted Equity Financing Encumbrance as Landlord may reasonably request within the ten (10) day period described in Section 10.1.1 above;
(l) Tenant has provided a term sheet, commitment letter or comparabl e summary of the proposed terms of the Financing Transaction in compliance with the procedures set forth in Section 10.1.1 above;
(m) Tenant has provided redacted versions of the draft Loan Documents, redacted versions of the final Loan Documents and the affid avit to Landlord in compliance with the procedures set forth in Section 10.1.1 above.

Any Permitted Equity Financing Encumbrance shall be subject to the conditions set forth in Section 10.1.1 regarding the delivery of final fully executed and acknowledged (where applicable) Loan Documents.

For purposes of this Section 10.1.3 and for sake of clarity, the term “loan” does not include an obligation by a Pledgor to reimburse MICC (or an Affiliate thereof) for payments made pursuant to a Permitted Loan Guaranty. The term “Permitted Loan Guaranty” means a guaranty given by MICC or an Affiliate of MICC in respect of indebtedness secured by a Permitted Lease Financing Encumbrance.

The term “ Equity Collateral Enforcement Action ” means any action or proceeding or other exercise of a Permitted Mezzanine Lender’s rights and remedies in connection with its security interests in (or from) a Pledgor in order to realize upon equity collateral, including, without limitation, the accepta nce of an assignment in lieu of foreclosure for the equity collateral. With respect to any Permitted Equity Financing Encumbrance, (a) the granting of such Permitted Equity Financing Encumbrance by a Pledgor shall not be deemed a Change of Control of Tenan t, and (b) any enforcement action and/or the completion of any Equity Collateral Enforcement Action (including, without limitation, the acquisition of all (or substantially all) of the direct or indirect ownership of Tenant) or the exercise of voting contr ol over Tenant by a Permitted Mezzanine Lender with respect to such equity collateral security interest shall not be deemed a Change of Control of Tenant and shall not be prohibited by this Lease.

10.2 Definition of “Permitted Lease Financing Encumbrance”, “Pe rmitted Equity Financing Encumbrance”, “Permitted Financing Encumbrance”; “Permitted Mortgage Lender”, and “Permitted Lender”.

Each mortgage, deed of trust or similar security instrument securing Tenant’s payment and performance in connection with the Financing Transaction by a Permitted Mortgage Lender that is consented to by Landlord is a “ Permitted Lease Financing Encumbrance”. Any security agreement, pledge agreement or similar instrument or agreement that creates any security

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interest in the Mezzanine Interests securing Tenant’s or Pledgor’s payment and performance in connection with any Financing Transaction provided by a Permitted Mezzanine Lender (including MICC or its Affiliate) that is consented to by Landlord is a “ Permitted Equity Financing Encumbrance” (together with the Permitted Lease Financing Encumbrance, “ Permitted Financing Encumbrance”). The term “ Permitted Mortgage Lender” means any lender that is approved by Landlord pursuant to Sections 10.1.1 and 10.1.2 and that is a party to a Financ ing Transaction for a Permitted Lease Financing Encumbrance made in accordance with this Lease.

Landlord’s consent shall not be required for an assignment or transfer of indebtedness secured by a Permitted Financing Encumbrance, where the terms and conditi ons of the Permitted Financing Encumbrance are not changed or modified in a manner for which Tenant must obtain Landlord’s consent under Section 10.6.3. The term “ Permitted Lender” means each Permitted Mortgage Lender and each Permitted Mezzanine Lender, or any one thereof. For the avoidance of doubt, a holder of indebtedness that is secured by any Financing Transaction, but that is not a Permitted Mortgage Lender because it is not a party to a Financing Transaction (i.e., the holder of some or all of the indebtedness that is secured by a Permitted Lease Financing Encumbrance in favor of an agent that holds collateral as security for such indebtedness) need not be approved by Landlord, and may assign or transfer such indebtedness without Landlord’s consent o r approval, but shall not be a Prohibited Person.

10.3 Rights of Permitted Lender.

10.3.1 Voluntary Lease Surrender.

So long as a Permitted Financing Encumbrance remains outstanding, Landlord will not accept the voluntary surrender, cancellation, or termination of t his Lease by Tenant before the Term expires, unless each Permitted Lender with an outstanding Permitted Financing Encumbrance provides prior written consent thereto. Nothing in this Section 10.3.1 shall impair Landlord’s right to terminate this Lease as a result of an Event of Default or by reason of Landlord’s other rights to terminate this Lease as set forth in this Lease, subject to the Permitted Lender’s notice and cure rights pursuant to Section 10.3.2 below, if applicable, and the New Lease rights pursuant to Section 10.3.2(d) below, if applicable.

10.3.2 Right to Cure/New Lease.
(a) Notice of Default . So long as one or more loans secured by a Permitted Financing Encumbrance remain outstanding, Landlord hereby agrees to give each Permitted Lender with a Permitted Financing Encumbrance that has provided Landlord with its address and has requested a copy of the same, a copy of any written notice that Landlord gi ves to Tenant pursuant to Section 12.1, at the same time as Landlord sends such notice to Tenant. Such notice shall be deemed delivered to such Permitted Lender(s) in accordance with Section 27, whereupon each Senior Permitted Lender (as defined below) sh all have the right, but not the obligation, to cure the default or Event of Default set forth in such notice. This Lease shall not terminate as a result of an Event of Default if a Senior Permitted Lender cures such Event of Default within:
(i) thirty (30) days after the applicable Permitted Lender has received such notice of an Event of Default in the payment of Rent or Construction Late Charges; or (ii) subject to the terms of Section 10.3.2(b), the later of: (A) ninety (90) days after the date on which such Permitted Lender has received such notice of any other Event of Default under this Lease (the “Cure Period Trigger Notice”) or (B) in the case of Senior Permitted Mortgage Lender only, if a Permitted Equity Financing Encumbrance that has not been released exists when such Senior Permitted Mortgage Lender receives the Cure Period Trigger Notice, sixty (60) days after the date on which Senior Permitted Mortgage Lender has received the Permitted Mezzanine Lender Failure Notice (defined

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below). Provided s uch cure is completed within the applicable time frames set forth in this Section 10.3.2, Landlord shall accept performance of the terms of this Lease by any Senior Permitted Lender, or any agent, nominee or designee of any Senior Permitted Lender that a Permitted Lender notifies Landlord in writing is performing the cure rights on behalf of and for the Permitted Lender under this Section 10.3.2(a) (each, a “Designated Nominee”) as if such cure was performed by Tenant, regardless of whether there has been an Event of Default. If there is more than one Permitted Mortgage Lender, then Landlord shall only be required to recognize the cure rights of the Permitted Mortgage Lender (whether such cure rights are exercised by such Permitted Mortgage Lender or its Designated Nominee) that has been most recently designated as authorized to exercise cure rights by the Permitted Mortgage Lender with the earliest recorded Permitted Lease Financing Encumbrance that has not been reconveyed (the “Senior Permitted Mortgage Lender”); and if there is more than one Permitted Mezzanine Lender, then Landlord shall only be required to recognize the cure rights of the Permitted Mezzanine Lender (whether such cure rights are exercised by such Permitted Mezzanine Lender or its Designated Nominee) that has been most recently designated as authorized to exercise cure rights by the Permitted Mezzanine Lender with the earliest filed Permitted Equity Financing Encumbrance that has not been released (the “Senior Permitted Mezzanine Lender”; and, together with Senior Permitted Mortgage Lender, a “Senior Permitted Lender”). Landlord shall accept any such notice from the Senior Permitted Lender without the necessity of further inquiry, and without liability to Landlord, Tenant or any Permitted L ender, that such Permitted Lender has the right to exercise any cure rights under this Lease and, in the case of the Senior Permitted Mortgage Lender, enter into a New Lease as set forth in Article 10. Such a notice from a Senior Permitted Mortgage Lender or the Senior Permitted Mezzanine Lender shall be valid for all purposes until such time as (A) such Senior Permitted Mortgage Lender or the Senior Permitted Mezzanine Lender, as the case may be informs Landlord in writing that its notice is no longer vali d, (B) in the case of the Senior Permitted Mortgage Lender, Landlord receives a new written notice from the succeeding Permitted Mortgage Lender with the earliest recorded Permitted Financing Encumbrance that is outstanding stating that the prior Permitted Mortgage Lender with the earliest recorded Permitted Lease Financing Encumbrance no longer has an outstanding Permitted Lease Financing Encumbrance as evidenced by a copy of the recorded reconveyance of the Deed of the Trust for such prior Permitted Mortg age Lender; or (C) in the case of the Senior Permitted Mezzanine Lender, Landlord receives a new written notice from the succeeding Permitted Mezzanine Lender with the earliest filed Permitted Equity Financing Encumbrance that is outstanding stating that the prior Permitted Mezzanine Lender with the earliest recorded Permitted Equity Financing Encumbrance no longer has an outstanding Permitted Equity Financing Encumbrance as evidenced by a copy of the filed termination of the UCC -1 Financing Statement for s uch prior Permitted Mezzanine Lender.
(b) Possession Required. If the default or Event of Default specified in the applicable Cure Period Trigger Notice cannot be cured until the applicable Senior Permitted Lender has obtained possession of the Premises (or, in the case of a Senior Permitted Mezzanine Lender, contro l of Tenant) through foreclosure or otherwise, and if a Permitted Lender has delivered to Landlord, within ninety (90) days following its receipt of the Cure Period Trigger Notice (or, in the case of a Senior Permitted Mortgage Lender, sixty (60) days afte r the applicable Permitted Mezzanine Lender Failure Notice (defined below) if a Permitted Equity Financing Encumbrance existed at the time of the applicable Event of Default), such Senior Permitted Lender’s written intent (in a form approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed) to use diligent efforts to cure (or to cause Tenant to cure) such Event of Default with due diligence upon obtaining possession of the Premises (or, in the case of a Senior Permitted Mezzanine Lender, control of Tenant) through foreclosure or otherwise, then

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such Senior Permitted Lender shall have such additional time (but in no event to exceed one hundred and fifty (150) days from the date such Senior Permitted Lender obtains possess ion of the Premises or control of Tenant, as applicable as is reasonably necessary to cure (or to cause Tenant to cure) such default or Event of Default (unless such default or Event of Default arises from Tenant’s failure to timely Complete, in which case the provisions of Section 10.6.2 shall govern the cure of such default or Event of Default), but only if such Senior Permitted Lender:
(i) unless judicially stayed, commences and prosecutes its judicial or other foreclosure with due diligence, which forec losure, (I) in the case of a Senior Permitted Mezzanine Lender, shall be completed within ninety (90) days following receipt of the applicable Cure Period Trigger Notice, and (II) in the case of a Senior Permitted Mortgage Lender, shall be completed within the one hundred eighty (180) days following receipt of a Permitted Mezzanine Lender Failure Notice (provided, that if there is no Permitted Equity Financing Encumbrance at the time of the applicable Event of Default, then such 180 -day period shall commenc e upon Senior Permitted Mortgage Lender’s receipt of the applicable Cure Period Trigger Notice); and (ii) such Senior Permitted Lender cures, during the period set forth in Section 10.3.2(a), all monetary Events of Default and, during the period of said stay and/or foreclosure, continues to pay and perform during said period of stay and/or foreclosure all other monetary obligations of Tenant in a timely manner, including, without limitation, payment of all Rent, taxes, assessments, utility charges, insurance premiums, Construction Late Charges (if applicable) and all other amounts required to be paid by Tenant under this Lease (without duplication of amounts, if any, paid by Tenant or Completion Guarantor on account of such monetary Events of Default or other monetary obligations). Notwithstanding anything herein to the contrary, (W) Landlord shall promptly deliver to Senior Permitted Mortgage Lender written notice of, based on information that is available to the Landlord at such time, without the duty of investigation, and without creating a fiduciary obligation to, or subjecting itself to any liability from, any Permitted Mortgage Lender or any Permitted Mezzanine Lender (I) any failure of the Senior Permitted Mezzanine Lender to (A) timely provide notice of its intent to use diligent efforts to cure (or to cause Tenant to cure) the applicable Event of Default as required by this Section, (B) cure the applicable Event of Default as required by this Section, or (C) pursue or complete the foreclosure of its P ermitted Equity Financing Encumbrance as required by this Section or cure any monetary Event of Default during the pendency thereof, or (II) any election by the Permitted Mezzanine Lender (or by its affiliates or designees) not to Complete in accordance with Section 10.6.2 (such notice of any of the foregoing described in (I) or (II), with respect to a given Event of Default, a “Permitted Mezzanine Lender Failure Notice”); (X) nothing herein shall prohibit Senior Permitted Mezzanine Lender from completing the foreclosure of its Permitted Equity Financing Encumbrance following the 90-day period granted above (so long as such proceedings were commenced and diligently pursued during such period) and/or subsequently curing the applicable Event(s) of Default, so long as such cure is effectuated during the 150 -day period following the date when the Senior Permitted Mezzanine Lender obtains control of Tenant and, in all events, prior to the consummation of any foreclosure by the Senior Permitted Mortgage Lender within the 180-day period referred to above (it being understood that Landlord will accept any cure effectuated during that period); (Y) nothing herein shall require a Senior Permitted Lender who has taken possession of the Premises or, in the case of an Equi ty Collateral Enforcement Action, control of Tenant, to cure any non -monetary default that, by its nature, is not reasonably capable of being cured by the Senior Permitted Lender, or in the case of an Equity Collateral Enforcement Action, Tenant, or is a B ankruptcy Event (an “ Incurable Default”); and (Z) all of the time periods set forth in this Section 10.3.2 to cure any non-monetary Event of Default shall be extended one day for each day the applicable Senior Permitted Lender is prevented from exercising its rights or remedies hereunder or curing any applicable Event of Default by reason of any judicial stay or Force Majeure Event. All such Incurable Defaults shall be deemed to be permanently waived following the Senior Permitted Lender’s taking possession

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of the Premises or, in the case of an Equity Collateral Enforcement Action, control of Tenant. All monetary obligations and all non -monetary obligations that are not Incurable Defaults shall still be performed as required under this Lease, subject, in the case of non-monetary obligations, to the extended cure periods set forth in this Section 10.3.2. In no event shall nuisance or waste caused by Tenant’s failure to use the Premises and the Improvements in accordance with the Permitted Use or failure to con struct, operate and maintain the Premises and Improvements in accordance with the requirements of this Lease be an Incurable Default. Each Permitted Lender acknowledges and agrees that it is the sole responsibility of each Permitted Lender to remain apprised of the condition of the Tenant and the Premises at all times and Landlord shall have no obligation to any Permitted Lender to provide any notice to Permitted Lender regarding the condition of the Tenant or the Premises except as expressly set forth in this Lease. Each Permitted Lender agrees to coordinate in good faith with each other Permitted Lender when executing its respective rights and obligations under this Section 10.3.2. (c) No Termination by Landlord . Landlord shall not terminate this Lease by reason of an Event of Default if Landlord has failed to comply with its obligations under Section 10.3 or if any Permitted Lender (i) is curing or has cured all Events of Defaults under this Lease in the payment of Rent within the time frames provided in Section 10.3.2(a)(i) above, and (ii) has cured all other Events of Default within the time frames provided in Sections 10.3.2(a)(ii) and 10.3.2(b), other than any Incurable Default.
(d) New Lease. In the event of any termination of this Lease of which Landlord has received written notice by reason of a surrender, cancellation, or termination by Tenant, or as a result of the rejection or disaffirmance of this Lease pursuant to bankruptcy law or other Law affecting creditors rights, or as a result of any other termination of this Lease for any reason, then Landlord shall deliver notice to each Permitted Lender that this Lease has been terminated or rejected, as applicable. The notice shall include a statement of all Rent that would be due under this Lease but for the termination hereof or the rejection of this Lease, as applicable, and all other Events of Default, or breaches under this Lease, that are then known to Landlord, without the duty of inquiry; provided that in no event shall such notice prevent or estop La ndlord from asserting other breaches under this Lease or Events of Default that become known to Landlord after the time the notice is sent to the Permitted Lender. The Permitted Mortgage Lender or any Permitted Mezzanine Lender or SPE Lender Affiliate nomi nated by the first priority Permitted Mortgage Lender (a “ New Tenant”) shall then have the option, to be exercised within seventy - five (75) days following receipt of such notice of termination or rejection, as applicable, to enter into a new lease (“ New Lease”) with Landlord (the period of time during which any Permitted Lender may require a New Lease, the “New Lease Period”), in each case, on the following terms and conditions:
(i) The New Lease shall commence as of the date of the termination or rejection of this Lease, as applicable, and shall be for the remainder of the Term, and at the Rent, terms, covenants, and conditions as this Lease.
(ii) Upon execution of the New Lease, the New Tenant shall pay any and all sums that would at the time of execution thereof be due under this Lease, but for termination, and shall pay all expenses, costs, attorneys’ fees, court costs, and disbursements incurred by Landlord in connection with any default and termination of this Lease, recovery of possession of the Premises, and the execution, preparation and delivery of the New Lease. (iii) Upon execution of the New Lease, the New Tenant shall cure all other defaults under this Lease, which have not yet been cured (other than any Incurable Default),

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with due diligence in a timely manne r in accordance with the cure periods under the Lease assuming such cure periods commence with the execution of the New Lease and without additional notice (provided that Landlord has already provided such notice of such default to New Tenant).
(iv) Nothing her ein shall be construed to require Landlord to deliver possession of the Premises to the New Tenant. Upon execution and delivery of the New Lease, the New Tenant may take any and all appropriate actions as may be necessary to remove parties in possession fr om the Premises. Landlord shall not grant any real property interest in the Premises during the seventy-five (75) day period set forth in Section 10.3.2(d). (v) The sublessee under each Sublease shall be deemed to have agreed that each sublessee whose Sublease was in effect immediately prior to the execution of such New Lease shall, on the date of its execution or the commencement of its term, whichever is later, pursuant to its Sublease, attorn to the New Tenant and the New Tenant shall accept such attornment of each Sublease which was entered into in compliance with the terms hereof; provided that Landlord shall have no obligation to require the same of sublessee and shall have no liability to New Tenant resulting from the failure of any sublessee to comply wi th this Section 10.3.2(d)(v).
(vi) The New Lease shall have the same priority as this Lease as of the date hereof.
(vii) Concurrently with entering into a New Lease, New Tenant shall also enter into a “New Sublease” in accordance with the Convention Center Sublease a nd a “ New Agreement” in accordance with the applicable mortgagee protection agreement entered into for the benefit of such Permitted Lenders in connection with the Project Implementation Agreement.

In addition to the foregoing, in the event that a New Te nant enters into a New Sublease and a “New Agreement” in accordance with the Convention Center Sublease and such mortgagee protection agreement described in clause (vii) above, respectively, such New Tenant shall be entitled to a New Lease in accordance with this Section 10.3.2(d) and this Lease shall terminate upon the effectiveness of such New Lease.

During such seventy-five (75) day period and thereafter if the Permitted Lender designated to exercise the cure rights under Section 10.3.2(a) timely accepts such offer of a New Lease until the termination or expiration of such New Lease, ownership of the Improvements shall not vest in Landlord. Upon the effectiveness of such New Lease, any Incurable Defaults under this Lease shall be deemed to be permanently waived.

Should neither the Permitted Lender designated to exercise the cure rights under Section

10.3.2(a) nor its Designated Nominee accept said offer for such New Lease in writing within said seventy-five (75) day period or, having so accepted said offer , should it fail promptly to execute the New Lease or satisfy the requirements of clauses (ii) and (iii) above in a timely manner, then the termination of this Lease shall be effective as to all of the Permitted Lenders and the Permitted Lenders shall have no further rights hereunder.

Furthermore, if the first priority Permitted Mortgage Lender nominates a Permitted Mezzanine Lender or an SPE Lender Affiliate that is affiliated with a Permitted Mezzanine Lender to receive the New Lease, then the New Tenant may, concurrently or promptly after receipt of the New Lease, enter into a new Financing Transaction with the Permitted Mortgage Lender(s) and

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any permitted Mezzanine Lender on substantially the same terms as those of the Financing Transaction(s) in place immediately prior to termination of this Lease (but with modifications, as necessary, to reflect the New Lease and the new identity of the tenant) and the Permitted Lease Financing Encumbrance of the first priority Permitted Mortgage Lender shall continue as a lien on the leasehold estate created pursuant to such New Lease with the same priority of such Permitted Lease Financing Encumbrance on the leasehold created by this Lease. The security interest on the New Lease granted in connection with such Financing Transaction will be a Permitted Lease Financing Encumbrance, and any security interest granted by a Pledgor in connection with any such Financing Transaction will be a Permitted Equity Financing Encumbrance. It is the intent of this provision to permit the Permitted Lender(s) that do not receive a New Lease (but who are in effect senior to the Permitted Lender receiving (or whose SPE Lender Affiliate receives) the New Lease) to be in the same position in which they would have been had no Lease terminati on occurred. The New Tenant will provide to Landlord notice of any such Financing Transaction, together with copies of documents evidencing such Financing Transaction and redlines against the previously existing documents evidencing the Financing Transacti on that is, in effect, being continued.

The provisions of this Section 10.3.2(d) shall and are expressly intended to survive a termination or rejection of this Lease in the manner set forth in this Section 10.3.2(d) to permit the New Tenant the right to ex ercise the option to enter into New Lease in accordance with this Section 10.3.2(d).

10.3.3 Loan Default.

If a Permitted Financing Encumbrance or any loan secured by a Permitted Financing Encumbrance is in default at any time, then the Permitted Lender shall, as provided by Law, have the right, without Landlord’s prior consent, to perform the following, provided that the Permitted Lender exercises such rights as to the whole of Permitted Lender’s interest in the Lease, the Convention Center Sublease, the Project Implementation Agreement and, in the case of a Permitted Mezzanine Lender, Tenant:
(a) In the case of a Permitted Mortgage Lender, accept an Assignment of this Lease in lieu of foreclosure or, in the case of a Permitted Mezzanine Lender, accept an assignment of its equity collateral resulting from an Equity Collateral Enforcement Action; or (b) In the case of a Permitted Mortgage Lender, request that a court of competent jurisdiction appoint a receiver as to any or all of the Premises or Improvements or cause a foreclosure sale to be held pursuant to either judicial proceedings, power of sale and/or foreclosure proceedings as provided in its Permitted Lease Financing Encumbrance; (c) In the case of a Permitted Mezzanine Lender, exercise such remedies as may be permitted by its Permitted Equity Financing Encumbrance or applicable Law; (d) provided, however, that no Assignment or Transfer to the successful bidder (a “Foreclosure Purchaser”) that is neither a Permitted Lender, nor an Affiliate of a Permitted Lender that is a special purpose entity set up and operated by a Permitted Lender specifically to take and hold (directly or indirectly) title to the Premises or the Mezzanine Interests (“SPE Lender Affiliate”) shall be effective without Landlord’s prior written consent in a ccordance with Section 10.4 below.

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10.3.4 Assume Lease Obligations.

Notwithstanding anything in this Lease to the contrary, (a) in the case of the acquisition of the leasehold interest created by this Lease in connection with a Permitted Lease Financing Encumbrance and as an express condition thereto, the Foreclosure Purch aser shall, before or concurrently with such acquisition, agree in writing to be bound by all provisions of, and assume each and every obligation of Tenant, under this Lease, the Convention Center Sublease and the Project Implementation Agreement and (b) in the case of an Equity Collateral Enforcement Action and as an express condition thereto, the Foreclosure Purchaser shall, before or concurrently with such Equity Collateral Enforcement Action, cause Tenant to reaffirm, in writing, promptly after the Equity Collateral Enforcement Action, its obligations under this Lease, the Convention Center Sublease and the Project Implementation Agreement; provided, however, that under no circumstance shall such Permitted Lender or such Foreclosure Purchaser have any li ability hereunder unless and until it becomes a tenant under this Lease. Notwithstanding the foregoing, nothing in this Section 10.3.4 shall limit the liability of a Permitted Lender for damage or loss caused by Permitted Lender’s attempt to cure a non -monetary Event of Default. A Permitted Lender that has: (i) acquired the leasehold interest and assumed the Tenant’s obligations, or (ii) entered into a New Lease pursuant to Section 10.3.2(d), shall be released from all obligations under this Lease first ari sing after the effective date of the assignment and assumption of the leasehold interest to an assignee consented to by Landlord, in accordance with Section 10.4.

10.4 Landlord’s Consent to Assignment or Transfer or Bidders.

10.4.1 Landlord’s Consent to Assignment
Landlord’s consent shall not be required for a Transfer to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate. Landlord’s prior written consent shall be required for the following: (1) an Assignment to a Foreclosure Purchaser that is neither a Permitted Lender, nor an SPE Lender Affiliate, or (2) an Assignment or Sublease of all or Substantially All of the Premises and the Improvements by a Permitted Lender or an SPE Lender Affiliate should such entity become the tenant by reason of: (i) being the successful bidder upon said foreclosure, (ii) an assignment in lieu of foreclosure, or (iii) a New Lease entered into pursuant to Section 10.3.2(d) above. Landlord shall provide its response (including, if applicable, a reasonably detailed explanation of the basis for Landlord’s withholding consent) to Tenant’s request for consent to the Assignment within forty -five (45) days following Landlord’s receipt of Tenant’s request and all information reasonably requested by Landlord from Tenant. Within thirty (30) days after Tenant or a Permi tted Lender submits a request for consent, Landlord shall notify Tenant if Landlord reasonably requires any additional information in connection with the proposed Assignment. Any Permitted Lender may seek consent for more than one prospective acquirer of T enant’s interest in this Lease in connection with a foreclosure sale to be held pursuant to either judicial proceedings, power of sale and/or a sale of Mezzanine Interests as provided in its Permitted Financing Encumbrance or as permitted by applicable Law. Landlord will grant such consent if in Landlord’s reasonable determination the following items have been satisfied:
(a) The assignee is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct, or association with criminal elem ents – “reputable” shall not mean “prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference) and has no pattern of, or reputation for, either discriminatory employment practices which violate any Laws or non-compliance with applicable Environmental Laws;

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(b) The assignee shall satisfy the subsections 11.5.3(a) ( Sufficient Experience), (b) (Consistent Use), (d) (Reputation), and (f) (Hotel Brand) of this Lease. (c) The assignee agrees in writing to assume each and every obligation of the Tenant under this Lease or the New Lease, as the case may be, pursuant to a form of assignment and assumption agreement substantially in the form of Exhibit “L” attached hereto with any deviations from such form bein g approved by the Landlord in Landlord’s reasonable discretion; and
(d) The assignee agrees in writing to cure all uncured defaults with due diligence in a timely manner arising under this Lease or the New Lease (including any uncured defaults under this Lease even if replaced by the New Lease), other than any Incurable Default.

No such assignee shall subsequently: (i) assign this Lease, or sublease any or all of the Premises or the Improvements without Landlord’s prior written consent, in accordance with Article 11 herein; or (ii) encumber this Lease, leasehold interest, equity interests of Tenant, the Premises or the Improvements thereon without Landlord’s prior written consent, in accordance with this Article 10.

10.4.2 Basis for Decision
The burden of producing evidence and the burden of proof showing Landlord that a prospective assignee, Foreclosure Purchaser or Subtenant, as applicable, meets each and all of the aforesaid qualifications and standards shall be on said Permitted Lender or Foreclosure Purchaser, as applicable. Landlord’s decision shall be based upon Landlord’s high duty of care in administering a valuable public resource, which it holds in trust for the people of the State of California. In the absence of fraud or arbitrary or unreasonable action in applying or failing to apply said standards, Landlord’s decision shall be final.

10.4.3 If Landlord Rejects Lease Transferee
(a) Judicial Reference. In the event Landlord rejects: (i) the Foreclosure Purchaser, or (ii) a proposed assignee of the Permitted Lender (said Foreclosure Purchaser or proposed assignee of the Permitted Lender being sometimes referred to hereinafter as the “Rejected Transferee,” and said Foreclosure Purchaser, or proposed assignee of the Permitted Lender being sometime s referred to hereinafter as the “ Applicant”), the sole remedy of the Applicant and Rejected Transferee shall be to seek relief in the nature of specific performance through consensual general reference as provided in Part 2, Title 8, Chapter 6 (Section 638, et seq.) of the California Code of Civil Procedure, or any successor California statute governing resolution of disputes by a court-appointed referee (“Judicial Reference”) and in no event shall Landlord be liable to the Rejected Transferee or Applicant , or any Person whatsoever, for monetary damages. Notwithstanding the foregoing, the Rejected Transferee shall be entitled to recover such monetary damages, if any, it may sustain as a result of Landlord’s failure or refusal to comply with a final, non-appealable, Superior Court order confirming an award in favor of the Rejected Transferee in said Judicial Reference.
(b) Issue. The issue to be submitted to Judicial Reference shall be whether the BPC’s record contains substantial evidence to support the decision to reject the Applicant in accordance with the standards set forth in Sections 10.4.1 and 10.4.2 above. The Rejected Transferee may submit said issue to Judicial Reference.

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(c) Judicial Reference Procedure . Submission of a dispute to a Judicial Reference proceeding shall be commenced by a written notice thereof made by one Party to the other Party, or by mutual written election of both Parties (in either case, a “ Reference Notice”).

The Judicial Reference proceeding shall be conducted in San Diego County, and the Parties waive their respective rights to initiate any legal proceedings against each other in any court or jurisdiction other than the Superior Court of the State in and for the County of San Diego unless such court determines that it lacks jurisdiction, in which case, the Judicial Reference proceedings shall be conducted in the Federal District Court for the Southern District of California if such court has jurisdiction, and if such court has no jurisdiction, then any court of competent jurisdiction (the “Court”). The referee shall be a retired C alifornia federal or state judge with experience in commercial real estate leasing and related disputes selected by mutual agreement of the Parties from a reputable source, and if the Parties cannot so agree within twenty (20) days after the Reference Notice is given, the referee shall be selected by the presiding judge of the Court (or his or her representatives). The referee shall not have any power to alter, amend, modify or change any of the terms of this Lease nor grant any remedy which is either prohi bited by the terms of this Lease, or not available in a court of law or equity. The Parties shall bear their respective costs, fees, and expenses incurred in connection with said Judicial Reference.

10.4.4 Notice of Foreclosure Sale.

Permitted Lender shall include a statement in any notice of foreclosure sale covering the requirements under Section 10 for Landlord’s consent to an Assignment upon said foreclosure.

10.4.5 Cancellation; Surrender; Modification; Amendment.

There shall be no voluntary cancellation, surrender (which term shall be deemed to include any determination by Tenant to treat this Lease as terminated under 11 U.S.C. § 365(h) if Landlord rejects this Lease in a bankruptcy or insolvency proceeding affecting Landlord) or modification of this Lease which is binding on any Permitted Lender (other than correction of scrivener’s errors), without the prior written consent of each Permitted Lender (but nothing herein shall prevent Landlord or Tenant from terminating this Lease pursuant to the express terms hereo f, subject, however, to the rights of the Permitted Lender designated to exercise the cure rights to obtain a New Lease in accordance with Section 10.3.2(d)). Tenant hereby advises Landlord that Tenant is assigning any right which it may have to object to any sale of Landlord’s interests in the Premises and the Improvements free and clear of this Lease under the terms of 11 U.S.C. § 363(f)(2) to the Permitted Lenders to act on Tenant’s behalf and any such objection by Permitted Lenders shall be as effective as if made by Tenant and, for the benefit of Landlord, Tenant hereby waives any and all right to object to any sale of Landlord’s interests in the Premises so assigned to the Permitted Lenders. So long as a Permitted Financing Encumbrance remains outstand ing, Landlord shall not consent to any voluntary cancellation, surrender, amendment or modification of this Lease that is not consented to in writing by each Permitted Lender with an outstanding Permitted Lease Financing Encumbrance of which Landlord has received notice. Nothing in this Section 10.4.5 shall be construed as limiting Landlord’s rights and remedies hereunder, at law or in equity, in the case of an Event of a Default by Tenant hereunder.

10.4.6 Landlord’s Consent to Potential Bidders.

Landlord’s consent shall not be required for a Transfer to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate. In the event a Permitted Mezzanine Lender desires to complete an Equity Collateral Enforcement Action that is a foreclosure on the Mezzanine Interests, the Permitted Mezzanine Lender may submit to the Landlord for the Landlords’ review

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and reasonable approval the names of potential bidders who, if successful, would acquire ownership of the Mezzanine Interests. Landlord shall provide its response (including, if applicable, a reasonably detailed explanation of the basis for Landlord’s withholding consent) to Permitted Mezzanine Lender’s request for pre-approval within forty (40) days following Landlord’s receipt of Permitted Mezzanine Lender’s request and all information reasonably requested by Landlord from Permitted Mezzanine Lender regarding the potential bidders. Within thirty (30) days after Permitted Mezzanine Lender submits a request for consent, Landlord shall notify the Permitted Mezzanine Lender if Landlord reasonably requires any additional information in connection with the proposed acquisition of the Mezzanine Interests. Permitted Mezzanine Lender may seek consent for more than one prospective acquirer of the Mezzanine Interes ts in connection with a foreclosure sale of Mezzanine Interests as provided in its Permitted Financing Encumbrance or as permitted by applicable Law. Landlord will grant such consent if in Landlord’s reasonable determination the following items have been satisfied:
(a) The assignee is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct, or association with criminal elements – “reputable” shall not mean “prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference) and has no pattern of, or reputation for, either discriminatory employment practices which violate any Laws or non -compliance with applicable Environmental Laws;
(b) The assignee shall satisfy the subsection s 11.5.3(a) ( Sufficient Experience), (b) (Consistent Use), (d) (Reputation), and (f) (Hotel Brand) of this Lease; and (c) The assignee agrees in writing to cure all uncured defaults with due diligence in a timely manner arising under this Lease or the New Leas e (including any uncured defaults under this Lease even if replaced by the New Lease), other than any Incurable Default.

10.5 Subordination, Non-Disturbance and Attornment Agreement.

Prior to or on the Commencement Date, (a) Landlord and each Permitted Mortgage Lender shall enter into a subordination, non -disturbance and attornment agreement substantially in the form of Exhibit “P-1” attached hereto and (b) Landlord and each Permitted Mezzanine Lender shall enter into a subordination, non -disturbance and attornment agreement substantially in the form of Exhibit “P-2” attached hereto.

10.6 Miscellaneous.

10.6.1 Estoppel Statements.

Upon not less than fifteen (15) Business Days’ notice by Tenant, Landlord shall execute, acknowledge and deliver to Tenant, or if requested by Tenant in writing, such Permitted Lender or such prospective qualified Permitted Lender, as applicable, an estoppel statement in substantially the form of Exhibit “H” attached hereto without any material changes.

10.6.2 Completion of Tenant’s Initial Project Improvements.

If any Foreclosure Purchaser acquires the leasehold interest in the Property (or the equity interests in Tenant) before the date when the Tenant’s Initial Project Improvements are Completed, such Foreclosure Purchaser shall make an election wit hin sixty (60) days of such acquisition (the “ Election Period ”) either to (1) Complete the Tenant’s Initial Project

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Improvements and the Convention Center Improvements in accordance with this Lease, the Sublease and the Project Implementation Agreement and assume (or, in the case of a Foreclosure Purchaser acquiring the equity interests in Tenant through a Permitted Equity Financing Encumbrance, cause Tenant to reaffirm) the obligations of Tenant under this Lease, the Sublease and the Project Implementation Agreement; or (2) not Complete the Tenant’s Initial Project Improvements and the Convention Center Improvements in accordance with this Lease, the Sublease and the Project Implementation Agreement, in which case under this subsection (2) if: (A) such Foreclosure Purchaser acquired its interest pursuant to a Permitted Equity Financing Encumbrance, then all of such Foreclosure Purchaser’s cure periods under this Lease shall terminate and the Senior Permitted Mortgage Lender may exercise any rights to cure it may have under Section 10.3.2, or (B) such Foreclosure Purchaser acquired its interest pursuant to a Permitted Lease Financing Encumbrance, then such Foreclosure Purchaser shall satisfy the Termination Obligations (as defined below). The Foreclosure Purchaser’s failure to timely provide notice to Landlord of the Foreclosure Purchaser’s election shall be deemed an election by the Foreclosure Purchaser to Complete the Tenant’s Initial Project Improvements and the Convention Center Improvements in accordance with this Lease, the Sublease and the Project Implementation Agreement and assume (or reaffirm, as the case may be) the obligations of Tenant under this Lease, the Sublease and the Project Implementation Agreement.

10.6.2.1 Election to Complete the Tenant’s Initial Project Improvements If the Foreclosure Purchaser elects to Complete the Tenant’s Initial Project Improvements and the Convention Center Improvements pursuant to the preceding paragraph, then such Foreclosure Purchaser shall include with its election notice to Landlord a proposed timetable for Completion of the Tenant’s Initial Project Improvements and the Convention Center Improvements (a “Completion Timetable”). If such Foreclosure Purchaser is deemed to have elected to Complete the Tenant’ s Initial Project Improvements and the Convention Center Improvements pursuant to the preceding paragraph, then such Foreclosure Purchaser shall submit its proposed Completion Timetable to Landlord within five (5) Business Days after the expiration of the Election Period. If such Foreclosure Purchaser fails to timely submit a Completion Timetable in accordance with the foregoing provisions of this Section 10.6.2.1, then such Foreclosure Purchaser shall be deemed to have agreed to cause the Completion of the Tenant’s Initial Project Improvements and the Convention Center Improvements by the Original Outside Construction Completion Date (as the same may be extended pursuant to Section 6.1) in accordance with this Lease, the Sublease and the Project Implementation Agreement. If Landlord does not approve (such approval not to be unreasonably withheld, conditioned or delayed and to be based on the Reasonableness Factors (defined below)) such Foreclosure Purchaser’s proposed Completion Timetable, then Landlord and such Foreclosure Purchaser shall meet within five (5) Business Days following notice from Landlord of such disapproval to negotiate in good faith a Completion Timetable. Landlord and such Foreclosure Purchaser shall negotiate in good faith to reach agreement on a Completion Timetable within thirty (30) days after the first meeting between the Landlord and such Foreclosure Purchaser (the “ Completion Table Deadline ”), which Completion Timetable will take into account (1) the status of the construction of the Resort Hotel, the Parking Improvements and the Convention Center at the time of the Foreclosure Purchaser’s acquisition of the leasehold interest, and (2) the amount of time that it would take a sophisticated developer with experience constructing hotels and parking structures similar to Tenant’s Initial Project Improvements and the Convention Center, employing diligent efforts, to Complete the Tenant’s Initial Project Improvements and Convention Center under the facts and circumstances existing and known or reasonably anticipated at such time (collectively, the “Reasonableness Factors”). For the avoidance of doubt, the new date of Completion of the

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Tenant’s Initial Project Improvements and the Convention Center (the “New Outside Completion Date”) shall not exceed forty-eight (48) months from the date that such Foreclosure Purchaser acquires the leasehold interest under this Lease and Tenant’s interests under the Convention Center Sublease and Project Implementation Agreement (or the equity interests in Tenant, as the case may be). Once Landlord and the Foreclosure Purchaser reach agreement on a new Completion Timetable, but in any event not later than the Completion Table Deadline (even if such agreement on a new Completion Timetable has not yet been reache d), such Foreclosure Purchaser shall commence and thereafter diligently pursue Completion of the Tenant’s Initial Project Improvements and the Convention Center in accordance with such Foreclosure Purchaser’s proposed Completion Timetable, and notwithstand ing anything to the contrary set forth in this Lease, the Foreclosure Purchaser shall pay Construction Late Charges in accordance with the formula set forth in Section 5.1.2 of the Project Implementation Agreement commencing on the Original Outside Construction Completion Date.

If Landlord and such Foreclosure Purchaser do not agree on a new Completion Timetable prior to the Completion Table Deadline (as the same may be extended pursuant to the foregoing paragraph), either Landlord or such Foreclosure Pur chaser may submit the matter to Judicial Reference pursuant to Section 10.4.3(c). The issue to be submitted to Judicial Reference shall be whether the Completion Timetable most recently proposed by Landlord to Foreclosure Purchaser prior to the Completio n Table Deadline or the Completion Timetable most recently proposed by such Foreclosure Purchaser to Landlord prior to the Completion Table Deadline is, in each such case, reasonable based on the Reasonableness Factors. If the Judicial Referee determines that such Foreclosure Purchaser’s proposed new Completion Timetable is reasonable based on the Reasonableness Factors, then the Landlord shall accept such Foreclosure Purchaser’s proposed Completion Timetable without further inquiry. If the Judicial Refere e determines that such Foreclosure Purchaser’s proposed Completion Timetable is not reasonable based on the Reasonableness Factors, then the Judicial Referee shall determine whether the Landlord’s proposed Completion Timetable is reasonable based on the Reasonableness Factors.

If the Judicial Referee determines that the Landlord’s proposed Completion Timetable is reasonable based on the Reasonableness Factors, then such Foreclosure Purchaser shall accept the Landlord’s proposed Completion Timetable. If the Judicial Referee determines that neither the Landlord’s nor such Foreclosure Purchaser’s proposed Completion Timetable is reasonable based on the Reasonableness Factors, then Judicial Referee shall propose its own Completion Timetable based on the Reasonableness Factors, provided that such Completion Timetable shall require Completion of the Tenant’s Initial Project Improvements not later than four (4) years from the date that such Foreclosure Purchaser acquired the leasehold interest under this Lease and shall in no event provide less time than Landlord’s proposed Completion Timetable, in which case the Judicial Referee’s Completion Timetable shall govern completion of the Tenant’s Initial Project Improvements and the Convention Center Improvements by such Foreclosure Purchaser. In no event shall Landlord be liable to the Foreclosure Purchaser, or any Person whatsoever, for monetary damages. For the avoidance of doubt, nothing in this Section 10.6.2 shall be construed as limiting Landlord’s right to recove r, from the original Tenant or Foreclosure Purchaser, Construction Late Charges based on the Original Outside Construction Completion Date in accordance with Section 5.1.2 of the Project Implementation Agreement.

10.6.2.2 Election Not to Complete the Tena nt’s Initial Project Improvements
If the Foreclosure Purchaser elects not to Complete pursuant to the first paragraph of Section 10.6.2 (provided, however, that if such Foreclosure Purchaser acquired the equity interests in Tenant through a Permitted Equity Financing Encumbrance, then this Section 10.6.2.2

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shall only apply to its election not to Complete if: (i) Senior Permitted Mortgage Lender has received a Cure Period Trigger Notice relating to the applicable Event of Default, and (ii) following delivery of such Cure Period Trigger Notice, Senior Permitted Mortgage Lender thereafter either does not timely provide notice of its intent to foreclose or does not timely complete such foreclosure, in each such case, in accordance with Section 10.3.2(b)), then s uch Foreclosure Purchaser shall perform the following obligations (collectively, the “ Termination Obligations”) within fifteen (15) Business Days of delivering its election not to Complete:

1. Cause to be recorded and filed in the appropriate official records reconveyances and releases of any remaining liens held by such Foreclosure Purchaser (or any affiliated Permitted Mortgage Lenders) with respect to the Premises, the Improvements, and the Tenant’s leasehold interest;

2. Execute and deliver to Landlord a termination of this Lease in form and substance reasonably satisfactory to Landlord and such Foreclosure Purchaser, which termination shall include a release by such Foreclosure Purchaser of La ndlord of any and all claims against the Landlord;

3. Assign to Landlord, without representation or recourse (other than a representation that such Foreclosure Purchaser has not previously assigned such rights) any rights that such Foreclosure Purchaser may h ave in the Improvements and any contracts relating to the development, construction and operation of the Improvements;

4. Execute, deliver and cause to be recorded in the Office of the Recorder of San Diego County, a quitclaim deed and such other documents a s are necessary or otherwise reasonably requested by Landlord to convey to Landlord all of such Foreclosure Purchaser’s interest in the Lease and Improvements and terminate, of record, all encumbrances on title to the Premises, the Improvements, and Tenant’s leasehold interest created by this Lease or created by Foreclosure Purchaser;

5. Take such other actions and execute such other documents as Landlord may reasonably request to fully evidence the termination of this Lease; and

6. Deliver possession of the Premises and Improvements to Landlord.

Upon satisfaction of the Termination Obligations, this Lease shall terminate and the Foreclosure Purchaser shall be relieved from any further liability under this Lease except for (A) obligations and liabilities first ac cruing or arising under this Lease from and after the date such Foreclosure Purchaser acquired its interest under this Lease, but on or prior to the date of such termination, and (B) obligations and liabilities that are otherwise required to be performed pursuant to this Section in connection with such termination or surrender of the Lease.

10.6.2.3 Intentionally Omitted.

10.6.2.4 Failure to Comply
Notwithstanding anything to the contrary in this Lease, any Foreclosure Purchaser’s failure to comply with S ection 10.6.2.2 shall constitute an Event of Default, and upon such Event of Default, Landlord may proceed to terminate this Lease pursuant to Section 12.1.3 or 12.1.6 without complying with the procedures set forth in Section 12.2.7.

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10.6.3 Amendments and Modifications to Loan Documents.

Notwithstanding anything to the contrary herein, Tenant and Permitted Lender shall have the right to make any amendment or modification to any of the Loan Documents without Landlord’s consent if (a) Landlord receives a copy of the amendment or modification within thirty (30) days after it has been executed and (b) following the amendment or modification, (i) the requirements of Sections 10.1.2 or 10.1.3, as applicable, are satisfied and (ii) the name of the borrower and the name of the lender that is a party to the Permitted Financing Encumbrance remain the same, except that the lender may be different if such lender is a replacement to the administrative agent provided that such replacement lender is a Financial Institution that is an existing Permitted Mortgage Lender previously approved by the Landlord for the same financing secured by the applicable Permitted Financing Encumbrance. Notwithstanding the foregoing, no Landlord consent shall be required for any protective advances made by a Permitted Lender under and in compliance with the applicable Loan Documents approved by Landlord.

11. CONVENTION CENTER LEASES; SUBLEASES; ASSIGNMENT

11.1 Convention Center Leases; Subleases.

11.1.1 Convention Center Leases.

At any time after the commencement of the 420 th month of the Term (“ Expansion Exercise Date”), Landlord may exercise the right to notify Tenant to enter into a Delayed Start Ground Lease Expansion Amendment by delivering to Tenant a notice substantially in the form of "Exhibit U" attached hereto (a “ Delayed Start Ground Lease Expansion Amendment Notice”), in which case Landlord and Tenant shall, within 30 days after delivery of the Delayed Start Ground Lease Expansion Amendment Notice, enter into a Ground Lease Expansion Amendment substantially in the form of Exhibit “V” attached hereto (a “ Delayed Start Ground Lease Expansion Amendment”). If Landlord does not deliver the Delayed Start Ground Lease Expansion Amendment Notice to Tenant prior to the commencement of the 423 rd month of the Term, then Tenant may deliver the Delayed Start Ground Lease Expansion Amendment Notice to Landlord, in which case Landlord and Tenant shall, within 30 days after delivery of the Delayed Start Ground Lease Expansion Amendment Notice, enter in to a Delayed Start Ground Lease Expansion Amendment.

If prior to the Expansion Exercise Date, the Expansion Effective Date occurs, Landlord shall have the right to require Tenant to enter into a Ground Lease Expansion Amendment substantially in the form of Exhibit “X” attached hereto (an “ Immediate Start Ground Lease Expansion Amendment”) by delivering to Tenant a notice substantially in the form of "Exhibit W" attached hereto (an “ Immediate Start Ground Lease Expansion Amendment Notice ”), in which case Landlord and Tenant shall, within one (1) Business Day thereafter, enter into a Ground Lease Expansion Amendment substantially in the form of Exhibit “X” attached hereto (an “Immediate Start Ground Lease Expansion Amendment ”). If Landlord does not deliver the Immediate Start Ground Lease Expansion Amendment Notice to Tenant within two (2) days after the Expansion Effective Date, then Tenant shall have the right to require Landlord to enter into an Immediate Start Ground Lease Expansion Amendment by deliver ing to Landlord an Immediate Start Ground Lease Expansion Notice, in which case Landlord and Tenant shall, within one (1) Business Day thereafter, enter into an Immediate Start Ground Lease Expansion Amendment.

Notwithstanding anything to the contrary herein or in any of the Convention Center Leases or the Project Implementation Agreement, if Landlord and Tenant enter into an Immediate Start

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Ground Lease Expansion Amendment or Delayed Start Ground Lease Amendment (that becomes operative), and the Expansion Premises becomes part of the Premises, then each and every approval, waiver, assignment or transfer granted, given or made in accordance with any of the Convention Center Leases or the Project Implementation Agreement shall be deemed to have been granted, given or made, as applicable, in compliance with the provisions of this Lease; provided that (a) the JEPA consented to such approval, waiver, assignment or transfer granted, given or made in accordance with the Facility Lease or Landlord consented to such approval, waiver, assignment or transfer granted, given or made in accordance with the Project Implementation Agreement or (b) no consent was required for such approval, waiver, assignment or transfer pursuant to the Facility Lease or the Project Implemen tation Agreement, as the case may be.

11.1.2 Subleases; Consent Required.

Subject to the terms of Sections 11.1 through 11.4 and except for (a) any Sublease that is for less than five thousand (5,000) square feet of the total square footage of the Resort Hotel and, after the Expansion Date, any Sublease that is for less than ten thousand (10,000) square feet of the total square footage of the Convention Center or (b) any Sublease with respect to the Convention Center that is in effect as of the Expansion Date, w hich has a term that continues after the Expansion Date and (x) that has been approved, or deemed approved, by the JEPA as the lessor under the Facility Lease or (y) for which no approval or deemed approval was required pursuant to the Facility Lease, no S ublease shall be made or permitted without the prior written consent of Landlord (which consent shall not be unreasonably withheld, conditioned or delayed).

11.1.3 Request for Consent.

If a Sublease is proposed for which Landlord consent is required, Tenant sha ll notify Landlord in writing, which notice (the “Sublease Notice”) shall include (i) the proposed effective date of the Sublease, which shall not be less than sixty (60) days and not more than one hundred eighty (180) days after the date of delivery of the Sublease Notice, (ii) a narrative description, with supporting documents, of the proposed Sublease, including without limitation, the name of the proposed Subtenant, the term of the Sublease, the proposed use of the Premises and/or the Improvements, as a pplicable, the experience of the proposed Subtenant, the organizational structure of the proposed Subtenant, and any additional information that Landlord may reasonably require to evaluate the Sublease based on the factors set forth in Section 11.1.4, (iii) with respect to any Sublease that has a maximum total term of more than five (5) years, a copy of the proposed sublease agreement, (iv) a statement of any current litigation or any litigation which was resolved within the prior five (5) years affecting the proposed Subtenant and (v) such other information as Landlord may reasonably require. Not later than thirty (30) days after receipt of a Sublease Notice, Landlord shall notify Tenant (a) that Landlord has all information that it requires to evaluate the proposed Sublease or (b) of any additional information that Landlord reasonably requires to evaluate the proposed Sublease, as applicable. Landlord shall notify Tenant that it consents or does not consent to the proposed Sublease (including, if applicable , a reasonably detailed explanation for Landlord withholding its consent) not later than sixty (60) days after Landlord has received all information that Landlord reasonably requested to evaluate the proposed Sublease.

Any Sublease made without Landlord’s prior written consent shall, at Landlord’s option, be null, void and of no effect undone at Tenant’s sole cost and expense and shall not be binding on Landlord. Tenant shall pay to Landlord Landlord’s standard applicable fee set by the BPC in connection with Landlord reviewing and approving each Sublease for which Landlord’s consent is required pursuant to the Reimbursement Procedure, regardless of whether the Sublease is

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consummated or Landlord’s consent thereto is granted. Any Sublease shall be subject to the terms and provisions of this Lease.

The burden of producing evidence and the burden of proof showing Landlord that a prospective Subtenant meets each and all of the aforesaid qualifications and standards and that Landlord breached, or did not act reasonably under, this Section 11.1, shall be on the Tenant.

11.1.4 Consent Factors.

If Landlord consents to any Sublease, Tenant may within one hundred eighty (180) days after the date of delivery of the Sublease Notice, enter into such Sublease; provided that, if there is any material change to the financial condition of the Subtenant or any other material change to any of the proposed terms or conditions of the Sublease as set forth or attached to the Sublease Notice, then Tenant shall again submit a Sublease Notice to Landlord for its approval and take all other action required under this Section 11.1.

Notwithstanding anything to the contrary herein, Landlord shall grant consent to any Sublease that is required hereunder if all of the following conditions and requirements are satisfied in the Landlord’s reasonable discretion:
(a) Consistent Use. The Subtenant’s proposed use of the Premises and the Improvements following the proposed Sublease will be for the Permitted Use only or such proposed use as has been approved by the Landlord or BPC, as applicable; (b) Reputation. The Subtenant is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct or association with criminal elements – “reputable” shall not mean “prestigious”, nor shall the d etermination of whether one is reputable involve considerations of personal taste or preference) and has no pattern of or reputation for, either discriminatory employment practices which violate any Laws or non -compliance with Environmental Laws;
(c) Financial Stability. The Subtenant has sufficient financial resources for the Subtenant to perform its obligations under the Sublease; (d) Event of Default. At the time of the delivery of the Sublease Notice and at the time of the execution of the Sublease, there is no Event of Default; (e) [Reserved].
(f) Term. The proposed Sublease will be for no longer than the remainder of the Term.

11.1.5 Effect of Sublease.

If Landlord consents to a Sublease, (i) the terms and conditions of this Lease shall in no way be deemed to have been waived or modified, (ii) such consent shall not be deemed consent to any further Sublease by either Tenant or a Subtenant, and (iii) Tenant shall deliver to Landlord, within ten (10) days after execution, an original executed copy of all documentation pertaining to the Sublease, and any document evidencing a Sublease shall be in form acceptable to Landlord.

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11.1.6 Conditions.

In the event Landlord consents to any Sublease as required hereunder, then at Landlord’s election said consent shall be conditioned upon the following: (i) in the case of a Subtenant under a Sublease of all or Substantially All of the Premises and the Improvements, such Subtenant shall agree to be bound by all provisions, and assume each and e very obligation, under this Lease (including those obligations arising or pertaining to periods prior to the effective date of the Sublease), or, in the case of a Subtenant under a Sublease of less than all or Substantially All of the Premises and the Impr ovements, such Subtenant shall execute a document reasonably acceptable to Landlord acknowledging that all rights of the Subtenant are subject to all terms and conditions of this Lease as the same relate to the space subject to the Sublease; and (ii) the Subtenant shall execute an attornment agreement as provided in Section 11.2 below.

11.2 Subtenant Attornment.

Every Sublease hereunder is subject to the ex press condition, and by accepting a Sublease hereunder each Subtenant shall be conclusively deemed to have agreed, that if this Lease terminates or if Landlord succeeds to Tenant’s estate in the Premises, the Subtenant shall, at the option of Landlord, att orn to and recognize Landlord as the Subtenant’s landlord under the Sublease, provided that Landlord shall not (i) be liable for any act or omission or negligence of Tenant, (ii) be subject to any counterclaim, offset or defense which theretofore accrued t o such Subtenant against Tenant, (iii) be bound by any payment of Rent or other sums of money for more than one (1) month in advance or any security deposit (unless actually received by Landlord), (iv) be obligated to perform any work in the sublet space, (v) in the event of a casualty, be obligated to repair or restore Improvements or the Premises, (vi) in the event of a partial Taking, be obligated to repair or restore Improvements or the Premises, (vii) be obligated to make any payment to such Subtenant, or (viii) be bound by any obligations that Landlord lacks the capacity to perform; provided, however, that, if Landlord elects not to perform any of the obligations set forth in clause (v) to the extent that the Subtenant has not caused such casualty and such casualty affects the entirety of Subtenant’s operations on the Premises and/or the Improvements, as applicable, or clause (vi) to the extent that such partial Taking affects the Subtenant’s operations in their entirety on the Premises and/or the Impro vements, as applicable, then Subtenant shall have the right to terminate the applicable Sublease, in its reasonable discretion, by providing notice thereof to Landlord. Any Subtenant shall promptly execute and deliver any instrument that Landlord may reaso nably request to evidence such attornment. Upon early termination of this Lease, if Landlord requests that a Subtenant attorn Landlord, then Tenant shall pay over to Landlord all sums held by Tenant for the benefit of such Subtenant or as security under th e provisions of the existing Subleases. In addition, at Tenant’s request, Landlord may agree, in its sole and absolute discretion and without obligation to Tenant or Subtenant and without liability to the Landlord, to negotiate a non -disturbance agreement with a Subtenant with a Sublease in excess of 50% of the Project if Landlord has previously approved the Sublease in writing to such Subtenant pursuant to which such non -disturbance agreement Landlord would agree not to disturb the possession of such Subtenant in the event this Lease is terminated.

11.3 Sublease Rent Requirements.

Subject to the terms of any Permitted Financing Encumbrance, each Sublease shall require the Subtenant thereunder to make all payments of rent and other sums of money that are owed under the applicable Sublease to Landlord during the existence of an Event of Default and following written notice of the same from Landlord, and Landlord shall apply said payments made to all

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Rent that is due and payable to Landlord pursuant to this Lease, and any remaining amounts will be held and applied to future Rent payable under this Lease.

11.4 Reporting of Sublease Information.

If Tenant has entered into any Subleases, then, within thirty (30) days of request from Landlord and within sixty (60) days after the end of each calendar year, Tenant shall submit to Landlord a rent roll in the form of Exhibit “G” attached hereto containing the information described therein for each Sublease then in effect, along with a site plan showing locations of any Subleases.

11.5 Assignment.

11.5.1 Consent Required.

Subject to the terms of this Section 11.5, the terms of the definition of “Equity Collateral Enforcement Action”, and except for any Assignment or Transfer to a Foreclosure Purchaser that is a Permitted Lender or an SPE Le nder Affiliate, no Assignment or Change of Control of Tenant (collectively, “Transfer”) shall be made or permitted without, in each instance, the prior written consent of Landlord (which consent shall not be unreasonably withheld, conditioned or delayed). Consents to Assignment to a Foreclosure Purchaser are addressed in Section 10.4. It is mutually agreed that Landlord is a Governmental Authority holding title to the Premises in trust for the citizens of the State of California and acting as a prudent steward of the Premises and that the personal qualifications of the parties Controlling Tenant are a part of the consideration for granting this Lease. As such, a Change of Control is as relevant to Landlord as an Assignment.

Notwithstanding anything herein to the contrary (but subject in all respects to Section 11.7 below), no Transfer is allowed prior to the date that is the later of: (x) the date when the Resort Hotel is Completed and the City has issued the final certificate of occupancy with respect to the Resort Hotel and (y) the date when the Parking Improvements are Completed and the City has issued the final certificate of occupancy with respect to the Parking Improvements, unless consented to by Landlord in its sole and absolute discretion.

11.5.2 Request for Consent.

If a Transfer is proposed for which Landlord consent is required, Tenant shall notify Landlord in writing, which notice (the “ Transfer Notice”) shall include (i) the proposed effective date of the Transfer, which shall not be less than ninety (90) days and not more than one hundred eighty (180) days after the date of delivery of the Transfer Notice, (ii) narrative description, with supporting documents, of the proposed Transfer, including without limitation, the name of the Transferee, the proposed use of the Premises and the Improvements following the proposed Transfer, the experience of the Transferee, the organizational structure of the Transf eree that depicts all Persons that hold twenty percent (20%) or more of direct and indirect interest in such Transferee, and any additional information that Landlord may require to evaluate the Transfer based on the factors set forth in Section 11.5.3, (iii) all of the material terms of the proposed Transfer, including without limitation, any proposed encumbrances, (iv) with respect to an Assignment, the name and address of the proposed assignee or, with respect to a Change of Control of Tenant, the name an d address of the Person(s) acquiring an interest resulting in a Change of Control of Tenant (each such assignee, or Person acquiring an interest resulting in a Change of Control of Tenant, a “Transferee”), (v) with respect to a Change of Control of Tenant, a complete description of the direct and indirect ownership and Control of Tenant immediately before and immediately after the Transfer in writing and depicted in an organizational chart (but in no event will Tenant be required to disclose the identity of any Person that holds less than a

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20% direct or indirect underlying interest in Tenant), (vi) a copy of all existing and/or proposed documentation pertaining to the proposed Transfer, including all existing and proposed operative documents to be executed to evidence such Transfer and the agreements incidental or related to such Transfer, which shall at a minimum include, organizational documents, (vii) a statement of any current litigation or any litigation which was resolved within the prior five (5) years affecting the proposed Transferee, (viii) in the case of an Assignment only, financial statements of the proposed Transferee as of the end of the most recent calendar quarter that ended at least one hundred fifty (150) days before the date of submission that are certified by a reputable, certified public accountant or certified on behalf of the proposed Transferee as being prepared in accordance with generally accepted accounting principles by a Person that is authorized to execute such financial statemen ts on behalf of the proposed Transferee, as applicable (which shall be audited if that is the customary practice of the Transferee), and (ix) such other information as Landlord may reasonably require. Any Assignment made without Landlord’s prior written consent shall, at Landlord’s option, be null, void and of no effect, undone at Tenant’s sole cost and expense and shall not be binding on Landlord. Tenant shall pay to Landlord Landlord’s standard applicable fee set by the BPC Policy No. 106, or its equivale nt, in connection with Landlord reviewing each Transfer for which Landlord consent is required pursuant to the Reimbursement Procedure, regardless of whether the Transfer is consummated or Landlord’s consent thereto is granted. Any Transfer shall be subject to the terms and provisions of this Lease.

The burden of producing evidence and the burden of proof showing Landlord that a prospective Transferee meets each and all of the aforesaid qualifications and standards and that Landlord breached, or did not act reasonably or in good faith, under this Section 11.5 shall be on the Tenant.

11.5.3 Consent Factors.

Not later than thirty (30) days after receipt of a Transfer Notice, Landlord shall notify Tenant (i) that Landlord has all information that it requires to eval uate the proposed Transfer or (ii) of any additional information that Landlord reasonably requires to evaluate the proposed Transfer, as applicable. Landlord shall notify Tenant that it consents or does not consent to the proposed Transfer (including, if a pplicable, a reasonably detailed explanation for Landlord withholding its consent) not later than sixty (60) days after Landlord has received all information that Landlord reasonably requested to evaluate the proposed Transfer. If Landlord consents to any Transfer, Tenant may within one hundred eighty (180) days after the date of delivery of the Transfer Notice, enter into such Transfer, upon the same terms and conditions as set forth in the Transfer Notice furnished by Tenant to Landlord; provided that, if , before such Transfer is effective, there is any material change to the financial condition of the Transferee or any other material change to any of the proposed terms or conditions of the Transfer as set forth or attached to the Transfer Notice, then Ten ant shall again submit a Transfer Notice to Landlord for its approval and take all other action required under this Section 11.5.

Notwithstanding anything to the contrary herein, Landlord shall grant consent to any Transfer that is required hereunder if all of the following conditions and requirements are satisfied (it being understood that for the purposes of this Section 11.5.3 and Section 11.5.5, in the case of a Change of Control, references to “ Transferee” shall mean the Person that Controls the Tenant following the Change of Control) in the Landlord’s reasonable discretion:
(a) Sufficient Experience . The Transferee has at least ten (10) years of experience (directly or through one or more of its subsidiaries) owning or managing hotels that

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have at least 500 rooms and meeting space comparable to the Meeting Space (or retains a manager with such qualifications);
(b) Consistent Use. The Transferee’s proposed use of the Premises and the Improvements following the proposed Transfer will be for the Permitted Use only or such proposed use as has been approved by the Landlord or BPC, as applicable; (c) Resort Hotel is Complete and the Parking Improvements are Complete .

The Transfer is to occur after the date that is the latest of: (1) the date the Resort Hotel is Completed, (2) the date that the City issues the final certificate of occupancy for the Resort Hotel, (3) the date the Parking Improvements are Completed and (4) the date that the City issues the final certificate of occupancy for the Parking Improvements; provided that this clause (c) shall not apply if such Transfer is (i) in connection with any foreclosure on the Permitted Financing Encumbrance or any action in lieu of foreclosure by a Permitted Lender or to a Foreclosure Purchaser that is a Permitted Lender o r an SPE Lender Affiliate, or (ii) the immediately subsequent Transfer by such Foreclosure Purchaser that is a Permitted Mortgage Lender or an SPE Lender Affiliate;
(d) Reputation. The Transferee is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct or association with criminal elements – “reputable” shall not mean “prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference) and has no pattern of, or reputatio n for, either discriminatory employment practices which violate any Laws or non -compliance with Environmental Laws;
(e) [Reserved.]
(f) Hotel Brand. The Transferee’s proposed hotel brand will be an Acceptable Brand; provided that if the Transfer is prior to the third (3rd) anniversary of the later date of: (a) the date that the Resort Hotel is open for business and (b) the date that the Convention Center is open for business, Landlord may disapprove of the Transfer on the grounds that the Resort Hotel or Convention Center brand will not be the Gaylord Hotels brand; provided, further, that the foregoing proviso and the proviso in the definition of “ Acceptable Brand” will not apply if (i) the Hotel Management Agreement that is in effect as of the Commencement Date has terminated and (ii) such Transfer is (A) in connection with any foreclosure on the Permitted Financing Encumbrance or any action in lieu of foreclosure by a Permitted Lender or to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate or (B) the immediately subsequent Transfer by such Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate; (g) Default. At the time of request or Transfer, there is no Event of Default under this Lease, Sublease, Project Implementation Agreement, or any other lease between Landlord and Tenant or an entity that is Controlled by or under common Control with Tenant or which Controls Tenant; provided that this clause (g) shall not apply if such Transfer is (i) in connection with any foreclosure on the Permitted Financing Encumbrance or any action in lieu of foreclosure by a Permitted Lender or to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate or (ii) the immediately subsequent Transfer by such Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate;
(h) Assignment and Assumption Agreement . In the case of an Assignment, Tenant and the Transferee shall enter into, and deliver to Landlord, an assignment and

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assumption agreement substantially in the form of Exhibit “L” attached hereto, with any deviations from such form being approved by the Landlord in Landlord’s reasonable discretion; (i) Parties under the Convention Center Sublease and the Project Implementation Agreement.

At any time prior to the Expansion Date and so long as the Convention Center Sublease and/or the Project Implementation Agreement remains in effect, such Transfer shall not cause the Tenant to be a Person that is not the subtenant under the Convention Center Sublease.

11.5.4 Effect of Transfer.

If Landlord consents to a Transfer, (i) the terms and conditions of this Lease shall in no way be deemed to have been waived or modified, (ii) such consent shall not be deemed consent to any further Transfer by either Tenant or a Transferee, and (iii) Tenant shall deliver to Landlord, within one hundred and eighty (180) days after Landlord’s consent to such Transfer, an original executed copy of all documentation pertaining to the Transfer, including any documents set forth in Section 11.5.3, in a form acceptable to Landlord. In the case of an Assignment of this Lease only, that complies with the terms of this Section 11.5, Tenant and the Transferee shall enter into, and deliver to Landlord, an assignment and assumption agreement substantially in the for m of Exhibit “L” (with any deviations from such form being approved by Landlord in Landlord’s reasonable discretion). Upon Landlord's receipt of such fully executed assignment and assumption agreement where Transferee assumes all liability and obligations under this Lease first arising from and after the effective date of such Transfer, Tenant (but not the Completion Guarantor(s), if the Completion Guaranty is in effect on the effective date of the Transfer) shall be relieved from any liability under this L ease first arising from and after the effective date of such Transfer.

11.5.5 Conditions.

In the event Landlord consents to any Assignment as required hereunder, then said consent shall be conditioned upon (i) the assignee agreeing in writing to be bound by all provisions, and assuming each and every obligation, under this Lease (first arising from and after the effective date of such assignment) through an assignment and assumption agreement substantially in the form of Exhibit “L” hereto (with any deviations from such form being approved by the Landlord in Landlord’s reasonable discretion) and executes and delivers such assignment and assumption agreement to Landlord; and (ii) the Completion Guarantor(s) (if applicable) delivering a written acknowledgement, in a form acceptable to Landlord, consenting to the Assignment and reaffirming their obligations under the Completion Guaranty; provided that no such acknowledgement and reaffirmation shall be required from Completion Guarantor(s) (if applicable) in connection with any Transfer or Assignment resulting from or following any exercise of remedies by a Permitted Lender. Without limiting the generality of the foregoing, any assignee shall be obligated for the payment to Landlord of any underpayment of Rent determined to be due under Section 5.4.3(e) above, together with the cost of the audit, if applicable, notwithstanding that such underpayment of Rent, and related audit, pertains to a period of time prior to the effective date of the Assignment.

11.6 Assignment Participation Fee.

Upon each (a) Assignment of this Lease pursuant to Section 11.5, (b) a change in the composition of the direct or indirect ownership of Tenant, and (c) Sublease of all or Substantially All of the

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Premises and the Improvements, Tenant shall pay to Landlord a fee (the “ Assignment Participation Fee”) in an amount equal to one percent (1%) of the Assignment Proceeds of such transaction; provided, however, that Tenant shall not pay the Assignment Participation Fee (i) if one or more of the members of Tenant (as of the date that is the later of: (x) the date of Completion of the Resort Hotel and the City’s issuance of the final certificate of occupancy for the Resort Hotel and (y) the date of Completion of the Parking Improvements and the City’s issuance of the final certificate of occupancy for the Parking Improvements), which shall include, as applicable (A) each sibling of such Person, the spouse of such Person, and each parent, child, grandchild or great-grandchild of such Person (including relatives by marriage); (B) any trust for the benefit of such Person or any of the foregoing members of his or her family; (C) where such Person is a trust, any beneficiary of the trust of any of the foregoing family members of a beneficiary of the trust, or any other trust established for the benefit of any of the foregoing; and (D) each Person that Controls, is Controlled by, or in under common Control of, such Person or any of the foregoing Persons (each, an “ Original Member”), collectively, directly or indirec tly, owns at least a ten percent (10%) ownership interest in the Tenant’s Initial Project Improvements (including through direct or indirect ownership in Tenant), (ii) in the case of any Transfer in connection with any foreclosure on the Permitted Financin g Encumbrance or any action in lieu of foreclosure by a Permitted Lender or to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate or the immediately subsequent Transfer by such Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate to any other Person consented to by Landlord, (iii) in the case of a change in the composition of the direct or indirect ownership of Tenant as a result of an Equity Collateral Enforcement Action by a Permitted Mezzanine Lender or ( iv) in the case of a change in the composition of the direct or indirect ownership of Tenant resulting from a transfer of ownership interests traded on a recognized public exchange. Prior to Landlord’s consent to any transaction subject to an Assignment Pa rticipation Fee, Tenant shall deliver to Landlord a written statement showing the calculation of the Assignment Participation Fee owed to Landlord from Tenant based on the terms of the transaction and an organizational chart showing all Persons holding at least a twenty percent (20%) direct or indirect ownership interest in the Tenant’s Initial Project Improvements prior to such transaction and after such transaction.

The statement of the calculation of the Assignment Participation Fee shall contain such detail as may be reasonably requested by Landlord to verify the calculation of the Assignment Participation Fee. The Assignment Participation Fee due to Landlord shall be payable in full to Landlord concurrent with the completion of the transaction and shall be a joint and several obligation of the transferee and transferor. When owed, the Assignment Participation Fee shall constitute supplemental Rent.

For the purposes of this Section 11.6, the term “Assignment Proceeds” shall mean the purchase price or other consideration that is: (a) paid (either in cash or by an assumption of debt or other consideration and, if paid over time, the present value of the total consideration using the discount rate of the Federal Reserve Bank of San Francisco at the time of aw ard plus one percent (1%)) to the Tenant and/or holders of direct or indirect interests in Tenant and (b) fairly attributable to Tenant’s interest in this Lease and the Improvements in connection with the subject transaction less the sum of (w) any reasonable prorations, closing costs or other customary deductions to the purchase price for which the seller is responsible, (x) the certified cost of designing, developing and constructing the Tenant’s Initial Project Improvements as of the time of the Completion of the Tenant’s Initial Project Improvements and, from and after the Expansion Date, the Convention Center as of the time of the Completion of the Convention Center, (y) one hundred (100) times the amount of any Assignment Proceeds that have been previously paid to Landlord, which sum shall be prorated in the case of an assignment of a portion of the Initial Project Improvements and (z) from and after the Expansion Date, one hundred (100) times the amount of any Assignment

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Proceeds (as such term is defin ed in the Project Implementation Agreement) that have been previously paid to Landlord under the Project Implementation Agreement, which sum shall be prorated in the case of an assignment of a portion of the Initial Project Improvements.

Notwithstanding the foregoing, if at any time an Assignment Participation Fee is payable pursuant to this Lease and an Assignment Participation Fee (as defined in the Project Implementation Agreement) is payable pursuant to the Project Implementation Agreement, then Tenant shall, in its reasonable discretion, determine the allocation of the assignment proceeds between the Assignment Proceeds with respect to this Lease and the Assignment Proceeds (as defined in the Project Implementation Agreement) with respect to the Project Implementation Agreement.

Upon the request of Landlord from time to time (which request shall not be made more frequently than once per year), except in the case of Completion of the Resort Hotel and in the case of Completion of the Parking Improvements, in which case Tenant shall deliver to Landlord such schedule, and such evidence, without request from Landlord, within five (5) days of Completion of the Resort Hotel and Completion of the Parking Improvements, respectively, Tenant shall provide Landlord with a schedule listing the name and mailing address of each Person holding at least twenty percent (20%) of the direct or indirect ownership interests in the Tenant’s Initial Project Improvements and, if then true, evidence that one or more Original Members collectively holds at least ten percent (10%) of the direct or indirect ownership interest in the Tenant’s Initial Project Improvements. In the event that such Person is a trust, Tenant shall include in such schedule the name and mailing address of each trustee of said trust, together with the name and mailing address of each beneficiary of said trust.

11.7 Permitted Lender and Foreclosure Purchasers.

The foregoing provisions of this Article 11 shall not apply to the Transfers which are governed by Sections 10.3 and 10.4.

12. EVENTS OF DEFAULT AND REMEDIES

12.1 Events of Default.

The occurrence of any one (1) or more of the following events shall constitute an event of default by Tenant hereunder (each, an “Event of Default”):

12.1.1 Abandonment.
“Abandonment” shall mean that on and after Completion of the Resort Hotel, for thirty (30) consecutive days or longer, none of the Improvements (excluding the Existing Improvements and excluding the Parking Improvements until Completion of the Parking Improvements) are operated by Tenant or the Hotel Operator, except for temporary closures that are permitted under, or periods of time when such Improvements are not operated as permitted under, Section 4.4 or as a result of an existing Force Majeure Event in accordance with Section 6.5 that prevents Hotel Operator and Tenant from being on the Premises or at the Improvements or operating a portion of the Improvements (excluding the Existing Improvements and excluding the Parking Improvements until Completion of the Parking Improvements) and Tenant does not cure such condition within sixty (60) days after written notice thereof from Landlord. Notwithstanding the foregoing, “Abandonment” shall not include temporary closures or failures to operate that may result from an event of condemnation of any of the Improvements.

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12.1.2 Failure to Pay.

Failure by Tenant to pay, when due, any Rent, other payment, and/or charge that Tenant is required to pay hereunder, where such failure continues for a period of five (5) days after written notice thereof from Landlord; provided, however, that any not ice provided under this Section 12.1.2 shall be in lieu of, and not in addition to, any notice required under Section 1161 of the California Code of Civil Procedure, as amended.

12.1.3 Failure to Perform.

Failure by Tenant to perform any express or implied covenants or conditions in this Lease (other than as provided in the other subsections of this Section 12.1), where such failure continues for thirty (30) days after written notice thereof from Landlord; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and Tenant diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an Event of Default; and provided, further, that if such failure is due to a Force Majeure Event in accordance with Section 6.5, then such failure s hall not constitute an Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists.

12.1.4 Bankruptcy Event.

The occurrence of a Bankruptcy Event.

12.1.5 Failure to Provide a True, Correct and Complete Affidavit or Certificate Any affidavit provided by Tenant pursuant to Section 10.1.1, 15.4.2 or 15.4.4 is not true, correct or complete as required in Section 10.1.1, 15.4.2 or 15.4.4 or any certificate provided by Tenant pursuant to Section 13.2.2 is not true, correct or complete as required in Section 13.2.2, if Tenant does not cure such deficiency within five (5) Business Days after it knows about the deficiency, or within five (5) Business Days after written notice thereof from Landlord; provided, however, if such deficiency is such that it would have changed the decision of the Landlord to consent to the encumbrance or the Hotel Management Agreement, as applicable, Landlord may elect to require that such consent be reconsidered and where that is not pos sible due to the passing of time or otherwise, such failure by Tenant shall constitute an Event of Default under this Lease.

12.1.6 Cross-Defaults Prior to the Expansion Date.

The occurrence or existence of an Event of Default as defined in and in accordance wit h the Convention Center Sublease or an Event of Default as defined in and in accordance with the Project Implementation Agreement, as applicable, in each case, at any time prior to the Expansion Date; provided that in the event that an Event of Default und er the Convention Center Sublease is cured pursuant to the terms of the Convention Center Sublease, such Event of Default shall be deemed cured hereunder, and in the event that an Event of Default under the Project Implementation Agreement is cured pursuan t to the terms of the Project Implementation Agreement, such Event of Default shall be deemed cured hereunder.

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12.1.7 Breach of a Representation or Warranty
(a) Any representation or warranty by Tenant under this Lease is not true, correct or complete in any material respect and Tenant does not cure such deficiency within ten (10) Business Days after it actually knows about such deficiency, or within ten (10) Business Days after Tenant receives written notice thereof; provided that, if the nature of such breach is suc h that the same cannot reasonably be cured within such ten (10) Business Day period, and Tenant diligently commences such cure within such ten (10) Business Day period and thereafter diligently proceeds to rectify and cure such breach, then such failure shall not constitute an Event of Default. (b) Any representation or warranty by the Completion Guarantor under the Completion Guaranty is not true, correct or complete and Tenant does not, or does not cause the Completion Guarantor to (as the case may be), cure such deficiency within ten (10) Business Days after it actually knows about such deficiency, or within ten (10) Business Days after Tenant receives written notice thereof from Landlord; provided that, if the nature of such breach is such that the same cann ot reasonably be cured within such ten (10) Business Day period, and Completion Guarantor diligently commences such cure within such ten (10) Business Day period and thereafter diligently proceeds to rectify and cure such failure, then such breach shall no t constitute an Event of Default; provided that without limiting Landlord's rights and remedies with respect to the original undersigned Tenant under this Lease or Completion Guarantor, following the effectiveness of any New Lease or the acquisition by any Foreclosure Purchaser of the leasehold interest under this Lease or the equity interests in Tenant, no failure or breach by the Completion Guarantor under the Completion Guaranty shall constitute a breach, default or Event of Default under this Lease.

12.1.8 Specified Defaults.

The occurrence of any event expressly stated to constitute an Event of Default under this Lease.

12.2 Remedies.

Upon any Event of Default but subject to Section 12.2.7, Landlord may, in addition to all other rights and remedies afforded to Landlord hereunder or by law or in equity, take any one or more of the following actions:

12.2.1 Termination of Lease.

Terminate this Lease by giving Tenant written notice thereof, in which event Tenant shall immediately surrender the Premises to Landlord. In the e vent that Landlord shall elect to so terminate this Lease, then Landlord may recover from Tenant:
(a) The worth at the time of award of any unpaid Rent which had been earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid Rent which would have been earned after such termination until the time of award exceeds the amount of such Rent loss that Tenant proves could have been reasonably avoided; plus

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(c) The worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such Rent loss that Tenant proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, without limitation, the cost of recovering possession of the Premises, expenses of reletting (including necessary repair , renovation and alteration of the Premises), reasonable attorneys’ fees, and any other reasonable costs; plus
(e) At Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Law.

AS USED IN CL AUSES (A) AND (B) ABOVE, THE “ WORTH AT THE TIME OF AWARD ” IS COMPUTED BY ALLOWING INTEREST AT THE DEFAULT RATE. AS USED IN CLAUSE (C) ABOVE, THE “WORTH AT THE TIME OF AWARD” IS COMPUTED BY DISCOUNTING SUCH

AMOUNT AT THE DISCOUNT RATE OF THE FEDERAL RESERVE BANK OF SAN FRANCISCO AT THE TIME OF AWARD PLUS ONE PERCENT (1%).

Failure by Landlord to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such Event of Default. Tenant hereby waives for Tenant and for all those claiming under Tenant all rights now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, Tenant’s right of occupancy of the Premises after any termination of this Lease.

12.2.2 Continue Lease in Effect.

Exercise the remedy described in California Civil Code Section 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due if Tenant has the right to sublet or assign this Lease, subject only to reasonable limitations).

12.2.3 Perform Acts on Behalf of Tenant.

Perform any act that Tenant is obligated to perform under this Lease (and enter upon the Premises in connection therewith if necessary) in Tenant’s name and on Tenant’s behalf, without being liable for any claim for damages therefor, and Tenant shall reimburse Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant’s obligations under this Lease (including, but not limited to, collection costs and legal expenses), plus interest thereon at the Default Rate.

12.2.4 Increased Security Deposit.

Notwithstanding anything to the contrary in Section 28.4, require Tenant to, in which case Tenant shall, increase the security deposit wi th an amount equal to three (3) months of the Minimum Annual Rent (which remedy may be exercised on more than one occasion with further increases in the security deposit on any subsequent Event of Default); provided that Landlord shall return such increased amount of the security deposit to Tenant on the first anniversary of the date on which the applicable Event of Default ceased to exist upon request in writing from Tenant except if another Event of Default then exists, and a separate increased security deposit

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has not already been delivered to Tenant with respect to such Event of Default in accordance with this Section 12.2.4, then Landlord will continue to hold such increased amount of security deposit until the f irst anniversary of the date on which such other Event of Default ceases to exist and Tenant requests in writing the return of the increased amount of the security deposit from Landlord.

12.2.5 Payment by Tenant.

Require Tenant to, in which case Tenant shall, pa y to Landlord all costs incurred by Landlord (including court costs and reasonable attorneys’ fees and expenses and staff time) in:
(a) obtaining possession of the Premises; (b) removing and storing Tenant’s or any other occupant’s property; (c) repairing, restoring, altering, remodeling, or otherwise putting the Premises into condition acceptable to a new tenant; (d) performing Tenant’s obligations which Tenant failed to perform; and (e) enforcing, or advising Landlord of, its rights, remedies, and recourses arising out of the Event of Default.

12.2.6 Assignment of Plans and Other Matters.

Require Tenant to, in which case Tenant shall, (i) at Tenant’s sole cost and expense, assign and transfer to Landlord all of Tenant’s right, title and interest in and to all plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Premises, free and clear of liens and claims by third parties, in connection with and (ii) execute and deliver to Landlo rd, within five (5) Business Days of Landlord’s request, in a form provided by and acceptable to Landlord, an instrument confirming the Assignment and transfer of such property and interests to Landlord and, within such five (5) Business Day period, to deliver the originals of such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Premises to Landlord. Tenant agrees to reasonably cooperate with Landlord at no cost or expense to Landlord in seeking any consent from the preparer of any plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Premises, which may be required for Landlord to rely on such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Premises.

12.2.7 Certain Limitations.

Landlord shall not have the right to terminate this Lease as a result of any Event of Default arising solely under Section 12.1.3 or Section 12.1.6 (as it relates to a cross-default for failure to perform only) of the Lease that is susceptible to cure (but will retain all other remedies) if the following conditions apply:
(a) the Tenant has, in good faith, by written notice served on Landlord within thirty (30) days of receipt of any notice from Landlord of such Event of Default, contested that (x) Tenant has failed to perform any covenant or condition required to be performed by it und er the Lease or (y) an Event of Default as defined in and in accordance with the Convention Center Sublease or an Event of Default as defined in and in accordance with the Project Implementation Agreement has occurred or is continuing, as applicable, and there has been no final determination by a court with jurisdiction that (1) the Tenant has in fact failed to perform any covenant or condition required to be performed by it under the Lease and that such failure has had a material adverse effect on Landlord or the Project or (2) an Event of Default as defined in and in accordance with the Convention Center Sublease or an Event of Default as defined in and in

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accordance with the Project Implementation Agreement has occurred or is continuing and that such Event of Default has had a material adverse effect on Landlord, City, JEPA, or the Project, as applicable; or
(b) after any final determination by a court with jurisdiction that (x) the Tenant has in fact failed to perform any covenant or condition required to b e performed by it under the Lease and that such failure has had a material adverse effect on Landlord or the Project or (y) an Event of Default as defined in and in accordance with the Convention Center Sublease or an Event of Default as defined in and in accordance with the Project Implementation Agreement has occurred or is continuing and that such Event of Default has had a material adverse effect on Landlord, City, JEPA, or the Project, as applicable, Tenant promptly (and in all events, within thirty (30) days of such final determination), cures such failure, such Event of Default as defined in and in accordance with the Convention Center Sublease or such Event of Default as defined in and in accordance with the Project Implementation Agreement, as appli cable. Without limiting the foregoing, Landlord shall not have the right to terminate this Lease as a result of any Event of Default arising solely under Section 12.1.6 unless the Project Implementation Agreement or the Convention Center Sublease, as appli cable, has been terminated in accordance with its terms.

For purposes of this section, a “final determination by a court with jurisdiction” shall mean the entry of a final judgment by the trial court or equivalent tribunal in any such proceeding. For clarification, the thirty day cure period following such “final determination” within which Tenant’s failure to perform must be cured in order to avoid Landlord’s right to terminate pursuant to this section shall commence immediately upon entry of such judgment by the trial court and shall not be stayed, delayed or otherwise postponed during any appeal periods or other post -judgment proceedings (e.g., Motion for New Trial or JNOV) that Tenant might pursue following entry of such judgment.

For purpose of this S ection 12.2.7, “material adverse effect on Landlord or the Project” shall mean, but shall expressly not be limited to, (i) a failure to comply with any provision of the Port Act, including but not limited to Port Act provisions limiting use of the Premises or the Improvements, (ii) a material failure to comply with any CDP (as may be amended from time to time) applicable to the Premises and Improvements, (iii) a material failure to comply with the Port Master Plan, or any amendment thereto, (iv) a material failure to comply with any provision of this Lease related to Hazardous Materials, (v) a material failure to comply with any provision of this Lease relating to assignment or sublease of the Premises, (vi) a failure to comply with any provision of the Lease relating to PWL requirements, (vii) a failure to comply with any provision of this Lease that results or could reasonably be expected to result in a public health or safety issue, (viii) a failure to comply with any provision of this Lease the effect of which may be that any Landlord Party has incurred or could reasonably be expected to incur criminal liability, (ix) a failure to comply with any provision of this Lease that could reasonably be expected to result in a default by the Landlord or the JEPA under the public financing, or (x) a failure to comply with any provision of this Lease that could reasonably be expected to result in significant irreparable harm or injury to Landlord. Nothing in this Section 12.2.7 shall prejudice Tenant’s ability to appeal any decision of any court, provided, that, Tenant’s appeal shall not limit the Landlord’s ability to pursue any remedies available to Landlord under this Lease.

13. BANKRUPTCY

13.1 Bankruptcy Event.

Upon occurrence of a Bankruptcy Event, Landlord shall have a ll rights and remedies available pursuant to Article 12. After the commencement of a Bankruptcy Case: (i) the Tenant shall perform

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all post-petition obligations of Tenant under this Lease; and (ii) if Landlord is entitled to damages (including unpaid Rent) from and after the commencement of the Bankruptcy Case pursuant to the terms of this Lease, then all such damages shall be entitled to administrative expense priority pursuant to the Bankruptcy Code. Tenant acknowledges that this Lease is a lease of nonresidential real property and therefore Tenant, as the debtor in possession, or the trustee shall not seek or request any extension of time to assume or reject this Lease or to perform any obligations of this Lease which arise from or after the commencement of the Bankruptcy Case.

13.2 Assignment/Assumption.

13.2.1 General.

Any Person to which this Lease is assigned pursuant to the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after th e date of such an assignment, and any such assignee shall upon request by Landlord execute and deliver to Landlord an instrument confirming such assumption in a form acceptable to Landlord. If the Tenant desires to assign this Lease under the Bankruptcy Code to any Person who shall have made a bona fide offer, then the Tenant shall give Landlord written notice of such proposed assignment and assumption (which notice shall set forth the name and address of such Person, all of the terms and conditions of such offer, and the adequate assurance to be provided Landlord to assure such Person’s future performance under this Lease) prior to the date Tenant shall make application to the appropriate court for authority and approval to enter into such assignment and assumption. Landlord shall thereupon have the prior right and option, to be exercised by notice to the Tenant given at any time prior to the effective date of such proposed assignment and assumption, to accept an assignment and assumption of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any brokerage commissions which may be payable out of the consideration to be paid by such Person for the assignment and assumption of this Lease. If the Tenant fails to assume or assume and assign this Lease in accordance with the requirements of the Bankruptcy Code within the period provided by the Bankruptcy Code or allowed by the bankruptcy court, then the Lease shall be deemed rejected and the Landlord shall have all rights and remedies available to it pursuant to Section 12.2.

13.2.2 Financial Statements.

At any time during the Term, upon not less than five (5) days’ prior written notice, Tenant shall provide Landlord with audited financial statements for Tenant for not less than the most recent two (2) years (or such shorter period of time as Tenant has existed if such financial statements have been created for less than two (2) years) for which such financial statements have been created. Such statements are to be certified by an authorized representative of Tenant to be a complete copy of the financial statements of Tenant and to have be en prepared in accordance with generally accepted accounting principles and audited by any independent certified public accountant.

13.3 Adequate Assurances.

In the event Tenant or proposed assignee under Section 13.2 proposes under the Bankruptcy Code to cure any default under this Lease or to assume or assign this Lease and is obliged to provide adequate assurance to Landlord that (a) a default shall be cu red, (b) Landlord shall be compensated for its damages arising from any breach of this Lease and (c) future performance

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of Tenant’s obligations under this Lease shall occur, then such adequate assurances shall include all of the following, as designated by Landlord in its sole and absolute discretion:
(a) Those acts specified in the Bankruptcy Code or other applicable laws as included within the meaning of “adequate assurance”;
(b) A prompt cash payment to compensate Landlord for any monetary defaults or actual damages arising directly from a breach of this Lease; (c) A cash deposit in an amount at least equal to the then -current amount of the security deposit; and
(d) The assumption or assignment of all of Tenant’s interest and obligations under this Lease.

14. EMINENT DOMAIN

14.1 Eminent Domain.

If all or any portion of the Premises and the Improvements shall be condemned pursuant to exercise of the power of eminent domain, or acquired under an actual threat of the exercise of such power (collectively, “ Condemnation”), then the ri ghts and obligations of Landlord and Tenant with respect thereto shall be as set forth in this Article 14. Nothing in this Article 14 shall be interpreted to prevent Landlord from exercising its power of eminent domain as to Tenant’s leasehold interest, Premises and/or the Improvements.

14.2 Notice of Condemnation.

If either Party receives notice of any Condemnation or intended Condemnation (including, without limitation, service of process), then, within five (5) Business Days of receipt thereof, such Party shall deliver to the other Party an exact copy of such notice of any Condemnation or intended Condemnation and the date such notice was received.

14.3 Representation of Interest.

Landlord and Tenant shall each have the right to represent its respective interests in such proceeding or negotiation with respect to a Condemnation or intended Condemnation and to make full proof of its claims. Landlord and Tenant each agrees to execute and deliver to the other Party any instrument which may be required to effectuate or facilitate the provisions of this Article 14.

14.4 Early Termination.

In the event (a) of a Condemnation (other than a Temporary Condemnation) of all of the Premises or all of the Improvements, or a portion of the Premises or the Improvements with respect to which the total proceeds of Condemnation, prior to the Expansion Date, exceed One Hundred Thirty Million Dollars ($130,000,000) or, from and after the Expansion Date, exceed Two Hundred Million Dollars ($200,000,000), and prevents Tenant from reasonably and economically using the remainder of the Premises or the Improvements, for the same Permitted Use as at the time of the Condemnation (as reasonably determined by Tenant and reasonably approved by Landlord) or (b) of a Condemnation (other than a Temporary Co ndemnation) where the Premises, the

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Improvements or any portion thereof need to be repaired or restored as a result of a Condemnation (other than a Temporary Condemnation), the cost of such repair or restoration exceeds ten percent (10%) of the then curren t fair market value of all of the Premises and Improvements, the amount that Tenant (as distinct from the Permitted Lender) has received as part of the Leasehold Award from the Condemnation (less any amount that Tenant is required to pay to the Permitted Lender) is fifty percent (50%) or less of the cost of such repair or restoration, and the Loan Documents do not require Permitted Lender to contribute the Leasehold Award received from the Condemnation toward the repair or restoration, then, provided that (i) each Permitted Lender consents in writing to the termination of the Lease and releases all liens in its favor on the Premises, Improvements, and Tenant’s leasehold interest in this Lease (but not in any Leasehold Award to which such Permitted Lender is entitled pursuant to Section 14.7) (ii) the Hotel Operator consents in writing to the termination of the Hotel Management Agreement; and (iii) with respect to any such Condemnation occurring at a time when the Convention Center Sublease is in effect, as applicable, Tenant has satisfied the Condemnation Special Termination Condition (as defined in the Convention Center Sublease), Tenant may terminate this Lease by delivering to Landlord written notice thereof and this Lease shall then terminate as of the date of such Condemnation. A termination of this Lease pursuant to this Section 14.4 shall act to relieve Tenant from any further liability under this Lease except as to obligations accruing or arising on or prior to such termination or which are otherwise re quired to be performed in connection with such termination or surrender of the Premises and Improvements or which otherwise expressly survive such termination. In the event of such termination, Tenant shall deliver the portion of the Hotel Land and the Par king Premises that has not been Condemned to Landlord in a Buildable Condition and in accordance with any other condition required for the surrender of the Hotel Land and the Parking Premises under this Lease, and, prior to the Expansion Date, if the Conve ntion Center has not been destroyed, demolished or Condemned, Tenant shall satisfy Tenant’s Standalone Convention Center Obligations.

14.5 Partial Condemnation.

If only a portion of the Premises or the Improvements is subject to Condemnation and this Lease is not terminated pursuant to Section 14.4 above, then this Lease shall continue in full force and effect upon the same terms and conditions as set forth herein, and the Minimum Annual Rent shall be reduced in proportion to the reduction in the value of the Premises and/or the Improvements, as applicable, after the Condemnation as compared to the value of the Premises and/or the Improvements, as applicable, immediately prior to the Condemnation (as reasonably determined by Landlord and approved by Tenant in its reasonable discretion).

14.6 Temporary Condemnation.

If the Premises, the Improvements or any portion thereof is subject to a Temporary Condemnation, the n this Lease shall continue in full force and effect and there shall be no adjustment or abatement in Rent during the term of such Temporary Condemnation. Any portion of an award, settlement or other compensation or damages which may be given for such Temporary Condemnation attributable to the Term shall be the property of Tenant and any portion attributable to any period following the expiration of the Term shall be the property of Landlord.

As used herein, a “Temporary Condemnation” shall mean any taking which is not intended by the condemning authority to be permanent at the time such Condemnation initially occurs.

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14.7 Award.

14.7.1 Leasehold Award.

In the event of any Condemnation of all or any portion of the Premises or all or any portion of the Improvements (oth er than a Temporary Condemnation), (a) prior to the Expansion Date, Landlord shall be entitled to any and all awards and/or settlements or other compensation or damages which may be given for (i) any “bonus value” respecting this Lease (which is the excess value of the leasehold arising from the fact that the scheduled rent is less than the market rent for the Premises (but not the Improvements)), and (ii) the land (and water, if applicable) comprising the Premises; and (b) from and after the Expansion Date , (i) Tenant shall be entitled to any and all awards and/or settlements or other compensation or damages which may be given for any “bonus value” respecting this Lease (which is the excess value of the leasehold arising from the fact that the scheduled rent is less than the market rent for the Premises), and (ii) Landlord shall be entitled to any and all awards and/or settlements or other compensation or damages which may be given for the land (and water, if applicable) comprising the Premises. Any and all other awards and/or settlements or other compensation or damages (collectively, “Leasehold Award”) for the Improvements and the leasehold estate created by this Lease (excluding any bonus value thereof) shall be paid as follows:
(a) Provided this Lease is not terminated pursuant to Section 14.4(a) above, that portion of the Leasehold Award determined by Landlord to be reasonably necessary to repair and restore the Premises and/or Improvements shall be payable in trust to the Permitted Mortgage Lender with an outstanding Permitted Lease Financing Encumbrance that is still outstanding, if any, and shall be disbursed for the payment of the costs of repairing and restoring the remaining portion of the Premises and/or Improvements to substantially its value, condition and character prior to such Condemnation to the extent the same may be practicable. If there is no Permitted Mortgage Lender or if there is but the Permitted Mortgage Lender declines to act as a trustee for the disbursement of funds as provided above, then such Leasehold Award shall be payable in trust to a bank or trust company doing business in the County of San Diego California agreed upon by t he Parties, or if the Parties fail to agree, to Bank of America, N.A., or its successor, and shall be disbursed by such trustee as provided above. If the Permitted Mortgage Lender is the trustee for disbursement, then the Permitted Mortgage Lender may disb urse the progress payments in accordance with its normal loan disbursement procedures ( e.g., upon receipt of appropriate mechanics’ lien releases, and invoices) so long as such disbursement procedures are reasonably acceptable to Landlord and ensure that t he Leasehold Award is applied to the costs of repairing and restoring the remaining portion of the Premises and Improvements.
(b) If this Lease is terminated pursuant to Section 14.4(a), or if there are excess proceeds available after completion of the repair and restoration of the remaining portion of the Premises and the Improvements as provided above, then any portion of the Leasehold Award not used for the repair and restoration of the remaining portion of the Premises and the Improvements pursuant to clause (a) above, or used to place the Premises and Improvements in the condition required for the surrender of same to Landlord, shall be paid as follows (1) first, to any Permitted Mortgage Lender, to repay any indebtedness to the extent required under the Loan Documents; (2) second, to the Landlord for the loss to the value of the Premises (to the extent Landlord has not theretofore been compensated for the loss to the Premises); and (3) third, to the Tenant. (c) If there is any Permitted Lender that has a Permitted Financing Encumbrance outstanding, any portion of the Leasehold Award relating to the Improvements and

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not used as described in clauses (a) and (b) and which is payable to Tenant pursuant to clause (b) shall be paid to the Permitted Lender that has the highest priority (i.e., most senior) lien, to be applied against the indebtedness that is secured by its Permitted Financing Encumbrance to the extent such payment is required to be made by Tenant pursuant to the terms of the Permitted Financing Encumbrance held by the Permitted Lender.
(d) Any remaining portion of the Leasehold Award relating to Improvements and not used as described in clauses (a), (b) and (c) shall be paid to Tenant. Notwithstanding the foregoing sentence, with respect to any Leasehold Award received in connection with any Condemnation for street widening or the installation of utilities, public sidewalks or walkways which occurs at any time following the Commencement Date, and provided such Condemnation does not result in material physical damage to then existing buildings or driveways, parkway access or access ways serving the Improvements and does not impair the use or operation of the Improvements, Landlord shall be entitled to receive, in addition to any award otherwise payable to Landlord pursuant to this Article 14, all of that portion of the Leasehold Award that would otherwise be distributed to Tenant pursuant to this clause (d).

14.7.2 Claims by Tenant.

Nothing in this Article 14 shall be construed to preclude Tenant from prosecuting any claim directly against the condemning authority (but only in a manner consistent with this Article 14), but not against Landlord (unless Landlord is the condemning entity), if such claim does not diminish or otherwise adversely affect the Leasehold Award or Landlord’s rights herein. Tenant shall be entitled to any award allocated by a court of competent jurisdiction to Tenant’s personal property.

14.8 Associated Loss.

Notwithstanding anything in this Lease to the contrary, in the event of a Condemnation of the Convention Center, Tenant shall be entitled to any and all awards and/or settlements or other compensation or damages which may be given for any resulting loss in value to the Resort Hotel.

15. MAINTENANCE AND REPAIR

15.1 Maintenance and Repair.

At any time when any Hotel Management Agreement is in effect, Tenant shall, at its sole cost and expense, and at all times during the Term, comply with the maintenance and repair standards for the Premises and the Improvements set forth in such Hotel Management Agreement. Tenant, at its sole cost and expense, shall also maintain, repair, replace and rebuild the Premises and the Improvements as necessary to keep the Non-Parking Improvements in First-Class Condition and the Parking Improvements in good condition and repair, except, in each case, for reasonable wear and tear. Without limitation of the foregoing, Tenant shall perform all maintenance and make all repairs and replacements, ordinary as well as extraordinary, foreseen or unforeseen, structural or otherwise, which may be necessary or required so that at all times the Premises and the Improvements (together will all equipment, trade fixtures, mechanical and utility systems, paving, landscaping, installations and appurtenances) shall be in compliance with the Hotel Management Agreement, and in First -Class Condition in the case of the Non -Parking Improvements, and in good condition and repair in the case of the Parking I mprovements, except, in each case, for reasonable wear and tear. Tenant acknowledges and agrees that, during the Term, in order to adhere to these maintenance and repair standards, certain repairs and replacements which are

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accounted for as capital expendi tures shall be required and are bargained for by Landlord as consideration for this Lease, and that regular capital reinvestment in the Premises and the Improvements should therefore be anticipated by Tenant and that capital reinvestment for such purposes does not qualify Tenant for any concessions, subsidies, or other modifications of the Lease during the Term. Tenant also acknowledges that capital expenditures related to maintenance and repair so as to keep or return the Non -Parking Improvements to First -Class Condition and the Parking Improvements to good condition and repair are not to be equated with capital expenditures for a major refurbishment or renovation representing an upgrade to the appearance and/or operation of the Improvements which extends i ts useful life and repositions the Improvements in a manner likely to generate more Revenue. Further, Tenant shall provide containers for the collection of trash and garbage outside the Improvements, which may require Landlord’s approval, and keep the Premises and the Improvements in a clean, safe, healthy and sanitary condition, free and clear of rubbish, litter, and any fire hazards. Tenant’s maintenance shall include, without limitation, all preventive maintenance, painting and replacements necessary to maintain and preserve the Premises and Improvements, and compliance with the Best Management Practices (“ BMPs”) set forth in the Jurisdictional Runoff Management Program incorporated by reference in Article 10 of the San Diego Unified Port District Code.

Except in the event where Tenant may need to undertake work to protect life, public health and safety, and property, or to maintain public services and private services, which constitutes an “emergency development” in the District’s CDP Regulations, and shall be processed by Landlord in accordance with the “Emergency Developments” section of said CDP Regulations, prior to Tenant performing any non -routine repair or replacement (which shall mean any repair or replacement that does not occur with an expected or known frequency in the normal course of business) to the exterior, the structure or building systems or which will substantially interfere with the typical operation of the Improvements, or affect the portions of the Improvements that are generally accessible to the public (if any), such as the lobby area of the Resort Hotel, Tenant shall submit to Landlord plans and specifications with respect to such repair or replacement, as applicable, and receive Landlord’s written approval thereof, pursuant to the procedures set forth in Article 6, as if such repair or replacement, as applicable, were an Alteration; provided, however, that Tenant shall not be required to do so if Tenant would not be required to obtain Landlord’s approval if such repair or replacemen t, as applicable, were an Alteration. If such approval is administrative, Landlord shall not unreasonably reject any plans or specifications with respect to any repair or replacement, as applicable, that, if not performed by Tenant, would result in an Event of Default. If such approval is not administrative, Tenant shall cooperate in good faith with Landlord to prepare plans or specifications with respect to any repair or replacement to be presented to the BPC. If the BPC withholds its consent and does not give Tenant the opportunity to revise the plans or specifications for reconsideration by the BPC, then Tenant may challenge such decision of the BPC through Judicial Reference in accordance with Section 10.4.3(c).

Tenant’s obligation to repair or replace s hall be suspended during the pendency of any Judicial Reference pursuant to this Section 15.1.

By entering into this Lease, Tenant expressly waives all rights to make repairs at the expense of Landlord, as provided in Section 1942 of the California Civil Code, and all rights provided by Section 1941 of the California Civil Code.

All amounts expended by Tenant for maintenance and repair of the Convention Center pursuant to this Article 15 shall be treated as supplemental Rent for all purposes of this Lease.

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In the event of conflict between the terms of the Hotel Management Agreement and the terms of this Section 15.1 with respect to Tenant’s obligations hereunder, the terms of this Section 15.1 shall control.

15.2 Condition in Compliance with Laws.

Tenant, at its sole cost and expense, shall keep the Premises and the Improvements (together with all equipment, trade fixtures, mechanical and utility systems, paving, installations and appurtenances) in full compliance with all Laws and the requirements of any insure r providing insurance for the Premises and the Improvements or any part thereof.

15.3 Inspection Report.

Within sixty (60) days after notice from Landlord to Tenant requesting an Inspection Report, which notice shall not be given more than once in any five- (5-) year period (unless Landlord determines that Tenant may be in default of its obligations under this Article 15, in which event such time limitation shall not apply), Tenant, at Tenant’s sole expense, shall provide to Landlord a detailed inspection report listing any known defects, required repairs or deferred maintenance items in the Premises and the Improvements and recommendations for work to be performed to ensure that the condition of the Premises and the Improvements is in full compliance with this Lease, including the standard of condition set forth in Section 15.1 (the “Inspection Report”). Notwithstanding the foregoing, if Landlord requests an Inspection Report more than once in any Rental Period, then Landlord shall pay Tenant for any reasonable costs incurred by Tenant in connection with such Inspection Report unless such Inspection Report demonstrates that Tenant is in default of its obligations under this Article 15. The Inspection Report shall be (i) prepared by an unrelated third- party inspector licensed in the State of California selected by Tenant, (ii) certified to Landlord, to the best knowledge of the Person conducting the inspection, as complete and accurate, and (iii) in a form reasonably acceptable to Landlord. Without limitation of Tenant’s obligations or Landlord’s remedies hereunder, Tenant shall commence work to comply with the recommendations set forth in such Inspection Report within thirty (30) days of receipt of same and diligently pursue such work to completion within not later than one hundred eighty (180) days of receipt of such Inspection Report. As a condition precedent to Tenant submitting the Redevelopment Plan Package, notwithstanding that Landlord may not have requested an Inspection Report, Tenant shall deliver an Inspection Report not earlier than six (6) months prior to the submission of the Redevelopment Plan Package and perform any work recommended therein prior to submitting the Redevelopment Plan Package.

Notwithstanding the requirement in Section 15.3 that Tenant provide Landlord with an Inspection Report within sixty (60) days after notice from Landlord, so long as there is no Event of Default and the Premises and the Improvements are operated pursuant to a Hotel Management Agreement, and with respect to the Non-Parking Improvements under an Acceptable Brand, and such Hotel Management Agreement requires Tenant to maintain and repair the Premises and Improvements in accordance with such Hotel Management Agreement and requires there to be established a reserve for repair and maintenance of the Premises and Improvements, including without limitation, the furniture, trade fixtures and equipment, and such repair and maintenance occur in accordance with the requirements of such Hotel Management Agreement and Sections 15.1 and 15.2, then the foregoing Inspection Reports shall not be required; provided, however, that the delivery of an Inspection Report and perfo rmance of the work recommended therein shall continue to be a condition precedent to Tenant’s submission of the Redevelopment Plan Package.

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15.4 Hotel Management Agreement.

15.4.1 Consent Required.

A Hotel Management Agreement shall be subject to prior written consen t of Landlord (which consent shall not be unreasonably withheld, conditioned or delayed), except the Hotel Management Agreement that is in effect as of the Commencement Date, which Landlord reviewed and consented to prior to the Commencement Date. Notwiths tanding anything to the contrary herein or in any Contemporaneous Agreement, Hotel Operator shall have the right to subcontract any of its responsibilities to be performed by it under any Hotel Management Agreement to any third party without the prior consent of Landlord; provided that Hotel Operator shall not be relieved of its obligations pursuant to such Hotel Management Agreement as a result of such subcontracting.

15.4.2 Request for Consent.

If a Hotel Management Agreement is proposed for which Landlord cons ent is required, Tenant shall notify Landlord in writing, which notice (the “ Hotel Management Agreement Notice”) shall include (a) the proposed effective date of the Hotel Management Agreement, which shall not be more than six (6) months after the later of : (i) the date of delivery of the Hotel Management Agreement Notice containing all of the information required in clauses (b) and (c) and (ii) Landlord’s review of the original unredacted version of the proposed Hotel Management Agreement at Landlord’s office at 3165 Pacific Highway, San Diego, California, (b) a copy of the proposed Hotel Management Agreement with all proprietary information contained therein redacted together with an affidavit from an authorized representative of Tenant certifying under penalty of perjury that the redacted version of the Hotel Management Agreement is a true, correct and complete copy of the final proposed Hotel Management Agreement except for the redactions and (c) such other information as Landlord may reasonably require. Any inaccuracy in the affidavit from the authorized representative of Tenant, as determined by Landlord in its reasonable discretion, may constitute an Event of Default as and to the extent set forth in Section 12.1.5. Not later than thirty (30) days after receipt of a Hotel Management Agreement Notice, Landlord shall notify Tenant (1) that Landlord has all information that it requires to evaluate the proposed Hotel Management Agreement or (2) of any additional information that Landlord reasonably requires to evaluate the proposed Hotel Management Agreement, as applicable. Landlord shall notify Tenant that it consents or does not consent to the proposed Hotel Management Agreement (including, if applicable, a reasonably detailed explanation for Landlord withholding its consent) not later than sixty (60) days after Landlord has received all information that Landlord reasonably requested to evaluate the proposed Hotel Management Agreement. Any Hotel Management Agreement executed without Landlord’s prior written consent shall, at Landlord’s option, be null, void and of no effect and not binding on Landlord. Tenant shall pay to Landlord Landlord’s standard applicable fee set by BPC Policy No. 106 for the review of subleases in connection with Landlord reviewing eac h Hotel Management Agreement pursuant to the Reimbursement Procedure, regardless of whether the Hotel Management Agreement is consummated or Landlord’s consent thereto is granted. Any Hotel Management Agreement shall be subject to the terms and provisions of this Lease.

15.4.3 Consent Factors.

If Landlord consents to any Hotel Management Agreement, Tenant may within six (6) months after the date that Landlord consents to the Hotel Management Agreement enter into such Hotel Management Agreement; provided that, if there is any material change to the financial

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condition of the proposed Hotel Operator or any other material change to any of the proposed terms or conditions of the Hotel Management Agreement as reviewed by Landlord in person or as set forth or attached to the Hotel Management Agreement Notice, then Tenant shall again submit a Hotel Management Agreement Notice to Landlord for its approval and take all other action required under this Section 15.4.

Notwithstanding anything to the contrary herein, Landlord shall grant consent that is required hereunder to any Hotel Management Agreement if all of the following conditions and requirements are satisfied in Landlord’s reasonable discretion:
(a) Completion of Initial Project Improvements and the Convention Center. The effective date of the proposed Hotel Management Agreement is on or after the date that is the third (3rd) anniversary of the latest of: (i) the date that the Resort Hotel is open for business, (ii) the date that the Convention Center is open for busine ss and (iii) the date the Parking Improvements are open for business; provided, however, if there is no Hotel Management Agreement in effect when Tenant seeks the consent of the Landlord for a new Hotel Management Agreement under Section 15.4 and the Tenant is a Permitted Lender or SPE Lender Affiliate, then the effective date of the proposed Hotel Management Agreement may be on or after the termination date of the terminated Hotel Management Agreement. (b) Consistent Use. The Hotel Operator’s proposed use of t he Premises and the Improvements under the proposed Hotel Management Agreement will be for the Permitted Use only or such proposed use as has been approved by the Landlord or BPC, as applicable. (c) Reputation. The Hotel Operator is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct or association with criminal elements – “reputable” shall not mean “prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference) a nd has no pattern of, or reputation for, either discriminatory employment practices which violate any Laws or non -compliance with Environmental Laws.
(d) Financial Resources. The Hotel Operator has sufficient financial resources for the Hotel Operator to perform its obligations under the Hotel Management Agreement and this Lease, as applicable.
(e) Event of Default. At the time of the Hotel Management Agreement Notice and at the time of the execution of the Hotel Management Agreement, there is no Event of Default. (f) [Intentionally Omitted.]
(g) Term. The proposed Hotel Management Agreement will be for no longer than the remainder of the Term.
(h) Sufficient Experience. The Hotel Operator has at least ten (10) years of experience (directly or through one or more of its subsidiaries) managing or operating hotels that have at least five hundred (500) Rooms and meeting space comparable to the Meeting Space; provided that, as long as Marriott or any of its Affiliates remains or will be the Hotel Operator hereunder, the requirements of this clause (h) will be deemed to have been satisfied.

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15.4.4 Effect of Hotel Management Agreement.

If Landlord consents to a Hotel Management Agreement, then (a) the terms and conditions of this Lease shall in no way be deemed to have been waived or modified; (b) such consent shall not be deemed consent to any further Hotel Management Agreement by either Tenant or a Hotel Operator or any amendments to the Hotel Management Agreement; (c) Landlord shall have the right to review the original unredacted executed version of the Hotel Management Agreement at Landlord’s office at 3165 Pacific Highway, San Diego, California at least ten (10) days prior to the delivery of the executed version of the Hotel Management Agreement to the Hotel Operator and shall have five (5) Business Days after completing its review to elect to withdraw its consent to the Hotel Management Agreement by delivering written notice to Tenant which specifies in reasonable detail the reasons for such withdrawal if (i) such executed version of th e Hotel Management Agreement is materially different from the draft of the Hotel Management Agreement that Landlord reviewed previously and (ii) such material differences would provide a basis for Landlord not to have provided consent. If Landlord does not withdraw its consent to the Hotel Management Agreement, then Tenant shall deliver to Landlord, within ten (10) days after Tenant’s delivery of the executed version of the Hotel Management Agreement to the Hotel Operator, an affidavit from an authorized representative of Tenant which attaches the redacted version of the fully executed Hotel Management Agreement delivered to Hotel Operator and certifies under penalty of perjury that (i) the redacted version of the Hotel Management Agreement attached to the affidavit is a true, correct and complete copy of the Hotel Management Agreement executed by Tenant and the new Hotel Operator except for any redactions and no additions, deletions, or revisions were made to the unredacted Hotel Management Agreement reviewed by Landlord. Any inaccuracy in the affidavit, as determined by Landlord in its reasonable discretion, may constitute an Event of Default as and to the extent set forth in Section 12.1.5.

15.4.5 Conditions.

In the event Landlord consents to any Hotel Management Agreement as required hereunder, then at Landlord’s election said consent shall be conditioned upon such Hotel Operator executing a document reasonably acceptable to Landlord acknowledging that all rights of the Hotel Operator are subject to all terms and conditions of this Lease as the same relate to the Premises or Improvements subject to the Hotel Management Agreement.

15.4.6 Non-Disturbance Agreement.

Prior to or on the Commencement Date and prior to or concurrently with the execution of each new Hotel Management Agreement, Landlord shall enter into a non-disturbance agreement with Hotel Operator substantially in the form attached hereto as Exhibit “R” and if the Hotel Operator is not Marriott based on term s reasonably acceptable to both Landlord and the Hotel Operator at that time.

15.5 Performance by Landlord.

15.5.1 Inspection.

Landlord shall have the right but not an obligation to enter, view, inspect and determine the condition of, and protect its interests in the Premises and Improvements (other than Rooms that are occupied by guests), during normal business hours and upon a three (3) Business Days’ prior notice to Tenant (except in the case of an emergency in which case no prior notice shall be required but Landlord shall notify Tenant and, prior to the Completion of the Resort Hotel, Tenant’s

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Risk Construction Manager thereof by phone prior to entering the Premises) and Landlord shall:
(a) comply with all applicable security and safety procedures of Tenant of whic h Tenant informs Landlord in writing and with which Landlord can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with Tenant’s operation and use of the Premises and the Improvements (and, if the Convention Center Land is not part of the Premises and the Convention Center is not part of the Improvements, the Convention Center Land and the Convention Center), while on the Premises and at the Improvements. If Landlord determines that the Premises and/or the Improvements are not in the condition required pursuant to the terms of this Lease, Landlord shall deliver written notice to Tenant detailing the items to be corrected and Tenant shall commence the necessary maintenance, alteration, repair, replacement and rebuilding work necessary to remedy the issues set forth in Landlord’s notice within ten (10) days after written notice from Landlord and diligently pursue such work to completion.

15.5.2 Landlord Repair Rights.

At Landlord’s option, if Tenant fails to commence to perform the necessary maintenance, alteration, repair, replacement or rebuilding work within ten (10) days of Landlord’s written demand therefor (except in the event of an emergency in which case no such notice shall be required) in accordance with this Lease, then Landlord may, but shall not be required to, perform such maintenance, alteration, repair, replacement or rebuilding work, and Tenant shall pay Landlord the actual cost thereof, together with interest thereon at the Default Rate from the date due until paid and an administrative fee in the amount of ten percent (10%) of the cost of such work, pursuant to the Reimbursement Procedure. Such payments shall constitute supplemental Rent under this Lease and shall be paid monthly as billed by Landlord or in a lump sum payment, as directed by Landlord. If requested by Landlord, Tenant shall pay to Landlord the entire estimated cost of such work in advance, but such payment shall not relieve Tenant from the obligation to pay any excess costs that may be actually incurred by Landlord. Landlord shall have no obligation to repair or maintain any portion of the Premises. The rights of Landlord under this Section 15.5.2 shall not create any obligations or increase any obligations of Landlord set forth elsewhere in this Lease, nor shall the exercise of such rights, or the failure to exercise same, limit any other rights or remedies of Landlord. Landlord shall have the right to enter the portions of the Premises where the necessary maintenance, alteration, repair, replac ement or rebuilding work, as applicable, is to be performed or is being performed in accordance with this Section 15.5.2 during normal business hours and upon a three (3) Business Days’ prior notice to Tenant (except in the case of an emergency in which ca se no prior notice shall be required but Landlord shall notify Tenant and, prior to the Completion of the Resort Hotel, Tenant’s Risk Construction Manager thereof by phone prior to entering the Premises) and Landlord shall: (a) comply with all applicable security and safety procedures of Tenant of which Tenant informs Landlord in writing and with which Landlord can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with Tenant’s operation and use of the Premises and the Improvements (and, if the Convention Center Land is not part of the Premises and the Convention Center is not part of the Improvements, the Convention Center Land and the Convention Center), while on the Premises and at the Improvements.

15.6 Records.

Tenant shall, during the Term and, with respect to each record, for a period of seven (7) years from the date the record was created (or such longer period as Tenant may decide in its sole discretion), use commercially reasonable efforts to keep, or cause to be kept, accurate and complete records of maintenance conducted at the Premises and the Improvements. The records must be supported by source documents of original entry such as invoices, receipts, work orders,

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construction contracts, service contracts or other pertinent supporting documents. All of Tenant’s maintenance records relating to the Premises and the Improvements shall be kept either at the Premises or, if the Convention Center Land is not part of the Premises, the Convention Center Land, or at su ch other location in San Diego County, California as are acceptable to Landlord.

Landlord shall have the right at any time to examine such maintenance records without restriction and, at Landlord’s request, Tenant shall provide Landlord with copies thereof at Tenant’s expense for the purpose of determining the accuracy thereof. After the seven (7) year period has expired for a certain record of maintenance, Tenant shall deliver the original record of maintenance to Landlord at the address set forth in Section 1.11 or such other location designated by Landlord in writing, which may include the main offices of the City; provided, however, that Tenant may elect to deliver all of the records of maintenance subject to this Section 15.6 that expire in a given Lease Year at one time, in one delivery, within twelve (12) months after the end of the applicable Lease Year.

16. TAXES AND PROPERTY EXPENSES; REPORTING

16.1 Taxes.

This Lease may result in a taxable possessory interest and be subject to the payment of property and other taxes. Tenant shall pay, prior to delinquency, all Tax Expenses attributable to any time period during the Term now or hereafter assessed against, or relating in any way to the Tenant, this Lease, the Premises, the Improvements, or the use or occupanc y thereof by Tenant, Hotel Operator and Tenant Parties, to the extent such Tax Expenses are imposed on the Tenant Parties, Hotel Operator or Landlord. Tenant shall promptly following written request therefor from Landlord, provide Landlord with evidence of the payment of Tax Expenses. “Tax Expenses” shall include, without limitation, all federal, state, county, or local governmental or municipal taxes, fees, assessments, charges or other impositions of every kind and nature, whether general, special, ordina ry or extraordinary (including, without limitation, real estate taxes, possessory interest taxes, use taxes, general and special assessments, leasehold taxes or taxes based upon Tenant’s receipt of rent, including gross receipts or sales taxes applicable t o Tenant’s receipt of rent, personal property taxes imposed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used by Tenant in connection with the Premises and the Improvements) and any taxes and assessments relating to the business or other activities of Tenant upon or in connection with the Premises and the Improvements. Tax Expenses also shall include, without limitation:
(a) Any tax on Landlord’s receipt of Rent, right to Rent or other revenue from the Premises and the Improvements other than any tax on Landlord’s income; (b) Any assessment, tax, fee, levy or charge in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously include d within the definition of real property tax, possessory interest tax or use tax or other Tax Expenses, and any assessments, taxes, fees, levies and charges that may be imposed by a Governmental Authority for services such as fire protection, street, sidew alk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants. It is the intention of Tenant and Landlord that all such new and increased assessments, taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses for purposes of this Lease; and (c) Any assessment, tax, fee, levy, or charge, which is levied or assessed based upon the area of the Premise s or the Improvements or the Rent payable hereunder,

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including, without limitation, any gross receipts tax upon or with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises, the Improvements, or any portion thereof.

Notwithstanding anything to the contrary in this Lease, (i) Tax Expenses shall not include any taxes based on income or profit that are imposed upon Tenant, Landlord, the direct or indirect owners of Tenant, Hotel Operator or the Affiliates of Hotel Operator, whether based upon the taxable income or profit generated by Tenant, Landlord, Hotel Operator or otherwise and (ii) the taxes described in clause (i) shall not be otherwise recoverable by Landlord pursuant to this Lease (including but not limited to Article 19 hereof).

Tenant acknowledges that the City has formed the Bayfront Project Special Tax Financing District of the City of Chula Vista pursuant to Chapter 3.61 of the Chula Vista Municipal Code (the “Special Tax District”) and that Tenant’s leasehold or other possessory interest in the Premises and the operation of the Resort Hotel thereon shall be subject to levy of a special tax thereunder in the amounts and at the times specified in the rate and method of apportionment for the Special Tax District that is in effect as of the Commencement Date or as amended with Tenant’s consent.

Any taxes imposed by the Special Tax District, as it may be amended from time to time in accordance with the terms of this Lease, shall constitute Tax Expenses under the terms of Section

16.1(c) of this Lease. Tenant agrees to remit, or to cause the Hotel Operator to remit, such special taxes when and in the amounts due.

Tenant agrees to meet and confer with the City and Landlord reg arding possible terms for its support of any City or Landlord proposal to amend any terms of the existing Special Tax District.

Tenant also agrees to meet and confer with the City or Landlord should either desire to establish a new special tax district in the future.

16.2 Reporting and Tax Claims.
(a) Landlord and Tenant acknowledge and agree that they have delivered this Lease with the understanding that (i) during the Term, the Private Improvements are owned by Tenant, (ii) from and after the Expansion Date, the Convention Center is owned by Landlord, (iii) Tenant has only the right to the possession and use of the Convention Center from and after the Expansion Date upon the terms and conditions of this Lease, (iv) the Lease is a “true lease” for all applicable legal and federal state and local tax purposes and is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Lease are those of a true lease, (v) all amounts paid by Tenant pursuant to Article 5, and with respect to the Convention Center pursuant to Article 7 and Article 15, are Rent for all applicable tax purposes, subject to Section 5.9, (vi) this Lease has been entered into by each of Landlord and Tenant in reliance upon the mutual covenants, conditions and agreements contained herein; and (vii) none of the covenants, conditions or agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership between Landlord and Tenant, to make them joint venturers, or to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord. (b) Landlord and Tenant agree not to (i) file or submit any tax return or other document with any Governmental Authority; (ii) enter into any contract with any Person; or (iii) release any financial statements, in each case, that takes a position other than that this Lease is a “true lease” for federal, state and local tax purposes with Landlord as owner of the Convention Center from and after the Expansion Date and Tenant as the tenant of the Convention Center from and after the Expansion Date until the end of the Term unless otherwise required by a final

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“determination” within the meaning of Section 1313 of the Code. The Parties agree that the foregoing includes their agreement that (x) Tenant will not claim depreciation deductions under Sections 167 or 168 of the Code with respect to the Convention Center and (y) Tenant will report all payments described in clause (a)(v) above as rent expense under Section 162 of the Code, subject to Section 5.9.
(c) Each Party agrees to (A) promptly notify the other Party of any audit, examination or other proceeding with respect to any tax, tax return (includin g any schedule attached thereto) or information reporting related to this Lease, the Improvements, or the Project, including without limitation, the agreed positions described in Sections 16.2(a) or (b) (collectively, the “Tax Claims”, and individually, a “Tax Claim”) and (B) reasonably cooperate with the other Party in connection with any Tax Claim. In the event that any Tax Claim is asserted against Landlord, the City or the JEPA, Tenant agrees to indemnify and defend the Landlord Parties, at Tenant’s sole cost and expense, and hold the Landlord Parties harmless from any and all Tax Expenses and documented Related Costs arising in connection with such Tax Claim; provided, that the Related Costs with respect to such Tax Claim shall be determined in accordance with the following principles:
(i) Related Costs arising from the work of an employee of Landlord during a particular calendar year shall not exceed the product of (x) the salary of such employee and (y) the percentage of such employee’s time in such year w hich such employee was solely engaged on the Tax Claim (to be substantiated by time records in form and substance reasonably acceptable to Tenant), plus, for the avoidance of doubt, any reasonable, out-of-pocket expenses incurred by such employee with respect to the Tax Claim in such calendar year. For example, if an employee of Landlord earns $160,000, spends 25% of her time in the calendar year on the Tax Claim and incurs $100 of reasonable, out-of-pocket expenses, Landlord would be entitled to no more than $40,100 of Related Costs with respect to the work of such employee during such calendar year;
(ii) Landlord shall not engage any outside counsel with respect to the Tax Claim without the prior written consent of Tenant (not to be unreasonably withheld, conditioned or delayed; provided, that Landlord and Tenant acknowledge and agree that consent from Tenant shall not be required if the counsel selected by Landlord is Orrick Herrington & Sutcliffe LLP); for the avoidance of doubt, there shall be no cap on the Related Costs incurred by outside counsel approved or deemed approved by Tenant and such Related Costs shall include all legal fees and out of pocket expenses; and
(iii) in the event that Landlord engages outside counsel, then, notwithstanding sub-clause (i) above, Landlord Parties shall not be entitled to recovery of Related Costs with respect to the work performed by employees of Landlord except to the extent such work is limited to (x) supervising such outside counsel and (y) such other customary work performed by in-house counsel in connection with audits, examinations or other proceedings of this type where outside counsel is engaged; provided that Landlord shall use reasonable efforts to avoid duplicating work performed by its outside counsel. For the avoidan ce of doubt, “supervising such outside counsel” shall include, without limitation, review and revision of any documents prepared by outside counsel, preparation of memoranda or other similar correspondence to be provided to the BPC or other executives of Landlord, correspondence with General Counsel or other executive members regarding status of matter, review of billing matters, negotiation of contract with outside counsel, and any other activities that would be reasonably performed by the Office of the General Counsel in fulfillment of its fiduciary duties to Landlord.

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This Section 16.2(c) shall survive any termination or expiration of this Lease. Notwithstanding anything to the contrary herein, (i) this Section 16.2(c) shall not apply to, and Tenant shall have no responsibility with respect to, any income taxes imposed upon Landlord (for the avoidance of doubt, such exclusion shall not apply to the extent such Tax Claim relates to withholding or information reporting with respect to the taxable income of t he Tenant Parties), and (ii) Section

4.6, and not this Section 16.2, shall govern all Tax Claims with respect to Property Tax Expenses.

16.3 Property Expenses.

Without limitation of Tenant’s other obligations under this Lease, Tenant agrees to pay, on or before the date due, all Property Expenses. As used herein, “Property Expenses” shall include, without limitation, all costs and expenses of any nature incurred or payable, or arising in connection with, the ownership, management, maintenance, construction, repair, replacement, restoration or operation of the Premises and/or the Improvements, including, without limitation, any amounts paid for: (i) the cost of supplying any utilities, the cost of operating, maintaining, repairing, renovating and managing any utility systems, mechanical systems, communications systems, sanitary and storm drainage systems, and the cost of supplies and equipment and maintenance and service contracts in connection t herewith; (ii) the cost of licenses, certificates, permits and inspections; (iii) the cost of any insurance carried or required to be carried by Tenant pursuant to this Lease and the Hotel Management Agreement with respect to the Premises and/or the Improv ements including without limitation any premiums and deductibles; (iv) the cost of landscaping, supplies, tools, equipment and materials, and all fees, charges and other costs incurred in connection with the management, operation, repair and maintenance of the Premises and/or the Improvements; (v) payments under any easement, license, permit, operating agreement, declaration, or covenant or instrument pertaining to the Hotel Land or the Parking Premises that exist as of the Commencement Date and to the Convention Center Land that exist as of the Expansion Date or that are created or consented to by Tenant; and (vi) the cost of any Improvements, capital repairs, capital alterations, or capital equipment, required by Laws, the Hotel Management Agreement or otherwise required under this Lease. Notwithstanding anything to the contrary in this Lease, Property Expenses shall not include (x) any Property Tax Expenses or (y) any other amount that Landlord has expressly agreed to pay without reimbursement from Tenant under this Lease or any Contemporaneous Agreement or that this Lease or any Contemporaneous Agreement expressly provides that Tenant is not required to pay.

17. EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION AND OFAC

17.1 Nondiscrimination.

Tenant shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include, without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non-job related criteria. In complying with all such Laws, including, without limitation the ADA, Tenant shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between Landlord and Tenant. Each Subtenant and Hotel Operator (with respect to their operations on the Premises only) shall comply with the requirements of this Article 17.

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17.2 Compliance with Employment and Labor Requirements.

Tenant shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor - Management Reporting and Disclosure Act of 1959; the Occupational Safety and Health Act of 1970; the California Constitution; and any other Laws now exi sting or hereinafter enacted, regarding employment and labor practices. Tenant shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize.

17.3 OFAC Compliance.

Tenant represents and warrants as of the Commencement Date that (i) Tenant and, to the best of Tenant’s knowledge, the Persons that directly or indirectly hold an interest in Tenant (collectively, “Tenant’s Members”, each a “Tenant Member”) (other than any such Person that owns an interest in Tenant through publicly traded securities) is not now a Person with whom Landlord or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required t o Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107 -56 (commonly known as the “ USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities (“Prohibited Persons”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or a Person (also, a “Prohibited Person”) with whom a citizen of th e United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (ii) to the best of Tenant’s knowledge, none o f the funds or other assets of Tenant constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons (iii) to the best of Tenant’s knowledge, no Prohibited Person directly or indirectly Controls Tenant, or any of Tenan t’s Members, either individually or in the aggregate and (iv) to the best of Tenant’s knowledge, none of the funds of Tenant have been derived from any unlawful activity with the result that the investment in Tenant is prohibited by Laws or that the Lease is in violation of Laws. Tenant covenants and agrees that at no time during the Term shall a Tenant Member with a twenty percent (20%) or more direct or indirect interest in Tenant be a Prohibited Person. Tenant shall reimburse Landlord for all reasonable costs, including, without limitation, attorneys’ fees, resulting from Tenant’s failure to comply with this Section 17.3. If Tenant receives written notice that any of Tenant’s Members (other than any such Person that holds an interest in Tenant through publicly traded securities) is a Prohibited Person, then Tenant shall promptly use Tenant’s best and commercially reasonable efforts to cause such Person to divest such Person’s interests in Tenant. Notwithstanding any limits set forth in this Section 17.3, any Person who is blocked under the USA Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder.

18. INSURANCE

18.1 Insurance.

Tenant shall maintain the policies of insurance described in this Article 18 in full force and effect throughout the Term.

18.2 Forms of Coverage.

The policies for said insurance shall, as a minimum, provide the following:

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18.2.1 Commercial General Liability.
“Occurrence” form Commercial General Liability covering the Premises and the Improvements, operations and contractual liability assumed by Tenant in this Lease in the amount of not less than as set forth in Section 1.9. Tenant’s indemnification obligations under this Lease shall in no event be limited by the terms or qualifications to the contractual liability coverage under such insurance.

18.2.2 Liquor Liability.

At any time that alcoholic beverages are served or sold on the Premises or Improvements, Liquor Liability coverage in the amount of not less than as set forth in Section 1.9 shall be obtained. If no alcoholic beve rages are served or sold on the Premises, the proof of insurance shall so state.

18.2.3 All Risk and Builder’s Risk Property Coverage.

All Risk of Physical Loss Property Coverage, including debris cleanup provisions, in an amount of not less than (i) the then fu ll 100% replacement value of all Improvements, together with business interruption and extra expense coverage, including a provision for the continuation of Rent payments for twelve (12) months, and coverage for vandalism and malicious mischief, sprinkler leakage, and boiler and machinery; (ii) the maximum probable loss for all Improvements for earthquake coverage; and (iii) if so required by Landlord, the maximum probable loss for all Improvements for flood coverage. Specific limits of insurance for flood and earthquake shall be determined at the joint discretion of Tenant and Landlord. The coverage policies shall be endorsed with a Loss Payee endorsement in favor of the Landlord and the Permitted Mortgage Lender to the extent of each of Landlord and Permitted Mortgage Lender’s interest in the Premises and Improvements. It is agreed that any insurance proceeds in excess of Twenty-Five Thousand Dollars ($25,000) resulting from a loss to the Improvements under said policies shall be payable jointly to Landlord and Permitted Mortgage Lender, and it is understood that said proceeds will be reinvested in rebuilding and/or repairing the damaged Improvements and applied to Tenant’s Rent obligations hereunder, as applicable. However, if there is a Permitted Mortgage Lender, then all such property damage proceeds from such policies of insurance (other than from the business interruption and extra expense coverage) shall be payable in trust, with safeguards reasonably acceptable to Landlord, to such Permitted Mortgage Lender to be disbursed for the repair and restoration of the Improvements to the extent of the Permitted Mortgage Lender’s interest in the Premises and Improvements (or, if there is no Permitted Mortgage Lender, or if there is, but the Permitted Mortgage L ender declines to hold and disburse such proceeds, to a bank or trust company doing business in the County of San Diego agreed upon by the Parties, or if the Parties fail to agree, to Bank of America, N.A., or its successor, which proceeds shall be deposit ed in interest bearing accounts or deposits agreed upon by the Parties, or if the Parties fail to agree, then in the bank’s regular passbook savings account); provided, however, if this Lease terminates in accordance with Section 20.2, then such proceeds s hall be disbursed as provided in Section 20.2. All interest shall be added to the trust funds to be disbursed with the principal. All such proceeds shall be disbursed in progress payments for the payment of the cost of repairing or restoring the property so damaged or destroyed. The specific manner of holding such proceeds and the method and conditions of disbursement shall be subject to the prior written approval of Landlord and Tenant (which approval shall not be unreasonably withheld, conditioned or delayed) so as to ensure the application of such proceeds in compliance with this Lease.

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During the construction of the Tenant’s Initial Project Improvements or any subsequent Alterations or restoration work (unless Tenant’s property insurance will provide cov erage equivalent to the builder’s risk policy required herein for such Alterations or restoration work, including through a construction rider, and Tenant has provided Landlord with evidence of such insurance), builder’s risk completed value form insurance covering the perils insured under the ISO special causes of loss form, including collapse, water damage and transit, covering the total value of work performed and equipment, supplies and materials furnished (with an appropriate limit for soft costs in th e case of construction) and covering the full insurable value (exclusive of the cost of noninsurable items) of all equipment, supplies and materials at any off -site storage location used with respect to the Project or in transit. Specific limits of insuran ce for flood and earthquake shall be determined at the joint discretion of Tenant and Landlord. The damage coverage shall be endorsed with a Loss Payee endorsement in favor of Landlord for damage to the Improvements. The insurance proceeds shall be paid and disbursed in the same manner as set forth in this Section 18.2.3 above.

18.2.4 Worker’s Compensation.

Workers’ compensation insurance covering all persons employed by Tenant at the Premises and Improvements and with respect to whom death or bodily injury claims could be asserted against Tenant, Landlord , the Premises or the Improvements, with statutorily required limits, and employer’s liability insurance with minimum limits of not less than One Million Dollars ($1,000,000) for each accident/employee/disease. Workers’ compensation insurance shall include a waiver of subrogation in favor of Landlord Parties.

18.2.5 Automobile Liability.

If Tenant owns or leases vehicles, business automobile liability insurance covering liability arising out of vehicles used on or about the Premises and Improvements by Tenant or its employees insuring against liability for bodily injury, death and property damage in an amount not less than One Million Dollars ($1,000,000) each accident limit.

18.2.6 UST Insurance Obligations.

In the event underground storage tanks are located on the Pre mises, Tenant is required to comply with all Laws applicable to underground storage tanks, including, without limitation, United States Code, Title 42, Chapter 82, Subchapter IX, 40 Code of Federal Regulations (“CFR”) Part 280, 40 CFR Part 281 and 40 CFR Parts 282.50 – 282.105, and Title 23, Division 3, Chapter 18 of California Code of Regulations, collectively, herein “ UST Law ”. At the time Tenant is required to comply with any provisions of UST Law requiring financial assurance mechanisms, Tenant shall provide Landlord with a certified copy of its Certification of Financial Responsibility.

If Tenant’s program for financial responsibility requires insurance, then Tenant’s policy(ies) shall name the Landlord Parties as additional insureds, and all other terms of Section 18.3 below, shall apply. Should Tenant change its financial assurance mechanisms, Tenant shall immediately provide Landlord with a certified copy of its revised Certification of Financial Responsibility.

18.2.7 Contractor’s Pollution Liability Coverage.

If the Landlord determines, in its sole and absolute discretion, that Tenant performs or contracts for any work which involves a Hazardous Materials Activity or which has the potential to disturb or result in the release of any Hazardous Material, for which there is potential exposure to pollution or Hazardous Materials to Persons or the environment, Tenant shall obtain or cause

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its contractor to obtain Contractor’s Pollution Liability, Pollution Legal Liability and/or Asbestos Pollution Liability and/or Errors & Omissions applicable to the work being performed or the potential release of any Hazardous Material, with limits of $5,000,000 per claim or occurrence and $10,000,000 aggregate per policy period of one year or the limits maintained by or available to the contractor, whichever is higher. The Landlord Parties shall also be named as an additional insured on any such policy. Immediately upon learning of or reasonably suspecting that a release of Hazardous Materials has occurred on, in, under or about the Premises, Tenant shall provide notice of the same to Landlord.

18.3 General Requirements.

18.3.1 Certificates and Other Requirements.

Subject to Section 18.2.2, all required insurance shall be in force the first day of the Term, and shall be maintained continuously in force throughout the remainder of the Term. In addition, the cost of all required insurance shall be borne by Tenant. During the entire Term, Tenant shall provide Landlord with insurance certificates, in t he form customary in the insurance industry, issued by the insurer evidencing the existence of the necessary insurance policies and certified endorsements effecting coverage required by this Article 18 (“Certificates”). The Certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind insurance on its behalf. Notwithstanding the foregoing, Tenant shall request copies of each insurance policy required under this Article 18 and make available to the La ndlord for inspection at the Premises (or, if the Convention Center Land is not part of the Premises, the Convention Center Land) or the Improvements (or, if the Convention Center is part of the Improvements, the Convention Center) any insurance policy it receives.

18.3.2 Additional Insureds and Other Requirements.

All liability insurance policies shall name, or be endorsed to name the Landlord Parties and, prior to the date that is the third (3 rd) anniversary of the Expansion Date, to the City Parties as additional insureds and protect the Landlord Parties and, prior to the date that is the third (3rd) anniversary of the Expansion Date, the City Parties against any legal costs in defending claims.

All liability policies shall provide cross -liability coverage. If Tenant receives notice of any cancellation, modification such that the requirements of this Lease are no longer satisfied, suspension or voiding of an insurance policy required under this Article 18 from the applicable insurance carrier, then Tenant shall provide to Landlord written notice thereof within five (5) Business Days of receipt of such notice. To the extent the policy is blanket endorsed or is specifically endorsed to provide the same, all insurance policies shall also provide that the subject policy shall not be cancelled without thirty (30) days’ prior written notice to Landlord. All insurance policies shall be endorsed to state that Tenant’s insurance is primary and not excess or contributory to any insurance issued in the name of Landlord. Furt her, all insurance companies must have a S&P or AM Best rating of not less than “A-”.

18.3.3 Deductibles.

Any deductibles or self-insured retentions must be declared to both Tenant and Landlord and be consistent with customary deductibles and self -insured retentions, as applicable, for a convention center hotel operating in the United States of America that is comparable with the Resort Hotel; provided, however, if the deductible or self -insured retention is in excess of Two Hundred and Fifty Thousand Dollars ($250,000), Tenant shall provide Landlord with reasonably satisfactory evidence of its ability to meet the deductible or self -insured retention. The evidence

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to be provided to Landlord must include separate, unconsolidated, audited financial statements to be provided annually or upon Landlord’s written request to Tenant. If Tenant does not provide reasonably satisfactory evidence of its ability to meet the deductible or self-insured retention, then Tenant shall have the option to either: (i) reduce or eliminat e such deductible or self -insured retention as respects the Landlord Parties; (ii) procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses; or (iii) agree to self-insure the risk with form of collateral or written agreement acceptable to Landlord.

18.3.4 Updates.

If Landlord reasonably determines that the insurance provisions in this Lease do not constitute Adequate Insurance, then Landlord shall notify Tenant thereof and of the changes to the insurance requirements of this Lease that Landlord reasonably believes are necessary to cause such requirements to constitute Adequate Insurance. The Parties agree that the insurance provisions will be modified to increase Tenant’s insurance obligations to the smallest extent that is consistent with such modified insurance provisions providing for Adequate Insurance. The Parties shall, in the first instance, attempt to agree on any revisions to such insurance provisions so that they provide for Adequate Insurance by entering into good faith negotiations and, if, within seven (7) days from the commencement of such negotiations, the Parties do not reach agreement, then, until the dispute is finally resolved by a final judgment rendered by a court of competent jurisdiction, the then-existing insurance requirements of this Lease shall continue to govern Tenant’s obligations. After the Parties agree on a new insurance program that constitutes Adequate Insurance or such final judgment of a court of competent jurisdiction establishes a new insurance program, such new insurance program shall bind the Parties. Tenant shall deposit new Certificates incorporating such changes within thirty (30) days of the Parties agreeing on such new insurance program. Failure by Tenant to maintain insurance or deposit insurance Certificates as required in this Article 18, where such failure is not cured by Tenant within ten (10) days following written notice thereof to Tenant, shall constitute an Event of Default. Without limitation of the foregoing, Tenant agrees that if Tenant does not take out and maintain such insurance or furnish Landlord with Certificates in a timely manner, Landlord may, but shall not be required to, procure said insurance on Tenant’s behalf and charge Tenant the cost there of, which amount shall be payable by Tenant to Landlord pursuant to the Reimbursement Procedure.

18.3.5 No Limit on Liability.

The procuring of such required policies of insurance shall not be construed to limit Tenant’s liability hereunder, nor to fulfill the in demnification provisions and requirements of this Lease.

18.3.6 Compliance with Insurance Requirements.

Tenant agrees not to keep on the Premises or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Premises. Tenant shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Premises and represents to Landlord that Tenant will confirm that it is in compliance with such requirements at all times.

18.4 Waiver of Subrogation.

Tenant hereby releases the Landlord Parties from any and all liability or responsibility to Tenant or anyone claiming through or under Tenant by way of subrogation or otherwise for any loss or

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damage to the Premises, any Imp rovements, or any of Tenant’s personal property or business caused by or arising from a fire or any other event that is covered by the insurance required to be carried pursuant to this Lease or is actually carried, even if such fire or other event shall ha ve been caused by the fault or negligence of any of the Landlord Parties. Each Subtenant and the Hotel Operator similarly releases the Landlord Parties. Tenant, any Subtenant and the Hotel Operator shall also obtain an endorsement waiving the insurance com pany’s subrogation rights against the Landlord Parties for any insurance policies required by the terms of this Lease.

Tenant, Subtenant and the Hotel Operator shall also defend and indemnify the Landlord Parties in the manner specified in Section 19.1 in the event any Person asserts such a claim.

19. INDEMNITY

19.1 Indemnity.

To the maximum extent allowed by law, Tenant hereby indemnifies and shall defend the Landlord Parties and the City Parties, at Tenant’s sole cost and expense and with counsel reasonably selected by Landlord and reasonably approved by Tenant, and hold the Landlord Parties harmless from any and all claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (i) the performance by Tenant of its obligatio ns under this Lease, (ii) the construction of any Improvements, (iii) any breach by Tenant of its obligations under this Lease, (iv) any accident, injury or damage whatsoever caused to any Person or the property of any Person on or about the Premises or at the Improvements; (v) the use, occupancy, possession or operation of the Premises and the Improvements by any Tenant Party or Hotel Operator, or any acts or omissions of any Tenant Party or Hotel Operator, in each case, except for claims or litigation arising through the sole gross negligence or willful misconduct of any Landlord Party (but subject to Section 18.4). The foregoing indemnity, defense and hold harmless obligations of Tenant shall not include any claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and a ll Related Costs arising directly or indirectly out of (x) the Project’s failure or alleged failure to comply with Section 15 and Exhibit 3 of the Settlement Agreement or any other document implementing or duplicating Section 15 and Exhibit 3 of the Settle ment Agreement, provided that Tenant has satisfied its obligations under Section 4.10 and Exhibit “O” of this Lease, Section 5.8 and Exhibit “O” of the Project Implementation Agreement and any other agreement that may be entered into between Landlord and/or City with Tenant to implement Tenant’s obligations under Section 4.10 and Exhibit “O” of this Lease or Section 5.8 and Exhibit “O” of the Project Implementation Agreement, or (y) any Person’s failure to comply with any applicable provisions of the PWL wi th respect to any work performed by, or on behalf of, any Landlord Party (other than by a Tenant Party or Hotel Operator, or on behalf of a Tenant Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a Tenant Party or Hotel Operator). If Landlord or the City determines in its reasonable discretion that there is a conflict of interest with counsel representing it and Tenant, then Landlord or the City, as applicable, at its election, may conduct such defense with its own counsel independent from Tenant's counsel that is selected by Landlord or the City, as applicable, in its reasonable discretion and is approved by Tenant in its reasonable discretion (and in that event Tenant will select its own counsel) and the reasonable costs incurred by Landlord or the City, as applicable, in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. If Landlord or the City determines in its reasonable discretion that there is a conflict of interest with counsel representing it and the City or Landlord, respectively, then it, at its election, may conduct its own defense with its own counsel that is reasonable

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selected by it, independent from the City's or Landlord's counsel, respectively, which counsel shall be approved by Tenant in its reasonable discretion (and in that event Landlord or the City, as applicable, will select its own counsel) and the reasonable costs incur red by it in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. The terms of this Article 19 shall survive the expiration or earlier termination of this Lease. The foregoing indemnity obligations of Tenant are in addition to, and not in limitation of, any other indemnity obligations of Tenant contained in this Lease or any other agreement between Landlord and Tenant.

Notwithstanding th e foregoing, Section 16.2, and not this Section 19.1, shall apply to the reimbursement of any fees or expenses incurred by Landlord in connection with a Tax Claim.

Notwithstanding anything to the contrary in this Section 19.1, Tenant shall have no obligati on to pay or reimburse any Landlord Party or any City Party for costs incurred by such Landlord Party or such City Party, as applicable, that such Landlord Party or such City Party, as applicable, would have been obligated to pay without any express right to reimbursement by Tenant, or for which such Landlord Party or such City Party, as applicable, would have been obligated to reimburse Tenant, pursuant to this Lease.

20. DAMAGE OR DESTRUCTION

20.1 Casualty.

Subject to Section 20.2, in the event of any damage to o r destruction of any of the Premises or Improvements, whether or not from a risk coverable by the insurance described in Article 18, Tenant shall promptly repair and restore such Premises and Improvements, in a manner reasonably approved in writing by Landlord, so that after such restoration and repair, the Premises and Improvements are at least as valuable and usable as immediately prior to such damage or destruction. Tenant shall deliver to the Permitted Mortgage Lender with a Permitted Lease Financing En cumbrance that has the Improvements as collateral any insurance proceeds it receives for the Premises and the Improvements and Permitted Mortgage Lender shall disburse such insurance proceeds to Tenant, together with any insurance proceeds Permitted Mortga ge Lender receives under Section 18.2.3, as progress payments for the work of repair, restoration or replacement being performed by Tenant; and upon completion of such work free and clear of mechanics or other liens, any remaining balance of any insurance proceeds shall be paid first to the Permitted Mortgage Lender to reduce the indebtedness of the Permitted Lease Financing Encumbrance, and thereafter, if the Permitted Mortgage Lender permits or if it is required by the terms of the Permitted Lease Financi ng Encumbrance, to Tenant and Landlord proportionate to the equity investment of each Party in the Premises and the Improvements. The Permitted Mortgage Lender may disburse the progress payments in accordance with its normal disbursement procedures (e.g. u pon receipt of appropriate mechanics lien releases, invoices, etc.) so long as such disbursement procedures are reasonably satisfactory to Landlord and ensure that the proceeds of insurance are applied to the costs of repairing, restoring or replacing the Improvements that were damaged or destroyed. To the extent that the insurance proceeds are insufficient to pay for the costs of restoring, repairing or replacing the damaged Premises and Improvements, Tenant shall pay such deficiency to the trustee for app lication to the restoration costs within ninety (90) days after the insurer first makes available such insurance proceeds for repair, restoration or replacement. The provisions of Articles 6 and 7 shall apply to all work performed pursuant to this Article 20. Notwithstanding the foregoing, if Tenant and the Permitted Lender are not able to obtain sufficient insurance proceeds (in the case of an insured casualty) or construction funds (in the case of an uninsured casualty) to commence repair, restoration or replacement of the damaged Premises and Improvements within ninety (90) days of such damage or destruction, and in the case of an insured casualty, Tenant has used its best efforts to, or the

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Permitted Lender has used its reasonable efforts to, so obtain s uch insurance proceeds, or, in the case of an uninsured casualty, Tenant and the Permitted Lender have used their best efforts to obtain sufficient construction funds, then Tenant and the Permitted Lender shall have such additional time as is necessary to obtain such insurance proceeds or construction funds (but in no event to exceed one hundred and eighty (180) days from the date of such damage or destruction) in which to commence to repair, restore or replace the damaged Premises and Improvements (including commencing engineering or permitting with respect thereto).

20.2 Termination.

Notwithstanding Section 20.1 to the contrary, if (a) there is damage or destruction to the Initial Project Improvements during the last three (3) years of the Term, the cost of re pairing said damage or destruction exceeds the cost of demolishing and removing the remaining Initial Project Improvements as determined by the Demolition and Remediation Report, and Landlord has delivered to Tenant a Landlord End of Term Election that req uires that Tenant demolish the Private Improvements or (b) there is damage or destruction to the Initial Project Improvements, the cost of repairing said damage or destruction, prior to the Expansion Date, exceeds Fifty Million Dollars ($50,000,000) or, fr om and after the Expansion Date, exceeds One Hundred Million Dollars ($100,000,000), and a Permitted Mortgage Lender requires that any or all of the property damage insurance proceeds are used to repay any indebtedness that is secured by Permitted Lease Fi nancing Encumbrance, or (c) there is damage or destruction to the Initial Project Improvements and the repairing of said damage or destruction would violate any Law, then Tenant shall have the option to terminate this Lease, subject to Tenant’s satisfaction of all of the following requirements: (i) Tenant shall, within ninety (90) days after the date of the casualty, give Landlord written notice of its election to terminate (“Notice of Election to Terminate”); (ii) Tenant shall secure and deliver to Landlor d the written consent of each Permitted Lender to terminate the Lease; (iii) Tenant shall secure and deliver to Landlord the releases from each Permitted Lender of all liens in favor of each Permitted Lender on the Premises, Improvements, and Tenant’s leasehold interest in this Lease effective as of the termination date (other than any liens with respect to insurance proceeds to which such Permitted Lender is entitled pursuant to this Section 20.2, if any); (iv) Tenant shall secure and deliver to Landlord the written consent of Hotel Operator to terminate the Hotel Management Agreement; (v) when the Convention Center Sublease is in effect, as applicable, Tenant has satisfied the Casualty Special Termination Condition (as defined in the Convention Center Subl ease); and (v) Tenant shall within one hundred and eighty (180) days of Landlord’s receipt of the Notice of Election to Terminate, (x) at the election of Landlord, surrender the Hotel Land and the Parking Premises to Landlord in a Buildable Condition, (y) prior to the Expansion Date, so long as the Convention Center has not been destroyed, demolished or Condemned, satisfy Tenant’s Standalone Convention Center Obligations and (z) pay all sums due and payable to Landlord to the date of termination.

Any and al l property damage insurance proceeds (exclusive of any proceeds applicable to Tenant’s personal property that would be retained by Tenant at the end of the Term, all of which shall be paid to Tenant) paid as a result of the damage or destruction of the Ini tial Project Improvements giving rise to the termination, shall be distributed in accordance with the following order of priority: (A) prior to the Expansion Date: (1) first, to the repayment of any indebtedness that is secured by a Permitted Lease Financi ng Encumbrance, if any such Permitted Lease Financing Encumbrance is still outstanding; and (2) second, to Tenant; and (B) from and after the Expansion Date: (1) first, to the repayment of any indebtedness that is secured by a Permitted Lease Financing Enc umbrance, if any such Permitted Lease Financing Encumbrance is still outstanding; (2) second, to Tenant all proceeds with the respect to the Resort Hotel; (3) third, without duplication, to Tenant an amount equal to the “bonus value” with respect to the Premises

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(which is the excess value of the leasehold arising from the fact that the scheduled rent is less than the market rent for the Premises); and (4) fourth, to Landlord.

20.3 No Rental Abatement.

Except as may be expressly permitted in this Lease (including, without limitation, in Section 20.2), Tenant shall not be entitled to any abatement or reduction in the Rent during any period of time that any Initial Project Improvements or any Alterations located on the Premises are in need of repair, restoration or replacement or are under construction for such repairs, restoration or replacements or any other period of time during the Term.

20.4 Waiver of Statutory Provisions.

The provisions of this Lease, including this Article 20, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises and the Initial Project Improvements, or any other portion thereof, and any California statute or regulation, now or hereafter in effect, rega rding the rights or obligations of a tenant concerning damage or destruction following a casualty event are waived and shall have no application to this Lease or any damage or destruction to all or any part of the Premises or Initial Project Improvements as a result of a casualty event.

Tenant hereby acknowledges that Landlord may consult with the City prior to making any determinations under this Article 20.

21. HAZARDOUS MATERIALS

21.1 Hazardous Materials.

21.1.1 Tenant Use of Hazardous Materials.

Tenant shall not cause or permit any Hazardous Material, or products or materials which include any hazardous substance as a component to be generated, brought onto, used, stored, emitted, released or disposed of in or about the Premises or Improvements (c ollectively and individually, a “ Hazardous Materials Activity ”) by Tenant or its agents, whether by a Tenant Party, Hotel Operator or any other Person, during the Term (including any extensions or holdover periods resulting from Tenant’s obligations pursua nt to Section 21.1.4) unless expressly approved, at Landlord’s sole discretion, in writing by Landlord after submittal by Tenant of Material Safety Data Sheets or other information requested by Landlord regarding the Hazardous Material.

Approval by Landlord of any Hazardous Materials Activity shall not create or impose any liability or obligation on Landlord with respect to such Hazardous Material or Hazardous Materials Activity and Tenant shall assume all liability and obligations related thereto. All Haza rdous Materials Activity shall be in strict compliance with all applicable Laws and other requirements in effect during the Term, including, without limitation, Laws and requirements that regulate Hazardous Materials or otherwise relate to public health an d safety or the protection of the environment (“Environmental Laws ”). Tenant shall comply at all times with all Environmental Laws.

Notwithstanding the foregoing, if Tenant is in compliance with Environmental Laws, Tenant shall not be required to obtain Landlord’s consent to generate, store or use reasonable and customary quantities of Hazardous Materials for cleaning materials or supplies, construction materials or supplies, food service materials or supplies, paint, auto supplies (including, without limit ation, gasoline, oil and other supplies incidental to motorized vehicles) or office materials or supplies reasonably required to be used in the normal course of the Permitted Use.

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21.1.2 Notice of Release or Inquiry.

If Tenant becomes aware of (i) any actual or threatened release that occurs during the Term of any Hazardous Material on, in, under, from, or about the Premises or Improvements or (ii) any notice, inquiry, investigation, proceeding, or claim by any government agency or other Person regarding the pres ence that occurs during the Term of any Hazardous Material on, in, under, from or about the Premises or Improvements (collectively, “ Inquiry”), Tenant shall give Landlord written notice of such release or Inquiry within twenty-four (24) hours after Tenant learns that there has been a release or Inquiry and shall simultaneously furnish to Landlord copies of any notices of inquiry or investigation, claims, notices of violation, reports, warning or other writings received by Tenant that concern such release or Inquiry. Unless Landlord receives separate notice, Tenant shall provide Landlord with advance written notice of any meeting scheduled between any Tenant Party and any federal, state or local government agency (including, but not limited to, the United Sta tes Environmental Protection Agency, the Regional Water Quality Control Board, Department of Toxic Substances Control or Air Resources Board) (“government agency”) where a material item of discussion is directly related to the subject matter of this Articl e 21, at least five (5) Business Days prior to such meeting or as soon as reasonably possible if the government agency schedules such meeting with any Tenant Party for less than five (5) Business Days from the date the meeting is proposed. Landlord shall be entitled to have its representatives attend and participate in any and all such meetings. If the government agency brings up Hazardous Material on, in, under, from, or about the Premises or Improvements in any other scheduled meeting, Tenant shall sugges t that a separate meeting should be scheduled so that Landlord can participate in such meeting.

21.1.3 Landlord Right to Inspect and Data.

If Hazardous Materials Activity has occurred during the Term or is ongoing, Landlord or its designated representatives, at Landlord’s sole discretion, may, but are not obligated to, enter upon the Premises and/or Improvements and make any inspections, non -intrusive tests or measurements that Landlord deems necessary or desirable to determine if a release or discharge of Hazardous Materials has occurred. Landlord shall furnish to Tenant a minimum of twenty-four (24) hours’ notice prior to conducting any inspections or tests, unless, in Landlord’s reasonable judgment, circumstances require otherwise. If Landlord reasonably suspe cts a possible release of Hazardous Materials or a use of Hazardous Materials in violation of Environmental Law, then Landlord shall describe the concern to Tenant, and may require Tenant, at Tenant’s sole expense, to have additional investigation for such Hazardous Materials conducted on, under or about the Premises and/or Improvements by an environmental consultant or engineering firm designated by Landlord; provided, however, that Tenant’s obligation to conduct such investigation shall terminate if Tenant can demonstrate to Landlord’s reasonable satisfaction that there was neither any release of Hazardous Materials, nor any use of Hazardous Materials during the Term in violation of Environmental Law. Such tests may include, without limitation, any area ou tside the Premises or Improvements that may have been contaminated, including but not limited to surface and groundwater. Tenant shall provide to Landlord, as soon as reasonable after they become available to Tenant, access to all non-privileged information reports and data obtained, generated or learned as a result of sampling or testing activities on the Premises or Improvements, including raw and verified lab data and consultant reports. Tenant shall be permitted to have representatives present during an y sampling or testing on or at the Premises, and may obtain split samples, if requested, copies of the results of on -site testing and visual inspections, and complete access to all samples and tests taken or conducted as a result of any investigations of the Premises or Improvements. Access to any non-privileged consultant reports issued by or on behalf of Tenant concerning the Premises or Improvements shall be provided to Landlord as soon

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as reasonable after such reports are finalized. Any environmental reports issued by or on behalf of Tenant regarding the Premises, the Improvements, or Hazardous Materials Activities related thereto shall first be generated in draft form and furnished to Landlord for review and comment, except in the case when any resulting delay in producing a final environmental report would violate any Laws or any order of any government agency. Except in the case when any resulting delay in producing a final environmental report would violate any Laws or any order of any government agency, no such report shall be made final until Landlord has had reasonable opportunity to review the draft and to identify any factual inaccuracies therein; provided, however, that if Landlord fails to comment on a draft report within thirty (30) days after Tenant provides Landlord with the final draft report and any information needed by Landlord to complete its review, Tenant shall provide Landlord with notice to deliver any comments to the draft report within fifteen (15) days of the delivery of the notice . If Landlord does not respond after the second notice, Tenant may complete and submit the report. Notwithstanding the foregoing, under no circumstance shall any report submitted by Tenant pursuant to this Section 21.1.3 bind the Landlord or contain any representation from Landlord. Landlord’s failure to inspect, test or take other actions pursuant to this Section 21.1.3 shall in no way relieve Tenant of any responsibility for a release of a Hazardous Material.

21.1.4 Environmental Cleanup Obligations.

If, on or after the Commencement Date, any Hazardous Material has been released by Tenant Parties or Hotel Operator, or any Pre -Existing Hazardous Material is ex acerbated by Tenant Parties or Hotel Operator and thereby violates any Environmental Laws and/or results in (a) any investigation mandated by any government agency, (b) any clean -up order by any government agency, (c) any third -party claim or demand agains t Landlord, (d) any material increase in Landlord’s liability or (e) any material increase in the cost or amount of investigation, removal or remediation action required (“ Material Exacerbation”, and “Materially Exacerbate” and “Materially Exacerbated” shall have correlative meanings to “Material Exacerbation”), then Tenant shall promptly take all necessary actions, at Tenant’s sole expense, to investigate, remove or remediate such contamination in compliance with all Environmental Laws and in a manner and to the satisfaction of applicable regulatory authority (“ Environmental Cleanup”). Tenant shall have no obligation to undertake any Environmental Cleanup with respect to any contamination caused by any Pre-Existing Hazardous Material unless such Environmental Cleanup is required as a result of Tenant’s Material Exacerbation, and the extent of Tenant’s obligation to undertake such Environmental Cleanup shall be limited to that required as a result of the Material Exacerbation. Tenant shall provide notice to Landlord prior to performing any removal or remedial action. In the event that an Environmental Cleanup conducted or required of Tenant interferes with the current or future use of the Premises, Improvements, or other property of Landlord, Tenant shall promptly alter or amend the Environmental Cleanup (whether such is completed or not and regardless of the time period elapsed between the cleanup activities and Landlord’s request to alter the Environmental Cleanup because of the interference), upon notice fro m Landlord, as necessary to prevent and/or eliminate such interference. Tenant shall not propose, and Landlord is under no obligation to agree to, any covenant of use restriction or other institutional controls as part of any removal or remediation require d as a result of this Section 21.1.4. Unless otherwise agreed in writing by Landlord, an Environmental Cleanup required under this Section 21.1.4 shall avoid and not include the use of additional restrictive covenants or other institutional controls. To the extent Landlord incurs any costs or expenses in performing Tenant’s obligation to conduct an Environmental Cleanup which is Tenant’s obligation under this Lease or under Environmental Law, Tenant shall reimburse Landlord for all such costs

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and expenses in accordance with the Reimbursement Procedure. This provision does not limit the indemnification obligation set forth in Section 21.2.

21.1.5 Environmental Cleanup Extending Beyond Term.

Should any Environmental Cleanup of Hazardous Materials for which Tenant is responsible not be completed prior to the expiration or earlier termination of this Lease, then:
(i) Tenant shall deposit with Landlord an amount of money equal to the balance of the estimated costs of such Environmental Cleanup as reasonably determined by an independent third -party environmental consultant that is acceptable to Tenant and selected by Landlord (the “Independent Consultant”), and (ii) if the nature of the contamination or Environmental Cleanup required of Tenant is such as to make any portion of the Premises or Improvements untenable or unleaseable, then Tenant shall be liable to Landlord as a holdover tenant until the Environmental Cleanup has been completed to the extent required by this Lease, or to the extent necessary to render the Premises and/or Improvements, as applicable, in full compliance with all Environmental Laws and to make the Premises and/or Improvements, as applicable, suitable for lease to third parties. The estimated cost of the Environmental Cleanup shall require approval of the Landlord.

Landlord shall release funds from such deposit from time to time to pay for such Environmental Cleanup costs incurred with Landlord’s approval. To the extent the Independent Consultant estimates, at any time, that the funds remaining on deposit may not be sufficient to cover all remaining anticipated Environmental Cleanup costs, then Tenant shall deposit, within thirty (30) days of Landlord’s written demand therefor, such additional funds with Landlord as Independent Consultant may estimate at such time may be required to complete the Environmental Cleanup.

21.1.6 Financial Security.

If Landlord determines, in its reasonable discretion, that Tenant does not have insurance or other financial resources sufficient to enable Tenant to fulfill its obligations under this Article 21 whether or not accrued, liquidated, conditional, or contingent, then Tenant shall, at the request of Landlord, procure and thereafter maintain in full force and effect such commercially available environmental impairment liability and/or pollution liability insurance policies and endorsements, or shall otherwise provide such collateral or security reasonably acceptable to Landlord as is appropriate to assure that Tenant will be able to perform its duties and obligations hereunder.

21.2 Hazardous Materials Indemnification.

Tenant hereby assumes for itself and shall indemnify, defend Landlord Parties, and hold the Landlord Parties harmless from any and all claims, demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orde rs (judicial or administrative), judgments, and all Related Costs (whether or not based upon personal injury, negligence, strict liability, property damage, or contamination of, or adverse effects upon, the environment, waters or natural resources, includi ng any loss of or damage to Landlord’s real or personal property), which occur or arise during or after the Term relating to, or resulting from, any Hazardous Materials Activity, any Tenant Hazardous Material, any Material Exacerbation of Pre -Existing Hazardous Material by a Tenant Party or Hotel Operator, or any breach by Tenant of its obligations under this Article 21, at Tenant’s sole cost and expense and with counsel and experts selected by Landlord in its reasonable discretion and approved by Tenant in its reasonable discretion and who act according to Landlord’s reasonable direction, with reasonable input and cooperation from Tenant. Tenant’s obligations under this Article 21 (including the indemnification of Landlord by Tenant under this Section 21.2) include, without limitation, any Environmental

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Cleanup required by this Lease, costs incurred in connection with any investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work required by this Lease or any federal, state or local government agency because of Hazardous Materials present in the air, soil or ground water above, on, or under the Premises or Improvements. Landlord shall have a direct right of action against Tenant even if no third party has asserted a cla im. The indemnification and Environmental Cleanup requirements under Article 21 include, but, are not necessarily limited to:
(a) Losses attributable to diminution in the value of the Premises or Improvements;
(b) Losses of rental or other income from the Premises or Improvements; (c) Loss of or damage to natural resources regarding which Landlord is the lawfully designated trustee;
(d) Loss or restriction of use of rentable space(s) in the Premises or Improvements;
(e) Adverse effect on the marketing of any space(s) in the Pr emises or Improvements; and
(f) All other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including reasonable attorney, consultant, and expert fees and expenses).

Notwithstanding anything to the contrary in this Section, Tenant shall have no indemnity obligation to the Public Entity Parties resulting from Pre -Existing Hazardous Material other than a Material Exacerbation of Pre-Existing Hazardous Material by a Tenant Party or Hotel Operator.

21.3 Termination of Lease.

Upon the expiration or earlier termination of this Lease, Tenant shall: (i) cause all Tenant Hazardous Materials (and Pre-Existing Hazardous Materials Materially Exacerbated by a Tenant Party or Hotel Operator) to be removed from the Premises and Improvements and disposed of in accordance with all applicable provisions of Environmental Law; (ii) remove any underground or aboveground storage tanks or other containers installed or used by Tenant, or its predecessors as Tenant or otherwise under this Lease, if any, to store any Hazardous Material on the Premises or Improvements, and repair any damage to the Premises caused by such removal; (iii) cause any soil or other portion of the Premises or Improvements which has become contaminated by any Hazardous Material (or any Pre -Existing Hazardous Materials Materially Exacerbated by a Tenant Party or Hotel Operator) during the Term to be decontaminated, detoxified, or otherwise cleaned up in accordance with the applicable requirements of any government agency with authority over the Premises or Improvements; and (iv) surrender possession of the Premises and Improvements to Landlord free of any Tenant Hazardous Materials (and any Pre -Existing Hazardous Material Materially Exacerbated by a Tenant Party or Hotel Operator); provided, however, with respect to any Material Exacerbation of any Pre -Existing Hazardous Mater ial, Tenant’s responsibility shall be limited to remediating such Existing Hazardous Material condition to such an extent that Landlord’s liability and responsibility for such Pre -Existing Hazardous Material is no greater than such liability and responsibi lity would have been on the

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Commencement Date had Tenant not Materially Exacerbated such Pre -Existing Hazardous Material condition thereafter.

21.4 Storage Tanks.

21.4.1 Storage Tanks.

Except for the USTs described in Exhibit “C” which Landlord has approved Tenant to install on the Premises as part of the Plans, no underground storage tanks (“ USTs”) or aboveground storage tanks (“ ASTs”) shall be permitted to be installed on or under the Premise s without the prior written consent of Landlord in its sole and absolute discretion. In the event Tenant obtains such approval to install a UST or an AST on or under the Premises then Tenant shall be responsible for complying with all Laws pertaining to such UST or AST, including tank monitoring of such UST or AST as required by the County of San Diego Hazardous Material Management Division (“ HMMD”) or any other responsible agency and Tenant further agrees to take sole responsibility for reporting unauthorized releases from such UST to HMMD and Landlord within twenty-four (24) hours of such unauthorized release. Tenant will be responsible for all fees and costs related to the unauthorized release of any Hazardous Material from such AST or UST or any required Environmental Cleanup as a result thereof including, but not limited to: investigative, surface and groundwater clean-up, and expert and agency fees. Tenant shall maintain evidence of financial responsibility for taking corrective action and for compensating third parties for bodily injury and/or property damage caused by a release from any such UST or AST. Tenant further agrees to be responsible for maintenance and repair of any such USTs and ASTs; obtaining tank permits; filing a business plan with HMMD or other responsible agency; and for paying for all regulatory agency fees relating to USTs and ASTs.

21.4.2 Records.

Tenant agrees to keep complete and accurate records regarding USTs and ASTs on the Premises for the prior three (3) year period, including, but not limited to, records relating to permit applications, monitoring, testing, equipment installation, repairing and closure of the USTs and ASTs, and any unauthorized releases of Hazardous Materials. Tenant also agrees to make such records available for Landlord or responsible agency inspection. Tenant further agrees to include a copy of Health and Safety Code, Chapter 6.7, Section 25299, as part of any agreement between Tenant and any operator of USTs or ASTs.

21.4.3 Aboveground Storage Tanks.

In the event Tenant obtains approval to install an AST or such approval is not required, Tenant shall be responsible for complying with all Laws pertaining to such AST. In connection with such AST, Tenant shall, in accordance with this Lease and applicable Laws, secure and pay for all necessary permits and approvals, prepare a spill prevention control counter measure plan and conduct periodic inspections to ensure compliance therewith. In addition, Tenant shall maintain and repair said tanks to conform and comply with all oth er applicable Laws for ASTs, including without limitation all of the requirements of Health & Safety Code, Chapter 6.67, Sections 25270 through 25270.13 as presently existing or as hereinafter amended, including without limitation conducting daily visual i nspection of such ASTs, allowing the San Diego Regional Water Quality Control Board (“ SDRWQCB”), Landlord, and/or responsible agency, to conduct periodic inspections. Tenant also shall comply with valid orders of the SDRWQCB, filing the required storage tank statement and payment of the fee therefor, establishing and maintaining

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the required monitoring program and systems, reporting spills as required, and payment of lawfully imposed penalties as provided therein and as otherwise provided by Law.

21.5 Environmental Covenants.

21.5.1 Excavated Soil Removal.

Tenant hereby acknowledges that excavation of soils from the Premises could result in exportation of a regulated waste requiring appropriate characterization, handling, transport and disposal (collectively, “Excavated Soil Removal”). Landlord takes no responsibility and assumes no liability whatsoever for Excavated Soil Removal. Accordingly, Tenant hereby waives any claim, or potential claim, it may have to recover costs or expenses from Landlord arising out of or associated with Excavated Soil Removal and agrees to indemnify, defend and hold harmless the Landlord Parties from and against any and all claims (including under negligence or strict liability), liabilities, losses, damages, costs, and expenses arising from , out of, or in any way related to Excavated Soil Removal, except only claims or litigation arising through the gross negligence or willful misconduct of Landlord.

21.5.2 Worker Claims for Hazardous Material.

Landlord shall have no liability or responsibility fo r ensuring that Tenant’s workers, including without limitation those conducting testing, construction and maintenance activities on the Premises and Improvements are protected from any Hazardous Material existing on the Premises and Improvements. Tenant shall assess all human health risks from vapor transport or direct contact with residual hazardous substances or contaminants and incorporate such engineering and institutional controls as may be required to sufficiently protect human health of onsite workers and transient visitors. Tenant hereby waives any claim, or potential claim, it may have to recover any damages, losses, Related Costs related to worker exposure or alleged worker exposure to any residual onsite contamination and to indemnify, defend and hold harmless the Landlord Parties from and against any and all such Related Costs, claims (including under negligence or strict liability), liabilities, losses and damages, except only claims or litigation arising through the gross negligence or willful misconduct of Landlord.

21.5.3 Covenant Not To Sue and Release of Landlord.

Tenant hereby RELEASES the Landlord Parties from, COVENANTS NOT TO SUE the Landlord Parties for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of Tenant under Article 21, including for claims for contribution, equitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of Tenant under Article 21.

21.6 Survival.

The terms of this Article 21 shall survive the expiration or earlier termination of this Lease.

22. “AS-IS” LEASE AND WAIVERS

22.1 Tenant’s Acknowledgment.

Tenant acknowledges that prior to entering into this Lease, Landlord has given Tenant sufficient opportunity to consider, inspect and review, to Tenant’s complete satisfact ion: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Premises, including

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without limitation any Existing Improvements; (2) the physical condition of the Premises, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Premises; (3) the risk of climate change and the possible adverse consequences thereof, including, without limitation, rises in sea level and possible d amage to and destruction of the Premises; (4) the development potential of the Premises including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, env ironmental quality and maintenance, endangered species, and traffic regulation; (6) the financial prospects of the Premises and local market conditions; (7) Tenant’s determination of the feasibility of Tenant’s intended use and enjoyment of the Premises; ( 8) the presence of any Pre -Existing Hazardous Material and any other contamination of the Premises, including any Existing Improvements, soils, groundwater, water adjacent to San Diego Bay and sediment adjacent to San Diego Bay; and (9) all other facts, circumstances, and conditions affecting, concerning or relating to the Premises.

The land use; the environmental, biological, physical and legal condition of the Premises; the risks associated with possible climate change; the feasibility of Tenant’s intende d use and enjoyment of the Premises; and such other facts, circumstances and conditions being collectively referred to herein as the “Condition of the Premises”; and, without limitation on any other provision of this Lease, Tenant expressly assumes the ris k that adverse conditions affecting the Premises have not been revealed by Tenant’s investigations.

22.2 Only Landlord’s Express Written Agreements Binding.

Tenant acknowledges and agrees that no Person acting on behalf of Landlord is authorized to make, and that except as expressly set forth in this Lease and the Contemporaneous Agreements to which Landlord and Tenant is a party, neither Landlord nor anyone acting for or on behalf of Landlord has made, any representation, warranty, agreement, statement, guaranty or promise to Tenant, or to anyone acting for or on behalf of Tenant, concerning the Condition of the Premises or any other aspect of the Premises. Tenant further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of Landlord which is not expressly set forth in this Lease and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on Landlord. Landlord acknowledges and agrees t hat no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of Tenant which is not expressly set forth in this Lease and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on Tenant.

22.3 As-Is Lease.

Tenant further acknowledges and agrees that Tenant’s execution of this Lease shall constitute Tenant’s representation, warranty and agreement as of the Commencement Date that the Condition of the Premises has been i ndependently verified by Tenant to its full satisfaction, and that, except to the extent of the express covenants of Landlord set forth in this Lease, Tenant will be leasing the Premises based solely upon and in reliance on its own inspections, evaluations , analyses and conclusions, or those of Tenant’s representatives; and that TENANT IS LEASING THE PREMISES IN ITS “AS-IS, WITH ALL FAULTS ” CONDITION AND STATE OF REPAIR

INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE TE NANT’S EXECUTION OF THIS LEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, Tenant expressly assumes the risk that the Premises do not or will not comply with any Laws now or hereafter in effect.

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22.4 Waivers, Disclaimers and Indemnity.

22.4.1 Waiver and Disclaimer.

Tenant hereby fully and forever waives, and Landlord hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Premises, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use.

22.4.2 Landlord’s Materials.

Tenant acknowledges that any information and reports, including, without limitation, any engineering reports, architectural repo rts, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which Tenant has received or may hereafter receive from Landlord Parties (collectively, the “Landlord’s Materials”) have been furnished without warranty of any kind (other than that Landlord has delivered true and correct copies of each of the items set forth on Exhibit “T” attached hereto as filed in the Office of the District Clerk (“District Documents”)) and on the express condition that Tenant will make its own independent verification of the accuracy, reliability and completeness of such Landlord’s Materials and that Tenant will not rely thereon.

Accordingly, subject to terms of Section 22.4.3 below, Tenant agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Landlord Parties or any of the Persons that prepared or furnished any of the Landlord’s Materials as a result of the inaccuracy, unreliability or incompleteness of, or any defect or mistake in, any such Landlord’s Materials, and Tenant hereby fully and forever releases, acquits and discharges Landlord Parties and each Person furnishing such Landlord’s Materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown (other than in connection with Landlord’s breach of its representation and warranty set forth in this Section 22.4.2 that Landlord has delivered to Tenan t true and correct copies of each of the documents set forth on Exhibit “T” attached hereto).

22.4.3 Release and Waiver.
(a) Release. Except to the extent of Claims (as defined below) against Landlord arising from any breach by Landlord of its covenants and obligations expressly provided in this Lease, or Landlord’s representation and warranty set forth in Section 22.4.2 of this Lease, Tenant, on behalf of Tenant, its successors and assigns, hereby fully and forever releases, acquits and discharges Landlord of and from, and hereby fully, and forever waives and agrees not to assert any and all claims, actions, causes of action, suits, pr oceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever (individually and collectively, “Claims”), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that any Tenant Party, Hotel Operator or any of Tenant’s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of Landlord (or any Person acting for or on behalf of Landlord or for whose conduct Landlord may be liable), whether or not such act be the active, passive or sole negligence of Landlord (or any Person acting for or on behalf of Landlord or for whose conduct Landlord may be liable), in connection with prior ownership, maintenance, operation or use of the Premises; (ii) any condition of environmental contamination or pollution at the Premises (including, without limitation, any Pre-Existing Hazardous Material or other contamination or pollution of any soils,

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subsoil media, surface waters or ground waters at the Premises and any clean-up or abatement order effecting the Premises); (iii) to the extent not already included in clause (ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Premises (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Premises or into any soils, subsoils, surface waters or ground waters at the Premises); (iv) the violation of, or noncompliance with, any Environmental Law or other applica ble Law now or hereafter in effect, however and whenever occurring; (v) the condition of the soil and groundwater at the Premises; (vi) the Condition of the Premises, including, without limitation, the condition of any improvements located on the Premises including, without limitation, the structural integrity and seismic compliance of such improvements; (vii) any matters which would be shown on an accurate ALTA land survey of the Premises (including, without limitation, all existing easements and encroachments, if any); (viii) all applicable Laws now or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Premises; or (x) to the extent not already covered by any of the foregoing clauses (i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Premises by Landlord (or any Person acting for or on behalf of Landlord or for whose conduct Landlord may be liable) or any predecessor(s)-in-interest in the Premises of Landlord. (b) Waiver of Civil Code Section 1542. With respect to all releases made by Tenant under or pursuant to Article 21 and this Article 22, Tenant hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the following provision of California Civil Code § 1542:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Tenant: _____________________

22.4.4 Survival.

The terms of this Article 22 shall survive the expiration or earlier termination of this Lease.

23. QUITCLAIM OF TENANT’S INTEREST IN PRIVATE IMPROVEMENTS

UPON TERMINATION
Subject to the terms of this Article 23 and Article 7 upon the expiration or earlier termination of this Lease, all Private Improvements, excluding trade fixtures, installed or constructed on the Premises, other than (i) the Private Improvements demolished pursuant to Tenant’s Demolition Election (but excluding Existing Improvements on the Premises and public or private utilities on the Premises that Landlord requests that Tenant does not demolish or r emove, as applicable, pursuant to Landlord’s Non -Demolition Notice), or (ii) the Private Improvements demolished pursuant to Landlord End of Term Election, as applicable, shall become the property of Landlord and a part of the realty without compensation to Tenant and shall be surrendered to Landlord. In order to confirm such transfer of ownership, at Landlord’s request following the expiration or earlier termination of the Lease, Tenant shall deliver to Landlord a Tenant -executed quitclaim deed in recordab le form conveying the applicable Private Improvements to Landlord free and clear of any mechanics’ or materialmen’s liens and other encumbrances. Without limitation of the foregoing, Tenant hereby appoints Landlord as Tenant’s attorney-in-fact to execute such deed in

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the name and on behalf of Tenant and to record same in the official records of San Diego County, California. This power of attorney is irrevocable and coupled with an interest.

24. PEACEABLE SURRENDER
Upon the expiration or earlier termination of t his Lease (or any New Lease entered into in accordance with this Lease, in which case the New Lease shall control), Tenant shall peaceably surrender the Premises to Landlord in accordance with the end of Term obligations set forth in this Lease, including without limitation, Articles 7, 21 and 23. Notwithstanding the foregoing, Tenant shall leave or demolish such Private Improvements as required pursuant to Article 7. If Tenant fails to surrender the Premises at the expiration of this Lease or the earlier termination or cancellation thereof in the condition required under this Lease, in addition to Landlord’s other remedies, Tenant shall defend and indemnify Landlord from all liability and expense resulting from the delay or failure to surrender the Premises, including without limitation any succeeding tenant claims based on Tenant’s failure to surrender or Landlord’s failure to deliver the Premises due to Tenant’s failure to so surrender the Premises and loss of profits due to Tenant’s failure to so surrender the Premises.

25. WAIVER
No waiver of any provision of this Lease shall be implied by any failure of a Party to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently. Any waiver by a Party of any provision of this Lease may only be in writing, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt of monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Term or of Tenant’s right of possession hereunder or after the giving of any notice shall reinstate, continue or extend the Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Premises, Landlord may receive and collect any Rent due, and the payment of said Rent shall no t waive or affect said notice, suit or judgment. The Landlord shall have the power and authority to waive any requirement of Tenant under this Lease except as such authority may be limited by the Port Act or BPC from time to time; provided, however, Landlord may elect to obtain approval of the BPC as a condition to exercising this authority.

26. HOLDOVER
This Lease shall terminate without further notice at expiration of the Term. Any holding over by Tenant after either expiration or earlier termination of this Lease without Landlord’s prior written consent shall be a tenancy -at-sufferance upon all of the provisions of this Lease, except those pertaining to the Term, and except that Minimum Annual Rent shall be 150% of the Minimum Annual Rent in effect prior to s uch expiration or termination. If Tenant, with Landlord’s consent, remains in possession of the Premises after the expiration or earlier termination of this Lease, such possession shall be deemed a month -to-month tenancy terminable upon thirty (30) days’ notice furnished at any time by either Party to the other Party. All provisions of this Lease, except those pertaining to the Term, shall apply to the month -to-month tenancy, and Tenant shall continue to pay all Rent required by this Lease. Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years.

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27. NOTICES
All notices provided for by this Lease or by Law to be given or served upon Landlord or Tenant shall be addressed as provi ded in Section 1.11 (as such address may have been changed by subsequent notice given to the other Party) and shall be in writing and: (i) personally served upon Landlord or Tenant, or any Person hereafter authorized by either Party in writing to receive such notice, (ii) delivered via reputable over -night courier service, or (iii) delivered by U.S. postal service certified letter.

Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the Parties so served; provided, however, that, if served by certified mail, service shall be considered completed and binding on the Party served forty-eight (48) hours after deposit in the U.S. Mail.

28. SECURITY DEPOSIT

28.1 Amount of Security Deposit.

A security deposit in the amount set forth in Section 1.10 shall be provided to Landlord by Tenant, on or before Tenant’s execution of this Lease. The security deposit shall be held by Landlord and used for the purpose of remedying an Event of Default. If there shall be an Event of Default, then Landlord shall have the right, but shall not be obligated, to use, apply or retain all or any portion of the security deposit for the payment of any (a) Rent or any other amount applicable to such Event of Default, or (b) amount that Landlord may spend or become obligated to spend, or for the compensation of Landlord for any losses incurred, by reason of such Event of Default (including any damage or deficiency arising in connection with the reletting of the Premises). If any portion of the security deposit (in whatever form) i s so used or applied, then, within three (3) Business Days after Landlord gives written notice to Tenant of such use or application, Tenant shall increase the Letter of Credit (as defined below) (or deliver to Landlord additional funds, in the case of a ca sh security deposit) in an amount sufficient to restore the security deposit to the original security deposit amount, and Tenant’s failure to do so shall constitute an Event of Default if such failure is not cured within the notice and cure period set fort h in Section 12.1.2 above.

Tenant waives any and all rights that Tenant may have under Section 1950.7 of the California Civil Code, any successor statu te, and all similar provisions of Law, now or hereafter in effect.

Tenant agrees that (i) any statutory time frames for the return of a security deposit are superseded by the express period identified in this Article 28, and (ii) Landlord has the right to claim from the security deposit any and all sums expressly identified in this Article 28, and any additional sums reasonably necessary to compensate Landlord for any and all losses or damages caused by the Event of Default, including, but not limited to, a ll damages or Rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code. Landlord shall not be required to keep the security deposit in trust, segregate it or keep it separate from Landlord’s general funds, and Tenant shall not be entitled to any interest accrued on the security deposit.

28.2 Letter of Credit.

In satisfaction of Tenant’s obligation set forth in Section 28.1, Tenant may deliver to Landlord an irrevocable stand-by letter of credit (“ Letter of Credit ”) issued by Wells Fargo Bank, N.A. or another bank that has a Moody’s Long Term Letter of Credit rating of “A-” or higher and a Moody’s Long Term Deposit rating of “A-” or higher. The principal sum of the Letter of Credit shall be made payable to Landlord or order. Each Letter of Credit provided during the Term shall be valid for a minimum of twelve (12) months from date of issuance; provided, however, that, subject to

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Section 28.4, when the remaining Term is one (1) year or less, the Letter of Credit shall be valid for a minimum of three (3) months beyond the Expiration Date and if a Letter of Credit is not valid for the entire remaining Term plus three (3) months beyond the Expiration Date, then such Letter of Credit shall be extended or renewed at least sixty (60) days prior to its expiration.

All of the principal sum of the Letter of Credit shall be available unconditionally to Landlord for the purposes and uses for the security deposit provided in Section 28.1. The bank, and the form and provisions of the Letter of Credit shall be acceptable to the Landlord, in its reasonable discretion, and if not so acceptable, Landlord shall have the right to reject such Letter of Credit; provided, however, that a Letter of Credit substantially in the form of Exhibit “J” attached hereto without material changes shall be deemed acceptable to Landlord and any of the banks listed on Exhibit “K” attached hereto shall be deemed acceptable to Landlord. The Letter of Credit and Drawing Certificate shall not be acceptable to Landlord if it requires Landlord to present the Letter of Credit in person, at a location that is not in San Diego County, send written notice of an Event of Default or request or demand payment from Tenant after an Event of Default, prior to Landlord drawing on any funds under the Letter of Credit. Tenant acknowledges and agrees that if Landlord accepts a Letter of Credit from Tenant that must be presented in person at a location that is not in San Diego County, Tenant agrees to pay all reasonable travel and other expenses incurred by Landlord Parties in presenting the Letter of Credit at its designated location.

28.3 Cash Alternative.

Notwithstanding the above, Tenant may elect to provide said security deposit in the form of cash.

28.4 Release of Security Deposit.

Notwithstanding anything to the contrary herein, but subject to Section 12.2.4, Landlord shall release to Tenant or order, as applicable, the full then -remaining amount of the security deposit within ninety (90) days following Completion of the Resort Hotel and of the issuance by the City of the final certificate of occupancy with respect to the Resort Hotel.

29. GENERAL PROVISIONS

29.1 Terms; Captions.

The necessary grammatical changes required to make the provisions hereof apply either to corporations, limited liability companies or partnerships or individuals, men or women, as the case may require, shall in all cases be assumed as though in each case fully expressed. The captions of Articles and Sections are for convenience only and shall not be deemed to limit, construe, affect or alter the meaning of such Articles and Sections. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

29.2 Binding Effect.

Each of the provisions of this Lease shall extend to and shall, as the case may require, bind or inure to the benefit not only of Landlord and of Tenant, but also of their respective heirs, successors or assigns, provided this clause shall not permit any Assignment by Tenant contrary to the provisions of Article 11 of this Lease.

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29.3 No Merger.

At any time that a Permitted Lease Financing Encumbrance is outstanding and during the New Lease Period, if both Landlord’s and Tenant’s estates in the Premises become vested in the same owner (other than by termination of this Lease following an Event of Default hereunder, subject to the rights of a Permitted Mortgage Lender pursuant to Section 10.3 above), this Lease shall not be terminated by application of the doctrine of merger except at the express election of Landlord and with the consent of any Permitted Mortgage Lender.

29.4 Recording.

Concurrently with the execution of this Lease, Landlord and Tenant shall execute a Memorandum of Lease substantially in the form of Exhibit “F” attached hereto (the “Memorandum of Lease”).

At Tenant’s option, Tenant shall cause the Memorandum of Lease to be recorded on or after the Commencement Date, at Tenant’s sole cost and Tenant shall be solely responsible for any transfer taxes or fees required to be paid in connection with the recording of the Memorandum of Lease.

29.5 Landlord Transfer.

Tenant acknowledges that, subject to the Port Act and the oversight of the California State Lands Commission, Landlord has the right to transfer all or any portion of its interest in the Premises and in this Lease, and Tenant agrees that in the event of any such transfer and t he express assumption of Landlord’s obligations hereunder and under each of the documents set forth on Exhibit “Q” attached hereto (a “ Landlord Transfer”), Landlord shall automatically be released from all liability under this Lease for periods after the date of such Landlord Transfer, and Tenant agrees to look solely to such transferee for the performance of Landlord’s obligations hereunder that arise after the date of such Landlord Transfer. Each landlord hereunder shall be liable only for those obligatio ns arising during its period of ownership and shall be released from further obligations after it completes a Landlord Transfer.

29.6 Time of Essence.

Time is of the essence with respect to this Lease and each of its provisions.

29.7 Partial Invalidity.

If any term, provision, covenant or condition contained in this Lease shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term, provision, covenant or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other term, provision, covenant or condition of this Lease shall be valid and enforceable to the fullest extent possible permitted by Law.

29.8 Entire Agreement.

It is understood and acknowledged that there are no oral agreements between the Parties affecting this Lease and this Lease supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties with respect to the subject matter hereof, except for the Prior Agreements, the Contemporaneous Agreements and the Approved Agreements. This Lease contains all of the terms, covenants, conditions, warranties

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and agreements of the Parties relating in any m anner to the rental, use and occupancy of the Premises and the Improvements and shall be considered to be the only agreement between the Parties and their representatives and agents, except for the applicable Prior Agreements, the applicable Contemporaneous Agreements and the applicable Approved Agreements; and none of the terms, covenants, conditions or provisions of this Lease can be modified, deleted or added to except in writing signed by the Parties. All negotiations and oral agreements acceptable to the Parties have been merged into and are included herein. There are no other representations or warranties between the Parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Leas e. However, Tenant acknowledges and agrees that other documents may restrict Tenant’s use of the Premises and the Improvements or impose other obligations not specifically referenced in this Lease, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA.

29.9 Joint and Several.

If there is more than one Person constituting Tenant (i) the obligations imposed upon such persons or entities under this Lease shall be joint and several and (ii) the act or signature of, or notice from or to, any one or more of them with respect to this Lease shall be binding upon each and all of such persons and entities with the same force and effect as if each and all of them had so acted or signed, or given or received such notice.

29.10 Tenant’s Authority.

Tenant hereby represents and warrants that Tenant is a duly formed and existing entity qualified to do business in the state in which the Premises are located and that Tenant has full right and authority to execute and deliver this Lease and th at each Person signing on behalf of Tenant is authorized to do so.

29.11 Financial and Other Information Supplied by Tenant.

Tenant represents and warrants that the financial statements provided to Landlord from the Completion Guarantor are a complete copy of th e financial statements of the Completion Guarantor and fairly and accurately represent the financial condition of the Completion Guarantor as of the Commencement Date.

29.12 Attorneys’ Fees.

Should any suit or action be commenced to enforce, protect, or establi sh any right or remedy of any of the terms and conditions hereof, including without limitation a summary action commenced by Landlord under the laws of the state of California relating to the unlawful detention of property, the prevailing party shall be en titled to have and recover from the losing party reasonable attorneys’ fees and costs of suit, including, without limitation, any and all costs incurred in enforcing, perfecting and executing such judgment.

29.13 Transaction Costs.

To the extent Tenant requests any approval, consent or other action by Landlord (including, without limitation, in connection with any proposed Alterations, Financing Transaction or Transfer), Tenant shall pay or reimburse Landlord, upon written demand therefor, all of Landlord’s reasonable attorneys’ fees and other third party costs incurred by Landlord in connection therewith, together with Landlord’s then current processing or cost recovery fee for similar

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transactions consistent with any schedule of such fees then utilized by Landl ord. Landlord shall provide Tenant with a copy of any such fee schedule following written request therefor from Tenant. Such costs and fees shall be payable to Landlord whether or not Landlord grants such approval or consent, or undertakes the action requested by Tenant.

29.14 Governing Law.

Venue for any legal proceeding shall be in San Diego County, California. This Lease shall be construed and enforced in accordance with the Laws of the State of California.

29.15 Brokers.

Landlord and Tenant each hereby warrant to each other that neither has retained or employed any real estate broker or agent in connection with the negotiation of this Lease. Tenant shall be solely responsible for the payment of any fee or commission due to any broker and agrees to indemnify and defend and hold Landlord harmless from any and all claims, demands, losses, liabilities, lawsuits and costs and expenses (including without limitation reasonable attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing by Landlord.

29.16 Counterparts.

This Lease may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement.

29.17 Drafting Presumption; Review Standard.

The Parties acknowledge that this Lease has been agreed to by both the Parties, that both Landlord and Tenant have consulted with attorneys with respect to the terms of this Lease and that no presumption shall be created against the drafting Party. Any del etion of language from this Lease prior to its execution by Landlord and Tenant shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the Parties intended thereby to state the converse of the deleted language. Unless otherwise specified in this Lease, any approval or consent to be given by Landlord or BPC may be given or withheld in Landlord’s or BPC’s sole and absolute discretion.

29.18 Certified Access Specialist.

For purposes of Section 1938 of the California Civil Code, Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, that the Premises have not undergone inspection by a Certified Access Specialist.

29.19 Third Party Beneficiaries.

There are no third party beneficiaries of this Lease except as set forth in this Section 29.19. Each Permitted Lender shall be a third party beneficiary of this Lease as it relates, directly or indirectly, to such Permitted Lender, including, without limitation, pursuant to Section 1.8, Section 4.8, Article 10, Section 11.5, Section 11.6, Section 11.7, Section 14.4, Section 14.7, Section 18.2.3, Section

20.1, Section 20.2, Section 29.3 and this Section 29.19 only and only to the extent such Permitted Lender has any rights under such provisions; provided, however, that Permitted Lender shall not have the right to enforce such rights against Landlord unless Permitted Lender has complied with

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the applicable provision to the extent relating to such third party beneficiary rights in the Lease.

Notwithstanding anything to the contrary in this Lease, Landlord shall not be liable for any monetary damages of any kind pursuant to the terms of this Agreement and the only remedies that a Permitted Lender shall have in enforcing its third party beneficiary rights under this Section 29.19 against Landlord shall be the right to pursue injunctive relief, declaratory relief and/or specific performance (in each such case, without the requirement of posting any bond or other security). In connection with the foregoing, Landlord agrees not to assert as a defense in any action by a Permitted Lender for injunctive relief or specific performance, that injunctive relief or specific performance is not an available remedy on the grounds that monetary damages are an adequate remedy. The forgoing shall not be construed as limiting any other defense available to Landlord in any such action.

As the lessee of the Convention Center, which is located adjacent to the Premises, the City has certain interests in the development, use and financing of the Premises and the Improvements.

As such, under this Lease, the City shall be a third party beneficiary of this Lease as it relates to any Substantial City Interest Provision. The City will be permitted to exercise such third party beneficiary rights with respect to any breach of a Substantial City Interest Provision either in conjunction with the Landlord or on its own behalf subject to the terms and conditions of this Section 29.19. If the City exercises its third party beneficiary enforcement rights in conjunction with Landlord, Landlord and the City agree to coordinate their efforts as follows: the City must undertake (for the benefit of Tenant and Landlord) to cooperate and coordinate with Landlord, and Landlord shall cooperate and coordinate with the City, so that all statements and positions taken by the City or Landlord with respect to any dispute related to the breach of such Substantial City Interest Provision in communications with Tenant or in any dispute resolution procedure will be joint statements or positions, as applicable, to the maximum extent possible. The intention of this process is to maximize the likelihood that in connection with the breach of any Substantial City Interest Provision under this Lease, Tenant will have the ability to negotiate with the City and Landlord jointly. However, the Parties recognize that Landlord and the City may have differing interests in the enforcement of any remedy for an Event of Default under this Lease, and nothing in this Section 29.19 shall restrict Landlord’s exercise of its sole discretion in connection with the enforcement of any remedies under this Lease. The City will be permitted to exercise its third party beneficiary rights alone, without Landlord involvement, only if (a) the City notifies Landlord that the City requests that Landlord enforce such Substantial City Interest Provision, (b) within thirty (30) days after receipt of such notice Landlord notifies the City that it declines to enforce such Substantial City Interest Provision, and (c) the City then delivers written notice to Tenant of the City’s intention to exercise such rights against Tenant (the “Third Party Beneficiary Notice”).

If the City delivers a Third Party Beneficiary Notice to Tenant w ith respect to a breach of a Substantial City Interest Provision and Landlord exercises remedies with respect to such breach of such Substantial City Interest Provision, then the City must undertake (for the benefit of Tenant and Landlord) to cooperate and coordinate with Landlord, and Landlord shall cooperate and coordinate with the City, so that all statements and positions taken by the City or Landlord with respect to any dispute related to such breach in communications with Tenant or in any dispute resolution procedure will be joint statements or positions, as applicable, to the maximum extent possible. Nothing contained in this Section 29.19 shall limit the Landlord’s rights or remedies or preclude or restrict Landlord’s right to enforce any provision o f this Lease, including any Substantial City Interest Provision, at any time including after the City delivers a Third Party Beneficiary Notice. Notwithstanding anything to the contrary in any Contemporaneous Agreement, the only remedies that the City shall have in pursuing its third party beneficiary rights alone under this Section 29.19 against Tenant shall be the right to pursue declaratory relief, specific performance and claims for direct damages, including, without limitation, attorneys’ fees

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and costs, all of which rights shall be subject to terms of this Lease, including, without limitation, all notice and cure rights granted to Permitted Lenders herein.

29.20 Quantum of Person’s Indirect Ownership.

For purposes of this Lease, the quantum of a Person’s ind irect ownership in any other Person (and such other Person’s assets) is calculated as the percentage of the proportional ownership interest at each level. As an example, if Person A owns a 50% interest in Person B and Person B owns a 50% interest in Person C, then Person A would be deemed to have a 25% indirect ownership interest in Person C and Person C’s assets.

29.21 Constitutional Rights and Compliance with Law.

Nothing in this Lease is intended to limit any rights that Tenant has under the Constitution of the United States of America or the California State Constitution with respect to any act, including the enactment of any Law, by Landlord or any other Governmental Authority, including, without limitation, any claim for a taking, and this Lease shall be construed as to give effect to such intent.

Whenever this Lease requires Tenant to comply with the requirements of any Law, then Tenant will be deemed in compliance with such Law if each applicable Governmental Authority has provided a written variance from or waiver of compliance therewith.

29.22 Dispute Resolution.

Except as otherwise provided in this Lease to the contrary, any controversy or claim arising out of or relating to this Lease, or the breach hereof, shall be subject to a non -binding mandatory mediation. The mediator shall be a mediator mutually acceptable to the Parties and shall have at least twenty (20) years of experience drafting and implementing hotel ground leases within the County of San Diego and preferably within the jurisdiction of Landlord. The Parties shall each pay fifty percent (50%) of the cost of the mediation and each Party shall pay its own costs and expenses, including any attorneys’ fees, related to the mediation.

29.23 Tenant’s Representation.

Subject to the occurrence of the Expansion Dat e, to the Knowledge of Tenant as of the Commencement Date, based in part upon an analysis performed by a nationally-recognized third- party advisory firm, Tenant represents to Landlord that, immediately following the Fourth (4 th) Lease Period, (a) the Convention Center is reasonably expected to have a remaining useful life of at least 9 years and (b) the fair market value of the Convention Center is reasonably expected to exceed $55,300,000 (without including in such value any increase or decrease for inflat ion or deflation during the term of this Lease). For purposes of this Section 29.23, “ Knowledge of Tenant” shall mean the actual knowledge of Luke Charlton.

29.24 City’s Consent.

Notwithstanding anything to the contrary in this Lease, at any time prior to the Ex pansion Date and, with respect to Section 8.2, Section 18.3.2 and Article 19, at any time prior to the date that is the third (3rd) anniversary of the Expansion Date, neither Tenant nor Landlord shall consent to any waiver, amendment or modification of any Substantial City Interest Provision, Section 1.3 (with respect to “Primary Use” and “Acceptable Brand”), Section 4.2, Section 5.5 or this Section

29.24, in each case, that is not consented to in writing by the City.

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Signature page follows.

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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first set forth above.

APPROVED AS TO FORM AND LEGALITY: SAN DIEGO UNIFIED PORT DISTRICT, GENERAL COUNSEL a public corporation

By: ______________________________ By: _______________________________ Thomas A. Russell, General Counsel Joe Stuyvesant
Executive Director

RIDA CHULA VISTA, LLC,
a Delaware limited liability company

By: ________ ________________________
Name: _____________________________
Its: ________________________________

California Contractor License Number:
1039979

SDUPD Docs No. _______________

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DEFINITIONS ADDENDUM
This Definitions Addendum constitutes a part of that certain Lease (the “ Lease”) entered into as of ___________________, 20_____ by and between the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“Landlord”) and RIDA CHULA VISTA, LLC, a Delaware limited liability company (“Tenant”) and by reference to the same in the Lease, the following definitions are incorporated into and constitute a part of the Lease.

DEFINITIONS ADDENDUM
2010 TITLE 24: the Building Energy Efficiency Standards, Title 24, Part 6, of the California Code of Regulations in effect as of May 4, 2010. 2022A BONDS: defined in the Indenture.
50% ENERGY
STANDARD:
the requirement in Section 15 of the Settlement Agreement that requires all Developments within the Proposed Project (as defined in the Settlement Agreement) area achieve, in the aggregate, a fifty percent (50%) reduction in annual energy compared to that allowed under 2010 Title 24.

ABANDONMENT: defined in Section 12.1.1.

ACCEPTABLE BRAND: defined in Section 1.3.

ACH: defined in Section 5.

ACTUAL CAPITAL
INVESTMENT:
defined in Section 5.5.

ADA: the Americans with Disabilities Act, 42 U.S.C. §12101 (et seq.) and the regulations promulgated thereunder, as the same may be amended from time to time.

ADDITIONAL ENERGY
SAVINGS MEASURES:
energy savings measures, programs or credits available to achieve the 50% Energy Standard. Such Additional Energy Savings Measures may in clude, without limitation, Tenant’s participation in renewable or “time of use” energy purchase programs, and/or other measures identified in Section 15.2 of the Settlement Agreement.

ADDITIONAL RENT: defined in Section 5.5.

ADDITIONAL RENT
HURDLE:
defined in Section 5.5.

ADDITIONAL RENT
PERCENTAGE:
defined in Section 5.5.

ADEQUATE INSURANCE: insurance that using standards customary in the insurance industry provides adequate protection for the Premises and

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DEFINITIONS ADDENDUM
Improvements (other than the Existing Improvements) and for the Landlord Parties and/or members of the public using the Premises or Improvements (other than the Existing
Improvements) or using services connected with the use, operation or occupancy of the Premises and Improvements (other than the Existing Improvements) by Tenant Parties and Hotel Operator.

ADVANCE RENT: the rent payable by Tenant, as the subtenant under the Sublease, pursuant to Section 3.4 of the Sublease.

ADVERTISING DEVICES: defined in Section 6.6
AFFILIATE: with respect to any Person, any Person that Controls, is directly or indirectly Controlled by, or is under common ownership or Control with, such Person.

ALTERATION PLANS: defined in Section 6.3.1.

ALTERATIONS: any alterations, additions, installations, removals, demolitions, improvements or other physical changes to the Premises and the Improvements following the Completion of the Resort Hotel and the Completion of the Parking Improvements, including the addition, installation or removal of any fixtures (other than trade fixtures) but excluding installation, maintenance, replacement or refreshing of any furniture, trade fixtures or equipment.

ANTICIPATED
ASSISTANCE COSTS:
with respect to any assistance that Tenant requests that Landlord provide to Tenant, the total amount of Assistance Costs that Landlord reasonably anticipates to incur in connection with such assistance.

APPLICANT: defined in Section 10.4.3.

APPRAISAL: defined in Section 10.1.2.

APPROVED
AGREEMENTS:
defined in Section 4.8.

ASSIGNMENT: any disposition, assignment, sale, conveyance, exchange or other transfer of all or any portion of Tenant’s interest in this Lease (including without limitation any easements), the leasehold estate created hereby, the Premises or the
Improvements, whether by operation of law or otherwise, but, for the avoidance of doubt, excluding any Sublease.

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DEFINITIONS ADDENDUM

ASSIGNMENT
PARTICIPATION FEE:
defined in Section 11.6.

ASSIGNMENT
PROCEEDS:
defined in Section 11.6.

ASSISTANCE COSTS: with respect to any assistance that Tenant requests that Landlord provide to Tenant, the amount of costs and expenses reasonably incurred or to be incurred by Landlord in pro viding such assistance.

ASTS: defined in Section 21.4.1.

AUDITED FISCAL YEAR: at any time, each Tenant fiscal year which at such time satisfies either or both of the following conditions: (i) at least one hundred twenty (120) days have elapsed since the end of such Tenant fiscal year or (ii) Tenant has audited financial statements for such Tenant fiscal year.

BANKRUPTCY CASE: a proceeding initiated under the Bankruptcy Code.

BANKRUPTCY CODE: the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as amended, and any successor statute.

BANKRUPTCY EVENT: the occurrence with respect to Tenant, any Completion Guarantor(s) or any other Person l iable for Tenant’s obligations hereunder (including without limitation any member or manager of Tenant) of any of the following: (a) appointment of a receiver or custodian for any property of such Person, or the institution of a foreclosure or attachment a ction upon any property of such Person; (b) filing by such Person of a voluntary petition under the provisions of the Bankruptcy Code; (c) an involuntary petition under the provisions of the Bankruptcy Code shall be filed and (i) Tenant shall have consented to such involuntary petition or failed to contest in a timely and appropriate manner or (ii) such involuntary petition continues undismissed for a period of 60 days or an order for relief shall have been entered; or (d) such Person making or consenting to an assignment for the benefit of creditors or a composition of creditors.

BMPS: defined in Section 15.1.

BONDS: defined in the Indenture.

BPC: Board of Port Commissioners of the San Diego Unified Port District.

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DEFINITIONS ADDENDUM
BUILDABLE CONDITION: defined in Section 7.2.

BUSINESS DAY: a day (other than a Saturday or Sunday) on which banks in San Diego County, California are open for ordinary banking business.

CCC: defined in Section 4.5.

CDP: defined in Section 4.5.

CEQA: defined in Section 4.5.

CERTIFICATES: defined in Section 18.3.1.

CFR: defined in Section 18.2.6.

CHANGE OF CONTROL: with respect to any Person, a merger, consolidation, recapitalization or reorganization of such Person or other transaction or an amendment to any governing document of such Person that, in the case of any of the foregoing, results in any third party that is not an Affiliate of such Person having the ability to Control such Person; provided that, with respect to Tenant, as long as Ira Mitzner or any of his replacements set forth in the Original LLC Agreement is the manager of Tenant in accordance with the Original LLC Agreement, then there shall be no Change of Control of Tenant; and provided, further, that no merger, consolidation, recapitalization or reorganization of any Publicly Traded Person or other transaction with respect to any Publicly Traded Person or an amendment to any governing document of any Publicly Traded Person will result in a Change of Control. “Publicly Traded Person” means any Person, any of the equity securities in which are publicly traded.

CHULA VISTA BUILDING
CODE:

Chula Vista Building Standards Code (Title 15 of the Chula Vista Municipal Code), as amended, and any successor statute.

CITY: defined in the recitals.

CITY PARTIES: the City and the officers, directors, members of the City Council, employees, partners, affiliates, agents, contractors, successors and assigns of the City, in each case, when acting only in the capacity of a City Party.

CLAIMS: defined in Section 22.4.3(a).

CODE: the Internal Revenue Code of 1986, as amended.

COMMENCEMENT DATE: defined in Section 1.1.1.

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DEFINITIONS ADDENDUM

COMMUNITY FACILITIES
DISTRICT:
a financing district established and existing pursuant to the Chula Vista Municipal Code Chapter 3.61.

COMPLETION AND
COMPLETE:
shall mean, with respect to the Resort Hotel, the Parking Improvements, or any Alterations to any of the foregoing, as the context may require, that Tenant has obtained and delivered to Landlord (or in the case of the Alterations t o the Convention Center, if prior to the Expansion Date, to the City) (i) a certificate of occupancy or temporary certificate of occupancy for the Resort Hotel, the Parking Improvements, or applicable Alterations with respect to any of the foregoing, as ap plicable, from the appropriate Governmental Authority or (ii) equivalent certification from the appropriate Governmental Authority certifying that the Resort Hotel, the Parking Improvements, or applicable
Alterations to any of the foregoing, as applicable, may be used in accordance with the designs therefor; provided, however, that, if no Governmental Authority customarily provides certificates of occupancy, temporary certificates of occupancy or certifications like those described in clause (ii) for work similar in nature to the Parking Improvements or Alterations, as applicable, then such Parking Improvements or such Alterations, as applicable, will be “Complete” when such Parking Improvements or such
Alterations, as applicable, are substantially complete; and provided, further, that each of the Tenant’s Phase 1A
Improvements and the Convention Center shall be complete when it is Complete as defined in the Project Implementation Agreement.

COMPLETION CURE
FAILURE:
defined in Section 6.1.1.

COMPLETION
GUARANTOR(S):
defined in Section 1.12.

COMPLETION
GUARANTY:
defined in Section 1.12.

COMPLETION
TIMETABLE:
defined in Section 10.6.2(a).

CONDEMNATION: defined in Section 14.1.

CONDITION OF THE
PREMISES:
defined in Section 22.1.

CONSTRUCTION LATE
CHARGES:
defined in the Project Implementation Agreement.

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DEFINITIONS ADDENDUM

CONSTRUCTION LATE
CHARGE FAILURE:
defined in Section 6.1.1.

CONSTRUCTION
REQUIREMENTS:
those requirements, conditions and procedures regulating the installation, construction, modification and repair of applicable Improvements (except the Existing Improvements) and
Alterations as described in Exhibit “D-1” and “D -2” attached to this Lease.

CONSULTANT
SERVICES:
defined in Section 8.1.

CONTEMPORANEOUS
AGREEMENTS:
generally, any agreements executed on or around the
Commencement Date by the Landlord, Tenant, City, JEPA,
and/or Special Tax District with respect to the Development, including, but not limited to the Project Implementation Agreement, the Convention Center Leases, this Lease, and the Completion Guaranty.

CONTROL, CONTROLLED
AND CONTROLLING:
shall be deemed, with respect to any Person, to be either or both (i) the ownership of more than fifty percent (50%) of the stock, membership interests or other voting interest of such Person or the ownership of beneficial interests in such Person, or (ii) the power to direct the management of such Person with respect t o major decisions of such Person, whether through voting interests or by way of agreement.

CONVENTION CENTER: defined in the recitals.

CONVENTION CENTER
IMPROVEMENTS:
defined in the recitals.

CONVENTION CENTER
LEASES:
defined in the recitals.

CONVENTION CENTER
LAND:
defined in the recitals.

CONVENTION CENTER
SUBLEASE:
defined in the recitals.

COURT: defined in Section 10.4.3(c).

CVBMP DOCUMENTS: the following documents: (i) the Settlement Agreement; (ii) Chula Vista Bayfront Development Policies (District Clerk No. 59407); (iii) Chula Vista Bayfront Master Plan Natural Resources Management Plan (District Clerk No. 65065), approved by the BPC on May 10, 2016, by Resolution No. 2016-79, and the City

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DEFINITIONS ADDENDUM
Council of the City of Chula Vista on June 14, 2016, by Resolution No. 2016-119; (iv) Chula Vista Bayfront Master Plan Public Access Program (District Clerk No. 59408); (v) Chula Vista Bayfront Design Guidelines (District Clerk No. 67959); (vi) Integrated Planning Vision (District Clerk No. 63989); (vii) Chula Vista Bayfront Master Plan & Port Master Plan Amendment (District Clerk Nos. 59406); (viii) Mitigation Monitoring and Reporting Program for the Chula Vista Bayfront Master Plan (District Clerk No. 56555); and (ix) the CDP for the Resort Hotel, the Convention Center and Parking Improvements.

DEFAULT RATE: an annual rate equal to the lesser of (i) the annual “Bank Prime Loan” rate cited in the Federal Reserve Statistical Release Publication H.15(519), published weekly (or such other
comparable ind ex as Landlord and Tenant shall reasonably agree upon if such rate ceases to be published), plus four (4) percentage points, and (ii) the highest rate permitted by applicable Law.

DELAYED START

GROUND LEASE

EXPANSION
AMENDMENT:
defined in Section 11.1.1.

DELAYED START

GROUND LEASE

EXPANSION
AMENDMENT NOTICE:
defined in Section 11.1.1.

DEMOLITION AND
REMEDIATION REPORT:
a report prepared by a contractor licensed in the State of California with expertise in demolition and remediation, which report details and estimates the current cost and time period for completion of the demolition work that is required by Section 7.2 and any remediation work that may be required by Section 21.3.

DESIGNATED NOMINEE: defined in Section 10.3.2.

DEVELOPER'S PHASE 1A

INFRASTRUCTURE
IMPROVEMENTS:
defined in the Project Implementation Agreement.

DEVELOPMENT: Tenant’s development of, collectively, the Parking Improvements, the Resort Hotel, the Convention Center and Tenant’s Phase 1A Improvements.

DIR: defined in Section 6.8.1(d)(ii).

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DEFINITIONS ADDENDUM

DISCRETIONARY
ENTITLEMENT:
defined in Section 8.1.

DISCRETIONARY
PROJECT:
defined in Section 8.1.

DISTRICT DOCUMENTS: defined in Section 22.4.2.

EARLY TERMINATION
DATE:
defined in Section 7.2.

EIR: defined in Section 1.3.

ENVIRONMENTAL
CLEANUP:
defined in Section 21.1.4.

ENVIRONMENTAL LAWS: defined in Section 21.1.1.

EQUITY COLLATERAL
ENFORCEMENT ACTION:
defined in Section 10.1.3.

EVENT OF DEFAULT: defined in Section 12.1.

EXCAVATED SOIL
REMOVAL:
defined in Section 21.5.1.

EXISTING
IMPROVEMENTS:
any improvements (including utilities, storm drains and park ways) located upon the land (and water, if applicable) that are in existence and located on, in, over or under the Hotel Land and the Parking Premises as of the Commencement Date and the Convention C enter Land as of the Expansion Date, whether constructed by Landlord, a prior tenant or another third party.

EXPANSION: if, and only if, the Ground Lease Expansion Amendment Effective Date occurs, the expansion of the Premises to include the Expansion Pr emises in accordance with a Ground Lease
Expansion Amendment.

EXPANSION DATE: the date, following the Ground Lease Amendment Effective Date, if any, when the Expansion occurs.

EXPANSION EFFECTIVE
DATE:
the date when the Convention Center Sublease (a) terminates, or is deemed terminated, before the date when the Convention Center Sublease would have expired in accordance with its terms (except in the event of an early termination of the Convention Center Sublease pursuant to Section 5.1(d), Section

5.2(b) or Section 8.2(a) of the Convention Center Sublease, in

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DEFINITIONS ADDENDUM
which case no Expansion shall occur) or (b) expires in
accordance with its terms.

EXPANSION PREMISES: defined in the recitals.

EXPIRATION DATE: defined in Section 1.1.2.

EXTENDED

CONSTRUCTION PERIOD
DEADLINE:
defined in Section 6.1.1.

FACILITY LEASE: defined in the recitals.

FINANCIAL INSTITUTION: Any one of the following that is in good legal standing under the laws of its jurisdiction of incorporation having assets exceeding One Billion Dollars ($1,000,000,000): (i) an insurance company qualified to do business in the state of California; or (ii) a U.S. federally- or state-chartered bank, savings bank, or savings and loan association; or (iii) a pension or retirement fund operated for the employees and former employees of, and regulated and controlled by, the United States of America or any state thereof, or any agency thereof (e.g., the California State Teachers’ Retirement System); or (iv) a real estate investment trust; or (v) any lender or investment fund whose regular on - going business includes real property secured, or mezzanine, financing for commercial or industrial properties; or (vi) a Person owned and Controlled by any one or more of the preceding entities; or (vii) a trust company that is organized and doing business under the laws of any state or the United States of America, regularly acts as a collateral agent or indenture trustee for indebtedness that is secured by commercial or industrial property, and is subject to supervision or examination by federal or state authority; (viii) a combination of two or more of the preceding entities; or (ix) a trustee, servicer or authorized agent that is established to form a single asset trust to issue certificates or other beneficial interests in a loan: (a) that is Controlled by any of the entities set forth in (i) through (v) above, (b) that in each case is authorized under the Laws to exercise corporate trust powers and to accept the trust conferred, (c) that is subject to supervision and examination by federal or state authority, and (d) whose regular on-going business includes serving as a trustee, servicer or an authorized agent for real property secured financing for commercial or industrial properties.

FINANCING
TRANSACTION:
defined in Section 10.1.1.

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DEFINITIONS ADDENDUM

FIRST-CLASS
CONDITION:
(x) the quality, condition, maintenance, and repair standards described in the Hotel Management Agreement in effect that shall be in accordance with the level of quality (i) as to the Resort Hotel, at the time of the opening of the Resort Hotel for business, subject to any ordinary wear and tear and any Alterations and (ii) as to the Convention Center, from and after the Expansion Date, at the time of the opening of the Convention Center for business, subject to any ordinary wear and tear and any Alterations; or (y) if no Hotel Management Agreement is in effect, then the quality, condition, maintenance, and repair standards under the Hotel Management Agreement last consented to by Landlord (until a new one is approved) and in accordance with the level of quality (i) as to the Resort Hotel, at the time of the opening of the Resort Hotel for business (if applicable), subject to any ordinary wear and tear and any Alterations and (ii) as to the Convention Center, from and after the Expansion Date, at the time of the opening of the Convention Center for business, subject to any ordinary wear and tear and any Alterations.

FORCE MAJEURE
EVENT:
defined in Section 6.5.

FORCE MAJEURE
NOTICE:
defined in Section 6.5.5.

FORCE MAJEURE
RESPONSE:
defined in Section 6.5.5.

FORECLOSURE
PURCHASER:
defined in Section 10.3.3.

GOVERNMENTAL
AGENCY:
defined in Section 21.1.2.

GOVERNMENTAL
AUTHORITY:
each and every governmental agency, authority, bureau,
department, quasi -governmental body, or other entity or instrumentality having or claiming jurisdiction over the Premises (or any activity this Lease allows), including without limitation, the Landlord and the City, United States federal government, the State and County governments and their subdivisions and municipalities, and all applicable Government Agencies, governmental authorities, and subdivisions thereof.

GREATER OF RENT: defined in Section 5.2.

GROSS INCOME: defined in Section 5.4.2(a).

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DEFINITIONS ADDENDUM

GROUND LEASE

EXPANSION
AMENDMENT:
means any Delayed Start Ground Lease Expansion Amendment or any Immediate Start Ground Lease Expansion Amendment, as the case may be.

GROUND LEASE

EXPANSION

AMENDMENT EFFECTIVE
DATE:
the date when any Ground Lease Expansion Amendment is fully executed and delivered by Landlord and Tenant and
acknowledged before a notary public.

HARD CONSTRUCTION
COSTS:
with respect to any component of the Tenant’s Initial Project Improvements or Major Alterations, all costs that Tenant is required to pay to the respective construction contractor for the construction of such component of the Tenant’s Initial Project Improvements or Major Alt erations, as applicable, under the construction agreement for such component of the Tenant’s Initial Project Improvements or such Major Alterations, as applicable.

HAZARDOUS MATERIAL: any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including, without limitation, asbestos and oil and petroleum products, which is a “Hazardous Material” or “Hazardous Substance” within the meaning of any applicable Law (including, but not limited to, hazardous substances as defin ed by Cal. Health & Safety Code § 25316 and anything that may result in contamination or pollution as defined by Cal. Water Code § 13050), and at any concentration that is subject to regulation under any Law relating to such Hazardous Material or Hazardous Substance. Notwithstanding any exclusion from the definition of hazardous substance or hazardous material in any applicable Law, Hazardous Material as defined herein includes any hydrocarbons, petroleum, petroleum products or waste and any other chemical, substance or waste, that is regulated by, or may form the basis of liability under, any Environmental Laws.

HAZARDOUS MATERIALS
ACTIVITY:
defined in Section 21.1.1.

HMMD: defined in Section 21.4.1.

HOTEL LAND: defined in Section 1.2.

HOTEL MANAGEMENT
AGREEMENT:
management agreement for the Resort Hotel, the Convention Center and the Parking Improvements between Tenant and the Hotel Operator.

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DEFINITIONS ADDENDUM

HOTEL MANAGEMENT
AGREEMENT NOTICE:
defined in Section 15.4.2.

HOTEL OPERATOR: Marriott or its successor in accordance with this Lease.

IMMEDIATE START

GROUND LEASE

EXPANSION
AMENDMENT:
defined in Section 11.1.1.

IMMEDIATE START

GROUND LEASE

EXPANSION
AMENDMENT NOTICE:
defined in Section 11.1.1.

IMPROVEMENTS: those buildings, structures and other improvements (including vaults, utilities and other underground improvements) now (including any Existing Improvements) or hereafter (including Initial Project Improvements and Alterations thereto) located on, in, over or under the Premises; provided, however,
“Improvements” shall exclude the Convention Center
Improvements and any Alterations thereto until the Expansion Date, and shall include the Convention Center Improvements and any Alterations thereto thereafter.

INCENTIVE FEE HURDLE: defined in Section 5.5.

INCURABLE DEFAULT: defined in Section 10.3.2(b).

INDENTURE: the Indenture, dated as of the date hereof, by and between Wilmington Trust, National Association, as trustee, and the JEPA, as amended, amended and restated, supplemented or otherwise modified from time to time.

INDEPENDENT
CONSULTANT:
defined in Section 21.1.5.

INITIAL FORCE MAJEURE
NOTICE:
defined in Section 6.5.5.

INITIAL PROJECT
IMPROVEMENTS:
the Improvements that are located on the Premises and are initially developed by Tenant and described by the Plans and the Parking Improvement Plans, as applicable, and from and after the Expansion Date, by the Convention Center Plans (as defined in the Project Implementation Agreement) (in each case, as opposed to Existing Improvements and subsequent Alterations to the Initial Project Improvements); provided, however, that “Initial Project Improvements ” shall exclude the Convention

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DEFINITIONS ADDENDUM
Center Improvements until the Expansion Date, and shall include the Convention Center Improvements thereafter.

INQUIRY: defined in Section 21.1.2.

INSPECTION REPORT: defined in Section 15.3.

JEPA: defined in the recitals.

JUDICIAL REFERENCE: defined in Section 10.4.3(a).

LANDLORD: defined in the preamble of this Lease.

LANDLORD END OF
TERM ELECTION:
defined in Section 7.2.

LANDLORD PARTIES: Landlord and the officers, directors, members of the BPC, employees, partners, affiliates, agents, contractors, successors and assigns of Landlord, in each case, when acting only in the capacity of a Landlord Party.

LANDLORD TRANSFER: defined in Section 29.5.

LANDLORD’S
MATERIALS:
defined in Section 22.4.2.

LANDLORD’S NON-
DEMOLITION NOTICE:
defined in Section 7.2.

LATE CHARGES: defined in Section 5.6.

LATE COMPLETION: defined in Section 6.1.1.

LAWS: all of the following to the extent (i) applicable to the Premises, the Improvements or any activity under this Lease, (ii) binding and enforceable and (iii) promulgated, adopted, approved or enacted by a Governmental Authority: present and future state of California, federal and local laws, orders, ordinances, regulations, statutes, requirements, codes and executive orders, including, without limitation, the ADA, and any law of like import, and all rules, regulations and government orders with respect thereto, including without limitation any of the foregoing relating to Hazardous Materials, environmental matters (including, but not limited to, Comprehensive Environmental Response,
Compensation and Liability Act (“ CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Clean Air Act, the Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act and comparable and supplemental California laws), the

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DEFINITIONS ADDENDUM
California Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended.

Said Laws shall include, but are not limited to, the Laws enacted by the San Diego Un ified Port District Act, such as Article 10 of the San Diego Unified Port District Code; the PMP; the policies of the BPC; any applicable ordinances of the city in which the Premises are located, including the building code thereof, and any permits and app rovals by any Governmental Authority and the Landlord, including, without limitation, any California Coastal Development Permit, applicable to the Premises or the use or development thereof.

LEASE: defined in the preamble to this Lease.

LEASE YEAR: defined in Section 1.5.

LEASEHOLD AWARD: defined in Section 14.7.1.

LETTER OF CREDIT: defined in Section 28.2.

LOAN DOCUMENTS: defined in Section 10.1.1.

MAJOR ALTERATIONS: defined in Section 6.3.1.

MANAGEMENT
INCENTIVE FEE:
defined in Section 5.5.

MAXIMUM INCENTIVE
FEE PERCENTAGE:
defined in Section 5.5.

MARRIOTT: Marriott Hotel Services, Inc. or any of its Affiliates.

MATERIAL
EXACERBATION:
defined in Section 21.1.4.

MEET & CONFER
PERIOD:
defined in Section 6.5.5.

MEETING SPACE: defined in Section 5.4.1(b).

MEMORANDUM OF
LEASE:
defined in Section 29.4.

MEZZANINE INTERESTS: defined in Section 10.1.3.

MICC: defined in Section 10.1.3(a).

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DEFINITIONS ADDENDUM
MINIMUM ANNUAL RENT: defined in Section 1.5 and Section 5.3.

MINIMUM ANNUAL RENT

LOOK BACK
ADJUSTMENT:
defined in Section 5.3.

MINIMUM ENERGY

EFFICIENCY DESIGN
STANDARD:
the requirement that each building operate at an energy consumption level equal to or better than the more stringent of the following two standards: (i) fifteen percent (15%) less than the amount of energy that each building would otherwise be permitted to consume under 2010 Title 24; or (ii) the minimum energy efficiency performance standard adopted by the City at the time a building permit application is submitted for each building.

MINIMUM RENT LOOK

BACK ADJUSTMENT
DATES:
defined in Section 1.5 and Section 5.3.

MINOR ALTERATIONS: defined in Section 6.3.2.

MONTHLY PARKING
REPORT:
defined in Section 5.4.3.

MONTHLY REPORT: defined in Section 5.4.3.

MUNICIPAL BREACH a breach by JEPA, City, Special Tax District, or Landlord under the Project Implementation Agreement (except for a breach of the Landlord’s obligations that are set forth in Section 2.3 of the Project Implementation Agreement, which is governed by
Section 21.3 of the Project Implementation Agreement), a breach by City under the Convention Center Sublease, a breach by the City or the JEPA under the Facility Lease, a breach by Landlord or the JEPA under the Site Lease, or a breach by Landlord under this Lease.

NEIGHBORING
PARCELS:
defined in Section 4.9.

NET OPERATING
INCOME:
defined in Section 5.5.

NEW LEASE: defined in Section 10.3.2(d).

NEW LEASE PERIOD: defined in Section 10.3.2(d).

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DEFINITIONS ADDENDUM

NEW OUTSIDE
COMPLETION DATE:
defined in Section 10.6.2.

NEW TENANT: defined in Section 10.3.2(d).

NON-PARKING
IMPROVEMENTS:

Improvements other than (x) the Existing Improvements and any Alterations thereto and (y) the Parking Improvements and any Alterations thereto.

NOTICE OF ELECTION
TO TERMINATE:
defined in Section 20.2.

OCCURRENCE: defined in Section 18.2.1.

OFAC: defined in Section 17.3.

OPERATING EXPENSES: defined in Section 5.5.

OPERATION: defined in Section 5.5.

ORIGINAL LLC
AGREEMENT:
that certain Limited Liability Company Agreement of RIDA Chula Vista, LLC, dated as of February, 2018, as amended pursuant to any amendment that does not amend the management of
Tenant.

ORIGINAL MEMBER: defined in Section 11.6.

ORIGINAL OUTSIDE

CONSTRUCTION
COMPLETION DATE:
defined in Section 1.8(c).

OUTSIDE

CONSTRUCTION
COMMENCEMENT DATE:
defined in Section 1.8(a).

OUTSIDE

CONSTRUCTION
COMPLETION DATE:
defined in Section 1.8(d).

PARKING IMPROVEMENT
PLANS:
defined in Section 6.1.2(b).

PARKING
IMPROVEMENTS:
defined in Section 1.3.

PARKING PREMISES: defined in Section 1.2.

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DEFINITIONS ADDENDUM
PARKING RENT: defined in Section 5.1.3.

PARKING REVENUE: defined in Section 5.1.3.

PARKING USE: defined in Section 1.3.

PARTY; PARTIES The Landlord and Tenant.

PERCENTAGE RENT: defined in Section 5.4.

PERCENTAGE RENT
RATE:
defined in Section 5.4.

PERMITTED FINANCING
ENCUMBRANCE:
defined in Section 10.2.

PERMITTED EQUITY

FINANCING
ENCUMBRANCE:
defined in Section 10.2.

PERMITTED LEASE

FINANCING
ENCUMBRANCE:
defined in Section 10.2.

PERMITTED LOAN

GUARANTY
defined in 10.1.3.

PERMITTED LENDER: defined in Section 10.2.

PERMITTED MEZZANINE
LENDER:
(a) any Person that is approved by Landlord (including pursuant to Section 10.1.3) and that is a party to a security agreement, pledge agreement or similar inst rument or agreement that creates any security interest in the Mezzanine Interests securing Tenant’s (or a Pledgor's) payment and performance in
connection with any Financing Transaction and (b) from and after the date that is the later of (i) the date when the Resort Hotel is Complete and (ii) the date when the Parking Improvements are Complete, any Person that holds an interest in a loan that is secured by any security interest in the Mezzanine Interests in circumstances where a permitted syndication has o ccurred and such security interest is held by, and the administration of such loan is done by, an agent that is approved by Landlord.

PERMITTED MORTGAGE
LENDER:
defined in Section 10.2.

PERMITTED USE: defined in Section 1.3.

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DEFINITIONS ADDENDUM
PERSON: any individual, partnership, firm, joint venture, association, corporation, limited liability company, government agency or any other form of business entity.

PLANS: defined in Section 6.1.1.

PLEDGOR: defined in Section 10.1.3(b).

PMP: defined in Section 4.5.

PMPA: defined in Section 8.1.

POST-LATE
COMPLETION FAILURE:
defined in Section 6.1.1.

PRE-APPROVED
ADVERTISING DEVICES:
means all Advertising Devices visible from outside the Premises or the Improvements that have been previously approved by the Landlord in writing.

PRE-EXISTING
HAZARDOUS MATERIAL:
any Hazardous Material located on or under the Premises or the Convention Center Premises prior to the Commencement Date, whether known or unknown, and any Hazardous Material located outside the Premises and the Convention Center Premises (including any premises owned by Landlord) prior to the Commencement Date that migrates onto the Premises
thereafter.

PREMISES: defined in Section 1.2.

PREMISES SURFACE
PARKING:
defined in Section 4.3.

PRIMARY USE: defined in Section 1.3.

PRIOR AGREEMENTS: defined in Section 3.2.

PRIVATE
IMPROVEMENTS:
(a) the Resort Hotel, (b) the Existing Improvements on the Hotel Land, (c) the Parking Improvements, (d) the Existing
Improvements on the Parking Premises and (e) any Alterations to any of the foregoing.

PROHIBITED PERSON: defined in Section 17.3.

PROHIBITED PERSONS: defined in Section 17.3.

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DEFINITIONS ADDENDUM
PROJECT: Tenant’s development of the Initial Project Improvements and (if not part of the Initial Project Improvements) the Convention Center.

PROJECT

IMPLEMENTATION
AGREEMENT:
defined in the recitals.

PROJECT REVENUES: defined in Section 5.5.

PROPERTY EXPENSES: defined in Section 16.3.

PROPERTY TAX
CONTEST:
defined in Section 4.6.1.

PROPERTY TAX
EXPENSES:
property taxes and assessments with respect to the Premises and the Initial Project Improvements (including, without limitation, real estate taxes, possessory interest taxes, general and special taxes and assessments, leasehold taxes or taxes based upon Tenant’s receipt of rent, but excluding all taxes imposed upon net income or gain).

PUBLIC IMPROVEMENTS: the Convention Center Improvements and Tenant’s Phase 1A Improvements.

PWL: defined in Section 6.8.1(a)
REDEVELOPMENT PLAN: defined in Section 6.10.

REDEVELOPMENT PLAN
PACKAGE:
defined in Section 6.10.

REFERENCE NOTICE: defined in Section 10.4.3(c).

REIMBURSEMENT
PROCEDURE:
defined in Section 5.8.

REJECTED
TRANSFEREE:
defined in Section 10.4.3(a).

RELATED COSTS: any costs, damages (of all kinds including punitive damage, diminution in value and loss of use), claims, liabilities, expenses (including reasonable attorneys’, consultants’ and experts’ fees), losses, fines, penalties and court costs related to the subject matter of the Related Costs and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs. For the avoidance of doubt, Related Costs shall not

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DEFINITIONS ADDENDUM
include any Tax Expenses or items expressly excluded from the definition of Tax Expenses pursuant to Section 16.1.

RELOCATION
AGREEMENT:
that certain Relocation Agreement, dated as of July 13, 1999, by and among the City, Redevelopment Agency of the City of Chula Vista, Landlord and Rohr, as amended by the Amendment to Relocation Agreement, dated as of November 1, 1999, the Second Amendment to Relocation Agreement, dated as of
February 2, 2010, and the Third Amendment to Relocation Agreement, dated as of September 10, 2013.

REMAINING PHASE 1A

INFRASTRUCTURE
IMPROVEMENTS:
defined in the Project Implementation Agreement.

REMEDIATION
FACILITIES NOTICE:
defined in Section 4.8.

REMEDIATION
FACILITIES RESPONSE:
defined in Section 4.8.

RENT: defined in Article 5.

RENT COMMENCEMENT
DATE:
defined in Section 1.4.

RENTAL PERIODS: defined in Section 1.4.

RESORT HOTEL: defined in Section 1.3.

RESORT HOTEL AND

PARKING

IMPROVEMENTS

OUTSIDE

CONSTRUCTION
COMPLETION DATE:
defined in Section 1.8(b).

RESORT HOTEL PLANS: defined in Section 6.1.1.

REVENUE: all income, receipts, proceeds, amounts, money, cash, assets, property or other things of value, whether collected, uncollected, received, payable or accrued.

REVIEW PROCESSES: defined in Section 6.6.

ROHR: defined in Section 4.8.

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DEFINITIONS ADDENDUM
ROOM: a separately keyed lodging unit of the Resort Hotel.

SDRWQCB: defined in Section 21.4.3.

SETTLEMENT
AGREEMENT:

Chula Vista Bayfront Master Plan Settlement Agreement, dated May 4, 2010, among the Bayfront Coalition Mem ber
Organizations identified therein, Landlord, the City of Chula Vista and the Redevelopment Agency of the City of Chula Vista (District Clerk No. 56523).

SITE LEASE: defined in the recitals.

SPE LENDER AFFILIATE: defined in Section 10.3.3(d).

SPECIAL TAX DISTRICT: defined in Section 16.1.

SUBLEASE: any sublease (or sub -sublease or other level of sublease), and any occupancy, franchise, license, concession agreement or other right to use applicable to this Lease or the Premises or the Improvements or a ny part thereof; provided, however, that “Sublease” excludes (i) any agreement for temporary use of the Meeting Space or Rooms in the Resort Hotel and (ii) Hotel Management Agreement.

SUBLEASE NOTICE: defined in Section 11.1.3.

SUBSTANTIAL CITY
INTEREST PROVISIONS:
at any time prior to the Expansion Date and, with respect to Section 8.2, Section 18.3.2 and Article 19, at any time prior to the date that is the third (3 rd) anniversary of the Expansion Date, Section 4.4, Section 4.6, Section 5.1.3, Section 6.1, Section 8.2, Section 10.1, Section 10.6.2, Section 15.4, Section 18.3.2, Article 19 and Section 29.19, and definitions of terms used therein.

SUBSTANTIAL
COMPLETION:
means, with respect to any improvements, that all work has been completed with respe ct to such improvements, except for any punch list items.

SUBSTANTIALLY ALL: at least eighty percent (80%) of rentable square footage.

SUBTENANT: any subtenant (or sub -subtenant or other level of subtenant), occupant, franchisee, licensee, or concessionaire under any Sublease; provided, however, that “Subtenant” shall exclude the Hotel Operator.

SWEETWATER PARK
OPTION:
defined in the Project Implementation Agreement.

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DEFINITIONS ADDENDUM
TAKING: a taking by exercise of the power of eminent domain.

TAX CLAIM: defined in Section 16.2(c).

TAX EXPENSES: defined in Section 16.1.

TEMPORARY
CONDEMNATION:
defined in Section 14.6.

TENANT: defined in the Preamble of this Lease.

TENANT ART
INVESTMENT:
defined in Section 1.8(e).

TENANT FUNDING: defined in Section 4.6.2.

TENANT HAZARDOUS
MATERIAL:
any Hazardous Material either (i) brought onto the Premises or Improvements during the Term by any Person or (ii) brought onto the Premises, Improvements or any other property by Tenant, Tenant Party, or Hotel Operator or generated by any of the same.

TENANT MEMBER: defined in Section 17.3.

TENANT PARTY: Tenant, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, licensees, concessionaires, Affiliates and successors an d assigns of Tenant, and Subtenants, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, concessionaires, licensees, Affiliates and successors and assigns of each of such Subtenants, in each case, when acting only in the capacity of a Tenant Party.

TENANT RECORDS: defined in Section 5.4.3(c).

TENANT’S DEMOLITION
ELECTION:
defined in Section 7.2.

TENANT’S INITIAL

PROJECT
IMPROVEMENTS:
the Initial Project Improvements but never the Convention Center Improvements.

TENANT’S INITIAL

PROJECT

IMPROVEMENTS
COMPLETION ELECTION:
defined in Section 10.6.2.

TENANT’S INITIAL

PROJECT
defined in Section 10.6.2.

DA-23

US-DOCS\114405603.65
US-DOCS\114405603.81
US-DOCS\114405603.84

DEFINITIONS ADDENDUM

IMPROVEMENTS

COMPLETION ELECTION
NOTICE:

TENANT’S PHASE 1A
IMPROVEMENTS:
defined in Section 6.11.

TENANT’S STANDALONE

CONVENTION CENTER
OBLIGATIONS:
defined in Section 7.2.

TERM: defined in Section 3.1.

THIRD PARTY
BENEFICIARY NOTICE:
defined in Section 29.19.

TRANSFER: defined in Section 11.5.1.

TRANSFER NOTICE: defined in Section 11.5.2.

TRANSFEREE: defined in Section 11.5.2 and 11.5.3, as applicable.

TRUSTEE: defined in the Indenture.

USA PATRIOT ACT: defined in Section 17.3.

UST LAW: defined in Section 18.2.6.

USTs: defined in Section 21.4.1.

A-1-1

US-DOCS\114405603.84
EXHIBIT A-1

LEGAL DESCRIPTION OF PRE-EXPANSION PREMISES

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CHULA VISTA, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

ALL THAT CERTAIN PORTION OF LAND CONVEYED TO THE SAN DIEGO UNIFIED PORT

DISTRICT BY THAT CERTAIN ACT OF LEGISLATURE OF THE STATE OF CALIFORNIA PURSUANT TO CHAPTER 67, STATUTES OF 1962, 1ST EXTRAORDINARY SESSION, AS AMENDED AND DELINEATED ON THAT CERTAIN MISCELLANEOUS MAP NO. 562, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON MAY 28, 1976, FILE NO. 76- 164686, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO AND THAT PORTION OF “G” STREET, AS SAID “G” STREET WAS DEDICATED AND ESTABLISHED AS AND FOR A PUBLIC STREET BY THE CITY OF CHULA VISTA COUNSEL RESOLUTION NO. 4205, DATED 4TH OF OCTOBER 1966, (SAN DIEGO UNIFIED PORT DISTRICT DOCUMENT NO. 2249, DATED 14TH OF OCTOBER 1966) AND THAT PORTION OF TIDELANDS AVENUE,

SUBSEQUENTLY RENAMED MARINA PARKWAY BY THE CITY OF CHULA VISTA COUNCIL RESOLUTION NO. 12338, WAS ALSO ESTABLISHED AS AND FOR A PUBLIC STREET BY

THE SAID DOCUMENTS OF CONVEYANCE, TOGETHER WITH THAT PORTION OF PROPERTY DESCRIBED IN THE FINAL ORDER OF CONDEMNATION RECORDED JUNE 26, 2018 AS INSTRUMENT NO. 2018-0259561, OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

PARCEL 'A'
BEGINNING AT STATION NO. 107 ON THE MEAN HIGH TIDE LINE OF THE BAY OF SAN DIEGO, AS SAID MEAN HIGH TIDE LINE IS SHOWN ON MISCELLANE OUS MAP NO. 217, FILED IN THE RECORDER'S OFFICE OF THE COUNTY OF SAN DIEGO; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH 58°27'22" EAST (RECORD SOUTH 58°28'01" EAST), 105.95 FEET TO THE INTERSECTION WITH THE RIGHT -OF-WAY OF MARINA PARKWAY,

FORMERLY TIDELAN DS AVENUE AS DEDICATED PER DOCUMENT RECORDED OCTOBER 10, 1966 AS FILE NO. 163052 AND THE BEGINNING OF A NON TANGENT 20.00

FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 33°15'14" WEST; THENCE ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 49° 04' 33" A DISTANCE OF 17.13 FEET TO A POINT HEREINAFTER KNOWN AS POINT 'A'; THENCE CONTINUING ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22° 02' 58" A DISTANCE OF 7.70 FE ET; THENCE CONTINUING ALONG SAID RIGHT OF WAY THE FOLLOWING THREE COURSES: 1) SOUTH 14°22'45" EAST, 269.73 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 4,740.00 FEET; 2) THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL A NGLE OF 03°32'06" A DISTANCE OF 292.44 FEET; 3) THENCE SOUTH 17°54'50" EAST, 705.69 FEET; THENCE LEAVING SAID RIGHT-OF-WAY SOUTH 72°12'12" WEST, 14.67 FEET; THENCE SOUTH 67°45'00" WEST, 64.39 FEET;
THENCE SOUTH 72°12'12" WEST, 72.20 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 72°12'12" WEST, 76.74 FEET;
THENCE SOUTH 65°55'34" WEST, 100.60 FEET;
THENCE SOUTH 72°12'12" WEST, 421.30 FEET;
THENCE SOUTH 68°48'31" WEST, 50.66 FEET;

A-1-2

US-DOCS\114405603.84
THENCE SOUTH 72°12'12" WEST, 353.50 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 69.00 FEET;
THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71°44'52" A DISTANCE OF 86.40 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 94.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 53°57'04" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18°00'01" A DISTANCE OF 29.53 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE WESTERLY HAVING A RADIUS OF 506.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°20'39" A DISTANCE OF 38.36 FEET;
THENCE NORTH 22°23'34" WEST, 59.77 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 494.00 FEET;
THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°35'46" A DISTANCE OF 39.63 FEET; THENCE NORTH 17°47'48" WEST, 460.08 FEET TO THE

BEGINNING OF A TANGENT CURVE
CONCAVE EASTERLY HAVING A RADIUS OF 4,994.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 02°25'18" A DISTANCE OF 211 .08 FEET; THENCE NORTH 15°22'30" WEST, 136.86 FEET TO THE BEGINNING OF TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 272.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 78°34'28" A DISTANCE OF 373.02 FEET;
THENCE NORTH 63°11'58" EAST, 207.99 FEET;
THENCE SOUTH 17°47'46" EAST, 372.75 FEET;
THENCE SOUTH 72°25'54" WEST, 84.95 FEET;
THENCE SOUTH 17°34'06" EAST, 100.27 FEET;
THENCE NORTH 72°25'54" EAST, 118.07 FEET;
THENCE SOUTH 17°34'06" EAST, 1.81 FEET;
THENCE NORTH 72°26'06" EAST, 121.66 FEET;
THENCE SOUTH 17°47'38" EAST, 193.43 FEET;
THENCE SOUTH 62°34'06" EAST, 33.81 FEET;
THENCE NORTH 72°45'10" EAST, 45.60 FEET;
THENCE SOUTH 17°34'06" EAST, 346.24 FEET;
THENCE SOUTH 72°52'32" WEST, 14.25 FEET;
THENCE SOUTH 17°34'06" EAST, 22.65 FEET;
THENCE NORTH 74°10'06" EAST, 9.39 FEET;
THENCE NORTH 85°45'23" EAST, 11.10 FEET;
THENCE SOUTH 84°56'52" EAST, 14.79 FEET;
THENCE SOUTH 70°41'58" EAST, 17.06 FEET;
THENCE SOUTH 63°24'30" EAST, 68.58 FEET;
THENCE SOUTH 62°34'06" EAST, 24.53 FEET;
THENCE SOUTH 72°42'50" EAST, 19.41 FEET;
THENCE SOUTH 80°35'22" EAST, 17.55 FEET;
THENCE SOUTH 86°35'34" EAST, 18.27 FEET;
THENCE SOUTH 86°10'39" EAST, 16.09 FEET;
THENCE SOUTH 76°31'40" EAST, 12.98 FEET;
THENCE SOUTH 56°17'05" EAST, 8.85 FEET;
THENCE SOUTH 37°33'31" EAST, 5.60 FEET;
THENCE NORTH 88°15'34" EAST, 32.25 FEET;

A-1-3

US-DOCS\114405603.84
THENCE NORTH 89°25'59" EAST, 24.07 FEET;
THENCE SOUTH 89°22'43" EAST, 32.40 FEET;
THENCE SOUTH 88°14'32" EAST, 31.74 FEET;
THENCE SOUTH 87°00'15" EAST, 23.79 FEET;
THENCE SOUTH 03°28'36" WEST, 8.00 FEET;
THENCE SOUTH 87°11'55" EAST, 23.86 FEET;
THENCE SOUTH 79°25'36" EAST, 27.73 FEET;
THENCE SOUTH 74°05'34" EAST, 21.14 FEET;
THENCE SOUTH 78°16'38" EAST, 13.37 FEET;
THENCE SOUTH 88°19'10" EAST, 23.16 FEET TO THE TRUE POINT OF BEGINNING.

EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN

SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE SUCH

DEPOSITS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN STATUTES 1962 FIRST EXTRAORDINARY SESSION, CHA PTER 67, SECTION 87; STATUTES OF 1963 REGULAR SESSION, CHAPTER 673, SECTION 40.

ALSO EXCEPTING THEREFROM TO THE STATE OF CALIFORNIA, IN ALL THE LAND

DESCRIBED HEREIN, ALL MINERAL AND MINERAL DEPOSITS, INCLUDING BUT NOT

LIMITED TO, OIL AND GAS, OTHER GASES, INCLUDING, BUT NOT LIMITED TO

NONHYDROCARBON AND GEOTHERMAL GASES, OIL SHALE, COAL, PHOSPHATE,

ALUMINA, SILICA, FOSSILS OF ALL GEOLOGICAL AGES, SODIUM, GOLD, SILVER, METALS

AND THEIR COMPOUNDS, ALKALI, ALKALI EARTH, SAND, CLAY, GRAVEL, SALTS AND

MINERAL W ATERS, URANIUM, TRONA, AND GEOTHERMAL RESOURCES, TOGETHER

WITH THE RIGHT OF THE STATE OR PERSONS AUTHORIZED BY THE STATE TO

PROSPECT FOR, DRILL FOR, EXTRACT, MINE AND REMOVE SUCH DEPOSITS OR

RESOURCES, AND TO OCCUPY AND USE SO MUCH OF THE SURFACE OF THE LA NDS

AS MAY BE NECESSARY THEREFORE AS RESERVED IN THAT CERTAIN GRANT DEED RECORDED DECEMBER 30, 1999 AS INSTRUMENT NO. 1999 -0845740 OF OFFICIAL RECORDS.

TOGETHER WITH

PARCEL 'B'
BEGINNING AT THE AFOREMENTIONED POINT 'A'; THENCE SOUTH 72°19'26"WEST, 54.89 FEET TO THE TRUE POINT OF BEGINNING OF PARCEL 'B'; THENCE SOUTH 17°34'06" EAST, 237.50 FEET; THENCE SOUTH 72°25'54" WEST, 305.50 FEET; THENCE NORTH 17°34'06" WEST, 279.27 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 77.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 12°50'44" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20°30'53" A DISTANCE OF 27.57 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 130.00 FEET; TH ENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 38°58'15" A DISTANCE OF 88.42 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 481.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23°17 '12" A DISTANCE OF 195.49 FEET; THENCE NORTH 72°19'26" EAST, 1.43 FEET TO THE TRUE POINT OF BEGINNING OF PARCEL 'B'.

A-1-4

US-DOCS\114405603.84

EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN

SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE SUCH

DEPOSITS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN STATUTES 1962 FIRST EXTRAORDINARY SESSION, CHAPTER 67, SECTION 87; STATUTES OF 1963 REGULAR SESSION, CHAPTER 673, SECTION 40.

ALSO EXCEPTING THEREFROM TO THE STATE OF CALIFORNIA, IN ALL THE LAND

DESCRIBED HEREIN, ALL MINERAL AND MINERAL DEPOSITS, INCLUDING BUT NOT

LIMITED TO, OIL AND GAS, OTHER GASES, INCLUDING, BUT NOT LIMITED TO

NONHYDROCARBON AND GEOTHERMAL GASES, OIL SHALE, COAL, PHOSPHATE,

ALUMINA, SILICA, FOSSILS OF ALL GEOLOGICAL AGES, SODIUM, GOLD, SILVER, METALS

AND THEIR COMPOUNDS, ALKALI, ALKALI EARTH, SAND, CLAY, GRAVEL, SALTS AND

MINERAL WATERS, URANIUM, TRONA, AND GEOTHERMAL RESOURCES, TOGETHER

WITH THE RIGHT OF THE STATE OR PERSONS AUTHORIZED BY THE STATE TO

PROSPECT FOR , DRILL FOR, EXTRACT, MINE AND REMOVE SUCH DEPOSITS OR

RESOURCES, AND TO OCCUPY AND USE SO MUCH OF THE SURFACE OF THE LANDS

AS MAY BE NECESSARY THEREFORE AS RESERVED IN THAT CERTAIN GRANT DEED RECORDED DECEMBER 30, 1999 AS INSTRUMENT NO. 1999 -0845740 OF OF FICIAL RECORDS.

A-2-1

US-DOCS\114405603.84
EXHIBIT A-2

LEGAL DESCRIPTION OF HOTEL LAND

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CHULA VISTA, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

ALL THAT CERTAIN PORTION OF LAND CONVEYED TO THE SAN DIEGO UNIFIED PORT

DISTRICT BY THAT CERTAIN ACT OF LEGISLATURE OF THE STATE OF CALIFORNIA PURSUANT TO CHAPTER 67, STATUTES OF 1962, 1ST EX TRAORDINARY SESSION, AS AMENDED AND DELINEATED ON THAT CERTAIN MISCELLANEOUS MAP NO. 562, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON MAY 28, 1976, FILE NO. 76- 164686, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO AND THAT PORTION OF “G” STREET, AS SAID “G” STREET WAS DEDICATED AND ESTABLISHED AS AND FOR A PUBLIC STREET BY THE CITY OF CHULA VISTA COUNSEL RESOLUTION NO. 4205, DATED 4TH OF OCTOBER 1966, (SAN DIEGO UNIFIED PORT DISTRICT DOCUMENT NO. 2249, DATED 14TH OF OCTOBER 1966) AND THAT PORT ION OF TIDELANDS AVENUE,

SUBSEQUENTLY RENAMED MARINA PARKWAY BY THE CITY OF CHULA VISTA COUNCIL RESOLUTION NO. 12338, WAS ALSO ESTABLISHED AS AND FOR A PUBLIC STREET BY

PARCEL 'A'
BEGINNING AT STATION NO. 107 ON THE MEAN HIGH TIDE LINE OF THE BAY OF SAN DIEGO, AS SAID MEAN HIGH TIDE LINE IS SHOWN ON MISCELLANEOUS MAP NO. 217, FILED IN THE RECORDER'S OFFICE OF THE COUNTY OF SAN DIEGO; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH 58°27'22" EAST (RECORD SOUTH 58°28'01" EAST), 105.95 FEET TO THE INTERSECTION WITH THE RIGHT -OF-WAY OF MARINA PARKWAY,

FORMERLY TIDELANDS AVENUE AS DEDICATED PER DOCUMENT RECORDED OCTOBER 10, 1966 AS FILE NO. 163052 AND THE BEGINNING OF A NON TANGENT 20.00

FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 33°15'14" WEST; THENCE ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 49° 04' 33" A DISTANCE OF 17.13 FEET TO A POINT HEREINAFTER KNOWN AS POINT 'A'; THENCE CONTINUING ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22° 02' 58" A DISTANCE OF 7.70 FEET; THENCE CONTINUING ALONG SAID RIGHT OF WAY THE FOLLOWING THREE COURSES: 1) SOUTH 14°22'45" EAST, 269.73 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 4,740.00 FEET; 2) THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03°32'06" A DISTANCE OF 292.44 FEET; 3) THENCE SOUTH 17°54'50" EAST, 705.69 FEET; THENCE LEAVING SAID RIGHT-OF-WAY SOUTH 72°12'12" WEST, 14.67 FEET; THENCE SOUTH 67°45'00" WEST, 64.39 FEET;
THENCE SOUTH 72°12'12" WEST, 72.20 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 72°12'12" WEST, 76.74 FEET;
THENCE SOUTH 65°55'34" WEST, 100.60 FEET;
THENCE SOUTH 72°12'12" WEST, 421.30 FEET;
THENCE SOUTH 68°48'31" WEST, 50.66 FEET;

A-2-2

US-DOCS\114405603.84
THENCE SOUTH 72°12'12" WEST, 353.50 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 69.00 FEET;
THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71°44'52" A DISTANCE OF 86.40 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHEASTERLY HAVING A RA DIUS OF 94.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 53°57'04" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18°00'01" A DISTANCE OF 29.53 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE WESTERLY HAVING A RADIUS OF 506.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°20'39" A DISTANCE OF 38.36 FEET;
THENCE NORTH 22°23'34" WEST, 59.77 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 494.00 FEET;
THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°35'46" A DISTANCE OF 39.63 FEET; THENCE NORTH 17°47'48" WEST, 460.08 FEET TO THE

BEGINNING OF A TANGENT CURVE
CONCAVE EASTERLY HAVING A RADIUS OF 4,994.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 02°25'18" A DISTANCE OF 211.08 FEET; THENCE NORTH 15°22'30" WEST, 136.86 FEET TO THE BEGINNING OF TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 272.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 78°34'28" A DISTANCE OF 373.02 FEET;
THENCE NORTH 63°11'58" EAST, 207.99 FEET;
THENCE SOUTH 17°47'46" EAST, 372.75 FEET;
THENCE SOUTH 72°25'54" WEST, 84.95 FEET;
THENCE SOUTH 17°34'06" EAST, 100.27 FEET;
THENCE NORTH 72°25'54" EAST, 118.07 FEET;
THENCE SOUTH 17°34'06" EAST, 1.81 FEET;
THENCE NORTH 72°26'06" EAST, 121.66 FEET;
THENCE SOUTH 17°47'38" EAST, 193.43 FEET;
THENCE SOUTH 62°34'06" EAST, 33.81 FEET;
THENCE NORTH 72°45'10" EAST, 45.60 FEET;
THENCE SOUTH 17°34'06" EAST, 346.24 FEET;
THENCE SOUTH 72°52'32" WEST, 14.25 FEET;
THENCE SOUTH 17°34'06" EAST, 22.65 FEET;
THENCE NORTH 74°10'06" EAST, 9.39 FEET;
THENCE NORTH 85°45'23" EAST, 11.10 FEET;
THENCE SOUTH 84°56'52" EAST, 14.79 FEET;
THENCE SOUTH 70°41'58" EAST, 17.06 FEET;
THENCE SOUTH 63°24'30" EAST, 68.58 FEET;
THENCE SOUTH 62°34'06" EAST, 24.53 FEET;
THENCE SOUTH 72°42'50" EAST, 19.41 FEET;
THENCE SOUTH 80°35'22" EAST, 17.55 FEET;
THENCE SOUTH 86°35'34" EAST, 18.27 FEET;
THENCE SOUTH 86°10'39" EAST, 16.09 FEET;
THENCE SOUTH 76°31'40" EAST, 12.98 FEET;
THENCE SOUTH 56°17'05" EAST, 8.85 FEET;
THENCE SOUTH 37°33'31" EAST, 5.60 FEET;
THENCE NORTH 88°15'34" EAST, 32.25 FEET;

A-2-3