EXHIBIT 10.14
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 18th day of May, 2000, between ARE-3770
TANSY STREET, LLC, a Delaware limited liability company ("LANDLORD"), and
STRUCTURAL GENOMIX, INC., a Delaware corporation ("TENANT").
ADDRESS: 0000 Xxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
PREMISES: The real property described on EXHIBIT A together with the building
containing approximately 15,410 rentable sq. ft. located thereon, and all
appurtenances thereto, and including Area A, Area B and Area C as follows:
AREA A PREMISES: That portion of the building located on the Premises containing
approximately 3,127 rentable square feet ("RSF") as identified on EXHIBIT A-1
AREA B PREMISES: That portion of the building located on the Premises containing
approximately 6,283 RSF as identified on EXHIBIT A-2
AREA C PREMISES: That portion of the building located on the Premises containing
approximately 6,000 RSF as identified on EXHIBIT A-3
BASE RENT: $2.03 per RSF per month
RENTABLE AREA OF PREMISES: Approximately 15,410 sq. ft.
TENANT'S PRO RATA SHARE OF THE PREMISES: Upon Area B Commencement Date, 40.77%;
upon Area A Commencement Date, 61.06%;
upon Area C Commencement Date, 100%.
SECURITY DEPOSIT: $125,129.20
AREA B COMMENCEMENT DATE: August 1, 2000
AREA A COMMENCEMENT DATE: November 1, 2000
AREA COMMENCEMENT DATE: March 1, 2001
RENT ADJUSTMENT PERCENTAGE: 4.00%
TERM: From the Area B Commencement Date until December 31, 2005
PERMITTED USE: research and development laboratory, office and other related
uses
ADDRESS FOR RENT PAYMENT: LANDLORD'S NOTICE ADDRESS:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Accounts Receivable Attention: General Counsel
TENANT'S NOTICE ADDRESS:
00000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
The following Exhibits and Addenda are attached hereto and incorporated herein
by this reference:
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[X] EXHIBIT A - PREMISES DESCRIPTION (Includes Exhibits X-0, X-0 and A-3)
[X] EXHIBIT B - WORK LETTER
[X] EXHIBIT C - COMMENCEMENT DATE
[X] EXHIBIT D - TENANT'S PERSONAL PROPERTY
[X] EXHIBIT E - ESTOPPEL CERTIFICATE
[X] EXHIBIT F - NONDISTURBANCE AGREEMENT
[X] EXHIBIT G - CONDITION OF AREA B UPON TERMINATION
1. LEASE OF PREMISES. Upon and subject to all of the terms and conditions
hereof, Landlord hereby leases the Premises to Tenant and Tenant hereby leases
the Premises from Landlord.
1.1 10505 ROSELLE LEASE: Tenant is a tenant of Landlord's under a lease
dated as of September 20th, 1999, for certain premises at a property
located at 00000 Xxxxxxx Xxxxxx, Xxx Xxxxx. Xxxxxxxxxx. As a condition
precedent to the Commencement Date of this Lease, Landlord and Tenant
shall have executed an amendment to the Roselle Street Lease under which
the Term of the Roselle Street Lease shall be extended to December 31,
2005.
2. DELIVERY; ACCEPTANCE OF PREMISES; COMMENCEMENT DATE. Landlord shall use
reasonable efforts to deliver the Area A Premises to Tenant on or before the
Area A Commencement Date, the Area B Premises to Tenant on or before the Area B
Commencement Date, and the Area C Premises to Tenant on or before the Area C
Commencement Date. Landlord's delivery of the Area A Premises, the Area B
Premises or the Area C Premises shall be referred to herein as "DELIVERY" or
"DELIVER". If Landlord fails to timely Deliver any of the Area A Premises, the
Area B Premises or the Area C Premises, Landlord shall not be liable to Tenant
for any loss or damage resulting therefrom, and this Lease shall not be void or
voidable except as provided herein, but the payment of rent shall xxxxx until
the date that Landlord shall actually Deliver any portion of the Premises.
Notwithstanding anything to the contrary herein, (i) Tenant shall accept
the each portion of the Premises in their condition as of the Area A
Commencement Date, the Area B Commencement Date, and the Area C Commencement
Date respectively, subject to all applicable laws, ordinances, regulations,
covenants and restrictions; (ii) Landlord shall have no obligation for any
defects in the Premises; and (ii) Tenant's taking possession of the Premises
shall be conclusive evidence that that the Tenant accepts the Premises and that
the Premises were in good condition at the time possession was taken. Any
occupancy of Area A prior to the Area A Commencement Date, or Area C prior to
the Area C Commencement Date by Tenant before the any Commencement Date shall be
subject to all of the terms and conditions of this Lease, including the
obligation to pay Rent. Tenant shall be entitled to use all of the common areas
of the Premises after the Area B Commencement Date. Tenant shall have access to
the Premises prior to any Commencement Date for the purposes of installing
Tenant's equipment and preparing for occupancy as set forth in the Work Letter
attached as Exhibit B.
Tenant agrees and acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the condition
of any or all of the Premises, and/or the suitability of the Premises for the
conduct of Tenant's business, and Tenant waives any implied warranty that the
Premises are suitable for the Permitted Use. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof and
supersedes any and all prior representations, inducements, promises, agreements,
understandings and negotiations which are not contained herein. Landlord in
executing this Lease does so in reliance upon Tenant's representations,
warranties, acknowledgments and agreements contained herein.
Upon the expiration or earlier termination of this Lease, upon the
election of Landlord, Tenant shall return the Area B Premises to Landlord in
substantially the condition shown on EXHIBIT G, "Condition of Area B Upon
Termination". Any alterations or improvements made by Tenant during the Term
which are not shown on EXHIBIT G will be removed by Tenant at Tenant's sole cost
prior to the Termination Date at Landlord's election.
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3. RENT.
(a) BASE RENT. The first month's Base Rent for the Area B Premises and the
Security Deposit shall be due and payable on delivery of an executed copy of
this Lease to Landlord. Tenant's obligation to pay Base Rent for the Area A
Premises shall commence as of the Area A Commencement Date. Tenant's obligation
to pay Base Rent for the Area B Premises shall commence as of the Area B
Commencement Date. Tenant's obligation to pay Base Rent for the Area C Premises
shall commence as of the Area C Commencement Date. Tenant shall pay to Landlord
in advance, without demand, abatement (except as specifically provided for in
Section 18), deduction or set-off, monthly installments of Base Rent on or
before the first day of each calendar month during the Term hereof, in lawful
money of the United States of America, at the office of Landlord for payment of
Rent set forth above, or to such other person or at such other place as Landlord
may from time designate in writing. Payments of Base Rent for any fractional
calendar month shall be prorated and paid on the basis of a 30 day month. The
obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to xxxxx, reduce, or set-off any Rent due
hereunder except for any abatement as may be expressly provided in this Lease.
(b) ADDITIONAL RENT. In addition to Base Rent, Tenant agrees to pay to
Landlord as additional rent ("ADDITIONAL Rent"): (i) Tenant's Pro Rata Share of
"Operating Expenses," and (ii) Tenant's Pro Rata Share of any and all other
amounts Tenant assumes or agrees to pay under the provisions of this Lease,
including, without limitation, any and all other sums that may become due by
reason of any default of Tenant or failure to comply with the agreements, terms,
covenants and conditions of this Lease to be performed by Tenant, after any
applicable notice and cure period.
4. BASE RENT ADJUSTMENTS. Base Rent shall be increased on each annual
anniversary of the first day of the first full month following the Commencement
Date during the Term of this Lease by multiplying the Base Rent payable
immediately before such adjustment by the Rent Adjustment Percentage and adding
the resulting amount to the Base Rent payable immediately before such
adjustment. Base Rent, as so adjusted, shall thereafter be due as provided
herein. Base Rent adjustments for any fractional calendar month shall be
prorated.
5. OPERATING EXPENSE PAYMENTS. Landlord shall deliver to Tenant a written
estimate of Tenant's Pro Rata Share of Operating Expenses for each calendar year
during the Term in reasonable detail by the type of expense (the "ANNUAL
ESTIMATE"), which may be revised by Landlord from time to time during such
calendar year. During each month of the Term, on the same date that Base Rent is
due, Tenant shall pay Landlord an amount equal to 1/12 of the annual cost, as
reasonably estimated by Landlord from time to time, of Operating Expenses.
Payments for any fractional calendar month shall be prorated.
The term "OPERATING EXPENSES" means all costs and expenses of any kind or
description whatsoever incurred or accrued by Landlord with respect to the
Premises (including Taxes, reasonable reserves consistent with good business
practice for future replacements of capital items, capital repairs and
improvements amortized over the lesser of 7 years and the useful life of such
capital items and the costs of Landlord's third party property manager or, if
there is no third party property manager, administration rent in the amount of
3.0% of Base Rent), excluding only:
(a) the original construction costs of the Premises and renovation prior
to the date of the Lease and costs of correcting defects in such
original construction or renovation;
(b) completing, fixturing, improving, renovating, painting, redecorating
or other work, which Landlord pays for or performs for tenants
within the Premises and costs of correcting defects in such work;
(c) capital expenditures for expansion of the Premises;
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(d) ground lease payments, interest, financing costs and amortization of
funds borrowed by Landlord, whether secured or unsecured;
(e) depreciation of the Premises (except for capital improvements, the
cost of which are includable in Operating Expenses);
(f) advertising, legal and space planning expenses, leasing commissions
and other costs and expenses incurred in procuring tenants for the
Premises, including any leasing office maintained in the Premises;
(g) salaries, wages, benefits and other compensation paid to officers
and employees of Landlord who are not assigned in whole or in part
to the operation, management, maintenance or repair of the Premises;
(h) any expenses otherwise includable within Operating Expenses to the
extent intended to be reimbursed by persons other than Tenant;
(i) costs relating to maintaining Landlord's existence, either as a
corporation, partnership, or other entity;
(j) costs (including attorneys' fees and costs of settlement, judgments
and payments in lieu thereof) arising from claims, disputes or
potential disputes pertaining to Landlord, but not the Premises, or
from Landlord's failure to make any payment required to be made by
Landlord hereunder before delinquency;
(k) tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payment and/or to file any tax or
informational returns when due;
(I) overhead and profit increment paid to the Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in
or to the Premises to the extent the same exceeds the costs of such
goods and/or services rendered by unaffiliated third parties on a
competitive basis;
(m) costs arising from Landlord's charitable or political contributions
or fine art maintained at the Premises;
(n) costs incurred in the sale or refinancing of the Premises;
(o) net income, franchise, capital stock, estate or inheritance taxes;
(p) costs of repairs and other work due to fire, windstorm, or other
casualty to the extent of any net insurance recovery;
(q) costs of correcting any building code or other violations which were
violations prior to the Commencement Date of this Lease; and
(r) costs incurred by Landlord due to the violation by Landlord, its
employees, agents or contractors of any Legal Requirement.
Within 90 days after the end of each calendar year (or such longer period
as may be reasonably required), Landlord shall furnish to Tenant a statement (an
"ANNUAL STATEMENT") showing in reasonable detail: (a) the total actual Operating
Expenses for the previous calendar year, and (b) the total of Tenant's payments
in respect of Operating Expenses for such year. If actual Operating Expenses for
such year exceed Tenant's payments of Operating Expenses for such year, the
excess shall be immediately due and payable by Tenant as Rent. If Tenant's
payments of Operating Expenses for such year exceed actual
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Operating Expenses for such year Landlord shall, in its sale and absolute
discretion, either: (i) credit the excess amount to the next succeeding
installments of Operating Expenses due hereunder, or (ii) pay the excess to
Tenant within 30 days after delivery of such Annual Statement, except that after
expiration, or earlier termination of the Term, Landlord shall pay the excess to
Tenant after deducting all other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless Tenant,
within 30 days after Tenant's receipt thereof, shall contest any item therein by
giving written notice to Landlord, specifying each item contested and the reason
therefor. If, during such 30 day period, Tenant reasonably and in good faith
questions or contests the correctness of Landlord's statement of Operating
Expenses, Landlord will provide Tenant with access to Landlord's books and
records relating to the operation of the Premises and such information as
Landlord reasonably determines to be responsive to Tenant's questions. If after
Tenant's review of such information, Landlord and Tenant cannot agree upon the
amount of Operating Expenses, then Tenant shall have the right to have an
independent public accounting firm selected from among the 6 largest in the
United States, hired by Tenant (at Tenant's sole cost and expense) and approved
by Landlord (which approval shall not be unreasonably withheld or delayed),
audit and/or review Landlord's books and records relating to the operation of
the Premises and such other information relating to the operation of the
Premises for the year in question (the "INDEPENDENT REVIEW"). The results of any
such Independent Review shall be binding on Landlord and Tenant. If the
Independent Review shows that the Operating Expenses actually paid by Tenant for
the calendar year in question exceeded Tenant's obligations for such calendar
year, Landlord shall at Landlord's option either (i) credit the excess amount to
the next succeeding installments of estimated Operating Expenses or (ii) pay the
excess to Tenant within 30 days after delivery of such statement, except that
after expiration or earlier termination of the Term, Landlord shall pay the
excess to Tenant after deducting all other amounts due Landlord. If the
Independent Review shows that Tenant's payments of Operating Expenses for such
calendar year were less than Tenant's obligation for the calendar year, Tenant
shall pay the deficiency to the Landlord within 30 days after delivery of such
statement. If the Independent Review shows that Tenant has overpaid Operating
Expenses by more than 10% then Landlord shall reimburse Tenant for all costs
incurred by Tenant for the Independent Review. Operating Expenses for the
calendar years in which Tenant's obligation to pay the same begins and ends
shall be prorated.
Base Rent, Operating Expenses and all other amounts payable by Tenant to
Landlord hereunder are collectively referred to herein as "RENT".
6. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord as
security for the performance of Tenant's obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon each occurrence of a Default, Landlord
may use all or part of the Security Deposit to pay delinquent payments due under
this Lease, and the cost of any damage, injury, expense or liability caused by
such Default, without prejudice to any other remedy provided herein or provided
by law. Upon any such use of all or any portion of the Security Deposit, Tenant
shall pay Landlord on demand the amount that will restore the Security Deposit
to its original amount. Upon bankruptcy or other debtor-creditor proceedings
against Tenant, the Security Deposit shall be deemed to be applied first to the
payment of Rent and other charges due Landlord for periods prior to the filing
of such proceedings. Landlord's obligation respecting the Security Deposit is
that of a debtor, not a trustee; no interest shall accrue thereon. The Security
Deposit shall be the property of Landlord, but the balance remaining, if any,
after Tenant's obligations under this Lease have been completely fulfilled shall
be paid to Tenant. Landlord shall be released from any obligation with respect
to the Security Deposit upon transfer of this Lease and the Premises to a person
or entity assuming Landlord's obligations under this Section 6. Tenant hereby
waives the provisions of any law, now or hereafter in force, which provide that
Landlord may claim from a security deposit only those sums reasonably necessary
to remedy defaults in the payment of Rent, to repair damage caused by Tenant or
to clean the Premises, it being agreed that Landlord may, in addition, claim
those sums reasonably necessary to compensate Landlord for any other loss or
damage, foreseeable or unforeseeable, caused by the act or omission of Tenant or
any officer, employee, agent or invitee of Tenant. If Tenant shall fully perform
every provision of this Lease to be performed by Tenant, the Security Deposit,
or any balance
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thereof, shall be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest hereunder) within 60 days after the expiration or
earlier termination of this Lease.
7. USE. The Premises shall be used solely for the Permitted Use set forth
in the Basic Lease Provisions and for lawful purposes incidental thereto, all in
compliance with all laws, orders, judgments, ordinances, regulations, codes,
directives, permits, licenses, covenants and restrictions now or hereafter
applicable to the Premises, and the use and occupancy thereof (collectively,
"LEGAL REQUIREMENTS"). Tenant shall, upon 5 days' written notice from Landlord,
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of any Legal Requirement. Tenant
will not use or permit the Premises to be used for any purpose or in any manner
that would void Tenant's or Landlord's insurance, increase the insurance risk,
or cause the disallowance of any sprinkler or other credits. Tenant shall
reimburse Landlord promptly upon demand for any additional premium charged for
any such insurance policy by reason of Tenant's failure to comply with the
provisions of this Section or otherwise caused by Tenant's use and/or occupancy
of the Premises. Tenant will use the Premises in a careful, safe and proper
manner and will not commit waste, overload the floor or structure of the
Premises, subject the Premises to use that would damage the Premises or obstruct
or interfere with the rights of Landlord or other tenants or occupants of the
Premises, including conducting or giving notice of any auction, liquidation, or
going out of business sale on the Premises, or using or allowing the Premises to
be used for any unlawful purpose. Tenant shall not place any machinery or
equipment weighing 500 pounds or more in or upon the Premises or transport or
move such items within the Premises or in the elevators without the prior
written consent of Landlord. Except as may be provided under the Work Letter,
Tenant shall not, without the prior written consent of Landlord, use the
Premises in any manner which will require ventilation, air exchange, heating,
gas, steam, electricity or water beyond the existing capacity of the Premises.
Landlord shall be responsible for the compliance of the exterior of the
Premises, including access requirements, with the Americans With Disabilities
Act, 42 U.S.C. Section 12101, et seq. (together with regulations promulgated
pursuant thereto, "ADA") as of the Commencement Date. Tenant, at its sole
expense, shall make any alterations or modifications, to the interior or
exterior of the Premises, that are required by Legal Requirements (including,
without limitation, compliance of the interior of the Premises with the ADA as
of the Commencement Date) related to Tenant's use or occupancy of the Premises.
Notwithstanding any other provision herein to the contrary, Tenant shall be
responsible for any and all demands, claims, liabilities, losses, costs,
expenses, actions, causes of action, damages or judgments, and all reasonable
expenses incurred in investigating or resisting the same (including, without
limitation, reasonable attorneys' fees, charges and disbursements and costs of
suit) (collectively, "CLAIMS") arising out of or in connection with Legal
Requirements and Tenant shall indemnify, defend, hold and save Landlord harmless
from and against any and all Claims arising out of or in connection with any
failure of Tenant to comply with the requirements of this Section.
8. HOLDING OVER. If, with Landlord's express written consent, Tenant
retains possession of the Premises after the termination of the Term, (i) unless
otherwise agreed in such written consent, such possession shall be subject to
immediate termination by Landlord at any time, (ii) all of the other terms and
provisions of this Lease (including, without limitation, the adjustment of Base
Rent pursuant to Section 4 hereof) shall remain in full force and effect
(excluding any expansion or renewal option or other similar right or option)
during such holdover period, (iii) Tenant shall continue to pay Base Rent in the
amount payable upon the date of the expiration or earlier termination of this
Lease or such other amount as Landlord may indicate, in Landlord's sale and
absolute discretion, in such written consent, and (iv) all other payments shall
continue under the terms of this Lease. If Tenant remains in possession of the
Premises after the expiration or earlier termination of the Term without the
express written consent of Landlord, (A) Tenant shall become a tenant at
sufferance upon the terms of this Lease except that the monthly rental shall be
equal to 150% of the Rent in effect during the last 30 days of the Term, and (B)
Tenant shall be responsible for all damages suffered by Landlord resulting from
or occasioned by Tenant's holding over. No holding over by Tenant, whether with
or without consent of Landlord, shall operate to extend this Lease except as
otherwise expressly provided, and this Section 8 shall not be construed as
consent for Tenant to retain possession of the Premises. Acceptance by Landlord
of Rent after the Term Expiration Date or earlier termination of this Lease
shall not result in a renewal or reinstatement of this Lease.
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9. TAXES. Landlord shall pay, as part of Operating Expenses, Tenant's Pro
Rata Share of all taxes, levies, assessments and governmental charges of any
kind (collectively referred to as "TAXES") imposed by any federal, state,
regional, municipal, local or other governmental authority or agency, including,
without limitation, quasi-public agencies (collectively, "GOVERNMENTAL
AUTHORITY") during the Term, including, without limitation all Taxes: (i)
imposed on or measured by or based, in whole or in part, on rent payable to
Landlord under this Lease and/or from the rental by Landlord of the Premises or
any portion thereof, or (ii) based on the square footage, assessed value or
other measure or evaluation of any kind of the Premises, or (iii) assessed or
imposed by or on the operation or maintenance of any portion of the Premises,
including parking, or (iv) assessed or imposed on the Premises or the rent
payable to Landlord under this Lease and/or from the rental by Landlord of the
Premises or any portion thereof by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by, any
Governmental Authority, or (v) imposed as a license or other fee on Landlord's
business of leasing space in the Premises. Landlord may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens
securing Taxes. Taxes shall not include any net income taxes or any corporate,
franchise, value-added, inheritance or similar taxes imposed on Landlord unless
such taxes are in substitution for any Taxes payable hereunder. If any such Tax
is levied or assessed directly against Tenant, then Tenant shall be responsible
for and shall pay the same at such times and in such manner as the taxing
authority shall require. Tenant shall pay, prior to delinquency, any and all
Taxes levied or assessed against any personal property or trade fixtures placed
by Tenant in the Premises, whether levied or assessed against Landlord or
Tenant. If any Taxes on Tenant's personal property or trade fixtures are levied
against Landlord or Landlord's property, or if the assessed valuation of the
Premises is increased by a value attributable to improvements in or alterations
to the Premises, whether owned by Landlord or Tenant and whether or not affixed
to the real property so as to become a part thereof, higher than the base
valuation on which Landlord from time-to-time allocates Taxes to all tenants in
the Premises, Landlord shall have the right, but not the obligation, to pay such
Taxes. Landlord's reasonable determination of any excess assessed valuation
shall be binding and conclusive, absent manifest error. The amount of any such
payment by Landlord shall constitute Additional Rent due from Tenant to Landlord
immediately upon demand.
10. PARKING. At no additional cost, Tenant shall have the right to use
Tenant's Pro Rata Share of parking spaces at the Project in common with other
tenants of the Project, and to park passenger vehicles (including cars,
passenger vans, utility vehicles, and light trucks) only in those areas
designated for parking subject in each case to Landlord's rules and regulations.
11. UTILITIES, SERVICES.
Tenant shall pay directly to the utility provider, prior to
delinquency, for all water, electricity, heat, light, power, telephone, sewer,
and other utilities (including gas and fire sprinklers to the extent the
Premises is plumbed for such services), refuse and trash collection and
janitorial services furnished to the Premises (collectively, "UTILITIES"). No
interruption or failure of Utilities, from any cause whatsoever other than
Landlord's willful misconduct, shall result in eviction or constructive eviction
of Tenant, termination of this Lease or the abatement of Rent.
12. ALTERATIONS AND TENANT'S PROPERTY. Any alterations, additions, or
improvements made to the Premises by or on behalf of Tenant, including
additional locks or bolts of any kind or nature upon any doors or windows in the
Premises, but excluding installation, removal or realignment of furniture
systems (other than removal of furniture systems owned or paid for by Landlord)
not involving any modifications to the structure or connections (other then by
ordinary plugs or jacks) to building systems ("ALTERATIONS") shall be subject to
Landlord's prior written consent, which may be given or withheld in Landlord's
sole discretion if any such Alteration affects the structure or building
systems. Tenant shall be allowed to make alterations, additions or improvements
to the Premises without Landlord's prior consent provided that such alterations,
additions, or improvements do not exceed $25,000 in cost in any 12 month period
and do not affect the structure or building systems. If Landlord approves any
Alterations, Landlord may impose such conditions on Tenant in connection with
the commencement, performance and completion of such Alterations as Landlord may
deem appropriate in Landlord's reasonable discretion. Any request for approval
shall be in writing, delivered not less than 15 business days in advance of any
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proposed construction, and accompanied by plans, specifications, bid proposals,
work contracts and such other information concerning the nature and cost of the
alterations as may be reasonably requested by Landlord, including the identities
and mailing addresses of all persons performing work or supplying materials.
Landlord's right to review plans and specifications and to monitor construction
shall be solely for its own benefit, and Landlord shall have no duty to ensure
that such plans and specifications or construction comply with applicable legal
Requirements. Tenant shall cause, at its sale cost and expense, all Alterations
to comply with insurance requirements and with legal Requirements and shall
implement at its sale cost and expense any alteration or modification required
by legal Requirements as a result of any Alterations. Tenant shall pay to
Landlord, as Additional Rent, on demand an amount equal to 10% of all charges
incurred by Tenant or its contractors or agents in connection with any
Alteration to cover Landlord's overhead and expenses for plan review,
coordination, scheduling and supervision (and no charge in respect of such
services shall be included in Operating Expenses). Before Tenant begins any
Alteration, Landlord may post on and about the Premises notices of
non-responsibility pursuant to applicable law. Tenant shall reimburse Landlord
for, and indemnify and hold Landlord harmless from, any expense incurred by
Landlord by reason of faulty work done by Tenant or its contractors, delays
caused by such work, or inadequate cleanup.
Tenant shall furnish security or make other arrangements satisfactory to
Landlord to assure payment for the completion of all Alteration work free and
clear of liens, and shall provide certificates of insurance for worker's
compensation and other coverage in amounts and from an insurance company
satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any
Alterations, Tenant shall deliver to Landlord: (i) a general contractor's
affidavit setting forth the names of all contractors and subcontractors who did
the work and final lien waivers from all such contractors and subcontractors;
and (ii) as built plans for any such Alteration in excess of $10,000.
Other than (i) the items, if any, listed on EXHIBIT D attached hereto and,
(ii) any items agreed by Landlord in writing to be included on EXHIBIT D in the
future, and (iii) any trade fixtures, machinery, equipment and other personal
property not paid for out of the TI Fund (as defined in the Work Letter) which
may be removed without material damage to the Premises, which damage shall be
repaired by Tenant during the Term (collectively, "TENANT'S PROPERTY"), all
property of any kind paid for with the TI Fund, all Alterations, real property
fixtures, built-in machinery and equipment, built-in casework and cabinets and
other similar additions and improvements built into the Premises so as to become
an integral part of the Premises, such as fume hoods which penetrate the roof or
plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms,
walk-in warm rooms, deionized water system, glass washing equipment, autoclaves,
chillers, built-in plumbing, electrical and mechanical equipment and systems,
and any power generator and transfer switch (collectively, "INSTALLATIONS")
shall be and shall remain the property of Landlord during the Term and following
the expiration or earlier termination of the Term, shall not be removed by
Tenant at any time during the Term and shall remain upon and be surrendered with
the Premises as a part thereof following the expiration or earlier termination
of this Lease; provided, however, that Landlord shall, at the time its approval
of such Installation is requested notify Tenant if it has elected to cause
Tenant to remove such Installation upon the expiration or earlier termination of
this Lease. If Landlord so elects, Tenant shall remove such Installation upon
the expiration or earlier termination of this Lease and restore any damage
caused by or occasioned as a result of such removal, including, when removing
any of Tenant's Property which was plumbed, wired or otherwise connected to any
of the building systems, capping off all such connections behind the walls of
the Premises and repairing any holes. During any such restoration period, Tenant
shall pay Rent to Landlord as provided herein as if said space were otherwise
occupied by Tenant. Nothing in this Section 12 shall be construed to eliminate
Tenant's obligation to return the Area Premises to Landlord at the expiration or
earlier termination of the Lease in substantially the condition shown on EXHIBIT
G if Landlord so elects.
Subject to the provisions of Section 15 herein, Landlord agrees (i) that
Tenant shall have the right, at its discretion, to hypothecate Tenant's trade
fixtures, equipment and other personal property within the Premises as security
for its obligations under any equipment lease or other financing arrangement
related to the conduct of Tenant's business, and (ii) to execute within 10
business days of delivery to Landlord or as soon as reasonably possible
thereafter documentation reasonably required to
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waive any rights Landlord may have in and to any such personal property,
including trade fixtures and equipment, which Tenant may wish to lease or
finance.
13. LANDLORD'S REPAIRS. Landlord shall maintain the exterior and
structural portions of the Premises, including the foundation, floor slab, roof
and curtain walls, in good repair, reasonable wear and tear and uninsured losses
and damages caused by Tenant, its agents, servants, employees, invitees and
contractors excluded. Losses and damages caused by Tenant, its agents, servants,
employees, invitees and contractors shall be repaired by Landlord, to the extent
not covered by insurance, at Tenant's sole cost and expense. Landlord shall have
no responsibility or liability for any maintenance, repair or interruption of
Utility services from any cause whatsoever, all of which shall be Tenant's
responsibility pursuant to Section 14 hereof. Tenant shall promptly give
Landlord written notice of any repair required by Landlord pursuant to this
Section, after which Landlord shall have a reasonable opportunity to effect such
repair. Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after Tenant's written notice of the need for such repairs or maintenance.
Tenant waives it rights under any state or local law to terminate this Lease or
to make such repairs at Landlord's expense and agrees that the parties'
respective rights with respect to such matters shall be solely as set forth
herein. Repairs required as the result of fire, earthquake, flood, vandalism,
war, or similar cause of damage or destruction shall be controlled by Section
18.
14. TENANT'S REPAIRS. Subject to Section 13 hereof, Tenant, at its
expense, shall repair, replace and maintain in good condition all interior
portions of the Premises, including, without limitation, entries, doors,
ceilings, interior windows, interior walls, the interior side of demising walls,
and all Utility systems including HVAC, plumbing, fire sprinklers, elevators and
all other building systems serving the Premises using contractors under service
agreements approved by Landlord. Such repair and replacements may include
capital expenditures and repairs whose benefit may extend beyond the Term.
Should Tenant fail to make any such repair or replacement or fail to maintain
the Premises, Landlord shall give Tenant notice of such failure. If Tenant fails
to commence cure of such default within 10 business days of Landlord's notice,
and thereafter diligently prosecute such cure to completion, Landlord may
perform such work and shall be reimbursed by Tenant within 10 business days
after demand therefor; provided, however, that if such default by Tenant creates
or could create an emergency, Landlord may immediately commence cure of such
default and shall thereafter be entitled to recover the costs of such cure from
Tenant. Subject to Sections 17 and 18, Tenant shall bear the full uninsured cost
of any repair or replacement to any part of the Premises that results from
damage caused by Tenant, its agents, contractors, or invitees and any repair
that benefits only the Premises.
15. MECHANIC'S LIENS. Tenant shall discharge, by bond or otherwise, any
mechanic's lien filed against the Premises for work claimed to have been done
for, or materials claimed to have been furnished to, Tenant within 10 days after
the filing thereof, at Tenant's sole cost and shall otherwise keep the Premises
free from any liens arising out of work performed, materials furnished or
obligations incurred by Tenant. Should Tenant fail to discharge any lien
described herein, Landlord shall have the right, but not the obligation, to pay
such claim or post a bond or otherwise provide security to eliminate the lien as
a claim against title to the Premises and the cost thereof shall be immediately
due from Tenant as Additional Rent. If Tenant shall lease or finance the
acquisition of office equipment, furnishings, or other personal property of a
removable nature utilized by Tenant in the operation of Tenant's business,
Tenant warrants that any Uniform Commercial Code Financing Statement executed by
Tenant will upon its face or by exhibit thereto indicate that such Financing
Statement is applicable only to removable personal property of Tenant located
within the Premises. In no event shall the address of the Premises be furnished
on the statement without qualifying language as to applicability of the lien
only to removable personal property, located in an identified Area held by
Tenant.
16. INDEMNIFICATION. Tenant hereby indemnifies and agrees to defend, save
and hold Landlord harmless from and against any and all Claims for injury or
death to persons or damage to property occurring within or about the Premises,
arising directly or indirectly out of use or occupancy of the Premises or a
breach or default by Tenant in the performance of any of its obligations
hereunder, unless caused solely by the willful misconduct or gross negligence of
Landlord. Landlord shall not be liable to Tenant for, and Tenant assumes all
risk of damage to, personal property (including, without
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 10
limitation, loss of records kept within the Premises). Tenant further waives any
and all Claims for injury to Tenant's business or loss of income relating to any
such damage or destruction of personal property (including, without limitation,
any loss of records). Landlord shall not be liable for any damages arising from
any act, omission or neglect of any tenant in the Premises or of any other third
party.
17. INSURANCE. Landlord shall maintain all insurance against any peril
generally included within the classification "Fire and Extended Coverage,"
sprinkler damage (if applicable), vandalism and malicious mischief covering the
full replacement cost of the Premises or such lesser coverage amount as Landlord
may elect provided such coverage amount is not less than 90% of such full
replacement cost. Landlord shall further carry commercial general liability
insurance with a single loss limit of not less than $2,000,000 for death or
bodily injury, or property damage with respect to the Premises. Landlord may,
but is not obligated to, maintain such other insurance and additional coverages
as it may deem necessary, including, but not limited to, flood, environmental
hazard and earthquake (if earthquake coverage is available at commercially
reasonable rates), loss or failure of building equipment, errors and omissions,
rental loss during the period of repair or rebuilding, workmen's compensation
insurance and fidelity bonds for employees employed to perform services and
insurance for any improvements installed by Tenant or which are in addition to
the standard improvements customarily furnished by Landlord without regard to
whether or not such are made a part of the Premises. All such insurance shall be
included as part of the Operating Expenses. The Premises may be included in a
blanket policy (in which case the cost of such insurance allocable to the
Premises will be determined by Landlord based upon the insurer's cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result of
Tenant's use of the Premises.
Tenant, at its sole cost and expense, shall maintain during the Term: all
risk property insurance covering the full replacement cost of all property and
improvements installed or placed in the Premises by Tenant at Tenant's expense;
worker's compensation insurance with no less than the minimum limits required by
law; employer's liability insurance with such limits as required by law; and
commercial general liability insurance, with a minimum limit of not less than
$2,000,000 per occurrence for death or bodily injury and not less than
$1,000,000 for property damage with respect to the Premises. The commercial
general liability insurance policies shall name Landlord, its officers,
directors, employees, managers, agents, invitees and contractors (collectively,
"RELATED PARTIES"), as additional insureds; insure on an occurrence and not a
claims-made basis; be issued by insurance companies which have a rating of not
less than policyholder rating of A and financial category rating of at least
Class XII in "Best's Insurance Guide"; shall not be cancelable unless 30 days
prior written notice shall have been given to Landlord from the insuror; contain
a hostile fire endorsement and a contractual liability endorsement; and provide
primary coverage to Landlord (any policy issued to Landlord providing duplicate
or similar coverage shall be deemed excess over Tenant's policies). Such
policies or certificates thereof shall be delivered to Landlord by Tenant upon
commencement of the Term and upon each renewal of said insurance. Tenant's
policy may be a "blanket policy" which specifically provides that the amount of
insurance shall not be prejudiced by other losses covered by the policy. Tenant
shall, at least 20 days prior to the expiration of such policies, furnish
Landlord with renewals or binders. Tenant agrees that if Tenant does not take
out and maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and at its cost to be paid as
Additional Rent.
In each instance where insurance is to name Landlord as additional
insured, Tenant shall upon written request of Landlord also designate and
furnish certificates so evidencing Landlord as additional insured to: (i) any
lender of Landlord holding a security interest in the Premises or any portion
thereof, (ii) the Landlord under any lease wherein Landlord is tenant of the
real property on which the Premises is located, if the interest of Landlord is
or shall become that of a tenant under a ground lease rather than that of a fee
owner, and/or (iii) any management company retained by Landlord to manage the
Premises.
The property insurance obtained by Landlord and Tenant shall include a
waiver of subrogation by the insurers and all rights based upon an assignment
from its insured, against Landlord or Tenant, and their respective Related
Parties, in connection with any loss or damage thereby insured against. Neither
party nor its respective Related Parties shall be liable to the other for loss
or damage caused by any risk insured against under property insurance required
to be maintained hereunder, and each party waives
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any claims against the other party, and its respective Related Parties for such
loss or damage. The failure of a party to insure its property shall not void
this waiver. Landlord and its respective Related Parties shall not be liable
for, and Tenant hereby waives all claims against such parties for, business
interruption and losses occasioned thereby sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence in or upon the
Premises from any cause whatsoever. If the foregoing waivers shall contravene
any law with respect to exculpatory agreements, the liability of Landlord or
Tenant shall be deemed not released but shall be secondary to the other's
insurer.
Landlord may from time to time require reasonable increases in insurance
policy limits or such increases as are necessary to conform with requirements of
Landlord's lender.
18. RESTORATION. If at any time during the Term the Premises are damaged
by a fire or other insured casualty, Landlord shall notify Tenant as soon as
reasonably possible, but in any event within 60 days after discovery of such
damage as to the amount of time Landlord reasonably estimates it will take to
restore the Premises. If the restoration time is estimated to exceed 9 months,
Landlord may, in such notice, elect to terminate this lease as of the date that
is 75 days after the date of discovery of such damage or destruction; provided,
however, that if Landlord estimates the restoration period to be greater than 9
months, then notwithstanding Landlord's election to restore the Premises, Tenant
may elect to terminate this Lease by written notice to Landlord delivered within
5 business days of receipt of Landlord's notice electing to restore the
Premises. Unless either Landlord or Tenant elects to terminate this Lease,
Landlord shall, subject to receipt of sufficient insurance proceeds (with any
deductible to be treated as a current Operating Expense; provided, however that
with respect to the deductible for earthquake insurance the maximum amount
included in current Operating Expenses shall be 5% of the replacement value of
the Premises), promptly restore the Premises (excluding the improvements
installed by Tenant or by Landlord and paid for by Tenant), subject to delays
arising from the collection of insurance proceeds, from Force Majeure events or
as needed to obtain any license, clearance or other authorization of any kind
required to enter into and restore the Premises issued by any governmental or
quasi-governmental agency having jurisdiction over the use, storage, release or
removal of Hazardous Materials in, on or about the Premises (collectively
referred to herein as "HAZARDOUS MATERIALS CLEARANCES"); provided, however, that
if repair or restoration of the Premises is not Substantially Complete as of the
end of 9 months from the date of damage or destruction, Landlord may, in its
sole and absolute discretion, elect not to proceed with such repair and
restoration, or Tenant may by written notice to Landlord delivered within 5
business days of the expiration of such 9 month period, elect to terminate this
Lease, in which event Landlord shall be relieved of its obligation to make such
repairs or restoration and this Lease shall terminate as of the date that is 75
days after the later of: (i) discovery of such damage or destruction, or (ii)
the date all required Hazardous Materials Clearances are obtained.
Tenant, at its expense, shall promptly perform, subject to delays arising
from the collection of insurance proceeds, from Force Majeure events or to
obtain Hazardous Material Clearances, all repairs or restoration to Tenant's
Alterations, personal property and trade fixtures not required to be done by
Landlord and shall promptly re-enter the Premises and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, Landlord or Tenant
may terminate this lease if the Premises are damaged during the last year of the
Term and Landlord reasonably estimates that it will take more than 3 months to
repair such damage, or if insurance proceeds are not available for such
restoration, by written notice to the other party delivered within 5 business
days of receipt of Landlord's notice to Tenant of such damage. Rent shall be
abated from the date all required Hazardous Material Clearances are obtained
until the Premises are repaired and restored, in the proportion which the area
of the Premises, if any, which is not usable by Tenant bears to the total area
of the Premises, unless Landlord provides Tenant with other space during the
period of repair that is suitable for the temporary conduct of Tenant's
business. Such abatement shall be the sole remedy of Tenant, and except as
provided herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
The provisions of this Lease, including this Section 18, 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 any statute or
regulation which is now or may hereafter be in effect, shall have no application
to this Lease or any damage or destruction to all or any part of the Premises,
the parties
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 12
hereto expressly agreeing this Section 18 sets forth their entire understanding
and agreement with respect to such matters.
19. CONDEMNATION. If any part of the Premises is taken for any public or
quasi-public use under governmental law, ordinance, or regulation, or by right
of eminent domain, or by private purchase in lieu thereof (a "TAKING" or
"TAKEN"), and the Taking would in Landlord's reasonable judgment either prevent
or materially interfere with Tenant's use of the Premises or materially
interfere with or impair Landlord's ownership or operation of the Premises, then
upon written notice by Landlord or Tenant this Lease shall terminate and Rent
shall be apportioned as of said date. If part of the Premises shall be Taken,
and this Lease is not terminated as provided above, Landlord shall promptly
restore the Premises as nearly as is commercially reasonable under the
circumstances to their condition prior to such partial taking and the Rent
payable hereunder during the unexpired Term shall be reduced to such extent as
may be fair and reasonable under the circumstances. Upon any such Taking,
Landlord shall be entitled to receive the entire price or award from any such
Taking without any payment to Tenant, and Tenant hereby assigns to Landlord
Tenant's interest, if any, in such award. Tenant shall have the right, to the
extent that same shall not diminish Landlord's award, to make a separate claim
against the condemning authority (but not Landlord) for such compensation as may
be separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's trade fixtures, if a separate award for such items is made to Tenant.
Tenant hereby waives any and all rights it might otherwise have pursuant to any
provision of state law to terminate this Lease upon a partial Taking of the
Premises.
20. EVENTS OF DEFAULT. Each of the following events shall be a default
("DEFAULT") by Tenant under this Lease:
(a) PAYMENT DEFAULTS. Tenant shall fail to pay any installment of Rent or
any other payment hereunder when due; provided, however, that Landlord will give
Tenant notice and an opportunity to cure any failure to pay Rent within 3 days
of any such notice not more than once in any 12 month period and Tenant agrees
that such notice shall be in lieu of and not in addition to any notice required
by law.
(b) INSURANCE. Any insurance required to be maintained by Tenant pursuant
to this Lease shall be canceled or terminated or shall expire or shall be
reduced or materially changed, or Landlord shall receive a notice of nonrenewal
of any such insurance and Tenant shall fail to obtain replacement insurance at
least 20 days before the expiration of the current coverage.
(c) ABANDONMENT. Tenant shall abandon the Premises.
(d) IMPROPER TRANSFER. Tenant shall assign, sublease or otherwise transfer
or attempt to transfer all or any portion of Tenant's interest in this Lease or
the Premises except as expressly permitted herein, or Tenant's interest in this
Lease shall be attached, executed upon, or otherwise judicially seized and such
action is not released within 90 days of the action.
(e) LIENS. Tenant shall fail to discharge or otherwise obtain the release
of any lien placed upon the Premises in violation of this Lease within 10 days
after any such lien is filed against the Premises.
(f) INSOLVENCY EVENTS. Tenant or any guarantor or surety of Tenant's
obligations hereunder shall: (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"PROCEEDING FOR RELIEF"); (C) become the subject of any Proceeding for Relief
which is not dismissed within 90 days of its filing or entry; or (D) die or
suffer a legal disability (if Tenant, guarantor, or surety is an individual) or
be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 13
(g) ESTOPPEL CERTIFICATE OR SUBORDINATION AGREEMENT. Tenant fails to
execute any document required from Tenant under Sections 23 or 27 within 5 days
after a second notice requesting such document.
(h) OTHER DEFAULTS. Tenant shall fail to comply with any provision of this
Lease other than those specifically referred to in this Section 20, and except
as otherwise expressly provided herein, such failure shall continue for a period
of 10 business days after written notice thereof from Landlord to Tenant.
Any notice given under Section 20 (h) hereof, shall: (i) specify the alleged
default, (ii) demand that Tenant cure such default, (iii) be in lieu of, and not
in addition to, or shall be deemed to be any notice required under any provision
of applicable law, and (iv) not be deemed a forfeiture or a termination of this
Lease unless Landlord elects otherwise in such notice; provided that if the
nature of Tenant's default pursuant to Section 20(h) is such that it cannot be
cured by the payment of money and reasonably requires more than 10 days to cure,
then Tenant shall not be deemed to be in default if Tenant commences such cure
within said 10 day period and thereafter diligently prosecutes the same to
completion; provided, however, that such cure shall be completed no later than
60 days from the date of Landlord's notice.
21. LANDLORD'S REMEDIES.
(a) PAYMENT BY LANDLORD; INTEREST. Upon a Default by Tenant hereunder,
Landlord may, without waiving or releasing any obligation of Tenant hereunder,
make such payment or perform such act All sums so paid or incurred by Landlord,
together with interest thereon, from the date such sums were paid or incurred,
at the annual rate equal to 12% per annum or the highest rate permitted by law
(the "DEFAULT RATE"), whichever is less, shall be payable to Landlord on demand
as Additional Rent. Nothing herein shall be construed to create or impose a duty
on Landlord to mitigate any damages resulting from Tenant's Default hereunder.
(b) LATE PAYMENT RENT. Late payment by Tenant to Landlord of Rent and
other sums due will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult and impracticable
to ascertain. Such costs include, but are not limited to, processing and
accounting charges and late charges which may be imposed on Landlord under any
Mortgage covering the Premises. Therefore, if any installment of Rent due from
Tenant is not received by Landlord within 5 days after the date such payment is
due, Tenant upon notice from Landlord shall pay to Landlord an additional sum of
6% of the overdue Rent as a late charge. The parties agree that this late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. In addition to the late charge, Rent not paid
when due shall bear interest at the Default Rate from the 5th day after the date
due until paid.
(c) REMEDIES. Upon the occurrence of a Default, Landlord, at its option,
without further notice or demand to Tenant, shall have in addition to all other
rights and remedies provided in this Lease, at law or in equity, the option to
pursue anyone or more of the following remedies, each and all of which shall be
cumulative and nonexclusive, without any notice or demand whatsoever.
(i) Terminate this Lease, or at Landlord's option, Tenant's right to
possession only, in which event Tenant shall immediately surrender the
Premises to Landlord, and if Tenant fails to do so, Landlord may, without
prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof, without being liable for prosecution or any
claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant to the
foregoing Section 21 (c)(i) or otherwise, Landlord may recover from Tenant
the following:
(A) The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
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(B) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus
(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 rental loss that Tenant proves could have
been reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for all
the 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, specifically including
but not limited to, brokerage commissions and advertising expenses
incurred, reasonable expenses of remodeling the Premises or any
portion thereof for a new tenant and any special concessions
reasonably made to obtain a new tenant; and
(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
applicable law.
The term "RENT" as used in this Section 21 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to
the terms of this Lease, whether to Landlord or to others. As used in
Sections 21(c)(ii) (A) and (B), above, the "WORTH AT THE TIME OF AWARD"
shall be computed by allowing interest at the Default Rate. As used in
Section 21(c)(ii)(C) above, the "WORTH AT THE TIME OF AWARD" shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%.
(iii) Landlord may continue this Lease in effect after Tenant's
Default and recover rent as it becomes due. Accordingly, if Landlord does
not elect to terminate this Lease following a Default by Tenant, Landlord
may, from time to time, without terminating this Lease, enforce all of its
rights and remedies hereunder, including the right to recover all Rent as
it becomes due.
(iv) Whether or not Landlord elects to terminate this Lease
following a Default by Tenant, Landlord shall have the right to terminate
any and all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Tenant and affecting the
Premises or may, in Landlord's sale discretion, succeed to Tenant's
interest in such subleases, licenses, concessions or arrangements. Upon
Landlord's election to succeed to Tenant's interest in any such subleases,
licenses, concessions or arrangements, Tenant shall, as of the date of
notice by Landlord of such election, have no further right to or interest
in the rent or other consideration receivable thereunder.
(v) Independent of the exercise of any other remedy of Landlord
hereunder or under applicable law, Landlord may conduct an environmental
test of the Premises as generally described in Section 30(d) hereof, at
Tenant's expense.
(d) EFFECT OF EXERCISE. Exercise by Landlord of any remedies hereunder or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises and/or a termination of this Lease by Landlord, it being understood
that such surrender and/or termination can be effected only by the express
written agreement of Landlord and Tenant. Any law, usage, or custom to the
contrary notwithstanding, Landlord shall have the right at all times to enforce
the provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in any
way or manner contrary to the specific terms, provisions, and covenants of this
Lease or as having modified the same and shall not be deemed a waiver of
Landlord's right to enforce one or more of its rights in connection with any
subsequent default. A receipt by Landlord of Rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless expressed in writing and signed by Landlord. To
the greatest extent permitted by law, Tenant waives the service of notice of
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 15
Landlord's intention to re-enter, re-take or otherwise obtain possession of the
Premises as provided in any statute, or to institute legal proceedings to that
end, and also waives all right of redemption in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge. Any reletting of
the Premises or any portion thereof shall be on such terms and conditions as
Landlord in its sale discretion may determine. Landlord shall not be liable, nor
shall Tenant's obligations hereunder be diminished because of, Landlord's
failure to relet the Premises or collect rent due in respect of such reletting
or otherwise to mitigate any damages arising by reason of Tenant Default.
22. ASSIGNMENT AND SUBLETTING.
(a) GENERAL PROHIBITION. Without Landlord's prior written consent subject
to and on the conditions described in this Section 22, Tenant shall not,
directly or indirectly, voluntarily or by operation of law, assign this Lease or
sublease the Premises or any part thereof or mortgage, pledge, or hypothecate
its leasehold interest or grant any concession or license within the Premises
and any attempt to do any of the foregoing shall be void and of no effect. If
Tenant is a corporation, the shares of which are not actively traded upon a
stock exchange or in the over-the-counter market, a transfer or series of
transfers whereby 25% or more of the issued and outstanding shares of such
corporation are, or voting control is, transferred (but excepting transfers upon
deaths of individual shareholders and transfers in connection with one or more
public or private offerings of the capital stock of Tenant for the purpose of
raising capital for Tenant's ongoing operations) from a person or persons or
entity or entities which were owners thereof at time of execution of this Lease
to persons or entities who were not owners of shares of the corporation at time
of execution of this Lease, shall be deemed an assignment of this Lease
requiring the consent of Landlord as provided in this Section 22.
(b) PERMITTED TRANSFERS. If Tenant desires to assign, sublease,
hypothecate or otherwise transfer this Lease or sublet the Premises, other than
pursuant to a Permitted Assignment (as defined below), then at least 15 business
days, but not more than 45 business days, before the date Tenant desires the
assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall
give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information
about the proposed assignee or sublessee, including the proposed use of the
Premises and any Hazardous Materials proposed to be used or stored in the
Premises, the Assignment Date, any relationship between Tenant and the proposed
assignee or sublessee, and all material terms and conditions of the proposed
assignment or sublease, including a copy of any proposed sublease in its final
form, and such other information as Landlord may deem reasonably necessary or
appropriate to its consideration whether to grant its consent. Landlord may, by
giving written notice to Tenant within 15 business days after receipt of the
Assignment Notice: (i) grant or refuse such consent, in its sole discretion with
respect to a proposed assignment, hypothecation or other transfer or subletting
of more than (together with all other then effective subleases) 50% of the
Premises, or grant or refuse such consent, in its reasonable discretion with
respect to a proposed subletting of up to (together with all other then
effective subleases) 50% of the Premises (provided that Landlord shall further
have the right to review and approve or disapprove the proposed form of sublease
prior to the effective date of any such subletting), or (ii) terminate this
Lease with respect to the space described in the Assignment Notice, as of the
Assignment Date (an "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment
Termination, Tenant shall have the right to withdraw such Assignment Notice by
written notice to Landlord of such election within 5 days after Landlord's
notice electing to exercise the Assignment Termination. If Tenant withdraws such
Assignment Notice, this Lease shall continue in full force and effect. If Tenant
does not withdraw such Assignment Notice, this Lease, and the term and estate
herein granted, shall terminate as of the Assignment Date with respect to the
space described in such Assignment Notice. No failure of Landlord to exercise
any such option to terminate this Lease shall be deemed to be Landlord's consent
to the proposed assignment, sublease or other transfer. Tenant shall reimburse
Landlord for all of Landlord's reasonable out-of-pocket expenses in connection
with its consideration of any Assignment Notice.
In addition, Tenant shall have the right to assign this Lease, upon 30
days prior written notice to Landlord but without obtaining Landlord's prior
written consent, to a corporation or other entity which is a
successor-in-interest to Tenant, by way of merger, consolidation or corporate
reorganization, or by the purchase of all or substantially all of the assets or
the ownership interests of the Tenant provided that (i)
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such merger or consolidation, or such acquisition or assumption, as the case may
be, is for a good business purpose and not principally for the purpose of
transferring the Lease, and (ii) the net worth (as determined in accordance with
generally accepted accounting principles, consistently applied ("GAAP") of the
assignee is not less than the net worth (as determined in accordance with GAAP)
of Tenant as of the Effective Date, (iii) such assignee shall agree in writing
to assume all of the terms, covenants and conditions of this Lease arising after
the effective date of the assignment, and (iv) the Rent to be paid by such
assignee to Landlord pursuant to this Lease will be treated as "rents from real
property" under Section 856 of the Internal Revenue Code (a "PERMITTED
ASSIGNMENT").
(c) ADDITIONAL CONDITIONS. As a condition to any such assignment or
subletting, whether or not Landlord's consent is required, Landlord may require:
(i) that any assignee or subtenant agree, in writing at the time of
such assignment or subletting, that if Landlord gives such party notice
that Tenant is in default under this Lease, such party shall thereafter
make all payments otherwise due Tenant directly to Landlord, which
payments will be received by Landlord without any liability except to
credit such payment against those due under the Lease, and any such third
party shall agree to attorn to Landlord or its successors and assigns
should this Lease be terminated for any reason; provided, however, in no
event shall Landlord or its successors or assigns be obligated to accept
such attornment; and
(ii) A list of Hazardous Materials, certified by the proposed
assignee or sublessee to be true and correct, which the proposed assignee
or sublessee intends to use or store in the Premises together with copies
of all documents relating to the handling, storage, disposal and emission
of Hazardous Materials by the proposed assignee or subtenant in the
Premises or on the Premises, prior to the proposed assignment or
subletting, including, without limitation: permits; approvals; reports and
correspondence; storage and management plans; plans relating to the
installation of any storage tanks to be installed in or under the Premises
(provided, said installation of tanks shall only be permitted after
Landlord has given its written consent to do so, which consent may be
withheld in Landlord's sole and absolute discretion); and all closure
plans or any other documents required by any and all federal, state and
local governmental agencies and authorities for any storage tanks
installed in, on or under the Premises for the closure of any such tanks.
Neither Tenant nor any such proposed assignee or subtenant is required,
however, to provide Landlord with any portion(s) of such documents
containing information of a proprietary nature which, in and of
themselves, do not contain a reference to any Hazardous Materials or
hazardous activities.
(d) NO RELEASE OF TENANT, SHARING OF RENT. Notwithstanding any assignment
or subletting, Tenant and any guarantor or surety of Tenant's obligations under
this Lease shall at all times remain fully and primarily responsible and liable
for the payment of Rent and for compliance with all of Tenant's other
obligations under this Lease. If the Rent due and payable by a sublessee or
assignee (or a combination of the rental payable under such sublease or
assignment plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this Lease, (excluding however, any Rent
payable under this Section), then Tenant shall be bound and obligated to pay
Landlord as Additional Rent hereunder 50% of such excess rental and other excess
consideration within 10 days following receipt thereof by Tenant. If Tenant
shall sublet the Premises or any part thereof, Tenant hereby immediately and
irrevocably assigns to Landlord, as security for Tenant's obligations under this
lease, all rent from any such subletting and Landlord as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this lease; except that, until the occurrence of a Default, Tenant shall
have the right to collect such rent.
(e) NO WAIVER. The consent by Landlord to an assignment or subletting
shall not relieve Tenant or any assignees of this Lease or any sublessees of the
Premises from obtaining the consent of Landlord to any further assignment or
subletting nor shall it release Tenant or any assignee or sublessee of Tenant
from full and primary liability under the Lease. The acceptance of Rent
hereunder, or the acceptance of performance of any other term, covenant, or
condition thereof, from any other person or
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entity shall not be deemed to be a waiver of any of the provisions of this Lease
or a consent to any subletting, assignment or other transfer of the Premises.
(f) TERMINATION OF LEASE. Notwithstanding any other provision of this
Section 22, if (i) the proposed assignee or sublessee of Tenant has been
required by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Materials contaminating a property,
where the contamination resulted from such party's action or use of the property
in question, or (ii) the proposed assignee or sublessee is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal or storage of Hazardous Materials, Landlord shall have the
absolute right to refuse to consent to any assignment or subletting to any such
party.
23. ESTOPPEL CERTIFICATE. Tenant shall within 10 business days of written
notice from Landlord, execute, acknowledge and deliver a statement in writing
substantially in the form attached to this Lease as EXHIBIT E with the blanks
filled in, and on any other form reasonably requested by a proposed lender or
purchaser, (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect) and the dates to
which the rental and other charges are paid in advance, if any, (ii)
acknowledging that there are not any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed, and (iii) setting
forth such further information with respect to the status of this Lease or the
Premises as may be reasonably requested thereon. Any such statement may be
relied upon by any prospective purchaser or encumbrancer of all or any portion
of the real property of which the Premises are a part. Tenant's failure to
deliver such statement within such time shall, at the option of Landlord,
constitute a Default under this Lease, and, in any event, shall be conclusive
upon Tenant that the Lease is in full force and effect and without modification
except as may be represented by Landlord in any certificate prepared by Landlord
and delivered to Tenant for execution.
24. QUIET ENJOYMENT. So long as Tenant shall perform all of the covenants
and agreements herein required to be performed by Tenant, Tenant shall, subject
to the terms of this Lease, at all times during the Term, have peaceful and
quiet enjoyment of the Premises against any person claiming by, through or under
Landlord.
25. PRORATIONS. All prorations required or permitted to be made hereunder
shall be made on the basis of a 360 day year and 30 day months.
26. [INTENTIONALLY OMITTED]
27. SUBORDINATION. This Lease and Tenant's interest and rights hereunder
are and shall be subject and subordinate at all times to the lien of any
Mortgage, now existing or hereafter created on or against the Premises, and all
amendments, restatements, renewals, modifications, consolidations, refinancing,
assignments and extensions thereof, without the necessity of any further
instrument or act on the part of Tenant; provided, however, that so long as
there is no Default hereunder, Tenant's right to possession of the Premises
shall not be disturbed by the Holder of any such Mortgage. Tenant agrees, at the
election of the Holder of any such Mortgage, to attorn to any such Holder.
Tenant agrees upon demand to execute, acknowledge and deliver a Subordination,
Non-disturbance and Attornment Agreement in the form attached hereto as EXHIBIT
F, or such other instruments, confirming such subordination and such instruments
of attornment as shall be requested by any such Holder, provided any such
instruments contain appropriate non-disturbance provisions assuring Tenant's
quiet enjoyment of the Premises as set forth in Section 24 hereof.
Notwithstanding the foregoing, any such Holder may at any time subordinate its
Mortgage to this Lease, without Tenant's consent, by notice in writing to
Tenant, and thereupon this Lease shall be deemed prior to such Mortgage without
regard to their respective dates of execution, delivery or recording and in that
event such Holder shall have the same rights with respect to this Lease as
though this Lease had been executed prior to the execution, delivery and
recording of such Mortgage .and had been assigned to such Holder. The term
"MORTGAGE" whenever used in this Lease shall be deemed to include deeds of
trust, security assignments and any other encumbrances, and any reference to the
"HOLDER" of a mortgage shall be deemed to include the beneficiary under a deed
of trust.
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28. SURRENDER. Upon expiration of the Term or earlier termination of
Tenant's right of possession, Tenant shall surrender the Premises to Landlord in
the same condition as received, subject to any Alterations permitted by Landlord
to remain in the Premises, free of Hazardous Materials brought upon, kept or
used in or about the Premise by any person other than Landlord, its agents,
employees, contractors or invitees and released of all Hazardous Materials
Clearances, broom Clean, ordinary wear and tear and casualty loss and
condemnation covered by Sections 18 and 19 excepted. Nothing in this Section 28
shall be construed to eliminate Tenant's obligation to surrender the Area B
Premises to Landlord in substantially the condition shown on EXHIBIT G if
Landlord so elects. Tenant shall immediately return to Landlord all keys and/or
access cards to parking, restrooms or all or any portion of the Premises
furnished to, or otherwise procured by Tenant. If any such access card or key is
lost, Tenant shall pay to Landlord, at Landlord's election, either the cost of
replacing such lost access card or key or the cost of reprogramming the access
security system in which such access card was used or changing the lock or locks
opened by such lost key. Any Tenant's Property, Alterations and property not so
removed by Tenant as permitted or required herein shall be deemed abandoned and
may be stored, removed, and disposed of by Landlord at Tenant's expense, and
Tenant waives all claims against Landlord for any damages resulting from
Landlord's retention and/or disposition of such property. All obligations of
Tenant hereunder not fully performed as of the termination of the Term,
including the obligations of Tenant under Section 30 hereof, shall survive the
expiration or earlier termination of the Term, including without limitation,
indemnity obligations, payment obligations with respect to Rent and obligations
concerning the condition and repair of the Premises.
29. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY
JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
30. ENVIRONMENTAL REQUIREMENTS.
(a) PROHIBITION/COMPLIANCE/INDEMNITY. Tenant shall not cause or permit any
Hazardous Materials (as hereinafter defined) to be brought upon, kept or used in
or about the Premises in violation of applicable law by Tenant, its agents,
employees, contractors or invitees. If Tenant breaches the obligation stated in
the preceding sentence, or if the presence of Hazardous Materials in or on the
Premises during the Term of this Lease results in contamination of the Premises,
or any adjacent property or if contamination of the Premises, or any adjacent
property by Hazardous Materials brought into the Premises by anyone other than
Landlord and Landlord's employees, agents and contractors otherwise occurs
during the term of this Lease or any extension or renewal hereof or holding over
hereunder, Tenant hereby indemnifies and shall defend and hold Landlord, its
officers, directors, employees, agents and contractors harmless from and against
any and all claims, judgments, damages, penalties, fines, costs, liabilities, or
losses (including, without limitation, diminution in value of the Premises or
any portion of the Premises, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Premises, damages arising from
any adverse impact on marketing of space in the Premises, and sums paid in
settlement of claims, attorneys' fees, charges, disbursements, consultants' fees
and experts' fees) which arise during or after the Lease term as a result of
such contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, materials, or restoration work
required by any federal, state or local governmental agency or political
subdivision because of Hazardous Materials present in the air, sailor ground
water above, on, or under the Premises. Without limiting the foregoing, if the
presence of any Hazardous Materials on the Premises, or any adjacent property,
caused or permitted by Tenant results in any contamination of the Premises, or
any adjacent property, Tenant shall promptly take all actions at its sole
expense and in accordance with applicable law as are necessary to return the
Premises, or any adjacent property, as near to the condition existing prior to
the time of such contamination as is commercially practicable and in no event in
a condition which could result in any violation of any applicable federal, state
or local law, rule, regulation or administrative order or ruling, provided that
Landlord's approval of such action shall first be obtained,
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which approval shall not unreasonably be withheld so long as such actions would
not potentially have any material adverse long-term or short-term effect on the
Premises.
(b) BUSINESS. Landlord acknowledges that it is not the intent of this
Article 30 to prohibit Tenant from using the Premises for the Permitted Use.
Tenant may operate its business according to the custom of the industry so long
as the use or presence of Hazardous Materials is strictly and properly monitored
according to all applicable governmental requirements. As a material inducement
to Landlord to allow Tenant to use Hazardous Materials in connection with its
business, Tenant agrees to deliver to Landlord prior to the Commencement Date a
list identifying each type of Hazardous Materials to be present on the Premises
and setting forth any and all governmental approvals or permits required in
connection with the presence of such Hazardous Materials on the Premises
("HAZARDOUS MATERIALS LIST"). Tenant shall deliver to Landlord an updated
Hazardous Materials List at least once a year and shall also deliver an updated
list before any new Hazardous Material(s) is brought onto the Premises. Tenant
shall deliver to Landlord true and correct copies of the following documents
(the "HAZ MAT DOCUMENTS") relating to the handling, use, storage, disposal and
emission of Hazardous Materials prior to the Commencement Date, or if
unavailable at that time, concurrent with the receipt from or submission to a
governmental agency: permits; approvals; reports and correspondence; storage and
management plans, notice of violations of any laws; plans relating to the
installation of any underground storage tanks to be installed in or under the
Premises (provided, said installation of tanks shall only be permitted after
Landlord has given Tenant its written consent to do so, which consent may be
withheld in Landlord's sale and absolute discretion); and all closure plans or
any other documents required by any and all federal, state and focal
governmental agencies and authorities for any storage tanks installed in, on or
under the Premises for the closure of any such tanks. Tenant is not required,
however, to provide Landlord with any portion(s) of the Haz Mat Documents
containing information of a proprietary nature which, in and of themselves, do
not contain a reference to any Hazardous Materials or hazardous activities. It
is not the intent of this Section to provide Landlord with information which
could be detrimental to Tenant's business should such information become
possessed by Tenant's competitors.
(c) TENANT REPRESENTATION AND WARRANTY. Tenant hereby represents and
warrants to Landlord that (i) neither Tenant nor any of its legal predecessors
has been required by any prior landlord, lender or governmental authority at any
time to take remedial action in connection with Hazardous Materials
contaminating a property which contamination was permitted by Tenant of such
predecessor or resulted from Tenant's or such predecessor's action or use of the
property in question, and (ii) Tenant is not subject to any enforcement order
issued by any governmental authority in connection with the use, disposal or
storage of a Hazardous Materials. If Landlord determines that this
representation and warranty was not true as of the date of this lease, Landlord
shall have the right to terminate this Lease in Landlord's sole and absolute
discretion.
(d) TESTING. Landlord shall have the right to conduct annual tests of the
Premises to determine whether any contamination has occurred as a result of
Tenant's use. Tenant shall be required to pay the cost of such annual test of
the Premises; provided, however, that if Tenant conducts its own tests of the
Premises using third party contractors and test procedures acceptable to
Landlord which tests are certified to Landlord, Landlord shall accept such tests
in lieu of the annual tests to be paid for by Tenant. In addition, at any time,
and from time to time, prior to the expiration or earlier termination of the
Term, Landlord shall have the right to conduct appropriate tests of the Premises
to determine if contamination has occurred as a result of Tenant's use of the
shall pay all costs to conduct such tests. If no such contamination is found,
Landlord shall pay the costs of such tests (which shall not constitute an
Operating Expense). Landlord shall provide, without representation or warranty
of, subject to a confidentiality agreement, Tenant with a copy of all third
party, non-confidential reports and tests of the Premises made by or on behalf
of Landlord. Landlord's receipt of or satisfaction with any environmental
assessment in no way waives any rights that Landlord holds against Tenant.
(e) UNDERGROUND TANKS. If underground or other storage tanks storing
Hazardous Materials are located on the Premises as of the date hereof and used
at any time by Tenant or are hereafter placed on the Premises by Tenant, its
agents, servants, employees, invitees and contractors, Tenant shall monitor the
storage tanks, maintain appropriate records, implement reporting procedures,
properly close
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 20
any underground storage tanks, and take or cause to be taken all other actions
necessary or required under applicable state and federal law, as such now exists
or may hereafter be adopted or amended.
(f) TENANT'S OBLIGATIONS. Tenant's obligations under this Article 30 shall
survive the expiration or earlier termination of the Lease. During any period of
time after the expiration or earlier termination of this Lease required by
Tenant or Landlord to complete the removal from the Premises of any Hazardous
Materials and the release and termination of any licenses or permits restricting
the use of the Premises, Tenant shall continue to pay the full Rent in
accordance with this Lease for any portion of the Premises not relet by Landlord
in Landlord's sale discretion, which Rent shall be prorated daily.
(g) DEFINITION OF "HAZARDOUS MATERIALS." As used herein, the term
"HAZARDOUS MATERIALS" means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, or regulated
by reason of its impact or potential impact on humans, animals and/or the
environment under any Environmental Requirements, asbestos and petroleum,
including crude oil or any fraction thereof, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or mixtures bf natural gas and
such synthetic gas). As defined in Environmental Requirements, Tenant is and
shall be deemed to be the "operator" of Tenant's "facility" and the "owner" of
all Hazardous Materials brought on the Premises by Tenant, its agents,
employees, contractors or invitees, and the wastes, by-products, or residues
generated, resulting, or produced therefrom.
31. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). Upon any default by Landlord, Tenant shall give notice
by registered or certified mail to any Holder of a Mortgage covering the
Premises and to any landlord of any lease of property in or on which the
Premises are located and Tenant shall offer such beneficiary, Holder and/or
landlord a reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or a judicial action if such should
prove necessary to effect a cure; provided Landlord shall have furnished to
Tenant in writing the names and addresses of all such persons who are to receive
such notices. All obligations of Landlord hereunder shall be construed as
covenants, not conditions; and, except as may be otherwise expressly provided in
this Lease, Tenant may not terminate this Lease for breach of Landlord's
obligations hereunder.
All obligations of Landlord under this Lease will be binding upon Landlord
only during the period of its ownership of the Premises and not thereafter. The
term "LANDLORD" in this Lease shall mean only the owner, for the time being of
the Premises, and upon the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Term upon each new owner for the duration of such owner's
ownership.
32. INSPECTION AND ACCESS. Subject to Tenant's reasonable security and
safety requirements, Landlord and its agents, representatives, and contractors
may enter the Premises at any reasonable time to inspect the Premises and to
make such repairs as may be required or permitted pursuant to this Lease and for
any other business purpose. Landlord and Landlord's representatives may enter
the Premises during business hours on not less than 48 hours advance written
notice (except in the case of emergencies in which case no such notice shall be
required and such entry may be at any time) for the purpose of effecting any
such repairs, inspecting the Premises, showing the Premises to prospective
purchasers and, during the last year of the Term, to prospective tenants or for
any other business purpose. Landlord may erect a suitable sign on the Premises
stating the Premises are available to let or are available for sale. Landlord
may grant easements, make public dedications, designate common areas and create
restrictions on or about the Premises, provided that no such easement,
dedication, designation or restriction materially, adversely affects Tenant's
use or occupancy of the Premises for the Permitted use. At Landlord's request,
Tenant shall execute such instruments as may be necessary for such easements,
dedications or restrictions. Tenant shall at all times, except in the case of
emergencies, have the right to escort Landlord or its agents, representatives,
contractors or guests while
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 21
the same are in the Premises, provided such escort does not materially and
adversely affect Landlord's access rights hereunder.
33. SECURITY. Tenant acknowledges and agrees that security devices and
services, if any, while intended to deter crime may not in given instances
prevent theft or other criminal acts and that Landlord is not providing any
security services with respect to the Premises. Tenant agrees that Landlord
shall not be liable to Tenant for, and Tenant waives any claim against Landlord
with respect to, any loss by theft or any other damage suffered or incurred by
Tenant in connection with any unauthorized entry into the Premises or any other
breach of security with respect to the Premises. Tenant shall be solely
responsible for the personal safety of Tenant's officers, employees, agents,
contractors, guests and invitees while any such person is in, on or about the
Premises. Tenant shall at Tenant's cost obtain insurance coverage to the extent
Tenant desires protection against such criminal acts.
34. FORCE MAJEURE. Landlord shall not be held responsible for delays in
the performance of its obligations hereunder when caused by strikes, lockouts,
labor disputes, weather, natural disasters, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, delay in issuance of permits,
enemy or hostile governmental action, civil commotion, fire or other casualty,
and other causes beyond the reasonable control of Landlord ("FORCE MAJEURE").
Tenant shall not be held responsible for delays in the performance of its
obligations, excluding Tenant's monetary obligations or any obligation that may
be satisfied by the payment of any commercially reasonable sum to any person,
hereunder when caused by Force Majeure delays.
35. BROKERS, ENTIRE AGREEMENT, AMENDMENT. Landlord and Tenant each
represent and warrant that it has not dealt with any broker, agent or other
person (collectively, "BROKER) in connection with this transaction and that no
Broker brought about this transaction, other than CB Xxxxxxx Xxxxx, Inc. and
Xxxx Xxxxxxx Real Estate Services, Inc., who will be paid a commission by
Landlord pursuant to a separate agreement. Landlord and Tenant each hereby agree
to indemnify and hold the other harmless from and against any claims by any
other Broker claiming a commission or other form of compensation by virtue of
having dealt with Tenant or Landlord, as applicable, with regard to this leasing
transaction. This Lease may not be amended except by an instrument in writing
signed by both parties hereto.
36. LIMITATION ON LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING SET FORTH
HEREIN OR IN ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE CONTRARY:
(A) LANDLORD SHALL NOT BE LIABLE TO TENANT OR ANY OTHER PERSON FOR (AND TENANT
AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS, DAMAGE OR INJURY, WHETHER
ACTUAL OR CONSEQUENTIAL TO: TENANT'S PERSONAL PROPERTY OF EVERY KIND AND
DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT, INVENTORY,
SCIENTIFIC RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS, PRODUCT,
SPECIMENS, SAMPLES, AND/OR SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER RECORDS OF
EVERY KIND AND DESCRIPTION KEPT AT THE PREMISES AND ANY AND ALL INCOME DERIVED
OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL RECOURSE TO LANDLORD FOR
ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR ARISING IN ANY WAY UNDER
THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND ANY LIABILITY OF LANDLORD HEREUNDER SHALL BE
STRICTLY LIMITED SOLELY TO LANDLORD'S INTEREST IN THE PREMISES, AND IN NO EVENT
SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST LANDLORD IN CONNECTION WITH
THIS LEASE NOR SHALL ANY RECOURSE BE HAD TO ANY OTHER PROPERTY OR ASSETS OF
LANDLORD OR ANY OF LANDLORD'S OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS. UNDER
NO CIRCUMSTANCES SHALL LANDLORD OR ANY OF LANDLORD'S OFFICERS, EMPLOYEES, AGENTS
OR CONTRACTORS BE LIABLE FOR INJURY TO TENANT'S BUSINESS OR FOR ANY LOSS OF
INCOME OR PROFIT THEREFROM.
37. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that event,
it is the intention of the parties hereto that the
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remainder of this Lease shall not be affected thereby. It is also the intention
of the parties to this Lease that in lieu of each clause or provision of this
Lease that is illegal, invalid or unenforceable, there be added, as a part of
this Lease, a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
38. SIGNS; EXTERIOR APPEARANCE. Tenant shall not, without the prior
written consent of Landlord which may be granted or withheld in Landlord's sole
discretion: (i) attach any awnings, exterior lights, decorations, balloons,
flags, pennants, banners, painting or other projection to any outside wall of
the Premises, (ii) use any curtains, blinds, shades or screens other than
Landlord's standard window coverings, (iii) coat or otherwise sunscreen the
interior or exterior of any windows, (iv) place any bottles, parcels, or other
articles on the window xxxxx, (v) place any equipment, furniture or other items
of personal property on any exterior balcony, (vi) paint, affix or exhibit on
any part of the Premises any signs, notices, window or door lettering, placards,
decorations, or advertising media of any type which can be viewed from the
exterior of the Premises. Interior signs on doors and the directory tablet shall
be inscribed, painted or affixed for Tenant by Landlord at the sale cost and
expense of Tenant, and shall be of a size, color and type acceptable to
Landlord. Nothing may be placed on the exterior of corridor walls or corridor
doors other than Landlord's standard lettering. The directory tablet shall be
provided exclusively for the display of the name and location of tenants.
Notwithstanding anything contained in this Section to the contrary, Tenant shall
have the right to place one sign ("TENANT'S SIGN") with Tenant's name on the
exterior of the Premises, conforming to the size and design of signs in the area
in which the Premises are located, with the consent of Landlord, which consent
Landlord shall not unreasonably withhold. Tenant shall be solely responsible for
all costs, fees, charges, expenses or other sums related to Tenant's Sign,
including without limitation, costs related to (i) manufacture and installation
of Tenant's Sign, (ii) removal of Tenant's Sign upon the expiration or earlier
termination of the Term, (iii) permits required by any Governmental Authority
with respect to Tenant's Sign, and (iv) conforming Tenant's Sign to Legal
Requirements. Tenant acknowledges that Landlord shall have the right to place a
monument sign on the Premises with respect to the office park in which the
Premises are located.
39. RIGHT TO EXTEND TERM. Tenant shall have the right to extend the Term
of the Lease upon the following terms and conditions:
(a) EXTENSION RIGHT. Tenant shall have the right ("EXTENSION RIGHT") to
extend the term of this Lease for 3 years ("EXTENSION TERM") on the same terms
and conditions as this Lease by giving Landlord written notice of its election
to exercise the Extension Right at least six months prior to the expiration of
the initial Term of the Lease.
During the Extension Term, Base Rent shall be payable at the greater of: (i) the
Market Rate (as defined below), and (ii) 104% of the Base Rent payable during
the month immediately preceding the commencement of the Extension Term. Base
Rent shall be increased on each annual anniversary of the commencement of such
Extension Term by 4% of the Base Rent payable during the last month of the
immediately preceding Lease Year. As used herein, "MARKET RATE" shall mean the
then triple net market rental rate as determined by Landlord and agreed to by
Tenant, which shall in no event be less than the Base Rent payable as of the
date immediately preceding the commencement of such Extension Term increased by
the Rent Adjustment Percentage multiplied by such Base Rent. In addition, to the
extent not included in the Market Rate for the Premises, Landlord may impose a
market rent for the parking rights provided hereunder. If, on or before the date
which is 120 days prior to the expiration of the initial Term of this Lease,
Tenant has not agreed with Landlord's determination of the Market Rate and the
rent escalations during such subsequent Extension Term after negotiating in good
faith, Tenant may by written notice to Landlord elect arbitration as described
in Section 39(b) below. If Tenant does not elect such arbitration, Tenant shall
be deemed to have waived any right to extend, or further extend, the Term of the
Lease.
(b) ARBITRATION.
(i) Within 10 days of Tenant's notice to Landlord of its election to
arbitrate Market Rate and escalations, each party shall deliver to the
other a proposal containing the Market Rate
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 23
and escalations that the submitting party believes to be correct
("EXTENSION PROPOSAL). If either party fails to timely submit an Extension
Proposal, the other party's submitted proposal shall determine the Base
Rent for the Extension Term. If both parties submit Extension Proposals,
then Landlord and Tenant shall meet within 7 days after delivery of the
last Extension Proposal and make a good faith attempt to mutually appoint
a single Arbitrator to determine the Market Rate and escalations. If
Landlord and Tenant are unable to agree upon a single Arbitrator, then
each shall, by written notice delivered to the other within 10 days after
the meeting, select an Arbitrator. If either party fails to timely give
notice of its selection for an Arbitrator, the other party's submitted
proposal shall determine the Base Rent for the Extension Term. The 2
Arbitrators so appointed shall. within 5 business days after their
appointment, appoint a third Arbitrator. If the 2 Arbitrators so selected
cannot agree on the selection of the third Arbitrator within the time
above specified, then either party, on behalf of both parties may request
such appointment of such third Arbitrator by application to any state
court of general jurisdiction in the jurisdiction in which the Premises
are located, upon 10 days prior written notice to the other party of such
intent.
(ii) The decision of the Arbitrator(s) shall be made within 30 days
after the appointment of a single Arbitrator or the third Arbitrator, as
applicable. The decision of the single Arbitrator shall be final and
binding upon the parties. The average of the two closest Arbitrators in a
three Arbitrator panel shall be final and binding upon the parties. Each
party shall pay the fees and expenses of the Arbitrator appointed by or on
behalf of such party and the fees and expenses of the third Arbitrator
shall be borne equally by both parties. If the Market Rate and escalations
are not determined by the first day of the Extension Term, then Tenant
shall pay Landlord Base Rent in an amount equal to the Base Rent in effect
immediately prior to the Extension Term and increased by the Rent
Adjustment Percentage until such determination is made. After the
determination of the Market Rate and escalations, the parties shall make
any necessary adjustments to such payments made by Tenant. Landlord and
Tenant shall then execute an amendment recognizing the Market Rate and
escalations for the Extension Term.
(iii) An "ARBITRATOR" shall be any person appointed by or on behalf
of either party or appointed pursuant to the provisions hereof and: (i)
shall be (A) a member of the American Institute of Real Estate Appraisers
with not less than 10 years of experience in the appraisal of improved
office and high tech industrial real estate in the greater San Diego
metropolitan area, or (B) a licensed commercial real estate broker with
not less than 15 years experience representing landlords and/or tenants in
the leasing of high tech or life sciences space in the greater San Diego
metropolitan area, (ii) devoting substantially all of their time to
professional appraisal or brokerage work, as applicable, at the time of
appointment and (iii) be in all respects impartial and disinterested.
(c) RIGHTS PERSONAL. The Extension Right is personal to Tenant and is not
assignable without Landlord's consent, which may be granted or withheld in
Landlord's sole discretion, except that it may be assigned in connection with
any Permitted Assignment of this Lease.
(d) EXCEPTIONS. Notwithstanding anything set forth above to the contrary,
the Extension Right shall not be in effect and Tenant may not exercise the
Extension Right:
(i) during any period of time that Tenant is in Default under any
provision of this Lease; or
(ii) if Tenant has been in Default under any provision of this Lease
3 or more times, whether or not the Defaults are cured, during the 12
month period immediately prior to the date that Tenant intends to exercise
the Extension Right, whether or not the Defaults are cured.
(e) NO EXTENSIONS. The period of time within which the Extension Right may
be exercised shall not be extended or enlarged by reason of the Tenant's
inability to exercise the Extension Right.
(f) TERMINATION. The Extension Right shall terminate and be of no further
force or effect even after Tenant's due and timely exercise of the Extension
Right, if, after such exercise, but prior to the
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 24
commencement date of the Extension Term, (i) Tenant fails to timely cure any
Default by Tenant under this Lease; or (ii) Tenant has Defaulted 3 or more times
during the period from the date of the exercise of the Extension Right to the
date of the commencement of the Extension Term, whether or not such Defaults are
cured.
40. MISCELLANEOUS.
(a) NOTICES. All notices or other communications between the parties shall
be in writing and shall be deemed duly given upon delivery or refusal to accept
delivery by the addressee thereof if delivered in person, or upon actual receipt
if delivered by reputable overnight guaranty courier, addressed and sent to the
parties at their addresses set forth above. Landlord and Tenant may from time to
time by written notice to the other designate another address for receipt of
future notices.
(b) JOINT AND SEVERAL LIABILITY. If and when included within the term
"TENANT," as used in this instrument, there is more than one person or entity,
each shall be jointly and severally liable for the obligations of Tenant.
(c) FINANCIAL INFORMATION. Tenant shall furnish Landlord with true and
complete copies of (i) Tenant's most recent audited annual financial statements,
or unaudited annual financial statements if audited financial statements are not
prepared, within 30 days of the end of each of Tenant's fiscal years during the
Term, (ii) Tenant's most recent quarterly financial statements within 30 days of
the end of each of Tenant's first three fiscal quarters of each of Tenant's
fiscal year during the Term, (iii) at Landlord's request from time to time,
updated business plans, including cash flow projections and/or pro forma balance
sheets and income statements, all of which shall be treated by Landlord as
confidential information belonging to Tenant, (iv) corporate brochures and/or
profiles prepared by Tenant for prospective investors, and (v) any other
financial information or summaries that Tenant typically provides to its lenders
or shareholders. Such information shall be held in confidence by Landlord,
provided that Landlord shall be permitted to disclose such information if
required by applicable laws, regulations or Governmental Authorities, or to
Landlord's employees and consultants who have a need to know such information in
connection with the services rendered to Landlord.
(d) RECORDATION. Neither this Lease nor a memorandum of lease shall be
filed by or on behalf of Tenant in any public record. Landlord may prepare and
file, and upon request by Landlord, Tenant will execute, a memorandum of lease.
(e) INTERPRETATION. The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Lease or any exhibits or amendments hereto. Words
of any gender used in this Lease shall be held and construed to include any
other gender, and words in the singular number shall be held to include the
plural, unless the context otherwise requires. The captions inserted in this
Lease are for convenience only and in no way define, limit or otherwise describe
the scope or intent of this Lease, or any provision hereof, or in any way affect
the interpretation of this Lease.
(f) NOT BINDING UNTIL EXECUTED. The submission by Landlord to Tenant of
this Lease shall have no binding force or effect, shall not constitute an option
for the leasing of the Premises, nor confer any right or impose any obligations
upon either party until execution of this Lease by both parties.
(g) LIMITATIONS ON INTEREST. It is expressly the intent of Landlord and
Tenant at all times to comply with applicable law governing the maximum rate or
amount of any interest payable on or in connection with this Lease. If
applicable law is ever judicially interpreted so as to render usurious any
interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder.
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 25
(h) CHOICE OF LAW. Construction and interpretation of this Lease shall be
governed by the internal laws of the state in which the Premises are located,
excluding any principles of conflicts of laws.
(i) TIME. Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(j) INCORPORATION BY REFERENCE. All exhibits and addenda attached hereto
are hereby incorporated into this Lease and made a part hereof. If there is any
conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
[Signature Page Follows]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 26
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
TENANT:
STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxx
--------------------------------
Its: President and CEO
LANDLORD:
ARE-3770 TANSY STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership,
its managing member
By: ARE-QRS CORP.,
a Maryland corporation,
its general partner
By: /s/ Xxxx Xxxx Xxxxxxx
--------------------------------
Its: General Counsel
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT A TO LEASE
DESCRIPTION OF PREMISES
That certain real property located in the City of San Diego, County of San
Diego, State of California, having a street address of 0000 Xxxxx Xxxxxx, more
particularly described as follows:
[ATTACHED]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
SCHEDULE A
Your Ref:
Policy No. B355637-P
Premium: $2,300.00
Amount of Insurance: $2,000,000.00
Date of Policy: September 2, 1998 at 10:39 AM
1. Name of Insured:
ARE-3770 TANSY STREET, LLC., A DELAWARE LIMITED LIABILITY COMPANY
2. The estate or interest in the land which is covered by this policy is:
A FEE
3. Title to the estate or interest in the land is vested in:
ARE-3770 TANSY STREET, LLC., A DELAWARE LIMITED LIABILITY COMPANY
4. The land referred to in this policy is situated in the State of
California, County of and is described as follows:
PARCEL 1 IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS
SHOWN AT PAGE 6427 OF PARCEL MAPS FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, OCTOBER 7, 1977.
This Policy valid only if Schedule B is attached.
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 2
[SITE PLAN]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT A-1 TO LEASE
DESCRIPTION OF AREA A PREMISES
[ATTACHED]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
AREA A
[FLOOR PLAN]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT A-2 TO LEASE
DESCRIPTION OF AREA B PREMISES
[ATTACHED]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
AREA B
[FLOOR MAP]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT A-3 TO LEASE
DESCRIPTION OF AREA C PREMISES
[ATTACHED]
Net Single-Tenant Laboratory 3770 Tansy/Structural GenomiX, Inc. - Page 1
AREA C
[FLOOR PLAN]
Major Construction - Tenant Build 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT B TO LEASE
[Tenant Build]
WORK LETTER
THIS WORK LETTER dated May 19th, 2000, (this "WORK LETTER") is made and
entered into by and between ARE-3770 TANSY STREET, LLC, a Delaware limited
liability company ("LANDLORD"), and STRUCTURAL GENOMIX, INC., a Delaware
corporation ("TENANT"), and is attached to and made a part of the Lease dated
May 10, 2000 (the "LEASE"), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them
in the Lease.
1. GENERAL REQUIREMENTS
a. TENANT'S AUTHORIZED REPRESENTATIVE. Tenant designates Xxxxxx Xxxxx and
____________________ (either such individual acting alone, "TENANT'S
REPRESENTATIVE") as the only persons authorized to act for Tenant pursuant to
this Work Letter. Landlord shall not be obligated to respond to or act upon any
request, approval, inquiry or other communication ("COMMUNICATION") from or on
behalf of Tenant in connection with this Work Letter unless such Communication
is in writing from Tenant's Representative. Tenant may change either Tenant's
Representative at any time upon not less than 5 business days advance written
notice to Landlord. No period set forth herein for any approval of any matter by
Tenant's Representative shall be extended by reason of any change in Tenant's
Representative. Neither Tenant nor Tenant's Representative shall be authorized
to direct Landlord's contractors in the performance of Landlord's Work (as
hereinafter defined).
b. LANDLORD'S AUTHORIZED REPRESENTATIVE. Landlord designates Xxxxxxx Xxxx
and Xxx Xxxxxxx (either such individual acting alone, "LANDLORD'S
REPRESENTATIVE") as the only persons authorized to act for Landlord pursuant to
this Work Letter. Tenant shall not be obligated to respond to or act upon any
request, approval, inquiry or other Communication from or on behalf of Landlord
in connection with this Work Letter unless such Communication is in writing from
Landlord's Representative. Landlord may change either Landlord's Representative
at any time upon not less than 5 business days advance written notice to Tenant.
No period set forth herein for any approval of any matter by Landlord's
Representative shall be extended by reason of any change in Landlord's
Representative. Landlord's Representative shall be the sole persons authorized
to direct Landlord's contractors in the performance of Landlord's Work.
c. ARCHITECTS, CONSULTANTS AND CONTRACTORS. Landlord and Tenant hereby
acknowledge and agree that the architect (the "TI ARCHITECT") for the Tenant
Improvements, the general contractor and any subcontractors for the Tenant
Improvements shall be selected by Tenant, subject to Landlord's approval, which
approval shall not be unreasonably withheld, conditioned or delayed.
2. TENANT IMPROVEMENTS.
a. TENANT IMPROVEMENTS DEFINED. As used herein, "TENANT IMPROVEMENTS"
shall mean all improvements to the Premises desired by Tenant of a fixed and
permanent nature. Other than funding the TI Allowance (as defined below) as
provided herein, Landlord shall not have any obligation whatsoever with respect
to the finishing of the Premises for Tenant's use and occupancy.
b. TENANT'S SPACE PLANS. Tenant shall deliver to Landlord schematic
drawings and outline specifications (the "TI DESIGN DRAWINGS") detailing
Tenant's requirements for the Tenant Improvements within 15 business days of the
date hereof. Tenant shall give Landlord 5 days prior notice of the date on which
the TI Design Drawings shall be delivered. Not more than 10 business days
thereafter, Landlord shall deliver to Tenant the written objections, questions
or comments of Landlord and the TI Architect with regard to the TI Design
Drawings. Tenant shall cause the TI Design Drawings to be revised to address
such written comments and shall resubmit said drawings to Landlord for approval
within 10 business days thereafter. Such process shall continue until Landlord
has approved the TI Design Drawings.
Major Construction - Tenant Build 3770 Tansy/Structural GenomiX, Inc. - Page 2
c. WORKING DRAWINGS. Not later than 20 business days following the
approval of the TI Design Drawings by Landlord, Tenant shall cause the TI
Architect to prepare and deliver to Landlord for review and comment construction
plans, specifications and drawings for the Tenant Improvements ("TI CONSTRUCTION
DRAWINGS"), which TI Construction Drawings shall be prepared substantially in
accordance with the TI Design Drawings. Tenant shall be solely responsible for
ensuring that the TI Construction Drawings reflect Tenant's requirements for the
Tenant Improvements. Landlord shall deliver its written comments on the TI
Construction Drawings to Tenant not later than 10 business days after Landlord's
receipt of the same; provided, however, that Landlord may not disapprove any
matter that is consistent with the TI Design Drawings. Tenant and the TI
Architect shall consider all such comments in good faith and shall, within 10
business days after receipt, notify Landlord how Tenant proposes to respond to
such comments. Any disputes in connection with such comments shall be resolved
in accordance with Section 2(d) hereof. Provided that the design reflected in
the TI Construction Drawings is consistent with the TI Design Drawings, Landlord
shall approve the TI Construction Drawings submitted by Tenant. Once approved by
Landlord, subject to the provisions of Section 2(d) below, Tenant shall not
materially modify the TI Construction Drawings except as may be reasonably
required in connection with the issuance of the TI Permit (as defined in Section
3(b) below).
d. APPROVAL AND COMPLETION. Upon any dispute regarding the design of the
Tenant Improvements, which is not settled within 10 business days after notice
of such dispute is delivered by one party to the other, Tenant shall make the
final decision regarding the design of the Tenant Improvements, provided Tenant
acts reasonably and such final decision is either consistent with or a
compromise between Landlord's and Tenant's positions with respect to such
dispute, provided further that all costs and expenses resulting from any such
decision by Tenant shall be payable out of the TI Fund, as defined In Section
5(d) below. Any changes to the TI Construction Drawings following Landlord's and
Tenant's approval of same requested by Tenant shall be processed as provided in
Section 4 hereof.
3. PERFORMANCE OF TENANT'S WORK
a. DEFINITION OF TENANT'S WORK. As used herein, "TENANT'S WORK" shall mean
the work of constructing the Tenant Improvements.
b. COMMENCEMENT AND PERMITTING OF TENANT'S WORK. Tenant shall commence
construction of the Tenant Improvements upon obtaining a building permit (the
"TI PERMIT") authorizing the construction of the Tenant Improvements consistent
with the TI Construction Drawings approved by Landlord. The cost of obtaining
the TI Permit shall be payable from the TI Fund. Landlord shall assist Tenant in
obtaining the TI Permit.
c. SELECTION OF MATERIALS, ETC. Where more than one type of material or
structure is indicated on the TI Construction Drawings approved by Tenant and
Landlord, the option will be within Tenant's reasonable discretion.
4. CHANGES. Any changes requested by Tenant to the Tenant Improvements
after the delivery and approval by Landlord of the TI Design Drawings, shall be
requested and instituted in accordance with the provisions of this Section 4 and
shall be subject to the written approval of Landlord, such approval not to be
unreasonably withheld, conditioned or delayed.
a. TENANT'S RIGHT TO REQUEST CHANGES. If Tenant shall request changes
("CHANGES"), Tenant shall request such Changes by notifying Landlord in writing
in substantially the same form as the AIA standard change order form (a "CHANGE
REQUEST"), which Change Request shall detail the nature and extent of any such
Change. Such Change Request must be signed by Tenant's Representative. Landlord
shall review and approve or disapprove such Change Request within 10 business
days thereafter, provided that Landlord's approval shall not be unreasonably
withheld, conditioned or delayed.
b. IMPLEMENTATION OF CHANGES. If Landlord approves such Change and Tenant
deposits with Landlord any Excess TI Costs (as defined in Section 5(d) below)
required in connection with such Change, Tenant may cause the approved Change to
be instituted.
Major Construction - Tenant Build 3770 Tansy/Structural GenomiX, Inc. - Page 3
5. COSTS
a. BUDGET FOR TENANT IMPROVEMENTS. Before the commencement of construction
of the Tenant Improvements, Tenant shall obtain a detailed breakdown, by trade,
of the costs incurred or which will be incurred, in connection with the design
and construction of Tenant's Work (the "BUDGET"). The Budget shall be based upon
the TI Construction Drawings approved by Landlord and shall include a payment to
Landlord of administrative rent ("ADMINISTRATIVE RENT") equal to 2% of the TI
Costs (as hereinafter defined) for monitoring and inspecting the construction of
Tenant's Work, which sum shall be payable from the TI Fund. Such Administrative
Rent shall include, without limitation, all out-of-pocket costs, expenses and
fees incurred by or on behalf of Landlord arising from, out of, or in connection
with, such monitoring of the construction of the Tenant's Improvements, and
shall be payable out of the TI Fund. If the Budget is greater than the TI
Allowance, Tenant shall deposit with Landlord the difference, in cash, prior to
the commencement of construction of the Tenant Improvements, for disbursement by
Landlord as described in Section 5(d).
b. TI ALLOWANCE. With respect to the Area A Premises, Landlord shall
provide to Tenant a tenant improvement allowance ("AREA A TI ALLOWANCE") of
$38,000. The Area A TI Allowance shall be disbursed in accordance with this Work
Letter. With respect to the Area B Premises and the Area C Premises, Landlord
shall provide to Tenant a tenant improvement allowance ("AREA B AND AREA C TI
ALLOWANCE") of $412,667. The Area B and Area C TI Allowance shall be used only
in connection with improvements to the Area B Premises or the Area C Premises,
in accordance with plans and specifications submitted by Tenant and approved by
Landlord.
c. COSTS INCLUDABLE IN TI FUND. The TI Fund shall be used solely for the
payment of design and construction costs in connection with the construction of
the Tenant Improvements, including, without limitation, the cost of preparing
the TI Design Drawings and the TI Construction Drawings, all costs set forth in
the Budget, including Landlord's Administrative Rent, and the cost of Changes
(collectively, "TI COSTS"). Notwithstanding anything to the contrary contained
herein, the TI Fund shall not be used to purchase any furniture, personal
property or other non-Building System materials or equipment, including, but not
be limited to, biological safety cabinets and other scientific equipment not
incorporated into the Improvements.
d. EXCESS TI COSTS. It is understood and agreed that Landlord is under no
obligation to bear any portion of the cost of any of the Tenant Improvements
except to the extent of the TI Allowance. If at any time and from time-to-time,
the remaining TI Costs under the Budget exceed the remaining unexpended TI
Allowance, Tenant shall pay 100% of the then current TI Cost in excess of the
remaining TI Allowance ("EXCESS TI COSTS") before Landlord shall be obligated to
disburse any remaining part of the TI Allowance. If Tenant fails to pay any
Excess TI Costs, Landlord shall have all of the rights and remedies set forth in
the Lease for nonpayment of Rent (including, but not limited to, the right to
interest at the Default Rate and the right to assess a late charge), and for
purposes of any litigation instituted with regard to such amounts the same will
be considered Rent. Such Excess TI Costs, together with the remaining TI
Allowance, is herein referred to as the "TI FUND". Notwithstanding anything to
the contrary set forth in this Section 5(d), Tenant shall be fully and solely
liable for TI Costs and the cost of Minor Variations in excess of the TI
Allowance. If upon Substantial Completion of the Tenant Improvements and the
payment of all sums due in connection therewith there remains any undisbursed TI
Fund, Tenant shall be entitled to such undisbursed TI Fund solely to the extent
of any Excess TI Costs deposit Tenant has actually made with Landlord.
e. PAYMENT FOR TI COSTS. Landlord shall pay TI Costs once a month against
a draw request in Landlord's standard form, containing such certifications, lien
waivers, inspection reports and other matters as Landlord customarily obtains,
to the extent of Landlord's approval thereof for payment, no later than 30 days
following receipt of such draw request.
Major Construction - Tenant Build 3770 Tansy/Structural GenomiX, Inc. - Page 4
6. MISCELLANEOUS
a. CONSENTS. Whenever consent or approval of either party is required
under this Work Letter, that party shall not unreasonably withhold, condition or
delay such consent or approval, except as may be expressly set forth herein to
the contrary.
b. MODIFICATION. No modification, waiver or amendment of this Work Letter
or of any of its conditions or provisions shall be binding upon Landlord or
Tenant unless in writing signed by Landlord and Tenant.
c. COUNTERPARTS. This Work Letter may be executed in any number of
counterparts but all counterparts taken together shall constitute a single
document.
d. GOVERNING LAW. This Work Letter shall be governed by, construed and
enforced in accordance with the internal laws of the state in which the Premises
are located, without regard to choice of law principles of such State.
e. TIME OF THE ESSENCE. Time is of the essence of this Work Letter and of
each and all provisions thereof.
f. DEFAULT. Notwithstanding anything set forth herein or in the Lease to
the contrary, Landlord shall not have any obligation to perform any work
hereunder or to fund any portion of the TI Fund during any period Tenant is in
Default under the Lease.
g. SEVERABILITY. If any term or provision of this Work Letter is declared
invalid or unenforceable, the remainder of this Work Letter shall not be
affected by such determination and shall continue to be valid and enforceable.
h. MERGER. All understandings and agreements, oral or written, heretofore
made between the parties hereto and relating to Tenant's Work are merged in this
Work Letter, which alone (but inclusive of provisions of the Lease incorporated
herein and the final approved constructions drawings and specifications prepared
pursuant hereto) fully and completely expresses the agreement between Landlord
and Tenant with regard to the matters set forth in this Work Letter.
i. ENTIRE AGREEMENT. This Work Letter is made as a part of and pursuant to
the Lease and, together with the Lease, constitutes the entire agreement of the
parties with respect to the subject matter hereof. This Work Letter is subject
to all of the terms and limitation set forth in the Lease, and neither party
shall have any rights or remedies under this Work Letter separate and apart from
their respective remedies pursuant to the Lease.
Major Construction - Tenant Build 3770 Tansy/Structural GenomiX, Inc. - Page 5
IN WITNESS WHEREOF, Landlord and Tenant have executed this Work Letter to
be effective on the date first above written.
TENANT:
STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxx
-----------------------
Its: President & CEO
XXXXXXXX
XXX-0000 TANSY STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership,
its managing member
By: ARE-QRS CORP.,
a Maryland corporation,
its general partner
By: /s/ Xxxx Xxxx Xxxxxxx
----------------------------
Its: General Counsel
Commencement Date 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT C TO LEASE
ACKNOWLEDGMENT OF COMMENCEMENT DATE
This ACKNOWLEDGMENT OF COMMENCEMENT DATE is made this ___ day of
__________, ______, between XXX-0000 XXXXX XXXXXX LLC, a Delaware limited
liability company ("LANDLORD"), and STRUCTURAL GENOMIX, INC., a Delaware
corporation ("TENANT"), and is attached to and made a part of the Lease dated
May ____, 2000 (the "LEASE"), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them
in the Lease.
Landlord and Tenant hereby acknowledge and agree, for all purposes of the
Lease, that the Commencement Date of the Term of the Lease is August 1, 2000 and
the termination date of the Lease shall be midnight on December 31, 2005.
IN WITNESS WHEREOF, Landlord and Tenant have executed this ACKNOWLEDGMENT
OF COMMENCEMENT DATE to be effective on the date first above written.
TENANT:
STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: ________________________________
Its: _______________________________
LANDLORD:
ARE-3770 TANSY STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership,
its managing member
By: ARE-QRS CORP.,
a Maryland corporation,
its general partner
By: ________________________________
Its: _______________________________
Commencement Date 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT D TO LEASE
TENANT'S PERSONAL PROPERTY
NONE (UNLESS OTHERWISE NOTED BELOW)
Estoppel Certificate 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT E TO LEASE
ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of
_____________, _____ is executed by __________________ ("TENANT") in favor of
[BUYER], a _________________________, together with its nominees, designees and
assigns (collectively, "BUYER"), and in favor of __________________, together
with its nominees, designees and assigns (collectively, "LENDER").
RECITALS
A. Buyer and _______________ ("LANDLORD"), have entered into that certain
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
_____________, 19____ (the "PURCHASE AGREEMENT"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City of
______________, County of ______________, State of ______________, more
particularly described on Exhibit A attached to the Purchase Agreement (the
"PROPERTY").
B. Tenant and Landlord have entered into that certain Lease Agreement,
dated as of ____________ (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "LEASE"), for a portion of
the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested that
Tenant execute this Certificate with an understanding that Lender will rely on
the representations and agreements below in granting to Buyer a loan.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer and
Lender as follows:
1. LEASE. Attached hereto as Exhibit B is a true, correct and complete copy of
the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
2. PREMISES. Pursuant to the Lease, Tenant leases those certain premises (the
"PREMISES") consisting of approximately ___________ rentable square feet within
the Property, as more particularly described in the Lease. In addition, pursuant
to the terms of the Lease, Tenant has the non-exclusive right to use _______
parking spaces located on the Property during the term of the Lease.
3. FULL FORCE OF LEASE. The Lease has been duly authorized, executed and
delivered by Tenant, is in full force and effect, has not been terminated, and
constitutes a legally valid instrument, binding and enforceable against Tenant
in accordance with its terms, subject only to applicable limitations imposed by
laws relating to bankruptcy and creditor's rights.
4. COMPLETE AGREEMENT. The Lease constitutes the complete agreement between
Landlord and Tenant for the Premises and the Property, and except as modified by
the Lease amendments noted above (if any), has not been modified, altered or
amended.
5. ACCEPTANCE OF PREMISES. Tenant has accepted possession and is currently
occupying the Premises.
Estoppel Certificate 3770 Tansy/Structural GenomiX, Inc. - Page 2
6. LEASE TERM. The term of the Lease commenced on ___________ and ends on
___________, subject to the following options to extend:
__________________________________________________
_______________________________________________.
(If none, please state "None.")
7. PURCHASE RIGHTS. Tenant has no option, right of first refusal, right of first
offer, or other right to acquire or purchase all or any portion of the Premises
or all or any portion of, or interest in, the Property, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
8. RIGHTS OF TENANT. Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of the
Premises or all or any part of the Property;
(c) has no right, title, or interest in the Premises, other than as
Tenant under the Lease.
9. RENT.
(a) The obligation to pay rent under the Lease commenced on
________________. The rent under the Lease is current, and Tenant is not
in default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of $_______ per month. Tenant has not received and is not presently
entitled to any abatement, refunds, rebates, concessions or forgiveness of
rent or other charges, free rent, partial rent, or credits, offsets or
reductions in rent, except as follows: ___________________________________
__________________________________________________________________________
_____________________________________. (If none, please state "None.")
(c) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease, and to Tenant's knowledge there
presently is no default or other wrongful act or omission by Landlord
under the Lease or otherwise in connection with Tenant's occupancy of the
Premises, nor is there a state of facts which with the passage of time or
the giving of notice or both could ripen into a default on the part of
Tenant, or to the best knowledge of Tenant, could ripen into a default on
the part of Landlord under the Lease, except as follows:
__________________________________________________________________________
__________________________________________________________________________
________________________________. (If none, please state "None.")
10. SECURITY DEPOSIT. The amount of Tenant's security deposit held by Landlord
under the Lease is $ ____________.
11. PREPAID RENT. The amount of prepaid rent, separate from the security
deposit, is $__________ , covering the period from ____________ to ____________.
12. INSURANCE. All insurance, if any, required to be maintained by Tenant under
the Lease is presently in effect.
13. TENANT IMPROVEMENTS. As of the date of this Certificate, to the best of
Tenant's knowledge, Landlord has performed all obligations required of Landlord
pursuant to the Lease; no offsets, counterclaims, or defenses of Tenant under
the Lease exist against Landlord; and no events have
Estoppel Certificate 3770 Tansy/Structural GenomiX, Inc. - Page 3
occurred that, with the passage of time or the giving of notice, would
constitute a basis for offsets, counterclaims, or defenses against Landlord,
except as follows: _____________________________________________________________
________________________________________________________________________________
__________________________. (If none, please state "None.")
14. ASSIGNMENTS BY LANDLORD. Tenant has received no notice of any assignment,
hypothecation or pledge of the Lease or rentals under the Lease by Landlord.
Tenant hereby consents to an assignment of the Lease and rents to be executed by
Landlord to Buyer or Lender in connection with the Loan and acknowledges that
said assignment does not violate the provisions of the Lease. Tenant
acknowledges that the interest of the Landlord under the Lease is to be assigned
to Buyer or Lender solely as security for the purposes specified in said
assignment and Buyer or Lender shall have no duty, liability or obligation
whatsoever under the Lease or any extension or renewal thereof, either by virtue
of said assignment or by any subsequent receipt or collection of rents
thereunder, unless Buyer or Lender shall specifically undertake such liability
in writing. Tenant agrees that upon receipt of a written notice from Buyer or
Lender of a default by Landlord under the Loan, Tenant will thereafter pay rent
to Buyer or Lender in accordance with the terms of the Lease, provided that
Tenant has previously received Landlord's written consent to such payments upon
a default by Landlord under the Loan.
15. ASSIGNMENTS BY TENANT. Tenant has not sublet or assigned the Premises or the
Lease or any portion thereof to any sublessee or assignee, except as follows:
________________________________. No one except Tenant and its employees will
occupy the Premises. The address for notices to be sent to Tenant is as set
forth in the Lease, or as follows: _____________________________________________
16. SUCCESSION OF INTEREST. Tenant agrees that, in the event Buyer or Lender
succeeds to the interest of Landlord under the Lease:
(a) Buyer or Lender shall not be liable for any act or omission of
any prior landlord (including Landlord);
(b) Buyer or Lender shall not be liable for the return of any
security deposit;
(c) Buyer or Lender shall not be bound by any rent or additional
rent which Tenant might have prepaid under the Lease for more than the
current month;
(d) Buyer or Lender shall not be bound by any amendments or
modifications of the Lease made without prior consent of Buyer or Lender;
(e) Buyer or Lender shall not be subject to any offsets or defenses
which Tenant might have against any prior landlord (including Landlord);
or
(f) Buyer or Lender shall not be liable under the Lease to Tenant
for the performance of Landlord's obligations under the Lease beyond Buyer
or Lender's interest in the Property.
17. NOTICE OF DEFAULT. Tenant agrees to give Buyer and Lender a copy of any
notice of default under the Lease served upon Landlord at the same time as such
notice is given to Landlord. Tenant further agrees that if Landlord shall fail
to cure such default within the applicable grace period, if any, provided in the
Lease, then Buyer or Lender shall have a reasonable period within which to cure
such default; provided however, that such period of time shall be extended so
long as Buyer or Lender has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but not limited to, commencement of
foreclosure proceedings, if necessary to effect such cure), in which event the
Lease shall not be terminated while such remedies are being pursued.
Tenant makes this Certificate with the knowledge that it will be relied
upon by Buyer and Lender in agreeing to purchase the Properly.
Estoppel Certificate 3770 Tansy/Structural GenomiX, Inc. - Page 4
Tenant has executed this Certificate as of the date first written above by
the person named below, who is duly authorized to do so.
TENANT: STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: ___________________________________________
Name: _____________________________________
Its: _____________________________________
Estoppel Certificate 3770 Tansy/Structural GenomiX, Inc. - Page 5
EXHIBIT A TO ESTOPPEL CERTIFICATE
LEGAL DESCRIPTION
Estoppel Certificate 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT B TO ESTOPPEL CERTIFICATE
COPY OF LEASE
Subordination Agreement 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT F TO LEASE
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT is made and
entered into as of ___________________, _______ ("AGREEMENT"), by and between
ARE-3770 TANSY STREET, LLC, a Delaware limited liability company together with
its nominees, designees and assigns (collectively, "LANDLORD"),
___________________, a _____________________ ("TENANT"), and __________________,
a ____________________ ("MORTGAGEE").
WHEREAS, Mortgagee is making a loan to Landlord and others evidenced by a
certain promissory note ("Note"), and secured by, among other things, a deed of
trust/mortgage to be recorded prior hereto in the public records of the City of
____________, County of ____________, State of ____________ ("MORTGAGE")
constituting a lien upon the real property described in Exhibit A hereto (the
"REAL PROPERTY"); and
WHEREAS, ________________________ and Tenant have entered into a Lease
Agreement dated as of ___________________, _______ ("LEASE"), for certain leased
premises encompassing ________________________ located in _____________________,
containing approximately ________ net square feet (hereinafter collectively
referred to as "PREMISES"); and
WHEREAS, the Lease is subordinate to the Mortgage and to the right, title,
and interests of Mortgagee thereto and thereunder; and
WHEREAS, Mortgagee wishes to obtain from Tenant certain assurances that
Tenant will attorn to Mortgagee in the event of a foreclosure by Mortgagee or
the exercise of other rights under the Mortgage; and
WHEREAS, Tenant wishes to obtain from Mortgagee certain assurances that
Tenant's possession of the Premises will not, subject to the terms and
conditions of this Agreement, be disturbed by reason of a foreclosure of the
lien of the Mortgage on the Real Property; and
WHEREAS, Tenant and Mortgagee are both willing to provide such assurances
to each other upon and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the above, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto mutually
agree as follows:
1. AFFIRMATION. Tenant hereby agrees that the Lease now is and shall be
subject and subordinate in all respects to the Mortgage and to all renewals,
modifications and extensions thereof until such time that the Mortgage is
released, satisfied or otherwise discharged, subject to the terms and conditions
of this Agreement. Landlord and Tenant hereby affirm that the Lease is in full
force and effect and that the Lease has not been modified or amended, except as
follows: _______________________ ______________________________. Mortgagee
hereby confirms that it is the holder of the Note and the beneficiary of the
Mortgage and has full power and authority to enter into this Agreement.
2. ATTORNMENT AND NON-DISTURBANCE.
(a) So long as Tenant is not in default under the Lease (beyond Tenant's
receipt of notice from Landlord and any grace period granted tenant under the
Lease to cure such default) as would entitle the Landlord to terminate the Lease
or would cause without any further action of the Landlord, the termination of
the Lease or would entitle the Landlord to dispossess Tenant thereunder, then
Mortgagee agrees with Tenant that in the event the interest of Landlord shall be
acquired by Mortgagee or in the event Mortgagee comes into possession of or
acquires title to the Real Property by reason of foreclosure
Subordination Agreement 3770 Tansy/Structural GenomiX, Inc. - Page 2
or foreclosure sale or the enforcement of the Mortgage or the Note or other
obligation secured thereby or by a conveyance in lieu thereof, or as a result of
any other means then:
(i) Subject to the provisions of this Agreement, Tenant's occupancy
and possession of the Premises and Tenant's rights and privileges under
the Lease or any extensions, modifications or renewals thereof or
substitutions therefor (in accordance with the Lease and the Mortgage)
shall not be disturbed, diminished or interfered with by Mortgagee during
the term of the Lease (or any extensions or renewals thereof provided for
in the Lease);
(ii) Mortgagee will not join Tenant as a party defendant in any
action or proceeding for the purpose of terminating Tenant's interest and
estate under the Lease because of any default under the Mortgage; and
(iii) The Lease shall continue in full force and effect and shall
not be terminated except in accordance with the terms of the Lease.
(b) Tenant shall be bound to Mortgagee under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof remaining (and
any extensions or renewals thereof which may be effected in accordance with any
option contained in the Lease) with the same force and effect as if Mortgagee
were the landlord under the Lease, and Tenant does hereby agree to attorn to
Mortgagee as its landlord, said attornment to be effective and self-operative
without the execution of any other instruments on the part of either party
hereto immediately upon Mortgagee's succeeding to the interest of Landlord under
the Lease. Upon request of Lender or such Purchaser, Tenant shall execute and
deliver to Lender or such Purchaser an agreement reaffirming such attornment.
Tenant hereby agrees that any right of first refusal or right of first offer to
purchase the Property which Tenant may have pursuant to the terms of the Lease
shall not be applicable to Mortgagee's or any Purchaser's acquisition of the
Property by foreclosure, deed in lieu of foreclosure, other transaction related
thereto or in substitution thereof, trustee sale or other similar statutory
conveyance. The foregoing shall not be construed as diminishing or eliminating
any of Tenant's Right of First Refusal or First Offer to purchase the property
that remain valid in the Lease after such Mortgagee's or Purchaser's
acquisition.
(c) In the event that the Mortgage is foreclosed and any party
("PURCHASER") other than Mortgagee purchases the Premises and succeeds to the
interest of Landlord under the Lease, Tenant shall likewise be bound to
Purchaser and Tenant hereby covenants and agrees to attorn to Purchaser in
accordance with all of the provisions of this Agreement; provided, however, that
Purchaser shall have transmitted to Tenant a written document in recordable
form, whereby Purchaser agrees to recognize Tenant as its lessee under the Lease
and agrees to be directly bound to Tenant for the performance and observance of
all the terms and conditions of the Lease required to be performed or observed
by Landlord thereunder, subject to and in accordance with the terms of this
Agreement.
(d) Mortgagee agrees that if Mortgagee shall succeed to the interest of
Landlord under the Lease as above provided, Mortgagee shall be bound to Tenant
under all of the terms, covenants, and conditions of this Lease, and Tenant
shall, from and after Mortgagee's succession to the interest of Landlord under
the Lease, have the same remedies against Mortgagee that Tenant might have had
under the Lease against Landlord if Mortgagee had not succeeded to the interest
of Landlord; provided, however, that Mortgagee (and Purchaser, as the case may
be) shall not be:
(i) liable for any act or omission of any prior lessor (including
Landlord) occurring prior to the date that Mortgagee or purchaser acquired
title to the Premises; or
(ii) subject to any offsets, counterclaims or defenses which Tenant
might have against any prior lessor (including Landlord); or
(iii) bound by any previous payment of rent or additional rent for a
period greater than 1 month unless such prepayment shall have been
consented to in writing by Mortgagee; or
Subordination Agreement 3770 Tansy/Structural GenomiX, Inc. - Page 3
(iv) bound by any amendment or modification of the Lease made prior
to the date Mortgagee or Purchaser succeeds to the interest of Landlord
without Mortgagee's written consent; or
(v) liable to Tenant for any loss of business or any other indirect
or consequential damages from whatever cause; provided, however, no
inference shall be drawn from this clause (v) that Tenant would otherwise
be entitled (or not entitled) to recover for loss of business or any other
indirect or consequential damages; or
(vi) liable for the return of any security deposit unless such
deposit has been paid over to the Mortgagee.
The foregoing shall not be construed lo modify or limit any right Tenant
may have at law or in equity against Landlord or any other prior owner of
the Real Property.
3. NOTICES. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and shall be sent postage prepaid, by certified
mail, return receipt requested or other nationally utilized overnight delivery
service. All notices shall be deemed delivered when received or refused.
Rejection or other refusal to accept or inability to deliver because of changed
address of which no notice has been given shall constitute receipt of the
notice, demand or request sent. Any such notice if given to Tenant shall be
addressed as follows:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
if given to Landlord shall be addressed as follows:
c/o Alexandria Real Estate Equities, Inc.
000 X. Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
if given to Mortgagee shall be addressed as follows:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. The words "foreclosure" and "foreclosure sale" as used herein shall be
deemed to also include the acquisition of Landlord's estate in the Real Property
by voluntary deed, assignment or other conveyance or transfer in lieu of
foreclosure.
5. MODIFICATIONS TO LEASE. Tenant shall not modify or amend the Lease or
terminate the same without Mortgagee's prior written consent. If Mortgagee fails
to provide Tenant with a written approval of the proposed modification,
amendment or termination within 10 business days after notice to Mortgagee of
such proposal, then Mortgagee shall be deemed to have rejected such proposal.
Subordination Agreement 3770 Tansy/Structural GenomiX, Inc. - Page 4
6. ADDITIONAL AGREEMENTS. Tenant agrees that:
(a) it shall give Mortgagee copies of all notices of default and requests
for approval or consent by Landlord that Tenant gives to Landlord pursuant to
the Lease in the same manner as they are given to Landlord and no such notice or
other communication shall be deemed to be effective until a copy is given to
Mortgagee;
(b) Tenant shall name Mortgagee and any Purchaser as additional insureds
and loss payees, as applicable and appropriate, on all insurance policies
required by the Lease; and
(c) this Agreement satisfies any condition or requirement in the Lease
relating to the granting of a non-disturbance agreement by Mortgagee, and in the
event that there are inconsistencies between the terms and provisions of this
Agreement and the terms and provisions of the Lease dealing with non-disturbance
by Mortgagee, the terms and provisions hereof shall be controlling; and
(d) Mortgagee shall have no liability under the Lease until Mortgagee
succeeds to the rights of the Landlord under the Lease, and then only during
such period as Mortgagee is the Landlord. At all times during which Mortgagee is
liable under the Lease, Mortgagee's liability shall be limited to Mortgagee's
interest in the Real Property.
7. MORTGAGEE CURE RIGHTS. If Landlord shall have failed to cure any
default within the time period provided for in the Lease (including any
applicable notice and grace periods), but not prior thereto Tenant exercises any
right to terminate the Lease, Mortgagee, shall have an additional 30 days within
which to cure such default, or if such default cannot by the exercise of
reasonable efforts by Mortgagee be cured within such period, then such
additional time as may be reasonable necessary to effect such a cure (including,
if necessary, sufficient time to complete foreclosure proceedings) provided that
within such 30-day period Mortgagee shall commence and thereafter diligently
pursue remedies to cure such default. The Lease shall not be terminated (i)
while such remedies are being diligently pursued or (ii) based upon a default
which is personal to Landlord and therefore not susceptible to cure by Mortgagee
or which requires possession of the Premises to cure. Mortgagee shall in no
event be obligated to cure any such default by Landlord unless it forecloses.
Nothing in this Section 7 shall affect any of Tenant's termination rights under
the Lease due to casualty or condemnation.
8. DIRECTION TO PAY. Landlord hereby directs Tenant and Tenant agrees to
make all payments of amounts owed by Tenant under the Lease directly to
Mortgagee from and after receipt by Tenant of notice from Mortgagee directing
Tenant to make such payments to Mortgagee. (As between Landlord and Mortgagee,
the foregoing provision shall not be construed to modify any rights of Landlord
under or any provisions of the Mortgage or any other instrument securing the
Note).
9. CONDITIONAL ASSIGNMENT. With reference to any assignment by Landlord of
Landlord's interest in the Lease, or the rents payable thereunder, conditional
in nature or otherwise, which assignment is made to Mortgagee, Tenant agrees
that the execution thereof by Landlord, and the acceptance thereof by Mortgagee
shall never be treated as an assumption by Mortgagee of any of the obligations
of Landlord under the Lease unless and until Mortgagee shall have succeeded to
the interest of Landlord. The foregoing sentence shall not affect any of
Tenant's rights against Landlord under the Lease.
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Subordination Agreement 3770 Tansy/Structural GenomiX, Inc. - Page 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
properly executed by their duly authorized representatives as of the date first
above written.
TENANT: STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: ____________________________________
Its: ___________________________________
LANDLORD: ARE-3770 TANSY STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership,
its managing member
By: ARE-QRS CORP.,
a Maryland corporation,
its general partner
By: ___________________________________
Its: __________________________________
MORTGAGEE:
a ______________________________________
By: ____________________________________
Name: ______________________________
Its: _______________________________
Subordination Agreement 3770 Tansy/Structural GenomiX, Inc. - Page 6
EXHIBIT A TO SUBORDINATION AGREEMENT
Legal Description
Area B Diagram 3770 Tansy/Structural GenomiX, Inc. - Page 1
EXHIBIT G TO LEASE
CONDITION OF AREA B UPON TERMINATION
See Attached
EXHIBIT G
[FLOOR PLAN]
