Existing Generator. Landlord and Tenant acknowledge and agree that there is an existing generator in the Project which exclusively serves the Premises (“Existing Generator”), the location of which Existing Generator is depicted on Exhibit “B” attached hereto (“Generator Area”). Upon written notice to Landlord, Tenant may elect to own the Existing Generator. Following ▇▇▇▇▇▇’s delivery of such notice, effective as of the later of (i) the date of the full execution and delivery of a bill of sale between Landlord and Tenant (in the form of Exhibit “C” attached hereto) and (ii) the Permit Issuance Date (as defined below), Tenant shall own and control such Existing Generator. Tenant acknowledges and agrees that Landlord makes no representation or warranty whatsoever with respect to the Existing Generator, including any warranty of fitness for a particular purpose. By purchasing the Existing Generator, ▇▇▇▇▇▇ acknowledges that it has not relied on any representation or warranty made by Landlord or any other person on Landlord’s behalf except as set forth in the Bill of Sale. Tenant acknowledges that the Existing Generator is being sold in its then “as is” condition subject to the terms of the Bill of Sale. Such Existing Generator shall be used by Tenant only during (i) testing and regular maintenance, and (ii) any period of electrical power outage in the Premises. Tenant shall be entitled to operate the Existing Generator for testing and regular maintenance upon prior written notice to Landlord (subject to the requirements of governmental agencies or instrumentalities with jurisdiction thereover, which requirements shall control). An express condition to ▇▇▇▇▇▇’s entry into the Generator Area is Tenant being escorted by a representative of Landlord and Landlord shall at all times make a representative available during normal business hours for such purpose except in the case of emergency where Tenant shall not be required to be escorted by a representative of Landlord if such representative is not reasonably available or such emergency occurs outside of normal business hours. From and after the effect date of its ownership of the Existing Generator as provided in this Second Amendment, Tenant shall ensure that the Existing Generator does not result in any Hazardous Materials being introduced to the Project and Article 5 of the Original Lease will apply to Tenant's use of the Existing Generator, provided that Tenant shall not be liable for any matter regarding the Existing Generator, including violations of law, Hazardous Materials, or the requirements of the Existing Permit and the SCAQMD (as defined below) arising from or accruing to periods prior to Tenant’s ownership of the Existing Generator. Further, Tenant shall 4856-4214-1959.9391226.00001/8-25-22/MLT/pah -3- be responsible for ensuring that its use and operation of the Existing Generator does not unreasonably interfere with the use of the Building by other tenants. During the Term of the Lease, any repairs and maintenance of the Existing Generator shall be the sole responsibility of Tenant. Tenant shall have no obligation to remove such Existing Generator (including any wires or conduits) upon the expiration or earlier termination of the Lease. The Existing Generator shall be deemed to be a part of the Premises for purposes of Article 10 of the Original Lease. Attached hereto as Exhibit “D” is the current permit issued by the South Coast Air Quality Management District (“SCAQMD”) allowing the operating of the Existing Generator (the “Existing Permit”). Landlord represents and warrants to Tenant that the Existing Permit is in full force and effect without default of Landlord thereunder. As soon as practicable after the date hereof, Tenant shall cause the Existing Permit to be reissued in the name of Tenant as the “Legal Owner or Operator” referenced therein. The date of such reissuance of such permit is referred to herein as the “Permit Issuance Date” and Tenant shall promptly provide Landlord with a copy of such reissued permit. Notwithstanding anything in this Amendment to the contrary, in the event that SCAQMD fails to reissue such permit in the name of Tenant, the Existing Generator shall remain in Landlord’s ownership and control and the Existing Permit shall remain in Landlord’s name.
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Sources: Lease (Xencor Inc)
Existing Generator. Tenant acknowledges that Landlord and Tenant acknowledge and agree that there is owns an existing generator located in the Project which exclusively serves east wing of the Premises lower level of the Building adjacent to the switchgear room (the “Existing Generator”). During the Term, Tenant shall have the location non-exclusive right to use, solely for emergency back-up power, a portion of which the Existing Generator’s capacity. The load or potential load to be placed on the Existing Generator by Tenant will be subject to Landlord’s approval in Landlord’s reasonable discretion. The parties acknowledge that the primary use of the Existing Generator during the Term will be to continue to provide backup power to the Building’s life safety systems, including any multi-tenant floors. Tenant’s load on such Existing Generator must not interfere with such primary purpose. All costs associated with Tenant’s use of the Existing Generator, including additional equipment, installation of Tenant equipment, electricity and maintenance and repairs necessitated by Tenant’s use, shall be paid by Tenant within 30 days after Landlord delivers to Tenant an invoice therefor from time to time. In addition, notwithstanding such shared use of the Existing Generator, Tenant shall pay 100% of all costs, excluding Existing Generator Replacement Costs (defined below), incurred by Landlord for the operation, maintenance, repair, testing, replacement of filters and components, fueling, labor and equipment therefor, including all applicable utility charges (collectively, “Existing Generator Costs”), with respect to the Existing Generator within 30 days after Landlord delivers to Tenant an invoice therefor from time to time. If Landlord reasonably determines that the Existing Generator has reached the end of its useful life and repair of the Existing Generator is depicted on Exhibit “B” attached hereto not economically feasible, and Landlord elects to replace the Existing Generator, then the total costs of such replacement (including, without limitation, purchase, installation of the replacement generator, and removal of Existing Generator) (“Existing Generator AreaReplacement Costs”) will be amortized, with interest at 8% per annum, over the number of months in the useful life of the replacement generator, as reasonably estimated by Landlord in accordance with GAAP (the “Monthly Existing Gen Replacement Amortization”), from the installation date. Upon written notice In such event, Tenant will pay to Landlord, Tenant may elect to own beginning upon such installation, the Monthly Existing Generator. Following ▇▇▇▇▇▇’s delivery Gen Replacement Amortization on the first day of such each month as additional rent, without demand or notice, effective as of and Tenant will continue to pay such Monthly Existing Gen Replacement Amortization monthly until the later earlier of (i) the date on which the Existing Generator Replacement Costs are fully amortized (i.e., through the expiration date of the full execution and delivery originally estimated useful life of a bill of sale between Landlord and Tenant (in the form of Exhibit “C” attached heretoreplacement generator) and (ii) the Permit Issuance Date date on which this Lease expires without being renewed or extended. Accordingly, if such Existing Generator Replacement Costs are incurred during the initial Term but such costs have not been fully amortized by the expiration of the initial Term, and if the Term is renewed (as defined belowwhether by exercise of a Renewal Option, Short-Term Renewal Option, or otherwise), Tenant shall own and control will continue to pay such Monthly Existing Gen Replacement Amortization through such renewal or extension term or terms until such Existing GeneratorGenerator Replacement Costs are fully amortized or until this Lease expires without being renewed or extended. However, if this Lease expires (without being renewed or extended) before such Existing Generator Replacement Costs are fully amortized, Tenant acknowledges and agrees that Landlord makes no representation will not be responsible or warranty whatsoever with respect liable for the Monthly Existing Gen Replacement Amortization accruing after such final expiration of this Lease. Tenant’s obligation to the Existing Generator, including any warranty of fitness for a particular purpose. By purchasing the Existing Generator, ▇▇▇▇▇▇ acknowledges that it has not relied on any representation or warranty made by Landlord or any other person on Landlord’s behalf except as set forth in the Bill of Sale. Tenant acknowledges that pay the Existing Generator is being sold in its then “as is” condition subject to the terms of the Bill of Sale. Such Costs or Monthly Existing Generator shall Gen Replacement Amortization will not be used by Tenant only during (i) testing and regular maintenanceterminated, and (ii) any period of electrical power outage diminished, or affected in the Premises. event that Tenant shall be entitled elects to operate the Existing Generator for testing and regular maintenance upon prior written notice to Landlord (subject to the requirements of governmental agencies diminish or instrumentalities with jurisdiction thereover, which requirements shall control). An express condition to ▇▇▇▇▇▇’s entry into the Generator Area is Tenant being escorted by a representative of Landlord and Landlord shall at all times make a representative available during normal business hours for such purpose except in the case of emergency where Tenant shall not be required to be escorted by a representative of Landlord if such representative is not reasonably available or such emergency occurs outside of normal business hours. From and after the effect date of discontinue its ownership use of the Existing Generator as provided in this Second Amendment, or its replacement. Tenant shall ensure that accepts the Existing Generator does not result in any Hazardous Materials being introduced to the Project and Article 5 of the Original Lease will apply to Tenant's use of its current condition on an “AS-IS” basis with all faults, WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED, IT BEING THE INTENTION OF LANDLORD AND TENANT EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM COMMERCE CODE, AS ADOPTED IN THE STATE IN WHICH THE PREMISES ARE LOCATED. Landlord shall maintain the Existing Generator, provided that Tenant shall Generator but will not be liable for any matter regarding the Existing Generator, including violations of law, Hazardous Materials, service interruptions or the requirements of the Existing Permit and the SCAQMD (as defined below) arising from or accruing to periods prior to Tenant’s ownership of the Existing Generatorfailures. Further, Tenant shall 4856-4214-1959.9391226.00001/8-25-22/MLT/pah -3- be responsible for ensuring that its use and operation of the Existing Generator does not unreasonably interfere with the use of the Building by other tenants. During the Term of the Lease, any repairs and maintenance of the Existing Generator shall be the sole responsibility of Tenant. Tenant shall have no obligation to remove such Existing Generator (including any wires or conduits) upon At the expiration or earlier termination of the Lease. The Term, Tenant, at Tenant’s sole cost and expense, shall remove all equipment attached or connected by Tenant to the Existing Generator and shall be deemed to be a part of the Premises for purposes of Article 10 of the Original Lease. Attached hereto as Exhibit “D” is the current permit issued restore any damage caused by the South Coast Air Quality Management District (“SCAQMD”) allowing removal of Tenant’s equipment from the operating Existing Generator. In addition, Tenant shall repair all damage caused by the abuse of the Existing Generator (or the “Existing Permit”)willful misconduct with respect thereto by any Tenant Party. If Tenant fails to do so within 30 days after Landlord’s written request, Landlord represents and warrants to Tenant that the Existing Permit is in full force and effect without default of Landlord thereunder. As soon as practicable after the date hereof, Tenant shall cause the Existing Permit to be reissued in the name of Tenant as the “Legal Owner or Operator” referenced therein. The date of may perform such reissuance of such permit is referred to herein as the “Permit Issuance Date” work and Tenant shall promptly provide pay to Landlord with a copy of such reissued permit. Notwithstanding anything all reasonable costs incurred in this Amendment to the contrary, in the event that SCAQMD fails to reissue such permit in the name of Tenant, the Existing Generator shall remain in connection therewith within 30 days after Landlord’s ownership and control and the Existing Permit shall remain in Landlord’s namewritten request therefor.
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