EXHIBIT 10.19
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
EXPANSION LEASE
BY AND BETWEEN
Health Science Properties, Inc.
and
Sequana Therapeutics, Inc.
TABLE OF CONTENTS
Article Page
------- ----
1. Lease of Premises 3
2. Basic Lease Provisions 3
3. Term 6
4. Possession and Commencement Date 6
5. Rent 8
6. Rent Adjustments 9
7. Operating Expenses 9
8. Rentable and Usable Area 12
9. Security Deposit 12
10. Use 13
11. Brokers 14
12. Holding Over 14
13. Taxes on Tenant's Property 14
14. Condition of Demised Premises 15
15. Common Areas and Parking Facilities 15
16. Utilities and Services 16
17. Alterations 17
18. Repairs and Maintenance 19
19. Liens 19
20. Indemnification and Exculpation 20
21. Insurance - Waiver of Subrogation 21
22. Damage or Destruction 22
23. Eminent Domain 23
24. Defaults and Remedies 24
25. Assignment or Subletting 27
26. Attorney's Fees 29
27. Bankruptcy 29
28. Definition of Landlord 29
29. Estoppel Certificate 29
30. Joint and Several Obligations 30
31. Limitation of Landlord's Liability 30
32. Project Control by Landlord 30
33. Quiet Enjoyment 30
34. Quitclaim Deed 31
35. Rules and Regulations 31
36. Subordination and Attornment 31
37. Surrender 31
38. Waiver and Xxxxxxxxxxxx 00
00. Waiver of Jury Trial and Counterclaims 32
40. [Intentionally Omitted] 32
41. Hazardous Materials 32
42. [Intentionally Omitted] 34
43. Miscellaneous 34
44. Existing Space 35
45. Option to Extend Xxxx 00
00. Option to Expand 36
Exhibits
--------
"A" Project Site Plan and Legal Description
"A-1" Demised Premises (Floor One)
"A-2" Demised Premises (Floor Two)
"B" Work Letter
"C" Budget
"D" Rules and Regulations
"E" Estoppel Certificate
"F" Form of Acknowledgment of Term Commencement Date
"G" Landlord Property List
"H" Area to be Demolished/Removed by Landlord (Suite 280)
"I" Credit Against Sublease Rent
"J" Environmental and Building Reports
2
LEASE
THIS LEASE ("Lease") is made as of the 20 day of November, 1995, by and
between Health Science Properties, Inc., A Maryland corporation (hereinafter
called "Landlord") and Sequana Therapeutics, Inc., a California corporation
(hereinafter called "Tenant"). Landlord and Tenant are sometimes hereinafter
referred to as the Parties.
RECITALS
A. Tenant is the sublessee of approximately 25,063 rentable square
feet comprising a portion of Xxxxx 000 xxx Xxxxx 000X on the first floor of
the building described below ("Sublease Premises") pursuant to that certain
Amended and Restated Sublease Agreement effective as of July 21, 1993 as
amended by that certain First Amendment to Amended and Restated Sublease
Agreement entered into as of January 1, 1994 by and between Tenant and IDEC
Pharmaceuticals, Inc., a California corporation (IDEC), as sublessor,
("Sublease").
B. IDEC is the tenant pursuant to a lease with Landlord dated July 31,
1986 by and between X.X. Xxxxxx Life Insurance Company, a California
corporation, as landlord, (as assumed by Landlord) and Robisol Corporation, a
California corporation dba IDEC Inc., as tenant, (as assumed by IDEC), as
amended by that certain First Amendment to Office Lease dated February 1,
1987, that certain Second Amendment to Lease dated January 27, 1988, that
certain Third Amendment to Lease dated June 6, 1988, and that certain Fourth
Amendment to Lease dated as of February 1, 1992 (collectively, "Master
Lease").
C. Tenant is the tenant of Suite 210 on the second floor of the
building described below ("Suite 210") pursuant to a direct lease with
Landlord dated August 16, 1995 ("Suite 210 Lease").
D. Tenant now desires to expand the Suite 210 and Sublease Premises by
leasing additional premises directly from Landlord as described below. Tenant
also desires to terminate the Suite 210 Lease and apply the terms and
conditions of this Lease to the rental by Tenant of Suite 210. The Parties
further desire to enter into a new lease for the rental of the Sublease
Premises in accordance with the terms and conditions of this Lease.
NOW THEREFORE, on the basis of the foregoing facts and in consideration of
the mutual covenants, representations and provisions contained herein, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. LEASE OF PREMISES
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord commencing on the applicable Term Commencement Dates as hereinafter
provided, those various premises known as Xxxxx 000, Xxxxx 000X, Xxxxx 000
Exp., Xxxxx 000, Xxxxx 000, Xxxxx 000 Exp., Xxxxx 000, Xxxxx 000, Xxxxx 000
and Suite 290 (hereinafter collectively called the "Demised Premises" and
sometimes individually the "Suite" or "Suites") within the building located
at the address set forth in Section 2.1.1 below (hereinafter called the
"Building"). The Demised Premises are crosshatched on the floor plans
attached hereto as Exhibit "A-1" and "A-2", and are situated on the floor(s)
and suite(s) of this Building as set forth in Section 2.1.2. The real
property upon which the Building is located, and all landscaping, parking
facilities, and other improvements and appurtenances related thereto, are
hereinafter collectively referred to as the "Project", the site plan and
legal description for which is attached hereto as Exhibit "A". All portions
of the Project which are for the non-exclusive use of tenants of the
Building, including without limitation driveways, sidewalks, parking areas,
landscaped areas, service corridors, stairways, elevators, public restrooms
and Building lobbies, are hereinafter referred to as "Common Area".
1.2 This Lease supersedes and replaces the terms and conditions of
the Suite 210 Lease.
2. BASIC LEASE PROVISIONS
2.1 For convenience of the parties, certain basic provisions of
this Lease are set forth herein. The provisions set forth herein are subject
to the remaining terms and conditions of this Lease and are to be interpreted
in light of such remaining terms and conditions.
3
2.1.1 Address of the Building:
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, Xxxxxxxxxx 00000
2.1.2 Designation of Demised Premises
Suite Floor
----- -----
1. 160 First
2. 160 A First
3. 160 Exp. First
4. 200 Second
5. 210 Second
6. 210 Exp. Second
7. 220 Second
8. 250 Second
9. 280 Second
10. 290 Second
2.1.3 (a) Rentable Area of Demised Premises:
57,989 total sq. ft. as follows:
Rentable
Area Suite
--------- -----
1. 25,063 sq. ft. 160 & 160A
2. 1,105 sq. ft. 160 Exp.
3. 5,821 sq. ft. 200
4. 2,558 sq. ft. 210
5. 632 sq. ft. 210 Exp.
6. 4,403 sq. ft. 220
8. 5,422 sq. ft. 250
9. 5,546 sq. ft. 280
10. 7,439 sq. ft. 290
(b) Rentable Area of Building:
85,225 sq. ft. (subject to adjustment as provided in
Secton 8.6 below)
(c) Usable Area of Demised Premises:
50,884 sq. ft. as follows:
Usable
Area Suite
------ -----
1. 22,339 sq. ft. 160 & 160A
2. 962 sq. ft. 160 Exp.
3. 4,992 sq. ft. 200
4. 2,194 sq. ft. 210
5. 541 sq. ft. 210 Exp.
6. 3,780 sq. ft. 220
7. 4,683 sq. ft. 250
8. 4,866 sq. ft. 280
9. 6,527 sq. ft. 290
2.1.4 Initial Basic Annual Rent:
$21.00 per square foot of Rentable Area (subject to
adjustment in accordance with Section 6 hereof) as follows:
Initial Base
Rent/Year Suite
------------ -----
1. $526,323.00 160 & 160A
2. 23,205.00 160 Exp.
3. 122,241.00 200
4. 53,718.00 210
5. 13,272.00 210 Exp.
6. 92,463.00 220
7. 113,862.00 250
8. 116,466.00 280
9. 156,219.00 290
4
2.1.5 Initial Monthly Rental Installments of Basic Annual Rent:
$1.75 per square foot of Rentable Area (subject to adjustment
in accordance with Section 6 hereof) as follows:
Initial Base
Rent/Month Suite
------------- -----
1. $43,860.25 160 & 160A
2. 1,933.75 160 Exp.
3. 10,186.75 200
4. 4,476.50 210
5. 1,106.00 210 Exp.
6. 7,705.25 220
7. 9,488.50 250
8. 9,705.50 280
9. 13,018.25 290
2.1.6 Tenant's Pro Rata Share of the Building as follows:
At Execution At Completion
of Lease of Suite 160 Exp.
% Total and 210 Exp.
RSF % Total RSF Suite
------------ ----------------- -----
29.41% 28.82% 160 & 160A
n/a 1.27% 160 Exp.
6.83% 6.69% 200
3.00% 2.94% 210
n/a 0.73% 210 Exp.
5.17% 5.06% 220
6.36% 6.23% 250
6.51% 6.38% 280
8.73% 8.55% 290
-------- -------
TOTAL 66.01% 66.67%
2.1.7 (a) Estimated Term Commencement Date:
Suite 280 November 17, 1995
Suite 160 & 160A January 1, 1996
Suite 160 Exp. March 29, 1996
Suite 200 January 1, 1996
Suite 210 The date this Lease is executed
by the Parties
Xxxxx 000 Exp. April 15, 1996
Suite 290 April 1, 1996
Suite 220 September 1, 1996
Suite 250 September 1, 1996
(b) Term Expiration Date:
December 31, 2001
2.1.8 Security Deposit: $108,000.00
2.1.9 Permitted Use:
Office use, research and development and related, legal uses,
as consistent with the City of San Diego SR zoning
ordinance
2.1.10 Address for Rent Payment:
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Address for Notices to Landlord:
0000 Xxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Address for Notices to Tenant:
00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
2.1.11 Guarantor of Lease: None
5
2.1.12 The following Exhibits are attached hereto and incorporated
herein: A, X-0, X-0, X, X, X, X, X, X, X, X, X
2.1.13 Tenant Improvement Allowance: $470,300.00
2.1.14 Space Plan Submittal Date: Xxxxx 000 Exp., November 24, 1995;
Xxxxx 000 Exp., December 1, 1995
3. TERM
3.1 This Lease shall take effect upon the date of execution and
delivery hereof by the Parties and, except as specifically otherwise
provided within this Lease, each of the provisions hereof shall be binding
upon and inure to the benefit of Landlord and Tenant from the date of
execution and delivery hereof by the Parties.
3.2 The approximate term of this Lease is as set forth in Section
2.1.7. The actual term of this Lease with respect to each Suite will be that
period from the actual Term Commencement Date as defined in Section 4.2 below
with respect to each Suite through the Term Expiration Date, subject to
earlier termination of this Lease as provided herein.
4. POSSESSION AND COMMENCEMENT DATE
4.1 Landlord shall use its reasonable efforts to deliver
possession of the Suites to Tenant in phases on the approximate dates set
forth in Section 2.1.7 (a). Upon the delivery of a Suite to Tenant as
provided herein, the Suite shall become and constitute a portion of the
Demised Premises subject to all of the terms and conditions of this Lease and
Landlord and Tenant shall execute and deliver a supplement to this Lease
confirming: (a) the delivery and commencement date with respect to said
Suite; (b) the new Basic Annual Rent, the Suite increasing the Basic Annual
Rent at the square foot rental rate then applicable under the Lease; (c)
Tenant's new Pro Rata Share of Operating Expenses based upon the addition of
the Suite to the Demised Premises; and (d) the increase in the Rentable Area
of the Demised Premises based upon the addition of the Suite's Rentable Area
as set forth in Section 2.1.3 (a) above. However, failure to execute and
deliver such supplement shall not affect Landlord or Tenant's liability
hereunder. Excepting Suite 160 Exp. and 210 Exp., the Demised Premises shall
be delivered to Tenant as provided herein in their then "as is" condition.
Notwithstanding the foregoing, the Suite (s) shall be tendered to Tenant in
good condition and repair. With respect to Suite 160 Exp. and 210 Exp.,
Landlord shall tender possession of the Suites to Tenant with the work
required of Landlord described in the work letter ("Work Letter") attached
hereto as Exhibit "B", substantially completed. Tenant agrees that it shall
submit to Landlord for review and approval Tenant's space plans ("Space
Plans") for Xxxxx 000 Xxx. xxx Xxxxx 000 Exp. not later than the dates set
forth in Section 2.1.14 above. If Landlord fails to tender possession of any
of the Suites to Tenant on their respective Estimated Term Commencement Dates
for any reason whatsoever, Landlord shall have no liability to Tenant for
such failure but Tenant shall not be responsible for the payment of any Rent
(as defined below) applicable to the Suite to be delivered until the actual
Term Commencement Date set forth in Section 4.2 below occurs with respect to
such Suite. The work required of Landlord described in the Work Letter shall
be deemed substantially completed, as that term is used in this Article 4 and
elsewhere in this Lease, if Landlord has substantially completed all of
Landlord's work identified on Tenant's plans and specifications (subject only
to a punch list of items that do not materially interfere with Tenant's use
of Suite 160 Exp. and Suite 210 Exp.), and has received the temporary
occupancy certificate from the City of San Diego, if required, and a
substantial completion certificate from the architect for the occupancy of
the Suite 160 Exp. and Suite 210 Exp. Notwithstanding the foregoing, if the
date of actual Term Commencement Date for Suites 160 Exp. and Suite 210 Exp.,
is delayed beyond the Estimated Term Commencement Date due solely to the
failure of Tenant or Tenant's architect to timely review and approve the
Construction Drawings (as defined in the Work Letter) and/or review,
approve and/or deliver any item in the Work Letter including, but not limited
to, Tenant's submittal to Landlord of the Space Plan by the dates provided
in Section 2.1.14 above, then the actual Term Commencement Date for Suites
160 Exp. and Suite 210 Exp., will remain as set forth in Section 2.1.7 (a).
6
4.2 Except as otherwise expressly provided herein, the actual Term
Commencement Date with respect to each Suite shall be the later of the
Estimated Term Commencement Date as set forth in Section 2.1.7 (a) with
respect to such Suite and the day Landlord tenders possession of said Suite
to Tenant substantially in the condition required above and has received a
temporary certificate of occupancy from the appropriate governmental
authorities, if required, for the legal occupancy of such Suite. Landlord and
Tenant shall each execute and deliver to the other written acknowledgment of
the actual Term Commencement Date for each Suite when such is established,
and shall attach it to this Lease as Exhibit "F". However, failure to execute
and deliver such acknowledgment shall not affect Landlord or Tenant's
liability hereunder. The Term Expiration Date shall remain as set forth in
Section 2.1.7 (b) regardless of the actual Term Commencement Date.
4.3 In the event that Landlord allows Tenant to enter upon the
Demised Premises prior to the Term Commencement Date for the purpose of
installing improvements or the placement of personal property, Tenant shall
furnish to Landlord evidence satisfactory to Landlord that insurance
coverages required of Tenant under the provisions of Article 21 are in
effect, and such entry shall be subject to all the terms and conditions of
this Lease other than the payment of Basic Annual Rent or Additional Rent (as
defined below).
4.4 The Parties hereby acknowledge that as of the date of this
Lease, Xxxxx 000 xxx Xxxxx 000 are leased by Landlord to third parties and
that the term of said leases do not expire until December 18, 1997. Following
the date hereof until December 31, 1996, Landlord shall use its best efforts
to cause said third party tenants to terminate their respective leases with
Landlord and vacate such portions of the Building prior to the current
expiration dates thereof so as to allow Landlord to tender possession of said
premises to Tenant, provided, however, Landlord shall not be required to
expend any sums, engage in any litigation or incur any liabilities in
connection with such efforts. After Landlord having given Tenant ten (10)
days prior written notice that all of the following have occurred: the
expiration or sooner termination of said leases and the tender of possession
of each such Suite to Tenant in substantially the condition set forth in
Section 4.1 above, and Landlord's receipt of a temporary certificate of
occupancy, if required, from the appropriate governmental authorities for the
legal occupancy of the Suite, such Suite shall be included in and become a
part of the Demised Premises on all of the terms and conditions of this Lease.
4.5 Tenant acknowledges that Landlord shall be performing remodeling
work in the Building (including portions thereof which are or may become part
of the Demised Premises) during the term of the Lease in connection with the
tenant improvements to be constructed in Suite 160 Exp. and Suite 210 Exp.
Tenant hereby agrees to allow Landlord to enter onto Xxxxx 000, Xxxxx 000,
Xxxxx 000X and other areas of the Demised Premises on reasonable notice to
Tenant to perform such work. Tenant also agrees to allow Landlord to place
plywood or attach other demising or protective structures to the glass wall
frame of Suite 210 during the remodeling of Suite 160 Exp. and Suite 210 Exp.
to isolate Tenant from such remodel work. In the event Landlord requires a
portion of the Demised Premises for a temporary staging area to construct the
Building and tenant improvements at Suite 160 Exp. and/or Suite 210 Exp.,
Tenant agrees to surrender to Landlord such premises until such staging area is
no longer required by Landlord and the Rent for such area shall be abated during
the period of time Landlord occupies such premises. Except as expressly
permitted herein, Tenant shall not be entitled to any abatement of Rent by
reason of Landlord's remodeling or other construction activities at the
Building. Notwithstanding the foregoing, any such entry into the Demised
Premises by Landlord and Landlord's agents shall comply with all reasonable
security measures of Tenant and shall not impair Tenant's operations more
than reasonably necessary.
4.6 Landlord shall cause to be constructed the initial tenant
improvements in Suite 160 Exp. and Suite 210 Exp., ("Tenant Improvements")
pursuant to the Work Letter attached hereto as Exhibit "B" at a cost to
Landlord not to exceed Four Hundred Seventy Thousand Three Hundred Dollars
($470,300.00) ("Tenant Improvement Allowance") which shall include the cost
of demolition, construction, project management by Landlord (which fee shall
not exceed Three percent (3%) of the total cost of the Tenant Improvements),
cost of space planning, architect, engineering and other related services,
building permits and other planning and inspection fees. Tenant hereby
acknowledges that Landlord, at its expense, has retrofitted to Tenant's
satisfaction, the existing heating, ventilation and air conditioning system
at Suite 290 such that the laboratory portions of Suite 290 are serviced by a
ducted exhaust system. ("HVAC Ducting"). Tenant further acknowledges that
Landlord, at its expense, has demolished to Tenant's satisfaction, certain
interior walls and partitions in Suite 280 identified on Exhibit "H" attached
hereto ("Demolition Work"). The cost of the HVAC Ducting and Demolition Work
shall not be chargeable against the Tenant Improvement Allowance. Any costs
incurred in performing the work described in the Work Letter in excess of the
Tenant Improvement Allowance shall be borne solely by Tenant. If the total
budgeted cost of the Tenant Improvements (as
7
described in Exhibit "C" attached hereto) exceed Four Hundred Seventy
Thousand Three Hundred Dollars ($470,300.00), then the overage shall be paid
by Tenant to Landlord prior to the commencement of the construction of the
Tenant Improvements. Any portion of Tenant Improvement Allowance not expended
on the Demised Premises may be utilized by Tenant to improve Tenant's
Sublease Space or other Suites, subject to Landlord's review and approval of
the character, quality and cost of the proposed improvements and compliance
with all legal requirements. Tenant shall not be entitled to use any portion
of the Tenant Improvement Allowance on personal property improvements, trade
fixtures or other equipment without the prior express written approval of
Landlord which it may withheld in its sole discretion. Tenant shall have
until June 30, 1998 to expend the unused portion of the Tenant Improvement
Allowance, after which date Landlord's obligation to fund such costs shall
expire.
4.7 Landlord shall provide Tenant with a signage allowance ("Signage
Allowance") of $10,000.00 to be used solely for designing and constructing a
monument sign to be placed on North Xxxxxx Xxxxx Road. The signage shall be
subject to Landlords review and approval as to location, design, size and
construction material and may include, at Landlord's option, the names of
other tenants at the Building. The signage shall be subject to the ordinances
and permitting requirements of the City of San Diego and the rules and
regulations of the association within which the Building is located. Any
portion of the Signage Allowance not expended shall remain Landlord's funds.
4.8 Landlord shall elect the architect, engineer, general contractor
and major subcontractors who will be engaged in connection with the
construction of the Tenant Improvements subject to Tenant's approval which
shall not be unreasonably withheld or delayed. Landlord shall provide Tenant
with copies of the draw requests from the construction loan or such other
documentation reasonably required by Tenant to monitor expenditure of the
Tenant Improvement Allowance. A detailed budget for the construction of the
Tenant Improvements, prepared by Landlord and approved by Tenant, is to be
attached hereto as Exhibit C (the "Budget"). Landlord shall not, without
Tenant's prior written consent, incur any costs in connection with the
construction of the Tenant Improvements that (i) would cause any line item in
the Budget to exceed by more than ten percent (10%) or (ii) would cause the
total cost of the Tenant Improvements to exceed the total cost set forth in
the Budget by more than ten percent (10%). The Tenant Improvements, HVAC
Ducting Work and Demolition Work shall be constructed in accordance with all
applicable laws, in a good and workmanlike manner, free of defects and using
new materials and equipment of good quality. Within thirty (30) days of the
issuance of the final certificate of occupancy, Tenant shall have the right
to submit a written "punch list" to Landlord, setting forth any defective
item of construction, and Landlord shall promptly cause such items to be
corrected. Landlord also hereby assigns to Tenant, to the extent assignable
and on a non-exclusive basis, all warranties with respect to the Demised
Premises, including warranties which would reduce Tenant's maintenance
obligations under this Lease, and shall cooperate with Tenant to enforce all
such warranties.
4.9 Any unresolved dispute concerning the Tenant Improvements shall
be submitted to binding arbitration under the commercial rules of the
American Arbitration Association in San Diego, California.
5. RENT
5.1 Tenant agrees, commencing on the Term Commencement Date for each
of the Suites, to pay the Basic Annual Rent based upon an initial monthly
rental rate set forth in Section 2.1.5, subject to the rental adjustments
provided in Article 6 hereof. Basic Annual Rent shall be paid in the equal
monthly installments each in advance on the first day of each and every
calendar month during the term of this Lease.
5.2 In addition to Basic Annual Rent, Tenant agrees to pay to
Landlord as additional rent ("Additional Rent") at times hereinafter
specified in this Lease (i) Tenant's pro rata share ("Tenant's Pro Rata
Share"), as set forth in Section 2.1.6 and as may be subsequently amended, of
Operating Expenses as provided in Article 7 and (ii) any other amounts that
Tenant assumes or agrees to pay under the provisions of this Lease that are
owed to Landlord, including without limitation the cost of utilities not paid
by Tenant directly to the supplier and any and all other sums that may become
due by reason of any default of Tenant or failure on Tenant's part to comply
with the agreements, terms, covenants and conditions of this Lease to be
performed by Tenant, after notice and lapse of applicable cure period.
8
5.3 Basic Annual Rent and Additional Rent shall together be
denominated "Rent". Rent shall be paid to Landlord, without abatement,
deduction, or offset, in lawful money of the United States of America, at the
office of Landlord as set forth in Section 2.1.10 or to such other person or
at such other place as Landlord may from time designate in writing. In the
event the term of this Lease commences or ends on a day other than the first
day of a calendar month, then the Rent for such fraction of a month shall be
prorated on a Thirty (30) day basis for such period and shall be paid at the
then current rate for such fractional month.
5.4 In the event the Parties are unable to terminate the Master
Lease as provided in Section 44 below, effective as of January 1, 1996, Landlord
and Tenant agree that so long as the Sublease is in effect, Tenant shall
receive a dollar for dollar credit hereunder for any basic monthly rent paid
under the Sublease in excess of the amount that would have been payable under
this Lease for the Sublease Premises, all as set forth in Exhibit I attached
hereto.
6. RENT ADJUSTMENTS
6.1 The Basic Annual Rent and the monthly rental installments
of Basic Annual Rent, shall be subject to upward adjustment once every year
in proportion to rises in the Consumer Price Index as provided within this
Article 6. The first such adjustment shall become effective commencing with
that monthly rental installment which is due on or after January 1, 1997 and
subsequent adjustments shall become effective on the same day of every
calendar year thereafter for so long as this Lease continues in effect.
6.2 The Basic Annual Rent shall be adjusted upward as follows:
(a) The "Base Month" for purposes of each Rent adjustment
shall be that month which is fifteen (15) months prior to the month in which
the Rent adjustment occurs, and the "Comparison Month" shall be that month
which is three (3) months prior to the month in which the Rent adjustment
occurs.
(b) As used in this subsection, the term "Consumer Price
Index" means the Consumer Price Index (all items) for all wage earners and
clerical workers in the Los Angeles/Anaheim/Riverside xxxxxxxxxxxx xxxx
(0000-00 = 100) as published by the United States Department of Labor, Bureau
of Labor Statistics. If the 1982-84 base of the Consumer Price Index is
hereafter changed, then the new base will be converted to the 1982-84 base
and the base as so converted shall be used. In the event that the Bureau
ceases to publish the Consumer Price Index at lease once every other month,
then the successor or most nearly comparable index thereto selected by
Landlord and approved by Tenant shall be used.
(c) In the event that the Consumer Price Index for the
Comparison Month exceeds the Consumer Price Index for the Base Month, the
Basic Annual Rent then payable (as increased by previous adjustments under
this Section 6) shall be multiplied by a fraction, the numerator of which is
the Consumer Price Index figure for the Comparison Month, and the denominator
of which is the Consumer Price Index figure for the Base Month. Such amount as
calculated shall be the Basic Annual Rent to be paid until the next date for
adjustment hereunder.
(d) Notwithstanding the foregoing, Basic Annual Rent
shall increase on account of any such adjustment a minimum of three percent
(3%) from the prior year's Basic Annual Rent, and shall not increase more
than six percent (6%) from the prior year's Basic Annual Rent.
7. OPERATING EXPENSES
7.1 As used herein, the term "Operating Expenses" shall include:
(a) Government impositions including, without limitation,
property tax costs consisting of real and personal property taxes, levies and
assessments including lighting and landscape maintenance assessments, amounts
due under any improvement bond upon the Building and/or Project including the
parcel or parcels of real property upon which the Building and areas serving
such Building are located or assessments levied in lieu thereof imposed by
any governmental authority or agency, any tax on or measured by gross rentals
received from the rental of space in the Building, or tax based on the square
footage of the Demised Premises or Buildings as well as any parking charges,
utilities surcharges, or any other costs levied, assessed or imposed by, or
at the direction of, or resulting from statutes or regulations, or
interpretations thereof, promulgated by any federal, state, regional,
municipal or local government authority in connection with the use or
occupancy of the Building or the
9
parking facilities serving the Building, any tax on this transaction or any
document to which Tenant is a party creating or transferring an interest in
the Demised Premises, any fee for a business license to operate an office
building, and any expenses, including the reasonable cost of attorneys or
experts, reasonably incurred by Landlord in seeking reduction by the taxing
authority of the applicable taxes, less tax refunds obtained as a result of
an application for review thereof. Operating Expenses shall not include any
net income, franchise, capital stock, estate or inheritance or gift taxes or
taxes which are the personal obligation of Tenant or of another tenant of the
Project. In addition, and notwithstanding anything to the contrary in this
Lease, Tenant shall not be required to pay any portion of any tax or
assessment expense (i) levied on Landlord's business income, unless such tax
or assessment is imposed in lieu of real property taxes; (ii) in excess of
the amount which would be payable if such tax or assessment expense
(including carrying costs) were paid in installments over the longest
permitted term without becoming delinquent; (iii) imposed on land and
improvements other than the Project; (iv) occasioned by Landlord's failure to
pay timely or perform any obligation of Landlord except to the extent such
delay is attributable to Tenant; (v) consisting of a tax or assessment for
the investigation, remediation or removal of any Hazardous Material
attributable to another tenant of the Building and/or existing prior to
Tenant taking possession of the Demised Premises; or (vi) attributable to
Landlord's net gift or transfer taxes except to the extent such tax pertains
to this Lease transaction.
(b) All other costs of any kind paid or incurred by
Landlord in connection with the use, operation, maintenance, repair and
replacement of the Building and the Project including, by way of examples and
not as a limitation upon the generality of the foregoing, costs of repairs
and replacements to improvements within the Project as appropriate to
maintain the Project as required hereunder, including cost of funding such
reasonable reserves as Landlord, consistent with good business practice, may
establish to provide for future repairs and replacements (but not to exceed
Twenty Five Thousand Dollars ($25,000) per annum for Tenant's portion of said
reserves), costs of utilities furnished to the Common Areas, sewer fees,
cable T.V., when applicable, trash collection, cleaning, including windows,
heating, ventilation, air-conditioning, maintenance of landscape and grounds,
maintenance of drives and parking areas, security services and devices,
building supplies, maintenance and replacement to equipment utilized for
operation and maintenance of the Project, capital expenditures (to the extent
such expenditures exceed the previously unapplied portion of Tenant's reserve
payments, such excess shall be amortized over the useful life of the
improvement as determined under GAAP standards, but in no event to exceed
seven (7) years), costs of complying with any applicable laws (to the extent
not attributable to the acts or omissions of other tenants), hazardous waste
remediation (to the extent attributable to the acts or omissions of Tenant or
its agents, employees, contractors or invitees, or incurred by Landlord as a
recurring expense in the ordinary course of maintenance of the Project),
rules or regulations, insurance premiums including premiums for public
liability, property casualty, earthquake (to the extent commercially
reasonable) and environmental coverages, portions of insured losses paid by
Landlord as part of deductible portion of loss by reason of insurance policy
terms (provided however, with respect to deductibles paid under earthquake
coverages, Tenant shall not be responsible for its Pro Rata Share of any
deductible paid in excess of 10% of the loss and that Tenant shall pay no
more than one hundred thousand dollars ($100,000) in insurance coverage
deductibles per occurrence per annum with the balance of Tenant's Pro Rata
Share of the insurance deductibles to be paid by Tenant over the useful life
of the replaced improvement as determined under GAAP standards, but in no
event to exceed seven (7) years, service contracts, costs of services of
independent contractors retained to do work of nature before referenced, and
costs of compensation (including employment taxes and health and insurance
benefits) of all persons who perform regular and recurring duties connected
with the day-to-day operation and maintenance of the Project (including the
pro rata cost of Landlord's property manager and his/her office expenses),
its equipment, the adjacent walks, landscaped areas, drives, and parking
areas, including without limitation, janitors, floor waxers, window-washers,
watchmen, gardeners, sweepers, and handymen and costs of management services,
which costs of management services shall not exceed five percent (5%) of the
Basic Annual Rent due from Tenant.
(c) Notwithstanding the foregoing, Operating Expenses
shall not include any leasing commissions, legal expenses relating to other
tenants, costs of repair to the extent actually reimbursed by payment
received by Landlord of insurance proceeds, interest upon loans to Landlord
or secured by mortgage or deed of trust covering the Project or a portion
thereof (provided interest upon a government assessment or improvement bond
payable in installments is an Operating Expense under subparagraph (a)
above), salaries of executive officers of Landlord, depreciation claimed by
Landlord for tax purposes (provided this exclusion of "depreciation" is not
intended to delete from Operating Expenses actual costs of repairs and
replacements and reasonable reserves in regard thereto which are provided for
in subparagraph (b) above) and taxes of the types set forth within the last
sentence of subparagraph (a) above. In addition, and notwithstanding anything
to the contrary in this Lease, Operating Expenses shall not include any
portion of the following
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repairs, maintenance, improvements, replacements, premiums, claims losses,
fees, commissions, charges, disbursements attorneys' fees, experts' fees,
costs and expenses (collectively, "Costs"): (i) Costs occasioned solely by
Landlord's gross negligence, willful misconduct or intentional violation of
law, or Costs arising solely and directly out of the failure of Landlord to
construct the Tenant Improvements in a good and workmanlike manner; (ii)
Costs solely and directly occasioned by fire or other casualty, or by the
exercise of the power of eminent domain, but only to the extent covered and
paid for by insurance; (iii) Costs for which Landlord has a contractual right
of reimbursement from other tenants of the Project, or Costs which Tenant pays
directly to a third person; (iv) Costs incurred in connection with any tenant
improvement, alteration or redecorating of any portion of any premises leased
to and for the exclusive use of other tenants of the Building (but excluding
improvements, alterations or redecorating of any Common Area); (v) Costs
arising from the disproportionate use of any utility or service supplied by
Landlord to any other occupant of the Project or associated with separately
metered utilities or with utilities and services of a type not provided to
Tenant; and (iv) interest, charges and fees incurred on debt, payments on
mortgages and rent under ground leases.
7.2 Tenant shall pay to Landlord on the first day of each calendar
month of the term of this Lease, as Additional Rent, Landlord's estimate (as
determined in Landlord's sole discretion) of Tenant's Pro Rata share (as set
forth in 2.1.6) of Operating Expenses with respect to the Project for such
month.
(a) Within one hundred eighty (180) days after the conclusion
of each calendar year, Landlord shall furnish to Tenant a statement showing
in reasonable detail the Actual Operating Expenses and Tenant's Pro Rata
Share of Operating Expenses for the previous calendar year. Any additional
sum due from Tenant to Landlord shall be due and payable within thirty (30)
days thereafter. If the amounts paid by Tenant pursuant to Section 7.2
exceeds Tenant's Pro Rata Share of Operating Expense for the previous
calendar year, the difference shall be credited by Landlord against the Rent
next due and owing from Tenant; provided that, if the Lease term has expired,
Landlord shall accompany said statement with payment for the amount of such
difference.
(b) Any amount due under Section 7.2 for any period which is
less than a full month shall be prorated (based on a 30-day month) for such
fractional month.
7.3 Tenant shall have the right, at Tenant's expense, upon
reasonable notice during reasonable business hours, to have a Certified
Public Accountant inspect the portion of Landlord's books that are relevant to
preparation of Landlord's actual Operating Expenses for any year end provided
any request for such review shall be furnished within thirty (30) days of
Tenant's receipt of such statement as to the prior year's Operating Expenses
and that Landlord shall receive a copy of the results of such audit. An
annual statement shall be deemed final and binding upon Tenant unless a
request for review is furnished within said thirty day period. As a condition
precedent to Tenant, exercising its right of inspection under this Section
7.3, Tenant shall not be in Default under the Lease in any respect and shall
have paid to Landlord any disputed amounts claimed by Landlord as being owed
by Tenant under this Lease.
7.4 Tenant shall not be responsible for Operating Expenses
attributable to the time period prior to the Term Commencement Date, except
if Landlord shall permit Tenant possession of the Demised Premises prior to
the Term Commencement Date, Tenant shall be responsible for Operating
Expenses from such earlier date of possession. The responsibility of Tenant
for Operating Expenses attributable to the Demised Premises shall continue to
the latest of (i) the date of termination of the Lease, or (ii) the date
Tenant has fully vacated the Demised Premises.
7.5 Operating Expenses for the calendar year in which Tenant's
obligation to share therein commences and in the calendar year in which such
obligation ceases, shall be prorated on a basis reasonably determined by
Landlord. Expenses such as taxes, assessments and insurance premiums which
are incurred for an extended time period shall be prorated based upon time
periods to which applicable so that the amounts attributed to the Demised
Premises relate in a reasonable manner to the time period wherein Tenant has
an obligation to share in Operating Expenses.
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8. RENTABLE AND USABLE AREA
8.1 The term "Usable Area" as set forth in Section 2.1.3(c) and as
may otherwise be referenced within this Lease is generally calculated in
accordance with the 1980 Standard Method for Measuring Floor Area in Office
Buildings as adopted by the Building Owners and Managers Association (BOMA).
The Usable Area refers generally to that approximate area to be occupied by
Tenant, such area having been calculated by measuring to the finished surface
of the office side of corridor and other permanent walls, to the center of
partitions that separate the office space of Tenant from adjoining usable
area of other tenants and to the inside finished surfaces of the dominant
portion of the permanent outer Building walls. No deductions are made with
respect to such calculations for any columns or projections which may be
included within that area necessary to the Building.
8.2 The "Rentable Area" of the Building is generally determined by
making separate calculations of Rentable Area applicable to each floor and/or
suite within the Building and totaling the Rentable Area of all floors
and/or suites within the Building. The Rentable Area of a floor and/or suite is
computed by measuring to the outside finished surface of the permanent outer
Building walls. The full area calculated as before set forth is included as
Rentable Area without deduction for columns and projections or vertical
penetrations which are defined as stairs, elevator shafts, flues, pipe
shafts, vertical ducts, and the like and their enclosing walls.
8.3 The Rentable Area of the Building is the total of Rentable
Area of all suites within the Building.
8.4 The term "Rentable Area" when applied to Tenant is that area
equal to the Usable Area of the Demised Premised plus an equitable allocation
of Rentable Area within the Building which is not then utilized or expected
to be utilized as Usable Area, including but not limited to the portion of
the Building devoted to corridors, equipment rooms, restrooms, elevator lobby
and mailroom.
8.5 Review of allocations of Rentable Areas as between tenants of
the Building and the Project may be made as frequently as in Landlord's
opinion appears appropriate in order to facilitate an equitable apportionment
of Operating Expenses. If such review is by a licensed architect, made in
accordance with BOMA standards, and allocations are certified correct by such
licensed architect, the Tenant shall be bound by such certifications.
8.6 The Parties acknowledge that the total Rentable Area of the
Building as set forth in Section 2.1.3(b) shall be increased upon the
applicable Term Commencement Date with respect to Xxxxx 000 Xxx. xxx Xxxxx
000 Exp. by the Rentable Area of each such Suite, which shall result in
proportional adjustment of Tenant's Pro Rata Share of Operating Expenses.
9. SECURITY DEPOSIT
9.1 Tenant shall deposit with Landlord upon the execution of this
Lease the sum set forth in Section 2.1.8, which sum shall be held by Landlord
as security for the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provision of
this Lease, including but not limited to any provision relating to the
payment of Rent, Landlord may (but shall not be required to) use, apply or
retain all or any part of such security deposit for the payment of any Rent
or any other sum in default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any
portion of said deposit is so used or applied, Tenant shall, within ten (10)
days following demand therefore, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its general
fund. Tenant shall be entitled to interest on such deposit at rates paid from
time to time on money market or passbook accounts as quoted by the Bank of
America or other financial institutions reasonably acceptable to Landlord.
9.2 In the event of bankruptcy or other debtor-creditor
proceedings against Tenant, such security deposit shall be deemed to be
applied first to the payment of Rent and other charges due Landlord for all
periods prior to the filing of such proceedings.
9.3 Landlord may deliver the funds deposited hereunder by Tenant
to any purchaser of Landlord's interest in the Demised Premises and thereupon
Landlord shall be discharged from any further liability with respect to such
deposit. This provision shall also apply to any subsequent transfers.
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9.4 The unapplied security deposit, or any balance thereof,
shall be returned to Tenant (or, at Landlord's option, to the last assignee
of Tenant's interest hereunder) within thirty (30) days after the expiration
or earlier termination of this Lease, except for amounts that Landlord has
deducted therefrom in order to cure defaults of Tenant under this Lease or
compensate Landlord for damages for which Tenant is liable pursuant to this
Lease.
9.5 In lieu of the cash security deposit provided in Section
2.1.8 hereof, Tenant may, prior to the date this Lease is executed by both
Parties, deliver to Landlord and maintain throughout the term hereof an
irrevocable standby letter of credit (the "Letter of Credit") in favor of
Landlord, in form and substance acceptable to Landlord in its sole
discretion, and in the amount of the security deposit, with a term of not
less than the term of this Lease. The Letter of Credit shall be issued by a
bank or other financial institution acceptable to Landlord, in Landlord's sole
discretion, and may be drawn upon by Landlord at any time that Landlord is or
would be entitled to apply or use the security deposit (or any portion)
thereof as provided in Section 9.1 hereof.
10. USE
10.1 Tenant shall use the Demised Premises for the purpose set
forth in Section 2.1.9 and shall not use the Demised Premises, or permit the
Demised Premises to be used, for any other purpose without the prior written
consent of Landlord which may be withheld in Landlord's reasonable discretion
consistent with the then existing use of the Building.
10.2 Tenant shall not use or occupy the Demised Premises in
violation of any federal, state and local laws and regulations, zoning
ordinances, or of the certificate of occupancy issued for the Building, and
shall, upon five (5) days' written notice from Landlord, discontinue any use
of the Demised Premises which is declared or claimed by any governmental
authority having jurisdiction to be a violation of law, regulation or zoning
ordinance or of said certificate of occupancy, Tenant shall comply with any
direction of any governmental authority having jurisdiction which shall, by
reason of the nature of Tenant's particular use or occupancy of the Demised
Premises, impose any duty upon Tenant or Landlord with respect to the Demised
Premises or with respect to the use or occupancy thereof.
10.3 Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, environmental, extended
coverage or any other insurance policy covering the Building and Project
without Landlord's prior written consent, which may be withheld in Landlord's
sole discretion (unless Tenant pays the cost of any such increase), and shall
comply with all rules, orders, regulations, and requirements of the insurers
of the Building and Project and Tenant shall promptly upon demand reimburse
Landlord for any additional premium charged for such policy by reason of
Tenant's failure to comply with the provisions of this Section.
10.4 Tenant shall keep all doors opening onto public corridors
closed, except when in use for ingress and egress.
10.5 No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by Tenant nor shall any changes be made in
existing locks or the mechanism thereof. Tenant must, upon termination of
this Lease return to Landlord all keys to offices and restrooms, either
furnished to, or otherwise procured by Tenant. In the event any key so
furnished is lost, Tenant shall pay to Landlord the cost of replacing the
same or of changing the lock or locks opened by such lost key if Landlord
shall deem it necessary to make such change.
10.6 No awnings or other projection shall be attached to any
outside wall of the building. No curtains, blinds, shades or screens shall be
attached to or hung in, or use in connection with, any window or door of the
Demised Premises other than Landlord's standard window coverings. Neither the
interior nor exterior of any windows shall be coated or otherwise sunscreened
without the express written consent of Landlord, nor shall any bottles,
parcels, or other articles be placed on the windowsills. No equipment,
furniture or other items of personal property shall be placed on any exterior
balcony without the express written consent of Landlord.
10.7 No sign, advertisement, or notice shall be exhibited,
painted or affixed by Tenant on any part of the Building without the prior
written consent of Landlord. Interior signs on doors and the directory tablet
shall be inscribed, painted or affixed for Tenant by Landlord at the expense
of Tenant, and shall be of a size, color and type acceptable to Landlord. The
directory tablet shall be provided exclusively for the display of the name
and
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location of tenants only. Nothing may be placed on the exterior of corridor
walls or corridor doors other than Landlord's standard lettering.
10.8 Tenant shall cause any office equipment or machinery to be
installed in the Demised Premises so as to reasonably prevent sounds or
vibrations therefrom from extending into Common Areas as defined in
Section 1.1, or other offices or premises in the Building. Further, no
equipment weighing five hundred (500) pounds, or greater, shall be placed
upon the Demised Premises without advance notice to and approved by Landlord
and placement, if approved by Landlord, shall be at a location designed to
carry the weight of such equipment.
10.9 Tenant shall not do or permit anything to be done in or
about the Demised Premises which shall in any way obstruct or interfere with
the rights of other tenants or occupants of the Building, or injure or annoy
them, or use or allow the Demised Premises to be used for immoral, unlawful
or objectionable purpose, nor shall Tenant knowingly cause, maintain or
permit any nuisance or waste in, on, or about the Demised Premises, Building
or Project.
11. BROKERS
11.1 Tenant and Landlord each represents and warrants to the
other that it has had no dealings with any real estate broker or agent in
connection with the negotiation of this Lease other than Xxxx Xxxxxxx &
Company, as have been disclosed in writing to Landlord and that it knows of
no other real estate broker or agent who is or might be entitled to a
commission in connection with this Lease.
11.2 Tenant represents and warrants that no broker or agent has
made any representation or warranty relied upon by Tenant in Tenant's
decision to enter into this Lease other than as contained in this Lease.
11.3 Tenant acknowledges and agrees that the employment of
brokers, if any, by Landlord is for the purpose of solicitation of offers of
lease from prospective tenants and no authority is granted to any broker to
furnish any representation (written or oral) or warranty from Landlord unless
expressly contained within this Lease. Landlord in executing this Lease does
so in reliance upon Tenant's representations and warranties contained within
Sections 11.1 and 11.2 herein.
12. HOLDING OVER
12.1 If, with Landlord's express written consent, Tenant holds
possession of all or any part of the Demised Premises after the term of this
Lease, Tenant shall become a tenant from month-to-month upon the date of such
expiration or earlier termination, and in such case Tenant shall continue to
pay in accordance with Article 5 the Basic Annual Rent as adjusted from the
Term Commencement Date in accordance with Article 6, and Tenant's Pro Rata
Share of Operating Expenses, and such month-to-month tenancy shall be subject
to every other term, covenant and agreement contained herein.
12.2 If Tenant remains in possession of the Demised Premises
after the expiration or earlier termination of the term hereof without the
express written consent of Landlord, Tenant shall become a tenant at
sufferance upon the terms of this Lease except that the monthly rental shall
be equal to one hundred twenty five percent (125%) of the Rent (Basic Annual
Rent and Additional Rent) in effect during the last thirty (30) days of the
Lease term.
12.3 Acceptance by Landlord of Rent after such expiration or
earlier termination shall not result in a renewal or reinstatement of this
Lease.
12.4 The foregoing provisions of this Article 12 are in addition
to and do not affect Landlord's right to re-entry or any other rights of
Landlord hereunder or as otherwise provided by law.
13. TAXES ON TENANT'S PROPERTY
13.1 Tenant shall pay, prior to delinquency, any and all taxes
or assessments levied against any personal property or trade fixtures placed
in or about the Demised Premises.
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13.2 If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or, if the
assessed valuation of the Building is increased by the inclusion therein of a
value attributable to Tenant's personal property or trade fixtures, and if
Landlord pays the taxes based upon such increase in the assessed valued, then
Tenant shall within thirty (30) days after demand repay to Landlord the taxes
so levied against Landlord.
13.3 If any improvements in or alterations to the Demised
Premises, owned by Tenant, are assessed for real property tax purposes at a
valuation higher than the valuation at which improvements conforming to
Landlord's "Building Standard" in other spaces in the Building are assessed,
then the real property taxes and assessments levied against Landlord or the
Building by reason of such excess valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed by the
provisions of Sections 13.2 above. Any such excess assessed valuation due to
improvements in or alterations to space in the Building leased by other
tenants of Landlord shall not be included in the Operating Expenses defined
in Section 7.5, but shall be treated, as to such other tenants, as provided
in this Section 13.3. If the records of the County Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
improvements or alterations are assessed at a higher valuation than
Landlord's "Building Standard", such records shall be binding on both
Landlord and Tenant.
14. CONDITION OF DEMISED PREMISES
14.1 Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the
condition of the Demised Premises or the Building or Project, or with respect
to the suitability for the conduct of Tenant's business except as expressly
set forth in this Lease. The taking of possession of the Demised Premises by
Tenant shall, except as otherwise agreed in writing by Landlord and Tenant
conclusively establish that the Demised Premises and Building were at
such time in good, sanitary and satisfactory condition and repair.
Notwithstanding the foregoing, Landlord shall provide that, on the applicable
Term Commencement Date with respect to each Suite being tendered, (i) the
electrical, plumbing, and mechanical systems servicing such Suite are in
working order and in good condition, (ii) all ceiling area over such Suite is
covered by ceiling tiles that are unbroken, (iii) the roof over such Suite is
in good condition and water tight, (iv) there are no cracks, holes, or other
damage to walls, floors, and doors at such Suite known to Landlord that have
not been repaired, (v) all broken or damaged glass at such Suite has been
replaced with new glass, and (vi) the carpet at such Suite is in good
condition and there are no areas in need of immediate replacement to make
such areas suitable for occupancy. Tenant's acceptance of the Demised
Premises or submission of a "punch list" shall not be deemed a waiver of
Tenant's right to have construction defects in the Tenant Improvements or the
Demised Premises repaired at no cost to Tenant. Tenant shall give notice to
Landlord whenever any such defect becomes reasonably apparent, and Landlord
shall cause such defects to be repaired. Not withstanding the above, Tenant's
right to have Landlord cause such defects to be repaired shall be deemed waived
if written notice is not given to Landlord within thirty (30) days of the the
date Tenant discovers such defect.
15. COMMON AREAS AND PARKING FACILITIES
15.1 Tenant shall have the non-exclusive right, in common with
others, to use the Common Areas, subject to the rules and regulations adopted
by Landlord and attached hereto as Exhibit "D" together with such other
reasonable and non-discriminatory rules and regulations as are hereafter
promulgated by Landlord in its discretion (the "Rules and Regulations").
Notwithstanding the foregoing, Tenant shall not be required to comply with
any new Rules and Regulations unless the same do not unreasonably interfere
with Tenant's use of the Demised Premises or Tenant's parking rights and do
not materially increase the obligations or decrease the rights of Tenant
under this Lease.
15.2 As an appurtenance to the Demised Premises, Tenant shall
have the non-exclusive right to use within the Project up to a maximum of
four (4) parking spaces per one thousand (1,000) square feet of Usable Area
leased by Tenant on a first-come, first-served non-assigned basis, for
Tenant's employees, guest and invitees. Landlord shall not assign more
parking rights to tenants in the Project than spaces that actually exist.
15
15.3 Landlord reserves the right to modify Common Areas
including the right to add or remove exterior and interior landscaping and to
subdivide real property. It is recognized that Landlord specifically reserves
the right as to a portion of the Building to allow exclusive use of corridors
and restroom facilities located on specific floors to one or more tenants
occupying such floors, provided Tenant herein shall not be deprived of the
use of the corridors reasonably required to serve the Demised Premises or of
restroom facilities serving the floor upon which the Demised Premise are
located, and no such modification of the Common Areas shall unreasonably
interfere with or diminish Tenant's use of the Demised Premises or materially
increase the obligations or decrease the rights of Tenant under this Lease.
Landlord shall at all times use its reasonable efforts to minimize any
disruption to Tenant due to such modifications.
16. UTILITIES AND SERVICES
16.1 To the extent such items are not included in Operating
Expenses, Tenant shall pay for all water, (including the cost to service,
repair, replace and operate any reverse osmosis and/or deionized water
systems and other treated water) gas, heat, light, power, telephone,
janitorial service, refuse collection, hazardous material collection and
other utilities and services supplied to the Demised Premises, together with
any taxes thereon. Tenant shall also pay for the cost to service, repair,
relocate, replumb, replace and operate any gas or liquid distribution systems
servicing the Demised Premises including any located in the Building but
outside the Demised Premises. If any such utility is not separately metered
to Tenant, Tenant shall pay a reasonable proportion based upon its use of
such utility to be determined by Landlord of all charges jointly metered with
other premises or, in the alternative, Landlord may, at its option, monitor
the usage of such utilities by Tenant and charge Tenant with the cost of
purchasing, installing and monitoring such metering equipment, which shall be
paid by Tenant as Additional Rent.
16.2 Landlord shall not be liable for nor shall any eviction of
Tenant result from the failure to furnish any such utility or service whether
or not such failure is caused by accident, breakage, repairs, strikes,
lockouts or other labor disturbances or labor disputes of any character,
governmental regulation, moratorium or other governmental action, inability
despite the exercise of reasonable diligence or by any other cause, including
the gross negligence of Landlord. In the event of such failure, Tenant shall
not be entitled to any abatement or reduction of Rent, nor be relieved from
the operation of any covenant or agreement of this Lease.
16.3 Tenant shall pay for, prior to delinquency, any utilities
which may be furnished and billed to the Demised Premises during the term of
this Lease.
16.4 Tenant shall not, without the prior written consent of
Landlord, use any device in the Demised Premises, including, but without
limitation, data processing machines (excluding personal computers) and non
standard laboratory equipment, which will in any way increase the amount of
ventilation, air exchange, gas, electricity or water beyond the existing
capacity of the Building as proportionately allocated to the Demised Premises
based upon Tenant's Pro Rata Share as set forth in Section 1.2.6 above.
16.5 If Tenant shall require services in excess of that usually
furnished or supplied for similar space in the Building, by reason of
equipment operated and/or extended hours of business operation, then Tenant
shall first procure the consent of Landlord for the use thereof, which
consent Landlord may condition upon the availability of such excess utilities
or services and Tenant's payment as Additional Rent of an amount equal to the
cost to provide such excess services and utility capacity.
16.6 Utilities and services provided by Landlord and billed to
the Demised Premises shall be paid by Tenant directly to the supplier of such
utility or service.
16.7 Landlord shall provide water in Common Areas for drinking
and lavatory purposes only, but if Tenant requires, uses or consumes water
for any purpose in addition to ordinary drinking and lavatory purposes of
which fact Tenant constitutes Landlord to be the sole judge, Landlord may
install a water meter and thereby measure Tenant's water consumption for all
purposes. Tentant shall pay Landlord for the cost of the meter and the cost of
the installation thereof and throughout the duration of Tenant's occupancy,
Tenant shall keep said meter and installation equipment in good working order
and repair at Tenant's own cost and expense, in default of which Landlord may
cause such meter and equipment to be replaced or repaired and collect the
cost thereof from Tenant. Tenant agrees to pay for water consumed, as shown
on said meter, as and when bills are rendered, and on default in making such
payment. Landlord may pay such charges and collect the same from Tenant. Any
such costs or expenses incurred, or payments made by
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Landlord for any of the reasons or purposes hereinabove stated shall be
deemed to be Additional Rent payment by Tenant and collectible by Landlord as
such.
16.8 Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electric systems, when necessary,
by reason of accident or emergency or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed,
and Landlord shall further have no responsibility or liability for failure to
supply elevator facilities, plumbing, ventilation, air conditioning or
electric service, when prevented from doing so by strike or accident, or by
laws, rules, order, ordinances, directions, regulations or requirements of
any federal, state, country or municipal authority or failure to deliver gas,
oil or other suitable fuel supply or inability by exercise of reasonable
diligence to obtain gas, oil or other suitable fuel. It is expressly
understood and agreed that any covenants on Landlord's part to furnish any
service pursuant to any of the terms, covenants, conditions, provisions or
agreements of this Lease, or to perform any act or thing for the benefit of
Tenant, shall not be deemed breached if Landlord is unable to furnish or
perform the same by virtue of a strike or labor trouble or any other cause
whatsoever. In the event of fire, earthquake, flood, vandalism, war, storm or
similar cause of damage or destruction, this Section shall not apply and the
provisions of Article 22 entitled Damage or Destruction shall apply and
control.
16.9 Notwithstanding anything to the contrary in this Lease, if as a
consequence of (i) a material cessation of utilities required to be provided
to the Demised Premises by Landlord, or (ii) the presence of a significant
amount of Hazardous Materials which does not result from Tenant's release or
emission of such Hazardous Material in or about the Demised Premises in
violation of Hazardous Materials Laws, which renders the Demised Premises
uninhabitable, and in any of the foregoing cases, Tenant is unable to use the
Demised Premises for a continuous and consecutive period of thirty (30) days
following written notice by Tenant to Landlord and Landlord's lenders, and
Landlord fails or refuses to take any action to correct or otherwise remedy
such situation, then Tenant shall be entitled to terminate the Lease upon ten
(10) days written notice to Landlord. If the interference persists for more
than one hundred eighty (180) consecutive calendar days following written
notice to Landlord and Landlord's lender despite Landlord's actions and
efforts to correct or remedy such interference, Tenant shall have the right
to terminate this Lease upon ten (10) days written notice to Landlord.
17. ALTERATIONS
17.1 Tenant shall make no alterations, additions or improvements in
or to the Demised Premises without Landlord's prior written consent, which
approval shall not be unreasonably withheld and provided that Landlord shall
not be required to incur any costs in connection therewith and then only by
architects, contractors, suppliers or mechanics approved by Landlord in
Landlord's sole discretion. In seeking Landlord's approval, Tenant shall
provide Landlord, at least fourteen (14) days in advance of any proposed
construction, with 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.
17.2 Tenant agrees that there shall be no construction of partitions
or other obstructions which might interfere with free access to mechanical
installation or service facilities of the Building or interfere with the moving
of Landlord's equipment to or from the enclosures containing said installations
or facilities.
17.3 Tenant agrees that any work by Tenant shall be accomplished in
such a manner as to permit any fire sprinkler system and fire water supply
lines to remain fully operable at all times.
17.4 All such work shall be done at such times and in such manner as
Landlord may from time to time designate. Tenant covenants and agrees that
all work done by Tenant shall be performed in full compliance with all laws,
rules, orders, ordinances, directions, regulations, and requirements of all
governmental agencies, offices, departments, bureaus and boards having
jurisdiction, and in full compliance with the rules, orders, directions,
regulations, and requirements of any applicable fire rating bureau. Tenant
shall obtain all applicable building permits and occupancy certificate. Tenant
shall provide Landlord with "as-built" plans showing any change in the
Demised Premises.
17.5 Before commencing any work, Tenant shall give Landlord at least
fourteen (14) days' prior written notice of the proposed commencement of such
work and shall, if required by Landlord, secure at Tenant's own cost and
expenses a completion and lien indemnity bond satisfactory to Landlord for
said work.
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17.6 All alterations, attached equipment, decorations, fixtures,
trade fixtures, additions and improvements, subject to Section 17.8, attached
to or built into the Demised Premises, made by either party, including
(without limiting the generality of the foregoing) all wallcovering, built-in
cabinet work and paneling, exterior venting fume hoods and walk in freezers
and refrigerators, shall, unless prior to such construction or installation,
Landlord elects otherwise, become the property of Landlord upon the
expiration or earlier termination of the term of this Lease, and shall
remain upon and be surrendered with the Demised Premises as a part thereof.
17.7 Tenant shall repair any damage to the Demised Premises caused by
Tenant's removal of any property from the Demised Premises. During any such
restoration period, Tenant shall pay Rent to Landlord as provided herein as if
said space were otherwise occupied by Tenant.
17.8 All business and trade fixtures, machinery and equipment,
built-in furniture and cabinets, including but not limited to, those items
listed on Exhibit "G" attached hereto, together with all additions and
accessories thereto, installed in and upon the Demised Premises and paid for
by Landlord shall be and remain the property of Landlord and shall not be
moved by Tenant at any time during the term of this Lease. If Tenant shall
fail to remove all of its effects from the Demised Premises prior to
termination of this Lease, then Landlord may, at its option, remove the same
in accordance with law, and store said effects, and Tenant agrees to pay
Landlord upon demand any expenses incurred for such removal and storage or
Landlord may, at its option, in accordance with law, sell said property or any
of the same, for such price as Landlord may obtain and apply the proceeds of
such sale against any amounts due under this Lease from Tenant to Landlord and
against any expenses incident to the removal, storage and sale of said personal
property.
17.9 Notwithstanding any other provision of this Article 17 to the
contrary, in no event may Tenant remove any improvement from the Demised
Premises as to which Landlord contributed payment, including, without
limitation, the Tenant Improvements made pursuant to the Work Letter and paid
for by Landlord without Landlord's prior written consent, which may be
withheld in Landlord's sole discretion.
17.10 Tenant shall pay to Landlord an amount equal to five percent
(5%) of the cost to Tenant of all changes installed by Tenant or its
contractors or agents to cover Landlord's overhead and expenses for plan
review, coordination, scheduling and supervision thereof. For purposes of
payment of such sum, Tenant shall submit to Landlord copies of all bills,
invoices, and statements covering the costs of such changes, which will be
accompanied by payment to Landlord of the percentage fee set forth above.
Tenant shall reimburse Landlord for any extra expense incurred by Landlord by
reason of faulty work done by Tenant or its contractors, or by reason of
delays caused by such work, or by reason of inadequate cleanup. Nothing
contained in this provision shall be construed as obligating Tenant to pay
such fee to Landlord with respect to the work to be performed pursuant to the
Work Letter.
17.11 Notwithstanding any of the foregoing, Tenant may construct
non-structural alterations, additions and improvements ("Minor Alterations")
in the Demised Premises with not less than fourteen (14) days prior written
notice to Landlord but without Landlord's prior approval, if i) the cost of
such work (whether conducted in one or a series of jobs) does not exceed
Twenty Five Thousand Dollars ($25,000) ii) the Minor Alterations do not
impact the Building systems such as electrical, heating, air conditioning,
water and plumbing; and iii) are not visible from Common Areas of the
Building. Minor Alterations shall not be subject to Section 17.10 above. Upon
request, Landlord shall advise Tenant in Writing whether it reserves the
right to require Tenant to remove any alterations from the Demised Premises
upon termination of this Lease. Alterations and Tenant's trade fixtures,
furniture, equipment and other personal property placed in the Demised
Premises and paid for by Tenant ("Tenant's Property") shall at all times be
and remain Tenant's property, and Tenant shall be entitled to all
depreciation, amortization and other tax benefits with respect thereto.
Except for alterations which cannot be removed without structural injury to
the Demised Premises, or which have become fixtures of the Building, at any
time, Tenant may remove Tenant's Property from the Demised Premises, provided
that Tenant repairs all damage caused by such Property removal. Landlord
shall have no lien or other interest whatsoever in any item of Tenant's
Property located in the Demised Premises, and shall execute any document
reasonably necessary to waive any lien or interest in Tenant's Property
located in the Demised Premises.
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18. REPAIRS AND MAINTENANCE
18.1 Landlord shall repair and maintain the structural and
exterior portions and Common Areas of the Building and Project, including,
without limitations, roofing and covering materials, foundations, walls, the
plumbing, fire sprinkler system (if any), heating, ventilating, air
conditioning, elevator, and electrical systems installed or furnished by
Landlord (and the full cost thereof shall be included as part of Operating
Expenses to the extent permitted under Section 7 hereof), except to the
extent such maintenance or repairs are required in whole or in part because
of any act, neglect, fault of or omissions of any duty by Tenant, its
agents, servants, employees or invitees, in which case Tenant shall pay to
Landlord the portion of the cost of such maintenance and repairs attributable
to Tenant as set forth above.
18.2 Except for services of Landlord, if any, required by
Section 18.1. Tenant shall at Tenant's sole cost and expense keep the Demised
Premises and every part thereof in good condition and repair, damage thereto
from ordinary wear and tear excepted. Tenant shall, upon the expiration or
sooner termination of the term hereof, surrender the Demised Premises to
Landlord in as good as condition as when received, ordinary wear and tear,
casualties not caused by Tenant (subject to the provisions of Section 22
below), condemnation, Hazardous Materials (other than those released or
emitted by Tenant in or about the Demised Premises) and alterations with
respect to which Landlord has not reserved the right to require removal
excepted. Landlord shall have no obligation to alter, remodel, improve,
repair, decorate or paint the Demised Premises or any part thereof. Tenant
shall be responsible at its sole cost, for its own janitorial services for
the Demised Premises. Notwithstanding anything to the contrary in this Lease.
Tenant shall have no responsibility to perform or construct any repair,
maintenance or improvement (i) necessitated by the acts or omissions of
Landlord or any other occupant of the Project, or their respective agents,
employees or contractors, (ii) occasioned by the exercise of the power of
eminent domain, (iii) required as a consequence of any violation of Law or
construction defect in the Demised Premises or the Project existing prior to
the Term Commencement Date, and (iv) for which Landlord has a right of
reimbursement from others.
18.3 Landlord shall not be liable for any failure to make
any repairs or to perform any maintenance which is an obligation of Landlord
unless such failure shall persist for an unreasonable time (not to exceed
thirty (30) days unless such repair or maintenance work normally takes
longer than thirty (30) days) in which event Landlord shall have a period of
time reasonably required to complete such work after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant. In the
event Landlord fails to make any repairs or perform any maintenance as
provided in this Lease within a reasonable time after receipt written notice
from Tenant, Tenant may make repairs at Tenant's expense and seek
reimbursement from Landlord without any offset or deduction from Rent and
Tenant shall have no other rights with respect to any such failure.
Notwithstanding the above, Tenant shall not be entitled to terminate the
Lease by reason of any failure of Landlord to make repairs or perform any
maintenance within the time periods provided herein.
18.4 Repairs under this Article 18 which are obligations of
Landlord are subject to allocation among Tenant and other tenants as
Operating Expenses, to the extent permitted under Section 7 hereof.
18.5 This Article 18 relates to repairs and maintenance
arising in ordinary course of operation of the Building and any related
facilities. In the event of fire, earthquake, flood, vandalism, war, or
similar cause of damage or destruction, this Article 18 shall not be
applicable and the provisions of Article 22 entitled "Damage or Destruction"
shall apply and control.
19. LIENS
19.1 Subject to the immediately succeeding sentence, Tenant
shall keep the Demised Premises, the Building and the real property upon which
the Building is situated free from any liens arising out of work performed,
materials furnished or obligations incurred by Tenant. Tenant further
covenants and agrees that any mechanic's lien filed against the Demised
Premises or against the Building for work claimed to have been done for, or
materials claimed to have been furnished to Tenant, will be discharged by
Tenant, by bond or otherwise, within ten (10) days after Tenant's receipt of
written notice (whether from Landlord or otherwise) of the filing thereof,
at the sole cost and expense of Tenant.
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19.2 Should Tenant fail to discharge any lien of the nature
described in Section 19.1, Landlord may at Landlord's election pay such claim
or post a bond or otherwise provide security to eliminate the lien as a claim
against title and the cost thereof shall be immediately due from Tenant as
Additional Rent.
19.3 In the event 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 Demised Premise. In no event shall the address of
the Building be furnished on the statement without qualifying language as to
applicability of the lien only to removable personal property, located in an
identified suite held by Tenant. Should any holder of a Financing Statement
executed by Tenant record or place of record a Financing Statement which
appears to constitute a lien against an interest of Landlord or against
equipment which may be located other than within the Demised Premises, Tenant
shall within ten (10) days after filing such Financing Statement cause (i) a
copy of the Security Agreement or other documents to which Financing
Statement pertains to be furnished to Landlord to facilitate Landlords's being
in a position to show such lien is not applicable to Landlord's interest and
(ii) its lender to amend documents of record so as to clarify that such lien
is not applicable to any interest of Landlord in Building or Project.
20. INDEMNIFICATION AND EXCULPATION
20.1 Tenant agrees to indemnify, defend, protect, save and
hold Landlord harmless from and against 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 and
disbursements), for injury to person or to property occurring within or
about the Demised Premises, arising directly or indirectly out of Tenant's,
it's employees, agents or guests use or occupancy of the Demised Premises or
a breach or default by Tenant in the performance of any of its obligations
hereunder. Notwithstanding anything to the contrary in this Lease, Landlord
shall not be released from, and shall indemnify, defend, protect and hold
harmless Tenant from, all damages, liabilities, judgments, actions, claims,
attorneys' fees, consultants' fees, payments, costs and expenses arising from
the gross negligence or willful misconduct of Landlord or its agents or
guests, Landlord's violation of Law with respect to the Building, or a
material breach of Landlord's obligations or representations under this Lease.
20.2 Landlord shall not be liable to Tenant and Tenant
assumes all risk of damage to personal property, including loss of records
kept within the Demised Premises if the cause of such damage is of a nature
which, if Tenant had elected to maintain fire and theft insurance with
extended coverage and business records endorsement available on a commercially
reasonable basis, would be a loss subject to settlement by the insurance
carrier including but not limited to, damage or losses caused by fire,
electrical malfunctions, gas explosion, and water damage of any type
including, but not limited to, broken water lines, malfunction of fire
sprinkler system, roof leakage or stoppages of lines unless and except if
such loss is due to the gross negligence or willful misconduct of Landlord,
its agents or guests, Landlord's violation of Law with respect to the
Building, or a material breach of Landlord's obligations or representations
under this Lease. Tenant further waives any claim for injury to Tenant's
business or loss of income relating to any such damage or destruction of
personal property including any loss of records.
20.3 Landlord shall not be liable for any damages arising
from any act, omission or neglect of any other tenant in the Building or
Project or of any other third party.
20.4 Security devices and services, if any, while intended
to deter crime may not in given instances prevent theft or other criminal acts
and it is agreed that Landlord shall not be liable for injuries or losses
caused by criminal acts of third parties and the risk that any security
device or service may malfunction or otherwise be circumvented by a criminal
is assumed by Tenant. Tenant shall at Tenant's cost obtain insurance coverage
to the extent Tenant desires protection against such criminal acts.
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21. INSURANCE - WAIVER OF SUBROGATION
21.1 Landlord, as part of Operating Expenses shall carry
insurance upon the Building, in an amount equal to full replacement cost
(exclusive of the costs of excavation, foundations, and footings, and without
reference to depreciation taken by Landlord upon its books or tax returns)
providing protection against any peril generally included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage (if applicable), vandalism and malicious mischief. Landlord,
subject to availability and cost thereof and, as part of Operating Expenses
(but not to be deemed as being required of Landlord) shall FURTHER INSURE as
Landlord deems appropriate coverage against flood, environmental hazard and
earthquake, loss or failure of building equipment, rental loss during the
period of repair or rebuild, workmen's compensation insurance and fidelity
bonds for employees employed to perform services. Notwithstanding the
foregoing, Landlord may, but shall not be deemed required to, provide
insurance as to any tenant improvements whether or not 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
Building.
21.2 Landlord, as part of Operating Expenses, shall carry
public liability insurance with single limit of not less than One Million
Dollars ($1,000,000) for death or bodily injury, or property damage with
respect to the Project.
21.3 Tenant at its own cost shall procure and continue in
effect from the Term Commencement Date or the date of occupancy, whichever
first occurs, and continuing throughout the term of this Lease (and occupancy
by Tenant, if any, after termination of this Lease) commercial general
liability insurance with a combined single limit of not less than Two Million
Dollars ($2,000,000.00) per occurrence with respect to the Demised Premises.
21.4 The aforesaid insurance required of Tenant shall name
Landlord, without liability for premiums, as an additional named insured.
Said insurance shall be with companies having a rating of not less than
policyholder rating of A and financial category rating of at least Class XII
in "Best's Insurance Guide." Tenant shall obtain for Landlord from the
insurance companies or cause the insurance companies to furnish certificates
of coverage to Landlord. No such policy shall be cancelable or subject to
reduction of coverage or cancellation except after thirty (30) days' prior
written notice to Landlord from the insurer. All such policies shall be
written as primary policies, not contributing with and not in excess of the
coverage which Landlord may carry. 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
twenty (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.
21.5 Tenant assumes the risk of damage to any fixtures, goods,
inventory, merchandise, equipment, and leasehold improvements, and Landlord
shall not be liable for injury to Tenant's business or any loss of income
therefrom relative to such damage, subject to the other provisions of this
Lease. Tenant at Tenant's cost shall carry such insurance as Tenant desires
for Tenant's protection with respect to personal property of Tenant or
business interruption.
21.6 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
Building or real property upon which the Building is situated, and/or (ii)
the landlord under any lease wherein Landlord is tenant of the real
property whereupon the Building 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
Project.
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21.7 Notwithstanding anything to the contrary in this Lease,
Landlord and Tenant each hereby waive any and all rights of recovery against
the other or against the officers, directors, employees, agents, and
representatives of the other, on account of loss or damage occasioned to such
waiving party or its property or the property of others under its control
that is caused by or results from a risk which is actually or required to
have been insured against under this Lease, without regard to the negligence
or willful misconduct of the entity so released. Such waivers shall continue
as long as their respective insurers so permit. Any termination of such a
waiver shall be by written notice of circumstances as hereinafter set forth.
Landlord and Tenant upon obtaining the policies of insurance required or
permitted under this Lease shall give notice to the insurance carrier or
carriers that the foregoing mutual waiver of subrogation is contained in this
Lease. If such policies shall not be obtainable with such waiver or shall be
so obtainable only at a premium over that chargeable without such waiver, the
party seeking such policy shall notify the other thereof, and the latter
shall have ten (10) days thereafter to either (i) procure such insurance with
companies reasonably satisfactory to the other party or (ii) agree to pay
such additional premium (in the Tenant's case, in the proportion which the
area of the Demised Premises bears to the insured area). If neither (i) nor
(ii) are done, this Section 21.7 shall have no effect during such time as
such policies shall not be obtainable or the party in whose favor a waiver of
subrogation is desired refuses to pay the additional premium. If such
policies shall at any time be unobtainable, but shall be subsequently
obtainable, neither party shall be subsequently liable for a failure to obtain
such insurance until a reasonable time after notification thereof by the other
party. If the release of either Landlord or Tenant, as set forth in the first
sentence of this Section 21.7 shall contravene any law with respect to
exculpatory agreements, the liability of the party in question shall be deemed
not released but shall be secondary to the other's insurer.
21.8 Landlord may require insurance policy limits to be raised
to conform with requirements of Landlord's lender and/or to bring coverage
limits to levels then being required of new tenants within the Project.
22. DAMAGE OR DESTRUCTION
22.1 In the event of a partial or total destruction of the
Building wherein the Demised Premises are located by fire or other perils
covered by extended coverage insurance required to be carried under Section
21 hereof or earthquake insurance actually carried hereunder, and if the
damage thereto is such that, in Landlord's reasonable judgment, the Building
may be repaired, reconstructed or restored within a period of six (6) months
from the date of the happening of such casualty and Landlord will receive
insurance proceeds sufficient to cover the cost of such repairs (except for
any deductible amount provided by Landlord's policy), provided that insurance
proceeds are actually available therefor. Landlord shall commence and proceed
diligently with the work of repair, reconstruction and restoration and this
Lease shall continue in full force and effect. If in Landlord's reasonable
opinion the Building cannot be repaired, reconstructed or restored within a
period of six (6) months from the date of such casualty, Tenant shall have
the right to terminate the Lease as of the date of destruction. Tenant
shall give written notice to Landlord of it's election to either terminate,
or to continue in full force and effect the Lease within fourteen (14) days
of the date of Landlord's notification to Tenant to restore the Building.
22.2 In the event of any damage to or destruction of the
Building wherein the Demised Premises are located, other than as provided in
Section 22.1, Landlord may elect, in its sole discretion, not to repair the
Building in which event this Lease shall terminate as of the date of
destruction. Landlord shall give written notice to Tenant of its election not
to repair, reconstruct or restore the Building or Project within the thirty
(30) day period following the date of damage or destruction. If Landlord
elects to repair, reconstruct and restore the Building, within thirty (30)
days of the date of destruction, Landlord shall provide Tenant in writing
with Landlord's reasonable time estimate for completion of repair and
restoration of the Building. If in Landlord's reasonable opinion the Building
cannot be repaired, reconstructed or restored within a period of six (6)
months from the date of such casualty, Tenant shall have the right to
terminate the Lease as of the date of destruction. Tenant shall give written
notice to Landlord of it's election to either terminate, or to continue in
full force and effect the Lease within fourteen (14) days of the date of
Landlord's notification to Tenant to restore the Building.
22.3 Upon any termination of this Lease under any of the
provisions of this Article, the parties shall be released thereby without
further obligation to the other from the date possession of the Demised
Premises is surrendered to the Landlord except for items which have theretofore
occurred.
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22.4 In the event of repair, reconstruction and restoration
as herein provided, the rental provided to be paid under this Lease shall be
abated proportionately based on the extent to which Tenant's use of the
Demised Premises is impaired during the period of such repair, reconstruction
or restoration, unless Landlord provides Tenant with other space during the
period of repair, which in Tenant's reasonable opinion is suitable for the
temporary conduct of Tenant's business.
22.5 Notwithstanding anything to the contrary contained in
this Article, should Landlord be delayed or prevented from completing the
repair or restoration of the damage to the Demised Premises after the
occurrence of such damage or destruction by reason of acts of God or war,
governmental restrictions, inability to procure the necessary labor or
materials, strikes, or other uses beyond the control of Landlord, the time
for Landlord to commence or complete repairs shall be extended, provided
that, upon the written election of Landlord, Landlord shall be relieved of
its obligation to make such repairs or restoration and Tenant shall be
released from its obligation under this Lease as of the end of eight (8)
months from date of destruction, if repairs required to provide Tenant use of
the Demised Premises are not then substantially complete.
22.6 If Landlord is obligated to or elects to repair or
restore as herein provided, Landlord shall be obligated to restore to a
condition substantially the same or better than which existed prior to the
casualty of the Demised Premises which were originally provided at Landlord's
expense; the repair and restoration of items not provide at Landlord's
expense shall be the obligation of Tenant. In the event Tenant elected to
upgrade certain improvements, at Tenant's sole cost, from the standard
normally provided by Landlord, Landlord shall upon the need for replacement
due to an insured loss, provide only the standard Landlord improvements
unless Tenant shall elect to again upgrade and pay any additional cost of
such upgrades, except to such extent as insurance proceeds which, if
received, the excess proceeds are adequate to provide such upgrades, in
addition to providing for basic reconstruction and standard improvements and
all Tenant Improvements installed by Landlord to the condition in which they
existed immediately prior to the casualty.
22.7 Notwithstanding anything to the contrary contained in
this Article, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Demised Premises to the extent that insurance
proceeds are not actually available therefor or when the damage resulting from
any casualty covered under this Article occurs during the last twelve (12)
months of the term of this Lease or any extension hereof unless Tenant
exercised within thirty (30) days of the damage, its rights to extend the term
of the lease as provided in Section 45 below. Notwithstanding anything to the
contrary in this Lease, in the event of damage to the Demised Premises which is
not fully covered by insurance actually carried, Landlord shall not have the
right to terminate this Lease (i) if the damage is relatively minor (e.g.,
repair or restoration would cost less than five percent (5%) of the
replacement cost of the Building); or (ii) if Landlord determines to
rebuild the Building.
23. EMINENT DOMAIN
23.1 In the event the whole of the Demised Premises, or such
part thereof as shall materially and substantially interfere with the Tenant's
use, occupancy and enjoyment thereof, shall be taken for any public or
quasi-public purpose by any lawful power or authority by exercise of the
right of appropriation, condemnation or eminent domain, or sold to prevent
such taking, Tenant or Landlord may upon at least thirty (30) days prior
written notice to the other party, terminate this Lease effective as of the
date possession is required to be surrendered to said authority.
23.2 In the event of a partial taking of the Building, the
Project or of drives, walkways, and parking areas serving the Building for
any public or quasi-public purpose by any lawful power or authority by
exercise of right of appropriation, condemnation, or eminent domain, or sold
to prevent such taking, then without regard as to whether any portion of the
Demised Premises occupied by Tenant was so taken, Landlord may elect to
terminate this Lease as of such taking if such taking is, in the sole opinion
of Landlord, of a material nature such as to make it uneconomical to continue
use of the unappropriated portion for purposes of office rentals or
laboratory space. Tenant may elect to terminate this Lease provided such
taking materially and substantially diminishes Tenant's use, occupancy and
enjoyment of the Demised Premises. In no event shall this Lease be terminated
when such a partial taking does not have a material adverse effect upon
Landlord or Tenant or both.
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23.3 Tenant shall be entitled to any award which is
specifically awarded as compensation for the taking of Tenant's personal
property, which was installed at Tenant's expense, for costs of Tenant moving
to a new location, the Lease bonus value (the difference between the Rent and
fair market rent, if the Rent is lower than the fair market rent) and
Tenant's trade fixtures. Except as before set forth, any award for such
taking shall belong to Landlord.
23.4 If upon any taking of the nature described in this
Article 23 this Lease continues in effect, the Landlord shall promptly
proceed to restore the Demised Premises, Building, and Project to
substantially their same condition prior to such partial taking. From and
after the date of such taking, the Rent shall be abated proportionately based
upon the extent to which Tenant's use of the Demised Premises has diminished.
24. DEFAULTS AND REMEDIES
24.1 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 by the
terms of any mortgage or trust deed covering the Demised Premises. Therefore,
if any installment of Rent due from Tenant is not received by Landlord within
five (5) days after the date such payment is due, Tenant shall pay to
Landlord an additional sum of five percent (5%) of the overdue rent as a late
charge. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of late
payment by Tenant. In addition to the late charge, Rent not paid when due
shall bear interest from the 5th day after date due until paid at the lesser
of (i) ten percent (10%) per annum or (ii) the maximum rate permitted by law.
Notwithstanding the foregoing but without limitation upon Landlord's ability
to declare Tenant in default for any non-payment or late payment of Rent,
Landlord shall not impose any late charge or interest on account of Tenant's
failure to pay any sum due to Landlord under this Lease, unless Tenant's
failure to pay continues for five (5) days after Tenant's actual receipt of
written notice of delinquency from Landlord.
24.2 No payment by Tenant or receipt by Landlord of a lesser
amount than the rent payment herein stipulated shall be deemed to be other
than on account of the rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy provided. If at any time a dispute shall arise as to
any amount or sum of money to be paid by Tenant to Landlord, Tenant shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the
part of Tenant to institute suit for recovery of the payment paid under
protest.
24.3 If Tenant fails to pay any sum of money (other than
Basic Annual Rent or Rental Adjustments) required to be paid by it hereunder,
or shall fail to perform any other act on its part to be performed hereunder,
Landlord may, without waiving or releasing Tenant from any obligations of
Tenant, but shall not be obligated to, make such payment or perform such
act; provided, that such failure by Tenant continues beyond the applicable
cure period set forth below. 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 ten percent (10%) per annum or highest
rate permitted by law, whichever is less, shall be payable to Landlord on
demand as Additional Rent.
24.4 The occurrence of any one or more of the following
events shall constitute a "Default" hereunder by Tenant:
(a) The abandonment of the Demised Premises by Tenant;
(b) The failure by Tenant to make any payment of Rent,
as and when due where such failure shall continue for a period of five (5)
days thereafter;
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(c) The failure by Tenant to observe or perform any
obligation or covenant contained herein (other than described in Section
24.4(a) and 24.4(b)) to be performed by Tenant, where such failure shall
continue for a period of fifteen (15) days after written notice thereof from
Landlord to Tenant. Such notice shall be in lieu of, and not in addition to,
any notice required under California Code or Civil Procedure Section 1161;
provided that if the nature of Tenant's default is such that it reasonably
requires more than fifteen (15) days to cure, then Tenant shall not be deemed
to be in default if Tenant shall commence such cure within said fifteen (15)
day period and thereafter diligently prosecute the same to completion
provided, however, that such cure is completed no later than ninety (90) days
from the date of written notice;
(d) Tenant makes an assignment for the benefit of
creditors;
(e) A receiver, trustee or custodian is appointed to,
or does, take title, possession or control of all, or substantially all, of
Tenant's assets;
(f) Tenant files a voluntary petition under the
Bankruptcy Code (or any similar law) or an order for relief is entered
against Tenant pursuant to a voluntary or involuntary proceeding commenced
under any chapter of the Bankruptcy Code;
(g) Any involuntary petition is filed against the
Tenant under any chapter of the Bankruptcy Code and is not dismissed within
one hundred twenty (120) days; or
(h) Tenant's interest in this Lease is attached,
executed upon, or otherwise judicially seized and such action is not released
within one hundred twenty (120) days of the action.
Notices required to be given under this Section shall
specify the alleged default and shall demand that Tenant perform the
provisions of this Lease or pay the Rent that is in arrears, as the case may
be, within the applicable period of time, or quit the Demised Premises. No
such notice shall be deemed a forfeiture or a termination of this Lease unless
Landlord elects otherwise in such notice. Tenant shall not be in default of
this Lease solely because (a) it vacates the Demised Premises (provided
Tenant's obligations under the Lease, including the obligation to pay Rent,
are kept current), or (b) as a consequence of the appointment of a receiver
or the exercise by any third party of any other remedy with respect to
Tenant, Tenant's interest in this Lease or Tenant's other assets, unless the
petition, receiver, attachment or other remedy is not discharged within sixty
(60) days.
24.5 In the event of a Default by Tenant, and at any time
thereafter, with or without notice or demand and without limiting Landlord in
the exercise of any right or remedy which Landlord may have, Landlord shall
be entitled to terminate Tenant's right to possession of the Demised Premises
by any lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. In such
event, Landlord shall have the immediate right to re-enter and remove all
persons and property in accordance with applicable law, and such property may
be removed and stored in a public warehouse or elsewhere at the cost of, and
for the account of Tenant, all without being deemed guilty of trespass, or
becoming liable for any loss or damage which may be occasioned thereby. In
the event that Landlord shall elect to so terminate this Lease, then Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord by
reason of Tenant's default, including:
(a) The worth at the time of award of any unpaid Rent
which had been earned at the time of such termination; plus
(b) The worth at the time of award of the amount by
which the unpaid Rent which would have been earned after termination until
the time of award exceeds that portion of such rental loss which 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 which 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
obligation under this Lease or which in the ordinary course of things would
be likely to result therefrom, including, but not limited to, the cost of
restoring the Premises to the condition required under the terms of this
Lease; plus
(e) At the 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.
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As used in Subsections (a) and (b) above, "worth
at the time of award" shall be computed by allowing interest at the rate
specified in Section 24.1. As used in Subsection (c) above, the "worth at the
time of the award" shall be computed by taking the present value of such
amount, by using the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award plus one (1) percentage point.
24.6 If Landlord does not elect to terminate this Lease as
provided in this Section, then Landlord may, from time to time, recover all
Rent as it becomes due under this Lease. At any time thereafter, Landlord may
elect to terminate this Lease and to recover damage to which Landlord is
entitled.
24.7 In the event Landlord elects to terminate this Lease
and relet the Premises, it may execute any new lease in its own name. Tenant
hereunder shall have no right or authority whatsoever to collect any Rent from
such tenant. The proceeds of any such reletting shall be applied as follows:
First, to the payment of any indebtedness other than
Rent due hereunder from Tenant to Landlord, including, but not limited to,
storage charges or brokerage commissions owing from Tenant to Landlord as the
results of such reletting;
Second, to the payment of the costs and expenses of
reletting the Premises, including alterations and repairs which Landlord
deems reasonably necessary and advisable and reasonable attorneys' fees
incurred by Landlord in connection with the retaking of the Premises and such
reletting;
Third, to the payment of rent and other charges due and
unpaid hereunder; and
Fourth, to the payment of future rent and other damages
payable by Tenant under this Lease.
24.8 All rights, options, and remedies of Landlord contained
in this Lease shall be construed and held to be nonexclusive and cumulative.
Landlord shall have the right to pursue any one or all of such remedies or
any other remedy or relief which may be provided by law, whether or not
stated in this Lease. No waiver of any default of Tenant hereunder shall be
implied from any acceptance by Landlord of any Rent or other payments due
hereunder or any omission by Landlord to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect defaults other than as specified in said waiver.
24.9 Termination of this Lease or Tenant's right to
possession by Landlord shall not relieve Tenant from any liability to Landlord
which has theretofore accrued or shall arise based upon events which occurred
prior to the last to occur of (i) the date of Lease termination or (ii) the
date possession of Demised Premises is surrendered.
24.10 Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in
no event shall such failure to continue be for more than thirty (30) days
after written notice by Tenant specifying wherein Landlord has failed to
perform such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion. In the event Landlord fails to perform any
of its obligations under this Lease and (except in case of emergency posing
an immediate threat to persons or property, in which case no prior notice
shall be required) fails to cure such default within the period set forth in
the preceding sentence, then Tenant may, in addition to Tenant's other rights
at law and equity cure any default of Landlord at Landlord's cost and demand
reimbursement by Landlord of the cost of such cure, with interest thereon at
the rate of ten percent (10%) per annum or the highest rate allowed by law,
whichever is less, from the date of the expenditure until repaid.
24.11 In the event of any failure to perform obligations on
the part of Landlord, Tenant will give notice by registered or certified mail
to any beneficiary of a deed of trust or mortgagee or a mortgage covering the
Building and to any landlord of any lease in which building is located whose
address shall have been furnished and shall offer such beneficiary, mortgagee
and/or landlord a reasonable opportunity to cure the default (not to exceed
sixty (60) days), provided the Landlord shall have furnished to Tenant in
writing the names and addresses of all such persons who are to receive
such notices.
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25. ASSIGNMENT OR SUBLETTING
25.1 Except as hereinafter provided, Tenant shall not, either
voluntarily or by operation of law, directly or indirectly, sell, hypothecate,
assign, pledge, encumber or otherwise transfer this Lease, or sublet the
Demised Premises or any part hereof, or permit or suffer the Demises Premises
or any part thereof to be used or occupied as work space, storage space,
mailing privileges, concession or otherwise by anyone other than Tenant or
Tenant's employees, without the prior written consent of Landlord in each
instance, which consent may be withheld in Landlord's reasonable discretion.
25.2 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 twenty-five percent (25%) or more of
the issued and outstanding shares of such corporation are or the voting
control is transferred (but excepting transfers upon deaths of individual
shareholders) 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 Section 25.1 above.
25.3 If Tenant desires to assign this Lease to any entity into
which Tenant is merged, with which Tenant is consolidated, or which acquires
all or substantially all of the assets of Tenant, provided that the assignee
first executes, acknowledge and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this
Lease and that the assignee shall have a net worth (determined in accordance
with generally accepted accounting principles consistently applied)
immediately after such assignment which is at least equal to the net worth
(as so determined by Landlord) of Tenant immediately prior to the assignment
(or as of the date hereof, if greater), then Landlord, upon receipt of proof
of foregoing, will consent to the assignment.
25.4 In the event Tenant desires to assign, sublease, hypothecate
or otherwise transfer this Lease or sublet the Demised Premises, then at
least thirty (30) days, prior to the date when Tenant desires the assignment
or sublease to be effective (the "Assignment Date"), Tenant shall give
Landlord a notice ("the Assignment Notice") containing information (including
references) concerning the character of the proposed assignee or sublessee,
the Assignment Date, any ownership or commercial relationship between Tenant
and the proposed assignee or sublessee, and the consideration and all other
material terms and conditions of the proposed assignment or sublease, all in
such detail as Landlord shall reasonably require. Tenant shall also tender to
Landlord, reasonable attorneys' fees, actually incurred by Landlord, not to
exceed five hundred dollars ($500) in reviewing Tenants request for such
assignment.
25.5 Landlord in making its determination as to whether consent
should be given to a proposed assignment or sublease, may give consideration
to the financial strength of such successor (notwithstanding the assignor
remaining liable for Tenant's performance), any change in use which such
successor proposes to make in use of Demised Premises, and such other factors
as Landlord, in its sole discretion, may consider. In no event shall Landlord
be deemed to be unreasonable for declining to consent to transfer to a
successor of poor reputation, lacking financial qualifications, or seeking
change in use.
25.6 As conditions precedent to Landlord considering a request by
Tenant to Tenant's transfer of rights or sharing of the Premises, Landlord
may require, without limitation, any or all of the following:
(a) Tenant shall remain fully liable under this Lease during the unexpired
term hereof;
(b) Tenant shall provide Landlord with evidence reasonably satisfactory to
Landlord respecting the relevant business experience and financial
responsibility and status of the third party concerned;
(c) Tenant shall reimburse Landlord for Landlord's reasonable attorneys'
fees incurred in connection with the review, processing and documentation
of such request, not to exceed five hundred dollars ($500);
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(d) If Tenant's transfer of rights or sharing of the Premises provides for
the receipt by, on behalf or on account of Tenant of any consideration of
any kind whatsoever (including, but not by way of limitation, a premium
rental for a sublease or lump sum payment for an assignment) in excess of
the rental and other charges due Landlord under this Lease, Tenant shall
pay fifty percent (50%) of any rent paid by the assignee or sublessee in
excess of Rent payable by Tenant under this Lease, after deducting
therefrom the actual out of pocket costs to Tenant to effectuate the
assignment or sublease, including, without limitation, the unamortized
costs of any alterations installed in the Demised Premises at Tenant's
expense, and any attorneys' fees, brokerage or leasing commissions,
redecorating and remodeling costs in connection with such proposed
assignment or subletting. If said consideration consists of cash paid
to Tenant, said payment to Landlord shall be made upon receipt by
Tenant of said cash payment;
(e) Written agreement from any third party concerned that in the event
Landlord gives such third party notice that Tenant is in default under
this Lease, such third party shall thereafter make all payments otherwise
due Tenant directly to Landlord, which payments will be received by
Landlord without any liability on Landlord 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 that in no event shall
Landlord or its successors or assigns be obligated to accept such
attornment;
(f) Any such transfer and consent shall be effected on forms reasonably
approved by Landlord as to form and substance;
(g) Tenant shall not then be in Default hereunder in any respect;
(h) Such third party's proposed use of the Premises shall be the same as
Tenant's permitted use;
(i) Landlord shall not be bound by any provision of any agreement pertaining
to Tenant's transfer of rights or sharing of the Premises;
(j) Tenant shall deliver to Landlord one executed copy of any and all
written instruments evidencing or relating to Tenant's transfer of rights
or sharing of the Premises; and
(k) A list of Hazardous Material (as defined in Section 41.6 below),
certified by the proposed sublessee to be true and correct, which the
proposed sublessee intends to use or store in the Demised Premises.
Additionally, Tenant shall deliver to Landlord, on or before the date
any proposed sublessee takes occupancy of the Demised Premises, all of
the items relating to Hazardous Material of such proposed sublessee as
described in Section 41.1.1 below.
25.7 Any sale, assignment, hypothecation or transfer of this Lease
or subletting of the Demised Premises that is not in compliance with the
provisions of this Article 25 shall be void and shall, at the option of
Landlord, terminate this Lease, pursuant to Article 24 hereof.
25.8 The consent by Landlord to an assignment or subletting shall
not relieve Tenant or any assignees of this Lease or sublessee of the Demised
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.
25.9 Notwithstanding any subletting or assignment, Tenant shall
remain fully and primarily liable for the payment of all Rent and other sums
due, or to become due hereunder, and for the full performance of all other
terms, conditions, and covenants to be kept and performed by Tenant. The
acceptance of Rent or any other sum due hereunder, or the acceptance of
performance of any other term, covenant, or condition thereof, from any other
person or 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 Demised Premises.
25.10 If Tenant shall sublet the Demised Premises or any part,
Tenant hereby immediately and irrevocably assigns to Landlord, as security
for Tenant's obligations under this Lease, all rent from any subletting of
all or a part of the Demised Premises and Landlord as assignee 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 an act of default by Tenant, Tenant shall have the
right to collect such rent.
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26. ATTORNEYS' FEES
26.1 If either party commences an action against the other party
arising out of or in connection with this Lease, the prevailing party shall
be entitled to have and recover from the non-prevailing party reasonable
attorneys' fees and costs of suit. "Prevailing party" shall include a party
who dismisses an action for recovery hereunder in exchange for sums allegedly
due, performance of covenants allegedly breached or consideration
substantially equal to the relief sought in the action.
27. BANKRUPTCY
27.1 In the event a debtor, trustee, or debtor in possession under
the Bankruptcy Code, or other person with similar rights, duties and powers
under any other law, proposes to cure any default under this Lease or to
assume or assign this Lease, and is obliged to provide adequate assurance to
Landlord that (i) a default will be cured, (ii) Landlord will be compensated
for its damages arising from any breach of this Lease, or (iii) future
performance under this Lease will occur, then adequate assurance shall
include any or all of the following, as designated by Landlord:
(a) Those acts specified in the Bankruptcy Code or other law
as included within the meaning of adequate assurance, even if this Lease does
not concern a shopping center or other facility described in such laws;
(b) A prompt cash payment to compensate Landlord for any
monetary defaults or actual damages arising directly from a breach of this
Lease;
(c) A cash deposit in an amount at least equal to the
Security Deposit as referenced in 2.1.8 originally required at time of
execution of this Lease.
28. DEFINITION OF LANDLORD
28.1 The term "Landlord" as used in this Lease, so far as covenants
or obligations on the part of Landlord are concerned, shall be limited to
mean and include only Landlord or the successor-in-interest of Landlord under
this Lease at the time in question. In the event of any transfer, assignment
or the conveyance of Landlord's title or leasehold, the Landlord herein named
(and in case of any subsequent transfers or conveyances, the then grantor)
shall be freed and relieved from, and after the date of such transfer,
assignment or conveyance, of all liability for the performance of any
covenants or obligations contained in this Lease (including, without
limitation, any obligations or liability related to the security deposit)
arising after the date of such transfer, assignment or conveyance, provided
that such transferee assumes in writing the obligations of Landlord under
this Lease. Landlord may transfer its interest in the Demised Premises or
this Lease without the consent of Tenant and such transfer or subsequent
transfer shall not be deemed a violation on the part of Landlord or the then
grantor of any of the terms or conditions of this Lease.
29. ESTOPPEL CERTIFICATE
29.1 Tenant and Landlord shall within ten (10) days of written
notice from Landlord or Tenant, execute, acknowledge and deliver a statement
in writing substantially in the form attached to this Lease as Exhibit "E"
(as appropriately modified in the case of a statement by Landlord) 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 advanced, if
any, (ii) acknowledging that there are not, to Landlord's or Tenant's
knowledge, any uncured defaults on the part of the other hereunder, or
specifying such defaults if any are claimed and (iii) setting forth such
further information with respect to this Lease or the Demised Premises as may
be 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 Demised Premises are a part. Tenant's or Landlord's
failure to deliver such statement within such time shall, at the option of
the requesting party, constitute a default under this Lease, and, in any
event, shall be conclusive upon such party that the Lease is in full force
and effect and without modification except as may be represented by the
requesting party in any certificate prepared by the requesting party and
delivered to the other party for execution.
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30. JOINT AND SEVERAL OBLIGATIONS
30.1 If more than one person or entity executes this Lease as
Tenant.
(a) Each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and
(b) The term "Tenant" as used in this Lease shall mean and
include each of them jointly and severally. The act of, notice from, notice
to, refund to, or the signature of, any one or more of them, with respect to
the tenancy of this Lease, including, but not limited to, any renewal,
extension, expiration, termination or modification of this Lease, shall be
binding upon each and all of the persons executing this Lease as Tenant with
the same force and effect as if each and all of them had so acted, so given
or received such notice or refund or so signed.
31. LIMITATION OF LANDLORD'S LIABILITY
31.1 If Landlord is in default of this Lease, and as a consequence,
Tenant recovers a money judgment against Landlord, the judgment shall be
satisfied only out of the proceeds of sale received on execution of the
judgment and levy against the right, title and interest of Landlord in the
Building and Project of which the Demises Premises are a part, and out of
rent or other income from such real property receivable by Landlord or out of
the consideration received by Landlord from the sale, financing, refinancing,
or other disposition of all or any part of Landlord's right, title, and
interest in the Building and Project of which the Demised Premises are a part.
31.2 Landlord shall not be personally liable for any deficiency. If
Landlord is a partnership or joint venture, the partners of such partnership
shall not be personally liable and no partner of Landlord shall be sued or
named as a party in any suit or action or service of process be made against
any partner of Landlord except as may be necessary to secure jurisdiction of
the partnership or joint venture. If Landlord is a corporation, the
shareholders, directors, officers, employees, and/or agents of such
corporation shall not be personally liable and no shareholder, director,
officer, employee or agent of Landlord shall be sued or named as a party in
any suit or action or service of process made against any shareholder,
director, officer, employee or agent of Landlord. No partner, shareholder,
director, employee, or agent of Landlord shall be required to answer or
otherwise plead to any service of process and no judgment will be taken or
writ of execution levied against any partner, shareholder, director, employee
or agent of Landlord.
31.3 Each of the covenants and agreements of this Article 31 shall
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or by common law and shall survive the
termination of this Lease. The provisions of this Article 31 shall not apply,
however, to any losses, costs, claims or damages arising from or relating to
the failure of a successor or assignee of Landlord to assume liability for
the obligations of Landlord which accrued prior to the date of an assignment
or other transfer of Landlord's interest in the Demised Premises.
32. PROJECT CONTROL BY LANDLORD
32.1 Subject to Article 15 hereof, Landlord reserves full control
over the Building and Project to the extent not inconsistent with Tenant's
enjoyment of the Demised Premises. This reservation includes but is not
limited to right of Landlord to subdivide the Project, convert the Building
and or other buildings within the Project to condominium units, the right to
grant easements and licenses to others and the right to maintain or establish
ownership of Building separate from fee title to land.
32.2 Tenant shall, should Landlord so request, promptly join with
Landlord in execution of such documents as may be reasonably appropriate to
assist Landlord to implement any such action provided Tenant need not execute
any document which is of nature wherein liability is created in Tenant or if
by reason of the terms of such document, Tenant will be deprived of the quiet
enjoyment and use of the Demised Premises as granted by this Lease, or
Tenant's use of the Demised Premises or Tenant's parking rights will be
materially diminished.
33. QUIET ENJOYMENT
33.1 So long as Tenant is not in Default, Landlord covenants that
Landlord or anyone acting through or under Landlord will not disturb Tenant's
occupancy of the Demised Premises except as permitted by the provisions of
this Lease.
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34. QUITCLAIM DEED
34.1 Tenant shall execute and deliver to Landlord on the
expiration or termination of this Lease, immediately on Landlord's request,
in recordable form, a quitclaim deed to the Demised Premises or such other
documentation reasonably requested by Landlord evidencing termination of this
Lease.
35. RULES AND REGULATIONS
35.1 Subject to Article 15 hereof, Tenant shall faithfully
observe and comply with the Rules and Regulations attached hereto as Exhibit
"D" and all reasonable and nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord
shall not be responsible to Tenant for the violation or non-performance by
any other tenant or any agent, employee or invitee thereof of any of said
Rules and Regulations.
36. SUBORDINATION AND ATTORNMENT
36.1 This Lease shall be subject and subordinate to the lien of
any mortgage, deed of trust, or lease in which Landlord is tenant now or
hereafter in force against the Project and Building of which the Demised
Premises are a part, and to all advances made or hereafter to be made upon
the security thereof without the necessity of the execution and delivery of
any further instruments on the part of Tenant to effectuate such
subordination.
36.2 Notwithstanding the foregoing, Tenant shall execute and
deliver upon ten (10) days written notice such further instrument or
instruments evidencing such subordination of this Lease to the lien of any
such mortgage or mortgages or deeds of trust or lease in which Landlord is
tenant as may be required by Landlord. However, if any such mortgagee,
beneficiary or Landlord under lease wherein Landlord is tenant so elects,
this Lease shall be deemed prior in lien to any such lease, mortgage, or deed
of trust upon or including the Demised Premises regardless of date and
Tenant will execute a statement in writing to such effect at Landlord's
request.
36.3 In the event any proceedings are brought for foreclosure, or
in the event of the exercise of the power of sale under any mortgage or deed
of trust made by the Landlord covering the Demised Premises, the Tenant shall
at the election of the purchaser at such foreclosure or sale attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under this Lease, so long as such purchaser executes a written
recognition agreement in form reasonably satisfactory to Landlord and Tenant
providing that, so long as Tenant is not in Default hereunder, Tenant's
rights of occupancy shall not be disturbed and Tenant shall receive all of the
rights and services provided for under this Lease. Notwithstanding anything
to the contrary in this Article 36, Landlord shall exercise reasonable
efforts, prior to the date the Parties execute this Lease, to obtain from any
lenders or ground lessors of the Project a written agreement in form
reasonably satisfactory to Landlord and Tenant providing for recognition of
Tenant's interests under this Lease in the event of a foreclosure of the
lender's security interest or termination of the ground lease. Further, as
a condition to Tenant's obligation to subordinate its leasehold interest to a
ground lease or instrument of security, Landlord shall obtain from any such
ground lessors or lenders a written recognition agreement in form reasonably
satisfactory to Landlord, Tenant and such lender or ground-lessor providing
that Tenant's rights of occupancy shall not be disturbed in the event of a
termination of the ground lease or a foreclosure of the loan, and that in the
event of such termination or foreclosure, so long as Tenant is not in Default
hereunder, Tenant shall receive all of the rights and services provided for
under this Lease.
37. SURRENDER
37.1 No surrender of possession of any part of the Demised
Premises shall release Tenant from any of its obligations hereunder unless
accepted by Landlord.
37.2 The voluntary or other surrender of this Lease by Tenant
shall not work a merger, unless Landlord consents and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies.
31
37.3 The voluntary or other surrender of any ground or
underlying lease that now exists or may hereafter be executed affecting the
Building or Project, or a mutual cancellation, thereof, or of Landlord's
interest therein, shall not work a merger and shall, at the option of the
successor of Landlord's interest in the Building or Project, operate as an
assignment of this Lease.
38. WAIVER AND MODIFICATION
38.1 No provision of this Lease may be modified, amended
or added to except by an agreement in writing. The waiver by Landlord or
Tenant of any breach of any term, covenant or condition herein contained
shall not be deemed to be a waiver of any subsequent breach of the same or
any other term, covenant or condition herein contained.
39. WAIVER OF JURY TRIAL AND COUNTERCLAIMS
39.1 The parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Demised Premises, and or any claim
of injury or damage.
40. [Intentionally Omitted]
41. HAZARDOUS MATERIALS
41.1 PROHIBITION/COMPLIANCE. Tenant shall not cause any
Hazardous Material (as hereinafter defined) to be brought upon, kept or used
in or about the Demised Premises or the Project in violation of applicable
law by Tenant, its agents, employees, contractors or invitees. If Tenant
breaches the obligation stated in the preceeding sentence, or if Tenant's
acts or omissions results in contamination of the Demised Premises, the
Building, the Project or any adjacent Property or if contamination of the
Demised Premises, the Building, the Project or any adjacent Property by
Hazardous Material otherwise occurs during the term of this Lease or any
extension or renewal hereof or holding over hereunder, by reason of Tenant's
acts or omissions, then Tenant shall indemnify, defend and hold Landlord, its
agents and contractors harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including without limitation
diminution in value of the Demised Premises or any portion of the Project,
damages for the loss or restriction on use of rentable or usable space or of
any amenity of the Demised Premises or Project, damages arising from any
adverse impact on marketing of space in the Demised Premises or the Project,
and sums paid in settlement of claims, attorneys' fees, consultant fees and
expert 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, or restoration work required by
any federal, state or local governmental agency or political subdivision
because of Hazardous Material present in the air, soil or ground water above
on or under the Demised Premises. Without limiting the foregoing, if the
presence of any Hazardous Material on the Demised Premises, the Building, the
Project or any adjacent Property, caused by Tenant results in any
contamination of the Demised Premises, the Building, the Project or any
adjacent Property, Tenant shall promptly take all actions at
its sole expense as are necessary to return the Demised Premises, the
Building, the Project or any adjacent Property, to the condition existing
prior to the time of such contamination, provided that Landlord's
approval of such action shall first be obtained, 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 Demised Premises, the
Building or the Project. To the best knowlege of Landlord, except as
disclosed to Tenant in those certain reports identified on Exhibit J attached
hereto, (i) no Hazardous Materials are present on the soil, surface water or
groundwater thereof, (ii) no underground storage tanks or asbestos containing
building materials are present on the Project, and (iii) no action,
proceeding, or claim is pending or threatened concerning the Project
concerning any Hazardous Materials or pursuant to any Laws regarding
Hazardous Materials ("Hazardous Materials Laws"). Landlord shall comply with
any Hazardous Materials Laws relating to any Hazardous Material present at
any time on or about the Demised Premises or the Project, or the soil, air,
improvements, groundwater or surface water thereof, except to the extent that
such Hazardous Material is released, emitted or aggregated on or about the
Project by Tenant or Tenant's employees or agents, by other tenants of the
Building, or by third parties. Upon Tenant taking possession of any Suite
improved with laboratory improvements, Landlord shall provide Tenant with a
letter report prepared by a reputable environmental engineering firm,
describing the environmental condition of the Suite at time of delivery
to Tenant which shall be used by Landlord to establish that the Suite was
delivered to Tenant free of Hazardous Materials, except as may be set forth
in the report. As used herein, the phrase
32
"knowledge of Landlord" shall mean the actual knowledge of Xxxx X. Gold and
Xxxx X. Xxxxxxxx as of the date hereof.
41.1.1 BUSINESS. Landlord acknowledges that it is not the
intent of this Article 41 to prohibit Tenant from operating its business as
described in Section 2.1.9 above. Tenant may operate its business according
to the custom of the industry so long as the use or presence of Hazardous
Material is strictly and properly monitored according to all applicable
governmental requirements. As a material inducement to Landlord to allow
Tenant to use Hazardous Material in connection with its business, Tenant
agrees to deliver to Landlord prior to the Term Commencement Date a list
identifying each type of Hazardous Material to be present on the Demised
Premises and setting forth any and all governmental approvals or permits
required in connection with the presence of such Hazardous Material on the
Demised Premises ("Hazardous Material List"). Tenant shall deliver to
Landlord an updated Hazardous Material List at least once a year and shall
also deliver an updated list before any new Hazardous Material is brought
onto the Demised Premises. Tenant shall deliver to Landlord, upon request,
true and correct copies of the following documents (hereinafter referred to
as the "Documents") relating to the handling, storage, disposal and emission
of Hazardous Material prior to the Term 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 storage tanks to be installed in or under the Project
(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 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
Project for the closure of any such tanks. Tenant is not required, however,
to provide Landlord with any portion(s) of the Documents containing
information of a proprietary nature, which, in and of themselves, do not
contain a reference to any Hazardous Material 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. At the written request of Landlord, Tenant
agrees that it shall enter into a written agreement with other tenant's at
the Building concerning the equitable allocation of fire control areas (as
defined in the Uniform Building Code, and adopted by the City of San Diego
("UBC")) within the Building for the storage of Hazardous Materials. In the
event that Tenant's use of Hazardous Materials is such that it utilizes fire
control areas in the Building in excess of Tenant's Pro Rata Share of the
Building as set forth in Section 2.1.6 above, Tenant agrees that it shall, at
its own expense, and upon the written request of Landlord, establish and
maintain a separate area of the Demised Premises classified by the UBC as an
"H" occupancy area, for the use and storage of Hazardous Materials, or take
such other action so that its share of the fire control areas of the Building
is not greater than Tenant's Pro Rata Share of the Building.
41.2 TESTING. At any time, and from time to time, prior to
the expiration of the Lease Term Landlord shall have the right to conduct
appropriate tests of the Demised Premises, Building and Project to demonstrate
that contamination has occurred as a result of Tenant's use of the Demised
Premises. Tenant shall be solely responsible for and shall defend, indemnify
and hold the Landlord, its agents and contractors harmless from and against
any and all claims, costs and liabilities including actual attorneys' fees
and costs, arising out of or in connection with any removal, clean up,
restoration and materials required hereunder to return the Demised Premises
and any other property of whatever nature to their condition existing prior
to the time of any such contamination to the extent Hazardous Materials are
found and it is determined that Tenant has violated the provisions of Section
41.1 hereof. Tenant shall pay for the cost of the tests of the Demised
Premises only if Hazardous Materials are found and it is determined that
Tenant violated the provisions of Section 41.1 hereof.
41.4 UNDERGROUND TANKS. If underground or other storage
tanks storing Hazardous Materials are located on the Demised Premises and
utilized or are hereafter placed on the Demised Premises by Tenant, Tenant
shall monitor the storage tanks, maintain appropriate records, implement
reporting procedures, properly close any underground storage tanks, and take
or cause to be taken all other steps necessary or required under the
California Administrative Code, Title 23, Chapter 3, Subchapter 16,
"Underground Storage Tank Regulations," and Division 20, Chapter 6.7 of the
California Health & Safety Code. "Underground Storage of Hazardous
Substances," as they now exist or may hereafter be adopted or amended.
33
41.5 TENANT'S OBLIGATIONS. Tenant's obligations under this
Article 41 shall survive the termination of the Lease. During any period of
time employed by Tenant or Landlord after the termination of this Lease to
complete the removal from the Demised Premises of any such Hazardous
Materials, Tenant shall continue to pay the Rent in accordance with this
Lease, which Rent shall be prorated daily.
41.6 DEFINITION OF "HAZARDOUS MATERIAL." As used herein, the
term "Hazardous Material" means any hazardous or toxic substance, material or
waste which is or becomes regulated by any local governmental authority, the
State of California or the United States government. The term "Hazardous
Material" includes, without limitation, any material or substance which is
(i) defined as a "hazardous waste," "extremely hazardous waste" or
"restricted hazardous waste" under Section 25515 or 25117, or listed pursuant
to Section 25140, of the California Health and Safety Code, Division 20,
Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code,
Division 2, Chapter 6.8 (Xxxxxxxxx-Xxxxxx-Xxxxxx Hazardous Substance Account
Act), (iii) defined as a "hazardous material," "hazardous substance" or
"hazardous waste" under Section 25501 of the California Health and Safety
Code, Division 20, Chapter 6.95 (Hazardous Substances), (v) petroleum, (vi)
asbestos, (vii) listed under Article 9 and defined as hazardous or extremely
hazardous pursuant to Article 11 of Title 22 of the California Administrative
Code, Division 4, Chapter 20, (viii) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), (ix) defined as a "hazardous waste" pursuant to Section 1004
of the Federal Resource Conversation and Recovery Act, 42 U.S.C. Section
6901, et. seq. (42 U.S.C. Section 6903), or (x) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42
U.S.C. Section 9601).
42. [INTENTIONALLY OMITTED]
43. MISCELLANEOUS
43.1 TERMS AND HEADINGS. Where applicable in this Lease, the
singular includes the plural and the masculine or neuter includes the
masculine, feminine and neuter. The section headings of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
43.2 EXAMINATION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
43.3 TIME. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is
a factor.
43.4 COVENANTS AND CONDITIONS. Each provision of this Lease
performable by Tenant shall be deemed both a condition and a covenant.
43.5 CONSENTS. Whenever consent, designation, judgment,
determination or approval of either party is required, that party shall not
unreasonably withhold or delay such consent, approval, designation, judgment
or determination.
43.6 ENTIRE AGREEMENT. The terms of this Lease are intended
by the parties as a final expression of their agreement with respect to the
terms as are included herein, and may not be contradicted by evidence of any
prior or contemporaneous agreement. The Basic Lease Provisions, general
Provisions, Addendum, and Exhibits all constitute a single document and are
incorporated herein.
43.7 SEVERABILITY. Any provision of this Lease which shall
provide to be invalid, void, or illegal in no way affects, impairs or
invalidates any other provision hereof, and such other provisions shall
remain in full force and effect.
43.8 RECORDING. Landlord may, but shall not be obligated to,
record a short form memorandum hereof without the consent of Tenant. Neither
parties shall record this Lease.
43.9 IMPARTIAL CONSTRUCTION. The language in all parts of
this Lease shall be in all cases construed as a whole according to its fair
meaning and not strictly for or against either Landlord or Tenant.
34
43.10 INUREMENT. Each of the covenants, conditions and
agreements herein contained shall inure to the benefit of and shall apply to
and be binding upon the parties hereto and their respective heirs, legatees,
devisees, executors, administrators, successors, assigns, sublessees, or any
person who may come into possession of said Demised Premises or any part
thereof in any manner whatsoever. Nothing in this Section 43.10 contained
shall in any way alter the provisions against assignment or subletting in
this Lease provided.
43.11 NOTICES. Any notice, consent, demand, xxxx, statement, or
other communication required or permitted to be given hereunder must be in
writing and may be given by personal delivery or by mail, and if given by
mail shall be deemed sufficiently given three (3) business days after time
when deposited in United States Mail if sent by registered or certified mail,
addressed to Tenant at the Demised Premises, or to Tenant or Landlord at the
addresses shown in Section 2.1.10 of the Basic Lease Provisions. Either party
may, by notice to the other given pursuant to this Section, specify
additional or different addresses for notice purposes. Notices hereunder may
also be given by reputable overnight courier and shall be deemed given one (1)
business day after deposited with a reputable overnight courier service,
addressed as set forth above.
43.12 CALIFORNIA JURISDICTION. This Lease has been negotiated
and entered into in the State of California and shall be governed by,
construed and enforced in accordance with the laws of the State of
California, applied to contracts made in California for California
domiciliaries to be wholly performed in California.
43.13 AUTHORITY. That individual or those individuals signing
this Lease guarantee, warrant and represent that said individual or
individuals have the power, authority and legal capacity to sign this release
on behalf of and to bind all entities, corporations, partnerships, joint
venturers or other organizations and/or entities on whose behalf said
individual or individuals have signed.
43.14 LANDLORD'S ENTRY. Notwithstanding anything to the contrary
contained in this Lease, Landlord and Landlord's agents, except in the case of
emergency or other imminent threat to the Building or its occupants, or by
consent of Tenant or its employees, shall provide Tenant with twenty-four
(24) hours' notice prior to entry of the Demised Premises. Any entry by
Landlord and Landlord's agents shall not impair Tenant's operations more than
reasonably necessary, and Tenant shall have the right to have an employee
accompany Landlord at all times that Landlord is present on the Demised
Premises.
43.15 REASONABLE EXPENDITURES. Any expenditure by a party
permitted or required under this Lease, for which such party is entitled to
demand and does demand reimbursement from the other party, shall be limited
to the fair market value of the goods and services involved, shall be
reasonably incurred and shall be substantiated by documentary evidence (to
the extent reasonably available) available for inspection and review by the
other party or its representative during normal business hours.
44. EXISTING SPACE.
The Sublease Premises identified as Suite 160 and 160A on Exhibit "A-1"
attached hereto consisting of approximately 25,063 rentable square feet, is
currently occupied by Tenant under a sublease with IDEC pursuant to the
Master Lease. Following the execution hereof, Landlord and Tenant shall use
their reasonable efforts to cause IDEC to terminate the Master Lease and,
upon such termination, the Sublease Premises shall automatically become part
of the Demised Premises subject to all of the terms and conditions hereof;
provided that, Landlord shall not be required to expend any sums or incur
any costs, or engage in any litigation, in connection with such efforts and
further provided that Tenant shall be responsible for and pays to IDEC, at
Tenant's sole cost and expense, any unamortized tenant improvement expenses
owing by Tenant to IDEC pursuant to the Master Lease or otherwise. Following
the surrender of the Sublease Premises by IDEC and termination of the Master
Lease (whether pursuant to Landlord's and Tenant's efforts as provided
hereinabove or pursuant to the expiration or termination of the Master
Lease), Landlord shall deliver the Sublease Premises to Tenant, and the
Sublease Premises shall thereupon become part of, and be included within the
definition of, the Demised Premises subject to all of the terms and
conditions of this Lease, except: (a) that the Demised Premises under the
Lease shall be increased to include the rentable square feet of the Sublease
Premises; (b) the new Basic Annual Rent shall be increased, with the Sublease
Premises increasing the Basic Annual Rent at the square foot rental rate then
applicable under the Lease; and (c) Tenant's new Pro Rata Share of Operating
Expenses shall be increased based upon the addition of the Sublease Premises
to the Demised Premises. In all other respects, the Lease shall remain in
full force and effect, and shall apply to the Sublease Premises. Upon the
delivery of the Sublease Premises to Tenant as provided herein, Landlord and
Tenant shall execute and deliver an
35
amendment to this Lease confirming the delivery and commencement date with
respect thereto, and the other changes in the Lease terms described above.
45. OPTION TO EXTEND TERM.
Provided that Tenant is not then in Default, Tenant shall have the
option ("Option") to extend the term of this Lease upon the following terms
and conditions:
(a) Tenant shall have two (2) consecutive options to extend the
term of this Lease each for a period of five (5) years.
(b) In the event Tenant elects to exercise an Option under
Section 45 (a), the Lease terms shall be the same terms and conditions as set
forth in this Lease except for the Basic Annual Rent, which shall be equal to
the then current fair market rent as shall be mutually agreed upon by
Landlord and Tenant. Either Party, however, may elect to terminate the Option
(which termination shall be either Parties sole recourse and remedy) by
giving written notice to the other Party, and the Option shall be of no
further force or effect even after Tenant's due and timely exercise of an
Option, if six months prior to the commencement date of the new term,
Landlord and Tenant are unable in good faith to agree, in their respective
sole discretion, upon a mutually satisfactory Basic Annual Rent.
(c) The Option herein granted is not assignable separate and apart
from this Lease.
(d) The Option herein granted is for Tenant to extend the Lease
for all (and not less than all) of the Demised Premises.
(e) The Option is conditional upon Tenant giving Landlord written
notice of its election to exercise the Option at least nine (9) months prior
to the end of the expiration of the initial term of this Lease or any prior
extension thereof.
(d) Tenant shall not have the right to exercise any Option,
notwithstanding anything set forth above to the contrary:
(1) During the time commencing from the date Landlord gives
to Tenant a written notice that Tenant is in default under any provisions of
this Lease and continuing until the default alleged in said notice is cured; or
(2) At any time after an event of Default as described in
Article 24, of the Lease (without any necessity of Landlord to give notice of
such default to Tenant) and continuing until any such default is cured, if
curable; or
(3) In the event that Tenant has defaulted in the
performance of its obligations three (3) or more times and a service charge
has become payable under Section 24.1 for each of such defaults during the
twelve-month period immediately prior to the date that Tenant intends to
exercise the Option, whether or not the defaults are cured.
(e) The period of time within which the Option may be exercised
shall not be extended or enlarged by reason of the Tenant's inability to
exercise the Option because of the foregoing provisions of subparagraph (d).
(f) All rights of Tenant under the provisions of the Option shall
terminate and be of no further force or effect even after Tenant's due and
timely exercise of an Option, if, after such exercise, but prior to the
commencement date of the new term, (1) Tenant fails to pay to Landlord a
monetary obligation of Tenant for a period of twenty (20) days after written
notice from Landlord to Tenant; (2) Tenant fails to commence to cure a
default (other than a monetary default) within thirty (30) days after the
date Landlord gives notice to Tenant of such default; or (3) Tenant has
defaulted three (3) or more times and a service charge under Section 24.1 has
become payable for any such default, during the period from the date of the
exercise of such option to the date of the commencement of such option term,
whether or not such defaults are cured.
46. OPTION TO EXPAND.
46.1 Provided that Tenant is not then in Default, Tenant shall
have the right, but not the obligation, to expand the Demised Premises (the
"Expansion Option") in accordance with the provisions set forth below.
36
46.1.1 AVAILABLE SPACE. For the purposes of the Expansion
Option, "Available Space" shall mean any rentable area within the Building
not leased to a tenant and not currently subject to any option or expansion
rights of any other tenant. Tenant may exercise the Expansion Option as to
any Available Space, provided however, that if the Available Space
was configured for use by a single tenant, Tenant must exercise the Expansion
Option as to all of such available Space. Tenant may not exercise the
Expansion Option as to a portion or less than all or any Available Space
configured for use by a single tenant.
46.1.2 EXERCISE OF OPTION. From time to time, Landlord shall
provide Tenant with written notice as to areas within the Building which
Landlord believes are or will become Available Space (the "Available Space
Notice"). The Available Space Notice shall identify the location,
configuration and rentable square feet of the Available Space. Upon receipt
of the Available Space Notice and for ten (10) business days thereafter (the
"Expansion Option Period"), Tenant may exercise the Expansion Option by
providing Landlord with written notice (the "Expansion Option Exercise
Notice") that Tenant exercises its Expansion Option as to the Available Space
identified in the Available Space Notice. If Tenant does not exercise the
Expansion Option within the Expansion Option Period, the Expansion Option
shall terminate as to the Available Space identified in the Available Space
Notice until after it has been occupied by a new tenant, or is vacant for one
hundred eighty (180) days after the Available Space Notice is given, after
which time the Expansion Option shall renew as to said Available Space.
46.1.3 AMENDMENT TO LEASE. Within ten (10) business days after
the proper exercise of the Expansion Option, Tenant and Landlord shall enter
into a written amendment to the Lease (the "Amendment") which shall provide,
unless otherwise agreed in writing, (a) that the Amendment shall be effective
the later of (i) ten (10) days after the date of the Amendment or (ii) the
date by which all of the following have occurred: the prior tenant vacates
the Available Space; Landlord has delivered legal possession of this
Available Space to Tenant in substantially the condition set forth in Section
14.1 above; and Landlord has obtained the temporary certificate of occupancy,
if required, from the appropriate governmental authorities required for the
legal occupancy of the Available Space; (b) that the Demised Premises under
the Lease shall be increased to include the rentable square feet of the
Available Space; (c) the new Basic Annual Rent shall be increased, with the
Available Space increasing the Basic Annual Rent at the square foot rental
rate then applicable under the Lease; (d) Tenant's new Pro Rata Share of
Operating Expenses shall be increased, based upon the addition of the
Available Space to the Demised Premises; (e) the Security Deposit shall be
increased (which shall be payable upon execution of the Amendment and shall
be equal to one (1) month's Basic Annual Rent for said Available Space); and
(f) the number of parking spaces allocated to Tenant shall be increased
proportionately. Provided Landlord has delivered to Tenant within five (5)
business days of Tenant's exercise of the Expansion Option, the Amendment in
form reasonably satisfactory to Tenant, in the event Tenant does not execute
and deliver to Landlord the Amendment within the ten (10) day period stated
herein, Tenant's Expansion Option as to the Available Space shall terminate
until after it has been occupied by a new tenant, or is vacant for one
hundred eighty (180) days after the Available Space Notice is given, after
which time the Expansion Option renews as to said Available Space. Landlord
shall not be required to provide any tenant improvements for the Available
Space. In all other respects, the Lease shall remain in full force and
effect, and shall apply to the Available Space.
46.1.4 TERM LIMITATION. Notwithstanding any other provision
relating to the Expansion Option, Tenant shall not be entitled to exercise
the Expansion Option if the remaining Term under the Lease (not including
unexercised options to extend the Term) is less than one (1) year.
46.3 The exercise by Tenant of the Expansion Option is subject to
the following terms and conditions:
(a) The Expansion Option herein granted to Tenant is not
assignable separate and apart from this Lease.
(b) Tenant shall not have the right to exercise the
Expansion Option, notwithstanding anything set forth above to the contrary:
(1) During the time commencing from the date
Landlord gives to Tenant a written notice that Tenant is in default under any
material provisions of this Lease and continuing until the default alleged in
said notice is cured; or
37
(2) At any time after an event of default as
described in Article 24, of this Lease (without any necessity of Landlord to
give notice of such default to Tenant) and continuing until any such default
is cured, if curable.
(c) The period of time within which the Expansion Option
may be exercised shall not be extended or enlarged by reason of the Tenant's
inability to exercise the Expansion Option because of the foregoing provisions
of subparagraph (b).
(d) All rights of Tenant under the provisions of the
Expansion Option shall terminate and be of no further force or effect, even
after Tenant's due and timely exercise of the Expansion Option, if, after
such exercise, but prior to the commencement date of the term of the lease
for the Available Space or part, (i) Tenant fails to pay the Landlord a
monetary obligation of Tenant for a period of ten (10) days after written
notice from Landlord to Tenant; or (ii) Tenant fails to cure a default (other
than a monetary default) within thirty (30) days after Landlord gives notice
to Tenant of such default.
46.4 PRIORITY. The Parties acknowledge and agree that the
Expansion Option initially arose in similar form and substance under Exhibit
"G" of the Master Lease to Suite 160 made in July 31, 1986 and that as such,
without making any representation or warranty with respect thereto, the
Expansion Option rights may be senior in priority to any similar rights
granted later in time to other tenants at the Building.
46.5 Tenant shall be responsible for any brokerage fees owed to
any third party engaged by Tenant in connection with any Expansion Option and
shall indemnify Landlord with respect to any claims for any fees or
commissions made by any person with whom Tenant dealt in connection with
exercising the Expansion Option.
46.6 SUPERSEDES PRIOR AGREEMENTS. The Expansion Option shall be
exercised only as provided in this Agreement and supersede all prior
agreements with respect to Available Space.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first above written.
Landlord: Tenant:
HEALTH SCIENCE PROPERTIES, INC. SEQUANA THERAPEUTICS, INC.
By: /s/ Xxxx X. Gold By: /s/ M. Xxxxx Xxxxx
------------------------------ ------------------------------------
Name: Xxxx X. Gold Name: M. Xxxxx Xxxxx
---------------------------- ----------------------------------
Its: President Its: V.P. Operations, CFO
----------------------------- -----------------------------------
By: /s/ Xxxx X. Xxxxxxxx By: /s/ T.J.R. Xxxxxx
------------------------------ ------------------------------------
Name: Xxxx X. Xxxxxxxx Name: T.J.R. Xxxxxx
---------------------------- ----------------------------------
Its: Senior Vice President Its: VP R&D
----------------------------- -----------------------------------
38
FIRST AMENDMENT TO EXPANSION LEASE
00000 XXXXX XXXXXX XXXXX XXXX
THIS FIRST AMENDMENT TO EXPANSION LEASE ("First Amendment") dated as
of October __, 1996, is entered into by and between Health Science
Properties, Inc., a Maryland corporation ("Landlord") and Sequana
Therapeutics, Inc., a California corporation ("Tenant") with regard to the
following:
RECITALS
A. Landlord and Tenant are parties to that certain Expansion Lease
dated as of November 20, 1995 ("Lease") pursuant to which Tenant leases from
Landlord various premises (collectively called the "Demised Premises" and
sometimes individually the "Suite" or "Suites") located on the property at
00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xx Xxxxx, Xxxxxxxxxx 00000 ("Property"), as
more particularly described in the Lease.
B. Landlord and Tenant desire to modify the Lease as it applies to
Suite 220 only, with respect to the Estimated Term Commencement Date, the
Initial Basic Annual Rent and the Initial Monthly Rental Installments of
Basic Annual Rent, all in accordance with the terms and conditions of the
Lease and this First Amendment. Any capitalized, but undefined terms used in
this First Amendment shall have the same meaning set forth in the Lease.
NOW THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. LEASE MODIFICATIONS. In exercising this First Amendment, the
following modifications are made to the Lease, with respect to Suite 220:
a) Section 2.1.4 of the Lease is hereby modified by increasing
the Initial Basic Annual Rent from $21.00 per square foot of
Rentable Area to $25.32 per square foot of Rentable Area, such
that the Initial Basic Annual Rent for Suite 220 is One
Hundred Eleven Thousand Four Hundred Eighty Three and 96/100
Dollars ($111,483.96). Said increase in the Initial Basic
Annual Rent shall be effective from the actual Term
Commencement Date for Suite 220 until December 17, 1997 at
which date the Basic Annual Rent for Suite 220 shall
readjust to the rate and amount as originally set forth in
the Lease at Section 2.1.4, as adjusted in accordance with
Section 6 of the Lease.
b) Section 2.1.5 of the Lease is hereby modified by increasing
the Initial Monthly Rental Installments of Basic Annual Rent
from $1.75 per square foot of Rentable Area to $2.11 per
square foot of Rentable Area, such that the Initial Monthly
Rental Installments of Basic Annual Rent for Suite 220 is
Nine Thousand Two Hundred and Ninety and 33/100 ($9,290.33).
Said increase in the Initial Monthly Rental Installments of
Basic Annual Rent shall be effective from the actual Term
Commencement Date for Suite 220 until December 17, 1997 at
which date the Basic Annual Rent for Suite 220 shall
readjust to the rate and amount as originally set forth in
the Lease at Section 2.1.5, as adjusted in accordance with
Section 6 of the Lease.
c) Section 2.1.7 (a) of the Lease is hereby modified by
establishing an Estimated Term Commencement Date for Suite
220 of February 1, 1997.
2. ADDITIONAL TERMS. Except as expressly provided to the contrary
in this First Amendment, the terms and conditions of the Lease shall remain
unchanged and in force and effect.
IN WITNESS WHEREOF the parties hereto have executed this First Amendment as
of the date
first written above.
LANDLORD TENANT
HEALTH SCIENCE PROPERTIES, INC. SEQUANA THERAPEUTICS, INC.
By: /s/ Xxxx X. Gold By: /s/ M. Xxxxx Xxxxx
----------------------- ------------------------------
Name: Xxxx X. Gold Name: M. Xxxxx Xxxxx
----------------------- ------------------------------
Its: President Its: VP, CFO
----------------------- ------------------------------
First Amendment October 23, 1996
Expansion - Ste. 220
SECOND AMENDMENT TO EXPANSION LEASE
THIS SECOND AMENDMENT TO EXPANSION LEASE ("AMENDMENT") dated and effective as
of May__, 1997 (the "EFFECTIVE DATE"), is entered into by and between SEQUANA
THERAPEUTICS, INC., a California corporation ("TENANT"), and ALEXANDRIA REAL
ESTATE EQUITIES, INC., formerly HEALTH SCIENCE PROPERTIES, INC., a Maryland
corporation ("LANDLORD") in connection with the following:
A. Landlord and Tenant are parties to that certain Expansion Lease,
dated as of November 20, 1995, as amended by that certain First Amendment to
Expansion Lease dated as of October__, 1996 (as amended, the "LEASE"),
pursuant to which Tenant leases from Landlord certain premises (the "DEMISED
PREMISES") in a building located at 00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xx Xxxxx,
Xxxxxxxxxx (the "BUILDING"), and more particularly described in the Lease.
All capitalized terms used but not otherwise defined herein shall have the
meanings given them in the Lease.
B. Landlord has agreed, among other things, to lease to Tenant
certain portions of the suite in the Building currently designated as
Suite 250, which space shall remain designated as Suite 250 but shall be
configured as outlined on Exhibit A attached hereto (the "ADDITIONAL SPACE"),
and Tenant has agreed to accept such Additional Space.
C. Landlord and Tenant now desire to amend the Lease to reflect the
lease of the Additional Space to Tenant upon the terms and conditions set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. AMENDMENT TO LEASE.
1.1 Effective from and after the Effective Date, Exhibit A-2
to the Lease is hereby replaced in its entirety with Exhibit B attached hereto.
1.2 Section 2.1.3(a) of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Rentable Area of the Demised Premises:
55,548 total sq. ft. as follows:
1. Suites 160 & 160-A: 25,063 sq. ft.
2. Suite 160 Exp.: 1,105 sq. ft.
3. Suite 200: 5,821 sq. ft.
4. Suite 210: 2,558 sq. ft.
5. Suite 210 Exp.: 632 sq. ft.
6. Suite 220: 4,403 sq. ft.
7. Suite 250: 2,981 sq. ft.
8. Suite 280: 5,546 sq. ft.
9. Suite 290: 7,439 sq. ft."
1.3 Section 2.1.3(b) of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Rentable Area of Building:
86,962 sq. ft."
1.4 Section 2.1.3(c) of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Useable Area of the Demised Premises:
48,716 total sq. ft. as follows:
1. Suites 160 & 160-A: 22,339 sq. ft.
2. Suite 160 Exp.: 962 sq. ft.
3. Suite 200: 4,992 sq. ft.
4. Suite 210: 2194 sq. ft.
5. Suite 210 Exp.: 541 sq. ft.
6. Suite 220: 3,780 sq. ft.
7. Suite 250: 2,515 sq. ft.
8. Suite 280: 4,866 sq. ft.
9. Suite 290: 6,527 sq. ft."
2
1.5 Section 2.1.4 of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Initial Basic Annual Rent:
1. For all of the Demised Premises other than
Suite 220: (51,145 sq. ft.) x ($1.8025 per sq.
ft.) x (12 months) = $1,106,266.35.
2. For Suite 220 until December 17, 1997: (4,403
sq. ft.) x ($2.11 per sq. ft.) x (12 months) =
$111,483.96.
3. For Suite 220 from and after December 17,
1997: (4,403 sq. ft.) x (the Monthly Rental
Installment at the per square foot rental rate
then payable with respect to the balance of
the Demised Premises) x (12)."
1.6 Section 2.1.5 of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Initial Monthly Rental Installments of Basic Annual Rent:
1. For all of the Demised Premises other than
Suite 220: (51,145 sq. ft.) x ($1.8025 per sq.
ft.) = $92,188.86.
2. For Suite 220 until December 17, 1997: (4,403
sq. ft.) x ($2.11 per sq. ft.) x (12 months) =
$9,290.33.
3. For Suite 220 from and after December 17,
1997: (4,403 sq. ft.) x (the Monthly Rental
Installment at the per square foot rental rate
then payable with respect to the balance of
the Demised Premises)."
3
1.7 Section 2.1.6 of the Lease is hereby amended in
its entirety, effective from and after the Effective Date, to read as follows:
"Tenant's Pro Rata Share:
63.87% of the Building as follows:
1. Suites 160 & 160-A: 28.82%
2. Suite 160 Exp.: 1.27%
3. Suite 200: 6.69%
4. Suite 210: 2.94%
5. Suite 210 Exp.: 0.73%
6. Suite 220: 5.06%
7. Suite 250: 3.43%
8. Suite 280: 6.38%
9. Suite 290: 8.55%"
1.8 Section 2.1.10 of the Lease is hereby amended in
its entirety, effective from and after the Effective Date, to read as follows:
"Address for Rent Payment:
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Address for Notices to Landlord:
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Address for Notices to Tenant:
11099 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx, 00000"
1.9 Section 2.1.13 of the Lease is hereby amended by
adding the following sentence at the end thereof: "The Tenant Improvement
Allowance originally granted in the amount of $470,300.00 has been spent in
its entirety by Tenant."
1.10 "Available Space", as such term is defined in
Section 46.1.1 of the Lease is hereby amended, effective from and after the
Effective Date, to mean any rentable area within the Building which Landlord
is not obligated, as of or prior to the Effective Date, to deliver to any
other tenant pursuant to the terms of such tenant's lease and which rentable
area is not
4
otherwise leased to or occupied by any other tenant and is not, as of or prior
to the Effective Date, subject to any term extension options or rights of any
other tenant. Landlord represents that, except for the amendment with Agouron
executed by Landlord substantially concurrently herewith, it has not granted
any similar additional rights to any other tenants since November 30, 1995.
1.11 Section 46.3 of the Lease is hereby amended in
its entirety, effective from and after the Effective Date, to read as
follows: "PRIORITY. Tenant's rights in connection with the Expansion Option
are and shall be senior in priority to any similar rights granted after July
31, 1986, to any other tenants at the Building other than Agouron
Pharmaceuticals, Inc. ("AGOURON") and Cytel Corporation ("CYTEL"), and
Tenant's Expansion Option rights shall be junior and subordinate to all
similar rights of Agouron and Cytel (and their respective successors and
assigns) in existence as of the Effective Date."
2. IMPROVEMENTS: COMMENCEMENT.
2.1 Landlord shall, at Landlord's sole cost and
expense, cause to be constructed in Suite 250 a demising wall, a new doorway
and certain other improvements as may be required to cause Suite 250 to
comply with all applicable building codes and to otherwise comply with the
provisions of Section 4.1 of the Lease immediately prior to delivery of
possession thereof to Tenant (collectively, "LANDLORD'S WORK"). Landlord
shall use commercially reasonable efforts to cause Landlord's Work to be
commenced and completed as soon as reasonably possible after the Effective
Date. Landlord shall deliver possession of Suite 250 to Tenant upon the
substantial completion (as defined in Section 2.4 hereof) of Landlord's Work.
2.2 Landlord shall provide Tenant with an allowance
of $108,340 (the "ADDITIONAL IMPROVEMENT ALLOWANCE") to construct the tenant
improvements and alterations to the Demised Premises as generally described
in Exhibit C attached hereto (collectively, "TENANT'S WORK"). Any costs
incurred in performing Tenant's Work in excess of the Additional Improvement
Allowance shall be borne solely by Tenant. All of Tenant's Work shall be
performed and constructed in accordance with Section 17 of the Lease and in
accordance with the terms hereof. Tenant shall have until December 31, 1998
to expend the Additional Improvement Allowance and Landlord shall have no
obligation to fund or disburse any portion of the Additional Improvement
Allowance after such date. Tenant shall have the right to obtain disbursement
of the first $33,000 of the Additional Improvement Allowance (the "INITIAL
AMOUNT") from Landlord from
5
time to time upon request and without any additional documentation, and
disbursement of the balance of the Additional Improvement Allowance in excess
of the Initial Amount shall be made from time to time but not more frequently
than once per calendar month upon receipt of such lien releases and
certificates from Tenant and Tenant's architects, contractors,
subcontractors, suppliers, mechanics and materialmen as Landlord or
Landlord's lenders may reasonably request, together with such evidence of
completion of the Tenant's Work for which disbursement is requested and of
the proper application of any portion of the Additional Improvement Allowance
in excess of the Initial Amount as may have theretofore been paid or
disbursed, and such other information and materials, as Landlord or
Landlord's lenders may reasonably request. Landlord, in its discretion may
elect to make any requested disbursements in excess of the Initial Amount
directly to the contractors or supplier for which disbursement has been
requested. Landlord should not unreasonably withhold its approval with
respect to Tenant's proposed alterations, provided such alterations are
performed by architects, contractors, suppliers or mechanics approved by
Landlord in its sole discretion, exercised in good faith.
2.3 Tenant shall have the right to enter into Suite
250 prior to the completion of Landlord's Work ("EARLY OCCUPANCY") for the
purpose of installing Tenant's equipment and other personal property and
otherwise performing Tenant's Work, so long as such entrance and occupancy
does not interfere with the completion of Landlord's Work. During any period
of Early Occupancy, Tenant shall be subject to all of the terms and
provisions of the Lease, as amended hereby, other than the obligation to pay
Rent.
2.4 Notwithstanding anything to the contrary
contained herein, Tenant shall have no obligation to pay Rent or perform any
other obligation of the Lease other than in connection with Early Occupancy
with respect to Suite 250 until the later to occur of (i) the date Landlord
delivers possession with all of Landlord's Work substantially completed
(subject only to a punch list of items which do not materially interfere with
Tenant's use of Suite 250), or (ii) in connection with Landlord's Work,
Landlord has received a temporary certificate of occupancy, if required, and
a substantial completion certificate from the architect for the occupancy of
Suite 250. If neither of the events set forth in clauses (i) or (ii), above,
have occurred on or before__________, 199__ (the "TARGET DELIVERY DATE"),
then, in addition to Tenant's other rights under this Amendment, the date on
which Tenant is obligated to begin paying Rent with respect to Suite 250
shall be delayed by one (1) day for each one (1) day after the
6
Target Delivery Date that neither of the events set forth in clauses (i) or
(ii), above, have occurred.
2.5 Landlord agrees that it shall not construct or cause to be
constructed any material additional rentable square footage in the atrium
portion of the Building without the prior consent of Tenant, which shall not
be unreasonably withheld, conditioned or delayed; provided, however, that
Landlord and Tenant agree that Tenant may consider the aesthetic impact upon
the atrium of the Building and upon the Demised Premises as a result of any
such proposed construction. Landlord acknowledges that it has no current
plans to expand the rentable area of the Building into the atrium.
3. RIGHTS OF FIRST OFFER TO LEASE ADJACENT PAD.
In the event that Landlord constructs or determines to pursue a
build-to-suit project for a free-standing office or laboratory building upon
the land immediately adjacent to the Building and more particularly described
on Exhibit D attached hereto and desires to lease such new building for any
purpose other than for parking, storage or placement of temporary trailers,
Landlord shall deliver written notice thereof to Tenant, together with the
terms and conditions upon which Landlord desires to lease such new building.
Tenant shall have ten (10) business days following receipt of Landlord's
notice to deliver to Landlord written notification of Tenant's agreement to
lease from Landlord such new building upon the same terms and conditions as
set forth in Landlord's notice. In the event Tenant fails to deliver notice
of acceptance within such ten (10) business day period, or if Landlord and
Tenant are unable to agree upon any of the terms of the lease agreement for
such premises after negotiating in good faith, Tenant shall be deemed to have
waived any right to lease such new building; provided, however, that in the
event Landlord does not lease such new building within one-hundred eighty
(180) days thereafter, any proposed lease, for any purpose other than for
parking, storage or placement of temporary trailers, shall again be subject
to the provisions of this Section 3.
4. MISCELLANEOUS:
4.1 This Amendment shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of
the parties hereto shall be construed and enforced in accordance with, and
governed by, the laws of the State of California.
7
4.2 This Amendment is the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This Amendment
may be amended only by an agreement in writing, signed by the parties hereto.
4.3 This Amendment is binding upon and shall inure to the benefit
of the parties hereto, their respective agents, employees, representatives,
officers, directors, divisions, subsidiaries, affiliates, assigns, heirs,
successors in interest and shareholders.
4.4 Each party has cooperated in the drafting and preparation of
this Amendment. Hence, in any construction to be made of this Amendment, the
same shall not be construed against any party.
4.5 Each term of this Amendment is contractual and not merely a
recital.
4.6 This Amendment may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with
other signed counterparts, shall constitute one Amendment, which shall be
binding upon and effective as to all parties.
4.7 The unenforceability of a portion of this Amendment shall not
affect the enforceability of the remainder of this Amendment.
4.8 The parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary or desirable to carry
out the provisions of this Amendment.
4.9 Except as specifically amended or modified by this Amendment,
the Lease (including, without limitation, Tenant's expansion and extension
rights contained in the Lease as modified hereby) remains in full force and
effect.
4.10 EACH PARTY ACKNOWLEDGES THAT IT HAS HAD ADEQUATE OPPORTUNITY
TO CONSULT WITH LEGAL COUNSEL OF ITS CHOOSING IN CONNECTION WITH THE
EXECUTION HEREOF AND HAS DONE SO, OR VOLUNTARILY ELECTED NOT TO DO SO.
8
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first written above.
"TENANT"
SEQUANA THERAPEUTICS, INC.
a California corporation
By: /s/ M. Xxxxx Xxxxx
--------------------------
Its: VP, CFO
--------------------------
"LANDLORD"
ALEXANDRIA REAL ESTATE EQUITIES,
INC., formerly known as HEALTH
SCIENCE PROPERTIES, INC.,
a Maryland corporation
By: /s/ [ILLEGIBLE]
-----------------------------
Its:
-----------------------------
9
THIRD AMENDMENT TO EXPANSION LEASE
THIS THIRD AMENDMENT TO EXPANSION LEASE ("AMENDMENT"), dated and
effective as of August 24, 1998 (the "EFFECTIVE DATE"), is entered into by
and between SEQUANA THERAPEUTICS, INC., a California corporation, doing
business as AXYS PHARMACEUTICALS, INC. ("TENANT"), and XXX-00000 XXXXX XXXXXX
XXXXX, LLC, a Delaware limited liability company, successor in interest to
ALEXANDRIA REAL ESTATE EQUITIES, INC., formerly HEALTH SCIENCE PROPERTIES,
INC., a Maryland corporation ("LANDLORD") in connection with the following:
A. Landlord and Tenant are parties to that certain Expansion Lease,
dated as of November 20, 1995, as amended by that certain First Amendment to
Expansion Lease dated as of October __, 1996, and by that certain Second
Amendment to Expansion Lease dated as of May 20, 1997 (as amended, the
"LEASE"), pursuant to which Tenant leases from Landlord certain premises (the
"DEMISED PREMISES") in a building located at 00000 Xxxxx Xxxxxx Xxxxx Xxxx,
Xx Xxxxx, Xxxxxxxxxx (the "BUILDING"), and more particularly described in the
Lease. All capitalized terms used but not otherwise defined herein shall have
the meanings given them in the Lease.
B. Landlord has agreed, among other things, to lease to Tenant the suite
in the Building currently designated as Suite 100, as outlined on Exhibit A
attached hereto (the "ADDITIONAL SPACE"), and Tenant has agreed to accept
such Additional Space.
C. Landlord and Tenant now desire to amend the Lease to reflect the
lease of the Additional Space to Tenant upon the terms and conditions set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. AMENDMENT TO LEASE.
1.1 Effective from and after the Effective Date, Exhibit A-2 to the
Lease is hereby replaced in its entirety with Exhibit B attached hereto.
1.2 Section 2.1.2 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"Designation of Demised Premises:
Suite Floor
----- -----
1. Suite 100 First
2. Xxxxxx 000 & 000-X Xxxxx
0. Xxxxx 000 Xxx. First
4. Xxxxx 000 Xxxxxx
0. Xxxxx 000 Second
6. Suite 210 Exp. Second
7. Xxxxx 000 Xxxxxx
0. Xxxxx 000 Second
9. Suite 280 Second
10. Suite 290 Second
1.3 Section 2.1.3(a) of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Rentable Area of the Demised Premises: 60,056 total sq. ft. as
follows:
1. Suite 100: 4,508 sq. ft.
2. Suites 160 & 160-A: 25,063 sq. ft.
3. Suite 160 Exp.: 1,105 sq. ft.
4. Suite 200: 5,821 sq. ft.
5. Suite 210: 2,558 sq. ft.
6. Suite 210 Exp.: 632 sq. ft.
7. Suite 220: 4,403 sq. ft.
8. Suite 250: 2,981 sq. ft.
9. Suite 280: 5,546 sq. ft.
10. Suite 290: 7,439 sq. ft."
1.4 Section 2.1.3(b) of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Rentable Area of Building: 86,962 sq. ft."
1.5 Section 2.1.3(c) of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"Useable Area of the Demised Premises: 52,638 total sq. ft. as
follows:
1. Suites 100: 3,922 sq. ft.
2. Suites 160 & 160-A: 22,339 sq. ft.
3. Suite 160 Exp.: 962 sq. ft.
4. Suite 200: 4,992 sq. ft.
5. Suite 210: 2,194 sq. ft.
6. Suite 210 Exp.: 541 sq. ft.
7. Suite 220: 3,780 sq. ft.
8. Suite 250: 2,515 sq. ft.
9. Suite 280: 4,866 sq. ft.
10. Suite 290: 6,527 sq. ft."
1.6 Section 2.1.4 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"Basic Annual Rent: For all of the Demised Premises: (60,056 sq. ft.)
x ($1.8567 per sq. ft.) x (12 months) = $1,338,047.68."
1.7 Section 2.1.5 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"Monthly Rental Installments of Basic Annual Rent: For all of the
Demised Premises: (60,056 sq. ft.) x ($1.8567 per sq. ft.) = $111,503.97."
1.8 Section 2.1.6 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"Tenant's Pro Rata Share of the Building: 69.06%"
1.9 Section 2.1.10 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"Address for Rent Payment:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Accounts Receivable
Address for Notices to Landlord:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Address for Notices to Tenant:
11099 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx, 00000"
2. IMPROVEMENTS; COMMENCEMENT.
2.1 Tenant acknowledges that: (i) the occupancy of Suite 100 is
limited to a maximum of 30 persons as a result of the current exiting from
such Suite, and (ii) a second one hour fire rated exit cannot practically be
provided at this time. Landlord and Tenant agree that Landlord shall pay one
half the cost (not to exceed $8,000) of providing a non-fire rated exit as
described on the attached Exhibit C. In addition, Landlord shall provide to
Tenant an allowance of $21,591.00 to be used by Tenant for improvements to
Suite 100. Upon Landlord's payment of such amount at the direction of Tenant
for such improvements to Suite 100, Landlord shall, for all purposes of the
Lease be deemed to have fully discharged all of its obligations under Section
14.1 of the Lease with respect to Suite 100. Tenant acknowledges and agrees
that Landlord's sole obligation under Section 14.1 of the Lease with respect to
Suite 100 shall be to make such allowance available to Tenant.
2.2 Notwithstanding anything to the contrary contained herein,
Tenant shall have no obligation to pay Rent or perform any other obligation
of the Lease with respect to Suite 100 until 30 days after Landlord tenders
possession of Suite 100 to Tenant.
3. MISCELLANEOUS:
3.1 This Amendment shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of
the parties hereto shall be construed and enforced in accordance with, and
governed by, the laws of the State of California.
3.2 This Amendment is the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This Amendment
may be amended only by an agreement in writing, signed by the parties hereto.
3.3 This Amendment is binding upon and shall inure to the benefit
of the parties hereto, their respective agents, employees, representatives,
officers, directors, divisions, subsidiaries, affiliates, assigns, heirs,
successors in interest and shareholders.
3.4 Each party has cooperated in the drafting and preparation of
this Amendment. Hence, in any construction to be made of this Amendment, the
same shall not be construed against any party.
3.5 Each term of this Amendment is contractual and not merely a
recital.
3.6 This Amendment may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other
signed counterparts, shall constitute one Amendment, which shall be binding
upon and
effective as to all parties.
3.7 The unenforceability of a portion of this Amendment shall not
affect the enforceability of the remainder of this Amendment.
3.8 The parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary or desirable to carry
out the provisions of this Amendment.
3.9 Except as specifically amended or modified by this Amendment,
the Lease (including, without limitation, the First Amendment and the Second
Amendment) remains in full force and effect.
3.10 EACH PARTY ACKNOWLEDGES THAT IT HAS HAD ADEQUATE OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL OF ITS CHOOSING IN CONNECTION WITH THE EXECUTION
HEREOF AND HAS DONE SO, OR VOLUNTARILY ELECTED NOT TO DO SO.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"TENANT"
SEQUANA THERAPEUTICS, INC.,
a California corporation
By: /s/ Illegible
------------------------------------
Its: Sr. VP & CFO
------------------------------------
"LANDLORD"
ARE -- 11099 NORTH XXXXXX XXXXX, LLC, a
Delaware limited liability company
BY: ALEXANDRIA REAL ESTATE EQUITIES,
INC., a Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
--------------------------------
Its: General Counsel
--------------------------------
Exhibit "A"
[FLOOR PLAN]
Floor One
Exhibit "B"
[FLOOR PLAN]
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, Xxxxxxxxxx
Floor One
Exhibit "C"
[FLOOR PLAN]
PARTIAL 1ST FLOOR
ARE/BUILDING 7 STUDY
Not to Scale 0-00-00
XXXXXX XXXXXXXXX TO EXPANSION LEASE
THIS FOURTH AMENDMENT TO EXPANSION LEASE ("AMENDMENT"), dated and
effective as of March 31, 1999 (the "EFFECTIVE DATE"), is entered into by and
between SEQUANA THERAPEUTICS, INC., a California corporation, doing business
as AXYS PHARMACEUTICALS, INC. ("TENANT"), and ARE - 11099 NORTH XXXXXX XXXXX,
LLC, a Delaware limited liability company, successor-in-interest to
ALEXANDRIA REAL ESTATE EQUITIES, INC., formerly HEALTH SCIENCE PROPERTIES,
INC., a Maryland corporation ("LANDLORD") in connection with the following:
A. Landlord and Tenant are parties to that certain Expansion Lease,
dated as of November 20, 1995, as amended by that certain First Amendment to
Expansion Lease dated as of October__, 1996, by that certain Second Amendment
to Expansion Lease dated as of May 20, 1997, and by that certain Third
Amendment to Expansion Lease ("THIRD AMENDMENT") dated as of August 24, 1998
(as amended, the "LEASE"), pursuant to which Tenant leases from Landlord
certain premises (the "DEMISED PREMISES") in a building located at 00000
Xxxxx Xxxxxx Xxxxx Xxxx, Xx Xxxxx, Xxxxxxxxxx (the "BUILDING"), and more
particularly described in the Lease. All capitalized terms used but not
otherwise defined herein shall have the meanings given them in the Lease.
B. Landlord has agreed to provide a tenant improvement allowance to
Tenant for a portion of the Demised Premises, conditioned upon Tenant
repaying such tenant improvement allowance over the remainder of the term of
the Lease, and Tenant has agreed to accept such tenant improvement allowance
upon such condition.
C. Landlord and Tenant now desire to amend the Lease to reflect
Landlord's provision of the tenant improvement allowance to and the amortized
repayment thereof by Tenant upon the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. AMENDMENTS TO LEASE.
1.1 Section 4.6 of the Lease is hereby amended by (i) adding
the title "Tenant Improvement Allowances:" at the beginning of such section
(after the number of the section), (ii) renumbering the existing text of
Section 4.6 as Section 4.6(a), (iii) changing all existing references in the
Lease from "Tenant Improvements" to "Suite 160 & 210 Tenant Improvements,"
(iv) changing all existing references in the Lease from "TI Allowance" to
"Suite 160 & 210 TI Allowance," and (v) adding the following as Section
4.6(b):
"(b) Landlord shall provide Tenant with a tenant improvement
allowance (the "Suite 100 TI Allowance") of up to Three Hundred Thousand
Dollars ($300,000) for tenant improvements which Tenant desires to make to
Suite 100 (the "Suite 100 TI's"). Such amount shall be paid by Landlord to
Tenant in one lump sum payment upon: (i) lien free completion of the Suite
100 TI's, (ii) Tenant's acceptance thereof from the contractor or contractors
performing such work, and (iii) presentation to Landlord of lien waivers,
receipts for payment and such other evidence of the payment in full of all
costs and expenses of the Suite 100 TI's as Landlord shall reasonably
request. If the total cost of the Suite 100 TI's exceeds the Suite 100 TI
Allowance, the overage shall be the sole responsibility of Tenant, and shall
be at Tenant's sole cost and expense. Except for the payment of the Suite 100
TI Allowance and as set forth in the Third Amendment, Landlord shall have no
obligation or liability of any kind with respect to the Suite 100 TI's, which
shall be subject to all of the approvals and conditions described in Article
17 hereof with respect to Alterations undertaken by Tenant."
1.2 Section 5.2 of the Lease is hereby amended in its
entirety, effective from and after the Effective Date, to read as follows:
"5.2 In addition to Basic Annual Rent, Tenant agrees to pay to
Landlord as additional rent ("Additional Rent") at times hereinafter
specified in this Lease (i) Tenant's pro rata share ("Tenant's Pro Rata
Share"), as set forth in Section 2.1.6 and as may be subsequently amended, of
Operating Expenses as provided in Article 7, (ii) commencing June 1, 1999,
tenant improvement rent equal to the actual amount of the Suite 100 TI
Allowance actually paid by Landlord, fully amortized, with interest at a rate
of 13% per annum, in 31 equal monthly installments commencing June 1, 1999
and ending December 1, 2001 ($11,445.04 per month if the full $300,000
Suite 100 TI Allowance is used by Tenant), and (iii) any other amounts that
Tenant assumes or agrees to pay under the provisions of this Lease that are
owed to Landlord, including without limitation the cost of utilities not paid
by Tenant directly to the supplier and any and all other sums that may become
due by reason of any default of Tenant or failure on Tenant's part to comply
with the agreements, terms, covenants and conditions of this Lease to be
performed by Tenant, after notice and lapse of applicable cure period."
2. MISCELLANEOUS:
2.1 This Amendment shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of
the parties hereto shall be construed and enforced in accordance with, and
governed by, the laws of the State of California.
2.2 This Amendment is the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous oral and written agreements and discussions. This
Amendment may be amended only by an agreement in writing, signed by the
parties hereto.
2.3 This Amendment is binding upon and shall inure to the
benefit of the parties hereto, their respective agents, employees,
representatives, officers, directors, divisions, subsidiaries, affiliates,
assigns, heirs, successors in interest and shareholders.
2.4 Each party has cooperated in the drafting and preparation
of this Amendment. Hence, in any construction to be made of this Amendment,
the same shall not be construed against any party.
2.5 Each term of this Amendment is contractual and not merely
a recital.
2.6 This Amendment may be executed in counterparts, and when
each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other
signed counterparts, shall constitute one Amendment, which shall be binding
upon and effective as to all parties.
2.7 The unenforceability of a portion of this Amendment shall
not affect the enforceability of the remainder of this Amendment.
2.8 The parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary or desirable to carry
out the provisions of this Amendment.
2.9 Except as specifically amended or modified by this
Amendment, the Lease (including, without limitation, the First Amendment, the
Second Amendment, and the Third Amendment) remains in full force and effect.
2.10 EACH PARTY ACKNOWLEDGES THAT IT HAS HAD ADEQUATE
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF ITS CHOOSING IN CONNECTION WITH
THE EXECUTION HEREOF AND HAS DONE SO, OR VOLUNTARILY ELECTED NOT TO DO SO.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"TENANT"
SEQUANA THERAPEUTICS, INC., a California corporation,
d/b/a Axys Pharmaceuticals, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Its: President & COO
-------------------------------------------------
"LANDLORD"
ARE - 11099 NORTH XXXXXX XXXXX, LLC, a Delaware
limited liability company
BY: ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland
corporation
By: /s/ Xxxx Xxxx Xxxxxxx
------------------------------------------
Its: GENERAL COUNSEL
------------------------------------------
FIFTH AMENDMENT TO EXPANSION LEASE
THIS FIFTH AMENDMENT TO EXPANSION LEASE ("AMENDMENT"), dated and
effective as of October __, 1999 (the "EFFECTIVE DATE"), is entered into by
and between SEQUANA THERAPEUTICS, INC., a California corporation, doing
business as AXYS PHARMACEUTICALS, INC. ("TENANT"), and ARE - 11099 NORTH
XXXXXX XXXXX, LLC, a Delaware limited liability company,
successor-in-interest to ALEXANDRIA REAL ESTATE EQUITIES, INC., formerly
HEALTH SCIENCE PROPERTIES, INC., a Maryland corporation ("LANDLORD") in
connection with the following:
A. Landlord and Tenant are parties to that certain Expansion Lease,
dated as of November 20, 1995, as amended by that certain First Amendment to
Expansion Lease dated as of October __, 1996, by that certain Second
Amendment to Expansion Lease dated as of May 20, 1997, by that certain Third
Amendment to Expansion Lease dated as of August 24, 1998, and by that certain
Fourth Amendment to Expansion Lease dated as of March __, 1999 (as amended,
the "LEASE"), pursuant to which Tenant leases from Landlord certain premises
(the "DEMISED PREMISES") in a building located at 00000 Xxxxx Xxxxxx Xxxxx
Xxxx, Xx Xxxxx, Xxxxxxxxxx (the "BUILDING"), and more particularly described
in the Lease. All capitalized terms used but not otherwise defined herein
shall have the meanings given them in the Lease.
B. Landlord has agreed to provide a tenant improvement allowance to
Tenant for a portion of the Demised Premises, conditioned upon Tenant
repaying such tenant improvement allowance over the remainder of the term of
the Lease, and Tenant has agreed to accept such tenant improvement allowance
upon such condition.
C. Landlord and Tenant now desire to amend the Lease and to entirely
replace and supercede the Fourth Amendment to reflect Landlord's provision of
the tenant improvement allowance to and the amortized repayment thereof by
Tenant upon the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. AMENDMENTS TO LEASE.
1.1 Section 4.6 of the Lease is hereby amended by (i) adding the
title "Tenant Improvement Allowances:" at the beginning of such section
(after the number of the section), (ii) renumbering the existing text of
Section 4.6 as Section 4.6(a), (iii) changing all existing references in the
Lease from "Tenant Improvements" to "Suite 160 & 210 Tenant Improvements,"
(iv) changing all existing references in the Lease from "TI Allowance" to
"Suite 160 & 210 TI Allowance," and (v) adding the following as Section
4.6(b):
"(b) Landlord shall provide Tenant with a tenant improvement
allowance (the "Suite 100 TI Allowance") of up to Two Hundred Ninety-One
Thousand, Eight Hundred Fifty-Eight and 44/100ths Dollars ($291,858.44) for
tenant improvements which Tenant desires to make to Suite 100 (the "Suite 100
TI's"). Such amount shall be paid by Landlord to Tenant in one lump sum
payment upon: (i) lien free completion of the Suite 100 TI's, (ii) Tenant's
acceptance thereof from the contractor or contractors performing such work,
and (iii) presentation to Landlord of lien waivers, receipts for payment and
such other evidence of the payment in full of all costs and expenses of the
Suite 100 TI's as Landlord shall reasonably request. If the total cost of the
Suite 100 TI's exceeds the Suite 100 TI Allowance, the overage shall be the
sole responsibility of Tenant, and shall be at Tenant's sole cost and
expense. Except for the payment of the Suite 100 TI Allowance and as set
forth in the Third Amendment, Landlord shall have no obligation or liability
of any kind with respect to the Suite 100 TI's, which shall be subject to all
of the approvals and conditions described in Article 17 with hereof with
respect to Alterations undertaken by Tenant."
[11099 X. Xxxxxx Pines Road]
[Axys Pharmaceuticals]
1.2 Section 5.2 of the Lease is hereby amended in its entirety,
effective from and after the Effective Date, to read as follows:
"5.2 In addition to Basic Annual Rent, Tenant agrees to pay to Landlord
as additional rent ("Additional Rent") at times hereinafter specified in this
Lease (i) Tenant's pro rata share ("Tenant's Pro Rata Share"), as set forth
in Section 2.1.6 and as may be subsequently amended, of Operating Expenses as
provided in Article 7, (ii) commencing October 1, 1999, tenant improvement
rent equal to Two Hundred Ninety-One Thousand, Eight Hundred Fifty-Eight and
44/100ths Dollars ($291,858.44), fully amortized, with interest at a rate of
13% per annum, in 27 equal monthly installments commencing October 1, 1999
and ending December 1, 2001 ($12,525.46 per month), and (iii) any other
amounts that Tenant assumes or agrees to pay under the provisions of this
Lease that are owed to Landlord, including without limitation the cost of
utilities not paid by Tenant directly to the supplier and any and all other
sums that may become due by reason of any default of Tenant or failure on
Tenant's part to comply with the agreements, terms, covenants and conditions
of this Lease to be performed by Tenant, after notice and lapse of applicable
cure period."
2. MISCELLANEOUS:
2.1 This Amendment shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of
the parties hereto shall be construed and enforced in accordance with, and
governed by, the laws of the State of California.
2.2 This Amendment is the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. This Amendment
may be amended only by an agreement in writing, signed by the parties hereto.
2.3 This Amendment is binding upon and shall inure to the benefit of
the parties hereto, their respective agents, employees, representatives,
officers, directors, divisions, subsidiaries, affiliates, assigns, heirs,
successors in interest and shareholders.
2.4 Each party has cooperated in the drafting and preparation of
this Amendment. Hence, in any construction to be made of this Amendment, the
same shall not be construed against any party.
2.5 Each term of this Amendment is contractual and not merely a
recital.
2.6 This Amendment may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other
signed counterparts, shall constitute one Amendment, which shall be binding
upon and effective as to all parties.
2.7 The unenforceability of a portion of this Amendment shall not
affect the enforceability of the remainder of this Amendment.
2.8 The parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary or desirable to carry
out the provisions of this Amendment.
2.9 Except as specifically amended or modified by this Amendment,
the Lease (including, without limitation, the First Amendment, the Second
Amendment, and the Third Amendment) remains in full force and effect.
2.10 This Fifth Amendment entirely replaces and supercedes the
Fourth Amendment, which is hereby terminated and of no further force or
effect.
[11099 X. Xxxxxx Pines Road]
2 [Axys Pharmaceuticals]
2.11. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD
ADEQUATE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF ITS CHOOSING IN
CONNECTION WITH THE EXECUTION HEREOF AND HAS DONE SO, OR VOLUNTARILY ELECTED
NOT TO DO SO.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"TENANT"
SEQUANA THERAPEUTICS, INC., a California
corporation, d/b/a Axys Pharmaceuticals, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Its:
----------------------------------
XXXXXX X. XXXXXX
PRESIDENT & COO
"LANDLORD"
ARE - 11099 NORTH XXXXXX XXXXX, LLC, a Delaware
limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, INC., a
Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
-----------------------------------
Its:
----------------------------------
XXXX XXXX XXXXXXX
GENERAL COUNSEL
[11099 X. Xxxxxx Pines Road]
[Axys Pharmaceuticals]
Exhibit B
[FLOOR PLAN]
Exhibit C
FIRST FLOOR OFFICE FURNITURE
ROOM FURNITURE
1 U-shaped desk, overhead bookshelf, chair, table, 6 visitor's chairs, wood-framed white board, large cabinet
----------------------------------------------------------------------------------------------------------------------------------
2 desk, chair, 2 visitor's chairs, lateral file, small bookcase, credenza, round table
----------------------------------------------------------------------------------------------------------------------------------
3 U-shaped desk, chair, 6 visitor's chairs, lateral file, bookcase, small round table
----------------------------------------------------------------------------------------------------------------------------------
4 L-shaped desk, chair, 5 visitor's chairs, 2 small bookcases, 1 tall bookcase, small credenza, small round table
----------------------------------------------------------------------------------------------------------------------------------
5 L-shaped desk, chair, table, 4 visitor's chairs, 2 bookcases, small credenza
----------------------------------------------------------------------------------------------------------------------------------
10 3 desks, 3 chairs, 4-drawer file, large bookcase, 2-drawer file, lamp
----------------------------------------------------------------------------------------------------------------------------------
11 2 desks, 3 chairs, large bookcase
----------------------------------------------------------------------------------------------------------------------------------
12 desk, chair, 2-drawer lateral file, shelving unit, 1 visitor's chair
----------------------------------------------------------------------------------------------------------------------------------
13 L-shaped desk, chair, 5 visitor's chairs, round table
----------------------------------------------------------------------------------------------------------------------------------
14 5 tables, 5 chairs, 5 2-drawer files
----------------------------------------------------------------------------------------------------------------------------------
49 4 tables, 2 chairs, 2-drawer file, 1 bookcase
----------------------------------------------------------------------------------------------------------------------------------
55 L-shaped desk, chair, 4-drawer file, 2 2-drawer files, visitor's chair, bookcase, 2-drawer lateral
----------------------------------------------------------------------------------------------------------------------------------
57 L-shaped desk, chair, visitor's chair, lateral file, bookcase
----------------------------------------------------------------------------------------------------------------------------------
58 L-shaped desk, chair, 2 visitor's chairs, bookcase, 3 lateral files, round table
----------------------------------------------------------------------------------------------------------------------------------
59 L-shaped desk, chair, 3 visitor's chairs, bookcase, lateral file, round table, 2-drawer file
----------------------------------------------------------------------------------------------------------------------------------
60 U-shaped desk, chair, 2 visitor's chair, lateral file, 2 bookcases
----------------------------------------------------------------------------------------------------------------------------------
Xxxxx 2 round tables, 4 chairs, small cabinet, library shelving
----------------------------------------------------------------------------------------------------------------------------------
cube 1 L-shaped desk, chair, visitor's chair, 4-drawer file, 2-drawer file
----------------------------------------------------------------------------------------------------------------------------------
cube 2 L-shaped desk, chair, visitor's chair, 4-drawer file, 2-drawer file
----------------------------------------------------------------------------------------------------------------------------------
cube 3 L-shaped desk, chair, 2 cabinets, visitor's chair
----------------------------------------------------------------------------------------------------------------------------------
cube 4 L-shaped desk, chair, visitor's chair, small cabinet, 5 4-drawer laterals
----------------------------------------------------------------------------------------------------------------------------------
Hallways 6 glass display boards, lateral file
----------------------------------------------------------------------------------------------------------------------------------
Lunchroom 3 tables, 12 chairs
----------------------------------------------------------------------------------------------------------------------------------
XxXxxxxxxx round table, 7 chairs, small cabinet
----------------------------------------------------------------------------------------------------------------------------------
Mendel conference table, 19 leather chairs, cabinet, side chairs (9 green, 10 black, 4 metal, 2 blue)
----------------------------------------------------------------------------------------------------------------------------------
Reception coffee table, 2 visitor's chairs, desk chair
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx oval table, 10 chairs, small cabinet, table
----------------------------------------------------------------------------------------------------------------------------------
LABS 58 9 lab chairs, 1 step stool, metal cabinet, plastic computer desk
----------------------------------------------------------------------------------------------------------------------------------
54 13 lab chairs, 1 step stool
----------------------------------------------------------------------------------------------------------------------------------
53 1 lab chair, 1 desk
----------------------------------------------------------------------------------------------------------------------------------
52 1 lab chair
----------------------------------------------------------------------------------------------------------------------------------
50 4 lab chairs
----------------------------------------------------------------------------------------------------------------------------------
48 3 lab chairs, 15 step stools
----------------------------------------------------------------------------------------------------------------------------------
29B 2 lab chairs
----------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "ASSIGNMENT") dated as of July 12,
2000, is by and between AXYS PHARMACEUTICALS, INC., a Delaware corporation
("ASSIGNOR"), and SENOMYX, INC. (formerly known as Ambryx, Inc.), a Delaware
corporation ("ASSIGNEE").
RECITALS
--------
A. Assignor is the current tenant under that certain Lease
dated as of November 20, 1995, as amended by a letter agreement dated
November 20, 1995, a First Amendment to Expansion Lease dated October ___,
1996, a Second Amendment to Expansion Lease dated May ___, 1997, a Third
Amendment to Expansion Lease dated August 24, 1998, a Fourth Amendment to
Expansion Lease dated March 31, 1999 and a Fifth Amendment to Expansion Lease
dated October ___, 1999, by and between XXX-00000 Xxxxx Xxxxxx Xxxxx, LLC, a
Delaware Limited Liability Company, successor in interest to Alexandria Real
Estate Equities, Inc., formerly known as Health Science Properties, Inc., a
Maryland corporation as landlord ("LANDLORD"), and Assignor, as tenant
(collectively, the "LEASE"), which Lease affects that certain real property
commonly known as Xxxxx 000, Xxxxx 000X, Xxxxx 000 Exp., Xxxxx 000, Xxxxx
000, Xxxxx 000 Exp., Xxxxx 000, Xxxxx 000, Xxxxx 000 and Suite 290 within the
building located at 00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xx Xxxxx, Xxxxxxxxxx and
more particularly described in the Lease (the "LEASED PREMISES"). A true and
complete copy of the Lease is attached hereto as EXHIBIT A.
B. Assignor is the sublessor and Assignee is the sublessee under that
certain Sublease dated as of December 20, 1999, which affects that certain real
property commonly known as Suite 160 within the Leased Premises (the
"SUBLEASE").
C. Assignor desires to assign to Assignee all of its interest as the
tenant under the Lease and Assignee desires to accept the assignment thereof.
D. Assignor and Assignee desire to terminate the Sublease.
E. In addition to the Sublease, Assignor has sublet portions of the
Premises pursuant to two subleases, one dated February 1, 1999 between
Assignor and PPGx, Inc., as amended by letter agreements dated July 1, 1999
and November 8, 1999 (the "PPGx SUBLEASE"), and another dated April 1, 1999
between Assignor and Akkadix, as successor to Xyris, Inc., as amended by
letter agreements dated August 1, 1999 and November 8, 1999 (the "XYRIS
SUBLEASE"). The PPGx Sublease and the Xyris Sublease are collectively
referred to herein as the "APPROVED SUBLEASES." True and complete copies of
the Approved Subleases are attached hereto as EXHIBIT B.
NOW, THEREFORE, for mutual valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
1. Assignor hereby assigns to Assignee all of Assignor's right, title and
interest in, to and under the Lease and the Approved Subleases, including,
subject to Paragraph 4 below, the
right to any and all security deposits, and agrees to indemnify, defend and hold
Assignee harmless from and against any and all losses, costs, claims, damages,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees and expenses, arising out of Assignor's obligations under the Lease and the
Approved Subleases originating prior to the date of this Assignment. Assignor
shall pay to Assignee any Rent (as such term is defined in the Approved
Subleases) received by Assignor under the Approved Subleases attributable to
periods after the date of this Assignment.
2. Assignee hereby assumes all of the tenant's obligations under the
Lease and the Approved Subleases and agrees to indemnify, defend and hold
Assignor harmless from and against any and all losses, costs, claims,
damages, liabilities and expenses, including, without limitation, reasonable
attorneys' fees and expenses, arising out of the tenant's obligations under
the Lease and the Approved Subleases originating on or after the date of this
Assignment. Assignee shall pay to Assignor any Rent (as such term is defined
in the Approved Subleases) received by Assignee under the Approved Subleases
attributable to periods prior to the date of this Assignment.
3. The Sublease is hereby terminated.
4. Within 5 business days of execution of this Assignment, Assignee
shall pay to Assignor the amount of $73,926.80, which amount is the
difference between the security deposit paid by Assignor under the Lease
($108,000) and the security deposit paid by Assignee under the Sublease
($34,073.20). If Assignee fails to pay such amount to Assignor within such
time period, Assignor shall have the right to terminate this Assigment.
5. Assignor has not sublet, assigned or hypothicated Assignor's
leasehold interest in the Leased Premises other than pursuant to the Sublease
and the Approved Subleases, and, together, the Sublease and the Approved
Subleases cover all of the space leased by Assignor under the Lease. Assignor
represents and warrants to Assignee that upon assumption of Assignor's
obligations under the Lease, Assignee will succeed to Assignor's interest
under the Approved Subleases and that no consents to this Assignment are
required under the Approved Subleases.
6. Assignor represents to Assignee that the Lease is in full force
and effect, and that no default or event that, with the passing of time or
the giving of notice or both, would constitute a default, exists on the part
of Assignee, or, to the best of Assignor's knowledge, Landlord. Assignor
represents to Assignee that the Approved Subleases are in full force and
effect, and that no default or event that, with the passing of time or the
giving of notice or both, would constitute a default, exists on the part of
Assignor, or, to the best of Assignor's knowledge any of the tenants under
the Approved Subleases.
7. Notwithstanding anything to the contrary herein, this Assignment
shall be contingent upon (i) consent to this Assignment by Landlord, and (ii)
the execution by all tenants under the Approved Subleases of estoppel
certificates in substanially the form attached hereto as EXHIBIT C.
Notwithstanding anything to the contrary herein, in the event that Assignor
is unable to procure and deliver to Assignee the foregoing, as required,
within fifteen (15) days following
2
mutual execution hereof, then Assignee shall have the right until such delivery
to terminate this Assignment.
8. All improvements to be constructed on any portion of the Premises
have been completed, paid for, and accepted as may be required and the Leased
Premises are free of any liens that may be the responsibility of Assignor
under the Lease. To Assignor's actual knowledge, without inquiry, (i) the
Leased Premises are in good working order and repair, and (ii) any uses of
Hazardous Materials by Assignor or any occupant of the Leased Premises
claiming rights through Assignor are in compliance with all applicable laws.
9. Assignor represents and warrants that it has dealt with no broker
in connection with this Assignment and the transactions contemplated herein.
Assignor shall indemnify, protect, defend and hold Assignee harmless from all
costs and expenses (including, reasonable attorneys' fees) arising from or
relating to a breach of the foregoing representation and warranty.
10. Each party shall protect, defend and hold the other harmless,
against and from any and all claims, demands, losses, liabilities, damages,
costs and expenses (including, without limitation, attorney's and
consultants' fees and the costs and expenses of defense) arising or resulting
from its breach of any covenant representation or warranty under this
Assignment.
11. In the event of any litigation between Assignor and Assignee
arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein,
the losing party shall pay the prevailing party's costs and expenses of such
litigation, including, without limitation, reasonable attorneys' fees and
expenses.
12. This Assignment shall be binding on and inure to the benefit of
the parties hereto, their heirs, executors, administrators, successors in
interest and assigns.
13. This Assignment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment as of the date first above written.
ASSIGNOR:
AXYS PHARMACEUTICALS, INC.,
a Delaware corporation
By: /s/ Will X. Xxxxxx
-----------------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
---------------------------------------------
Title: Senior Vice President
--------------------------------------------------
3
ASSIGNEE;
SENOMYX, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Print Name: Xxxx X. Xxxxxxx
--------------------------
Title: President & CEO
-------------------------------
4
EXHIBIT A
LEASE
See attached.
CONSENT TO ASSIGNMENT
This Consent to Assignment (this "CONSENT") is made as of July 12, 2000,
by and among XXX-00000 XXXXX XXXXXX XXXXX, LLC, a Delaware limited liability
company, having an address of 000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 ("LANDLORD"), AXYS PHARMACEUTICALS, INC., a
Delaware corporation, having an address of 000 Xxxxxxx Xxx, Xxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("TENANT"), and SENOMYX, INC., a Delaware
corporation, having an address of 00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000 ("ASSIGNEE"), with reference to the following
Recitals.
R E C I T A L S
A. Landlord and Tenant have entered into that certain Expansion
Lease, dated as of November 20, 1995, as amended by that certain letter
agreement dated November 20, 1995, that certain First Amendment to Expansion
Lease dated October, 1996, that certain Second Amendment to Expansion Lease
dated May, 1997, that certain Third Amendment to Expansion Lease dated August
24, 1998, that certain Fourth Amendment to Expansion Lease dated March 31,
1999 and that certain Fifth Amendment to Expansion Lease dated October, 1999
(collectively, the "LEASE"), wherein Landlord leased to Tenant certain
premises (the "PREMISES") commonly known as a portion of, and located at,
00000 Xxxxx Xxxxxx Xxxxx Road, and more particularly described in the Lease.
B. Tenant desires to assign its entire interest in the Lease, which
assignment is to include the Premises and any security deposit held by
Landlord thereunder, to Assignee, and Assignee desires to accept the
assignment thereof pursuant to the terms of that certain Assignment and
Assumption of Lease dated as of July 12, 2000 (the "ASSIGNMENT").
C. Tenant and Assignee desire to obtain Landlord's consent to the
Assignment pursuant to the terms of the Lease and Landlord desires to grant
its consent in exchange for certain consideration from Tenant and Assignee,
including, without limitation, the modifications to the Lease and Assignment
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord, Tenant and
Assignee each hereby agree:
1. DEFINITIONS. All initially-capitalized terms not otherwise defined
in this Consent shall have the meanings set forth in the Lease unless the
context clearly indicates otherwise.
2. CONSENT TO ASSIGNMENT. Landlord hereby consents to the Assignment,
subject to the condition that if Assignee elects, pursuant to Section 45 of
the Lease, to extend the term of the Lease beyond December 31, 2001, Landlord
and Assignee hereby agree that the Basic Annual Rent for the first year of
such initial renewal term shall be equal to $2.75 per rentable square foot
per month. Basic Annual Rent shall thereafter be adjusted as provided for in
the Lease. Assignee shall have all of the rights and obligations of Tenant
under the Lease notwithstanding the fact that some of such rights and
obligations may have been expressly personal to Tenant.
1
3. OTHER AGREEMENTS OF LANDLORD AND ASSIGNEE.
3.1 Assignee hereby agrees to provide Landlord the opportunity
to invest up to $500,000 in Assignee's next bona fide round of private equity
financing at the actual financing price pursuant to a separate letter
agreement dated of even date herewith (the "INVESTMENT AGREEMENT") entered
into by and between Landlord and Assignee. This Consent is expressly
conditioned upon the execution and delivery of the Investment Agreement in
the form previously agreed to by Landlord and Assignee.
3.2 Landlord hereby agrees to lend to Assignee, on the terms
and conditions set forth herein, an amount not to exceed $2,000,000 (the "TI
LOAN AMOUNT") for permanent, fixed improvements to the Premises which shall
remain in the Premises upon the expiration or earlier termination of the
Lease. Any such tenant improvements shall be Alterations and shall be
undertaken pursuant to Section 17 of the Lease. If Assignee wishes an advance
of all or any portion of the TI Loan Amount in connection with any
Alteration, Assignee shall, in addition to the documents to be provided to
Landlord pursuant to Section 17 of the Lease, deliver to Landlord a written
request for Landlord to fund all or a portion of the TI Loan Amount for such
Alteration; PROVIDED, HOWEVER, that no such request shall be for less than
$100,000. Landlord shall review the proposed Alteration and shall inform
Assignee, at the same time Landlord gives its consent, if any, to such
Alteration, what portion, if any, of such Alteration may be funded from the
TI Loan Amount. Thereafter, Landlord shall fund such amounts upon
presentation to Landlord of draw requests containing unconditional lien
waivers and such other documents as are customary for construction projects
in the San Diego area; PROVIDED, HOWEVER, that no such draw request shall be
for less than $100,000. Notwithstanding anything contained herein to the
contrary, Landlord shall have no obligation to fund any portion of the TI
Loan Amount after March 31, 2001, if Assignee fails on or before such date to
extend the Term of the Lease beyond December 21, 2001, and otherwise after
December 31, 2002. Assignee shall provide Landlord with "as-built" plans
promptly following completion of any Alterations to the Premises.
The TI Loan Amount shall be repaid by Assignee, with interest
at a rate of 12% per annum, on the earlier of (a) 5 years from the date of
the first advance of the TI Loan Amount and (b) December 31, 2006 (the "DUE
DATE"). Each monthly installment shall be (i) such amount of principal and
interest as shall amortize the then outstanding balance of the TI Loan Amount
in level installments of principal and interest by the Due Date, (ii) due and
payable on the same date that Rent is due under the terms of the Lease and
(iii) be considered Rent under the Lease. Assignee's failure to pay any such
monthly installment concurrently with Rent shall constitute a Default under
the Lease, subject to the cure period set forth in Section 24.4(b) of the
Lease. Notwithstanding anything contained herein to the contrary, upon the
termination or earlier expiration of the Lease, the entire unamortized
balance of the TI Loan Amount, together with any accrued but unpaid interest
thereon, shall be immediately due and payable by Assignee to Landlord and any
amount not immediately paid by Assignee to Landlord shall be subject to all
interest, penalties and other sums due Landlord for Assignee's failure to pay
Rent under the Lease.
3.3 If Agouron Pharmaceuticals, Inc. ("AGOURON") exercises its
renewal option pursuant to that certain lease dated July 25, 1995 between
Landlord and Agouron with respect to the portion of the Project described
therein, Landlord shall notify Assignee of such renewal within 30 days of
Agouron's notice to Landlord ("LANDLORD'S NOTICE"). Upon delivery of such
notification
2
by Landlord, Assignee shall have the one-time right to terminate (the
"TERMINATION RIGHT") the Lease, which Termination Right must be exercised by
March 31, 2002 and if not exercised by such date shall be deemed to have been
waived, by (i) delivering written notice to Landlord that Assignee is
exercising its Termination Right ("ASSIGNEE'S NOTICE") and (ii) concurrently
paying Landlord the entire unamortized amount, as of the date such
Termination Right is exercised, of the TI Loan Amount, together with any
accrued but unpaid interest thereon. If Assignee fails to deliver Assignee's
Notice and the payment described in the immediately preceding sentence to
Landlord within 30 days from the date of Landlord's Notice, Assignee shall be
deemed to have waived its Termination Right and the Lease shall continue in
full force and effect. If Assignee exercises its Termination Right, then the
Lease shall terminate on the date which is 12 months from the date of
Assignee's Notice except for those provisions in the Lease which specifically
provide for survival after the termination or expiration of the Lease.
3.4 Landlord hereby confirms that Assignee shall have the
right, with the consent of Landlord, which consent shall not be unreasonably
withheld or delayed, to place one sign with Assignee's name on the exterior
of the Building (the "BUILDING SIGN") and one sign with Assignee's name on
the Xxxxxx Xxxxx Road entrance to the Project (the "MONUMENT SIGN"). The
Building Sign and the Monument Sign shall be referred to herein collectively
as the "ASSIGNEE'S SIGN." The Assignee's Sign shall generally conform to the
size and design of signs in the area in which the Premises are located and
shall conform to Landlord's portfolio design criteria. Assignee shall be
solely responsible for all costs, fees, charges, expenses or other sums
related to Assignee's Sign, including without limitation, costs related to
(i) manufacture and installation of Assignee's Sign, (ii) removal of
Assignee's Sign upon the expiration or earlier termination of the Lease,
(iii) permits required by any governmental authority with respect to
Assignee's Sign, and (iv) assuming that Assignee's Sign conforms to all legal
requirements applicable to the Project; PROVIDED, HOWEVER, that Landlord
shall provide Assignee with an allowance of $10,000 towards the Monument Sign
as provided for in Section 4.7 of the Lease. Assignee acknowledges that
Landlord shall have the right to place its own monument sign at the Xxxxxx
Xxxxx Road entrance to the Project with respect to the office park in which
the Premises are located.
3.5 Landlord hereby agrees, at its expense, to (i) renovate
the circular drive located at the entrance to the Building, and (ii) install,
at its sole cost and expense, a fire alarm system in the Building (the "FIRE
ALARM SYSTEM"). Landlord shall complete such projects in due course
consistent with Landlord's schedule for such work at the Project, but in any
event no later than December 31, 2001, which date shall be extended one day
for each day that Landlord is unable to work on such projects because of
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, delays resulting from Tenant's security requirements
and other causes beyond the reasonable control of Landlord. Assignee hereby
grants Landlord and any of its employees, agents, consultants, contractors,
subcontractors, assignees or successors-in-interest, the right to enter the
Premises for purposes of designing and installing the Fire Alarm System.
Assignee acknowledges and agrees that the performance of the work described
in clause (i) and (ii) of this SECTION 3.5 may result in disruption of
Assignee's operations on the Premises; PROVIDED, HOWEVER, that (a) Landlord
shall provide Assignee with no less than 48 hours prior notice once upon
commencing such work, (b) Landlord's entry onto the Premises shall be subject
to Assignee's reasonable security requirements so long as such security
requirements do not interfere with Landlord's work and (c) Landlord shall use
commercially reasonable efforts
3
to minimize the disruption to Assignee's operations. If Landlord should fail
to perform its obligations under this SECTION 3.5 in a timely fashion,
Assignee shall not have the right to terminate the Lease or set-off any Rent
due under the Lease.
3.6 Upon expiration or earlier termination of the Lease,
Assignee shall return the Premises in the same condition as of the effective
date of the Assignment, excepting normal wear and tear and damage to the
Building due to casualty which Landlord has elected not to repair pursuant to
the Lease. In no event shall Assignee be required to remove any Alterations
or improvements that were constructed prior to the effective date of the
Assignment.
4. MISCELLANEOUS.
4.1 This Consent and the other agreements set forth herein
shall not be effective and the Assignment shall not be valid nor shall
Assignee take possession of the Premises unless and until Landlord shall have
received: (a) a fully executed counterpart of the Assignment, (b) a fully
executed counterpart of this Consent, and (c) reimbursement from Tenant for
all of Landlord's costs and expenses in preparing and negotiating this
Consent and the documents described herein.
4.2 Landlord neither approves nor disapproves the terms,
conditions and agreements contained in the Assignment, all of which shall be
subordinate and at all times subject to all of the covenants, agreements,
terms, provisions and conditions contained in the Lease and in this Consent.
4.3 Except as expressly set forth herein, neither this Consent
nor the Assignment shall be construed to modify, waive, impair, or affect any
of the terms, covenants or conditions contained in the Lease (including
Assignee's obligation to obtain any required consents for any other or future
assignments or sublettings), or to waive any breach thereof, or any rights or
remedies of Landlord under the Lease against any person, firm, association or
corporation liable for the performance thereof, or to enlarge or increase
Landlord's obligations or liabilities under the Lease (including, without
limitation, any liability to Tenant for any security deposit held by Landlord
under the Lease, and all interests in which have been assigned by Tenant to
Assignee), and all terms, covenants and conditions of the Lease are hereby
declared by each of Landlord, Tenant and Assignee to be in full force and
effect.
4.4 Notwithstanding anything in the Assignment to the contrary:
(a) Assignee does hereby expressly assume and agree
to be bound by and to perform and comply with, for the benefit of Landlord,
each and every obligation of Tenant under the Lease arising subsequent to
the date of the Assignment.
(b) Tenant and Assignee agree to each of the terms
and conditions of this Consent, and upon any conflict between the terms of
the Assignment or the Lease and this Consent, the terms of this Consent
shall control.
4.5 Upon a default by Assignee under the Lease, Landlord may
proceed directly against Assignee, Tenant or anyone else directly or
indirectly liable under the Lease without first exhausting Landlord's
remedies against any other person or entity liable thereon to Landlord. The
mention in this Consent of any particular remedy shall not preclude Landlord
from any other remedy
4
in law or in equity. Notwithstanding anything contained herein to the
contrary (a) Tenant shall not be liable for any portion of the TI Loan
Amount, (b) Tenant shall not be liable for any obligations under the Lease
arising after December 31, 2001 and (c) Tenant shall not be liable for any
obligations arising out of or related to the Investment Agreement.
4.6 Assignee and Tenant shall pay any broker commissions or fees
that may be payable as a result of the Assignment and Assignee and Tenant,
jointly and severally, hereby indemnify and agree to hold Landlord harmless
from and against any liability for any broker commissions or fees payable in
connection with the Assignment.
4.7 This Consent may not be changed orally, but only by an
agreement in writing signed by Landlord and the party against whom
enforcement of any change is sought.
4.8 This Consent may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken
together shall constitute but one and the same instrument.
4.9 This Consent and the legal relations between the parties
hereto shall be governed by and construed and enforced in accordance with the
internal laws of the State in which the Premises are located, without regard
to its principles of conflicts of law.
4.10 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, Tenant and Assignee may from time to time by written notice to the
other designate another address for receipt of future notices.
[remainder of page intentionally blank]
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IN WITNESS WHEREOF, Landlord, Tenant and Assignee have caused their duly
authorized representatives to execute this Consent as of the date first above
written.
LANDLORD: XXX-00000 XXXXX XXXXXX XXXXX, LLC,
a Delaware limited liability company
By: Alexandria Real Estate Equities, Inc.,
a Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
-------------------------------------
Its:
---------------------------------
XXXX XXXX XXXXXXX
GENERAL COUNSEL
TENANT: AXYS PHARMACEUTICALS, INC.,
a Delaware corporation
By: /s/ Will X. Xxxxxx
-----------------------------------------
Its: SERVICE PRESIDENT
----------------------------------
ASSIGNEE: SENOMYX, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Its: PRESIDENT & CEO
----------------------------------
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