OFFICE LEASE 750 Battery Street San Francisco,California Basic Lease Information
Exhibit 10.28
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx,Xxxxxxxxxx
Xxx Xxxxxxxxx,Xxxxxxxxxx
Basic Lease Information
Date: October 13, 2005
Landlord: Xxxxx X. Xxxxxxxxx
Tenant: VIA Pharmaceuticals, Inc., a Delaware corporation
Building (section 1.1): The office building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx, comprising ninety-four thousand three hundred sixty-nine (94,369) square
feet of rentable area
Premises (section 1.1): A portion of the third floor comprising four thousand seven
hundred seventy-six (4,776) square feet of rentable area
Parking Spaces (section 1.3): One (1)
Term (section 2.1): Three (3) years
Commencement Date (section 2.1): November 1, 2005
Expiration Date (section 2.1): October 31, 2008
Base Rent (section 3.1 (a)): For each Lease Year, the corresponding amount of Base Rent
set forth below:
| Lease Year | Base Rent | |||
1 |
$ | 9,154 | ||
2 |
$ | 9,552 | ||
3 |
$ | 9,950 | ||
Base Expense Year (section 3. l(b)): 2006
Base Tax Year (section 3.1 (c)): 2006
Tenant’s Percentage Share (section 4.1(c)): Five and one-tenth percent (5.1%)
Liability Insurance Amount (section 13.3): One million dollars ($1,000,000)
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Deposit (section 28.1): Nine thousand nine hundred fifty dollars ($9,950)
Tenant’s Address (section 30.1): VIA Pharmaceuticals, Inc., 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Landlord’s Address (section 30.1): Xx. Xxxxx X. Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000
Real Estate Brokers (section 33.1): The CAC Group
Exhibits:
Exhibit A — Plan Outlining the Premises
Exhibit B — Initial Improvement of the Premises
Exhibit C — Rules and Regulations
The foregoing Basic Lease Information is incorporated in and made a part of this
Lease. If there is any conflict between the Basic Lease Information and any other part of
this Lease, the Basic Lease Information shall control.
| /s/ X. X. Xxxxxxxxx | ||
| Xxxxx X. Xxxxxxxxx | ||
| VIA PHARMACEUTICALS, INC., a Delaware | ||
| corporation |
| By | /s/ Xxxxxxxx X. Xxxxx | |||
| Title | CEO | |||
| By | /s/ Xxxxxxx X. Xxx | |||
| Title | V. P. Business Development | |||
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TABLE OF CONTENTS
| Article | Page | |||
1 Premises |
1 | |||
2 Term |
2 | |||
3 Rent |
4 | |||
4 Operating Expenses and Property Taxes Definitions. |
5 | |||
5 Other Taxes Payable by Tenant |
7 | |||
6 Use |
8 | |||
7 Services |
9 | |||
8 Alterations |
10 | |||
9 Liens |
12 | |||
10 Maintenance and Repairs |
12 | |||
11 Damage or Destruction |
13 | |||
12 Subrogation |
14 | |||
13 Indemnification and Insurance |
14 | |||
14 Compliance With Legal Requirements |
15 | |||
15 Assignment and Subletting |
15 | |||
16 Rules and Regulations |
17 | |||
17 Entry by Landlord , |
18 | |||
18 Events of Default |
18 | |||
19 Remedies Upon Default |
19 | |||
20 Landlord’s Right to Cure Defaults |
20 | |||
21 Eminent Domain |
21 | |||
22 Subordination to Mortgages |
22 | |||
23 No Merger |
22 | |||
24 Sale |
22 | |||
25 Estoppel Certificate |
23 | |||
26 Holding Over |
23 | |||
27 Abandonment |
23 | |||
28 Security Deposit |
24 | |||
29 Waiver |
24 | |||
30 Notices |
25 | |||
31 Miscellaneous |
25 | |||
32 Financing Condition |
26 | |||
33 Real Estate Brokers |
27 | |||
34 Corporate Authority |
27 | |||
35 Complete Agreement |
27 | |||
Exhibit A — Plan Outlining the Premises
Exhibit B — Initial Improvement of the Premises
Exhibit C — Rules and Regulations
Exhibit B — Initial Improvement of the Premises
Exhibit C — Rules and Regulations
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THIS LEASE, made as of the date specified in the Basic Lease Information by and
between the landlord specified in the Basic Lease Information (“Landlord”) and the
tenant specified in the Basic Lease Information (“Tenant”),
W I T N E S S E T H:
ARTICLE 1
Premises
1.1 Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the term and
subject to the covenants set forth in this Lease, to all of which Landlord and Tenant hereby agree,
the space (the “Premises”) substantially shown outlined on the floor plan attached hereto as
Exhibit A and situated on the floor specified in the Basic Lease Information of the
building (the “Building”) specified in the Basic Lease Information. As used in this Lease,
the Building shall include the land on which the Building is located, designated as Assessor’s Lot
8 of Block 166, and all appurtenances thereto. The Premises shall include the appurtenant right to
the use, in common with others, of lobbies, entrances, stairs, elevators and other public portions
of the Building. All of the windows and outside decks or terraces and walls of the Premises and any
space in the Premises used for shafts, stacks, pipes, conduits, ducts, electric or other utilities,
sinks or other Building facilities, and the use thereof and access thereto through the Premises for
the purposes of operation, maintenance and repairs, are reserved to Landlord.
1.2 No easement for light, air or view is included with or appurtenant to the Premises. Any
diminution or shutting off of light, air or view by any structure which may hereafter be erected
(whether or not constructed by Landlord) shall in no way affect this Lease or impose any liability
on Landlord.
1.3 During the term of this Lease, Tenant shall have the right to park automobiles equal to
the number of parking spaces specified in the Basic Lease Information in the garage of the
Building. Such parking spaces shall be on a monthly basis and shall be available only for parking
automobiles of Tenant’s officers and employees. No parking spaces shall be reserved for the
exclusive use of Tenant. Beginning on the Commencement Date (as hereinafter defined) and continuing
thereafter during the term of this Lease, Tenant shall pay the regular monthly parking rates
charged from time to time by Landlord (or the parking operator) for such parking spaces. Tenant’s
right to park automobiles under this Lease shall be subject to the parking rules and regulations
established from time to time by Landlord (or the parking operator) and all laws now or hereafter
in effect.
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ARTICLE 2
Term
2.1 The term of this Lease shall be the term specified in the Basic Lease Information,
which shall commence on the commencement date specified in the Basic Lease Information
(the “Commencement Date”) and, unless extended or sooner terminated as hereinafter provided, shall
end on the expiration date specified in the Basic Lease Information (the “Expiration
Date”). If Landlord, for any reason whatsoever, does not complete the improvements and deliver
possession of the Premises to Tenant on the Commencement Date in accordance with section 2.2
hereof, this Lease shall not be void or voidable and Landlord shall not be liable to Tenant for any
loss or damage resulting therefrom, but in such event, the Commencement Date shall be postponed
until the date on which Landlord completes such improvements and delivers possession of the
Premises to Tenant and the Expiration Date shall be extended for an equal period (subject to
adjustment in accordance with section 2.4 hereof).
2.2 Landlord shall construct or install in the Premises the improvements to be constructed or
installed by Landlord pursuant to Exhibit B. The Premises shall be deemed completed and possession
of the Premises shall be delivered to and accepted by Tenant when Landlord has substantially
completed the improvements to be constructed or installed by Landlord pursuant to Exhibit B
(subject to the completion or correction of items on Landlord’s punch list). The date of
substantial completion of such improvements shall be the date on which construction is sufficiently
complete, substantially in accordance with the plans and specifications approved by Landlord, so
Tenant can occupy or utilize the Premises for the use permitted under this Lease. Tenant shall
accept the Premises upon notice from Landlord that such improvements have been so completed.
Landlord shall use its best efforts to advise Tenant of the anticipated date of substantial
completion at least ten (10) days prior to such date but the failure to give such notice shall not
constitute a default by Landlord. The term of this Lease shall not commence until Landlord has
substantially completed the improvements to be constructed or installed by Landlord pursuant to
Exhibit B (subject to the completion or correction of items on Landlord’s punch list). Landlord
shall complete or correct the items on Landlord’s punch list promptly after the Commencement Date.
If and to the extent Landlord is delayed beyond the Commencement Date in substantially completing
such improvements as a result of any delay caused by Tenant as described in Exhibit B, then, on the
Commencement Date, Tenant shall pay to Landlord, as additional rent, an amount equal to the monthly
Base Rent (as hereinafter defined) in the first Lease Year (as hereinafter defined) payable under
section 3.1 hereof, calculated on a per diem basis, multiplied by the number of days of such delay.
2.3 If the Premises is complete and ready for occupancy by Tenant prior to the Commencement
Date, Tenant shall have the right to take early occupancy of the Premises prior to the Commencement
Date and the term of this Lease shall commence on such date of early occupancy by Xxxxxx, in which
event the Commencement Date shall be accelerated to such date of early occupancy and the Expiration
Date shall be advanced by an equal period (subject to adjustment in accordance with section 2.4
hereof). Tenant shall give Landlord written notice of Tenant’s determination to take early
occupancy of the Premises at least five (5) days prior to such early occupancy, which notice shall
specify the date of early occupancy.
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2.4 If the Commencement Date and the Expiration Date are changed in accordance with section
2.1 hereof or section 2.3 hereof and, as a result of the date of the occurrence of the event which
establishes the changed Commencement Date, the changed Commencement Date would not be the first day
of the month and the changed Expiration Date would not be the last day of the month, then the new
Commencement Date shall be the first day of the next calendar month following the occurrence of
such event and the new Expiration Date shall be the last day of the appropriate calendar month so
the term of this Lease shall be the full term set forth in section 2.1 hereof. The period of the
fractional month between the occurrence of the event which establishes the changed Commencement
Date and the new Commencement Date shall be on and subject to all of the agreements, covenants and
conditions in this Lease, all of which shall be binding on and apply to Tenant during such period,
except the term of this Lease shall not commence until the new Commencement Date and Tenant shall
pay to Landlord, as additional rent, an amount equal to the monthly Base Rent in the first Lease
Year payable under section 3.1 hereof, calculated on a per diem basis, for such period. The
additional rent payable by Tenant in respect of such period shall be paid by Tenant to Landlord on
the new Commencement Date. Landlord and Tenant each shall, promptly after the new Commencement Date
and the new Expiration Date have been determined, execute and deliver to the other an amendment to
this Lease which sets forth the Commencement Date and the Expiration Date for this Lease, but the
term of this Lease shall commence on the new Commencement Date and end on the new Expiration Date
whether or not such amendment is executed.
2.5 Subject to the provisions of this section 2.5, Tenant shall have the right to terminate
this Lease on any date (the “Early Termination Date”) after the end of the first Lease Year. Tenant
may exercise such right only if all of the following requirements are satisfied: (a) Tenant gives a
written notice exercising such right and designating the Early Termination Date to Landlord at
least four (4) months before the Early Termination Date; (b) concurrently with giving such notice,
Tenant pays to Landlord an amount equal to (i) the unamortized cost of the leasing commissions paid
by Landlord on account of this Lease plus (ii) the Base Rent for one (1) month in the Lease Year in
which the Early Termination Date occurs; and (c) no Event of Default (as hereinafter defined)
exists under this Lease when Tenant gives such notice to Landlord. For the purpose of calculating
the amount payable by Tenant to Landlord if Tenant exercises such right, the total amount of such
leasing commissions is twenty-eight thousand six hundred fifty-six dollars ($28,656), the interest
rate is eight percent (8%), and the amortization period is three (3) years from the Commencement
Date to the Expiration Date (as adjusted pursuant to section 2.4 hereof). If Tenant exercises such
right in accordance with this section 2.5, the term of this Lease shall end of the Early Termination Date as though the Early
Termination Date were the Expiration Date. If Tenant exercises the right to terminate this Lease in
accordance with this section 2.5, Landlord and Tenant each shall, promptly after a written request
by either party, execute and deliver to the other an amendment to this Lease which confirms the
termination of this Lease on the Early Termination Date, but the term of this Lease shall end on
the Early Termination Date whether or not such amendment is executed.
2.6 As used in this Lease, “Lease Year” shall mean each period of twelve
(12) calendar months, beginning on the Commencement Date (as adjusted pursuant to section 2.4
hereof), during the term of this Lease.
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ARTICLE 3
Rent
3.1 Tenant shall pay to Landlord the following amounts as rent for the Premises:
(a) During the term of this Lease, Tenant shall pay to Landlord, as base monthly rent, the
amounts of monthly rent specified in the Basic Lease Information (the “Base Rent”), subject
to increase as provided in section 3.1(e) hereof.
(b) During each calendar year or part thereof during the term of this Lease subsequent to the
base expense calendar year specified in the Basic Lease Information (the “Base Expense
Year”), Tenant shall pay to Landlord, as additional monthly rent, Tenant’s Percentage Share (as
hereinafter defined) of the total dollar increase, if any, in all Operating Expenses (as
hereinafter defined) paid or incurred by Landlord in such calendar year or part thereof over the
Operating Expenses paid or incurred by Landlord in the Base Expense Year.
(c) During each calendar year or part thereof during the term of this Lease subsequent to the
base tax calendar year specified in the Basic Lease Information (the “Base Tax Year”),
Tenant shall pay to Landlord, as additional monthly rent, Tenant’s Percentage Share of the total
dollar increase, if any, in all Property Taxes (as hereinafter defined) paid or incurred by
Landlord in such calendar year or part thereof over the Property Taxes paid or incurred by Landlord
in the Base Tax Year.
(d) Throughout the term of this Lease, Tenant shall pay, as additional rent, all other amounts
of money and charges required to be paid by Tenant under this Lease, whether or not such amounts of
money and charges are designated “additional rent.” As used in this Lease, “rent” shall mean and
include all Base Rent, additional monthly rent and additional rent payable by Tenant in accordance
with this Lease.
3.2 The additional monthly rent payable pursuant to sections 3.1 (b) and 3.1 (c) hereof shall
be calculated and paid in accordance with the following procedures:
(a) On or before the first day of each calendar year during the term of this Lease, or
as soon thereafter as practicable, Landlord shall give Tenant written notice of Landlord’s estimate
of the amounts payable under sections 3.1(b) and 3.1(c) hereof for the ensuing calendar year. On or
before the first day of each month during such ensuing calendar year, Tenant shall pay to Landlord
one-twelfth of such estimated amounts. If such notice is not given for any calendar year, Tenant
shall continue to pay on the basis of the prior year’s estimate until the month after such notice
is given and subsequent payments by Tenant shall be based on Landlord’s estimate contained in such
notice. If at any time it appears to Landlord that the amounts payable under sections 3.1(b) and
3.1(c) hereof for the current calendar year will vary from Landlord’s estimate, Landlord may, by
giving written notice to Xxxxxx, revise its estimate for such year, and subsequent payments by
Tenant for such year shall be based on such revised estimate.
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(b) Within a reasonable time after the end of each calendar year, Landlord shall give Tenant a
written statement of the amounts payable under sections 3.1(b) and 3.1(c) hereof for such calendar
year certified by Landlord. If such statement shows an amount owing by Tenant that is less than the
estimated payments for such calendar year previously made by Tenant, Landlord shall credit the
excess to the next succeeding monthly installments payable under sections 3.1(b) and 3.1(c) hereof.
If such statement shows an amount owing by Tenant that is more than the estimated payments for such
calendar year previously made by Tenant, Tenant shall pay the deficiency to Landlord within ten
(10) days after delivery of such statement. Tenant or its authorized employee or representative
shall have the right to inspect the books of Landlord relating to Operating Expenses and Property
Taxes, after giving reasonable prior written notice to Landlord and during the business hours of
Landlord at Landlord’s office in the Building or at such other location as Landlord may designate,
for the purpose of verifying the information in such statement. Failure by Landlord to give any
notice or statement to Tenant under this section 3.2 shall not waive Landlord’s right to receive,
and Tenant’s obligation to pay, the amounts payable by Tenant under sections 3.1(b) and 3.1(c)
hereof.
(c) If the term of this Lease ends on a day other than the last day of a calendar year, the
amounts payable by Tenant under sections 3.1(b) and 3.1(c) hereof applicable to the calendar year
in which the end of the term occurs shall be prorated on the basis which the number of days from
the commencement of such calendar year to and including the date on which the end of the term
occurs bears to three hundred sixty-five (365). Termination of this Lease shall not affect the
obligations of Landlord and Tenant pursuant to section 3.2(b) hereof to be performed after such
termination.
3.3 Tenant shall pay all monthly rent to Landlord, in advance, on or before the first
day of each and every calendar month during the term of this Lease, without notice, demand,
deduction or offset, in lawful money of the United States of America. Landlord instructs Tenant to
pay all such monthly rent to 000 Xxxxxxx Xxxxxx Xxxxxxxx, 0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, or to such other person or at such other place as Landlord may from time to time
designate in writing.
ARTICLE 4
Operating Expenses and Property Taxes Definitions
4.1 The following terms shall have the definitions herein specified:
(a) “Operating Expenses” shall mean all costs and expenses paid or incurred by Landlord
in connection with the ownership, management, operation, maintenance or repair of the Building or
providing services in accordance with this Lease, including, without limitation, the following:
salaries, wages, other compensation and benefits (including payroll, social security, workers’
compensation, unemployment, disability and similar taxes and payments) for personnel engaged in the
management, operation, maintenance or repair of the Building; uniforms provided to such personnel;
premiums and other charges for all property, rental value, liability and other insurance carried by
Landlord; water and sewer charges or fees; license, permit and inspection fees; electricity,
chilled water, air conditioning, gas, fuel, steam, heat, light, power and other
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utilities; sales, use and excise taxes on goods and services purchased by Landlord; telephone,
delivery, postage, stationery supplies and other expenses; management fees and expenses; equipment
lease payments; repairs to and physical maintenance of the Building, including Building systems and
accessories thereto and repair and replacement of worn-out or broken equipment, facilities, parts
and installations, but excluding the replacement of major Building systems; janitorial, window
cleaning, security, guard, extermination, water treatment, garbage and waste disposal, rubbish
removal, plumbing and other services; inspection or service contracts for elevator, electrical,
mechanical and other Building equipment and systems; supplies, tools, materials and equipment used
in connection with the management, operation, maintenance or repair of the Building; accounting,
legal and other professional fees and expenses (excluding legal fees incurred by Landlord relating
to disputes with specific tenants or the negotiation, interpretation or enforcement of specific
leases); painting the exterior or the public or common areas of the Building and the cost of
maintaining the sidewalks, landscaping and other common areas of the Building; the cost of
furniture, draperies, carpeting and other customary and ordinary items of personal property
(excluding paintings, sculptures or other works of fine art) provided by Landlord for use in common
areas of the Building or in the Building office, such costs to be reasonably amortized as
determined by Landlord; all costs and expenses resulting from work, labor, supplies, materials or
services similar or in addition to, or in lieu of, any of the foregoing, or resulting from
compliance with any laws, ordinances, rules, regulations or orders applicable to the Building;
Building office rent or rental value for office space reasonably necessary for the proper
management and operation of the Building; all costs and expenses of contesting by appropriate legal
proceedings any matter concerning managing, operating, maintaining or repairing the Building or the
amount or validity of any Property Taxes; reasonable depreciation as determined by Landlord on all
personal property, fixtures and equipment (including window washing machinery) used in the
management, operation, maintenance or repair of the Building and on exterior window coverings
provided by Landlord and carpeting in public corridors and common areas; and the cost, reasonably
amortized as determined by Landlord, together with interest at the rate of ten percent (10%) per
annum, or such higher annual rate as Landlord may actually have to pay, on the unamortized balance,
of all capital improvements made to the Building or capital assets acquired by Landlord that are
designed or intended to improve operating efficiency or reduce any item of Operating Expenses or
that are required to comply with any conservation program or required by any law, ordinance, rule,
regulation or order. Operating Expenses shall not include Property Taxes, depreciation on the
Building (except as specified above), costs of tenants’ improvements, real estate brokers’
commissions, interest and capital items (except the cost of capital improvements and capital assets
and interest thereon as specified above). Actual Operating Expenses for the Base Expense Year and
each subsequent calendar year shall be adjusted to equal Landlord’s reasonable estimate of
Operating Expenses for a full calendar year with ninety-five percent (95%) of the total rentable
area of the Building occupied during such full calendar year. The determination of Operating
Expenses shall be in accordance with generally accepted accounting principles applied on a
consistent basis.
(b) “Property Taxes” shall mean all taxes, assessments, excises, levies, fees and
charges (and any tax, assessment, excise, levy, fee or charge levied wholly or partly in lieu
thereof or as a substitute therefor or as an addition thereto) of every kind and description,
general or special, ordinary or extraordinary, foreseen or unforeseen, secured or unsecured,
whether or not now customary or within the contemplation of Landlord and Tenant, that are levied,
assessed, charged, confirmed or imposed by any public or government authority on or against, or
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otherwise with respect to, the Building or any part thereof or any personal property used in
connection with the Building. Property Taxes shall not include (i) net income (measured by the
income of Landlord from all sources or from sources other than solely rent), franchise, documentary
transfer, inheritance or capital stock taxes of Landlord, unless levied or assessed against
Landlord in whole or in part in lieu of, as a substitute for, or as an addition to any Property
Taxes, or (ii) any tax, assessment, fee or charge paid by Tenant pursuant to section 5.1 hereof.
(c) “Tenant’s Percentage Share” shall mean the percentage specified in the
Basic Lease Information.
ARTICLE 5
Other Taxes Payable by Tenant
5.1 In addition to all monthly rent and other charges to be paid by Tenant under this
Lease, Tenant shall reimburse Landlord upon demand for all taxes, assessments, excises, levies,
fees and charges, including, without limitation, all transit impact development fees, housing
impact development fees and other payments related to the cost of providing facilities or services,
whether or not now customary or within the contemplation of Landlord and Tenant, that are payable
by Landlord and levied, assessed, charged, confirmed or imposed by any public or government
authority upon, or measured by, or reasonably attributable to (a) the cost or value of Tenant’s
equipment, furniture, fixtures and other personal property located in the Premises or the cost or
value of any leasehold improvements made in or to the Premises by Tenant, regardless of whether
title to such improvements is vested in Tenant or Landlord, (b) any monthly rent or any additional
rent payable under this Lease, including, without limitation, any gross income tax or excise tax
levied by any public or government authority with respect to the receipt of any such rent, (c) the
possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or (d) this transaction or any document to which Tenant is a party creating
or transferring an interest or an estate in the Premises. Such taxes, assessments, excises, levies,
fees and charges shall not include net income (measured by the income of Landlord from all sources
or from sources other than solely rent), franchise, documentary transfer, inheritance or capital
stock taxes of Landlord, unless levied or assessed against Landlord in whole or in part in lieu of,
as a substitute for, or as an addition to any such taxes, assessments, excises, levies, fees and
charges. If it is unlawful for Tenant to reimburse Landlord for any such taxes, assessments,
excises, levies, fees or charges, the Base Rent payable prior to the imposition thereof shall be
increased to provide Landlord the same net Base Rent after the imposition thereof as Landlord
received prior to the imposition of such taxes, assessments, excises, levies, fees or charges. All
taxes, assessments, excises, levies, fees and charges payable by Tenant under this Article 5 shall
be deemed to be, and shall be paid as, additional rent.
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ARTICLE 6
Use
6.1 Tenant shall use the Premises only for general office purposes for Tenant’s business
and no other purpose. Tenant shall not do or permit to be done in, on or about the Premises, nor
bring or keep or permit to be brought or kept therein, anything which is prohibited by or will in
any way conflict with any law, ordinance, rule, regulation or order now in force or which may
hereafter be enacted, or which is prohibited by any property insurance policy carried by Landlord
for the Building, or will in any way increase the existing rate of, or cause a cancellation of, or
affect any property or other insurance for the Building or any part thereof or any of its contents.
Tenant shall not bring or keep, or permit to be brought or kept, in the Premises or the Building
any “hazardous substance” (as hereinafter defined). Tenant shall not use, produce, process,
manufacture, generate, treat, handle, store or dispose of any hazardous substance in the Premises
or the Building, or use the Premises for any such purpose, or emit, release or discharge any
hazardous substance into any air, soil, surface water or groundwater comprising the Premises or the
Building, or permit any person using or occupying the Premises to do any of the foregoing. The
preceding sentence shall not prohibit the ordinary use of any hazardous substance normally used in
the operation of a general office for Tenant’s business as permitted by this Lease, provided the
amount of any such hazardous substance does not exceed the quantity necessary for the normal
operation of a general office in the ordinary course of business and the use, storage and disposal
of any such hazardous substance strictly comply with all applicable “environmental laws” (as
hereinafter defined). Tenant shall comply, and shall cause all persons using or occupying the
Premises to comply, with all environmental laws applicable to the use or occupancy of the Premises
by Tenant or any operation or activity of Tenant therein. As used in this Lease, “hazardous
substance” shall mean any substance or material that is described as a toxic or hazardous
substance, waste or material or a pollutant or contaminant, or words of similar import, in any of
the environmental laws, and includes asbestos, petroleum, petroleum products, polychlorinated
biphenyls, radon gas, radioactive matter, and chemicals which may cause cancer or reproductive
toxicity. As used in this Lease, “environmental laws” shall mean all federal, state and local laws,
ordinances, rules and regulations now or hereafter in force, as amended from time to time, in any
way relating to or regulating human health or safety, or industrial hygiene or environmental
conditions, or protection of the environment, or pollution or contamination of the air, soil,
surface water or groundwater. Tenant shall not do or permit anything to be done in, on or about the
Premises which will in any way obstruct or interfere with the rights of Landlord or other tenants
of the Building, or injure or annoy them. Tenant shall not use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable activity, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises or commit or suffer to be committed any waste in,
on or about the Premises. Tenant shall not bring into the Building any furniture, equipment,
materials or other objects which overload the Building or any portion thereof. Notwithstanding
anything to the contrary herein, in no event shall Tenant be liable under this Lease for any
hazardous substance except to the extent the hazardous substance was released by Tenant or any of
its employees, agents, contactors or invitees.
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ARTICLE 7
Services
7.1 Landlord shall maintain the public and common areas of the Building, such as lobbies,
stairs, corridors and restrooms, the roof, structural and exterior elements of the Building, and
the mechanical (heating, ventilating and air conditioning), plumbing, fire/life safety and
electrical systems of the Building in reasonably good order and condition. Any damage in or to any
such areas, elements or systems caused by Tenant or any agent, employee, contractor, licensee or
invitee of Tenant shall be repaired by Landlord at Tenant’s expense and Tenant shall reimburse
Landlord therefor on demand, as additional rent.
7.2 Landlord shall supply the following services to the Premises during reasonable and usual
business hours, as determined by Landlord and subject to the Rules and Regulations (as hereinafter
defined) established by Landlord: (a) normal electricity for lighting and the operation of desk top
office machines, (b) normal heating, ventilating and air conditioning reasonably required for the
comfortable occupation of the Premises, and (c) elevator service. Landlord shall also furnish
lighting replacement for Building standard lights, restroom supplies, security service for the
Building (not Tenant or the Premises), normal janitor service for the Premises, and window washing
during the times and in the manner that such services are customarily furnished in comparable
office buildings in the area. Landlord shall not be liable for any criminal acts of others or for
any direct, consequential or other loss or damage related to any malfunction, circumvention or
other failure of such security service. Landlord shall not be in default under this Lease or be
liable for any damage or loss directly or indirectly resulting from, nor shall the rent be abated
or a constructive or other eviction be deemed to have occurred by reason of, (i) any installation,
use or interruption of use of any equipment in connection with the furnishing of any of the
foregoing services, (ii) any failure to furnish or delay in furnishing any such services when such
failure or delay is caused by accident or breakdown or any condition beyond the reasonable control
of Landlord or by the making of repairs or improvements to the Premises or to the Building, or
(iii) any limitation, curtailment, rationing or restriction on use of water, electricity, gas or
any form of energy serving the Premises or the Building, whether such results from mandatory
governmental restriction or voluntary compliance with governmental guidelines. Landlord shall use
reasonable efforts to correct any interruption in the furnishing of such services.
7.3 If Tenant uses heat generating machines, equipment or computers or lighting other than
Building standard lights in the Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord shall have the right to install supplementary air conditioning
units in the Premises and Tenant shall pay Landlord the cost thereof, including the costs of
installation, operation, maintenance and repair thereof, upon billing by Landlord. If Tenant
installs lighting requiring power in excess of that required for normal office use in the Building
or equipment or computers requiring power in excess of that required for normal desk top office
equipment, Tenant shall pay Landlord upon billing for the cost of such excess. Tenant shall pay to
Landlord, upon billing by Landlord, the cost of all services, electricity, power and energy
consumed by Tenant in excess of the amount that would reasonably be incurred for a normal business
office operating during usual business hours as a result of the operation of Tenant’s computers or
equipment, the number of hours Tenant operates, or any other unusual
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feature of the conduct of Xxxxxx’s business in the Premises, all as reasonably determined by
Landlord based on the actual additional cost incurred by Landlord and, where feasible, separate
electrical meters in the Building or the Premises. All costs payable by Tenant under this section
7.3 shall be deemed to be, and shall be paid as, additional rent.
ARTICLE 8
Alterations
8.1 Tenant shall not make any alterations, additions or improvements in or to the
Premises or any part thereof, or attach any fixtures or equipment thereto, without Landlord’s prior
written consent. Notwithstanding the preceding sentence, Tenant may make such alterations,
additions or improvements without Landlord’s consent only if the total cost is five thousand
dollars ($5,000) or less and it will not affect in any way the structural, exterior, entry or roof
elements of the Building or the Premises, or the mechanical, electrical, plumbing, utility or life
safety systems of the Building, but Tenant shall give prior written notice of any such alterations,
additions or improvements to Landlord. All alterations, additions and improvements (except the
initial improvements to be constructed or installed by Landlord at Landlord’s expense and Tenant’s
expense, respectively, as specified in Exhibit B) in or to the Premises to which Landlord consents
shall be made by Tenant at Tenant’s sole cost and expense as follows:
(a) Tenant shall submit to Landlord, for Landlord’s written approval, complete plans and
specifications for all work to be done by Xxxxxx. Such plans and specifications shall be prepared
by responsible licensed architect(s) and engineer(s) approved in writing by Landlord, shall comply
with all applicable codes, laws, ordinances, rules and regulations, shall not adversely affect the
basic Building shell or any systems, components or elements of the Building, shall be in a form
sufficient to secure the approval of all government authorities with jurisdiction over the approval
thereof, and shall be otherwise satisfactory to Landlord in Landlord’s reasonable discretion.
Tenant shall notify Landlord in writing of the licensed architect(s) and engineer(s) whom Xxxxxx
proposes to engage to prepare such plans and specifications. Landlord shall notify Tenant promptly
in writing whether Landlord approves or disapproves such architect(s) and engineer(s).
(b) Such plans and specifications shall be subject to Landlord’s prior written approval. If
Landlord disapproves such plans and specifications, or any portion thereof, Landlord shall promptly
notify Tenant of such disapproval and of the revisions which Landlord requires in order to obtain
Landlord’s approval. Thereafter, Tenant shall submit to Landlord revised plans and specifications
incorporating the revisions required by Landlord. Such revisions shall be subject to Xxxxxxxx’s
prior written approval. Tenant shall pay all costs, including the fees and expenses of the licensed
architect(s) and engineer(s), in preparing such plans and specifications.
(c) Tenant shall pay for all work (including, without limitation, the cost of all utilities,
permits, fees, taxes, and property and liability insurance premiums in connection therewith)
required to make the alterations, additions and improvements. Tenant shall engage responsible
licensed contractor(s) approved in writing by Landlord to perform all work. Tenant
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shall notify Landlord in writing of the licensed contractor(s) whom Xxxxxx proposes to engage for
the work. Landlord shall notify Tenant promptly in writing whether Landlord approves or disapproves
such contractor(s). All contractors and other persons shall at all times be subject to Landlord’s
control while in the Building. Landlord shall have the right to require that any such contractor
engaged by Tenant shall, prior to commencing work in the Premises, provide Landlord with a
performance bond and a labor and materials payment bond in the amount of the contract price for the
work naming Landlord and Xxxxxx (and any other person designated by Landlord) as co-obligees.
Tenant shall pay to Landlord any additional direct costs (beyond the normal services provided to
tenants in the Building) and shall reimburse Landlord for all out-of-pocket expenses incurred by
Landlord in connection with the review, approval and supervision of any alterations, additions or
improvements made by Tenant. Under no circumstances shall Landlord be liable to Tenant for any
liability, loss, cost or expense incurred by Tenant on account of Xxxxxx’s plans and
specifications, Xxxxxx’s contractors or subcontractors, design of any work, construction of any
work, or delay in completion of any work.
(d) Tenant shall give written notice to Landlord of the date on which construction of any work
will be commenced at least five (5) days prior to such date. Tenant shall cause all work to be
performed by the licensed contractor(s) approved in writing by Landlord in accordance with the
plans and specifications approved in writing by Landlord and in full compliance with all applicable
codes, laws, ordinances, rules and regulations. Tenant shall keep the Premises and the Building
free from mechanics’, materialmen’s and all other liens arising out of the work and shall promptly
and fully pay and discharge all claims on which any such lien could be based. Tenant shall have the
right to contest the amount or validity of any such lien, provided Xxxxxx gives prior written
notice of such contest to Landlord, prosecutes such contest by appropriate proceedings in good
faith and with diligence, and, upon request by Xxxxxxxx, furnishes such bond as may be required by
law to protect the Building and the Premises from such lien.
(e) All changes in the plans and specifications approved by Landlord shall be subject to
Landlord’s prior written approval. If Tenant wishes to make any such change in such approved plans
and specifications, Tenant shall have Tenant’s architect(s) and engineer(s) prepare plans and
specifications for such change and submit them to Landlord for Landlord’s written approval. If
Landlord disapproves such change, Landlord shall specify in writing the reasons for disapproval and
such plans and specifications shall be revised by Xxxxxx and resubmitted to Landlord for Xxxxxxxx’s
written approval. After Landlord’s written approval of such change, such change shall become part
of the plans and specifications approved by Landlord.
8.2 All alterations, additions, fixtures and improvements, including, without
limitation, carpeting and all other improvements made by Landlord pursuant to Exhibit B, whether
temporary or permanent in character, made in or to the Premises either by Tenant or by Landlord
shall become part of the Building and Landlord’s property and, at the end of the term of this
Lease, shall, at Landlord’s option, either remain on the Premises without compensation to Tenant
or, if Landlord advised Tenant that removal would be required before Tenant made the improvements,
be removed by Landlord for Tenant’s account (except the improvements made by Landlord pursuant to
Exhibit B), and Tenant shall reimburse Landlord for the cost of removal
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(including the cost of repairing any damage to the Premises or the Building caused by removal and a
reasonable charge for Landlord’s overhead and profit) within ten (10) days after receipt of a
statement therefor. Movable furniture, equipment, trade fixtures and personal property (except
partitions) shall remain the property of Tenant and Tenant shall, at Tenant’s expense, remove all
such property from the Building at the end of the term of this Lease. Termination of this Lease
shall not affect the obligations of Tenant pursuant to this section 8.2 to be performed after such
termination.
ARTICLE 9
Liens
9.1 Tenant shall keep the Premises and the Building free from mechanics’, materialmen’s
and all other liens arising out of any work performed, materials furnished or obligations incurred
by Tenant. Tenant shall promptly and fully pay and discharge all claims on which any such lien
could be based. Tenant shall have the right to contest the amount or validity of any such lien,
provided Xxxxxx gives prior written notice of such contest to Landlord, prosecutes such contest by
appropriate proceedings in good faith and with diligence, and, upon request by Xxxxxxxx, furnishes
such bond as may be required by law to protect the Building and the Premises from such lien.
Landlord shall have the right to post and keep posted on the Premises any notices that may be
provided by law or which Landlord may deem to be proper for the protection of Landlord, the
Premises and the Building from such liens, and to take any other action Landlord deems necessary to
remove or discharge liens or encumbrances at the expense of Tenant.
ARTICLE 10
Maintenance and Repairs
10.1 Tenant shall, at all times during the term of this Lease and at Xxxxxx’s sole cost
and expense, maintain and repair the Premises and every part thereof and all equipment, fixtures
and improvements therein and keep all of the foregoing clean and in good order and operating
condition, ordinary wear and tear and damage thereto by fire or other casualty excepted. Tenant
hereby waives all rights under California Civil Code section 1941 and all rights to make repairs at
the expense of Landlord or in lieu thereof to vacate the Premises as provided by California Civil
Code section 1942 or any other law, statute or ordinance now or hereafter in effect. Tenant shall,
at the end of the term of this Lease, surrender to Landlord the Premises and all alterations,
additions and improvements thereto in good condition and repair, ordinary wear and tear and damage
thereto by fire or other casualty excepted. Landlord has no obligation and has made no promise to
alter, remodel, improve, repair, maintain, decorate or paint the Premises or any part thereof or
any equipment, fixtures or improvements therein, except as expressly set forth in this Lease. No
representations respecting the condition of the Premises or the Building have been made to Tenant
either by Landlord or by any real estate broker, except as expressly set forth in this Lease.
Tenant’s obligation to keep the Premises and every part thereof and all equipment,
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fixtures and improvements therein in good condition and repair in accordance with this
section 10.1 is part of the consideration for Landlord’s leasing the Premises to Tenant.
ARTICLE 11
Damage or Destruction
11.1 If the Building or the Premises, or any part thereof, is damaged by fire or other
casualty before the Commencement Date or during the term of this Lease, and this Lease is not
terminated pursuant to section 11.2 hereof, Landlord shall repair such damage and restore the
Building and the Premises to substantially the same condition in which the Building and the
Premises existed before the occurrence of such fire or other casualty and this Lease shall, subject
to the provisions of this Article 11, remain in full force and effect. If such fire or other
casualty damages the Premises or common areas of the Building necessary for Tenant’s use and
occupancy of the Premises, then during the period the Premises are rendered unusable by such damage
Tenant shall be entitled to a reduction in monthly rent in the proportion that the area of the
Premises rendered unusable by such damage bears to the total area of the Premises. Landlord shall
not be obligated to repair any damage to, or to make any replacement of, any movable furniture,
equipment, trade fixtures or personal property in the Premises. Tenant shall be responsible, at
Xxxxxx’s sole cost and expense, for the repair and replacement of all such movable furniture,
equipment, trade fixtures and personal property. Such repair and replacement by Tenant shall be
done in accordance with Article 8 hereof Tenant hereby waives California Civil Code sections
1932(2) and 1933(4) providing for termination of hiring upon destruction of the thing hired.
11.2 If the Building or the Premises, or any part thereof, is damaged by fire or other
casualty before the Commencement Date or during the term of this Lease and (a) such fire or other
casualty occurs during the last twelve (12) months of the term of this Lease and the repair and
restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as
reasonably estimated by Landlord, be completed within two (2) months after the occurrence of such
fire or other casualty, or (b) the insurance proceeds received by Landlord in respect of such
damage are not adequate to pay the entire cost, as reasonably estimated by Landlord, of the repair
and restoration work to be performed by Landlord in accordance with section 11.1 hereof, or (c) the
repair and restoration work to be performed by Landlord in accordance with
section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within six (6) months
after the occurrence of such fire or other casualty, then, in any such event, Landlord shall have
the right, by giving written notice to Tenant within sixty (60) days after the occurrence of such
fire or other casualty, to terminate this Lease as of the date specified in such notice, which date
shall be not less than thirty (30) days nor more than sixty (60) days after the date such notice is
given. If Landlord does not exercise the right to terminate this Lease in accordance with this
section 11.2, Landlord shall repair such damage and restore the Building and the Premises in
accordance with section 11.1 hereof and this Lease shall, subject to the provisions of this Article
11, remain in full force and effect. A total destruction of the Building shall automatically
terminate this Lease effective as of the date of such total destruction.
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ARTICLE 12
Subrogation
12.1 Tenant waives on behalf of its insurers under all policies of property insurance
carried by Tenant during the term of this Lease insuring or covering the Premises, or any portion
or any contents thereof, or any operations therein, all rights of subrogation which any insurer
might otherwise, if at all, have to any claims of Tenant against Landlord. Landlord waives on
behalf of its insurers under all policies of property insurance carried by Landlord during the term
of this Lease insuring or covering the Building or any portion or any contents thereof, or any
operations therein, all rights of subrogation which any insurer might otherwise, if at all, have to
any claims of Landlord against Tenant. Landlord and Tenant each shall, prior to or immediately
after the date of this Lease, procure from each of its insurers under all such policies of property
insurance a waiver of all rights of subrogation as required by this Article 12.
ARTICLE 13
Indemnification and Insurance
13.1 Tenant hereby waives all claims against Landlord for damage to or loss or theft of any
property or for any bodily or personal injury, illness or death of any person in, on or about the
Premises or the Building arising at any time and from any cause whatsoever except to the extent
caused by the negligence or willful misconduct of Landlord. Tenant shall indemnify and defend
Landlord against and hold Landlord harmless from all claims, demands, liabilities, damages, losses,
costs and expenses, including, without limitation, reasonable attorneys’ fees, for any damage to
any property (including property of employees and invitees of Tenant) or for any bodily or personal
injury, illness or death of any person (including employees and invitees of Tenant) (a) occurring
in, on or about the Premises or any part thereof arising at any time and from any cause whatsoever
except to the extent caused by the negligence or willful misconduct of Landlord or (b) occurring
in, on or about any part of the Building other than the Premises arising at any time when and to
the extent such damage, bodily or personal injury, illness or death is caused by any act or
omission of Tenant or its agents, employees, contractors, invitees or licensees. This Article 13
shall survive the termination of this Lease with respect to any damage, bodily or personal injury,
illness or death occurring prior to such termination.
13.2 Tenant shall, at Tenant’s sole cost and expense, obtain and keep in force during the term
of this Lease all risk property insurance on Tenant’s movable furniture, equipment, trade fixtures
and personal property in the Premises in an amount not less than eighty percent (80%) of the full
replacement cost (without deduction for depreciation) thereof.
13.3 Tenant shall, at Tenant’s sole cost and expense, obtain and keep in force during the term
of this Lease commercial general liability insurance, including contractual liability (specifically
covering this Lease), fire legal liability, and premises operations, with a minimum combined single
limit in the amount specified in the Basic Lease Information per occurrence for bodily or
personal injury to, illness of, or death of persons and damage to property occurring in, on or
about the Premises or the Building. All such insurance shall insure the performance by
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Tenant of the indemnity agreement as to liability for bodily or personal injury to, illness of, or
death of persons and damage to property set forth in section 13.1 hereof.
13.4 All insurance required under this Article 13 and all renewals thereof shall be issued
by good and responsible companies qualified to do and doing business in the State of California.
Each policy shall expressly provide that the policy shall not be cancelled or altered without
thirty (30) days5 prior written notice to Landlord and shall remain in effect
notwithstanding any such cancellation or alteration until such notice shall have been given to
Landlord and such period of thirty (30) days shall have expired. All liability insurance under this
Article 13 shall name Landlord and any other parties designated by Landlord as an additional
insured, shall be primary and noncontributing with any insurance which may be carried by Landlord,
and shall expressly provide that Landlord, although named as an insured, shall nevertheless be
entitled to recover under the policy for any loss, injury or damage to Landlord. Upon the issuance
thereof, Tenant shall deliver each such policy or a certified copy and a certificate thereof to
Landlord for retention by Landlord. If Tenant fails to insure or fails to furnish to Landlord upon
notice to do so any such policy or certified copy and certificate thereof as required, Landlord
shall have the right from time to time to effect such insurance for the benefit of Tenant or
Landlord or both of them and all premiums paid by Landlord shall be payable by Tenant as additional
rent on demand.
ARTICLE 14
Compliance With Legal Requirements
14.1 Tenant shall, at its sole cost and expense, promptly comply with all laws,
ordinances, rules, regulations, orders and other requirements of any government or public authority
now in force or which may hereafter be in force, with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted, and with any direction or
certificate of occupancy issued pursuant to any law by any governmental agency or officer, insofar
as any thereof relate to or affect the condition, use or occupancy of the Premises or the
operation, use or maintenance of any equipment, fixtures or improvements in the Premises, excluding
requirements of alterations or improvements not related to or affected by Tenant’s acts or use of
the Premises or by improvements made by Tenant.
ARTICLE 15
Assignment and Subletting
15.1 Tenant shall not, directly or indirectly, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, assign this Lease or any interest
herein or sublease the Premises or any part thereof, or permit the use or occupancy of the Premises
by any person other than Tenant. Tenant shall not, directly or indirectly, without the prior
written consent of Landlord, pledge, mortgage or hypothecate this Lease or any interest herein.
This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant
involuntarily or by operation of law without the prior written consent of Landlord. Any
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of the foregoing acts without such prior written consent of Landlord shall be void and shall, at
the option of Landlord, constitute a default that entitles Landlord to terminate this Lease.
Without limiting or excluding other reasons for withholding Landlord’s consent, Landlord shall have
the right to withhold consent if the proposed assignee or subtenant or the use of the Premises to
be made by the proposed assignee or subtenant is not consistent with the character and nature of
other tenants and uses in the Building or is prohibited by this Lease or if it is not demonstrated
to the satisfaction of Landlord that the proposed assignee or subtenant has good business and moral
character and reputation and, in the case of the proposed assignee, is financially able to perform
all of the obligations of Tenant under this Lease. Any such consent by Landlord shall not release
Tenant from any of Tenant’s obligations and liabilities under this Lease or be deemed to be a
consent to any subsequent pledge, mortgage, hypothecation, assignment, sublease, or occupation or
use by another person. Tenant agrees that the instrument by which any assignment or sublease to
which Landlord consents is accomplished shall expressly provide that the assignee or subtenant will
perform and observe those agreements, covenants and conditions to be performed and observed by
Tenant under this Lease that are assumed by the assignee or subtenant as and when performance and
observance is due after the effective date of the assignment or sublease and that Landlord will
have the right to enforce such agreements, covenants and conditions directly against such assignee
or subtenant. Tenant shall in all cases remain liable and responsible for the performance by any
assignee or subtenant of all such agreements, covenants and conditions. Any assignment or sublease
without an instrument containing the foregoing provisions shall be void and shall, at the option of
Landlord, constitute a default that entitles Landlord to terminate this Lease.
15.2 If Tenant wishes to assign this Lease or sublease all or any part of the Premises, Tenant
shall give written notice to Landlord identifying the intended assignee or subtenant by name and
address and specifying all of the terms of the intended assignment or sublease. Tenant shall give
Landlord such additional information concerning the intended assignee or subtenant or the intended
assignment or sublease as Landlord requests.
15.3 If Landlord consents in writing, Xxxxxx may complete the intended assignment or sublease
subject to the following covenants and conditions: (a) the assignment or sublease shall be on the
same terms as set forth in the written notice given by Xxxxxx to Landlord, (b) no assignment or
sublease shall be valid and no assignee or subtenant shall take possession of the Premises or any
part thereof until an executed duplicate original of such assignment or sublease has been delivered
to Landlord, (c) no assignee or subtenant shall have a right further to assign or sublease, and (d)
all “excess rent” (as hereinafter defined) derived from such assignment or sublease shall be
divided and paid fifty percent (50%) to Tenant and fifty percent (50%) to Landlord. Landlord’s
share of such excess rent shall be deemed to be, and shall be paid by Tenant to Landlord as,
additional rent. Tenant shall pay Landlord’s share of such excess rent to Landlord immediately as
and when such excess rent is receivable by Tenant. As used in this section 15.3, “excess rent”
shall mean the amount by which the total money and other economic consideration to be paid by the
assignee or subtenant as a result of an assignment or sublease, whether denominated rent or
otherwise, exceeds, in the aggregate, the total amount of rent which Tenant is obligated to pay to
Landlord under this Lease (prorated to reflect the rent allocable to the portion of the Premises
subject to such assignment or sublease), less the reasonable costs paid by Tenant for additional
improvements installed in the portion of the Premises subject to such assignment or sublease by
Xxxxxx at Tenant’s sole cost and expense for the specific assignee or
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subtenant in question and reasonable leasing costs (such as brokers’ commissions but excluding
carrying costs due to vacancy or any other cause) paid by Tenant in connection with such assignment
or sublease, which costs of additional improvements and leasing costs shall be amortized without
interest over the term of such assignment or sublease.
15.4 No assignment or sublease whatsoever shall release Tenant from Tenant’s obligations and
liabilities under this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of
this Lease. Consent to one assignment or sublease shall not be deemed consent to any subsequent
assignment or sublease. In the event of default by any assignee of Tenant or any successor of
Xxxxxx in the performance of any obligation to be performed by Tenant under this Lease, Landlord
may proceed directly against Tenant without the necessity of exhausting remedies against such
assignee or successor.
15.5 Notwithstanding the provisions of this Article 15, Tenant may assign this Lease or
sublease the Premises or any portion thereof, without Landlord’s consent and without releasing
Tenant from any obligation or liability under this Lease, to any corporation or other entity which
controls, is controlled by or is under control with Tenant, or to any corporation or other entity
resulting from a merger with Tenant, or to any corporation or other entity that acquires all or
substantially all of the assets of Tenant as a going concern, provided any such corporation or
other entity assumes in writing the obligations of Tenant under this Lease, and in that case
Landlord shall have no right to receive excess rent pursuant to section 15.3 hereof. For the
purpose of this section 15.5, “control” means the direct or indirect ownership of fifty percent
(50%) or more of the capital, profits and voting rights of the corporation or other entity in
question.
15.6 Notwithstanding the provisions of this Article 15, Tenant shall have the right to permit
the use or occupancy of space in the Premises by Bay City Capital LLC or by clients or portfolio
companies of Bay City Capital LLC in the ordinary course of Bay City Capital LLC’s business,
provided Tenant does not subdivide the Premises or create separate entrances to the Premises for
any such purpose. Such use or occupancy shall not constitute a sublease for the purposes of this
Article 15 and shall not require the consent of Landlord, but Tenant shall continue to be liable
for all agreements, covenants and conditions to be performed and observed by Tenant under this
Lease without regard to such use or occupancy. Any rent or other payment received by Tenant on
account of any such use or occupancy shall not be included in excess rent for the purpose of
section 15.3 hereof.
ARTICLE 16
Rules and Regulations
16.1 Tenant shall faithfully observe and comply with the rules and regulations (the “Rules
and Regulations”) set forth in Exhibit C and, after notice thereof, all modifications thereof and
additions thereto from time to time made in writing by Landlord. If there is any conflict, this
Lease shall prevail over the Rules and Regulations and any modifications thereof or
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additions thereto. Landlord shall not be responsible to Tenant for the noncompliance by any
other tenant or occupant of the Building with any Rules and Regulations.
ARTICLE 17
Entry by Landlord
17.1 Landlord shall have the right to enter the Premises at any time upon reasonable prior
notice (except notice shall not be required in an emergency) to (a) inspect the Premises, (b)
exhibit the Premises to prospective purchasers, lenders or, during the last six (6) months of the
term of this Lease, tenants, (c) determine whether Tenant is performing all of its obligations
hereunder, (d) supply any service to be provided by Landlord, (e) post notices of
nonresponsibility, and (f) make any repairs to the Premises, or make any repairs to any adjoining
space or utility services, or make any repairs, alterations or improvements to any other portion of
the Building, provided all such work shall be done as promptly as reasonably practicable and so as
to cause as little interference to Tenant as reasonably practicable. Tenant waives all claims for
damages for any injury or inconvenience to or interference with Xxxxxx’s business, any loss of
occupancy or quiet enjoyment of the Premises or any other loss occasioned by such entry. Landlord
shall at all times have and retain a key with which to unlock all of the doors in, on or about the
Premises (excluding Tenant’s vaults, safes and similar areas designated in writing by Tenant and
approved in writing by Landlord in advance), and Landlord shall have the right to use any and all
means which Landlord may deem proper to open such doors in an emergency to obtain entry to the
Premises. Any entry to the Premises obtained by Landlord by any of such means, or otherwise, shall
not under any circumstances be construed or deemed to be a forcible or unlawful entry into or a
detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises or any
portion thereof.
ARTICLE 18
Events of Default
18.1 The occurrence of any one or more of the following events (“Event of Default”) shall
constitute a breach of this Lease by Tenant:
(a) Tenant fails to pay any monthly rent as and when such monthly rent becomes due and payable
and such failure continues for more than three (3) days after Xxxxxxxx gives written notice thereof
to Tenant; provided, however, that after the second such failure in a calendar year, only the
passage of time, but no further notice, shall be required to establish an Event of Default in the
same calendar year; or
(b) Tenant fails to pay any additional rent or other amount of money or charge payable by
Tenant hereunder as and when such additional rent or amount or charge becomes due and payable and
such failure continues for more than ten (10) days after Xxxxxxxx gives written notice thereof to
Tenant; provided, however, that after the second such failure in a calendar year,
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only the passage of time, but no further notice, shall be required to establish an Event of Default
in the same calendar year; or
(c) Tenant fails to perform or observe any other agreement, covenant or condition of this
Lease to be performed or observed by Xxxxxx as and when performance or observance is due and such
failure continues for more than ten (10) days after Xxxxxxxx gives written notice thereof to
Tenant; provided, however, that if, by the nature of such agreement, covenant or condition, such
failure cannot reasonably be cured within such period of ten (10) days, an Event of Default shall
not exist as long as Tenant commences with due diligence and dispatch the curing of such failure
within such period of ten (10) days and, having so commenced, thereafter prosecutes with diligence
and dispatch and completes the curing of such failure; or
(d) Xxxxxx (i) is generally not paying its debts as they become due, (ii) files, or consents
by answer or otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with
similar powers of Tenant or of any substantial part of Tenant’s property, or (v) takes action for
the purpose of any of the foregoing; or
(e) A court or governmental authority of competent jurisdiction enters an order appointing,
without consent by Xxxxxx, a custodian, receiver, trustee or other officer with similar powers with
respect to Tenant or with respect to any substantial part of Tenant’s property, or constituting an
order for relief or approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of Tenant, or if any such
petition is filed against Tenant and such petition is not dismissed within sixty (60) days; or
(f) This Lease or any estate of Tenant hereunder is levied upon under any attachment or
execution and such attachment or execution is not vacated within thirty (30) days; or
(g) Tenant abandons the Premises.
ARTICLE 19
Remedies Upon Default
19.1 Landlord shall have the remedy described in California Civil Code section 1951.2. If
an Event of Default occurs, Landlord at any time thereafter shall have the right to give a written
termination notice to Tenant (which may be included in a single notice given by Landlord under
section 18.1 hereof) and on the date specified in such notice, Xxxxxx’s right to possession shall
terminate and this Lease shall terminate. Upon such termination, Landlord shall have the right to
recover from Tenant:
(a) The worth at the time of award of all unpaid rent which had been earned at the time
of termination;
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(b) The worth at the time of award of the amount by which all unpaid rent which would have
been earned after termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by which all unpaid rent for the balance of
the term of this Lease after the time of award exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided; and
(d) All other amounts necessary to compensate Landlord for all the detriment proximately
caused by Xxxxxx’s failure to perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom. The “worth at the time of award” of the
amounts referred to in clauses (a) and (b) above shall be computed by allowing interest at the rate
of ten percent (10%) per annum. The “worth at the time of award” of the amount referred to in
clause (c) above shall be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%). For the purpose of
determining unpaid rent under clauses (a), (b) and (c) above, the rent reserved in this Lease shall
be deemed to be the total rent payable by Tenant under Articles 3 and 5 hereof.
19.2 Landlord shall have the remedy described in California Civil Code section 1951.4. Even
though Xxxxxx has breached this Lease and an Event of Default has occurred, this Lease shall
continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and
Landlord shall have the right to enforce all its rights and remedies under this Lease, including
the right to recover all rent as it becomes due under this Lease. Acts of maintenance or
preservation or efforts to relet the Premises or the appointment of a receiver upon initiative of
Landlord to protect Xxxxxxxx’s interest under this Lease shall not constitute a termination of
Tenant’s right to possession unless written notice of termination is given by Landlord to Tenant.
19.3 The remedies provided for in this Lease are in addition to all other remedies
available to Landlord at law or in equity by statute or otherwise.
ARTICLE 20
Xxxxxxxx’s Right to Cure Defaults
20.1 All agreements to be performed by Tenant under this Lease shall be at Tenant’s sole
cost and expense and without any abatement of rent. If Xxxxxx fails to pay any sum of money
required to be paid by Tenant hereunder or fails to perform any other act on Xxxxxx’s part to be
performed hereunder, Landlord shall have the right, but shall not be obligated, and without waiving
or releasing Tenant from any obligations of Tenant, to make any such payment or to perform any such
other act on behalf of Tenant in accordance with this Lease. All sums so paid by Xxxxxxxx and all
necessary incidental costs shall be deemed additional rent hereunder and shall be payable by Tenant
to Landlord on demand, together with interest on all such sums from the date of expenditure by
Landlord to the date of repayment by Xxxxxx at the rate of ten percent (10%) per annum. Landlord
shall have, in addition to all other rights and remedies of Landlord,
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the same rights and remedies in the event of the nonpayment of such sums plus interest by
Xxxxxx as in the case of default by Xxxxxx in the payment of rent.
ARTICLE 21
Eminent Domain
21.1 If a material part of the Premises is taken by exercise of the power of eminent domain
before the Commencement Date or during the term of this Lease, Landlord and Tenant each shall have
the right, by giving written notice to the other within thirty (30) days after the date of such
taking, to terminate this Lease. If either Landlord or Tenant exercises such right to terminate
this Lease in accordance with this section 21.1, this Lease shall terminate as of the date of such
taking. If neither Landlord nor Tenant exercises such right to terminate this Lease in accordance
with this section 21.1, or if less than a material part of the Premises is so taken, this Lease
shall terminate as to the portion of the Premises so taken as of the date of such taking and shall
remain in full force and effect as to the portion of the Premises not so taken, and the Base Rent
and Tenant’s Percentage Share shall be reduced as of the date of such taking in the proportion that
the usable area of the Premises so taken bears to the total usable area of the Premises. If all of
the Premises is taken by exercise of the power of eminent domain before the Commencement Date or
during the term of this Lease, this Lease shall terminate as of the date of such taking.
21.2 If all or any part of the Premises is taken by exercise of the power of eminent domain,
all awards, compensation, damages, income, rent and interest payable in connection with such taking
shall, except as expressly set forth in this section 21.2, be paid to and become the property of
Landlord, and Tenant hereby assigns to Landlord all of the foregoing. Without limiting the
generality of the foregoing, Tenant shall have no claim against Landlord or the entity exercising
the power of eminent domain for the value of the leasehold estate created by this Lease or any
unexpired term of this Lease. Tenant shall have the right to claim and receive directly from the
entity exercising the power of eminent domain only the share of any award determined to be owing to
Tenant for the taking of improvements installed in the portion of the Premises so taken by Tenant
at Tenant’s sole cost and expense based on the unamortized cost paid by Tenant for such
improvements, for the taking of Tenant’s movable furniture, equipment, trade fixtures and personal
property, for loss of goodwill, for interference with or interruption of Tenant’s business, or for
removal and relocation expenses, but only if such share does not reduce the amount otherwise
payable to Landlord.
21.3 As used in this Article 21, a “taking” means the acquisition of all or part of the
Premises for a public use by exercise of the power of eminent domain and the taking shall be
considered to occur as of the earlier of the date on which possession of the Premises (or part so
taken) by the entity exercising the power of eminent domain is authorized as stated in an order for
possession or the date on which title to the Premises (or part so taken) vests in the entity
exercising the power of eminent domain.
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ARTICLE 22
Subordination to Mortgages
22.1 This Lease shall be subject and subordinate at all times to the lien of all mortgages
and deeds of trust securing any amount or amounts whatsoever which may now exist or hereafter be
placed on or against the Building or on or against Landlord’s interest or estate therein, all
without the necessity of having further instruments executed by Tenant to effect such
subordination. Notwithstanding the foregoing, in the event of a foreclosure of any such mortgage or
deed of trust or of any other action or proceeding for the enforcement thereof, or of any sale
thereunder, this Lease shall not be terminated or extinguished, nor shall the rights and possession
of Tenant hereunder be disturbed, if no Event of Default exists under this Lease, and Tenant shall
attorn to the person who acquires Landlord’s interest hereunder through any such mortgage or deed
of trust. Xxxxxx agrees to execute, acknowledge and deliver upon demand such further instruments
evidencing such subordination of this Lease to the lien of all such mortgages and deeds of trust as
may reasonably be required by Landlord, but Xxxxxx’s covenant to subordinate this Lease to
mortgages or deeds of trust hereafter executed is conditioned upon each such senior mortgage or
deed of trust, or a separate subordination agreement, containing the commitments specified in the
preceding sentence.
ARTICLE 23
No Merger
23.1 The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger and shall, at the option of Landlord, terminate all or any
existing subleases or subtenancies or operate as an assignment to Landlord of any or all such
subleases or subtenancies.
ARTICLE 24
Sale
24.1 If the original Landlord hereunder, or any successor owner of the Building, sells or
conveys the Building, all liabilities and obligations on the part of the original Landlord, or such
successor owner, under this Lease accruing after such sale or conveyance shall terminate and the
original Landlord, or such successor owner, shall automatically be released therefrom, and
thereupon all such liabilities and obligations shall be binding upon the new owner. Xxxxxx agrees
to attorn to such new owner.
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ARTICLE 25
Estoppel Certificate
25.1 At any time and from time to time, Tenant shall, within ten (10) days after written
request by Landlord, execute, acknowledge and deliver to Landlord a certificate certifying: (a)
that this Lease is unmodified and in full force and effect (or, if there have been modifications,
that this Lease is in full force and effect as modified, and stating the date and nature of each
modification); (b) the Commencement Date and the Expiration Date determined in accordance with
Article 2 hereof and the date, if any, to which all rent and other sums payable hereunder have been
paid; (c) that no notice has been received by Tenant of any default by Tenant hereunder which has
not been cured, except as to defaults specified in such certificate; (d) that Landlord is not in
default hereunder, except as to defaults specified in such certificate; and (e) such other matters
as may be reasonably requested by Landlord or any actual or prospective purchaser or mortgage
lender. Any such certificate may be relied upon by Landlord and any actual or prospective
purchaser, mortgagee or beneficiary under any deed of trust of the Building or any part thereof.
ARTICLE 26
Holding Over
26.1 If, with the written consent of Landlord, Xxxxxx holds possession of the Premises
after expiration of the term of this Lease, Tenant shall become a tenant from month to month upon
the terms herein specified but at a Base Rent equal to one hundred fifty percent (150%) of the then
prevailing Base Rent paid by Tenant at the expiration of the term of this Lease pursuant to Article
3 hereof, payable in advance on or before the first day of each month. Such month to month tenancy
may be terminated by either Landlord or Tenant by giving thirty (30) days’ written notice of
termination to the other at any time.
ARTICLE 27
Abandonment
27.1 If Tenant abandons or surrenders the Premises, or is dispossessed by process of law
or otherwise, any movable furniture, equipment, trade fixtures or personal property belonging to
Tenant and left in the Premises shall be deemed to be abandoned, at the option of Landlord, and
Landlord shall have the right to sell or otherwise dispose of such personal property in any
commercially reasonable manner.
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ARTICLE 28
Security Deposit
28.1 Upon signing this Lease, Tenant shall pay to Landlord (a) an amount equal to the Base
Rent for the first month of the term of this Lease, which amount Landlord shall apply to the Base
Rent for such first month, and (b) the amount specified in the Basic Lease Information (the
“Deposit”). Landlord shall hold the Deposit as security for the faithful performance and observance
by Tenant of all of the agreements, covenants and conditions of this Lease to be performed and
observed by Tenant, and Tenant shall not be entitled to interest thereon. If Tenant fails to
perform or observe any of the agreements, covenants and conditions of this Lease to be performed or
observed by Tenant, then Landlord shall have the right, but shall not be obligated, to apply the
Deposit, or so much thereof as may be necessary, to cure any such failure by Tenant. Without
limiting the foregoing, Landlord shall have the right to apply the Deposit to future rent damages
Landlord may recover from Tenant at any time under California Civil Code section 1951.2 If Landlord
applies the Deposit or any part thereof to cure any such failure by Xxxxxx, then Tenant shall
immediately pay to Landlord the sum necessary to restore the Deposit to the full amount specified
in this Article 28. Subject to Landlord’s right to apply the Deposit to such future rent damages
and as long as no Event of Default exists, any remaining portion of the Deposit shall be returned
to Tenant following the termination of this Lease. Tenant waives California Civil Code section
1950.7. Upon termination of the original Landlord’s or any successor owner’s interest in the
Premises or the Building, the original Landlord or such successor owner shall be released from
further liability with respect to the Deposit upon the original Landlord’s or such successor
owner’s transferring the Deposit (after any deductions made under this Article 28) to the successor
in interest and thereafter giving notice of the transfer, with the transferee’s name and address,
to Tenant in accordance with this Lease.
ARTICLE 29
Waiver
29.1 The waiver by Landlord or Tenant of any breach of any agreement, covenant or
condition in this Lease shall not be deemed to be a waiver of any subsequent breach of the same or
any other agreement, covenant or condition in this Lease, nor shall any custom or practice which
may grow up between Landlord and Tenant in the administration of this Lease be construed to waive
or to lessen the right of Landlord or Tenant to insist upon the performance by Landlord or Tenant
in strict accordance with this Lease. The subsequent acceptance of rent hereunder by Xxxxxxxx or
the payment of rent by Tenant shall not waive any preceding breach by Tenant of any agreement,
covenant or condition in this Lease, nor cure any Event of Default, nor waive any forfeiture of
this Lease or unlawful detainer action, other than the failure of Tenant to pay the particular rent
so accepted, regardless of Landlord’s or Tenant’s knowledge of such preceding breach at the time of
acceptance or payment of such rent.
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ARTICLE 30
Notices
30.1 All notices that may be given or are required to be given by either Landlord or
Tenant to the other under this Lease shall be in writing and shall be either hand delivered or
deposited in the United States mail, postage prepaid, certified mail with return receipt requested,
and addressed as follows: to Tenant, before the Commencement Date, at the address of Tenant
specified in the Basic Lease Information, or at such other place as Tenant may from time to
time designate in a notice to Landlord, and, after the Commencement Date, to Tenant at the
Premises, or at such other place as Tenant may from time to time designate in a notice to Landlord;
to Landlord at the address of Landlord specified in the Basic Lease Information, or at such
other place as Landlord may from time to time designate in a notice to Tenant. All notices shall be
effective on the date of delivery. If any notice is not delivered or cannot be delivered because
the receiving party changed the address of the receiving party and did not previously give notice
of such change to the sending party, or due to a refusal to accept the notice by the receiving
party, such notice shall be effective on the date delivery is attempted. Any notice under this
Lease may be given on behalf of a party by the attorney for such party.
ARTICLE 31
Miscellaneous
31.1 The words “Landlord” and “Tenant” as used herein shall include the plural as well as
the singular. If there is more than one Tenant, the obligations hereunder imposed upon Tenant shall
be joint and several. Time is of the essence of this Lease and each and all of its provisions.
Submission of this instrument for examination or signature by Xxxxxx does not constitute a
reservation of or option for lease, and it is not effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant. Subject to Article 15 hereof, this Lease shall benefit
and bind Landlord and Xxxxxx and the personal representatives, heirs, successors and assigns of
Landlord and Xxxxxx. Tenant shall not, without the prior written consent of Landlord, use the name
of the Building for any purpose other than as the address of the business to be conducted by Tenant
in the Premises. If any provision of this Lease is determined to be illegal or unenforceable, such
determination shall not affect any other provision of this Lease and all such other provisions
shall remain in full force and effect. If Tenant requests the consent or approval of Landlord to
any assignment, sublease or other action by Xxxxxx, Tenant shall pay on demand to Landlord all
reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred
by Landlord in connection therewith. This Lease shall be governed by and construed in accordance
with the laws of the State of California.
31.2 Tenant acknowledges that the late payment by Tenant of any monthly installment of
Base Rent or additional monthly rent will cause Landlord to incur costs and expenses, the exact
amount of which is extremely difficult and impractical to fix. Such costs and expenses will
include, without limitation, administration and collection costs and processing and accounting
expenses. Therefore, if any monthly installment of Base Rent or additional monthly rent is not
received by Landlord from Tenant within five (5) days after such installment is due, Tenant shall
- 25 -
immediately pay to Landlord a late charge equal to four percent (4%) of such delinquent
installment. Landlord and Tenant agree that such late charge represents a reasonable estimate of
such costs and expenses and is fair compensation to Landlord for its loss suffered by Xxxxxx’s
failure to make timely payment. In no event shall such late charge be deemed to grant to Tenant a
grace period or extension of time within which to pay any monthly rent or prevent Landlord from
exercising any right or remedy available to Landlord upon Tenant’s failure to pay each installment
of monthly rent due under this Lease in a timely fashion, including the right to terminate this
Lease. All amounts of money payable by Tenant to Landlord hereunder, if not paid when due, shall
bear interest from the due date until paid at the rate often percent (10%) per annum.
31.3 If there is any legal action or proceeding between Landlord and Tenant to enforce any
provision of this Lease or to protect or establish any right or remedy of either Landlord or Tenant
hereunder, the unsuccessful party to such action or proceeding shall pay to the prevailing party
all costs and expenses, including reasonable attorneys’ fees, incurred by such prevailing party in
such action or proceeding and in any appeal in connection therewith. If such prevailing party
recovers a judgment in any such action, proceeding or appeal, such costs, expenses and attorneys’
fees shall be included in and as a part of such judgment.
31.4 Exhibit A (Plan Outlining the Premises), Exhibit B (Initial Improvement of the Premises)
and Exhibit C (Rules and Regulations) are attached to and made a part of this Lease. Landlord and
Tenant agree that the rentable areas of the Building and the Premises are accurately set forth in
the Basic Lease Information.
ARTICLE 32
Financing Condition
32.1 Landlord may obtain secured (mortgage) financing for the Building. If any lender
secured or to be secured by a mortgage or deed of trust should require, as a condition to such
financing, either execution by Tenant of an agreement requiring Tenant to send such lender written
notice of any default by Landlord under this Lease, giving such lender the right to cure such
default until such lender has completed foreclosure and preventing Tenant from terminating this
Lease unless such default remains uncured after foreclosure has been completed, or any modification
of the agreements, covenants or conditions of this Lease, or both of them, then Xxxxxx agrees to
execute and deliver such agreement and to modify this Lease as required by such lender; provided,
however, that no such modification shall affect the length of the term hereof or increase the rent
payable by Tenant under Article 3 hereof or otherwise increase Tenant’s obligations or decrease
Tenant’s rights under this Lease in any material respect. If Tenant fails to execute any such
agreement or modification within fifteen (15) days after receipt thereof, Landlord shall have the
right, by giving written notice to Tenant, to terminate this Lease and, upon giving such notice,
Landlord shall refund to Tenant any unearned rent and the Deposit, if any, this Lease shall
terminate, and Landlord and Tenant each shall be released from further obligations to the other
under this Lease except for matters occurring or obligations arising prior to the date of such
termination.
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ARTICLE 33
Real Estate Brokers
33.1 Tenant warrants and represents that it has negotiated this Lease directly with the
real estate brokers specified in the Basic Lease Information and has not authorized or
employed, or acted by implication to authorize or to employ, any other real estate broker or
salesperson to act for Tenant in connection with this Lease. Tenant shall indemnify and defend
Landlord against and hold Landlord harmless from all claims, demands, liabilities, damages, losses,
costs and expenses, including, without limitation, reasonable attorneys’ fees, arising from any
claim for any compensation, commission or finder’s fee by any real estate broker or salesperson
actually or allegedly representing or acting on behalf of Tenant other than those specified in this
Article 33.
ARTICLE 34
Corporate Authority
34.1 If Tenant is a corporation, Tenant represents and warrants that (a) Tenant is duly
incorporated and validly existing under the laws of its state of incorporation, (b) Tenant is
qualified to do business in California, (c) Tenant has full corporate right and authority to enter
into this Lease and to perform all of Tenant’s obligations hereunder, and (d) each person signing
this Lease on behalf of the corporation is duly and validly authorized to do so. Concurrently with
signing this Xxxxx, Tenant shall deliver to Landlord a true and correct copy of resolutions duly
adopted by the board of directors of Tenant, certified by the secretary or assistant secretary of
Tenant to be true and correct, unmodified and in full force, which authorize and approve this Lease
and authorize each person signing this Lease on behalf of Tenant to do so.
ARTICLE 35
Complete Agreement
35.1 There are no oral agreements between Landlord and Tenant affecting this Lease. There
are no representations between Landlord and Tenant or between any real estate broker and Tenant
other than those, if tiny, expressly set forth in this Lease. This Lease constitutes the entire and
integrated agreement between Landlord and Tenant relating to the Building, the Premises and the
subject matter of this Lease and supersedes all prior agreements, understandings, offers and
negotiations, oral or written, with respect thereto. This Lease may not be amended or modified in
any respect whatsoever except by an agreement in writing signed by Landlord and Xxxxxx.
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IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Lease as of the date first
hereinabove written.
| /s/ X. X. Xxxxxxxxx | ||||||
| Xxxxx X. Xxxxxxxxx | ||||||
| VIA PHARMACEUTICALS, INC., | ||||||
| a Delaware corporation | ||||||
| By | /s/ Xxxxxxxx X. Xxxxx | |||||
| Title | CEO | |||||
| By | /s/ Xxxxxxx X. Xxx | |||||
| Title | V. P. Business Development | |||||
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EXHIBIT A
Plan Outlining the Premises
A-1
EXHIBIT B
Initial Improvement of the Premises
1. Landlord’s Work. Landlord shall, through Xxxxxxxx’s contractor, perform the
following work in the Premises at the expense of Landlord: touch up paint as needed; clean existing
carpet; and replace existing vinyl composite tile in one room with Building standard carpet.
2. Other Work by Tenant. All other work in the Premises, such as the furnishing and
installing of furniture, telephone equipment and wiring and office equipment, shall be furnished
and installed by Tenant at Tenant’s expense. Tenant shall adopt a schedule in conformance with the
schedule of Landlord’s contractor and conduct its work in such a manner as to maintain harmonious
labor relations and as not to interfere with or delay the work of Landlord’s contractor. Tenant’s
contractors, subcontractors and labor shall be acceptable to and approved in writing by Landlord
and shall be subject to the administrative supervision of Landlord’s contractor. Contractors and
subcontractors engaged by Tenant shall employ workers and means to ensure so far as may be possible
the progress of the work of Landlord’s contractor without interruption on account of strikes, work
stoppages or similar causes for delay. For the period of two (2) weeks prior to the Commencement
Date, Landlord shall give access and entry to the Premises to Tenant and its contractors and
subcontractors and reasonable opportunity and time and reasonable use of facilities to enable
Tenant to adapt the Premises for Tenant’s use.
3. Requirements. All work performed in the Premises by Tenant or Xxxxxx’s
contractor in connection with improvements shall be subject to Article 8 and the following
additional requirements:
(a) Such work shall not proceed until Landlord has approved in writing: (i) Tenant’s
contractor, (ii) the amount and coverage of public liability and property damage insurance, with
Landlord named as an additional insured, carried by Xxxxxx’s contractor, (iii) complete and
detailed plans and specifications for such work, and (iv) a schedule for the work.
(b) All work shall be done in conformity with a valid permit when required, a copy of which
shall be furnished to Landlord before such work is commenced. In any case, all such work shall be
performed in accordance with all applicable laws. Notwithstanding any failure by Landlord to object
to any such work, Landlord shall have no responsibility for Tenant’s failure to comply with
applicable laws.
(c) All work by Xxxxxx or Xxxxxx’s contractor shall be done with union labor in
accordance with all union labor agreements applicable to the trades being employed.
(d) All work by Xxxxxx or Xxxxxx’s contractor shall be scheduled through Landlord.
(e) Tenant or Tenant’s contractor shall arrange for necessary utility and elevator service, on
a nonexclusive basis, with Landlord’s contractor and shall pay such costs for such services as may
be charged by Xxxxxxxx’s contractor. Landlord shall have the right to require
B-1
any necessary movement of materials by the elevator to be done after regular working hours at the
expense of Xxxxxx.
(f) Tenant’s entry on the Premises for any purpose, including, without limitation, inspection
or performance of improvement work by Xxxxxx, prior to the Commencement Date shall be subject to
all of the agreements and covenants of Tenant in this Lease except the payment of rent. Entry by
Tenant shall include entry by Tenant’s officers, employees, contractors, licensees, agents,
servants, guests, invitees or visitors.
(g) Tenant shall be responsible for cleaning the Premises and removing all debris. All
completed work shall be subject to inspection and acceptance by Landlord. Tenant shall promptly
reimburse Landlord upon demand for all extra expense incurred by Landlord by reason of faulty work
done by Xxxxxx or Xxxxxx’s contractor, or by reason of any delays caused by work done by Tenant or
Xxxxxx’s contractor, or by reason of inadequate cleanup by Tenant or Xxxxxx’s contractor.
B-2
EXHIBIT C
Rules and Regulations
1. Common Areas. The sidewalks, halls, passages, exits, entrances, elevators and
stairways of the Building shall not be obstructed by Tenant or used for any purpose other than for
ingress to and egress from the Premises. The halls, passages, exits, entrances, elevators and
stairways are not for the general public and Landlord shall in all cases have the right to control
and prevent access thereto of all persons (including, without limitation, messengers or delivery
personnel) whose presence in the judgment of Landlord would be prejudicial to the safety,
character, reputation or interests of the Building and its tenants. Messengers and delivery
personnel shall not be permitted beyond the security guard desk in the lobby of the Building. All
deliveries and pick-ups by messengers and delivery personnel shall be effected only at the security
guard desk in the lobby of the Building. Neither Tenant nor any agent, employee, contractor,
invitee or licensee of Tenant shall go upon the roof of the Building. Landlord shall have the right
at any time, without the same constituting an actual or constructive eviction and without incurring
any liability to Tenant therefor, to change the arrangement or location of entrances or
passageways, doors or doorways, corridors, elevators, stairs, toilets and other common areas of the
Building.
2. Signs. No sign, placard, picture, name, advertisement or notice visible from the
exterior of the Premises shall be inscribed, painted, affixed or otherwise displayed by Tenant on
any part of the Building or the Premises without the prior written consent of Landlord. Landlord
will adopt and furnish to tenants general guidelines relating to signs inside the Building. Xxxxxx
agrees to conform to such guidelines. All approved signs or lettering shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved by Landlord. Material visible
from outside the Building will not be permitted.
3. Prohibited Uses. The Premises shall not be used for the storage of merchandise held
for sale to the general public or for lodging. No cooking shall be done or permitted on the
Premises except that private use by Tenant of Underwriters’ Laboratory-approved equipment for
warming food or for brewing coffee, tea, hot chocolate and similar beverages will be permitted,
provided that such use is in accordance with all applicable Federal, state and municipal laws,
codes, ordinances, rules and regulations.
4. Janitorial Service. Tenant shall not employ any person other than the janitor of
Landlord for the purpose of cleaning the Premises unless otherwise agreed to by Landlord in
writing. Except with the written consent of Landlord, no persons other than those approved by
Landlord shall be permitted to enter the Building for the purpose of cleaning the Premises. Tenant
shall not cause any unnecessary labor by reason of Xxxxxx’s carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall not be responsible to Tenant for any
loss of property in the Premises, however occurring, or for any damage done to the effects of
Tenant by the janitor or any other employee or any other person.
5. Keys. Landlord will furnish Tenant without charge with two (2) keys to each door
lock provided in the Premises by Landlord. Tenant shall not alter any lock or install a new
C-1
or additional lock or any bolt on any door of the Premises. Tenant, upon the termination of this
Lease, shall deliver to Landlord all keys to doors in the Building.
6. Moving Procedures. Landlord shall designate appropriate entrances for deliveries or
other movement to or from the Premises of equipment, materials, supplies, furniture or other
property, and Tenant shall not use any other entrances for such purposes. All moves shall be
scheduled and carried out during non-business hours of the Building. All persons employed and means
or methods used to move equipment, materials, supplies, furniture or other property in or out of
the Building must be approved by Landlord prior to any such movement. Landlord shall have the right
to prescribe the maximum weight, size and position of all equipment, materials, furniture or other
property brought into the Building. Heavy objects shall, if considered necessary by Landlord, stand
on a platform of such thickness as is necessary properly to distribute the weight. Landlord will
not be responsible for loss of or damage to any such property from any cause, and all damage done
to the Building by moving or maintaining such property shall be repaired at the expense of Tenant.
7. No Nuisances. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material other than limited quantities
thereof reasonably necessary for the operation or maintenance of office equipment. Tenant shall not
use any method of heating or air conditioning other than that supplied by Landlord. Tenant shall
not use or keep or permit to be used or kept any foul or noxious gas or substance in the Premises,
or permit or suffer the Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or vibrations, or interfere
in any way with other tenants or those having business in the Building, nor shall any animals be
brought or kept in the Premises or the Building.
8. Change of Address. Landlord shall have the right, exercisable without notice and
without liability to Tenant, to change the name or street address of the Building or the room or
suite number of the Premises.
9. Business Hours. Landlord establishes the hours of 8 A.M. to 5 P.M. Monday through
Friday, except union holidays and legal holidays, as reasonable and usual business hours for the
purposes of section 7.2 of this Lease. If Tenant requests electricity or heat or air conditioning
or any other services during any other hours or on any other days, and if Landlord is able to
provide the same, Tenant shall pay Landlord such charge as Landlord shall establish from time to
time for providing such services during such hours. Any such charges which Tenant is obligated to
pay shall be deemed to be additional rent under this Lease.
10. Access to Building. Landlord reserves the right to exclude from the Building
during the evening, night and early morning hours beginning at 5 P.M. and ending at 8 A.M. Monday
through Friday, and at all hours on Saturdays, Sundays, union holidays and legal holidays, all
persons who do not present identification acceptable to Landlord. Tenant shall provide Landlord
with a list of all persons authorized by Tenant to enter the Premises and shall be liable to
Landlord for all acts of such persons. Landlord shall in no case be liable for damages for any
error with regard to the admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other circumstances rendering such action advisable in
Landlord’s opinion, Landlord reserves the right to prevent access to the Building
C-2
during the continuance of the same by such action as Landlord may deem appropriate, including
closing doors.
11. Building Directory. The directory of the Building will be provided for the display
of the name and location of Tenant and a reasonable number of the principal officers and employees
of Tenant at the expense of Tenant. Landlord reserves the right to restrict the amount of directory
space utilized by Xxxxxx.
12. Window Coverings. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, hangings or decorations shall be attached to, hung or placed in, or used in
connection with any window of the Building without the prior written consent of Landlord. In any
event, with the prior written consent of Landlord, such items shall be installed on the office side
of Landlord’s standard window covering and shall in no way be visible from the exterior of the
Building. Tenant shall keep window coverings closed when the effect of sunlight (or the lack
thereof) would impose unnecessary loads on the Building’s air conditioning systems.
13. Food and Beverages. Tenant shall not obtain for use in the Premises ice, drinking
water, food, beverage, towel or other similar services, except at such reasonable hours and under
such reasonable regulations as may be established by Landlord.
14. Procedures When Leaving. Tenant shall ensure that the doors of the Premises are
closed and locked and that all water faucets, water apparatus and utilities are shut off before
Tenant and its employees leave the Premises so as to prevent waste or damage. For any default or
carelessness in this regard, Tenant shall be liable and pay for all damage and injuries sustained
by Landlord or other tenants or occupants of the Building. On multiple-tenancy floors, Tenant shall
keep the doors to the Building corridors closed at all times except for ingress and egress.
15. Bathrooms. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were constructed, no foreign
substance of any kind whatsoever shall be thrown therein, and the expense of any breakage, stoppage
or damage resulting from the violation of this rule shall be paid by Tenant if caused by Tenant or
its agents, employees, contractors, invitees or licensees.
16. Prohibited Activities. Except with the prior written consent of Landlord, Tenant
shall not sell at retail newspapers, magazines, periodicals, theater or travel tickets or any other
goods or merchandise to the general public in or on the Premises, nor shall Tenant carry on or
permit or allow any employee or other person to carry on the business of stenography, typewriting,
printing or photocopying or any similar business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building, nor shall the Premises be used for
manufacturing of any kind, or any business or activity other than that specifically provided for in
this Lease.
17. No Antenna. Tenant shall not install any radio or television antenna, loudspeaker,
or other device on the roof or exterior walls of the Building. No television or radio or recorder
shall be played in such a manner as to cause a nuisance to any other tenant.
18. Vehicles. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or others, any hand trucks except those equipped with rubber tires and
C-3
side guards or such other material handling equipment as Landlord approves. No other vehicles of
any kind shall be brought by Tenant into the Building or kept in or about the Premises.
19. Trash Removal. Tenant shall store all its trash and garbage within the Premises.
No material shall be placed in the trash boxes or receptacles if such material is of such nature
that it may not be disposed of in the ordinary and customary manner of removing and disposing of
office building trash and garbage in the City and County of San Francisco without being in
violation of any law or ordinance governing such disposal. All garbage and refuse disposal shall be
made only through entryways and elevators provided for such purposes and at such times as Landlord
shall designate. Tenant shall crush and flatten all boxes, cartons and containers. Tenant shall pay
extra charges for any unusual trash disposal.
20. No Soliciting. Canvassing, soliciting, distribution of handbills or any
other written material and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
21. Services. The requirements of Tenant will be attended to only upon application in
writing at the office of the Building. Personnel of Landlord shall not perform any work or do
anything outside of their regular duties unless under special instructions from Landlord.
22. Waiver. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord shall be construed as a
waiver of such Rules and Regulations in favor of any other tenant or tenants, nor prevent Landlord
from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the
Building.
23. Supplemental to Lease. These Rules and Regulations are in addition to, and shall
not be construed to in any way modify or amend, in whole or in part, the agreements, covenants and
conditions of this Lease.
24. Amendments and Additions. Landlord reserves the right to make such other rules and
regulations, and to amend or repeal these Rules and Regulations, as in its judgment may from time
to time be needed for the safety, care and cleanliness of the Building and for the preservation of
good order therein.
C-4
LEASE AMENDMENT NO. ONE
THIS AMENDMENT, made as of January 15, 2008, by and between XXXXX X. XXXXXXXXX
(“Landlord”) and VIA PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”),
WITNESSETH:
Recital of Facts:
Landlord and Tenant entered into the Office Lease (the “Lease”) dated October 13, 2005. Words
defined in the Lease have the same meanings in this Amendment. The Lease covers a portion of the
third floor, comprising four thousand seven hundred seventy-six (4,776) square feet of rentable
area, of the Building. The term of the Lease began on November 1, 2005, and will end on October 31,
2008. Landlord and Tenant wish to add another portion of the third floor (the “Additional
Premises”) of the Building, comprising three thousand four hundred four (3,404) square feet of
rentable area, to the Premises and extend the term of the Lease as provided in this Amendment.
NOW, THEREFORE, in consideration of the covenants in this Amendment, Landlord and Tenant agree
as follows:
1. Additional Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, for the term and subject to the agreements, covenants and conditions set forth in
the Lease, as amended by this Amendment, to all of which Landlord and Tenant hereby agree, the
Additional Premises in the Building substantially shown outlined on the floor plan attached hereto
as Exhibit A and made a part of this Amendment.
2. Effective Date.
(a) The Additional Premises shall be added to and become part of the Premises under the Lease,
as amended by this Amendment, on the date (the “Additional Premises Effective Date”) that is the
earlier to occur of (i) June 1, 2008, or (ii) the date on which Tenant occupies the Additional
Premises for the conduct of Tenant’s business.
(b) Landlord shall deliver possession of the Additional Premises to Tenant promptly after the
existing tenant vacates the Additional Premises. Landlord and Tenant acknowledge and agree that an
existing tenant under an existing lease presently occupies the Additional Premises and Landlord
cannot deliver possession of the Additional Premises to Tenant until such existing lease terminates
and such existing tenant vacates the Additional Premises. Prior to the Additional Premises
Effective Date, Landlord shall give access and entry to the Premises to Tenant and its contractors
and subcontractors for the purpose of Tenant’s constructing and installing improvements in the
Additional Premises for Tenant. Tenant’s entry on the Additional Premises for any purpose,
including, without limitation, performance of improvement work by Xxxxxx, prior to the Additional
Premises Effective Date shall be subject to all of the agreements and covenants of Tenant in the
Lease, as amended by this Amendment, except the payment of rent.
- 1 -
(c) Effective as of the Additional Premises Effective Date, all references to the
Premises in the Lease, as amended by this Amendment, shall include the Additional Premises for all
purposes. Landlord and Tenant each shall, promptly after the Additional Premises Effective Date
occurs, execute and deliver to the other an amendment to the Lease confirming the Additional
Premises Effective Date, but the Additional Premises shall be added to the Premises as of the
Additional Premises Effective Date whether or not such amendment is executed.
3. Improvements in Additional Premises. Tenant shall construct and install
improvements in the Additional Premises in accordance with Article 8 of the Lease. As Landlord’s
contribution on account of the costs of architectural and engineering services and improvement work
in the Additional Premises, Landlord shall give Tenant an allowance in the amount of eight-five
thousand one hundred dollars ($85,100) (“Landlord’s Contribution”). Upon the written request for
disbursements from time to time by Xxxxxx and the receipt and approval by Landlord of invoices,
purchase orders, applications and certificates for payment, and other written evidence satisfactory
to Landlord showing in reasonable detail the services rendered or the work performed and the costs
incurred for improvements in the Additional Premises, Landlord shall pay Landlord’s Contribution
directly to Tenant’s architect or engineer and directly to Xxxxxx’s contractor for the account of
Tenant in installments as and when such costs of architectural and engineering services and
improvement work in the Additional Premises become due and payable until Landlord’s Contribution
has been completely expended. The right of Tenant to request, and the obligation of Landlord to
make, disbursements of Landlord’s Contribution shall terminate on the date three (3) months after
the Additional Premises Effective Date, and thereafter any unused balance of Landlord’s
Contribution shall no longer be available. Subject to Landlord’s Contribution, Tenant shall accept
the Additional Premises in “as is” condition and Landlord shall have no obligation to construct or
install any improvements in the Additional Premises.
4. Base Rent. Effective as of the Additional Premises Effective Date, the provision in
the Basic Lease Information of the Lease for “Base Rent (section 3.1(a))” shall be amended to add
the following as the Base Rent for the Additional Premises: During the period from the Additional
Premises Effective Date through October 31, 2008, inclusive, the Base Rent for the Additional
Premises shall be ten thousand four hundred ninety-five and sixty-seven hundredths dollars
($10,495.67) per month. If the Additional Premises Effective Date is not the first day of a month,
the Base Rent for the month in which the Additional Premises Effective Date occurs shall be
prorated based on the actual number of days in such month. On the date of this Amendment, Tenant
shall pay to Landlord the amount equal to the Base Rent for the Additional Premises for the first
month, which amount Landlord shall apply to the Base Rent for the Additional Premises for the first
month.
5. Deposit. Effective as of the Additional Premises Effective Date, the “Deposit
(section 28.1)” set forth in the Basic Lease Information of the Lease shall be twenty-seven
thousand nine hundred forty-eight and thirty-three hundredths dollars ($27,948.33). On the date of
this Amendment, Tenant shall pay to Landlord the additional amount of seventeen thousand nine
hundred ninety-eight and thirty-three hundredths dollars ($17,998.33) on account of the Deposit.
- 2 -
6. Parking.
Effective as of the Additional Premises Effective Date, the reference
to
“One (1)” in “Parking Spaces (section 1.3)” of the Basic Lease Information of the Lease shall be
“Two (2).”
7. Extension of Term. Effective as of November 1, 2008, the following
provisions
in the Basic Lease Information of the Lease shall be amended to read as follows:
Premises (section 1.1): A portion of the third floor comprising eight thousand one
hundred eighty (8,180) square feet of rentable area
Parking Spaces (section 1.3): Two (2)
Term
(section 2.1): Four (4) years and seven (7) months
Commencement Date (section 2.1): November 1, 2008
Expiration Date (section 2.1): May 31, 2013
Base Rent (section 3.1(a)): For each period of months set forth
below, the corresponding amount of Base Rent per month set forth below:
| Period | Base Rent | |||
November 1, 2008-May 31, 2009
|
$ | 25,221.67 | ||
June 1,2009-May 31, 2010
|
$ | 25,903.33 | ||
June 1,2010-May 31, 2011
|
$ | 26,585.00 | ||
June 1,2011-May 31, 2012
|
$ | 27,266.67 | ||
June 1,2012-May 31, 2013
|
$ | 27,948.33 | ||
Base Expense Year (section 3.1 (b)): 2008
Base Tax Year (section 3.1 (c)): 2008
Tenant’s Percentage Share (section 4.1(c)): Eight and seven tenths percent (8.7%)
| Deposit (section 28.1): Twenty-seven thousand nine hundred forty-eight and thirty-free hundredths dollars ($27,948.33) |
8. Right to Terminate.
(a) Effective as of the date of this Amendment, section 2.5 of the Lease, as amended by
this Amendment, is amended in its entirety to read as follows:
2.5 Subject to the provisions of this section 2.5, Tenant shall have the
right to terminate this Lease on any date (the “Early Termination Date”) after October
31, 2011. Tenant may exercise such right only if all of the following requirements are
satisfied: (a) Xxxxxx gives a written notice exercising such right
- 3 -
and designating the Early Termination Date to Landlord at least six (6) months before
the Early Termination Date; (b) concurrently with giving such notice, Tenant pays to
Landlord an amount equal to the sum of (i) the unamortized cost of the leasing
commissions and Landlord’s Contribution paid by Landlord on account of this Lease plus
(ii) the Base Rent for two (2) months corresponding to the period set forth in the
Basic Lease Information during which the Early Termination Date occurs; and (c) no
Event of Default (as hereinafter defined) exists under this Lease when Tenant gives
such notice to Landlord. For the purpose of calculating the amount payable by Tenant to
Landlord if Tenant exercises such right, the total amount of such leasing commissions
and Landlord’s Contribution is one hundred sixty-two thousand nine hundred twenty
dollars ($162,920) (less any unused balance of Landlord’s Contribution), the interest
rate is eight percent (8%), and the amortization period is four (4) years and seven (7)
months from the Commencement Date to the Expiration Date. If Tenant exercises such
right in accordance with this section 2.5, the term of this Lease shall end of the
Early Termination Date as though the Early Termination Date were the Expiration Date.
If Tenant exercises the right to terminate this Lease in accordance with this section
2.5, Landlord and Tenant each shall, promptly after a written request by either party,
execute and deliver to the other an amendment to this Lease which confirms the
termination of this Lease on the Early Termination Date, but the term of this Lease
shall end on the Early Termination Date whether or not such amendment is executed.
(b) In order to illustrate the calculation of the amount payable by Tenant to
Landlord concurrently with Xxxxxx’s giving the written notice exercising the right to
terminate this Lease on the Early Termination Date, an Amortization Table is attached
hereto as Exhibit C and made a part of this Amendment. The Amortization Table assumes
that the total amount of the leasing commissions and Landlord’s Contribution paid by
Xxxxxxxx is one hundred sixty-two thousand nine hundred twenty dollars ($162,920) and no
unused balance of Landlord’s Contribution exists. If, for example, Tenant were to
designate January 31, 2012, as the Early Termination Date, then the unamortized cost of
the leasing commissions and Landlord’s Contribution will be $53,676.75, the Base Rent for
two (2) months corresponding to the period during which the Early Termination Date occurs
will be $54,533.34, and the total amount payable by Tenant to Landlord concurrently with
such notice will be $108,210.09.
9. Expansion Option.
(a) A portion of the third floor of the Building, comprising two thousand nine hundred
sixty-three (2,963) square feet of rentable area, substantially shown outlined on the floor plan
attached hereto as Exhibit B and made a part of this Amendment (the “Expansion Space”) is leased to
CSI Telecommunications Inc., a California corporation (“CSI”), pursuant to an existing lease (the
“CSI Lease”) between Landlord and CSI. The term of the CSI Lease ends on March 31, 2010. Landlord
shall have the right to renew the CSI Lease or extend the term of the CSI Lease or enter into lease
with CSI or any affiliate thereof or successor thereto for the Expansion Space and, if Landlord
engages in any of the foregoing actions, Tenant shall have no rights whatsoever with respect to the
Expansion Space.
- 4 -
(b) If
the CSI Lease terminates and CSI (and any such affiliate or successor) vacates the
Expansion Space, then, before Landlord completes a lease of the Expansion Space to a new tenant
unrelated to CSI, Landlord shall give a written notice (the “Expansion Offer”) to Tenant in which
Landlord sets forth the terms (including, without limitation, the Base Rent, the Base Expense Year,
the Base Tax Year, the Deposit, the available parking spaces and the funds or work for improvements
contributed by Landlord, if any) on which the Expansion Space would
be added to the Premises for
the remaining term of the Lease, as amended by this Amendment. Tenant shall have the right, by
giving a written notice to Landlord stating Xxxxxx’s acceptance of the Expansion Offer within ten
(10) business days after Tenant receives the Expansion Offer, to accept the Expansion Offer. If
Tenant accepts the Expansion Offer by giving such notice to Landlord within such period often (10)
business days, then Landlord and Tenant each shall, within ten (10) business days after Tenant
gives such notice, execute and deliver to the other an amendment to the Lease that adds the
Expansion Space to the Premises for the remaining term of the Lease, as amended by this Amendment,
on the terms set forth in the Expansion Offer. If Tenant fails to accept the Expansion Offer by
giving such notice to Landlord within such period often (10) business days, then Tenant shall have
no rights whatsoever with respect to the Expansion Space.
(c) If, prior to the date on which Landlord gives the Expansion Offer, Tenant exercises the
right to terminate the Lease on the Early Termination Date in accordance with section 2.5 of the
Lease, as amended by this Amendment, then this paragraph 9 shall terminate on the date Tenant
exercises such right and thereafter Tenant shall have no rights whatsoever with respect to the
Expansion Space.
(d) If Landlord gives the Expansion Offer and Xxxxxx accepts the Expansion Offer in accordance
with this paragraph 9, then Tenant shall have no right thereafter to terminate the Lease, as
amended by this Amendment, on the Early Termination Date pursuant to section 2.5 of the Lease, as
amended by this Amendment.
- 5 -
10. Legal Effect. Except as amended by this Amendment, the Lease is unchanged
and, as so amended, the Lease shall continue in full force and effect. If there is any conflict
between this Amendment and the Lease, this Amendment shall control. This Amendment constitutes the
entire and integrated Agreement between Landlord and Tenant relating to the subject matter of this
Amendment and supersedes all prior agreements, understandings, offers and negotiations, oral or
written, with respect to the subject matter of this Amendment.
IN WITNESS WHEREOF, Landlord and Xxxxxx have executed this Amendment as of the date first
hereinabove written.
| /s/ Xxxxx X. Xxxxxxxxx | ||||
| Xxxxx X. Xxxxxxxxx | ||||
| VIA PHARMACEUTICALS, INC., a Delaware corporation | ||||
| By | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Title SR VP - CFO | ||||
| By | /s/ Xxxxxxxx X. Xxxxx | |||
| Xxxxxxxx X. Xxxxx | ||||
| Title CEO & Pres | ||||
- 6 -
EXHIBIT A
Plan Outlining the Additional Premises
EXHIBIT B
Plan Outlining the Expansion Space
EXHIBIT C
Amortization Table
Amortization Table
Initial Data
Initial Data
| LOAN DATA | TABLE DATA | |||||||||||
Purchase Price: |
$ | 162,920 | Table starts at date: | |||||||||
Down Payment (30%): |
or at payment number: | 1 | ||||||||||
Loan amount: |
$ | 162,920 | ||||||||||
Annual interest rate: |
8.00 | % | ||||||||||
Term in years: |
4,5833 | |||||||||||
Payments per year: |
12 | |||||||||||
Loan date: |
11/1/2008 | |||||||||||
First payment due: |
11/1/2008 | |||||||||||
Last payment date: |
5/31/2013 | |||||||||||
PERIODIC PAYMENT |
||||||||||||
Entered payment: |
$ | 0.00 | The table uses the calculated periodic payment amount, | |||||||||
Calculated payment: |
$ | 3,548.14 | unless you enter a value for “Entered payment.” | |||||||||
CALCULATIONS |
||||||||||||
Use payment of: |
$ | 3,548.14 | Beginning balance at payment 1: | $ | 162,920 | |||||||
1st payment
in table :1 |
Cumulative interest prior to payment 1: | $ | 0.00 | |||||||||
Table
| Payment | Beginning | Ending | Cumulative | |||||||||||||||||||||
| No. | Date | Balance | Interest | Principal | Balance | Interest | ||||||||||||||||||
1 |
11/1/2008 | 162,920.00 | 1,086.13 | $ | 2,462 | 160,458.00 | 1,086.13 | |||||||||||||||||
2 |
12/1/2008 | 160,458.00 | 1,069.72 | $ | 2,478 | 157,979.58 | 2,155.85 | |||||||||||||||||
3 |
1/1/2009 | 157,979.58 | 1,053.20 | $ | 2,495 | 155,484.64 | 3,209.05 | |||||||||||||||||
4 |
2/1/2009 | 155,484.64 | 1,036.56 | $ | 2,512 | 152,973.07 | 4,245.61 | |||||||||||||||||
5 |
3/1/2009 | 152,973.07 | 1,019.82 | $ | 2,528 | 150,444.75 | 5,265.44 | |||||||||||||||||
6 |
4/1/2009 | 150,444.75 | 1,002.97 | $ | 2,545 | 147,899.58 | 6,268.40 | |||||||||||||||||
7 |
5/1/2009 | 147,899.58 | 986.00 | $ | 2,562 | 145,337.44 | 7,254.40 | |||||||||||||||||
8 |
6/1/2009 | 145,337.44 | 968.92 | $ | 2,579 | 142,758.22 | 8,223.31 | |||||||||||||||||
9 |
7/1/2009 | 142,758.22 | 951.72 | $ | 2,596 | 140,161.80 | 9,175.04 | |||||||||||||||||
10 |
8/1/2009 | 140,161.80 | 934.41 | $ | 2,614 | 137,548.08 | 10,109.45 | |||||||||||||||||
11 |
9/1/2009 | 137,548.08 | 916.99 | $ | 2,631 | 134,916.93 | 11,026.43 | |||||||||||||||||
12 |
10/1/2009 | 134,916.93 | 899.45 | $ | 2,649 | 132,268.24 | 11,925.88 | |||||||||||||||||
13 |
11/1/2009 | 132,268.24 | 881.79 | $ | 2,666 | 129,601.89 | 12,807.67 | |||||||||||||||||
14 |
12/1/2009 | 129,601.89 | 864.01 | $ | 2,684 | 126,917.77 | 13,671.68 | |||||||||||||||||
15 |
1/1/2010 | 126,917.77 | 846.12 | $ | 2,702 | 124,215.75 | 14,517.80 | |||||||||||||||||
16 |
2/1/2010 | 124,215.75 | 828.10 | $ | 2,720 | 121,495.72 | 15,345.90 | |||||||||||||||||
17 |
3/1/2010 | 121,495.72 | 809.97 | $ | 2,738 | 118,757.55 | 16,155.88 | |||||||||||||||||
18 |
4/1/2010 | 118,757.55 | 791.72 | $ | 2,756 | 116,001.13 | 16,947.59 | |||||||||||||||||
19 |
5/1/2010 | 116,001.13 | 773.34 | $ | 2,775 | 113,226.34 | 17,720.93 | |||||||||||||||||
20 |
6/1/2010 | 113,226.34 | 754.84 | $ | 2,793 | 110,433.04 | 18,475.78 | |||||||||||||||||
21 |
7/1/2010 | 110,433.04 | 736.22 | $ | 2,812 | 107,621.13 | 19,212.00 | |||||||||||||||||
22 |
8/1/2010 | 107,621.13 | 717.47 | $ | 2,831 | 104,790.46 | 19,929.47 | |||||||||||||||||
23 |
9/1/2010 | 104,790.46 | 698.60 | $ | 2,850 | 101,940.93 | 20,628.07 | |||||||||||||||||
24 |
10/1/2010 | 101,940.93 | 679.61 | $ | 2,869 | 99,072.40 | 21,307.68 | |||||||||||||||||
25 |
11/1/2010 | 99,072.40 | 660.48 | $ | 2,888 | 96,184.74 | 21,968.16 | |||||||||||||||||
26 |
12/1/2010 | 96,184.74 | 641.23 | $ | 2,907 | 93,277.84 | 22,609.39 | |||||||||||||||||
27 |
1/1/2011 | 93,277.84 | 621.85 | $ | 2,926 | 90,351.55 | 23,231.25 | |||||||||||||||||
28 |
2/1/2011 | 90,351.55 | 602.34 | $ | 2,946 | 87,405.76 | 23,833.59 | |||||||||||||||||
29 |
3/1/2011 | 87,405.76 | 582.71 | $ | 2,965 | 84,440.33 | 24,416.30 | |||||||||||||||||
30 |
4/1/2011 | 84,440.33 | 562.94 | $ | 2,985 | 81,455.13 | 24,79.23 | |||||||||||||||||
31 |
5/1/2011 | 81,455.13 | 543.03 | 3,005.10 | 78,450.03 | 255,22.27 | ||||||||||||||||||
32 |
6/1/2011 | 78,450.03 | 523.00 | 3,025.14 | 75,424.89 | 26,045.27 | ||||||||||||||||||
33 |
7/1/2011 | 75,424.89 | 502.83 | 3,045.30 | 72,379.59 | 26,548.10 | ||||||||||||||||||
34 |
8/1/2011 | 72,379.59 | 482.53 | 3,065.61 | 69,313.98 | 27,030.63 | ||||||||||||||||||
35 |
9/1/2011 | 69,313.98 | 462.09 | 3,086.04 | 66,227.94 | 27,492.72 | ||||||||||||||||||
36 |
10/1/2011 | 66,227.94 | 441.52 | 3,106.62 | 63,121.32 | 27,934.24 | ||||||||||||||||||
37 |
11/1/2011 | 63,121.32 | 420.81 | 3,127.33 | 59,993.99 | 28,355.05 | ||||||||||||||||||
38 |
12/1/2011 | 59,993.99 | 399.96 | 3,148.18 | 56,845.81 | 28,755.01 | ||||||||||||||||||
39 |
1/1/2012 | 56,845.81 | 378.97 | 3,169.16 | 53,676.65 | 29,133.98 | ||||||||||||||||||
40 |
2/1/2012 | 53,676.65 | 357.84 | 3,190.29 | 50,486.36 | 29,491.83 | ||||||||||||||||||
41 |
3/1/2012 | 50,486.36 | 336.58 | 3,211.56 | 47,274.80 | 29,828.40 | ||||||||||||||||||
42 |
4/1/2012 | 47,274.80 | 315.17 | 3,232.97 | 44,041.82 | 30,143.57 | ||||||||||||||||||
43 |
5/1/2012 | 44,041.82 | 293.61 | 3,254.52 | 40,787.30 | 30,437 18 | ||||||||||||||||||
44 |
6/1/2012 | 40,787.30 | 271.92 | 3,276.22 | 37,511.08 | 30,709.10 | ||||||||||||||||||
45 |
7/1/2012 | 37,511.08 | 250.07 | 3,298.06 | 34,213.02 | 30,959.17 | ||||||||||||||||||
46 |
8/1/2012 | 34,213.02 | 228.09 | 3,320.05 | 30,892.97 | 31,187.26 | ||||||||||||||||||
47 |
9/1/2012 | 30,892.97 | 205.95 | 3,342.18 | 27,550.78 | 31,393.21 | ||||||||||||||||||
48 |
10/1/2012 | 27,550.78 | 183.67 | 3,364.46 | 24,186.32 | 31,576.88 | ||||||||||||||||||
49 |
11/1/2012 | 24,186.32 | 161.24 | 3,386.89 | 20,799.42 | 31,736.12 | ||||||||||||||||||
50 |
12/1/2012 | 20,799.42 | 138.66 | 3,409.47 | 17,389.95 | 31,876 79 | ||||||||||||||||||
51 |
1/1/2013 | 17,389.95 | 115.93 | 3,432.20 | 13,957.74 | 31,992.72 | ||||||||||||||||||
52 |
2/1/2013 | 13,957.74 | 93.05 | 3,455.09 | 10,502.66 | 32,085.77 | ||||||||||||||||||
53 |
3/1/2013 | 10,502.66 | 70.02 | 3,478.12 | 7,024.54 | 32,155.79 | ||||||||||||||||||
54 |
4/1/2013 | 7,024.54 | 46.83 | 3,501.31 | 3,523.23 | 32,202.62 | ||||||||||||||||||
55 |
5/1/2013 | 3,523.23 | 23.49 | 3,523.23 | 0.00 | 32,226.11 | ||||||||||||||||||
