Sample Business Contracts
California-South San Francisco-651 Gateway Boulevard Sublease - Elan Pharmaceuticals Inc. and Tercica Medica Inc.
Lease Forms
- Start a state-specific lease for the rental of commercial property. Specify the term and rent due, as well as whether the landlord or tenant is responsible for property taxes, insurance, and maintenance and repairs.
- When a tenant vacates commercial property before the lease term has expired, it may be able to rent the premises to a third party. The tenant would be the sublessor and the third party would be the sublessee. Besides preparing a sublease, both parties will want to review the provisions for assignment or subletting in the original lease agreement between the landlord and the sublessor.
- Tenants of residential property should prepare a sublease agreement if they are seeking to sublease a room or the entire apartment or house to a third party. All parties should review the original lease agreement to see if there are any restrictions on subletting or assigning the premises.
- Triple net leases are a type of commercial leases where the tenant has to pay for property taxes, insurance, utilities, and maintenance, in addition to the monthly rent.
- When renting an office space, tenants should understand the amount of the rent and duration of the lease. Other important terms include whether the space can be subleased, which parties are responsible for maintenance, and whether any furniture and furnishings will be provided.
SUBLEASE
651 GATEWAY BOULEVARD
(SUITE 950)
SOUTH SAN FRANCISCO, CALIFORNIA
ELAN PHARMACEUTICALS, INC.
a Delaware corporation as Sublessor
and
TERCICA MEDICA, INC.
a Delaware corporation
as Sublessee
BASIC SUBLEASE INFORMATION
DEFINED TERMS
Building: |
651 Gateway Boulevard South San Francisco, California 94080 | |
Effective Date: | June 24, 2002 | |
Commencement Date: | The date following the Effective Date which is the later of (i) the date upon Sublessor has tendered possession of the Premises to Sublessee, or (ii) the date upon which Sublessor hag obtained Master Landlords consent to this Sublease, subject to the terms and conditions of Section 17.3 hereof. | |
Rent Commencement Date: | The later of (i) July 1, 2002 or (ii) the Commencement Date. | |
Master Landlord: | Gateway Center, LLC, a California limited liability company, successor in interest to HMS Office, L.P., a Delaware limited partnership | |
Master Landlords Address for Notice: |
Boston Properties Four Embarcadero Center, Lobby Level, Suite One San Francisco, CA 94111-5994 Phone: 415 772-0700 Fax: 415 982-1780 Attn: Peter Victor, Vice President, Office Leasing | |
Master Lease: | That certain Office Building Lease by and between HMS Office, L.P., and Sublessor, dated as of June 1, 1999 (the Original Lease), as amended by that certain First Amendment to Lease between Gateway Center, LLC and Sublessor, dated as of October 25, 1999 (the Amendment), true and complete copies of which are attached hereto and incorporated herein as Exhibit A. | |
Master Premises: | Suite 950 and Suite 980 of the building located at 651 Gateway Boulevard, South San Francisco, California and the entire eighth (8th) floor of the building located at 601 Gateway Boulevard, South San Francisco, California | |
Premises: | Improved real property consisting of Suite 950 of the building located at 651 Gateway Boulevard, South San Francisco, California, as more particularly described in the Master Lease, consisting of a portion of the Master Premises, containing approximately 7,490 rentable square feet as |
depicted on Exhibit B attached hereto and incorporated herein, and a nonexclusive right to utilize all of Sublessors leasehold interest in the Common Areas (as defined in Section 1 of the Master Lease). | ||||
Monthly Base Rent: | Dates | Monthly Rent | ||
7/1/02-6/30/03 | $14,814.00 | |||
7/1/03-6/30/04 | $14,814.00 | |||
7/1/04-12/14/04 | $14,814.00 | |||
Security Deposit: | $14,814.00 | |||
Sublessee: | Tercica Medica, Inc., a Delaware corporation | |||
Sublessees Address for Notice: |
Before the Rent Commencement Date: 303 Twin Dolphin Drive Suite 600 Redwood City, CA 94065 Attn: Howard Moore | |||
After the Commencement Date: At the Premises | ||||
Sublessees Proportionate Share: | Seventy-Sixty Percent (76%) of Additional Rent for the Existing Premises (as defined in Section 4.2 of the Original Lease and excluding any Operating Expenses in connection with the Expansion Premises) (See Section 3.2 below) and Sublessee Taxes (as defined in Section 3.2 of this Sublease). | |||
Sublessor: | Elan Pharmaceuticals, Inc., a Delaware corporation | |||
Sublessors Address for Rent and Notice: |
7475 Lusk Boulevard San Diego, CA 92121 Attn: Rick Smith | |||
Term: | The term (Tern) of this Sublease shall begin on the Commencement Date and expire on December 14, 2004. Notwithstanding the foregoing, the Tenant shall cease upon, and shall not refer to any period of time after, termination of the Master Lease (whether pursuant to the terms of the Master Lease, by operation of law, or otherwise). | |||
Permitted Uses: | The Uses set forth in Section 7 of the Master Lease. | |||
Brokers: |
CB Richard Ellis, Inc. for Sublessor BT Commercial for Sublessee | |||
Exhibits: | Exhibit A - Master Lease |
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Exhibit B Premises Depiction |
Exhibit C Personal Property Inventory |
Exhibit D Paint and Carpet Specifications |
Exhibit E PBX Switching System |
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TABLE OF CONTENTS
Page | ||||||||
ARTICLE 1 PREMISES | 1 | |||||||
1.1 | Demise of Premises | 1 | ||||||
1.2 | Condition of Premises | 2 | ||||||
1.2.1 | Physical Condition | 2 | ||||||
1.2.2 | Certain Improvements | 2 | ||||||
1.2.3 | No Representations | 2 | ||||||
1.3 | Validity of Master Tease | 3 | ||||||
ARTICLE 2 TERM | 3 | |||||||
ARTICLE 3 SUBLESSEES PAYMENT OBLIGATIONS | 3 | |||||||
3.1 | Monthly Rage Rent | 3 | ||||||
3.2 | Additional Rent | 3 | ||||||
3.3 | Security Deposit | 4 | ||||||
ARTICLE 4 USE OF ADDITIONAL | 4 | |||||||
ARTICLE 5 USE | 5 | |||||||
ARTICLE 6 RIGHTS AND DUTIES OF SUBLESSEE | 5 | |||||||
6.1 | Sublease Subject to Master Lease | 5 | ||||||
6.2 | Exclusions | 6 | ||||||
6.3 | Time for Notice | 6 | ||||||
6.4 | Sublessors Obligations | 6 | ||||||
6.5 | Use of Building Common Areas | 7 | ||||||
6.6 | Entry by Sublessor | 7 | ||||||
ARTICLE 7 LEASE AND PURCHASE OF PERSONAL, PROPERTY; LEASE OF PHONE | 7 | |||||||
ARTICLE 8 INDEMNIFICATION | 7 | |||||||
ARTICLE 9 INSURANCE | 8 | |||||||
ARTICLE 10 DEFAULTS AND REMEDIES | 8 | |||||||
ARTICLE 11 NOTICES | 8 | |||||||
ARTICLE 12 ASSIGNMENT AND SUBLETTING | 8 | |||||||
ARTICLE 13 REPAIRS AND MAINTENANCE | 8 | |||||||
ARTICLE 14 DAMAGE AND DESTRUCTION | 9 | |||||||
14.1 | Termination of Master Lease | 9 | ||||||
ARTICLE 15 SURRENDER OF PREMISES | 9 |
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ARTICLE 16 RIGHT OF FIRST OFFER | 10 | |||||
16.1 | Right of First Offer | 10 | ||||
16.2 | Procedure | 10 | ||||
ARTICLE 17 MISCELLANEOUS | 10 | |||||
17.1 | Entire Agreement | 10 | ||||
17.2 | Captions | 11 | ||||
17.3 | Master Landlords Consent | 11 | ||||
17.4 | Authority | 11 | ||||
17.5 | Attorney Fees | 11 | ||||
17.6 | Broker | 11 | ||||
17.7 | Counterparts | 11 | ||||
17.8 | Severability | 12 | ||||
17.9 | Governing Law | 12 | ||||
17.10 | Negotiated Transaction | 12 |
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (Sublease) is entered as of the Effective Date by and between Sublessor and Sublessee.
THE PARTIES ENTER this Sublease on the basis of the following facts, understandings and intentions:
A. Master Landlord is the current Landlord of the Premises. Sublessor is presently the Tenant of the Premises pursuant to the Master Lease. A copy of the Master Lease with all amendments, exhibits and addenda thereto, is attached hereto as Exhibit A and incorporated herein by this reference.
B. Sublessor desires to sublease the Premises to Sublessee and Sublessee desires to sublease the Premises from Sublessor on all of the terms, covenants and conditions set forth herein.
C. All of the terms and definitions of the Basic Sublease Information of this Sublease are incorporated herein by this reference. Unless otherwise defined herein or the context otherwise requires, all capitalized terms shall have the meanings given them in the Master Lease.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties, the parties hereto agree as follows:
ARTICLE 1PREMISES
1.1 Demise of Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby subleases from Sublessor the Premises, for the Term and upon all of the terms and conditions herein set forth. The Premises shall be used by Sublessee for those uses specifically set forth in the Basic Sublease Information, subject to the terms and conditions of the Master Lease, including Section 7 of the Master Lease. In addition, Sublessor shall lease to Sublessee, and Sublessee shall lease from Sublessor, the PBX switching system, on the Premises as further described on Exhibit E hereto (the PBX Switching System), the personal property set forth on Exhibit C hereto (the Exhibit C Property), the computer racks currently on the Premises and the UPS battery back-up system currently on the Premises and any and all permanent improvements in or on the Premises (all of the foregoing collectively, the Improvements) constructed and/or owned by Master Landlord and/or Sublessor upon all of the terms, covenants and conditions herein contained. As used herein, Premises shall include the Premises and the Improvements. The Premises represents sixty percent (76%) of the total space in the Existing Premises, which shall be Sublessees Proportionate Share of Additional Rent (as defined in the Basic Sublease Information). It is understood that Sublessee shall have the right to occupy the Premises on the Commencement Date for the operation of its business, provided that Sublessee recognizes that Sublessor shall simultaneously be performing the Sublessee Improvements therein and Sublessee shall cooperate to change offices to accommodate and not in any manner hinder completion of the Sublessee Improvements and shall be subject to noise and vapors arising out of the normal course of completion of such Sublessee Improvements.
1.2 Condition of Premises.
1.2.1 Physical Condition. Except as otherwise expressly set forth herein, Sublessor will deliver the Premises to Sublessee in its current as-is condition as of the Effective Date. As of the Effective Date, Sublessee acknowledges that Sublessee has conducted Sublessees own investigation of the Premises and the physical condition thereof, which in Sublessees judgment affect or influence Sublessees use of the Premises and Sublessees willingness to enter this Sublease and that, except as otherwise expressly set forth herein, neither Sublessor nor any of its employees or agents have made or shall have any liability for any representations or warranties, express or implied, with respect to the condition of the Premises. Except as otherwise expressly set forth herein, by occupying the Premises on the Commencement Date, Sublessee shall be deemed to have acknowledged that it accepts the Premises in their current condition. Sublessee agrees on the last day of the Sublease Term to surrender the Premises unto Sublessor in accordance with Article 15 of this Sublease.
1.2.2 Certain Improvements. Subject to receipt of any necessary consents and approvals from Master Landlord, Sublessor agrees to provide new paint and carpet for the Premises (the Sublessee Improvements). Sublessor shall complete the Sublessee Improvements as soon as reasonably practical following the later of (i) Master Landlord approval of the Sublessee Improvements, (ii) the Commencement Date and (iii) receipt of the necessary materials from the supplier, provided that such deadline shall be delayed one day for each day that completion is delayed by the acts of Sublessee or its agents (Improvement Completion Date). Sublessor and its agents shall have the right to enter onto the Premises and store equipment in the Premises as reasonably necessary to provide the Sublessee Improvements. The paint and carpet shall comply with the specifications set forth on Exhibit D attached hereto and the Sublessee Improvements shall be completed in a good and workmanlike manner. Except as set forth in the immediately preceding sentence, Sublessee agrees that Sublessor makes no representations or warranties whatsoever regarding the fitness of the Sublessee Improvements for any purpose, the quality of the Sublessee Improvements, the freedom of the Sublessee Improvements from fault or defects or any other representation whatsoever concerning the Sublessee Improvements. Sublessors obligation to provide the Sublessee Improvements shall be independent of Sublessees obligation to pay the Sublessee Rent.
1.2.3 No Representations. Sublessee and Sublessor recognize and agree that Sublessor would not sublease the Premises to Sublessee and Sublessee would not sublease the Premises from Sublessor except on an as is basis and acknowledges that neither Sublessee nor Sublessor has made any representations of any kind, express or implied, in connection with the Improvements or physical conditions on, or bearing on, the Premises, including without limitation the suitability of the Premises for Sublessees purposes. Sublessee further recognizes and agrees that neither Sublessor nor Master Landlord shall be required to perform any work of construction, alteration or maintenance of or to the Premises except as set forth herein. Notwithstanding the foregoing, Sublessee shall not be required to construct or pay the cost of complying with any covenants, conditions, restrictions, encumbrances, rules, regulations, statutes, ordinances, laws or building codes requiring construction or improvements to any alterations, improvements or additions
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to the Premises that were made by Sublessor and are properly capitalized under general accounting principles, unless such compliance is necessitated solely because of Sublessees particular use of the Premises.
1.3 Validity of Master Tease. Sublessor hereby warrants that the Master Lease attached hereto as Exhibit A is complete and in full force and effect, and that Sublessor is not in material default thereunder beyond expiration of any applicable cure or notice period, that, to the knowledge of Sublessor, (i) no other party to the Master Lease is in breach or default thereof, (ii) the area which is the subject of the Sublease has not been previously assigned or subleased by Sublessor, and (iii) no other party has a legal right to occupy such area.
ARTICLE 2TERM
The term of this Sublease shall be for the Term set forth in the Basic Sublease Information provided that upon full execution of this Sublease by Sublessor and Sublessee, and on or before the Commencement Date Sublessee provides Sublessor with (i) the certificates evidencing the insurance required by Article 9 of this Sublease, (ii) the first months Base Rent and (iii) the Security Deposit.
ARTICLE 3SUBLESSEES PAYMENT OBLIGATIONS
3.1 Monthly Rage Rent. The Monthly Base Rent shall be payable in advance in equal monthly installments in accordance with the schedule for payment of Monthly Base Rent set forth in the Basic Sublease Information, commencing with the Rent Commencement Date. Upon the execution of this Sublease by Sublessor and Sublessee, Sublessee shall deposit with Sublessor prepaid Rent in an amount equal to Fourteen Thousand Eight Hundred Fourteen Dollars ($14,814.00) for the first months Base Rent (Prepaid Rent). Sublessee shall thereafter pay to Sublessor the Monthly Base Rent in advance, on or before the first day of each month, beginning on the first day of the calendar month succeeding the Rent Commencement Date Base Rent and any additional rent due hereunder shall be payable to Sublessor, without further notice or demand and without deduction or offset, in lawful money of the United States of America at the address specified in the Basic Sublease Information or at such other address as Sublessor may from time to time designate in writing. If the Term shall end on a day other than the last day-of a calendar month, then Rent for the last month of the Term shall be prorated on a per diem basis, with respect to the portions of the last fractional calendar month included in the Term.
3.2 Additional Rent. In addition to Monthly Base Rent, Sublessee shall be responsible for (a) Sublessees Proportionate Share of the Additional Rent (as set forth in the Basic Sublease Information), it being the intent of the parties hereto that, Sublessee shall owe no Operating Expenses (as defined in the Master Lease) to Sublessor applicable to calendar year 2002, (b) Sublessee Taxes (as defined below) and (c) all other additional rent which may be imposed, at any time, on Sublessor with respect to the Premises pursuant to the Master Lease; provided that Sublessee shall not be responsible for any penalties, interest or other costs incurred by Sublessor under the Master Lease that are caused by (i) Sublessors failure to pay rent to Master Landlord in a timely manner in accordance with the Master Lease, unless such failure is cause by Sublessees default or failure to make timely payments to Sublessor in accordance with this Sublease, or (ii) a
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breach of the Master Lease or Sublease by, or the acts or negligence of Sublessor or its agents, representatives, sublessees, employees or invitees (except to the extent such breach, negligence or acts were caused by Sublessee or its agents, representatives, sublessees, employees or invitees). As used herein, Sublease Rent shall include Base Rent, Sublessees Proportionate Share of Additional Rent, Sublessee Taxes and all other amounts payable by Sublessee to Sublessor hereunder. Sublessee shall be responsible for the Sublessee Rent for each and every month of the Sublease Term commencing with the Rent Commencement Date. Sublessee shall pay its Proportionate Share of Additional Rent and Sublessee Taxes no later than thirty (30) days following Sublessees receipt of written demand therefor.
Sublessee Taxes shall consist of all taxes, fees or charges levied or assessed against or attributable to any personal property or trade fixtures in the Premises or by reason of leasehold improvements. If any such taxes, fees or charges are included in Sublessors or Master Landlords taxes, Sublessor may pay them regardless of the validity (under proper protest, if requested by Sublessee and at Sublessees sole cost and expense), and Sublessee will pay Sublessor the amount of Sublessors or Master Landlords taxes, as applicable, attributable to Sublessee, as determined in good faith by Sublessor.
3.3 Security Deposit. Upon the execution of this Sublease by Sublessor and Sublessee, Sublessee shall pay to Sublessor the Security Deposit set forth on the Basic Sublease Information. Sublessor may (but shall not be required to) use the Security Deposit or any portion thereof to cure any defaults on the part of Sublessee (beyond any applicable cure period) or to reasonably compensate Sublessor for any damage Sublessor incurs as a result of Sublessees failure to perform any of its covenants or obligations hereunder (provided Sublessee has been given any required notice and opportunity to cure such failure as set forth under the terms of this Sublease), it being understood that any use of the Security Deposit shall not constitute a bar or defense to any of Sublessors remedies under this Sublease, at law or in equity. In such event, and upon written notice from Sublessor to Sublessee specifying the amount of the Security Deposit so utilized by Sublessor and the particular purpose for which such amount was applied, Sublessee shall immediately deposit with Sublessor an amount sufficient to return the Security Deposit to the amount specified in the Basic Sublease Information. Upon termination or earlier expiration of this Sublease, the Security Deposit shall be returned to Sublessee, reduced by those amounts that may be required by Sublessor to remedy defaults on the part of Sublessee in the payment of Sublessee Rent, to repair damage to the Premises and to clean the Premises to a broom-clean condition. Sublessor shall hold the Security Deposit for the foregoing purposes; provided, however, that Sublessor shall have no obligation to segregate the Security Deposit from its general funds or to pay interest thereon.
ARTICLE 4USE OF ADDITIONAL CONFERENCE ROOM
Sublessee shall have access to and the right to use the conference room in the Suite 980 Space (the Conference Room) on the terms and conditions stated herein at no additional cost and expense to Sublessee, other than the Sublessee Rent, commencing on the Commencement Date and ending on the earlier of the following: (i) the commencement of the term of a sublease between Sublessor and Sublessee for the Suite 980 Space, (ii) the commencement of the term of a sublease by
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a third party other than Sublessor for the Suite 980 Space, (iii) receipt of notice by Sublessee from Sublessor that Sublessee is in breach of any of the material terms of this Sublease, or the Master Lease as incorporated herein by reference, beyond any applicable cure period, such breach to be determined in Sublessors reasonable discretion or (iv) the termination of this Sublease. Sublessors use of the Suite 980 Space is limited to use of the Conference Room for meetings. Sublessor shall have no right of access to or right to use other portions of the Suite 980 Space and shall have no right to use the Conference Room for any other purpose, including, but not limited to, office use and storage. Sublessee agrees to be responsible for any damage or liability which may arise in connection with its use of the Conference Room and to obtain and maintain insurance to cover any such damage or liability on the same terms and conditions as the insurance required in Article 9 of this Sublease. Notwithstanding the foregoing, Sublessor shall have access to and the right to enter the Conference Room at any time without prior notice to Sublessee for any purpose whatsoever, including, but not limited to, touring or inspecting the Conference Room.
ARTICLE 5USE
The Premises are to be used for the Permitted Uses, and for no other purpose or business without the prior written consent of Sublessor. In no event shall the Premises be used for a purpose or use prohibited by the Master Lease.
ARTICLE 6RIGHTS AND DUTIES OF SUBLESSEE
6.1 Sublease Subject to Master Lease. It is expressly understood, acknowledged and agreed by Sublessee that this Sublease shall incorporate by reference the terms, conditions and covenants of the Master Lease, except as excluded in Section 6.2 below, modified as appropriate in the circumstances so as to make such Sections applicable only to the subleasing hereunder by Sublessor of the Premises during the Term of this Sublease. Sublessee shall be subject to, bound by and comply with all of said Sections of the Master Lease with respect to the Premises accruing during the Term of this Sublease, and shall satisfy all such terms and conditions of the Master Lease for the benefit of both Sublessor and Master Landlord, it being understood and agreed that wherever in the Master Lease the Word Tenant appears, for the purposes of this Sublease, the word Sublessee shall be substituted (subject to the limitations set forth in this Sublease), wherever in the Master Lease the word Landlord appears, for the purposes of this Sublease, the words Master Landlord (and, as applicable hereunder, Sublessor) shall be substituted; and wherever in the Master Lease the word Premises appears, for the purposes of this Sublease, the words Master Premises shall be substituted; and that upon the breach of any of said terms, conditions or covenants of the Master Lease by Sublessee or upon the failure of Sublessee to pay the Sublease Rent or comply with any of the provisions of this Sublease, Sublessor may exercise any and all rights and remedies granted to Master Landlord by the Master Lease. Sublessee expressly acknowledges, notwithstanding anything to the contrary in this Sublease, that Sublessors duty to indemnify, defend and hold Sublessor harmless from and against any and, all fines, suits, losses, costs; expenses, liabilities, claims, demands, actions, damages and judgments pursuant to this Sublease, and as more specifically set forth in Section 14 of the Master Lease, shall include Sublessors duty to indemnify, defend, protect and hold Master Landlord harmless from and against
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any and all fines, suits, losses, costs, expenses, liabilities, claims, demands, actions, damages and judgments.
It is further understood and agreed that Sublessor has no duty or obligation to Sublessee under the aforesaid Sections of the Master Lease other than to maintain the Master Lease in full force and effect during the term of this Sublease and to pay the difference between the Sublease Rent and the rent due and payable under the Master Lease; provided, however, that Sublessor shall not be liable to Sublessee for any earlier termination of the Master Lease which is not due to the fault of Sublessor. In the event of any conflict between this Sublease and the Master Lease, the Sublease shall control, as between Sublessor and Sublessee. Whenever the provisions of the Master Lease incorporated as provisions of this Sublease require the written consent of Landlord or notice to Landlord, said provisions shall be construed to require the written consent and/or notice of both Master Landlord and Sublessor. Sublessee hereby acknowledges that it has read and is familiar with all the terms of the Master Lease, and agrees that this Sublease is subordinate and subject to the Master Lease and that any termination thereof without the fault of Sublessor shall likewise terminate this Sublease.
6.2 Exclusions. The terms and provisions of the following Sections of the Original Lease are not incorporated into this Sublease: The first and second paragraphs of Section 2; Sections 3 through 5, 8, 9(a), 10.1(b), 14, 24.1, the second sentence of Section 26.7 and the third paragraph of Section 10.2. The terms and provisions of the following Sections of the Amendment are not incorporated into this Sublease: Sections 1.2, 2.2, and 3 through 8.
6.3 Time for Notice. The time limits provided for in the provisions of the Master Lease for the giving of notice, making of demands, performance of any act, condition or covenant, or the exercise of any right, remedy or option, are amended for the purposes of this Sublease by lengthening or shortening the same in each instance by five (5) days, as appropriate, so that notices may be given, demands made, or any act, condition or covenant performed, or any right, remedy or option hereunder exercised, by Sublessor or Sublessee, as the case may be, within the time limit relating thereto contained in the Master Lease. If the Master Lease allows only five (5) days or less for Sublessor to perform any act, or to undertake to perform such act, or to correct any failure relating to the Premises or this Sublease, then Sublessee shall nevertheless be allowed three (3) days to perform such act, undertake such act and/or correct such failure.
6.4 Sublessors Obligations. It shall be the obligation of Master Landlord (i) to provide or cause to be provided all services to be provided by Landlord under the terms of the Master Lease and (ii) to satisfy all obligations and covenants of Master Landlord made in the Master Lease. Sublessee acknowledges that Sublessor shall be under no obligation to provide any such services or satisfy any such obligations or covenants; provided, however, Sublessor, upon written notice by Sublessee, shall attempt to enforce all obligations of Master Landlord under the Master Lease, provided that Sublessee reimburses Sublessor for all reasonable costs and expenses incurred in connection therewith (except as otherwise set forth in Section 1.2.3 hereof). Sublessor shall not amend, terminate or waive any provisions under the Master Lease or make any elections, exercise any right or remedy or give any consent or approval under the Master Lease that could result in a
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substantial interference with Sublessees use of the Premises or materially increase Sublessees obligations or decrease Sublessees rights under this Sublease without, in each instance, Sublessees prior written consent.
6.5 Use of Building Common Areas. Sublessee shall comply with all reasonable and nondiscriminatory rules and regulations established by Sublessor with respect to use of the Common Areas, and shall insure compliance therewith by all of Sublessees employees, contractors and invitees.
6.6 Entry by Sublessor. Upon forty-eight (48) hours advance verbal or written notice (except in case of emergency where no such notice shall be required), Sublessor shall have the right to enter upon the Premises for purposes of maintenance and repair, and to ensure compliance by Sublessee with its obligations pursuant to this Sublease. Sublessee shall provide Sublessor with two keys (including card keys, if applicable) to all doors of the Premises in order to facilitate such entry.
ARTICLE 7LEASE AND PURCHASE OF PERSONAL, PROPERTY;
LEASE OF PHONE SYSTEM
During the Term, Sublessee shall have the right, at no additional cost and expense to Sublessee, other than payment of the Sublessee Rent, to use the PBX Switching System, the computer racks currently on the Premises, the UPS battery back-up system currently on the Premises and Exhibit C Property. Maintenance and operation of the PBX Switching System will be the responsibility of Sublessee. Sublessee agrees to obtain and keep in effect during the Term, a maintenance agreement with an outside service provider to ensure maintenance of the PBX System. On the last day of the Term of this Sublease, Sublessee shall be entitled to purchase the Exhibit C Property, free and clear of all liens and encumbrances, by delivering $1.00 to Sublessor. Simultaneously to delivery of such payment, Sublessor shall execute and deliver to Sublessee a simple Bill of Sale to Sublessee warranting that the Exhibit C Property is being provided to Sublessee free and clear of all liens and encumbrances. Upon purchase, the Exhibit C Property shall be owned by Sublessee and Sublessee shall be responsible for removing the Exhibit C Property from the Premises in accordance with Article 15 hereof.
ARTICLE 8INDEMNIFICATION
Except to the extent resulting from the acts, negligence or breach of this Sublease or the Master Lease by Sublessor (where such breach is not caused by Sublessee), Sublessee covenants to indemnify, defend, protect and hold Sublessor, its agents, officers, employees, and contractors harmless from and against (i) any and all claims, causes of action, obligations, liabilities, costs and expenses (including reasonable attorneys fees and costs) to the extent arising out of or in connection with Sublessees use or occupancy of the Premises, the Conference Room and the Common Areas before or after the commencement of the Term of this Sublease, and (ii) the breach of this Sublease (or, to the extent incorporated herein, the Master Lease) by Sublessee, its employees, agents, contractors or invitees. Sublessees obligations under this Article 8 shall survive the termination or earlier expiration of this Sublease.
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ARTICLE 9INSURANCE
Sublessee covenants to obtain and maintain the insurance policies required to be maintained by Sublessor under Section 15 of the Master Lease naming Sublessor as an additional insured; to provide Sublessor with certificates evidencing such insurance; and not to merit cancellation or termination of such required insurance policies without giving at least fifteen (15) days prior written notice to Sublessor and Master Landlord. Sublessee shall deliver to Sublessor, from time to time and upon Sublessors or Master Landlords reasonable written request, certificates of insurance indicating that the required policies of insurance are in full force and effect throughout the entire term of this Sublease. All insurance policies required to be carried by Sublessor pursuant to the Master Lease shall be carried by Sublessee, covering Sublessees liability, and all such policies shall be written in accordance with the requirements for such insurance set forth in Section 15 of the Master Lease.
ARTICLE 10DEFAULTS AND REMEDIES
In the event of a default by Sublessee, Sublessor shall have all of the rights and remedies against Sublessee as are set forth in Section 19 of the Master Lease as though Sublessor were the landlord named therein and Sublessee was the tenant named therein.
ARTICLE 11NOTICES
All notices or correspondence provided for herein shall be in writing and shall be sent by certified mail, postage prepaid, return receipt requested, or by a nationally-recognized overnight delivery company which provides a receipt evidencing delivery, in which event they shall be deemed received on the date of delivery as evidenced by the receipt. The Master Landlords, Sublessors and Sublessees addresses for written notices required to be given hereunder shall be the addresses set forth in the Basic Sublease Information, or at such other place designated by advance written notice delivered in accordance with the foregoing.
ARTICLE 12ASSIGNMENT AND SUBLETTING
Sublessee shall not sell, assign, encumber, sublet, hypothecate or otherwise transfer by operation of law or otherwise this Sublease or the Sublessors interest in and to the Premises except in accordance with Section 20 of the Master Lease as modified by this Sublease.
ARTICLE 13REPAIRS AND MAINTENANCE
Except to the extent constituting an obligation of the Master Landlord under the Master Lease, Sublessee shall, at Sublessees sole expense, keep the Premises in good order and sanitary condition, and repair any damage thereto caused by Sublessee or Sublessees agents, employees, contractors or invitees. In performing its obligations under this Article 13, Sublessee shall notify Sublessor and of any repairs that could affect the Systems serving the Building (exclusive of the Premises) and shall use contractors approved by Master Landlord, in its reasonable discretion. Sublessee acknowledges that, except as otherwise expressly provided herein, Sublessor is under no
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duty to make repairs or improvements to the Premises, and Sublessee hereby waives any right it may have at law or in equity to enforce the same. Notwithstanding the foregoing, to the extent Master Landlord is obligated under the Master Lease to make any maintenance or repairs in or to the Premises, Sublessor, upon written notice by Sublessee, shall attempt to enforce such obligations of Master Landlord, provided that (except as provided in Section 1.2.3 hereof) Sublessee reimburses Sublessor for all reasonable costs and expenses incurred in connection therewith. Notwithstanding the foregoing, if such maintenance or repairs affect the use and enjoyment of the Common Area, such costs and expenses of enforcement shall be paid by Sublessor and Sublessee in proportion to their relative interests in the Master Premises.
ARTICLE 14DAMAGE AND DESTRUCTION
14.1 Termination of Master Lease. If the Premises is damaged or destroyed and Master Landlord, Sublessor or Sublessee validly exercises any option to terminate the Master Lease or this Sublease as specifically provided for in the Master Lease or this Sublease (or in the Master Lease as incorporated herein by reference), if any, this Sublease shall terminate as of the date of the termination of the Sublease by either party hereto or the date of the termination of the Master Lease.
14.2 Continuation of Sublease. If the Master Lease is not terminated following any damage or destruction as provided above, this Sublease shall remain in full force and effect. Sublessee shall be obligated to fulfill any repair obligations of Sublessor with respect to the Premises; provided, however, that (i) Sublessor shall use commercially reasonable means to enforce any obligation of Master Landlord to rebuild the Premises in accordance with the Master Lease; (ii) Sublessor shall make available to Sublessee any insurance proceeds Sublessor receives as a result of damage or destruction of the Premises; and (iii) Sublessee shall be entitled to abatement of Sublessee Rent on a proportionate basis (based on the degree to which Sublessees use of the Premises is impaired as compared to the impairment of Sublessors use of the Master Premises) to the extent that Sublessors Rent is abated under the Master Lease. In the event that the damage cannot reasonably be repaired by the date that is 90 days prior to the expiration of the Term of this Sublease, then either party may terminate this Sublease by written notice to the other party. Notwithstanding anything to the contrary contained herein, if such damage or destruction occurs and the Premises can not be, or is in fact not, restored so that such damage or destruction does not unreasonably interfere with Sublessees normal business operations within 180 days following the date of such damage or destruction, Sublessee shall have the right to terminate this Sublease immediately upon deliver of written notice to Sublessor.
ARTICLE 15SURRENDER OF PREMISES
Sublessee shall peaceably surrender the Premises to Sublessor upon expiration or earlier termination of this Sublease, broom-clean and in as good a condition as when Sublessee took possession and Sublessee shall remove Sublessees personal property and any or all Alterations made by Subtenant (not including the Sublessee Improvements, which shall remain on the Premises, and provided that Master Landlord or Sublessor so notified Sublessee in accordance with Section 10.2 of the Lease), upon the expiration or earlier termination of this Sublease and promptly repair all damage to the Premises caused by such removal. Unless Master Landlord or Sublessor
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requires their removal, all Alterations made to the Premises by Sublessee shall remain upon and be surrendered with the Premises at the expiration or earlier termination of this Sublease.
If Sublessee abandons the Premises, any of Sublessees personal property left on the Premises shall be deemed to be abandoned, and, at Sublessors option, title shall pass to Sublessor under this Sublease as by a bill of sale. If Sublessee abandons the Premises and Sublessor elects to remove all or any part of Sublessees personal property, the reasonable cost of removal, including repairing any damage to the Premises or Building caused by such removal, shall be paid by Sublessee. The provisions of this Article 15 shall survive the expiration or earlier termination of this Lease.
ARTICLE 16RIGHT OF FIRST OFFER
16.1 Right of First Offer. Sublessor hereby grants to Sublessee a right of first offer (the Sublessee Right of First Offer) with respect to approximately 2,411 rentable square feet in Suite 980 of the building located at 651 Gateway Boulevard, South San Francisco, California (the First Offer Space) on the terns and conditions set forth herein.
16.2 Procedure. Prior to entering into any sublease with a third party for the First Offer Space, Sublessor shall provide written notice to Sublessee of such third partys offer to sublease the First Offer Space (the Third Party Offer), including the general terms and conditions of the Third Party Offer. Sublessee shall have three (3) days from receipt of such notice in which to notify Sublessor in writing of its intent to exercise the Sublessee Right of First Offer (the Exercise Notice), which exercise must be on terns and conditions no less favorable to Sublessor than the Third Party Offer.
For thirty (30) days following Sublessors receipt of Sublessees Exercise Notice (the Exclusivity Period), Sublessor and Sublessee shall negotiate in good faith the terns of a sublease to Sublessee for the First Offer Space, which shall be substantially on the same terns and conditions of this Sublease (as modified by the Third Party Offer). During the Exclusivity Period, Sublessor shall not enter into a sublease of the First Offer Space with anyone other than Sublessee. In the event that Sublessor and Sublessee, despite good faith negotiations, do not enter into a sublease for Sublessee of the First Offer Space or are unable to obtain consent from the Master Landlord to such sublease before the end of the Exclusivity Period, then Sublessor shall have the right to enter into a sublease on terms and conditions materially no more favorable to a sublessee than those contained in the original Third Party Offer with any other party. In the event that Sublessor proposes to sublease the Premises on terms and conditions materially more favorable to a sublessee than those contained in the original Third Party Offer, then such terms and conditions shall constitute a new Third Party Offer subject to a new Exercise Notice by Sublessee.
ARTICLE 17MISCELLANEOUS
17.1 Entire Agreement. This Sublease and the applicable portions of the Master Lease contained by reference herein, contain all of the covenants, conditions and agreements between the parties concerning the Premises, and shall supersede any and all prior correspondence, agreements
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and understandings concerning the Premises, both oral and written. No addition or modification of any tern or provision of this Sublease shall be effective unless set forth in writing and signed by both Sublessor and Sublessee.
17.2 Captions. All captions and headings in this Sublease are for the purposes of reference and convenience and shall not limit or expand the provisions of this Sublease.
17.3 Master Landlords Consent. This Sublease is conditioned upon Master Landlords written approval of this Sublease prior to the Commencement Date. If Master Landlord refuses to consent to this Sublease, then this Sublease shall be deemed void and of no effect, in which event the parties shall be discharged from all obligations hereunder and Sublessor shall return the Prepaid Rent, if previously delivered to Sublessor, to Sublessee. If Master Landlord does not provide consent to this Sublease on or before June 30, 2002 in a form of consent acceptable to Sublessee and Sublessor, each in its sole discretion, or if Sublessor is unable to tender possession of the Premises to Sublessee on or before June 30, 2002 (through no fault of Sublessor), then either party may by written notice delivered to the other party no later than five (5) days following such date have the right to terminate this Sublease, in which event the parties shall be discharged from all obligations hereunder and Sublessor shall return the Prepaid Rent, if previously delivered to Sublessor, to Sublessee.
17.4 Authority. Each person executing this Sublease on behalf of a party hereto represents and warrants that he or she is authorized and empowered to do so and to thereby bind the party on whose behalf he or she is signing.
17.5 Attorney Fees. In the event either party shall bring any action or proceeding for damages or for an alleged breach of any provision of this Sublease to recover rents, or to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover reasonable attorneys fees and court costs as part of such action or proceeding.
17.6 Broker. Sublessor shall be responsible for payment of any and all finders fees or commissions to CD Richard Ellis, Inc. and BT Commercial (Brokers) in connection with this Sublease pursuant to a separate agreement. Each party warrants and represents that it has had no dealings with any real estate broker, agent or finder other than Brokers in connection with the negotiation of this Sublease, and that it knows of no other real estate broker or agent who is entitled to any commission or finders fee in connection with the Premises or this Sublease. Each party shall indemnify and hold the other harmless from and against any and all claims, demands, losses, liabilities, lawsuits, judgments, costs and expenses (including without limitation, attorneys fees and costs) arising from any claim for a leasing commission or equivalent compensation alleged to be owing on account of the indemnifying partys dealings with any, real estate broker or agent in connection with the Premises or this Sublease.
17.7 Counterparts. This Sublease may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall comprise but a single instrument.
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17.8 Severability. If any provisions of this Sublease or the application of any provision of this Sublease to any person or circumstance is, to any extent, held to be invalid or unenforceable, the remainder of this Sublease or the application of that provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected, and each provision of this Sublease will be valid and be enforced to the fullest extent permitted by law.
17.9 Governing Law. This Sublease will be governed by and in all respects construed in accordance with the laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the State of California.
17.10 Negotiated Transaction. The parties mutually acknowledge that this Sublease has been negotiated at arms length. The provisions of this Sublease shall be deemed to have been drafted by all of the parties and this Sublease shall not be interpreted or construed against any party solely by virtue of the fact that such party or its counsel was responsible for its preparation.
[Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed one (1) or more copies of this Sublease, effective as of the Effective Date.
SUBLESSOR | ||
ELAN PHARMACEUTICALS, INC. a Delaware corporation | ||
By: |
/S/ ERLE MAST | |
Name: |
Erle Mast | |
Its: |
VP & Treasurer | |
SUBLESSEE | ||
TERCICA MEDICA, INC. a Delaware corporation | ||
By: |
/S/ HOWARD MOORE | |
Name: |
Howard Moore | |
Its: |
Executive Vice President |
EXHIBIT A
MASTER LEASE
A-1
OFFICE BUILDING LEASE
by and between
HMS OFFICE, L.P.,
a Delaware Limited Partnership
and
ELAN PHARMACEUTICALS, INC.,
a Delaware corporation
LEASE SUMMARY
Date: | June 1, 1999 | |
Tenant: | Elan Pharmaceuticals, Inc., a Delaware corporation | |
Address: |
800 Gateway Boulevard South San Francisco, California 94080 Attn: General Counsel | |
with copy to: | ||
800 Gateway Boulevard South San Francisco, California 94080 Attn: Chief Financial Officer | ||
Landlord: | HMS Office, L.P. | |
Address: | c/o Hines Interests Limited Partnership 651 Gateway Boulevard, Suite 1140 South San Francisco, California 94080 | |
Premises: | Suite 950 and Suite 980 | |
Building: | 651 Gateway Boulevard South San Francisco, California 94080 | |
Approximate Rentable | ||
Area of Premises: | Nine Thousand Nine Hundred one (9,901) square feet comprised of (1) Seven Thousand Four Hundred Ninety (7,490) square feet located in Suite 950 (the Suite 950 Space), and (ii) Two Thousand Four Hundred Eleven (2,411) square feet located in Suite 980 (the Suite 980 Space) | |
Approximate Rentable | ||
Area of Building: | Two Hundred Ninety Thousand Four Hundred Forty-Seven (290,447) square feet | |
Estimated | ||
Commencement Date: | July 1, 1999 | |
Term: | 2 Lease Years |
Base Rent: | Twenty Eight Thousand Two Hundred Seventeen and 85/100ths Dollars ($28,217.85) per. month (based upon $2-85 per rentable square foot per month) | |
Operating Expense Base: | $8.07 per square foot of Rentable Area per year | |
Security Deposit: | Twenty-Eight Thousand Two Hundred Seventeen and 85/100ths Dollars (S28,217.85) | |
Use: | General office use | |
Parking Spaces: | Thirty-0ne (31) | |
Guarantor: | Not applicable | |
Exhibits: | A, B, C, D, L and F | |
Broker: | Marc Pearson of Catalyst CRESA Real Estate Group, as Tenants representative |
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TABLE OF CONTENTS
Page | ||||||
1. | Definitions | 1 | ||||
2. | DEMISE | 5 | ||||
3. | ACCEPTANCE OF PREMISES | 7 | ||||
4. | RENT | 8 | ||||
4.1 | Base Rent | 8 | ||||
4.2 | Additional Rent | 8 | ||||
5. | SECURITY DEPOSIT | 8 | ||||
6. | SERVICES PROVIDED BY LANDLORD | 9 | ||||
7. | USE; HAZARDOUS SUBSTANCES | 10 | ||||
7.1 | Use of Premises | 10 | ||||
7.2 | Hazardous Substances | 10 | ||||
8. | BROKERS | 11 | ||||
9. | TENANTS TAXES | 11 | ||||
10. | ALTERNATIONS, REPAIRS AND MAINTENANCE | 12 | ||||
10.1 | Repairs and Maintenance | 12 | ||||
10.2 | Alterations | 13 | ||||
11. | LIENS | 14 | ||||
12. | ENTRY | 15 | ||||
13. | LANDLORDS LIABILITY | 15 | ||||
14. | INDEMNIFICATION AND EXCULPATION | 15 | ||||
15. | INSURANCE | 16 | ||||
16. | NO SUBROGATION | 17 | ||||
17. | DAMAGE OR DESTRUCTION | 17 | ||||
17.1 | Cancellation of Lease: Restoration of Building | 17 | ||||
17.2 | Casually Loss During Last Year of Lease | 18 | ||||
17.3 | Abatement of Rent | 18 | ||||
19.2 | Remedies | 20 | ||||
19.3 | Continuing Liability | 21 | ||||
19.4 | Remedies Cumulative | 22 | ||||
19.5 | No Waiver | 22 | ||||
20. | ASSIGNMENT OR SUBLEASE | 22 | ||||
20.1 | Notification | 22 | ||||
20.2 | Landlord Approval | 22 |
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20.3 | Allocation of Excess Rent | 23 | ||||
20.4 | Fair Market Rent | 23 | ||||
20.5 | No Release from Liability | 23 | ||||
20.6 | Compliance with Laws | 23 | ||||
20.7 | Reimbursement of Costs | 24 | ||||
20.8 | Negotiation with Assignee | 24 | ||||
20.9 | Change Of Control; Affiliates | 24 | ||||
20.10 | Conveyance by Landlord | 24 | ||||
21. | SUBORDINATION | 25 | ||||
22. | ESTOPPEL CERTIFICATE | |||||
23. | INTENTIONALLY DELETED | 25 | ||||
24. | SURRENDER OF PREMISES | 26 | ||||
24.1 | Leasehold Improvements and Fixtures | 26 | ||||
24.2 | Holding Over | 26 | ||||
25. | PROFESSIONAL FEES | 27 | ||||
26. | GENERAL PROVISIONS | 27 | ||||
26.1 | Mortgage Protection | 27 | ||||
26.2 | Successors and Assigns | 27 | ||||
26.3 | Waiver | 27 | ||||
26.4 | Identification of Tenant | 28 | ||||
26.5 | Parking | 28 | ||||
26.6 | Interpretation of Lease | 28 | ||||
26.7 | Limitation on Liability | 29 | ||||
26.8 | Traffic Impact | 29 | ||||
26.9 | Financial Statements | 29 | ||||
26.10 | Quiet Enjoyment | 29 | ||||
26.11 | Payments and Notice | 29 | ||||
26.12 | Late Charge | 30 | ||||
26.13 | Rules and Regulations | 30 | ||||
26.14 | Rights Reserved by Landlord | 30 | ||||
26.15 | Related Parties | 31 | ||||
26.16 | Landlords Costs | 31 | ||||
26.17 | Invoices | 31 | ||||
26.18 | Force Majeure; Time of Essence | 32 | ||||
26.19 | Negotiated Transaction | 32 | ||||
26.20 | Nondisturbance, Attornment and Subordination Agreement | 32 | ||||
26.21 | Nondiscrimination | 32 | ||||
26.22 | Corporate Authority | 32 | ||||
26.23 | Notice Pursuant to California Health do Safety Code Section 25359.7 | 33 | ||||
26.24 | Entire Agreements; Amendments | 33 |
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THE GATEWAY
OFFICE BUILDING LEASE
This Lease is made and entered into as of the date specified in the Lease Summary attached hereto and incorporated herein by this reference, by and between HMS OFFICE, L.P. a Delaware limited partnership (landlord), and the Tenant identified in the Lease Summary.
In consideration of the mutual covenants and agreements contained in this Lease, the parties agree as follows:
1. Definitions
Certain terms used in this Lease and the Exhibits hereto shall have the meaning set forth below for each such term. Certain other terms shall have the meaning set forth elsewhere in this Lease and the Exhibits hereto.
Base Rent means the basic rent payable by Tenant per month during the Term in the amounts shown on the Lease Summary and in the manner provided In Suction 4.
Building means the building described in the Lease Summary and any future expansions of that building.
business days means Monday through Friday, except holidays; holidays means those holidays specified by the laws of the United States or State of California, and all holidays to which maintenance employees of the Building are entitled from time to time under their union contract or other agreement,
Commencement Date means the earlier of (i) the date that Landlord delivers possession of the Premises to Tenant, or (ii) the date set forth on the Lease Summary as the Estimated Commencement Date.
Common Areas means the Buildings common entrances, lobbies, restrooms, elevators, stairways and accessways, loading docks, ramps, drives, platforms and passageways and serviceways thereto, and the common pipes, conduits, wires and appurtenant equipment serving the Premises, together with trash areas, parking areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas and similar areas and facilities appurtenant to the Building.
Development means that real properly (including, without limitation, the Building, the Common Areas and the Premises) situated in the City of South San Francisco, County of San Mateo, State of California, being more particularly described on Exhibit A-1 attached hereto as such real property may be modified from time to time by Landlord.
Fair Market Rent means the rate being charged in the Building for comparable space, taking into consideration: location in the Building, tenant improvements or allowances provided or to be provided, rental abatements, lease takeovers/ assumptions, moving expenses and other forms of
rental concessions, proposed term of lease, extent of service provided or to be provided, the ownership of the comparable space, the time the particular rate under consideration became or is to become effective and any other relevant terms or conditions.
Guarantor means any guarantor of any of Tenants obligations under this Lease.
Landlord Parties means the employees, agents, contractors, officers, directors, partners, licensees, invitees, and guests of Landlord, Landlords affiliates, Landlords managing agent and Mortgagee.
Lease Years means successive periods of twelve (12) full calendar months, beginning on the Commencement Date. If the Commencement Date is not the fast day of a month, then the first Lease Year also includes the partial month in which the Commencement Date occurs.
Mortgage means any mortgage or deed of trust, blanket or otherwise, covering any part of the Development Mortgagee means the holder of a Mortgage.
Operating Expenses means all expenses and costs (but not specific costs that are separately billed to and paid by specific tenants) of every kind and nature diet Landlord shall pay or incur or become obligated to pay or incur (including, without limitation, costs incurred by managers and agents that are reimbursed by Landlord) because of or in connection with the management, maintenance, preservation, ownership and operation of the Development and its supporting facilities directly servicing the Development (as allocated to the Development in accordance with generally accepted accounting principles, consistently applied) including, but not limited to, the following:
(a) Wages, salaries and reimbursable expenses and benefits of all on-site and off-site personnel engaged in the operation, maintenance and security of the Development and the direct costs of training such employees, limiting such charges only to amounts directly allocable to services tendered by the employers and personnel for the benefit of the Development
(b) Costs of the property management office and office operation.
(c) All supplies, materials and rental equipment used in the operation and maintenance of the Development, including, without limitation, temporary lobby displays and events, the cost of erecting, maintaining and dismantling art work and similar decorative displays commensurate with operation of a first class office building.
(d) Utilities, including, without limitation, water, power, gas, sewer, waste disposal, communication and cable T.V. facilities, heating, cooling, lighting and ventilation of the Development
(e) All maintenance, janitorial and service agreements for the Development and the equipment therein, including, but not limited to, alarm service, window cleaning, elevator maintenance, and maintenance and repair of sidewalks, landscaping, Building exterior and service areas.
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(f) A management cost recovery equal to three percent (3%) of all revenues (excluding such management cost recovery) derived from the Development.
(g) Legal and accounting services for the Development including, but not limited to, the costs of audits by certified public accountants of Operating Expenses records and reasonable legal fees and costs incurred by Landlord in any legal proceeding against any other specific tenant where such other tenant is responsible (either pursuant to its lease or at law) for payment of such fees and costs but is unwilling or is unable to pay such fees and costs after reasonable efforts have been made by Landlord to pursue reimbursement from such tenant; provided, however, that legal expense shall not include the cost of negotiating lease terms for prospective tenants, (ii) negotiating termination or extension of leases with existing tenants, (iii) proceedings against any other specific tenant relating solely to the collection of rent or other sums due to Landlord from such tenant, or (iv) legal costs incurred in connection with development and/or construction of the Development
(h) All insurance premiums and costs, including, but not limited to, the premiums and cost of fire, casualty, liability, rental abatement and earthquake insurance applicable to the Development and Landlords personal property used in connection therewith (and all amounts paid as a result of loss sustained that would be covered by such policies but for commercially reasonable deductible or self-Insurance provisions); provided., however, that Landlord may, but shall not be obligated to, carry earthquake insurance (if Landlord elects to carry earthquake insurance, Tenant shall not be responsible for premium costs for such earthquake insurance in excess of premiums customarily charged for earthquake insurance to landlords of similar buildings in the Northern San Mateo County area).
(i) Repairs, replacements and general maintenance (except for repairs and replacements (i) paid for from the proceeds of insurance, (ii) paid for directly by Tenant, other tenants or any thud party, or (iii) for the benefit solely of tenants of the Development other than Tenant to the extent that Tenant could not obtain similar services from Landlord without an obligation to reimburse Landlord for the entire cost thereof under the provisions of this Lease).
(j) All real and personal property taxes and general and special assessments imposed by any governmental authority or agency on the Building and a pro rata portion of any taxes and general and special assessments levied on the Development; any assessments levied in lieu of or in substitution for, such taxes; and any other costs, fees or charges levied or assessed by, or at the direction of, any federal, state, or local government authority in connection with the ownership, use or occupancy of the Development, whether or not now in effect or foreseeable (excluding penalties, fines and interest charges imposed as a result of Landlords failure to pay timely the same; provided that, Tenant has timely paid its proportionate share of Operating Expenses hereunder); and any reasonable expenses, including the reasonable cost of attorneys or experts, incurred by Landlord in seeking reduction by the taxing authority of the above-referenced taxes, less any tax refunds obtained on account of such taxes previously paid and for which Tenant has paid Tenants Share thereof as a result of an application for review thereof; provided, however, that such taxes shall not include (i) taxes paid by Tenant pursuant to Section 9 or by other tenants in the Development pursuant to similar provisions in their leases; or (h) franchise, transfer, inheritance, or capital stock
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taxes or income taxes measured by the net Income of Landlord from all sources, unless, due to a change in the method of taxation, any of such taxes is levied or assessed against Landlord as a substitute for, or as an addition to, to whole of in part, any other tax that would otherwise constitute the taxes described in the preceding provisions of this clause (j).
(k) Amortization (together with reasonable financing charges) of capital improvements made to the Development that (i) are or will be required to comply with applicable law, ordinance, rule or regulation, enacted or enforced after the Commencement Date; (ii) are replacements of items which Landlord is obligated to maintain; or (iii) are intended to improve the operating efficiency of the Development; provided, however, that in the case of improvements trade solely for efficiency purposes, the amount chargeable as an Operating Expense in any year shall not exceed Landlords reasonable determination of the efficiency achieved either in direct cost savings, avoidance of cost increases or a combination of both. As used in this definition of Operating Expenses, amortization shall mean allocation of the cost equally to each year of useful life of the items being amortized or a shorter period equal to the number of years required to recover the cost of said item of capital improvement out of the savings in operating efficiency derived therefrom. Notwithstanding the foregoing, however, Landlord may treat as expenses (chargeable in the year earned) and not as capital casts items that are less than two percent (2%) of estimated Operating Expenses for the year in question.
Notwithstanding any other provision herein to the contrary, if the Development is not fully occupied during any year of the Term, an adjustment shall be made in computing Operating Expenses for such year so that Operating Expenses shall be computed as though the Development had been fully occupied during such year, provided, however, that in no event shall Landlord collect in total, from Tenant and all other tenants of the Development, an amount greater than one hundred percent (100%) of the actual Operating Expenses during any year of the Term.
Operating Expense Base means the dollar amount per square foot of the Rentable Area as set forth on the Lease Summary.
Prime Rate means the rate of interest from time to time announced by Bank of America National Trust and Savings Association as its reference rate or, if no such rate is being announced, such reasonable substitute as Landlord may select.
Premises means the floor area more particularly shown on the floor plan attached hereto as Exhibit A, containing the approximate area of rentable square feet described on the Lease Summary. Landlord hereby reserves, for its sole and exclusive use, any and all mechanical, electrical, telephone and similar rooms, janitor closets, elevator, pipe and other vertical shafts and ducts, flues and stairwells; the area above the acoustical ceiling; facilities serving parts of the Development other than the Premises; and any other area not shown on Exhibit A as being part of the Premises.
Related Parties of a party means its employees, agents, contractors, officers, directors, partners, licensees, Invitees and guests.
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Rent means the Base Rent, Additional Rent, and any and all other charges of any nature payable by Tenant to Landlord under this Lease.
Rentable Area means the number of square feet of the Premises and the Building, as applicable, set forth on the Lease Summary.
Rules and Regulations means the rules and regulations (as changed from time to time as therein provided) attached hereto as Exhibit F.
Tenant Parties means the employees, agents, contractors, officers, directors, partners, licensees, invitees and guests of Tenant
Tenants Share means Rentable Area of the Premises divided by the greater of (a) ninety-five percent (95%) of the Rentable Area of the Building, or (b) the Rentable Area of the Building that is actually occupied by tenants, as such area changes from time to time. The agreed-upon areas stated in this Lease (or in the Lease Commencement Certificate, if different) shall be used to determine Tenants Share unless either of said areas materially changes.
Term means the period commencing on the Commencement Date and ending on the Termination Date.
Termination Date means the date which is the number of Lease Years and months set forth on the Lease Summary alter the Commencement Date or such earlier date upon which this Lease is terminated pursuant to the provisions herein. Upon determination of the Commencement Date, Landlord and Tenant will execute a certificate in the form of Exhibit B specifying the Commencement Date and the Termination Date as determined with reference to the Lease Summary.
Year or year means a calendar year.
2. DEMISE
For the Term, Landlord leases the Premises to Tenant and Tenant leases the same from Landlord, all upon and subject to the terms and conditions of this Lease. Tenant hereby acknowledges that Landlord may deliver to Tenant either the Suite 950 Space or the Suite 990 Space prior to the Estimated Commencement Date, whereupon the Lease shall commence with respect to the space so delivered upon all the berths, covenants and conditions contained in this Lease, including, without limitation, the obligation to pay Rent for the space so delivered. Tenant hereby acknowledges that if Landlord, for any reason whatsoever, cannot deliver possession of the Premises to Tenant on the Commencement Date or upon the full execution of this Lease, whichever is later, this Lease shall not be void or voidable by Tenant, nor shall Landlord be liable to Tenant for any loss or damage resulting therefrom; provided, however, if Landlord fails to deliver to Tenant possession of both the Suite 950 Space and the approximately two thousand one hundred thirty-eight (2,138) square feet of rentable area (being a portion of Suite 900 of the Building) being concurrently subleased to Tenant (the Sublease Premises) on or before August 1, 1999, then Tenant may, at its option and as its sole and exclusive remedy for such failure, terminate this Lease by delivering
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written notice of such termination to Landlord by August 10, 1999 but before Landlord delivers to Tenant possession of both the Suite 950 Space and the Sublease Premises. If Tenant so terminates this Lease, then Landlord shall immediately return to Tenant all amounts previously paid by Tenant to Landlord under this Lease (and under the sublease of the Sublease Premises, if applicable excluding any amounts that Tenant may owe to Landlord pursuant to the terns of this Lease and excluding any portion of the Security Deposit used by Landlord to curs any defaults on the part of Tenant or otherwise used by Landlord in accordance with the provisions of Section 6 of this Lease, and thereafter neither party shall have any further obligations under this Lease, other than those obligations that expressly survive the termination or earlier expiration of this Lease. If Tenant fails to so terminate this Lease, this Tease shall not terminate but shall remain in full force and effect upon the same terms and conditions set forth in this Lease.
If Landlord fails to deliver to Tenant possession o& the Suite 980 Space on or before August 1, 1999, then, Tenant may, at is option and as its sole and exclusive remedy for such failure, terminate this Lease for the Suite 980 Space by delivering written notice of such termination to Landlord by August 10, 1999 but before Landlord delivers to Tenant possession of the Suite 980 Space. If Tenant so terminates this Lease for the Suite 980 Space, then Landlord shall immediately return to Tenant all amounts previously paid by Tenant to Landlord under this Lease for the Suite 980 Space, excluding any amounts that Tenant may owe to Landlord pursuant to the terms of this Lease for the Suite 980 Space and excluding any portion of the Security Deposit for the Suite 980 Space used by Landlord to cure any defaults on the part of Tenant or otherwise used by Landlord in accordance with the provisions of Section 6 of this Lease, and thereafter neither party shall have any further obligations under this Lease for the Suite 980 Space, other than those obligations that expressly survive the termination or earlier expiration of this Lease, and if Tenant has not terminated the Lease in accordance with the provisions of the immediately foregoing paragraph of this Section 2, this Lease with regard to the Suite 950 Space shall remain in full force and effect upon the terms, covenants and conditions specified in this Lease and thereafter the Premises shall mean the Suite 950 Space and all calculations based upon the square footage of the Premises shall be adjusted to include only the Suite 950 Space. If Tenant fails to terminate this Lease for the Suite 980 Space in accordance with the provisions of this Section 2 and if Tenant has not terminated this Lease in accordance with the provisions of the Immediately foregoing paragraph of this Section 2, then the Lease for the Suite 980 Space (and for the Suite 950 Space) shall not terminate but shall remain in full force and effect upon the same terms and conditions set forth in this Lease.
So long as it is entitled to possess the Premises, Tenant may (with others) use the Common Areas on a nonexclusive basis for their intended purposes; provided, however, Landlord shall have the sole and exclusive right to possession and control of the Common Areas. So long as reasonable access and services (including Tenants parking spaces described in the Lease Summary) to the Premises are available, Landlord may (a) install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires and appurtenant meters and equipment; (b) change the Common Areas, including, without limitation, the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways; (c) close temporarily, or eliminate permanently, any Common Areas; (d) designate other land as Common Areas; (e) add additional buildings and improvements to the
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Common Areas, and lease such buildings and improvements and/or existing buildings and improvements on the Common Areas; (f) use the Common Areas in making expansions, additional improvements, repairs or alterations to any part of the Development; and (g) do and perform such other acts and make such other changes in, to or with respect to the Development as Landlord may, in the exercise of sound business judgment, deem to be appropriate.
3. ACCEPTANCE OF PREMISES
Tenant hereby acknowledges that the Premises is leased to Tenant in its present as-is condition, and Landlord shall have no obligation to install any alterations, additions or improvements or do any work whatsoever to the Premises. Tenant further acknowledges that it is currently in possession of the Suite 950 Space pursuant to an assignment of that certain Gateway Office Building Lease dated September 15, 1989, by and between Homart Development Co., a Delaware corporation, Landlords predecessor in interest, and Shakeys Incorporated, a Delaware corporation (Shakeys), as amended (collectively, the Shakeys Lease). Concurrently with the execution of this Lease, Landlord, Tenant and Shakeys are executing an agreement terminating the Shakeys Lease and the assignment thereof by Shakeys to Tenant (the Shakeys Lease Termination Agreement). Notwithstanding anything to the contrary contained in this Lease, Tenant and Landlord hereby acknowledge that this Lease is expressly conditioned upon Tenant and Shakeys executing and delivering to Landlord the Shakeys Lease Termination Agreement in a form reasonably acceptable to Landlord. If for any reason the Shakeys Lease is not terminated pursuant to the Shakeys Lease Termination Agreement, this Lease shall terminate and thereafter neither party shall have any further obligation under this Lease, except for those obligations which by their terms survive the termination of this Lease.
The current tenant of the Suite 980 Space (the Suite 980 Tenant) is executing a lease termination agreement (the Suite 980 Lease Termination Agreement in which Suite 980 Lease Termination Agreement shall terminate the current lease for the Suite 980 Space (the Suite 980 Lease). Tenant and Landlord hereby acknowledge that this Lease as it relates to the Suite 980 Space only is expressly conditioned upon the Suite 980 Tenants executing and delivering to Landlord the Suite 980 Lease Termination Agreement in a form reasonably acceptable to Landlord. If for any reason the Suite 980 Lease is not terminated pursuant to the Suite 980 Lease Termination Agreement, this Lease with respect to the Suite 980 Space only shall terminate and thereafter neither party shall have any further obligation under this Lease for the Suite 980 Space, except for those obligations which by their terms survive the termination of this Lease, and this Lease with regard to the Suite 950 Space shall retrain in full force and effect upon the terms, covenants and conditions specified in this Lease and thereafter the Premises shall mean the Suite 950 Space and all calculations based upon the square footage of the Premises shall be adjusted to include only the Suite 950 Space.
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4. RENT
From the Commencement Date, Tenant will pay Landlord, at the address specified in the Lease Summary or at such other address as may be designated by Landlord from time to time and without prior notice, demand, offset or deduction (except as otherwise expressly set forth herein), the following rent.
4.1 Base Rent
Tenant shall pay the Base Rent to advance on the fast day of each month during the Term hereof; except that the first full months Base Rent shall be paid upon execution of this Lease. If the Term commences on other than the fast day of a month, the Base Rent provided for such partial month shall be prorated and the prorated installment shall be paid on the first day of the calendar month succeeding the Commencement Date. If the Term terminates on outer than the first day of a calendar month, the Base Rent provided for such partial month shall be prorated and such prorated installment shall be paid on the first day of the calendar month preceding the Termination Date.
4.2 Additional Rent
Tenant shall pay as additional rent (Additional Rents Tenants Share of Operating Expenses in excess of the Operating Expense Base multiplied by the Rentable Area. For partial years, the Operating Expenses will be calculated on a full-year basis, and then prorated. Tenant shall pay monthly installments of Additional Rent on the first day of each month, in amounts specified in good faith by Landlord from time to time, which, by the end of each year (or by the Termination Date, if earlier), will total Landlords estimate of Additional Rent paid for such year. By the following April 1, or as soon thereafter as practicable, Landlord will furnish Tenant a statement of Operating Expenses and Additional Rent for such year. Any amounts owing for that year shall, within thirty (30) days thereafter, be paid by Tenant to Landlord. Any amounts overpaid shall, at Landlords option, be credited against the next installment(s) of Additional Rent due from Tenant, or be refunded to Tenant. This obligation survives termination or the earlier expiration of this Lease.
5. SECURITY DEPOSIT
Concurrently with execution hereof, Tenant shall pay to Landlord the Security Deposit set forth on the Lease Summary as security for the full and faithful performance of Tenants obligations under this Lease, which amount shall be paid as follows: Landlord shall credit to the Security Deposit the amount of Twelve Thousand Two Hundred Thirty-Six and 40/100ths Dollars ($12,236.40), which Tenant paid to Landlord as a security deposit pursuant to the Shakeys Lease; and Tenant shall pay to Landlord the amount of Fifteen Thousand Nine Hundred Eighty-One and 45/100ths Dollars ($15,981.45). Landlord may (but shall not be required to) use the Security Depositor any portion thereof to cure any defaults on the part of Tenant or to compensate Landlord for any damage Landlord incurs as a result of Tenants failure to perform any of its covenants or obligations hereunder, it being understood that any use of the Security Deposit shall not constitute a bar or defense to any of Landlords remedies under this Lease, at law or in equity. In such event, and upon written notice from Landlord to Tenant specifying the amount of the Security Deposit so
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utilized by Landlord and the particular purpose for which such amount was applied, Tenant shall Immediately deposit with Landlord an amount sufficient to return the Security Deposit to the amount specified in the Basic Increase Information. Upon termination or earlier expiration of this Lease, the Security Deposit shall lie returned to Tenant, reduced by those amounts that may be required by Landlord to remedy defaults on the part of Tenant in the payment of Rent, to repair damage to the Premises caused by Tenant or Tenant Parties and to clean the Premises to a broom-clean condition. The portion of the Security Deposit not so required shall be paid over to Tenant promptly after expiration of the Term. Landlord shall hold the Security Deposit for the foregoing purposes; provided, however, that Landlord shall have no obligation to segregate the Security Deposit from its general funds or to pay interest thereon. If Landlord conveys or transfers its interest in the Building and as a part of such conveyance or transfer, assigns its interest in this Lease and Security Deposit and the transferee assumes the same in writing, or any portion thereof not previously applied, the Security Deposit shall be transferred to Landlords successor and Landlord shall be released and discharged from any further liability to Tenant with respect to such Security Deposit. In no event shall any Mortgagee under a Mortgages or any purchaser of all or any portion of the Development at a public or private foreclosure sale under a mortgages have any liability or obligation whatsoever to Tenant or Tenants successors or assigns for the return of all or any part of the Security Deposit in the event any such Mortgagee or purchaser becomes a mortgagee in possession or succeeds to the interest of Landlord under this Lease unless, and then only to the extent that, such Mortgagee or purchaser has received all or any part of the Security Deposit:
6. SERVICES PROVIDED BY LANDLORD
Landlord agrees to furnish or cause to be furnished to the Premises the utilities and services as described in Exhibit C, subject to the standards set forth therein. Tenant shall obtain all utilities and services from vendors designated by Landlord, which vendors shall be selected in Landlords sole and absolute discretion, and Tenant shall have no right to obtain any utilities or services from any vendors other than those so designated by Landlord; provided, however, in no event shall Tenant be responsible for any charges from such venders in excess of the costs charged by similar, reputable venders of such services to buildings in the Northern San Mateo County area comparable to the Building and otherwise consistent with an arms-length agreement In the event any rule or regulation of applicable utilities or governmental authority restricts the services to be provided hereunder, Landlord shall not be in default hereof and Tenant shall not be entitled to an abatement of Rent Landlord does not warrant that the services provided for in this Section 6 will be free from any irregularity or stoppage. Landlord shall use commercially reasonable efforts to correct the same, but no such condition or event will create any liability for Landlord or Landlord Parties, or constitute an eviction, actual or constructive, of Tenant, or cause any abatement of the rent payable under this Lease or relieve Tenant of any of its obligations under this Lease. Notwithstanding any other provision in this Paragraph 6 to the contrary, if such utilities or services shall, by reason of Landlords negligence or willful misconduct and through no fault of Tenant, be interrupted or suspended and not restored within three (3) business days after written notice from Tenant to Landlord, and if by reason of such interruption or suspension Tenant is unable to conduct its business operations from the Premises, then Landlord shall refund to Tenant an amount equal to the Base Rent (prorated on a daily basis) paid by Tenant for the period from the date of such interruption
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or suspension until such service is restored or reasonably satisfactory alternative service is provided in its place.
7. USE; HAZARDOUS SUBSTANCES
7.1 Use of Premises
Tenant will use and occupy the Premises only for the purpose set forth in the Lease Summary and no other purpose whatsoever, using and maintaining them in a clean, careful, safe, sanitary and proper manner. Tenant will pay for any damage to any part of the Development caused by any negligence, willful act, misuse or abuse by Tenant or Tenant Parties. Tenant and Tenant Parties will comply with the Buildings Rules and Regulations and will not cause anywhere in the Development, or permit in the Premises, (a) any activity or thing (i) contrary to applicable law, ordinance, regulation, restrictive covenant, or insurance regulation, including, without limitation, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and any governmental regulations relating thereto, including any required alterations for purposes of public accommodations under such statute; or (ii) which jeopardizes the coverage of normal insurance policies or increase their cost; (b) defacing or injury to the Development; (c) waste or nuisance, or any activity causing noise or odors perceptible outside the Premises; (d) cooking or heating food, except for incidental use, solely for Tenant Parties, of microwave ovens and beverage-brewing devices, provided that the foregoing do not use a flame and are approved by Underwriters Laboratories for residential use; (e) sale, purchase or gift of any merchandise or storage therefor, including, without limitation, any use of vending machines (except for the use of those vending machines approved by Landlord in writing, which approval shall not be unreasonably withheld); or (f) overloading of the floors or any of the structural or mechanical systems of the Building. Tenant shall not erect or place any item in or upon the Common Areas. Tenant will conduct its business and occupy the Premises and shall not unreasonably interfere with, annoy or disturb any other tenants in the Development or the Landlord in its management thereof Tenant shall not erect or place any item (including, without limitation, signs) in, upon or visible from the exterior of the Building or the Common Areas of the Development; provided, however, Tenant shall be entitled to maintain its existing sign on the temporary monument sign of the Development at its sole cost and expense until such time that Landlord removes the monument sign from the Development. In its sole and absolute discretion, and thereafter, Tenant shall have no further right to erect or place any sign in, upon or visible from the exterior of the Building or the Common Areas of the Development.
7.2 Hazardous Substances
Tenant shall not generate, use, manufacture, keep, store, refine, release, discharge or dispose of any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant by any federal, state or local law, ordinance, rule or regulation 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 pollution or contamination, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq., the Solid Waste Disposal Act, 42 U.S.C. § 6901, et seq., the Hazardous Substance Account Act, California Health and Safety Code § 25300, et seq., the
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Hazardous Waste Control Law, California Health and Safety Code § 25100, et seq., and the Porter-Cologne Water Quality Control Ad, California Water Code § 13000, et seq., including, without limitation, PCBs, petroleum products, asbestos and asbestos-containing materials (collectively, Hazardous Substances), on, under or near the Development, except that Tenant may use Hazardous Substances on the Premises that are incidental to and only in quantities reasonably required for general office use, such as photocopier toner and household cleaner, provided such use is in full compliance with all applicable laws and prudent business practices. Except as specifically provided above, Tenant shall ensure that Tenant and Tenants Parties shall not cause or permit any waste material or refuse to be dumped upon or remain upon any part of the Development, and Tenant shall ensure that Tenant and Tenants Parties shall not cause or allow any materials, supplies, equipment, finished products or semi-finished products or articles of any nature to be stored upon or remain upon the Development. Tenant shall indemnify, defend and hold Landlord and Landlord Parties harmless from any and all Liabilities (as defined in Section l4), incurred in connection with or arising from the generation, use, manufacture, keeping, storage, refinement, release, discharge or disposal of any Hazardous Substances by Tenant, any Tenant Parties or any person claiming through or under Tenant or any Tenant Party on or about the Development. The foregoing indemnity shall survive termination or earlier expiration of this Lease.
8. BROKERS
Tenant warrants that it has had no dealing with any broker or agent other than the Broker specified in the Lease Summary in connection with this Lease. Tenant hereby acknowledges that it is solely responsible for the payment of any commissions or other compensation or charges claimed by Broker (Broker Fees); provided, however, Landlord hereby acknowledges that Tenant shall be entitled to use a portion of the Allowance (as defined in Section 10.2, below) for the payment of any Broker Fees owing in connection with this Lease. Tenant shall indemnify, defend and hold Landlord and Landlord Parties harmless from and against any and all Liabilities for commissions or other compensation or charges claimed by any other broker or agent based on dealings with Tenant with respect to this Lease. Landlord warrants that it has had no dealings with any broker or agent in connection with this Lease. Landlord shall indemnify, defend and hold Tenant and Tenant Parties harmless from and against any and all Liabilities for commissions or other compensation or charges claimed by any broker or agent based on dealings with Landlord with respect to this Lease. The foregoing indemnities shall survive termination or earlier expiration of this Lease.
9. TENANTS TAXES
(a) In addition to Tenants obligations under Section 4.2, Tenant shall be responsible for and shall pay, at least ten (10) days before delinquency, all taxes, fees or charges levied or assessed against or attributable to any personal property or trade fixtures in the Premises or by reason of leasehold improvements. If any such taxes, fees or charges are included in Landlords taxes, Landlord may pay them regardless of the validity (under proper protest if requested by Tenant and at Tenants sole cost and expense), and Tenant will pay Landlord the amount of Landlords taxes attributable to Tenant, as determined In good faith by Landlord, within thirty (30) days after
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Landlord delivers to Tenant written demand supported by reasonably satisfactory evidence of the taxes attributable to Tenant.
(b) In addition to all other sums to be paid by Tenant tinder tills Lease, Tenant shall pay, before delinquency, any and all taxes levied or assessed during the Term, whether or not now customary or within the contemplation of the parties hereto, (i) upon or measured by Base Rent or Additional Rent, or both, payable under tills Lease, including, without limitation, any gross income tax or excise tax levied by the city and/or county in which the Building is located, the State of California, the Federal Government or any other governmental body with respect to the receipt of such rental; (ii) upon or with respect to the possession, leasing; operation, management, maintenance, alteration,, repair, use or occupancy by Tenant of the Premises or any portion thereof; or (iii) upon this transaction or any document to which Tenant Is a party creating or transferring an interest or an estate in the Premises.
10. ALTERNATIONS, REPAIRS AND MAINTENANCE
10.1 Repairs and Maintenance
(a) Subject to Sections 4.2, 10.1(b), 17 and 18, Landlord shall repair and maintain (i) the structural portions of the Building, (ii) the exterior walls of the Building, including glass and glazing, (iii) the roof, (iv) those portions of the mechanical, electrical, plumbing, HVAC and life safety systems serving the Building (the Systems) (excluding any connections or elements thereof installed by Tenant) and (v) the Common Areas. Any repair caused in part of in whole by the act, neglect or omission of Tenant or any Tenant Parties shall be trade by Landlord at the sole cast and expense of Tenant.
(b) Throughout the Term, Tenant shall at its sole cost and expense (i) keep, maintain and repair the Premises in first class condition and repair, ordinary wear and tear and damage from any casualty or condemnation for which Tenant is not responsible or liable under the Lease excepted, (ii) make all nonstructural repairs and replacements to the Premises, and (iii) keep, maintain and repair all Systems installed by Tenant, fixtures and supplemental HVAC units in good working order, unless Landlord elects, at Tenants sole cost and expense, to perform such work. In performing the obligations under this Section 10.1(b), Tenant shall notify Landlord of any repairs that could affect the Systems serving the Building (exclusive of the Premises) and shall use contractors approved by Landlord, in its reasonable discretion. Landlord shall have the right but not the obligation to undertake work that Tenant is required to perform under this Lease and that Tenant fails or refuses to perform in a timely and efficient manner. All reasonable costs incurred by Landlord in performing any such maintenance or repair for the account of Tenant, together with an administrative fee equal to ten percent (10%) of such costs, shall be repaid by Tenant to Landlord within thirty (30) days after Landlord delivers to Tenant written demand supported by invoices or other reasonably satisfactory evidence of such costs.
(c) Subject to Section 6 and Section 17.3, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenants business arising from the making of any repairs, alterations or improvements in or to any portion of the
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Development, or in or to fixtures, appurtenances and equipment therein. Tenant waives the right to make repairs at Landlords expense under any law, statute or ordinance now or hereafter in effect.
10.2 Alterations
Tenant will not make or permit alterations, improvements or additions (including fixtures) in or to the Premises (collectively Alterations) without Landlords prior written consent; which consent shall not be unreasonably withheld. Tenants request for such consent shall be in writing, accompanied by proposed detailed plans and specifications. Landlord may require Tenant to provide Landlord, at Tenants sole cost and expense, a lien and completion bond in an amount equal to one and one-half times the estimated cost of such Alterations, to insure Landlord against any liability for any mechanics and materialmens liens and to insure completion of the work Alterations will be performed, if Landlord elects, by Landlord or a contractor designated by Landlord, at Tenants sole cost and expense. Tenant may engage its own contractors to perform remodel work upon written approval by Landlord In such event, Landlord shall charge a fifteen percent (15%) administrative fee on all construction costs. Any and all plans must be submitted to Landlord for approval, and building permits must be obtained by Tenant prior to commencement of any construction remodeling. Subject to Section 24.1, all Alterations will become Landlords property and a pact of the Building without compensation to Tenant. Tenant will promptly notify Landlord of the value thereof for insurance purposes. Tenant shall indemnify, defend and hold Landlord and Landlord Parties harmless from and against any and all Liabilities incurred in connection with or arising from any work performed by or on behalf of Tenant.
If Landlord gives its consent to Tenants making such Alterations, the consent shall be deemed conditioned upon Tenants acquiring all permit and approvals required to lawfully do so from applicable governmental agencies, furnishing a copy thereof to Landlord prior to the commencement of the work, and compliance by Tenant with all conditions of said permits and approvals in a prompt and expeditious manner. Unless Landlord so specifies when it gives such consent, Tenant shall not be obligated to remove any Alterations upon the expiration or earlier termination of the Term. Tenant shall give Landlord not less than ten (10) days notice prior to the commencement of any work in the Premises by Tenant, and Landlord shall have the right to post notices of nonresponsibility in or on the Premises or other parts of the Development as provided by law. All Alterations, repairs and replacements by Tenant shall be in accordance with all applicable laws, rules and ordinances and the requirements of any insurance carrier, and shall be of a quality and class at least equal to the original work, performed in a good and workmanlike manner with good grades of materials approved by Landlord. Tenant will give Landlord opportunity to inspect and monitor all work Tenant shall provide Landlord with as-built plans and specifications for Alterations promptly upon their completion. Should Tenant make any Alterations without Landlords prior written approval, or in violation of such approval or the requirements of this Section 10.2, Landlord may, at any time during the Term, either remove any part or all of the same on Tenants behalf or require that Tenant do so all at Tenants sole cost and expense. All reasonable costs incurred by Landlord in removing any such alterations shall be repaid by Tenant to Landlord immediately upon demand, together with an administrative fee equal to fifteen percent (15%) of such costs.
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Subject to the terms of this Section 10.2, Landlord hereby consents to Tenant (i) upon delivery to Tenant of both the Suite 950 Space and the Sublease Premises, removing the current demising wall that separates the Suite 950 Space from the Sublease Premises (the Sublease Demising Wall), (ii) upon delivery by Landlord to Tenant of both the Suite 950 Space and the Suite 980 Space, removing the current demising wall that separates the Suite 950 Space from the Suite 980 Space (the Suite 980 Demising Wall, and (iii) making minor Alterations that may be required in connection with the removal of each of the Sublease Demising Wall and the Suite 980 Demising Wall (collectively, the Demising Alterations); provided, however, and notwithstanding anything to the contrary contained herein, upon the expiration or earlier termination of the Term Tenant, at Landlords request, shall remove any Demising Alterations and repair any damage to the Suite 950 Space, the Sublease Premises and/or the Suite 980 Space as a result of the Demising Alterations and Tenant shall reconstruct the Sublease Demising Wail and the Suite 980 Demising Wall each to the same condition in which each, existed at the commencement of the Term. Landlord hereby agrees to reimburse Tenant for the out-of-pocket costs Tenant actually incurs for the Demising Alterations and for any Broker Fees as set forth in Section 8, but in no event shall Landlords reimbursement obligation pursuant hereto, in the aggregate, exceed Thirty Thousand Dollars ($30,000.00) (the Allowance). All costs in excess of the Allowance shall be the sole responsibility of Tenant Landlord shall make such reimbursement to Tenant within thirty (30) days after Tenant delivers to Landlord written demand supported by invoices, receipts and other documents reasonably acceptable to Landlord as evidence of the lien-free completion of said improvements in accordance with the provisions of this Lease and all applicable laws and as evidence of the payment of Broker Fees by Tenant; as applicable. Any and all costs not properly submitted to Landlord by May 31, 2000 shall not be reimbursable hereunder and shall be at Tenants sole cost and expense. Any excess allowance not properly claimed by Tenant pursuant hereto shall, after May 31, 2000, be forfeited by Tenant and remain the exclusive property of the Landlord.
11. LIENS
Tenant shall not permit any lien to exist on or against any part of the Development allegedly resulting from any work or materials furnished or obligations incurred by or for Tenant. Tenant shall discharge arty such lien of record or post a bond in accordance with applicable law as soon as reasonably possible after such lien is filed; provided, however, if no liens are allowed pursuant to Landlords Mortgage now or hereafter existing on any part of the Building or the Development, Tenant shall discharge any such lien of record immediately upon its filing. Neither this Lease, nor any request or consent of Landlord to the labor, materials or obligations, shall be a consent to any such lien. Landlord may keep posted on the Premises any notices it deems necessary for protection from such liens. If Tenant fails to discharge any such lien, or to post a bond, or to contest such lien by appropriate legal proceeding, or if any such lien jeopardizes Landlords interest in the Development or is otherwise prohibited by Landlords Mortgage now or hereafter existing on any part of the Building or the Development, then Landlord may cause such lien to be released by any means it deems proper, including payment, at Tenants sole cost and expense and without affecting Landlords rights. All reasonable costs incurred by Landlord in causing such liens to be released, together with an administrative fee equal to ten percent (10%) of such costs, shall be repaid by
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Tenant to Landlord within thirty (30) days after Landlord delivers to Tenant written demand supported by invoices or other reasonably satisfactory evidence of such costs.
12. ENTRY
Landlord may enter any part of the Premises at all reasonable hours following reasonable prior notice to Tenant (or in any emergency or suspected emergency, at any hour, without notice), to (a) inspect, test, clean, or make repairs, alterations and additions to the Building or the Premises as Landlord believes appropriate, or (b) provide any service which Landlord is now or hereafter obligated to furnish to tenants of the Building, or (c) show the Premises to prospective lenders, purchasers or tenants (but, with respect to tenants, only during the last six (6) months of the Term) and, if they are vacated, to prepare them for reoccupancy. Rent will not abate because of Landlords entry. Landlord shall at all times have keys to all doors to or in the Premises.
13. LANDLORDS LIABILITY
Tenant will protect its property and the person and property of all Tenant Parties, and insure the same to its own satisfaction (including at least the insurance required hereunder), and accordingly waives any claim against Landlord and the Landlord Parties for loss or damage to any property, injury to any person, or injury to Tenants business from any cause except for any damages directly caused (and specifically excluding any consequential damages) by Landlords willful misconduct or reckless ads. Tenant, for itself and all Tenant Parties, assumes all risk of damage to person and property, proximate or remote. All personal property on the Premises is at Tenants risk only; the Landlord shall not be liable for any damage to or theft of such property.
14. INDEMNIFICATION AND EXCULPATION
Tenant shall indemnify, defend and hold Landlord and the Landlord Parties (collectively, Indemnitee) harmless from and against any and all fines, suits, losses, costs, expenses, liabilities, claims, demands, actions, damages and judgments (collectively, Liabilities) suffered by, recovered from or asserted against the Indemnitee, of every kind and character, resulting from any breach, violation or nonperformance by Tenant of any provision of this Lease, and from injury or damage to person or property incident to, arising out of or caused (proximately or remotely, in whole or in pan) by any act, omission, negligence or misconduct by Tenant or the Tenant Parties, or in any other way from Tenant or any Tenant Patties occupancy or use of or presence on the Development. If any such proceeding is brought against an Indemnitee, Tenant will retain counsel reasonably satisfactory to Landlord to defend the Indemnitee at Tenants sole cost and expense. All such costs and expenses, including, without limitation, attorneys fees and court costs, shall be payable by Tenant to Landlord immediately upon demand. Tenants obligations under this Section 14 shall survive the termination or earlier expiration of this Lease.
Landlord will indemnify, defend and hold Tenant harmless from all Liabilities asserted against Tenant, to the extent that such Liabilities are proven by Tenant to have been caused by Landlords soulful misconduct or reckless acts. Landlords obligations under this Section 14 shall
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include reimbursement to Tenant for reasonable attorneys fees and court costs incurred by Tenant in connection with those Liabilities covered by Landlords indemnification as set forth herein. All costs and expenses, including attorneys fees and court costs, payable by Landlord to Tenant under this Section 14 shall be payable to Tenant within thirty (30) days after Tenant delivers to Landlord written demand supported by invoices or other reasonably satisfactory evidence of such expenses. Landlords obligations under this Section 14 shall survive the termination or earlier expiration of this Lease.
15. INSURANCE
Tenant, during the Term and any other period of occupancy, will at its sole cost and expense maintain insurance reasonably satisfactory to Landlord, but in any event complying with the following minimum requirements:
(a) General Liability insurance with combined single limits not less than $2,000,000.00, for personal injury or death and property damage occurring in or about or related to the use or occupancy of the Development by Tenant and any Tenant Parties.
(b) All Risk insurance for the full replacement cost of all Alterations, all Tenants property on the Premises and all fixtures. Unless this Lease is terminated upon damage or destruction, the proceeds of such insurance will be used to restore the foregoing.
(c) Workers Compensation (as required by state law), and Employers Liability insurance in the amount of not less than $500,000.00.
(d) Loss of income and extra expense insurance in such amounts as will reimburse Tenant for direct or indirect loss of earnings or extra expenses attributable to all perils commonly insured against by prudent tenants or attributable to prevention of access to the Development as a result of such perils.
All policies required hereunder will be issued by carriers rated A-VII or better by Bests Kay Rating Guide and licensed to do business in the State of California. The policies shall name Landlord and any other person or entity that Landlord may designate from time to time as additional insureds, with primary coverage noncontributing to any insurance landlord may carry, and shall provide that coverage cannot be cancelled or materially changed except upon thirty (30) days prior written notice to Landlord and any additional insureds. At least thirty (30) days prior to expiration of such policies, and promptly upon any other request by Landlord. Tenant shall furnish Landlord and any additional insureds with copies of policies, or certificates of insurance, evidencing maintenance and renewal of the required coverage. In the event Tenant does not maintain said insurance, Landlord may, in its sole discretion and without waiving any other remedies hereunder, procure said insurance and Tenant shall pay to Landlord within thirty (30) days after written demand the cost of said insurance together with an administrative fee equal to ten percent (10 %) of such costs.
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During the Term, Landlord shall insure the Building (excluding any property which Tenant is obligated to insure) against damage with All-Risk insurance and public liability insurance, all in such amounts and with such deductibles as Landlord in good faith considers appropriate; provided, however, such All-Risk insurance shall be in an amount equal to at least the full replacement cost of the Building. Landlord may, but shall not be obligated to, obtain and carry any other form or forms of insurance, including, without limitation, earthquake insurance (subject to the provisions of subparagraph (h) of the definition of Operating Expenses), as Landlord or Mortgagees may determine advisable. Tenant has no tight to receive any proceeds from any insurance policies carried by Landlord. Notwithstanding anything in the foregoing to the contrary; however, Landlord may self-insure but only to the extent permitted under any Mortgage.
If any act or acts, occupancy or use by Tenant or any Tenant Parties, whether or not Landlord has consented to the same, increase the cost of Landlords insurance, Tenant will pay the fall cost of any such increase along with Additional Rent. A schedule issued by the organization computing the insurance rate shall be conclusive evidence of the cost of such increase in premium. If any of Landlords insurance is (or is threatened to be) cancelled or the coverage thereunder reduced ID any way because of any ad or acts, occupancy or use by Tenant or any Tenant Parties, Landlord may terminate this Lease and/or may enter upon the Premises at Tenants sole cost and expense and without any liability to Tenant, and attempt to remedy such condition. Ali costs incurred by Landlord in performing any such remedial action shall be repaid by Tenant to Landlord within thirty (30) days after written demand, together with an administrative fee equal to ten percent (10%) of such costs.
16. NO SUBROGATION
Ali insurance policies which either party obtains, or is required to obtain hereunder affecting the Premises shall include, if available from each partys respective insurer upon commercially reasonable terms and prices, a clause or endorsement denying the insurer any rights of subrogation against the other party. Landlord and Tenant waive any rights or recovery against the other for any actually insured injury or loss.
17. DAMAGE OR DESTRUCTION
If the Premises or any part thereof is damaged by fire or other casualty, Tenant will promptly notify Landlord.
17.1 Cancellation of Lease: Restoration of Building
If the Building or the Premises or any significant portion of the Common Areas Is damaged by fire or other casualty to the extent that, in Landlords sole and absolute opinion, substantial alteration or reconstruction is required, or if any Mortgagee of a Mortgage requires that the insurance proceeds payable as a result of the fire or other casualty be applied against the indebtedness secured by the Mortgage, Landlord may terminate this Lease by notifying Tenant within sixty (60) days after the later of the daft the damage occurs or the date Landlord is so notified by its Mortgagee, in which event the Rent under this Lease will be equitably abated as of the date of the fire or other casualty to
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the extent such damage materially impair Tenants business operations at the Premises. If this Lease is not terminated, then within seventy-five (75) days after the fire or other casualty, or such greater period as may be reasonably necessary, Landlord will commence to repair and restore the Premises and any portion of the Building and Common Areas required for access to the Premises, and will diligently complete the same, but Landlord shall not be required (a) to expend more for such repair of the Premises than the insurance proceeds in Landlords possession (or to be disbursed to Landlord pursuant to the Mortgage) that exceed the proceeds retained (or required to be retained) by Mortgagee pursuant to its Mortgage and that are reasonably allocable to the Premises, or (b) to rebuild, repair or replace any of Tenants furniture, furnishings, fixtures or equipment removable by Tenant under the provisions of this Lease or which Tenant has insured or is required to insure under the provisions of this Lease. If the Premises (or access thereto) are damaged by fire or other casualty so as to unreasonably interfere with Tenants use and enjoyment of the Premises for Tenants normal business operations and Landlord reasonably determines that it will be unable to repair that portion of the Premises (or access thereto) for which Landlord is responsible hereunder within two hundred seventy (270) days after such fire or other casualty, then Landlord shall deliver written notice to Tenant within sixty (60) days after such fire or other casualty informing Tenant of Landlords inability to so repair the Premises (or access thereto) within said two hundred seventy (270) day period and Tenant shall have ten (10) days from the date of such notice during which to terminate this Lease by delivering to Landlord written notice of Tenants desire to so terminate the Lease. If Tenant does not timely elect to so terminate this Lease, this Lease shall remain in full force and effect
17.2 Casually Loss During Last Year of Lease
If the Premises or the Building is damaged by fire or other casualty during the last six (6) months of the Term, whether or not the damage requires substantial repair and reconstruction, either Tenant or Landlord may cancel this Lease as of the date of the fire or casualty by notice to the other within thirty (30) days thereafter.
17.3 Abatement of Rent
In the event of any damage described in this Section 17, Base Rent shall be equitably abated in proportion to the extent that Tenants business operations at the Premises are unpaired, such abatement to commence as of the date such damage occurs and will continue during the period of such repairs. Except as expressly provided to the contrary in this Lease, this Lease will not terminate, and Tenant will not be entitled to damages or to any abatement of Rent, as a result of a fire or other casualty, repair or restoration. The provisions of California Civil Code Sections 1932(2) and 1933(4) which permit termination of a lease upon destruction of Premises, and any other present or future statute that may so permit, are hereby waived by Tenant.
18. CONDEMNDATION
If all or substantially all of the Building or of the Premises or of the parking areas in the Common Areas is taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or is sold to the condemning authority in lieu of
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condemnation, then this Lease will terminate on the earlier of the date title thereto passes to the condemning authority or when physical possession is taken by the condemning authority. If a lesser but material portion of the Building or Common Areas is thus taken or sole (whether or not the premises are affected thereby), then either Tenant (if the taking renders the Building and the Premises unsuitable for Tenants continued use of the Premises) or Landlord may terminate this Lease by notice to the other within sixty (60) days after the taking or sale, in which event this Lease will terminate on the earlier of the date title thereto passes to the condemning authority or when physical possession of the applicable portion of the Building, the Common Areas or the Premises is taken by the condemning authority. If this Lease is not terminated pursuant to the foregoing and a portion of the Premises has been taken or sold, the Base Rent and Tenants Share shall be adjusted according to the Rentable Area of the Premises remaining after such taking or sale, and Landlord, at its sole expense, will restore the affected portion of the Building to substantially its former condition as far as feasible, but not beyond the work done by Landlord in originally constructing the affected portion of the Building and installing tenant improvements in the Premises. However, Landlord shall not be required to expend more for any restoration of the Premises than the Premises allocable share of the net compensation or damages received by Landlord for the part of the Building taken and which compensation or damages have been or will be released to Landlord by Mortgagee. Landlord will be entitled to receive all of the compensation awarded upon a taking of any part or all of the Development, including, without limitation, any aware for any unexpired term of this Lease and Tenant hereby assigns such compensation so awarded to Landlord. Notwithstanding the foregoing, Tenant may seek an award in separate proceedings for its personal property, trade fixtures, moving expenses and good will.
In the event of a taking or sale of the Premises or any part thereof for temporary use, this Lease shall remain unaffected and Rent shall not abate, and Tenant shall be entitled to such portion or portions of any award made for such use with respect to the period of the taking which is within the Term, provided that, if such taking shall remain in force at the expiration or earlier termination of this Lease, Tenant shall then pay to Landlord a sum equal to the reasonable cost of performing Tenants obligations with respect to surrender of the Premises.
To the extent that it is inconsistent with the provisions of this Section 18, each party hereto hereby waives the provisions of Section 1265.130 of the California Code of Civil Procedure allowing either party to petition to court to terminate this Lease in the event of a partial taking of the Premises.
19. DEFAULTS AND REMEDIES
19.1 Events of Default
The occurrence of any one or more of the following events shall constitute a default hereunder by Tenant:
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(a) Tenant fails to make a payment within five (5) days after written notice that such payment is due hereunder; provided, however, that Landlord shall not be required to provide such notice more than twice during the Term with respect to Base Rent or Additional Rent, the third such non-payment constituting default without requirement of notice; or
(b) Tenant attempts any Assignment (as defined in Section 20) except as expressly permitted pursuant to Section 20; or
(c) Tenant fails to comply with any other obligation under this Lease and does not cure such failure as soon as reasonably practicable and in any event within twenty (20) days after written notice; provided, however, if such failure cannot be cured during such twenty (20) day period, Tenant shall not be is default hereunder so long as Tenant commences to cure such failure within that twenty (20) day period and thereafter diligently completes such cure; or
(d) Tenant or any Guarantor becomes insolvent, makes a transfer in fraud of creditors or an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, or files a petition under any Section or Chapter of the United States Bankruptcy Code or any similar law or statute; or an order for relief is entered with respect to Tenant or any Guarantor in any bankruptcy, reorganization or insolvency proceeding; or a pleading seeking such an order is not discharged or denied within sixty (60) days after Its filing; or any action is taken at the corporate, partnership or company level by Tenant or any Guarantor to authorize any of the foregoing actions on behalf of Tenant or any Guarantor, or a receiver or trustee is appointed for all or substantially all of the assets of Tenant or any Guarantor or of the Premises or any of Tenants property located thereon in any proceedings brought by Tenant or any Guarantor, or any receiver or trustee is appointed in any proceeding brought against Tenant or any Guarantor and not discharged within sixty (60) days after appointment or Tenant or any Guarantor does not contest such appointment; or any part of Tenants estate under this Lease is taken by process of law in any action against Tenant; or
(e) Tenant abandons the Premises; or
(f) Three (3) times within a year, Tenant fails to fulfill a monetary obligation or a material nonmonetary obligation under this Lease but thereafter cures such failure within the time provided.
Any notice specified above shall serve as, and not be in addition to, any notice required under California Code of Civil Procedure Section 1161 or otherwise regarding unlawful detainer actions.
19.2 Remedies
(a) Upon an event of default, Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder by giving written notice- to Tenant of such termination. If and when this lease is so terminated, all rights of Tenant and those claiming under it will terminate and Landlord may Immediately recover from Tenant:
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(i) The worth at the time of award of any unpaid Rent which had been earned at the tune of such termination; plus
(ii) The worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenants failure to perform Tenants obligations under this Lease or which in the ordinary course of things would be likely to result therefrom.
As used in Subsections (i) and (ii) above, the worth at the time of award is computed by allowing interest at the maximum rate permitted by law. As used in Subsection (iii) above, the worth at the time of award is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
(b) Pursuant to California Civil Code Section 1951.4, Landlord shall have the right to continue this Lease in full force and effect and this Lease shall continue in full force and effect as long as Landlord does not terminate Tenants rights to possession of the Premises and Landlord shall have the right to collect Rent when due. Until this Lease is so terminated, Landlord may, on Tenants behalf, at Tenants sole cost and expense and in Landlords sole discretion, sublet any of the Premises (and, on expiration or earlier termination of the sublease, may re-sublet) for all or part of the remainder of the Term, on whatever terms and conditions Landlord in its sole and absolute discretion deems advisable. Against the Rent and sums due from Tenant to Landlord during the remainder of the Term, credit will be given Tenant in the net amount of Rent received from the new tenant but only after deduction by Landlord for (a) the costs incurred by Landlord in reletting the Premises (including, without limitation, repair and remodeling costs, brokerage fees, legal fees and the like), and (b) all accrued sums, plus interest and late charges, under the terms of this Lease.
(c) Upon an event of default or when Tenant is no longer entitled to possession, Landlord may enter the Premises and dispose of Tenants property in accordance with law, and may perform Tenants obligations hereunder on Tenants behalf. Tenant will reimburse Landlord immediately on demand for Landlords attorneys fees and other expenses in doing so. This Section 19.2(c) shall survive expiration or earlier termination of this Lease.
19.3 Continuing Liability
No repossession, re-entering or re-letting of the Premises or any part thereof by Landlord shall relieve Tenant or any Guarantor of its liabilities and obligations under this Lease.
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19.4 Remedies Cumulative
All rights and remedies of Landlord under this Lease will be nonexclusive of and in addition to any other remedies available to Landlord at law or in equity.
19.5 No Waiver
Either partys failure to insist on strict compliance with any terms hereof or to exercise any right or remedy, does not waive the same. Waiver of any agreement regarding any breach does not affect any subsequent or other breach, unless so stated. A receipt by Landlord of any Rent with knowledge of the breach of any covenant or agreement contained in this Lease shall not be a waiver of the breach, and no waiver by either party of any violation or provision of this Lease shall be effective hapless expressed in writing and signed by such party. Payment by Tenant or receipt by Landlord of a lesser amount than due under this Lease may be applied to such of Tenants obligations as Landlord elects. No endorsement or statement on any check, and no accompanying letter, shall make the same an accord and satisfaction, and Landlord may accept any check or payment without prejudice to Landlords right to recover the balance of the Rent or pursue any other remedy provided in this Lease.
20. ASSIGNMENT OR SUBLEASE
20.1 Notification
If Tenant intends to assign, transfer, or encumber this Lease or any estate or interest herein, or permit the same to occur, or sublet or grant any right of occupancy for any part of the Premises or permit such occupancy by any other parties other than Tenant and any Tenant Parties, or modify or terminate any agreement for any of the foregoing (the foregoing collectively referred to as an Assignment, and the other party thereto the Assignee), Tenant shall give Landlord written notice of such intent. Tenants notice shall be accompanied by an exact copy of the proposed agreement between Tenant and the proposed Assignee. Tenant shall provide Landlord with (a) any additional information or documents reasonably requested by Landlord within ten (10) days after receiving Tenants notice, and (b) an opportunity to meet and interview the proposed Assignee, if requested.
20.2 Landlord Approval
Landlord shall then have a period of twenty (20) days following such interview and receipt of such additional information (or thirty (30) days from the date of Tenants original notice if Landlord does not request additional information or an interview) within which to notify Tenant in writing that Landlord elects, in its sole and absolute discretion, either (a) to terminate this Lease as to the space so affected as of the date so specified by Tenant, in which event Tenant will be relieved of all further obligations hereunder as to such space arising from and after such termination except for those obligations which by their terms survive termination or earlier expiration of this Lease, or (b) to permit the Assignment, subject, however, to prior written approval of the proposed Assignee by Landlord, such consent not to be unreasonably withheld so long as (i) the use of the Premises by such Assignee would be in accordance with Section 7.1 hereof, (ii) the proposed Assignee is of
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sound financial condition as determined by Landlord in its good faith discretion, (iii) the Assignee would not cause the violation of any covenant or agreement of Landlord to any third party or would permit any outer tenant to terminate its lease, and (iv) the Assignee does not then lease or occupy any other space In the Development. If Landlord fails to notify Tenant in writing of its election within said period, Landlord shall be deemed to have waived option (a) above, but written approval by Landlord of the proposed Assignee shall nonetheless be required in accordance with (b) above. Failure by Landlord to approve a proposed Assignee shall not cause a termination of this Lease. If Tenants obligations under this Lease have been guaranteed by one or more Guarantors, then an Assignment, and Landlords consent thereto, shall not be effective unless the Guarantors give their written consent to such Assignment and the terms thereof and explicitly agree in writing that the Guaranty shall remain in full force and effect notwithstanding such Assignment.
20.3 Allocation of Excess Rent
Any rent or other consideration realized by Tenant under any Assignment in excess of the Rent payable hereunder, after amortization of the reasonable cost of the tenant improvements for which Tenant has paid and agar amortization of the reasonable Assignment costs, shall be divided and paid as follows: (a) so long as after such Assignment, the original Tenant named herein shall occupy not less than seventy-five percent (75%) of the Rentable Area of the Premises, twenty-five percent 2%) to Tenant and seventy-five percent (75%) to Landlord; and (b) in all other cases, ten percent (10%) to Tenant and ninety percent (90%) to Landlord.
20.4 Fair Market Rent
In any subletting undertaken by Tenant, Tenant shall diligently seek to obtain not less than Fair Market Rent for the space so sublet. In any assignment of this Lease in whole or in part, Tenant shall seek to obtain from the assignee consideration reflecting a value of not less than Fair Market Raft for the space subjected to such assignment. Tenant shall provide Landlord, upon Landlords demand, true and correct executed copies of the documents constituting such Assignment and any amendments thereof during the Term.
20.5 No Release from Liability
No Assignment by Tenant shall relieve Tenant or any Guarantor of any obligation under this Lease or any Guaranty. Any Assignment that conflicts with the provisions hereof shall be void. No consent by Landlord to any Assignment shall constitute a consent to any other Assignment nor shall it constitute a waiver of any of the provisions of this Section 20 as they apply to any such future sublettings or assignments.
20.6 Compliance with Laws
Any improvements, additions, or alterations to the Development that are required by any law, ordinance, rule or regulation, or art deemed necessary or appropriate by Landlord as a result of any Assignment hereunder, shall be installed and provided by Tenant or the Assignee without cost or expense to Landlord.
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20.7 Reimbursement of Costs
Landlord may time outside consultants to review all Assignment documents and information. Tenant shall reimburse Landlord for the reasonable cost thereof, including reasonable attorneys foes, immediately on demand, but in no event shall Tenant be obligated to pay to Landlord more than One Thousand Five Hundred Dollars ($1,500.00).
20.8 Negotiation with Assignee
Without liability to Tenant, Landlord shall have the right to offer and to lease space in the Development, or in any other property, to any party, including, without limitation, parties with whom Tenant is negotiating, or with whom Tenant desires to negotiate, concerning assignment or subletting the Premises, or any portion thereof.
20.9 Change Of Control; Affiliates
Assignment within the meaning of this Section 20 includes any change in control of Tenant or any Guarantor, or any sale of more than half the assets of Tenant or any Guarantor outside the ordinary course of business. Tenant shall notify Landlord of any such change in control or sale prior to its consummation, and concurrently shall submit current financial statements applicable thereto, all subject to Landlords reasonable consent and Landlords other rights under this Section 20, as in the case of any other Assignment.
Notwithstanding the foregoing, Landlord agrees that Tenant may enter into an Assignment, without Landlords consent, with any entity which controls, is controlled by or is under common control with Tenant, or with any entity resulting from a merger or consolidation with Tenant, or with any person or entity which acquires all the assets of Tenant as a going concern in the business that is being conducted on the promises, provided that, before such Assignment shall be effective, (a) the Assignee shall assume in writing, in full, the Obligations of Tenant under this Lease, (b) any Guarantor shall explicitly agree in writing that any Guaranty shall remain in full force and effect notwithstanding such Assignment and (c) Landlord shall be given written notice of such assignment and assumption. Any such Assignment shall not, in any way, affect or limit the liability of Tenant or any Guarantor under the terms of this Lease or any Guaranty, even if after such Assignment the term of this Lease is materially changed or altered without the consent of Tenant, the consent of whom shall not be necessary. As used in this Section 20.9, control (including, with correlative meanings, the tams controlled by and under common control with) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management and policies, whether through the ownership of voting securities or by contract or otherwise.
20.10 Conveyance by Landlord
Landlord may transfer, assign and convey all or any part of or interest in the Development or any of its rights under this Lease. If Landlord transfers, assigns or conveys its rights under this Lease, it shall thereby be released from any further obligations under this Lease, Landlords
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successors-in-interest shall be deemed to have assumed those obligations, and Tenant will attorn and look solely to Landlords successor-interest for performance of those obligations.
21. SUBORDINATION
This Lease and all rights of Tenant under this Lease are subject and subordinate to any of the following, and any modifications thereof; which may now or hereafter affect any portion of the Development (a) any Mortgage, or any ground or underlying lease covering any part of the Development, provided that the Mortgage holder or ground lessor shall agree that Tenants peaceable possession of the Premises will not be disturbed on account of such subordination so long as Tenant is not in default under this Lease and attorns to such Mortgage holder or ground lessor, (b) any applicable laws, rules, statutes and ordinances of any governmental authority having jurisdiction, and (c) all utility easements and agreements. On sale by foreclosure of a Mortgage or sale in lieu of foreclosure, Tenant will attorn to the purchaser if requested by such purchaser, and recognize the purchaser as the Landlord under this Lease. These provisions are self-operative and no further instrument is required to effect them; however, upon demand from time to time, Tenant shall execute, acknowledge and deliver to Landlord any commercially reasonable instruments and certificates necessary or proper to evidence such subordination and/or attornment or, if Landlord so elects, to render any of the foregoing subordinate to this Lease or to any or all rights of Tenant hereunder. Tenant further waives the provisions of any current or future statute, rule or law which may give or purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder in the event of any such foreclosure proceeding or sale, and agrees that this Lease shall not be affected in anyway whatsoever by any such proceeding or sale unless the Mortgagee, or the purchaser, shall declare otherwise.
22. ESTOPPEL CERTIFICATE
Promptly upon no less than ten (10) days after Landlords prior written request, Tenant will from time to time execute and deliver to Landlord a certificate, substantially in the form attached hereto as Exhibit D, certifying: (i) the date of commencement of this Lease; (ii) the fact that this Lease is unmodified (except as the certificate specifics) and in full force and effect; (iii) the date to which the sums payable under this Lease have been paid; (iv) that there are no current defaults under this Lease by either Landlord or Tenant except as specified, and (v) such other matters as Landlord requests. This certification may be relied upon by any actual or prospective Mortgagee or purchaser of all or part of the Development or any interest therein or in Landlord. Failure to so execute and deliver said certificate will be conclusive upon Tenant (i) that this Lease is in full force and effect without modification except as may be represented by Landlord, (ii) that there are no uncured defaults in Landlords performance, and (iii) that no more than one (1) months rental bas been paid in advance; and Tenant irrevocably authorizes Landlord, as Tenants attorney-in-fact and in Tenants name, to so execute and deliver said certificate, Landlord shall deliver to Tenant, from time to time upon no less than ten (10) days after Tenants prior written request, a certificate in a form similar to that described herein and reasonably acceptable to Landlord.
23. INTENTIONALLY DELETED
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24. SURRENDER OF PREMISES
Upon expiration or earlier termination of this Lease, Tenant will surrender the Premises to Landlord in as good repair and condition as when Tenant first occupied, except for reasonable wear and tear, and for damage or destruction by fire or other casualty or any condemnation for which Tenant is not responsible or liable under this Lease. Tenant will concurrently deliver to Landlord all keys to the Premises, and restore any locks which it has charged to the system which existed at the commencement of the Term. If possession is not immediately surrendered, Landlord may enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof. Tenant acknowledges that Landlord will be attempting to lease the Premises with any such lease to be effective upon expiration of the Term, and failure to surrender the Premises could cause Landlord to incur liability to such successor tenant for which Tenant shall be responsible hereunder to the full extent thereof.
24.1 Leasehold Improvements and Fixtures
At the expiration or earlier termination of this Lease, Landlord may require the removal of any or all Alterations, above-Standard Tenant Improvements, personal property and equipment from the Premises, and the restoration of the Premises to its condition prior to installation of such items, except for reasonable wear and tear, and for damage or destruction by fire or other casualty or any condemnation for which Tenant is not responsible or liable under this Lease, at Tenants sole cost and expense; provided that. Landlord so notified Tenant in accordance with Section 10.2 of this Lease. Unless Landlord requires their removal pursuant to this Lease, all Alterations and above-Standard Tenant Improvements made to the Premises shall remain upon and be surrendered with the Premises at the expiration or earlier termination of this Lease. All personal property and equipment on or about the Premises, other than that which is affixed to the Premises so that it cannot be removed without material damage to the Premises or the Building, shall be removed from the Premises by Tenant at the expiration or earlier termination of this Leases All removals by Tenant will be accomplished in a good and workmanlike manner so as not to damage any portion of the Building, and Tenant will promptly repair and restore all damage done. If Tenant does not so remove any property which it has the right or duty to remove, Landlord may immediately either claim it as abandoned property, or remove, store and dispose of it in any manner Landlord may choose, at Tenants cost and without liability to Tenant or any other party. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
24.2 Holding Over
If Tenant does not surrender the Premises as required and holds over after its right to possession ends, Tenant shall become a tenant at sufferance only, at a monthly rental rate equal to one hundred fifty percent (150%) of the total Rent payable in the last prior full mouth, without renewal, extension or expansion rights, and otherwise subject to the terms, covenants and conditions herein specified, so far as applicable. Nothing other than a fully executed written agreement of the parties creates any other relationship. Tenant is liable for Landlords loss, costs and damage from such holding over, including, without limitation, those from Landlords delay in delivering possession to other parties. These provisions are in addition to other rights of Landlord hereunder
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and as provided by law. The provisions of this Section shall survive the expiration or earlier rumination of this Lease.
25. PROFESSIONAL FEES
Each party shall be entitled to reasonable attorneys fees and all other costs and expenses incurred in the preparation and service of notices of default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such default In any dispute between the parties (whether or not litigated) arising hereunder or out of Tenants use or occupancy of the Premises, the prevailing partys reasonable costs and expenses (including fees of attorneys and expenses) will be paid or reimbursed by the unsuccessful party. As used herein, prevailing party shall meats the party who substantially prevails in the matter at issue, including without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached or consideration substantially equal to the relief sought in the action. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
26. GENERAL PROVISIONS
26.1 Mortgage Protection
Tenant shall not sue Landlord for damages or exercise any right to terminate until (a) it gives written notice to any Mortgagee whose name and address have been furnished to Tenant, and (b) a reasonable time (but in no event more than thirty (30) days following receipt of such notice or such additional time as is reasonably required) for such Mortgagee, at its option, to remedy the act or omission giving rise to such suit has elapsed following the giving of the notice, without the same being remedied. During that time, Landlord shall not be considered in default, and Landlord and/or any Mortgagee and/or their employees may enter the promises in accordance with Section 12 and do therein whatever may be necessary to remedy the act or omission, it being agreed that no Mortgagee shall have any obligation to Tenant to cure or remedy any act or omission of Landlord.
26.2 Successors and Assigns
Subject to Section 20 hereof, this Lease shall inure to the benefit of and bind all parties hereto and their respective successors and assigns.
26.3 Waiver
Tenant waives any right it may now or hereafter have (a) to redeem the Premises or to have a continuance of this Lease after expiration or earlier termination of this Lease, (b) for exemption of property from liability for debt or for distress for rent, or (c) relating to notice or delay in levy of execution in case of eviction for nonpayment of rent.
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26.4 Identification of Tenant
If there is more than one party constituting Tenant or any Guarantor, their obligations are joint and several, and Landlord need not first proceed against any of them before proceeding against the others, nor shall any Guarantor be released for any reason whatsoever, including, without limitation, any amendment of this Lease, any forbearance by Landlord or waiver of any of Landlords rights, the failure to give any party constituting Tenant or any Guarantor any notices, or the release of any party liable for the payment of Tenants obligations. If there is more than one party constituting Tenant, any of them acts for all others in every regard with respect to this Lease (including, but not limited to, any renewal, extension, expiration, termination or modification).
26.5 Parking
Tenant shall be entitled to nonpreferential and nonexclusive use of the number of parking spaces in the Common Areas specified in the Lease Summary, for which right Tenant will pay the monthly fee per space that Landlord sets from time to time for each type of space, plus any tax or assessment imposed by any governmental authority in connection with the parking privileges provided to Tenant pursuant to this Lease. Said monthly fees shall be paid whether or not Tenant uses said spaces; provided, however, that Landlord hereby waives its right to collect such parking fees from Tenant for the spaces during the initial term of this Lease, except to the extent that Landlord is required to impose a parking fee by any governmental regulation now or hereafter applicable to any part or all of the Development, or to Landlord or Tenant Landlord may assign any unreserved and unassigned parking spaces and/or make all or a portion of such spaces reserved, if it determines in its sole discretion that it is necessary for orderly and efficient parking. Landlord at any time may substitute an equivalent number of parking spaces in a parting structure or subterranean parking facility or in a surface parking area within a reasonable distance of the Premises.
26.6 Interpretation of Lease
Tenant acquires no rights by implication from this Lease, and is not a beneficiary of any past, current or future agreements between Landlord and third parties. Surrender or cancellation of this Lease shall not work a merger, and shall, at Landlords sole option, either terminate all existing subleases or subtenancies or shall operate as an assignment to Landlord of all such subleases or subtenancies. The delivery of keys to Landlord or any Landlord Party is not a termination of this Lease or a surrender of the Premises.
Headings in this Lease are for convenience only, and do not affect the meaning of the text. Unless the context indicates otherwise, words of any gender or grammatical number include all genders and numbers. Where the context conflicts with the definition of any term, the context will control, but only for that purpose and related purposes. If any provision of this Lease or any application thereof is invalid, void or illegal, no other provision or application shall be affected.
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California law governs this Lease. Neither party may record this Lease or a copy or memorandum thereof. Submission of this Lease to Tenant is not an offer, and Tenant will have no rights hereunder until each party executes a counterpart and delivers it to the other party. As used herein, the word including shall be construed to mean including, without limitation.
26.7 Limitation on Liability
Landlords rights hereunder are solely for Landlords benefit, and Landlord has no duty to exercise them for the benefit of Tenant or others. Any liability of Landlord and the Landlord Parties to Tenant and the Tenant Parties under this Lease, or arising from the relationship under it, is limited to the interest of Landlord in the building, and no personal liability shall at any time be asserted or enforceable against Landlord or Landlord Parties on account of Landlords or Landlord Parties obligations or actions under this Lease. If Tenant proposes any action which requires Landlords consent and such consent is impermissibly withheld, denied or delayed, Tenant may only seek an injunction or specific performance but shall not be entitled to damages therefor, including, without limitation, consequential or incidental damages or lost profits.
26.8 Traffic Impact
Traffic control and flow is a major concern of local government, of Landlord and of each tenant in the Building and surrounding buildings. Tenant will cooperate with Landlord in reasonable efforts to alleviate the traffic impact of the Development on the local area streets and highways.
26.9 Financial Statements
Tenant represents, warrants and covenants that financial statements heretofore or hereafter furnished to Landlord, in connection with this Lease, are accurate and are not materially misleading. At anytime during the Term, Tenant shall, upon ten (10) days prior written notice, provide Landlord with a current financial statement and financial statements of the two (2) years prior to the current financial statement year, and prepared in accordance with generally accepted accounting principles and, if such is Tenants normal practice, audited by an independent certified public accountant.
26.10 Quiet Enjoyment
If Tenant pays all sums and performs all its other obligations under this Lease, Tenant shall and may peaceably and quietly have, hold and enjoy the Premises against all persons claiming any rights or interest in or to the Premises by or through Landlord, subject to this Lease and to rights to which this Lease is subordinate. Tenant acknowledges that the Building and the general area in which the building is located is subject to sight, sound and overflight by general aviation aircraft.
26.11 Payments and Notice
Any notice or document shall be considered delivered whether actually received or not, on the third day after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the parries hereto at the respective addresses set forth on the
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Lease Summary or at such other address as the party to be notified may from time to time designate by at least fifteen (15) days prior written notice delivered in accordance with this Section 26.11 to the notifying parties, or when personally delivered to that address; except that if such day is not a business day, the notice or document will be considered delivered on the neat business day. All payments required to be made by Tenant to Landlord are to be paid, without prior demand except as may be expressly specified herein and without any setoff, deduction or counterclaim whatsoever, except as may be expressly specified herein, in legal tender of the United States of America at the address set forth on the invoice or, if no invoice is submitted or no address is set forth at the address for the landlord set forth on this Lease or at any other address as Landlord may specify from time to time by written notice is accordance with this Section 26.11. Any amounts overdue from Landlord or Tenant hereunder shall accrue interest from the date due at the Prime Rate plus four percent (4%) per annum, but in no event more than the legally permissible rate. If Tenant is late in the payment of Base Rent and/or Additional Rent for two (2) consecutive months, Landlord may require Tenant to pay Base Rent and/or Additional Rent in advance on a quarterly basis. If any check or other payment device is returned due to insufficient funds or any other reason, Landlord may require all future payments to be made by money order or cashiers check.
26.12 Late Charge
If any amounts due hereunder from Tenant are not received by Landlord within five (5) days after said amounts are due, Tenant shall also pay to Landlord a late charge of five percent (5%) of all such past due amounts, for which the parties agree is a fair and reasonable estimate of the extra costs (including, without limitation, processing and accounting charges) Landlord will incur by reason of the late payment. Acceptance of any Tare charge shall not constitute a waiver of Tenants default with respect to such overdue, amount, or prevent Landlord from exercising any of its other rights and remedies.
26.13 Rules and Regulations
Tenant and the Tenant Patties shall comply with the Rules and Regulations.
26.14 Rights Reserved by Landlord
In addition to other rights retained or reserved, Landlord reserves the following rights, exercisable without notice and without liability to Tenant and without effecting an eviction, constructive or actual, or in any way diminishing Tenants obligations: (a) to change the name or street address of the Development or any part thereof (b) to install, affix and maintain, modify or remove any and all signs on the exterior and interior of the Building or any other part of the Development; (c) to designate and approve, prior to installation, all types of interior and exterior window treatments and to control all internal lighting that may be visible from the exterior of the Building; (d) the exclusive right to designate, limit, restrict and control any business and any service in or to the Building or its tenants or to any other part of the Development; (e) to keep, and to use in appropriate instances, keys to all doors within and into the Premises (no locks shall be changed or added without the prior written consent of Landlord); (f) to decorate and make repairs, alterations, additions, changes or improvements whether structural or otherwise (specifically including, without
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limitation, those in conjunction with Landlords construction of additional buildings) in and about any pad of the Development and to enter the Premises t accordance with Section 12 of this Lease for these purposes and, during such work to temporarily close doors, entryways. public space and corridors in the Development to interrupt or temporarily suspend Building services and facilities and to change the arrangement and location of entrances or passageways, windows, doors and doorways, corridors, elevators, stairs, toilets, or other public parts of the Development; (g) to approve the weight, size and location of safes and other heavy equipment and articles in and about the Premises and-the Building, and to require all such items and furniture to be moved into and out of the Building and Premises only at times and in such manner as Landlord directs (movement of Tenants property is entirely at the risk and responsibility of Tenant, and Landlord reserves the right to require permits before allowing airy property to be moved into or out of the Building); (h) to have access for Landlord and other tenants of the Building to any mail chutes located on the Premises according to the rules of the United States Postal Service; and (t) to take all reasonable measures Landlord considers advisable for the security of the Development and its occupants.
26.15 Related Parties
Where either party agrees not to do a particular thing, it also agrees not to permit its Related Parties to do so. Where either party waives rights against the other party, it also waives the same rights against the other partys Related Parties. That waiver shall be considered a waiver on behalf of the party making it, of all that partys Related Parties, and of anyone claiming under any of them, including insurers and creditors.
26.16 Landlords Costs
Where Tenant is required to pay or reimburse Landlord for the costs of any item, the cost shall be the reasonable and customary charge established by Landlord from time to time, including a reasonable allocation of Landlords overhead, administrative and related costs associated with the ownership and operation of the Development Failure to pay any reimbursable cost shall be treated as a failure to pay Rent. In connection with any request by Tenant for the consent of Landlord to an Alteration, Assignment or other act proposed by Tenant under this Lease, Tenant shall pay Landlords reasonable costs and expenses incurred in connection therewith, including, without limitation, attorneys, architects, engineers and other consultants fees.
26.17 Invoices
The parties hereto agree that each party will promptly notify the other party of any dispute such party may have regarding any Invoice from the other party. If either party does not so notify the other party within thirty (30) days after receiving any such invoice, such party shall be conclusively deemed to have agreed to such invoice and all underlying facts.
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26.18 Force Majeure; Time of Essence
When a period of time is herein prescribed for action to be taken by either party (excluding the payment of money by Tenant under this Lease), such party shall not be liable or responsible for, and there is excluded from the computation for any such period of time; any delays due to strikes riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions or any other cause of any kind whatsoever which is beyond the control of such party. Subject to the preceding sentence, time is of the essence of every part of this Lease.
26.19 Negotiated Transaction
The parties mutually acknowledge that this Lease has been negotiated at arms length. The provisions of this Lease shall be deemed to have been drafted by all of the parties and this Lease shall not be interpreted or construed against any party solely by virtue of the fact that such party or its counsel was responsible for its preparation.
26.20 Nondisturbance, Attornment and Subordination Agreement
Upon Landlords request, Landlord, Tenant and Landlords Mortgagee shall execute, acknowledge (notarize) and deliver a Non-Disturbance, Attornment and Subordination Agreement (the Non-Disturbance Agreement) substantially in the form attached to this Lease as Exhibit F. Tenant shall not record the Non-Disturbance Agreement or a copy or memorandum thereof.
26.21 Nondiscrimination
Tenant herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this Lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against; of segregation of, any person or group of persons on account of race, color creed, religion, sex, marital status, national origin or ancestry in the leasing, subleasing, transferring, use occupancy, tenure or enjoyment of the Premises herein leased, nor shall Tenant, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Premises herein leased.
26.22 Corporate Authority
If either party signs as a corporation, limited liability company, or partnership, each of the persons executing this Lease on behalf of such party does hereby covenant and warrant that such party is a duly authorized and existing entity, that such party has and is qualified to do business in the State of California, that the entity has full right and authority to enter into this Lease, and that each and both of the persons signing on behalf of the entity are authorized to do so.
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26.23 Notice Pursuant to California Health do Safety Code Section 25359.7
In 1981-82, the Development was the subject of a state-supervised cleanup of hazardous waste disposed of on the site by prior occupants. As part of the cleanup approved by the applicable agencies, some soils containing heavy metals were left in place, covered by clean fill. These soils are managed in accordance with the requirements of the applicable agencies and a Declaration of Covenants, Conditions and Restrictions imposed by Homart Development Co.
26.24 Entire Agreements; Amendments
THIS LEASE CONTAINS ALL AGREEMENTS OF THE PARTIES CONCERNING THIS SUBJECT MATTER, SUPERSEDING ANY SUCH PRIOR AGREEMENTS, REPRESENTATIONS OR WARRANTIES, AND MAY BE AMENDED OR MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY BOTH PARTIES.
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THIS LEASE SHALL NOT BE BINDING UPON OR ENFORCEABLE BY EITHER PARTY UNTIL FULLY EXECUTED BY BOTH LANDLORD AND TENANT.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date fast above written.
Landlord |
HMS OFFICE, L.P., a Delaware limited partnership | |||
By: | Himes Office Company, L.L.C. | |||
Its: | General Partner | |||
By: | /s/ TOM OWENS | |||
Name: | Tom Owens | |||
Title: | Manager | |||
Tenant |
ELAN PHARMACEUTICALS, INC. a Delaware corporation | |||
By: | /s/ JOHN VARIAN | |||
Name: | John Varian | |||
Title: | Sr. Vice President, Finance & Administration | |||
By: | /s/ DONALD JOSEPH | |||
Name: | Donald R. Joseph | |||
Title: | Vice President, Commercial & Legal Affairs | |||