SUPERIOR LEASE 3.18.1 To comply with all the conditions of any Superior Lease of which the Tenant has been given notice prior to signing this Tenancy Agreement, under which the Landlord owns the Property (if applicable) except for the payment of ground rent and maintenance charges, and to perform any covenants in the Superior Lease.
3.18.2 To agree to enter into any agreement, deed of covenant or licence with the Superior Landlord to observe and perform the covenants of the Superior Lease if reasonably required to do so.
Ground Lease (a) Each Ground Lease contains the entire agreement of the Borrower or the applicable Subsidiary Guarantor and the applicable owner of the fee interest in such Unencumbered Property (the “Fee Owner”), pertaining to the Unencumbered Property covered thereby. With respect to Unencumbered Property subject to a Ground Lease, the Borrower and the applicable Subsidiary Guarantors have no estate, right, title or interest in or to the Unencumbered Property except under and pursuant to the Ground Lease or except as may be otherwise approved in writing by Agent. The Borrower has delivered a true and correct copy of the Ground Lease to the Agent and the Ground Lease has not been modified, amended or assigned, with the exception of written instruments that have been recorded in the applicable real estate records for such Unencumbered Property.
(b) The applicable Fee Owner is the exclusive fee simple owner of the Unencumbered Property, subject only to the Ground Lease and all Liens and other matters disclosed in the applicable title policy for such Unencumbered Property subject to the Ground Lease, and the applicable Fee Owner is the sole owner of the lessor’s interest in the Ground Lease.
(c) There are no rights to terminate the Ground Lease other than the applicable Fee Owner’s right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the Ground Lease.
(d) Each Ground Lease is in full force and effect and, to Borrower’s knowledge, no breach or default or event that with the giving of notice or passage of time would constitute a breach or default under any Ground Lease (a “Ground Lease Default”) exists or has occurred on the part of a Borrower or a Subsidiary Guarantor or on the part of a Fee Owner under any Ground Lease. All base rent and additional rent, if any, due and payable under each Ground Lease has been paid through the date hereof and neither Borrower nor any Subsidiary Guarantor is required to pay any deferred or accrued rent after the date hereof under any Ground Lease. Neither Borrower nor a Subsidiary Guarantor has received any written notice that a Ground Lease Default has occurred or exists, or that any Fee Owner or any third party alleges the same to have occurred or exist.
(e) The Borrower or applicable Subsidiary Guarantor is the exclusive owner of the ground lessee’s interest under and pursuant to each Ground Lease and has not assigned, transferred or encumbered its interest in, to, or under the Ground Lease, except to Agent under the Loan Documents.
Renewal Option 43.01 Provided Tenant is not then in default under any of the terms, (monetary or other nonmonetary, but material) covenants or conditions of this Lease on Tenant’s part to be observed or performed beyond Notice and applicable cure. Tenant shall have the option to renew this Lease and the Term for a renewal term of five (5) years (referred to herein as the “Renewal Term”) commencing on the day immediately succeeding the Expiration Date and ending, unless sooner terminated pursuant to the provisions of this Lease or pursuant to law, on the day preceding the fifth anniversary thereof (referred to as the “Extended Expiration Date”). If Tenant exercises such option in accordance with the provisions and limitations of this Article, this Lease and the Terms shall be renewed for such Renewal Term upon a Fixed Rent as follows; Except as otherwise provided herein, all other executory terms, covenants and condition contained in this Lease and the Expiration Date of the Lease shall be deemed extended to the Extended Expiration Date.
43.02 The option set forth herein may only be exercised by notice (“Renewal Notice”) given by Tenant to Landlord on or prior to April 30, 2018 (the “Notice Date”). TIME IS OF THE ESSENCE with respect to the exercise of such option. Tenant shall not have the right to give any such notice after the Notice Date, and any notice given after the Notice Date purporting to exercise such option shall have no force and effect. Landlord, within 30 days after Tenant’s request, shall confirm in writing to Tenant (“Landlord Confirmation”) whether Landlord has received the Renewal Notice and whether such Notice has been properly sent to Landlord (and, if not, setting forth any defects in such Notice or delivery thereof). Landlord’s failure to send the Landlord Confirmation within such 30 day period shall constitute Landlord’s acceptance thereof and waiver of any right to object thereto. If Landlord, within such 30 day period, shall notify Tenant of any defects in the Renewal Notice or delivery thereof, Tenant shall have the right to send a revised Renewal Notice at any time prior to the deadline for sending such Renewal Notice under this Section and the provisions of this paragraph shall apply fully to such revised Renewal Notice and any subsequent Renewal Notice.
43.03 Tenant, upon request of Landlord, from time to time, will execute and deliver to Landlord an instrument in form reasonably satisfactory to Landlord stating whether or not Tenant has exercised the option contained in the provisions of the Section.
Option to Extend Lease Term Landlord hereby grants to Tenant an option to extend the Lease Term for either a) a one (1) year period; b) a two (2) year period; or c) a three (3) year period (“Option Period”), on the following terms and conditions:
A. Tenant must give Landlord notice in writing of its exercise of the option in question, and the length of the Option Period, no earlier than 270 days before the date the Lease Term would end, but for the exercise of the said option, and no later than 180 days before the date the Lease Term would end, but for the exercise of the said option.
B. Tenant may not extend the Lease Term pursuant to any option granted by this paragraph if Tenant is in Default beyond any applicable notice and cure period as of the date of exercise of the option, or as of the date this Lease would have been terminated but for said exercise.
C. All terms, covenants and conditions of this Lease shall apply during the option period, except that the Base Monthly Rent for the Option Period shall be determined as provided in section D below.
D. The Base Monthly Rent for the Option Period shall be the greater of: (i) the Base Monthly Rent payable for the last month of the Premises Lease Term, or (ii) ninety-five (95%) percent of the then fair market monthly rent determined as of the commencement of the Option Period, based upon a lease for premises of like size, quality and location in the Menlo Park area. If the parties are unable to agree upon the fair market monthly rent for the Premises for the Option Period within 30 days from Tenant’s delivery of notice of exercise of the option, then the fair market monthly rent shall be determined by appraisal conducted pursuant to subsection E of this paragraph.
E. In the event it becomes necessary to determine by appraisal the fair market rent of the Premises for the purpose of establishing the Base Monthly Rent during the Option Period, then such fair market monthly rent shall be determined by three real estate appraisers, all of whom shall be members of the American Institute of Real Estate Appraisers, with not less than five years’ experience appraising real property (other than residential or agricultural property) located in San Mateo County, California, in accordance with the following procedures:
(i) The party demanding an appraisal (the “Notifying Party”) shall notify the other party (the “Non-Notifying Party”) thereof by delivering a written demand for appraisal, which demand, to be effective, must give the name, address, and qualifications of an appraiser selected by the Notifying Party. Within 10 days of receipt of said demand, the Non-Notifying Party shall select its appraiser and notify the Notifying Party, in writing, of the name, address, and qualifications of an appraiser selected by it. Failure by the Non-Notifying Party to select a qualified appraiser within said 10 business day period shall be deemed a waiver of its right to select a second appraiser on its own behalf; and the Notifying Party shall select a second appraiser on behalf of the Non-Notifying Party within five days after the expiration of said 10 business day period. Within 10 business days from the date the second appraiser shall have been appointed, the two appraisers so selected shall appoint a third appraiser. If the two appraisers fail to select a third qualified appraiser, the third appraiser shall be selected by the American Arbitration Association or if it shall refuse to perform this function, then at the request of either Landlord or Tenant, such third appraiser shall be promptly appointed by the American Arbitration Association or, if it shall refuse to perform this function then, at the request of either Landlord or Tenant, such third appraiser shall be promptly appointed by the then Presiding Judge of the Superior Court of the State of California, County of San Mateo.
(ii) The three appraisers so selected shall meet in Menlo Park, California, not later than 20 days following the selection of the third appraiser. At said meeting the appraisers so selected shall attempt to determine the fair market monthly rent of the Premises for the Option Period.
(iii) If the appraisers so selected are unable to complete their determinations in one meeting, they may continue to consult at such times as they deem necessary for a 15 day period from the date of the first meeting, in an attempt to have at least two of them agree. If, at the initial meeting or at any time during said 15 day period, two or more of the appraisers so selected agree on the fair market rent of the Leased Premises, such agreement shall be determinative and binding on the parties hereto, and the agreeing appraisers shall, in simple letter form executed by the agreeing appraisers, forthwith notify both Landlord and Tenant of the amount set by such agreement.
(iv) If two or more appraisers do not so agree within said 15 day period, then each appraiser shall, within five days after the expiration of said 15 day period, submit his independent appraisal in simple letter form to Landlord and Tenant stating his determination of the fair market rent of the Premises for the Option Period. The parties shall then determine the fair market rent for the Premises by determining the average of the fair market rent set by each of the appraisers. However, if the lowest appraisal is less than eighty-five percent (85%) of the middle appraisal then such lowest appraisal shall be disregarded and/or if the highest appraisal is greater than one hundred fifteen percent (115%) of the middle appraisal then such highest appraisal shall be disregarded. If the fair market rent set by any appraisal is so disregarded, then the average shall be determined by computing the average set by the other appraisals that have not been disregarded.
(v) Nothing contained herein shall prevent Landlord and Tenant from jointly selecting a single appraiser to determine the fair market rent of the Premises, in which event the determination of such appraisal shall be conclusively deemed the fair market rent of the Premises.
(vi) Each party shall bear the fees and expenses of the appraiser selected by or for it, and the fees and expenses of the third appraiser (or the joint appraiser if one joint appraiser if one joint appraiser is used) shall be borne fifty percent (50%) by Landlord and fifty percent (50%) by Tenant.
F. The option rights of Tenant under the within article 20 of this Lease, and the extended term thereunder, are granted solely and exclusively for Tenants’ personal benefit and may not be assigned or transferred by Tenant other than as part of a Voluntary Permitted Transfer.
G. The Base Monthly Rent for the remainder of the Option Period, if any, shall be adjusted by annual CPI increases.
Leasehold Mortgage (a) Tenant may encumber by mortgage, mortgages or other proper instruments this Lease and Tenant’s leasehold interest in the Premises as security for any indebtedness undertaken by Tenant (each, a “Leasehold Mortgage”). The execution of a Leasehold Mortgage or other similar instrument, or the foreclosure thereof, or any sale thereunder, either by judicial proceedings or by virtue of any power reserved in a Leasehold Mortgage, or conveyance by Tenant to the holder of such indebtedness (each, a “Holder of Leasehold Mortgage”), or the exercising of any right, power or privilege reserved in a Leasehold Mortgage, shall not be held as a violation of any of the terms and conditions hereof, or as an assumption by the Holder of Leasehold Mortgage or its designee personally of the obligations hereof, except to the extent that the Holder of Leasehold Mortgage or its designee voluntarily assumes said obligations in order to avoid termination of this Lease, provided that such Leasehold Mortgage or the actions taken pursuant thereto shall not violate the following provisions of this Paragraph.
(b) If Tenant shall encumber this Lease or its leasehold interest in the Premises and if Tenant or a Holder of Leasehold Mortgage shall give written notice to Landlord of the existence thereof and the address of such Holder of Leasehold Mortgage, then Landlord will mail or deliver to each such Holder of Leasehold Mortgage, at such address, a duplicate copy of all notices in writing which Landlord may, from time to time, give to or serve on Tenant under and pursuant to the terms and provisions hereof, such copies shall be mailed or delivered to each such Holder of Leasehold Mortgage, at, or as near as possible to, the same time such notices are given to or served on Tenant. Each such Holder of Leasehold Mortgage may, at its option, at any time before the rights of Tenant shall be terminated as provided herein, pay any of the rents due hereunder, or pay any taxes and assessments, or do any act or thing required of Tenant by the terms hereof, or do any act or thing that may be necessary and proper to be done in the observance of the covenants and conditions hereof, or to prevent the termination hereof, all payments so made, and all things so done and performed by such Holder of Leasehold Mortgage shall be as effective to prevent a termination of the rights of Tenant hereunder as the same would have been if done and performed by Tenant.
(c) Landlord agrees that it will not terminate this Lease because of the bankruptcy or insolvency of the Tenant, or because the Tenant shall abandon the Premises, or because the Tenant shall suffer this Lease or any estate or interest thereunder to be taken under any writ of execution, or because the Tenant shall make an assignment for the benefit of creditors, or because of any other failure on the part of Tenant to observe or perform any of the covenants contained in this Lease, if a Holder of Leasehold Mortgage cures any default by Tenant which is curable by the payment of money within thirty (30) days after the date of written notice from Landlord to each Holder of Leasehold Mortgage specifying the nature of the default, or if such default is not curable by the mere payment of money, then if a Holder of Leasehold Mortgage shall agree in writing to perform (and does perform) within ninety (90) days after the date of the written notice of default from Landlord to each Holder of Leasehold Mortgage specifying the nature of the default all of the obligations of Tenant under this Lease capable of performance by a Holder of Leasehold Mortgage until such time as this Lease shall be sold upon foreclosure pursuant to the provisions of the Leasehold Mortgage. Provided that a Holder of Leasehold Mortgage pays all amounts then due and payable on the part of the Tenant, including interest and all late penalties, and Landlord’s legal fees incurred as a result of Tenant’s default, Landlord agrees to accept performance by such Holder of Leasehold Mortgage of any term, covenant or condition to be performed by Tenant under this Lease with the same force and effect as though timely performed by Tenant as long as such Holder of Leasehold Mortgage performs within the time periods previously set forth in this Subparagraph. If a Holder of Leasehold Mortgage fails to cure any Tenant default in accord with the foregoing, Landlord may terminate this Lease and proceed with all available remedies to take possession of the Premises and all other rights pertaining thereto, as set forth in the provisions governing default under this Lease. When more than one Holder of Leasehold Mortgage exists, the rights and interests of each Holder of Leasehold Mortgage under this Lease shall be determined by the priority of each such Holder of Leasehold Mortgage and as such rights and interests may be restricted or otherwise allocated pursuant to any agreement(s) between such Holders of Leasehold Mortgage or between Tenant and such Holder(s) of Leasehold Mortgage. Notwithstanding any such agreement(s), Landlord is required to give any notice required hereunder to all Holders of Leasehold Mortgage of which Landlord has been given written notice. Landlord acknowledges that some Tenant defaults may not be capable of cure by a Holder of Leasehold Mortgage, such as the bankruptcy of the Tenant. Landlord agrees that Tenant defaults which are by their nature impossible to cure by a Holder of Leasehold Mortgage shall not be deemed a basis for termination of this Lease so long as all other defaults which are capable of cure are cured in accordance with this Section.
(d) Landlord agrees that this Lease shall not be hereafter modified or amended without the prior written consent of each Holder of Leasehold Mortgage to:
(i) Increase the Annual Rent or additional rent (except with regard to increases now provided in the Lease);
(ii) Change the legal description of the Premises from that now set forth in this Lease;
(iii) Shorten the term or any renewal term of this Lease, except as now permitted by this Lease;
(iv) Change the permitted use of the Premises; or
(v) Impose any additional obligations upon Tenant. Landlord further covenants and agrees not to accept a surrender of the Premises or a cancellation or release of this Lease from Tenant (except pursuant to the exercise of Landlord’s remedies provided herein if an event of default occurs) prior to the expiration or earlier termination thereof without the prior written consent of each Holder of Leasehold Mortgage.
(e) If Landlord exercises Landlord’s right to terminate this Lease as provided in Article 20 hereof, then each Holder of Leasehold Mortgage shall have the right to notify Landlord in writing, within thirty (30) days after the effective date of written notice from Landlord to each Holder of Leasehold Mortgage, that such one or more Holders of Leasehold Mortgage or any designee or nominee thereof elects to lease the Premises from the date of such termination of this Lease for the remainder of the scheduled term of this Lease, including the option terms, at the rent and upon the other same terms, covenants and conditions that are herein set forth, with the same relative priority as this Lease and having the benefit of investing in such one or more Holder(s) of Leasehold Mortgage or any designee or nominee thereof of all of the rights, title, interests, powers and privileges of Tenant hereunder. If such one or more Holder(s) of Leasehold Mortgage elects to obtain such new lease, then such Holder(s) of Leasehold Mortgage shall be obligated, within thirty (30) days after delivery to Landlord of such notice of election, to (i) cure the default upon which such termination was based, or in respect to any default not capable of being cured within such thirty (30) day time period or which cannot be cured without entry and possession to proceed and effectuate such cure with due diligence following delivery of possession (excluding, however, Tenant defaults which by their nature are impossible to cure); (ii) pay to Landlord all Annual Rent including interest, all late penalties, and all items of additional rent due and payable under this Lease up to and including the date of commencement of the term of such new lease; and (iii) pay to Landlord all expenses and reasonable attorney’s fees incurred by Landlord in connection with any such default and termination and with the preparation, execution and delivery of such new lease. Upon such performance by such one or more Holder(s) of Leasehold Mortgage or any designee or nominee thereof, such parties shall have the same relative priority as this Lease and having the benefit of all the rights, titles, interests, powers and privileges of Tenant hereunder, including, specifically, automatic vesting of title to all improvements as well as all equipment, fixtures and machinery therein, until the expiration of the term of this Lease unless this Lease shall thereafter be sooner terminated. Such Holder(s) of Leasehold Mortgage or any designee or nominee thereof shall be obligated under such new lease and agree in writing that promptly following the delivery of the new lease, such Holder(s) of Leasehold Mortgage or its designee will perform or cause to be performed all of the other covenants and agreements herein contained on Tenant’s part to be performed.
(f) Unless excused by Landlord, if any assignee or transferee of a Holder of Leasehold Mortgage or new lessee deriving rights from the Holder of Leasehold Mortgage fails to cure any of the Tenant’s defaults within one hundred twenty (120) days from the effective date of such assignment, transfer or new lease, this Lease and the lease rights hereunder and under any such new lease shall terminate forthwith at Landlord’s option and in Landlord’s sole and absolute discretion, such option to be exercised by sending written notice to the assignee or transferee that the new lease has been terminated pursuant to this provision.
(g) Landlord agrees to execute and deliver any and all consents and other documents (including reasonable modifications to this Lease) reasonably requested by Tenant and/or one or more Holder(s) of Leasehold Mortgage so long as such documents are reasonably consistent with the provisions of this Section 7.02.
(h) Notwithstanding any provision in this Article 7 or elsewhere in this Lease to the contrary, Tenant may, in its sole discretion, enter into lease financing, conventional financing and other arrangements in connection with the acquisition, lease and disposal of the equipment and/or personal property including, without limitation, leasing of equipment and/or personal property from another with an option to purchase at the end of the lease term and assignment of Tenant’s interests in the equipment and/or personal property, if required, as security for these transactions.
(i) Nothing herein shall be deemed to relieve, impair, release, or discharge Tenant of its obligations to fully perform the terms of this Lease on Tenant’s part to be performed.
(j) Notwithstanding any provision in this Article 7 or elsewhere in this Lease to the contrary, Tenant may, in its sole discretion and without the consent of Landlord enter into any financing and other arrangements which do not create a lien on the leasehold estate created hereby, including without limitation, pledges of proceeds from all uses of the Premises as provided in this Lease.
(k) As used herein:
