Form of Lease LEASE
Exhibit 10.4
Form of Lease
THIS LEASE is entered into as of , 2006 by and between ,
a (“Landlord”), and , a
(“Tenant”).
1. REFERENCE PROVISIONS:
1.1 Base Rent: $ [$1.08 times Building Area] per month.
1.2 Building: [Insert Building address].
1.3 Building Area: square feet [Insert gross building area of each
Building, aggregating 1,432,300 square feet for all 10 Buildings].
1.4 Commencement Date: , 2006 [Insert Closing Date].
1.5 Expiration Date: , 2007 [Insert last day of applicable full
calendar month of Term specified for the Building on Attachment 1].
1.6 Notice Addresses:
Landlord:
Tenant:
1.7 Premises: The Building, together with all fixtures, improvements, rights and
benefits appurtenant to the Building, and the right to use the Common Areas.
1.8 Project: The land and improvements, including the Building and certain other
buildings (collectively, the “Buildings”), acquired by Landlord under the Purchase Agreement.
1.9 Purchase Agreement: That certain Purchase and Sale Agreement dated June ___, 2006
between Sun Microsystems, Inc., as Seller, and BioMed Realty, L.P., as Buyer, pursuant to which
this Lease is made.
2. DEMISE AND TERM:
2.1 Demise of Premises: Landlord leases the Premises to Tenant, and Tenant leases the
Premises from Landlord, for the Term, upon the terms and conditions of this Lease.
2.2 Term: The term of this Lease (the “Term”) shall commence on the Commencement Date
specified in Article 1 and continue through the Expiration Date specified in Article 1, unless the
Term is sooner terminated as provided herein.
2.3 Option to Terminate: Tenant shall have the right to terminate this Lease at any
time, without payment of any penalty or termination fee, subject to the obligation of Tenant to
continue to pay
Exhibit E, Page 1
rent and otherwise perform its obligations under this Lease through the effective date of
termination. Tenant shall exercise such option by giving not less than ninety (90) days notice to
Landlord, given in Tenant’s sole discretion. If Tenant exercises such option, the Term of this
Lease shall end as of the effective date of termination, in the same manner as if such date were
the Expiration Date originally provided in this Lease.
2.4 Other Leases. The parties acknowledge and agree that this Lease is independent of
the leases of other buildings in the Project (the “Other Leases”) made pursuant to the closing of
the purchase of the Project under the Purchase Agreement. Without limiting the generality of the
foregoing, Tenant’s exercise of its option to terminate this Lease may be exercised only as to this
Lease, or in conjunction with the exercise of any option under one or more of the Other Leases, in
Tenant’s sole discretion.
3. RENT:
3.1 Base Rent: Tenant shall pay to Landlord, as base rent for the Premises, the
monthly Base Rent specified in Article 1, payable monthly in advance on the first day of each month
during the Term.
3.2 Rent Payments: All Rents shall be paid in lawful money of the United States, to
Landlord at its address for notices as set forth above or at such other place as Landlord may
designate from time to time by written notice to Tenant. Tenant’s obligation to pay Rents shall be
prorated during any partial month of the Term based on the number of days in such month. As used
herein and elsewhere in this Lease, the term “Rents” means the Base Rent, Real Property Taxes,
insurance and other sums payable by Tenant under this Lease.
3.3 Late Payments. If Tenant fails to make any payment of rent due under this Lease
within ten (10) days following Tenant’s receipt of written notice from Landlord that the same is
delinquent, then Tenant shall pay interest on such late payment at an interest rate of eight
percent (8%) per annum from the time such payment was due and owing.
4. USE OF PREMISES:
4.1 Tenant’s Use of Premises: Tenant may use the Premises for office, laboratory and
manufacturing and other lawful uses consistent with current zoning for the Premises and all
applicable laws (collectively, “Permitted Uses”). Tenant shall not commit any waste, or authorize
any nuisance, on the Premises.
4.2 Compliance with Laws and Private Restrictions: In all of its business operations
on the Premises, Tenant shall observe and comply with all judicial decisions, statutes,
constitutions, ordinances, resolutions, orders, or other requirements of any municipal, county,
state, federal, or other government agency or authority having jurisdiction as from time to time in
effect and applicable to the Premises (“Laws”), and with recorded covenants, conditions and
restrictions, private agreements, and any other recorded instruments affecting the use of the
Building and Common Area, as existing as of the date of this Lease or hereafter made with Tenant’s
prior written consent (“Private Restrictions”). Notwithstanding the foregoing, or any other
contrary provision set forth in this Lease, Tenant shall not be required to perform or make any
Capital Expenditures, or to pay or reimburse Landlord for the cost thereof, either to comply with
any Laws or Private Restrictions or otherwise, except that Tenant shall perform any such work
necessitated solely by reason of Tenant’s particular and unique use of the Premises (and not
generally applicable to similar commercial premises) or any alterations that Tenant makes to the
Premises after the date hereof.
4.3 Parking: During the Term, Tenant and its employees and invitees shall be entitled
to use the entirety of the parking facilities and other Common Areas generally available for use at
the Premises, together with the right to use in common with other tenants in the Project all other
Project parking facilities and other Common Areas, at no additional cost to Tenant; provided,
however, if Tenant does not lease the entirety of the Project, then the number of parking spaces
used by Tenant shall be limited to
Exhibit E, Page 2
Tenant’s pro rata share of the parking spaces within the Project calculated based on the gross
floor area of the Building and the gross floor area of the other buildings in the Project. Tenant
shall use the parking area at its own risk, and Landlord shall have no liability to Tenant or
Tenant’s employees or invitees for any damage to vehicles, theft or personal injury occurring in or
about the parking area of the Premises, except to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees or contractors.
4.4 Furniture: Tenant shall have the right to use, throughout the Term, the furniture
existing and in place in the Building at the commencement of the Term, as to which Tenant has
conveyed its interest to Landlord pursuant to the Purchase Agreement. At the end of the Term,
Tenant will, notwithstanding the provisions of this Lease regarding Tenant’s Property, leave in
place such furniture in the Building as may then be existing in place in the Building.
4.5 Hazardous Materials: Tenant, at its sole cost, shall comply with all Laws
relating to the storage, use, disposal, emission, or release of any Hazardous Materials during the
Term by Tenant or its agents, employees or contractors. If Hazardous Materials stored, used, or
disposed of on or about the Premises by Tenant or its agents, employees or contractors during the
Term result in contamination or deterioration of water or soil on or about the Premises, then
Tenant shall promptly take any and all action necessary to remediate such contamination as required
by governmental authorities having jurisdiction. At any time prior to the expiration of the Term,
Tenant shall have the right to conduct tests of water and soil. Tenant shall be solely responsible
for, and shall defend, indemnify and hold harmless Landlord from and against, all claims, costs and
liabilities, including attorneys’ fees and costs, to the extent arising out of the failure of
Tenant to perform its obligations under this Section. Notwithstanding the foregoing or anything to
the contrary contained in this Lease, under no circumstance shall Tenant be liable for any losses,
costs, claims, liabilities or damages (including attorneys’ and consultants’ fees) of any type or
nature, directly or indirectly arising out of or in connection with any Hazardous Materials present
at any time on or about the Premises, or the violation of any environmental Laws, except to the
extent that any of the foregoing actually results from the release or disposal of Hazardous
Materials during the Term by Tenant or its agents, employees, invitees or contractors in violation
of applicable environmental Laws. As used herein and elsewhere in this Lease, the term “Hazardous
Material” means any material or substance that is now or hereafter prohibited or regulated by any
Law or that is now or hereafter designated by any governmental authority to be radioactive, toxic,
hazardous or otherwise a danger to health, reproduction or the environment, including, without
limitation, asbestos and petroleum products.
5. TENANT IMPROVEMENTS AND TRADE FIXTURES:
5.1 Tenant Improvements: Tenant may, without Landlord’s approval, perform or
construct the following Tenant Improvements: (a) those involving paint, floor and wall coverings
and other similar cosmetic work; (b) such alterations as may be required by applicable Laws;
provided that Landlord’s consent shall be required, upon the terms and conditions set forth below,
for any particular such alteration that involves the demolition and rebuilding of existing
improvements; or (c) other Tenant Improvements at a cost not to exceed $75,000 in any calendar
year, except that Landlord’s consent will be required for any Tenant Improvements which adversely
affect the Building structure or involve alterations to the exterior of the Building. Any other
Tenant Improvements may be made only after obtaining Landlord’s consent, which consent shall not be
unreasonably withheld, conditioned or delayed. Landlord shall be deemed to have consented to a
Tenant Improvement if Landlord does not notify Tenant in writing of its approval or disapproval
thereof within fifteen (15) days after Tenant’s request for Landlord’s approval. Any and all
Tenant Improvements constructed at Tenant’s cost during the Term and all improvements existing upon
the Premises at Term commencement shall remain the property of Tenant during the Term and may be
removed from the Premises at any time, with Tenant responsible to restore all damage to the
Premises caused by such removal. Tenant shall not be obligated to remove any Tenant Improvements
or other improvements at the end of the Term, whether existing upon Term commencement or made by
Tenant during the Term. As used herein and elsewhere in this Lease, the term “Tenant Improvements”
Exhibit E, Page 3
means all improvements, additions, alterations, and fixtures installed in or on the Premises
by Tenant at its expense after the Commencement Date, which are not Trade Fixtures (as defined in
Section 5.2) or Capital Expenditures (as defined in Section 6.3).
5.2 Trade Fixtures: Tenant may maintain and install in the Building such Trade
Fixtures as it considers advisable for the conduct of its business. All Trade Fixtures maintained
or installed by Tenant shall remain the property of Tenant (other than the furniture described in
Section 4.4). At the end of the Term, Tenant shall remove its Trade Fixtures (other than the
furniture described in Section 4.4) and shall repair any damage to the Building caused by such
removal. As used herein and elsewhere in this Lease, the term “Trade Fixtures” means equipment and
fixtures provided and installed by Tenant for use in the operation of Tenant’s business which can
be removed without material damage to the Building.
5.3 Liens: Tenant shall keep the Premises free from any liens arising out of any work
performed, materials furnished, or obligations incurred by Tenant, its agents, employees or
contractors relating to the Premises. If any claim of lien is recorded against the Premises,
Tenant shall bond against or discharge the same within twenty (20) days after Tenant’s receipt of
written demand from Landlord.
6. CONDITION OF PREMISES; MAINTENANCE:
6.1 Condition of Premises: Landlord is leasing the Premises to Tenant “as is”,
without any obligation to alter, remodel, improve, repair or decorate any part of the Premises,
except as expressly set forth in this Lease. Landlord expressly disclaims any warranty or
representation, express or implied, with respect to the Premises or any portion thereof, including,
without limitation, any warranty or representation as to fitness, condition, the existence of any
defect, patent or latent, merchantability, quality or durability, except as expressly set forth in
this Lease.
6.2 Maintenance by Tenant Throughout the Term Tenant shall maintain the Premises in
good order, repair and condition, except for loss or damage caused by ordinary wear, acts of God,
condemnation, fire and other casualty, subject to the provisions of Section 6.3.
6.3 Capital Repairs and Improvements. With regard to any repair, replacement,
improvement or other work to the Building or the Premises that is a capital expenditure under
generally accepted accounting principles (a “Capital Expenditure”) and that is necessary to
maintain or repair, or replace as needed, facilities and improvements existing as of the
Commencement Date, including any related work that may be required by applicable Laws, Tenant may,
at its option, either (a) perform the same at Landlord’s expense or (b) give written notice to
Landlord of the need for the Capital Expenditure, in which event Landlord shall perform the same at
its expense. If Tenant elects to perform the Capital Expenditure, Landlord shall reimburse Tenant
for its out-of-pocket expenditures therefor within thirty (30) days after receipt of Tenant’s
invoice, and if such amount is not paid when due, Tenant may offset the amount due from the Rents.
Notwithstanding the foregoing, Tenant shall be responsible to perform and bear the cost of, and
Capital Expenditures shall not include, any repair, replacement, improvement or other work
necessitated by reason of Tenant’s failure to perform its obligations under Section 6.2 or Tenant’s
particular and unique use of the Premises (and not generally applicable to similar commercial
premises). Notwithstanding the foregoing, with regard to any Capital Expenditure the cost of which
is to borne by Landlord pursuant to the foregoing provisions of this Section, if Tenant reasonably
determines that the cost to complete such Capital Expenditure is likely to exceed $250,000, Tenant
shall give Landlord written notice thereof. Within ten (10) days following such notice (or within
such shorter time as Tenant may reasonably specify in such notice in the case of a need for
immediate work), Landlord shall have the right to advise Tenant in writing of Landlord’s
determination, made reasonably and in good faith, that the Capital Expenditure is one that Landlord
would not have made to the Building if this Lease were not in effect, by reason of anticipated
changes in the use of the Building or the character of the improvements thereto, and Landlord shall
not be required to reimburse Tenant for any Capital Expenditure in respect of which such notice is
given. In the event that Landlord gives such notice, Tenant may, at its option given at any time
thereafter, terminate this Lease by providing thirty (30) days written
Exhibit E, Page 4
notice to Landlord. Tenant shall have the right to make such Capital Expenditure, or do such
other work as may be reasonably related to the need for such Capital Expenditure, in either case
without reimbursement from Landlord.
6.4 Surrender. Upon the end of the Term, Tenant shall return the Premises to Landlord
in good order, repair and condition and generally in the condition as existing upon the expiration
of the Due Diligence Period under the Purchase Agreement, except for loss or damage caused by the
elements, ordinary wear, acts of God, condemnation, fire and other casualty, and except for
alterations made as herein permitted. Tenant shall remove from the Premises its Trade Fixtures,
furniture, moveable equipment and other personal property (“Tenant’s Property”), subject to the
provisions of Section 4.4. Tenant shall repair any damage to the Premises caused by such removal.
If Tenant does not timely remove Tenant’s Property, then Landlord may dispose of or store any part
thereof in accordance with applicable Laws, at Tenant’s sole cost. Tenant shall pay to Landlord,
within thirty (30) days after receipt of Landlord’s invoice, the reasonable out-of-pocket expenses
incurred by Landlord in connection with such disposition.
7. UTILITIES; OPERATION OF COMMON AREAS:
7.1 Utilities: All electricity, water, sewer, and other utilities supplied to the
Premises shall be kept in Tenant’s name until the expiration or earlier termination of the Term,
and Tenant shall pay the utility directly therefor. Notwithstanding the foregoing, in the event
that any utility service is provided to the Project as a whole, or to the Common Areas of the
Project, and if Tenant does not lease the entirety of the Project pursuant to this Lease and the
Other Leases, Landlord shall pay for the utility service, and Tenant shall reimburse Landlord for
its out-of-pocket costs therefor allocable to the Premises, determined on a per square foot basis
or such other equitable basis as may be specified by Landlord and approved by Tenant, such approval
not to be unreasonably withheld.
7.2 Operation of Common Areas:
7.2.1 If and for so long as Tenant leases the entirety of the Project pursuant to this Lease
and the Other Leases, Tenant shall be responsible to arrange for the operation and maintenance of
the parking and other common areas of the Project (the “Common Areas”) and for the payment of the
costs and expenses incurred in connection therewith, except as provided in Section 7.2.5.
7.2.2 If Tenant does not lease any one or more other Buildings in the Project, then effective
from and after the date that Tenant ceases to lease the same, Landlord shall operate and maintain
the Common Areas of the Project at a level and in a manner consistent with the operation and
maintenance of the Common Areas prior to the Commencement Date. Tenant shall pay and reimburse
Landlord for the Proportionate Share of Landlord’s out-of-pocket costs and expenses for such
operation and maintenance, except as provided in Section 7.2.5, and Landlord shall pay and bear all
other costs and expenses incurred for such operation and maintenance (subject to reimbursement by
Tenant under such leases for other Buildings as may from time to time remain in effect between
Landlord and Tenant). Such payment and reimbursement by Tenant shall be made by Tenant in
estimated monthly installments, in amounts from time to time reasonably estimated by Landlord, with
an annual reconciliation upon presentation to Tenant of Landlord’s statement with reasonable
supporting documentation. The “Proportionate Share” of the Building shall be a fraction, the
numerator of which is the gross floor area of the Building and the denominator of which is the
gross floor area of all Buildings in the Project, including the Building. Landlord and Tenant
shall work together cooperatively and in good faith in order to ensure an orderly transition in the
responsibility for the maintenance and operation of the Common Areas of the Project, which may
include the assignment of existing maintenance contracts from Tenant to Landlord.
7.2.3 Any payment due from either party to the other pursuant to this Section 7.2 shall be due
within thirty (30) days after receipt of the other party’s statement. Each party shall have the
right to review and inspect the books and records of the other party regarding the costs and
expenses of the
Exhibit E, Page 5
operation and maintenance of the Common Areas, as appropriate to confirm the amounts owning as
provided above in this Section 7.2 until the first anniversary of the expiration or earlier
termination of this Lease or, if later, until the first anniversary following receipt of any
invoice, statement or other request for payment.
7.2.4 Notwithstanding the foregoing provisions of this Section 7.2, Landlord, and not Tenant,
shall be responsible for all Capital Expenditures necessary and appropriate during the Term in
connection with the operation and maintenance of the Common Areas.
7.3 Untenantability: If all or any portion of the Building or Premises should become
unsuitable for Tenant’s use for a period exceeding three (3) consecutive business days by reason of
a cessation of utilities or services caused by Landlord’s negligence or willful misconduct, by
reason of any restriction or limitation of access to and through the Common Areas caused by
Landlord’s negligence or willful misconduct, or by reason of the performance of any construction or
other work by Landlord in or around the Project, then Tenant shall be entitled to an abatement of
all Rents payable hereunder to the extent of the interference with Tenant’s use of the Premises
occasioned thereby. If such unsuitability is not remedied within twenty (20) days after the
occurrence of such event, then Tenant also shall be entitled to terminate this Lease by delivery of
written notice of termination to Landlord at any time while such unsuitability continues.
8. TAXES:
8.1 Real Property Taxes Defined: The term “Real Property Taxes” as used herein shall
mean all real property taxes, assessments and other charges imposed by any governmental or
quasi-governmental authority, which are levied or assessed by reason of the ownership or use of the
Real Property or any portion thereof, including, without limitation, any license taxes, or ad
valorem taxes on Landlord’s personal property located on and used in connection with the Real
Property. Notwithstanding the foregoing, the following shall not constitute Real Property Taxes
for the purpose of this Lease, and nothing herein shall be deemed to require Tenant to pay any of
the following: (i) any state, local, federal, income tax measured by the net income of Landlord
from all sources; (ii) any estate or inheritance taxes; (iii) any franchise, succession or city or
county transfer taxes; (iv) interest on taxes or penalties resulting from Landlord’s failure to pay
Real Property Taxes (unless due to Tenant’s failure to pay to Landlord Real Property Taxes as
provided herein), or (iv) any Real Property Taxes in excess of the amount which would be payable if
such tax or assessment expense were paid in installments over the longest allowable term.
8.2 Tenant’s Obligation to Reimburse: Tenant shall pay to Landlord all Real Property
Taxes which are allocable to the Term and attributable to the Premises. If the Premises are not a
separate tax parcel, the Real Property Taxes attributable to the Premises shall be determined by
reference to the proportion that the floor area of the Building bears to the aggregate floor area
of the Building and all Other Buildings on the same tax parcel. Real Property Taxes for the
calendar years during which the Commencement Date and the Expiration Date occur shall be prorated
so that Tenant pays only that portion of the Real Property Taxes for such calendar years allocable
to periods of time during the term of this Lease. Such pro ration shall be computed and made as
soon as practicable after the Commencement Date and the Expiration Date. Tenant shall pay Real
Property Taxes within thirty (30) days after Tenants’ receipt of Landlord’s written billing
therefor (which billing shall include a copy of Landlord’s applicable tax bills or other evidence
reasonably available to Landlord substantiating the amount billed to Tenant).
8.3 Taxes on Tenant’s Property: Tenant shall pay before delinquency any and all
taxes, assessments, license fees and public charges levied, assessed or imposed against Tenant’s
Property. Tenant shall furnish Landlord with satisfactory evidence of these payments within thirty
(30) days after receipt of written request therefor from Landlord, but no more than once each year.
Exhibit E, Page 6
9. INSURANCE:
9.1 Tenant’s Insurance: Tenant shall, at its cost, maintain a policy or policies of
commercial general liability insurance or maintain or cause to be maintained self-insurance, in a
manner consistent with the past practices of Sun Microsystems, Inc., including property damage,
against liability for personal injury, bodily injury, death, and damage to property occurring in,
or resulting from an occurrence on the Premises. Tenant shall cause Landlord and Landlord’s
lenders to be covered as additional insureds under Tenant’s commercial general liability insurance.
9.2 Property Insurance:
(a) Landlord shall maintain a policy of fire and extended coverage insurance providing Special
Form coverage at full replacement value, and Tenant shall reimburse Landlord for the cost thereof
as provided in subsection (b) of this Section. Landlord, at its option, may also purchase lost
rental income insurance for the Premises.
(b) For any period during the Term that insurance is maintained by Landlord as provided above
in subsection (a) of this Section, Tenant shall reimburse Landlord for the cost of such insurance
carried by Landlord allocable to the Term and attributable to the Premises, which shall be paid
within thirty (30) days of Tenant’s receipt of Landlord’s billing therefor. Such insurance costs
shall be prorated so that Tenant pays only that portion of such insurance costs for such calendar
years allocable to periods during the Term that Landlord is responsible to maintain such coverage.
Landlord shall provide Tenant with evidence reasonably available to Landlord substantiating the
cost of such insurance. If such insurance covers the Premises and any other property, Landlord
shall allocate the cost of such insurance between the Premises and such other property reasonably
and in good faith. Landlord estimates that the aggregate annual cost for such insurance under this
Lease and the Other Leases would have been $235,000 if purchased on June 5, 2006. The amount
payable by Tenant pursuant to this Section shall be determined based on Landlord’s actual premiums
for such insurance, provided Landlord shall use good faith efforts to obtain such insurance on
commercially competitive terms.
9.3 General Requirements: All insurance required under this Lease shall be issued by
insurance companies authorized to do business in the state in which the Premises are located.
9.4 Certificates: A certificate of insurance for each insurance policy required by
this Lease shall be deposited with the other party at the commencement of the Term and, thereafter,
promptly following the other party’s request.
9.5 Release and Waiver of Subrogation: Notwithstanding anything to the contrary in
this Lease, the parties hereto release each other, and their respective agents, employees and
subtenants from any liability for damage to property that arises out of or incident to any peril
which is actually insured against, which is required to be insured against under this Lease, or
which would normally be covered by so called “all risk” property insurance, without regard to the
negligence or willful misconduct of the entity or party so released or any other cause. Each party
shall cause each property insurance policy it obtains to provide that the insurer thereunder waives
all right of recovery by way of subrogation as required herein in connection with any injury or
damage covered by the policy.
10. INDEMNITY: Tenant shall hold harmless, indemnify and defend Landlord and its employees
and agents, with competent counsel reasonably satisfactory to Landlord, from all liability,
penalties, losses, damages, costs, expenses, causes of action, claims and/or judgments arising by
reason of any death, bodily injury, personal injury or property damage to the extent resulting from
the negligent act or omission of Tenant, its agents, contractors, or employees, a breach by Tenant
of this Lease, or a violation by Tenant of any Law or Private Restriction, in each case during the
Term of this Lease only. Landlord shall hold harmless, indemnify and defend Tenant and its
employees, affiliates, and agents, with competent counsel reasonably satisfactory to Tenant, from
all liability, penalties, losses, damages, costs, expenses, causes of action, claims and/or
judgments arising by reason of any death, bodily injury,
Exhibit E, Page 7
personal injury or property damage to the extent resulting from the negligent act or omission of
Landlord, or its agents, contractors, or employees, a breach by Landlord of this Lease, or a
violation by Landlord of any Law or Private Restriction, in each case during the Term of this Lease
only.
11. DAMAGE AND DESTRUCTION:
11.1 Landlord’s Duty to Restore: If the Building or Premises is damaged in whole or
in part by fire, the elements, or any other cause whatsoever (collectively, “Casualty”), then
Landlord shall restore the same to substantially the same condition existing immediately prior to
such damage, unless the Lease is terminated by Landlord pursuant to Section 11.2 or by Tenant
pursuant to Section 11.3.
11.2 Landlord’s Right to Terminate: Landlord shall have the option to terminate this
Lease in the event any of the following occurs, which option may be exercised only by delivery to
Tenant of a written notice of election to terminate within thirty (30) days after the date of such
damage:
11.2.1 The Building is damaged by any peril to such an extent that the estimated cost to
restore the Building exceeds Two Million Five Hundred Thousand Dollars ($2,500,000.00); or
11.2.2 The Building is damaged by any peril within the last six months of the Term and the
restoration of the Premises cannot be substantially completed within sixty (60) days after the date
of such damage. In the event of damage to a portion of the Building within the last six months of
the Term, notwithstanding the provisions of Section 11.1, Landlord may elect not to restore the
damaged portion of Building, and the rents and charges under this Lease shall be reduced in
proportion to the area Tenant is unable to use, provided that Landlord shall do such work as may be
appropriate to enable Tenant to continue to use and occupy the portion of the Building not damaged
by the casualty.
11.3 Tenant’s Right to Abatement and Termination: If all or any portion of the
Building or Common Area should become unsuitable for Tenant’s use as a consequence of fire or other
casualty, then Tenant shall be entitled to an equitable abatement of all Rents payable hereunder to
the extent of the interference with Tenant’s use of the Premises occasioned thereby. If for any
reason the Premises or Common Area are not or cannot be restored pursuant to Section 11.1 within
sixty (60) days after the date of the Casualty, then Tenant may terminate this Lease by written
notice to Landlord.
12. CONDEMNATION: If any material part of the Building, the Common Area, or the Premises
is taken by the exercise of the power of eminent domain (or conveyed by Landlord in lieu of that
exercise), and the remaining portion cannot be made suitable for the continued use and operation of
the Premises by Tenant for substantially the same purposes as immediately prior to such taking,
then either Landlord or Tenant may terminate this Lease upon thirty (30) days prior written notice.
Any termination of this Lease pursuant to this Article 12 shall be without prejudice to the rights
of either Landlord or Tenant to recover any compensation and damage caused by such condemnation to
which they are entitled from the condemning authority. All consideration, compensation, damages,
income, rent, awards, and interest that may be paid or made in connection with any taking will be
divided between Landlord and Tenant as their respective interests may appear as determined by the
condemning authority. Neither Tenant nor Landlord shall have any rights in any award made to the
other party by any condemning authority. If this Lease is not terminated by either Landlord or
Tenant in accordance with this Article 12, the Rents shall be abated in the proportion that the
usable area of the Premises taken bears to the usable area of the Premises immediately before the
taking.
13. ASSIGNMENT AND SUBLETTING: Tenant shall not assign this Lease or any of Tenant’s
rights hereunder or sublet all or any part of the Premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or delayed; provided,
however, that Tenant may assign this Lease or sublet all or any portion of the Premises, without
the requirement of any consent by Landlord, to any successor corporation to Tenant by way of
merger, consolidation or other corporate reorganization, or to any parent, subsidiary or affiliate
of Tenant, or to any party acquiring all or substantially all of Tenant’s assets or stock, or to
any party acquiring and continuing that portion of
Exhibit E, Page 8
Tenant’s business operations conducted at or from the Premises, or to any entity with whom Tenant
is undertaking or will undertake a joint venture or similar joint research and development,
marketing, distribution, sales or development project at the Premises (collectively, “Permitted
Transferees”, individually, “Permitted Transferee”). Tenant shall deliver to Landlord written
notice of such assignment or sublease within fifteen (15) days after the effective date thereof,
and no such sublease, assignment or other transaction shall limit or restrict Tenant’s liability
under this Lease. All options and other rights granted under this Lease to Tenant shall inure to
the benefit of and be exercisable by a Permitted Transferee.
14. DEFAULT:
14.1 Tenant’s Default-Definition: Tenant shall be in “Default” under this Lease if
Tenant: (i) fails to pay any Rent when due, if the failure continues for fifteen (15) days after
written notice thereof is given by Landlord to Tenant; (ii) fails to perform any other provision of
this Lease, if the failure is not cured within thirty (30) days after written notice thereof is
given by Landlord to Tenant; if the failure cannot reasonably be cured within thirty (30) days,
Tenant shall not be in Default if Tenant commences to cure the failure within the thirty (30) day
period and diligently continues to cure the Default; (iii) files a petition in bankruptcy or
insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or is dissolved, or makes an assignment for the benefit of
creditors; or (iv) involuntary proceedings under any bankruptcy laws or insolvency act or for the
dissolution of Tenant are instituted against Tenant, or a receiver or trustee is appointed for all
or substantially all of Tenant’s property, and the proceeding is not dismissed or the receivership
or trusteeship is not vacated within sixty (60) days after the institution or appointment.
14.2 Tenant’s Default-Remedies: Upon the occurrence of any Default by Tenant,
Landlord shall have the right, at Landlord’s election, to terminate this Lease by giving Tenant
written notice of such termination and be entitled to the remedies described in Section 14.2.1
and/or to pursue any and all other remedies available at law or in equity.
14.2.1 Upon termination of this Lease by Landlord in accordance with the provisions of Section
13.2, Landlord shall be entitled to recover from Tenant the following: (i) the worth, at the time
of the payment or award, of the unpaid Rents that had come due through termination of this Lease;
(ii) the worth, at the time of payment or award, of the amount by which the unpaid Rents which
would have come due after the date of termination of this Lease through the time of payment or
award exceeds the amount of the loss of Rents that Tenant proves could have reasonably avoided; and
(iii) the worth, at the time of payment or award, of the amount by which the unpaid Rents for the
balance of the Term after the time of the payment or award exceeds the amount of loss of Rents that
Tenant proves could have been reasonably avoided. The worth, at the time of award, as used in the
foregoing clauses (i) and (ii) shall be computed by allowing interest at a rate of either ten
percent (10%) per annum or the maximum applicable rate permitted by Law, whichever is less (“Agreed
Interest Rate”), from the date the same became due and owing. The worth, at the time of award, as
referred to in the foregoing clause (iii) shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of payment or award plus one
percent (1%).
14.2.2 Landlord may, at Landlord’s election, keep this Lease in effect and enforce by an
action at law or in equity all of its rights and remedies under this Lease, including the right to
recover the rent as it becomes due under the Lease.
14.3 Mitigation of Damages: Landlord shall use commercially reasonable efforts to
mitigate its damages from any breach or Default by Tenant under this Lease.
14.4 Waiver of Landlord’s Lien: Landlord waives any right by statute, common law,
contract or otherwise for distraint, landlord’s lien or any other similar right or remedy with
respect to Tenant’s Property. Within ten (10) days after Tenant’s request, Landlord shall execute
documents in a form
Exhibit E, Page 9
reasonably satisfactory to Tenant to evidence Landlord’s waiver of any right, title, lien or
interest in Tenant’s personal property.
14.5 Landlord’s Default and Tenant’s Remedies: Landlord shall not be deemed to be in
default of its obligations unless Landlord fails to perform any covenant, condition, or agreement
contained in this Lease and fails to cure the nonperformance within a reasonable time, but not
later than thirty (30) days after receiving written notice of the failure, provided, however, that
if the nature of Landlord’s failure to perform reasonably requires more than thirty (30) days to
cure, then Landlord shall not be deemed in default if Landlord commences to cure such failure
within said thirty (30) day period and thereafter diligently and in good faith prosecutes such cure
to completion. If Landlord is in default pursuant to this Section, then Tenant may, in addition to
any other remedies provided at law or in equity, cure the default at Landlord’s expense. In
addition, Tenant may terminate this Lease if the uncured default substantially interferes with the
operation of Tenant’s business. If Tenant pays any sum because of Landlord’s default, Landlord
shall reimburse such sum to Tenant upon thirty (30) days written notice, with supporting
documentation. If Landlord fails to so reimburse Tenant, Tenant may withhold from future Rents the
sum owed Tenant, until Tenant is reimbursed in full for the sum plus interest at the Agreed
Interest Rate.
14.6 Cure of Tenant Default: Landlord may, at its option and upon the terms and
conditions set forth below, cure a default by Tenant under this Lease in performing work to the
Building or the Common Area, where such default poses a material risk of damage to the Premises or
any property thereon or to the health or safety of any person. Landlord may perform such work only
after giving Tenant thirty (30) days prior written notice stating Landlord’s intention to perform
under this Section (except that in an emergency, Landlord shall only be required to give such
advance notice as may be reasonable in the circumstances), and only if Tenant has failed to cure
within such period or, if the cure is not susceptible of cure within such period, has failed to
commence cure within such period and thereafter diligently pursues the cure to completion. Tenant
shall reimburse Landlord for the out-of-pocket costs incurred by Landlord in performing such work,
within thirty (30) days after Tenant’s receipt of Landlord’s invoice with reasonable supporting
documentation of such cost.
15. SIGNS: Tenant shall continue throughout the Term to have the right to place and
maintain signage in and on the Building and Project and to modify or replace existing signage in
compliance with Laws and Private Restrictions.
16. SUBORDINATION:
16.1 Deeds of Trust and Ground Leases: Landlord represents and warrants that there is
not any deed of trust, mortgage or other hypothecation or security device (a “Mortgage”), or any
ground or underlying lease (a “Ground Lease”), encumbering or affecting the Premises as of the date
of this Lease.
16.2 Priority of Lease: This Lease shall be prior to any Mortgage or Ground Lease
recorded after the date of this Lease affecting the Premises. If, however, a lender desires that
this Lease be subordinate to any thereof, Tenant agrees that it will, within fifteen (15) days
following receipt of Landlord’s written request, execute and deliver a Subordination,
Non-Disturbance and Attornment Agreement in the form attached as Exhibit A hereto.
17. HOLDOVER: If Tenant retains possession of any part of the Premises after the Term,
Tenant shall become a month-to-month tenant for the entire Premises upon all of the terms of this
Lease as might be applicable to such month-to-month tenancy, except that Tenant shall pay Base Rent
at 150% of the Base Rent in effect immediately prior to such holdover, computed on a monthly basis
for each full or partial month Tenant remains in possession. No acceptance of Rent or other
payments by Landlord under these holdover provisions shall operate as a waiver of Landlord’s right
to regain possession or any other of Landlord’s remedies.
18. GENERAL PROVISIONS:
Exhibit E, Page 10
18.1 Miscellaneous: Should any provision of this Lease prove to be invalid or
illegal, such invalidity or illegality shall in no way affect, impair or invalidate any other
provision hereof, and such remaining provisions shall remain in full force and effect. This Lease
shall be governed by the Laws where the Premises are located. Time is of the essence with respect
to the performance of every provision of this Lease in which time of performance is a factor. This
Lease shall, subject to the provisions regarding assignment, apply to and bind the respective
heirs, successors, executors, administrators and assigns of Landlord and Tenant. The language in
all parts of this Lease shall in all cases be construed as a whole according to its fair meaning,
and not strictly for or against either Landlord or Tenant. The captions used in this Lease are for
convenience only and shall not be considered in the construction or interpretation of any provision
hereof. When a party is required to do something by this Lease, it shall do so at its sole cost
and expense without right of reimbursement from the other party unless specific provision is made
therefor. Landlord shall not become or be deemed a partner or a joint venturer of Tenant by reason
of this Lease. This Lease may be executed in counterparts, each of which shall constitute an
original and all of which together shall constitute one Lease. This Lease and the documents
referred to herein constitute the entire agreement between the parties, and there are no binding
agreements or representations between the parties except as expressed herein. No subsequent change
or addition to this Lease shall be binding unless in writing and signed by the parties hereto. All
exhibits to this Lease shall be deemed incorporated herein by the individual reference to each such
exhibit, and shall be deemed a part of this Lease as though set forth in full in the body of the
Lease. In any action or proceeding arising under or relating to this Lease, the party that does
not prevail in such action or proceeding shall pay the prevailing party’s costs and expenses,
including reasonable attorneys’ fees.
18.2 Waiver: One party’s consent to or approval of any act by the other party
requiring the first party’s consent or approval shall not be deemed to waive or render unnecessary
the first party’s consent to or approval of any subsequent similar act by the other party. No
delay or omission in the exercise of any right or remedy accruing to either party upon any breach
by the other party under this Lease shall impair such right or remedy or be construed as a waiver
of any such breach theretofore or thereafter occurring. The waiver by either party of any breach
of any provision of this Lease shall not be deemed to be a waiver of any subsequent breach of the
same or any other provisions herein contained.
18.3 Estoppel Certificates: Each party agrees, within ten (10) days following receipt
of any request by the other, to execute and deliver an estoppel certificate upon which the
requesting party and any others it designates may rely (i) certifying that this Lease is unmodified
and in full force and effect, or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect; (ii) stating the date to
which the rent is paid in advance, if any; (iii) acknowledging that there are not, to the
certifying party’s knowledge, any uncured defaults on the part of the other party hereunder, or if
there are stating their nature; and (iv) certifying such other information about the Lease as may
be reasonably required by the requesting party.
18.4 Reimbursable Expenditures: Any expenditure by a party permitted or required
under this Lease, for which such party is entitled to demand and does demand reimbursement from the
other party, shall be limited to the actual cost to the demanding party of the goods and/or
services giving rise to such expenditure, which cost (i) shall not exceed the fair market value of
such goods and/or services, (ii) shall be reasonably incurred, and (iii) shall be substantiated by
documentary evidence available for inspection and review by the other party or its representative
during normal business hours.
18.5 Notices: Any notice required to be given hereunder shall be in writing and
addressed to either Landlord or Tenant at its address specified in Article 1, or to such other
address or addresses as the party may from time to time designate by written notice, and shall be
deposited in the United States mail, duly registered or certified and postage prepaid, or send for
delivery by an overnight courier service that confirms delivery. Notices shall be effective at the
time the same are given in accordance with this Section, provided that where either Landlord or
Tenant is permitted or required, following notice from the other, to respond or give or make any
notice or election, the time period within which the party may do so
Exhibit E, Page 11
shall run from receipt or refusal to receive.
18.6 Authority: If either party to this Lease is a corporation, limited liability
company or partnership, such party represents and warrants that each individual executing this
Lease on such party’s behalf is duly authorized to execute and deliver this Lease on behalf of said
corporation, limited liability company or partnership and that this Lease is binding upon said
corporation, limited liability company or partnership in accordance with its terms.
18.7 Brokerage Commissions: Each of Landlord and Tenant shall be responsible to pay
the brokerage commissions or other fees, if any, that may be due by reason of commitments made by
such party. Each party shall hold harmless the other from all damages or claims that may be
asserted by any broker, finder, or other person by reason of commitments made or alleged to have
been made by the indemnifying party.
18.8 Force Majeure: Whenever a period of time is herein prescribed for action (other
than the payment of money) to be taken by Landlord or Tenant, such party shall not be liable or
responsible for, and there shall be 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; provided, however, that the foregoing shall not be deemed to extend
the time at which Tenant is entitled to an abatement of Rents or to terminate this Lease pursuant
to any express provision of this Lease.
18.9 Landlord’s Right of Entry: Landlord, its agents, employees, and contractors
shall have the right to enter the Premises at any reasonable time upon written notice to Tenant and
with a representative of Tenant present, and provided Landlord shall comply with all reasonable
security measures of Tenant and shall not interfere with the conduct of Tenant’s business, for the
purpose of making repairs, replacements and alterations or additions in, to, or about the Premises
or Building as are the responsibility of Landlord under this Lease or as are necessary for
Landlord’s performance of its maintenance and operation responsibilities relating to the Premises
or the Building or to carry out any other applicable provision of this Lease. However, in the
event of an emergency, Landlord may enter the Premises at other reasonable times after giving such
notice, if any, as may be practicable in the circumstances. Landlord may show the Premises to
prospective purchasers, lessees and mortgagees, during business hours upon reasonable notice to
Tenant, and providing Landlord does not interrupt Tenant’s normal operations and adheres to
Tenant’s reasonable policies regarding security of the Premises and Tenant’s proprietary business
information.
18.10 Lease Provisions Govern. Neither Landlord nor Tenant shall be required to
furnish any services or facilities or to make any repairs, replacements or alterations of any kind
in or on the Premises except as specifically provided herein.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease with the intent to be legally
bound thereby, to be effective as of the day and year first set forth above.
| AS LANDLORD: | AS TENANT: | ||||||
| , | , | ||||||
a
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a | ||||||
By:
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By: | |||||||||
| Printed Name: | Printed Name: | |||||||||
Title:
|
Title: | |||||||||
Exhibit E, Page 12
