EXHIBIT 10.1
INDUSTRIAL REAL ESTATE LEASE
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: December 20, 1996
Section 1.02. Landlord: WRC Properties, Inc., a Delaware corporation
Address of Landlord: 000 Xxxxx Xxx. New York, New York 10017
with a copy to Xxxx Management Services, 0000 Xxx Xxxxxx Xxxxxx, Xxxxxxx Xxxxx,
XX 00000, Facsimile: (000) 000-0000; or to such other place as Landlord may from
time to time designate by notice to Tenant (for notices, see Section 13.07)
Section 1.03. Tenant: ICOS Corporation, a Delaware corporation (for
notices, see Section 13.07)
Address of Tenant: 00000 00xx Xxxxxx X.X., Xxxxxxx, XX 00000
Section 1.04. Property: (Include street address, approximate square
footage and description)
00000 00xx Xxxxxx X.X., Xxxxxxx, XX 00000, more specifically described on
Exhibit A hereto and comprising approximately 15,985 Rentable Square Feet.
Section 1.05. Lease Term: Eighty-Five (85) months commencing on January
10, 1997 (the "Commencement Date") and ending on the eighty-fifth (85th) monthly
anniversary of the Commencement Date.
Section 1.06. Permitted Uses: (See Section 5.01) General office,
manufacturing and research and development of medical products, and others as
permitted by code.
Section 1.07. Tenant's Guarantor: [Intentionally omitted].
Section 1.08. Landlord's Representative: (See Article Fourteen) Xxxx
Management Services, Inc.
Section 1.09. Tenant's Broker: None
Section 1.10. Commission Payable to Landlord's Broker: Not Applicable
Section 1.11. Initial Security Deposit: [Intentionally Omitted]
Section 1.12. Vehicle Parking Spaces Allocated to Tenant: (See Multi-
Tenant Facility Lease Rider, if attached) Forty-Eight (48)
Section 1.13. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Months 1-36 - $16,624 per month; Months 37-60 - $18,063 per
month; Months 61-85 - $19,182 per month.
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See Section 4.02);
(ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See Section 4.04);
(iv) Common Area Charges (See Section 4.05 or Multi-Tenant Facility Lease Rider,
if attached); (v) Impounds for Insurance Premiums and Property Taxes (See
Section 4.08); (vi) Maintenance, Repairs and Alterations (See Article Six).
1
Section 1.14. Riders: The following Riders are attached to and made a part of
this Lease: Rider 1: Multi-Tenant Facility Lease; Rider 2: Renewal; Rider 3:
Emissions, Storage, Use and Disposal of Waste.
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property for Lease Term. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 above and shall
begin and end on the dates specified in Section 1.05 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
Commencement Date shall be the date specified in Section 1.05 above for the
beginning of the Lease Term, unless advanced or delayed under any provision of
this Lease.
Section 2.02. Delay in Commencement. This Lease shall be for a term
("Lease Term") beginning on the Commencement Date and ending on the Expiration
Date, unless extended or sooner terminated in accordance with the terms of this
Lease. Tenant shall be entitled to use the Premises prior to the Commencement
Date, provided that all provisions of this Lease, other than those relating to
payment of Base Monthly Rent and Additional Rent, shall become effective upon
the date that Tenant or its officers, agents, employees or contractors is first
present on the Premises, whether for inspection, construction, installation or
other purposes.
Section 2.03. Early Occupancy. [Intentionally Omitted].
Section 2.04. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnify Landlord against all damages incurred by Landlord
from any delay by Xxxxxx in vacating the Property. If Tenant does not vacate
the Property upon the expiration or earlier termination of the Lease and
Landlord thereafter accepts rent from Tenant, Xxxxxx's occupancy of the Property
shall be a "month-to-month" tenancy, subject to all of the terms of this Lease
applicable to a month-to-month tenancy, except that the Base Rent then in effect
shall be increased by fifty percent (50%).
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.13(a) above for the first month of the Lease Term. On the first day of the
second month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand.
The Base Rent shall be payable at Landlord's address or at such other place as
Landlord may designate in writing.
Section 3.02. Cost of Living Increases. [Intentionally Omitted]
Section 3.03. Security Deposit Increases. [Intentionally Omitted]
Section 3.04. Termination; Advance Payments. Upon termination of this
Lease under Article Seven (Damage or Destruction), Article Eight (Condemnation)
or any other termination not resulting from Xxxxxx's default, and after Tenant
has vacated the Property in the manner required by this Lease, a pro rata
adjustment shall be made concerning advance rent, any other advance payments
made by Tenant to Landlord, and accrued real property taxes.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
2
Section 4.01. Additional Rent. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
all Additional Rent shall be paid with the next monthly installment of Base
Rent. The term "rent" shall mean Base Rent and Additional Rent.
Section 4.02. Real Property Taxes.
(a) Payment of Taxes. Landlord is billed for real property taxes on the
Property. Landlord will invoice Tenant for real property taxes due and payable
on the Property during the Lease Term. If the Lease Term includes a partial tax
period, the real property taxes shall be prorated for such partial period.
Subject to Section 4.08 below, Tenant shall pay the amount of such real property
tax invoices to Landlord within fifteen (15) days after Xxxxxx's receipt of the
invoice.
(b) Definition of Real Property Tax. "Real property tax" means: (i) any
fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment pro rata installments, penalty or tax imposed by any
taxing authority against the Property or land upon which the Property is
located; (ii) any tax on the Landlord's right to receive, or the receipt of,
rent or income from the Property or against Landlord's business of leasing the
Property; (iii) any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Property by any
governmental agency; (iv) any tax imposed upon this transaction or based upon a
re-assessment of the Property due to a change in ownership or transfer of all or
part of Landlord's interest in the Property; and (v) any charge or fee replacing
any tax previously included within the definition of real property tax. "Real
property tax" does not, however, include Landlord's federal or state income,
franchise, inheritance or estate taxes.
(c) Joint Assessment. If the Property is not separately assessed Xxxxxx's
share of the real property tax payable by Tenant under Paragraph 4.02(a) shall
be determined from the assessor's worksheets or other reasonably available
information. Landlord shall make a reasonable determination of Xxxxxx's pro rata
share of such real property tax and Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord's written statement.
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Xxxxxx.
Tenant shall try to have personal property taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within fifteen
(15) days after Xxxxxx receives a written statement from Landlord for such
personal property taxes.
(e) Tenant's Right to Contest Taxes. Tenant may attempt to have the
assessed valuation of the Property reduced or-may initiate proceedings to
contest the real property taxes. If required by law, Landlord shall join in the
proceedings brought by Xxxxxx. However, Tenant shall pay all costs of the
proceedings, including any costs or fees incurred by Landlord. Upon the final
determination of any proceeding or contest, Xxxxxx shall immediately pay the
real property taxes due, together with all costs, charges, interest and
penalties incidental to the proceedings. If Tenant does not pay the real
property taxes when due and contests such taxes, Tenant shall not be in default
under this Lease for nonpayment of such taxes if Tenant deposits funds with
Landlord or opens an interest-bearing account reasonably acceptable to Landlord
in the joint names of Landlord and Xxxxxx. The amount of such deposit shall be
sufficient to pay the real property taxes plus a reasonable estimate of the
interest, costs, charges and penalties which may accrue if Tenant's action is
unsuccessful, less any applicable tax impounds previously paid by Tenant to
Landlord. The deposit shall be applied to the real property taxes due, as
determined at such proceedings. The real property taxes shall be paid under
protest from such deposit if such payment under protest is necessary to prevent
the Property from being sold under a "tax sale" or similar enforcement
proceeding.
Section 4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the Property. However, if any services or utilities are jointly metered with
other property,
3
Landlord shall make a reasonable determination of Xxxxxx's pro rata share of the
cost of such utilities and services and Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord's written statement.
Section 4.04. Insurance Premiums.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of comprehensive public liability insurance at Tenant's expense, insuring
Landlord and its management contractor against liability arising out of the
ownership, use, occupancy or maintenance of the Property. The initial amount of
such insurance shall be at least $2,500,000. However, the amount of such
insurance shall not limit Tenant's liability nor relieve Tenant of any
obligation hereunder. The policy shall contain cross-liability endorsements, if
applicable, and shall insure Tenant's performance of the indemnity provisions of
Paragraphs 5.04(a), (b) and (e). Tenant shall, at Tenant's expense, maintain
such other liability insurance as Tenant deems necessary to protect Tenant.
Tenant shall name Landlord and its management contractor as an additional
insured and provide copies upon renewal, or at least once annually.
(b) Hazard and Rental Income Insurance. During the Lease Term, Landlord
shall maintain policies of fire and extended coverage or "all risk" insurance
covering the loss of or damage to the building of which the Property is a part,
covering loss of or damage to the Property in the full amount of its replacement
value. Such policies shall provide protection against all perils included within
the classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), sprinkler leakage, earthquake sprinkler
leakage, and Inflation Guard endorsement, and any other perils (except flood and
earthquake, unless required by any lender holding a security interest in the
Property) which Landlord deems necessary. Landlord may obtain insurance coverage
for Tenant's fixtures, equipment or building improvements installed by Tenant in
or on the Property. Tenant shall, at Tenant's expense, maintain such primary or
additional insurance on its fixtures, equipment and building improvements as
Tenant deems necessary to protect its interest. During the Lease Term, Landlord
shall also maintain a rental income insurance policy at Tenant's expense, with
loss payable to Landlord in an amount equal to one year's Base Rent, estimated
real property taxes and insurance premiums. Tenant shall not do or permit to be
done anything which invalidates any such insurance policies.
(c) Payment of Premiums; Insurance Policies. Subject to Section 4.05 and
any Multi-Tenant Facility Lease Rider attached to this Lease, Tenant shall pay
all premiums for the insurance policies covering the Property described in
Paragraphs 4.04(a) and (b) within fifteen (15) days or the due period, whichever
is longer, after receipt by Tenant of a copy of the premium statement or other
evidence of the amount due. If the insurance policies maintained by Landlord
cover improvements or real property other than the Property, Landlord shall also
deliver to Tenant a statement of the amount of the premiums applicable to the
Property showing, in reasonable detail, how such amount was computed. If the
Lease Term expires before the expiration of the insurance policy period,
Tenant's liability for insurance premiums shall be prorated on an annual basis.
All insurance shall be maintained with companies holding a 'General
Policyholder's Rating" of B+ or better, as set forth in the most current issue
of "Best's Insurance Guide." Tenant shall be liable for the payment of any
deductible amount under Landlord's insurance policies.
Section 4.05. Multiple Tenant Buildings; Rules and Regulations. If the
Property is part of a larger building or group of buildings, Tenant shall pay
monthly, in advance, its pro rata share of common area maintenance and repair
costs as reasonably determined by Landlord. Tenant shall also comply with
Landlord's rules and regulations respecting the management, care and safety of
the common areas of such buildings and grounds, including parking areas,
landscaped areas, walkways, hallways and other facilities provided for the
common use and convenience of other occupants. Notice of such rules and
regulations will be posted or given to Tenant. Tenant shall pay for any
increase in the property insurance premiums for such buildings caused by
Tenant's acts, omissions, use or occupancy of the Property.
Section 4.06. Late Charges. Xxxxxx's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) days after it becomes due, Tenant shall pay
4
Landlord a late charge equal to fifteen percent (15%) per annum compounded
daily, but in no event less than two percent (2%) of the overdue amount. The
parties agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of such late payment.
Section 4.07. Interest on Past Due Obligations. Any amount owed by Tenant
to Landlord which is not paid within ten (10) days after it becomes due shall
bear interest at the rate of twelve percent (12%) per annum from the due date of
such amount. However, interest shall not be payable on late charges to be paid
by Tenant under this Lease. The payment of interest on such amounts shall not
excuse or cure any default by Tenant under this Lease. If the interest rate
specified in this Lease is higher than the rate permitted by law, the interest
rate is hereby decreased to the maximum legal interest rate permitted by law.
Section 4.08. Payment of Insurance Premiums and Real Property Taxes.
Tenant shall pay Landlord as Common Area Costs pursuant to Rider 1 a sum equal
to one-twelfth (1/12) of the annual real property taxes and/or insurance
premiums payable by Tenant under this Lease, provided that Landlord and Tenant
may agree in writing to semi-annual payments of taxes 30 days prior to the date
such taxes are due to the applicable governmental entity. The amount of real
property taxes and insurance premiums when unknown shall be reasonably estimated
by Landlord.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the Property
to be used in any way which constitutes a violation of any law, ordinance, or
governmental regulation or order, which annoys or interferes with the rights of
tenants of the development of which the Property is part, or which constitutes a
nuisance or waste. Tenant shall obtain and pay for all permits, required for
Tenant's occupancy of the Property and shall promptly take all substantial and
non-substantial actions necessary to comply with all applicable statutes,
ordinances, rules, regulations, orders and requirements regulating the use by
Tenant of the Property, including the Occupational Safety and Health Act.
Section 5.03. Signs and Auctions. Tenant shall not place any signs on the
Property without Landlord's prior written consent. Tenant shall not conduct or
permit any auctions or sheriff's sales at the Property.
Section 5.04. Indemnity.
(a) Indemnification. Tenant shall indemnify Landlord against and hold
Landlord harmless from any and all costs, claims or liability arising from: (a)
Tenant's use of the Property; (b) the conduct of Tenant's business or anything
else done or permitted by Tenant to be done in or about the Property; (c) any
breach or default in the performance of Tenant's obligations under this Lease;
(d) any misrepresentation or breach of warranty by Tenant under this Lease or
(e) other acts or omissions of Tenant. Tenant shall defend Landlord against any
such cost, claim or liability at Tenant's expense with counsel reasonably
acceptable to Landlord, or, at Landlord's election, Tenant shall reimburse
Landlord for any legal fees or costs incurred by Landlord in connection with any
such claim. As a material part of the consideration to Landlord, Tenant hereby
assumes all risk of damage to property or injury to persons in or about the
Property arising from any cause, and Tenant hereby waives all claims in respect
thereof against Landlord, except for any claim for actual damage to person or
property (excluding claims for consequential damages such as lost profits)
arising out of Landlord's negligence or willful misconduct. Xxxxxx agrees that
the foregoing indemnity specifically covers actions brought by its own
employees. This indemnity with respect to acts or omissions during the term of
this Lease shall survive termination or expiration of this Lease. The foregoing
indemnity is specifically and expressly intended to, constitute a waiver of
Tenant's immunity under Washington's Industrial Insurance Act, RCW Title 51, to
the extent necessary to provide Landlord with a full and complete indemnity from
claims made by Tenant and its employees, to the extent of their negligence.
Tenant shall promptly notify Landlord of casualties or accidents occurring in or
about the Property. LANDLORD AND TENANT
5
ACKNOWLEDGE THAT THE INDEMNIFICATION PROVISIONS OF THIS SECTION WERE
SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
(b) Modification of Indemnities. In compliance with RCW 4.24.115 as in
effect on the date of this Lease, all provisions of this Lease pursuant to which
Landlord or Tenant (the 'Indemnitor") agrees to indemnify the other (the
'Indemnitee') against liability for damages arising out of bodily injury to
Persons or damage to property relative to the construction, alteration, repair,
addition to, subtraction from, improvement to, or maintenance of, any building,
road, or other structure, project, development, or improvement attached to real
estate, including the Property and the Project, (i) shall not apply to damages
caused by or resulting from the sole negligence of the Indemnitee, its agents or
employees, and (ii) to the extent caused by or resulting from the concurrent
negligence of (a) the Indemnitee or the Indemnitee's agents or employees, and
(b) the Indemnitor or the Indemnitor's agents or employees, shall apply only to
the extent of the Indemnitor's negligence; PROVIDED, HOWEVER, the limitations on
indemnity set forth in this Section shall automatically and without further act
by either Landlord or Tenant be deemed amended so as to remove any of the
restrictions contained in this Section no longer required by then applicable
law.
Section 5.05. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or tenants or other parties, or for any other purpose Landlord deems
necessary. Landlord shall give Tenant prior notice of such entry, except in the
case of an emergency. Landlord may place customary "For Sale" or "For Lease"
signs on the Property. Tenant shall provide Landlord with Xxxxxx's Emergency
Procedure Manual as adopted by Xxxxxx from time to time. In all instances,
including in cases of emergency, Landlord shall use reasonable best efforts to
comply with the Emergency Procedure Manual in entering any area designated by
Tenant as "restricted" for health or safety reasons.
Section 5.06. Quiet Possession. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant may occupy and enjoy the Property for the
full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Existing Conditions. Except as set forth in any rider
requiring Landlord to perform work on the Property prior to the Commencement
Date, Tenant accepts the Property in its condition as of the execution of the
Lease, subject to all recorded matters, laws, ordinances, and governmental
regulations and orders. Tenant acknowledges that neither Xxxxxxxx nor any agent
of Landlord has made any representation as to the condition of the Property or
the suitability of the Property for Xxxxxx's intended use.
Section 6.02. Exemption of Landlord from Liability. Landlord shall not be
liable for any damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers or any other person in or about the Property,
whether such damage or injury is caused by or results from: (a) fire, steam,
electricity, water, gas or rain; (b) the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures or any other cause; (c) conditions arising in or about the
Property or upon other portions of any building of which the Property is a part
or from other sources or places; or (d) any act or omission of any other tenant
of any building of which the Property is a part. Landlord shall not be liable
for any such damage or injury even though the cause of or the means of repairing
such damage or injury are not accessible to Tenant. The provisions of this
Section 6.02 shall not, however, exempt Landlord from liability for actual
damage to person or property (excluding claims for consequential damages such as
lost profits) arising out of Landlord's negligence or willful misconduct.
Section 6.03. Tenant's Obligations.
(a) Tenant shall keep the Property (including all structural,
nonstructural, interior, exterior, and landscaped areas, portions, systems and
equipment) in good order, condition and repair during the Lease Term. Tenant
shall promptly replace any portion of the Property or system or equipment in the
Property
6
which cannot be fully repaired, regardless of whether the benefit of such
replacement extends beyond the Lease Term. Tenant shall also maintain a
preventive maintenance contract providing for the regular inspection and
maintenance of the heating and air conditioning system by a licensed heating and
air conditioning contractor. However, in the event of Tenant's default, Landlord
shall have the right, upon written notice to Tenant, to undertake the
responsibility for preventive maintenance of the heating and air conditioning
system, at Tenant's expense. Any extraordinary repairs of structural components
would be negotiated in good faith between both parties. It is the intention of
Landlord and Tenant that, at all times during the Lease Term, Tenant shall
maintain the Property in an attractive, first-class and fully operative
condition.
(b) All of Tenant's obligations to maintain and repair shall be
accomplished at Tenant's sole expense. If Tenant fails to maintain and repair
the Property, Landlord may, on ten (10) days' prior notice (except that no
notice shall be required in case of emergency) enter the Property and perform
such repair and maintenance on behalf of Tenant. In such case, Tenant shall
reimburse Landlord for all costs so incurred immediately upon demand.
Section 6.04. Landlord's Obligations. Subject to the provisions of
Article Seven (Damage or Destruction) and Article Eight (Condemnation), Landlord
shall have absolutely no responsibility to repair, maintain or replace any
portion of the Property at any time. Tenant waives the benefit of any present or
future law which might give Tenant the right to repair the Property at
Landlord's expense or to terminate the Lease due to the condition of the
Property.
Section 6.05. Alterations, Additions and Improvements.
(a) Tenant shall not make any alterations, additions or improvements to
the Property without Landlord's prior written consent, except for non-structural
alterations which do not exceed Twenty Five Thousand Dollars ($25,000) per
project in cost cumulatively over the Lease Term and which are not visible from
the outside of any building of which the Property is part. Landlord may require
Tenant to provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions, and improvements
will be accomplished in a good and workmanlike manner, in conformity with all
applicable laws and regulations, and by a contractor approved by Landlord. Upon
completion of any such work, Tenant shall provide Landlord with 'as built'
plans, copies of all construction contracts, and proof of payment for all labor
and materials, as may be reasonably available.
(b) Tenant shall pay when due all claims for labor and material furnished
to the Property. Tenant shall give Landlord at least ten (10) days' prior
written notice of the commencement of any work on the Property. Landlord may
elect to record and post notices of non-responsibility on the Property.
Section 6.06. Condition upon Termination. Upon the termination of the
Lease, Xxxxxx shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear, fire or other
casualty that Tenant was not otherwise obligated to remedy under any provision
of this Lease and damage resulting from condemnation. However, Tenant shall not
be obligated to repair any damage which Landlord is required to repair under
Article Seven (Damage or Destruction). Prior to making any alteration, addition
or improvement costing more than $1,000, Tenant shall notify Landlord of
Tenant's intent to take such action and, within ten (10) business days following
such notification (or, if Landlord's consent is required pursuant to Section
6.05(a), then on or before the date such consent is given), Landlord may notify
Tenant that such action is permitted only subject to Tenant's agreement to
remove such addition, alteration or improvement prior to termination of the
Lease and to restore the Property to its prior condition, all at Tenant's
expense. All alterations, additions and improvements which Landlord has not
required Tenant to remove shall become Landlord's property and shall be
surrendered to Landlord upon the termination of the Lease, except that Tenant
may remove any of Tenant's trade fixtures, machinery and equipment not paid for
by Landlord. The term 'Tenant's trade fixtures, machinery and equipment' shall
include but not be limited to casework (including shelves, gas valve outlets and
mounted electrical raceway), deionized water system (including tanks, filters
pumps and UV light), emergency generator and switch gear, gas safety control
system and fume hoods (free-standing and mounted), and integrated audio visual
system.
7
Tenant shall repair, at Tenant's expense, any damage to the Property caused by
the removal of any such machinery or equipment. In no event, however, shall
Tenant remove any of the following materials or equipment without Landlord's
prior written consent: any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other window coverings; carpets or
other floor coverings; heaters, air conditioners or any other heating or air
conditioning equipment; fencing or security gates; or other similar building
operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property. Tenant shall notify Landlord in
writing immediately upon the occurrence of any damage to the Property. If the
Property is damaged and (i) it can, in Landlord's reasonable estimation, be
restored within twelve (12) months after the date of damage (including both
restoration of core and shell and restoration of any Tenant Improvements that
are Tenant's responsibility under this Article Seven) and (ii) the damage is
covered by the insurance policies that Landlord maintains or is required to
maintain under Paragraph 4.04(b), then: (i) Landlord shall restore the office
and warehouse portions of the Property to the then-existing building standard
finish levels (as that term is used in the leasing industry) for office and
warehouse space in WRC Canyon Park Business Center buildings, and restore the
laboratory space to core finish ready for tenant improvements, with utility stub
outs comparable to those existing prior to the damage; and (ii) to the extent
Tenant's insurance plus its deductible is insufficient to restore Tenant's
improvements, furniture, fixtures and equipment, then Landlord shall restore
Tenant's improvements, furniture, fixtures and equipment to the extent of
insurance proceeds received by Landlord specifically for damage to such
improvements, furniture, fixtures and equipment under insurance maintained by
Landlord pursuant to Section 4.04(b). Tenant shall be solely responsible for
restoring any damage to Tenant's improvements, furniture fixtures, and
equipment, including any upgrades to building standard and laboratory
improvements, to the extent they are not restored by Landlord under this Article
Seven. In all cases in which Landlord is restoring the Property under this
Article Seven, if the damage was due to an act or omission of Tenant, Tenant
shall pay the difference between the actual cost of repair and any insurance
proceeds received by Landlord. If the damage to the Property is such as to
require Landlord otherwise to restore the Property, but occurs at such time as
to leave, in Landlord's reasonable estimation, less than twelve (12) months
remaining in the Lease Term following completion of all restoration, Landlord
may elect to terminate this Lease as of the date the damage occurred. In such
event, Landlord shall not be obligated to repair or restore the Property.
Landlord shall notify Tenant of its election within thirty (30) days after
receipt of notice of the occurrence of the damage, and Tenant shall have fifteen
(15) days after such notification to exercise any rights Tenant may have to
Renewal Options under this Lease so as to remove this ground for termination of
the Lease (in which event, the termination shall be deemed rescinded).
Section 7.02. Total or Substantial Destruction. If the Property is damaged
and (i) it can not, in Landlord's reasonable estimation, be restored within
twelve (12) months after the date of damage (including both restoration of core
and shell and restoration of any Tenant Improvements that are Tenant's
responsibility under this Article Seven), or (ii) the damage is not within the
types of damage covered by the insurance policies that Landlord maintains or is
required to maintain under Paragraph 4.04(b), then Landlord may elect either to
restore or to terminate this Lease as of the date the destruction occurred.
Landlord shall notify Tenant of such election within thirty (30) days after the
occurrence of total or substantial destruction. If Landlord elects to terminate
this Lease pursuant to this Section 7.02, Tenant may elect to continue this
Lease in full force and effect, in which case Tenant shall repair any damage to
the Property and any building in which the Property is located. Tenant shall pay
the cost of such repairs, except that, upon satisfactory completion of such
repairs, Landlord shall deliver to Tenant any insurance proceeds received by
Landlord for the damage repaired by Tenant. Tenant shall give Landlord written
notice of such election within thirty (30) days after receiving Landlord's
termination notice.
Section 7.03. Temporary Reduction of Rent. If fifty percent (50%) or more
of the Property are so damaged as to become unusable and cannot, in Landlord's
reasonable estimation, be repaired within six (6) months of the date Landlord is
notified of the damage (which estimate of restoration time shall be given by
Landlord to Tenant within thirty (30) days of Tenant notifying Landlord of the
damage), then Tenant may terminate this Lease on thirty (30) days notice to
Landlord. If the Property is destroyed or damaged and Landlord or Tenant repairs
or restores the Property pursuant to the provisions of this Article Seven, any
rent
8
payable during the period of such damage, repair and/or restoration shall be
reduced according to the proportion of the Building that is unusable for its
intended purpose. However, the reduction shall not exceed the sum of one year's
payment of Base Rent, insurance premiums and real property taxes. Except for
such possible reduction in Base Rent, insurance premiums and real property
taxes, Tenant shall not be entitled to any compensation, reduction, or
reimbursement from Landlord as a result of any damage, destruction, repair, or
restoration of or to the Property.
Section 7.04. Waiver. Tenant waives the protection of any statute, code
or judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial destruction of the leased property. Tenant agrees that
the provisions of Article Seven above shall govern the rights and obligations of
Landlord and Tenant in the event of any substantial or total destruction to the
Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes possession). If neither Landlord nor Tenant terminates this Lease, this
Lease shall remain in effect as to the portion of the Property not taken, except
that the Base Rent shall be reduced in proportion to the reduction in the floor
area of the Property. Any Condemnation award or payment shall be distributed in
the following order: (a) first, to any ground lessor, mortgagee or beneficiary
under a deed of trust encumbering the Property, the amount of its interest in
the Property; (b) second, to Tenant, only the amount of any award specifically
designated for loss of or damage to Tenant Improvements paid for by Tenant or
Tenant's trade fixtures or removable personal property; and (c) third, to
Landlord, the remainder of such award, whether as compensation for reduction in
the value of the leasehold, the taking of the fee, or otherwise. If this Lease
is not terminated, Landlord shall repair any damage to the Property caused by
the Condemnation, except that Landlord shall not be obligated to repair any
damage for which Tenant has been reimbursed by the condemning authority. If the
severance damages received by Landlord are not sufficient to pay for such
repair, Landlord shall have the right to either terminate this Lease or make
such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Xxxxxxxx's Consent Required. No portion of the Property or
of Tenant's interest in this Lease may be acquired by any other person or
entity, (a "Transferee") whether by assignment, mortgage, sublease, transfer,
operation of law, or act of Tenant, without Xxxxxxxx's prior written consent,
except as provided in Section 9.02 below. Landlord shall grant or withhold its
consent as provided in Section 9.04 below. Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.
If Tenant is a partnership, any cumulative transfer of more than 20% of the
partnership interests shall require Landlord's consent.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation or other entity
which controls, is controlled by or is under common control with Tenant, or to
any corporation or other entity resulting from the merger of or consolidation
with Tenant or to any corporation or entity controlled by any of the foregoing
(collectively "Tenant's Affiliate"). In such case, any Tenant's Affiliate shall
assume in writing all of Tenant's obligations under this Lease. As used herein,
"controlled by" means owned 51% or more by the controlling entity.
Section 9.03. No Release of Tenant. No transfer permitted by this Article
Nine, whether with or without Landlord's consent, shall release Tenant or change
Tenant's primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease. Xxxxxxxx's acceptance of rent from any other
9
person is not a waiver of any provision of this Article Nine. Consent to one
transfer is not a consent to any subsequent transfer. If Xxxxxx's transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Landlord may consent to subsequent
assignments or modifications of this Lease by Xxxxxx's transferee, without
notifying Tenant or obtaining its consent. Such action shall not relieve
Xxxxxx's liability under this Lease.
Section 9.04. Landlord's Election. Xxxxxx's request for consent to any
transfer described in Section 9.01 above shall be accompanied by a written
statement setting forth the details of the proposed transfer, including the
name, business, business history and financial condition of the prospective
transferee, financial details of the proposed transfer (e.g., the term of and
rent and security deposit payable under any assignment or sublease), and any
other information Landlord deems relevant. Landlord shall have the right (a) to
withhold consent, or (b) to grant consent. Tenant recognizes and acknowledges
Landlord's paramount interest in adhering to its standards for quality, type and
financial and business stability of tenants. Xxxxxxxx's consent pursuant to this
Section 9.04 may be withheld if, in Landlord's reasonable discretion, the
proposed transferee fails to meet Xxxxxxxx's standards for quality, type, and
financial and business stability of tenants for space of this size and quality.
Xxxxxxxx's election hereunder shall not be unreasonably delayed. If Xxxxxxxx
refuses consent to a transfer requested by Xxxxxx, and Xxxxxx wishes to contest
such refusal, the issue shall be decided before a single arbitrator of the
American Arbitration Association under the Expedited Rules for Arbitration then
in effect. The non-prevailing party shall pay the arbitrator's fee and the
prevailing party shall recover its attorneys' fees and costs as part of the
award.
Section 9.05. No Merger. No merger shall result from Xxxxxx's sublease of
the Property under this Article Nine, Xxxxxx's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Xxxxxx as
sublandlord thereunder.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Xxxxxx's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Xxxxxx's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants
and conditions.
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Xxxxxx abandons the Property and fails to reoccupy within five (5)
days of notice from Landlord, or if Xxxxxx's vacation of the Property results in
the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge required to be paid by
Xxxxxx, as and when due; provided that Landlord shall not exercise any of its
rights under this Article Ten until Landlord has given Tenant notice of such
default and Tenant has failed to pay such rent or other charge within ten (10)
days of the effective date of such notice;
(c) If Tenant fails to perform any of Xxxxxx's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) day period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Xxxxxx's failure to perform constitutes a non-curable breach of this Lease. The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement .
(d) (i) If Xxxxxx makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease
10
and possession is not restored to Tenant within thirty (30) days; or (iv) if
substantially all of Tenant's assets located at the Property or of Tenant's
interest in this Lease is subjected to attachment, execution or other judicial
seizure which is not discharged within thirty (30) days. If a court of competent
jurisdiction determines that any of the acts described in this subparagraph (d)
is not a default under this Lease, and a trustee is appointed to take possession
(or if Tenant remains a debtor in possession) and such trustee or Tenant
transfers Xxxxxx's interest hereunder, then Landlord shall receive, as
Additional Rent, the difference between the rent (or any other consideration)
paid in connection with such assignment or sublease and the rent payable by
Tenant hereunder.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Xxxxxx's right to possession of the Property by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Property to Landlord. In such event, Landlord shall
be entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default, including (i) the worth at the time of the award of the unpaid
Base Rent, Additional Rent and other charges which had been earned at the time
of the termination; (ii) the worth at the time of the award of the amount by
which the unpaid Base Rent, Additional Rent and other charges which would have
been earned after termination until the time of the award exceeds the amount of
such rental loss that Tenant proves could have been reasonably avoided; (iii)
the worth at the time of the award of the amount by which the unpaid Base Rent,
Additional Rent and other charges which would have been paid for the balance of
the term after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; and (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Xxxxxx's failure to perform its obligations under the Lease or which in the
ordinary course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses incurred by Landlord in maintaining or
preserving the Property after such default, the cost of recovering possession of
the Property, expenses of reletting, including necessary renovation or
alteration of the Property, Landlord's reasonable attorneys' fees incurred in
connection therewith, and any real estate commission paid or payable. As used in
subparts and (ii) above, the "worth at the time of the award" is computed by
allowing interest on unpaid amounts at the rate of fifteen percent (15%) per
annum, or such lesser amount as may then be the maximum lawful rate. As used in
subpart (iii) above, the "worth at the time of the award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus 1%. If Tenant shall have abandoned the
Property, Landlord shall have the option of (i) retaking possession of the
Property and recovering from Tenant the amount specified in this Paragraph
10.03(a), or (ii) proceeding under Paragraph 10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the Property. in
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due hereunder;
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or Judicial decisions of the state in which the Property is located.
Section 10.04. Cumulative Remedies. Xxxxxxxx's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded, provided, however, that the ground lessor under such
ground lease or the beneficiary or mortgagee under such deed of trust or
mortgage shall enter into a non-disturbance agreement with Tenant in
commercially reasonable form acknowledging that Tenant's rights under this Lease
shall not be interfered
11
with or disturbed, and that Xxxxxx's leasehold estate shall not be foreclosed,
so long as Tenant is not in default under the terms of this Lease after the
expiration of any applicable grace period. If any ground lessor, beneficiary or
mortgagee elects to have this Lease prior to the lien of its ground lease, deed
of trust or mortgage and gives written notice thereof to Tenant, this Lease
shall be deemed prior to such ground lease, deed of trust or mortgage whether
this Lease is dated prior or subsequent to the date of said ground lease, deed
of trust or mortgage or the date of recording thereof.
Section 11.02. Attornment. If Xxxxxxxx's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Xxxxxxxx's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. Such subordination and attornment
documents may contain such provisions as are customarily required by any ground
lessor, beneficiary under a deed of trust or mortgagee.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been cancelled
or terminated; (iii) that the last date of payment of the Base Rent and other
charges and the time period covered by such payment; (iv) that Landlord is not
in default under this Lease (or, if Landlord is claimed to be in default,
stating why); and (v) such other matters as may be reasonably required by
Landlord or the holder of a mortgage, deed of trust or lien to which the
Property is or becomes subject and which relate to the status of this Lease
and/or claims of Tenant against Landlord. Tenant shall deliver such statement to
Landlord within twenty (20) days after Xxxxxxxx's request. Any such statement by
Tenant may be given by Landlord to any prospective purchaser or encumbrancer of
the Property. Such purchaser or encumbrancer may rely conclusively upon such
statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
twenty (20) day period, Landlord, and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been cancelled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Base Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under the Lease. In such event, Tenant shall be
estopped from denying the truth of such facts. In any event, none of the
Tenant's rights under this Lease shall be affected.
Section 11.05. Tenant's Financial Condition. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such financial
statements as are normally produced by Xxxxxx and as are reasonably required by
Landlord to verify the net worth of Tenant, or any assignee, subtenant, or
guarantor of Tenant. In addition, Tenant shall deliver to any lender designated
by Landlord any financial statements required by such lender to facilitate the
financing or refinancing of the Property. Tenant represents and warrants to
Landlord that each such financial statement is a true and accurate statement as
of the date of such statement. All financial statements shall be confidential
and shall be used only for the purposes set forth herein.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If either party breaches this Lease or
defaults in its obligations to the other, it shall reimburse the other, upon
demand, for any costs or expenses incurred by the non-breaching party in
connection with any breach or default under this Lease, whether or not suit is
commenced or
12
judgment entered. Such costs shall include legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, if
any action for breach of or to enforce the provisions of this Lease is
commenced, the court in such action shall award to the party in whose favor a
judgment is entered, a reasonable sum as attorneys' fees and costs. Such
attorneys' fees and costs shall be paid by the losing party in such action. Each
party (the "Indemnitor") shall also indemnify the other party (the "Indemnitee")
against all costs, expenses, demands and liabilities incurred by the Indemnitee
in defense of any action or claim arising out of the actions of the Indemnitor
and not caused in whole or in part by the wrongful actions or inactions of the
Indemnitee.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Xxxxxx's request for Xxxxxxxx's
consent under Article Nine (not to exceed $2,000.00) (Assignment and
Subletting), or in connection with any other act which Xxxxxx proposes to do and
which requires Xxxxxxxx's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person or group of persons on the basis of race, color,
sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. Waiver of Subrogation. Landlord and Tenant each hereby
waive and release any and all rights of recovery against the other, or against
the officers, employees, agents or representatives of the other, for loss of or
damage to its property or the property of others under its control, if such loss
or damage is covered by any insurance policy in force (whether or not described
in this Lease) or required to be maintained under this Lease at the time of such
loss or damage. Upon obtaining the policies of insurance described herein,
Landlord and Tenant shall give notice to the insurance carrier or carriers of
the foregoing mutual waiver of subrogation.
Section 13.03. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or the leasehold estate under a
ground lease of the Property at the time in question. Each Landlord is obligated
to perform the obligations of Landlord under this Lease only during the time
such Landlord owns such interest or title. Any Landlord who transfers its title
or interest is relieved of all liability with respect to the obligations of
Landlord under this Lease to be performed on or after the date of transfer to a
successor who assumes the obligations of Landlord under this Lease. However,
each Landlord shall deliver to its transferee all funds previously paid by
Tenant if such funds have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to perform
any of its obligations under this Lease to Landlord and to any ground lessor,
mortgagee or beneficiary under any deed of trust encumbering the Property whose
name and address have been furnished to Tenant in writing. Landlord shall not be
in default under this Lease unless Landlord (or such ground lessor, mortgagee or
beneficiary) fails to cure such non-performance within thirty (30) days after
receipt of Tenant's notice. However, if such non-performance reasonably requires
more than thirty (30) days to cure, Landlord shall not be in default if such
cure is commenced within such thirty (30) day period and thereafter diligently
pursued to completion.
(c) [Intentionally omitted]
Section 13.04. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.05. Interpretation. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required
13
by the context of this Lease, the singular shall include the plural and the
plural shall include the singular. The masculine, feminine and neuter genders
shall each include the other. In any provision relating to the conduct, acts or
omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees,
contractors, invitees, successors or others using the Property with Xxxxxx's
expressed or implied permission.
Section 13.06. Incorporation of Prior Agreements; Modifications. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.07. Notices. Any demand, request or notice which either party
hereto desires or may be required to make or deliver to the other shall be in
writing and shall be deemed delivered when personally delivered, or when
delivered by private courier service (such as Federal Express), when received by
facsimile at the facsimile number shown below, or three (3) days after being
deposited in the United States mail, in registered or certified form, return
receipt requested, addressed as follows:
To Landlord: WRC Properties, Inc.
000 - Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxx
With a copy to: Xxxx Management Services, Inc.
00000 00xx Xxx. S.E. # 000
Xxxxxxx, XX 00000
Telephone: 000-0000
Facsimile: 487-2126
To Tenant: ICOS Corporation
00000 - 00xx Xxxxxx X.X.
Bothell, WA 98011
Attn: Executive V.P. for Operations
Telephone: 000-0000
Facsimile: 485-1911
or to such other address and person as either party may communicate to the other
by like written notice.
Section 13.08. Waivers. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or its
acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.09. No Recordation. Tenant shall not record this Lease without
prior written consent from Landlord.
Section 13.10. Binding Effect; Choice of Law. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Xxxxxx's successor unless
the rights or interests of Xxxxxx's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.11. Corporate Authority; Partnership Authority. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. If requested by Xxxxxxxx, then ninety (90) days after this Lease
is signed, Tenant shall deliver to Landlord evidence of such authority
reasonably acceptable to Landlord. If Xxxxxx is a partnership, each person
signing this Lease for Tenant represents and warrants that he is a general
partner of
14
the partnership, that he has full authority to sign for the partnership and that
this Lease binds the partnership and all general partners of the partnership.
Tenant shall give written notice to Landlord of any general partner's withdrawal
or addition. within thirty (30) days after this Lease is signed, Xxxxxx shall
deliver to Landlord a copy of Xxxxxx's recorded statement of partnership or
certificate of limited partnership.
Section 13.12. Joint and Several Liability. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.13. Force Majeure. If Landlord or Tenant cannot perform any of
its non-monetary obligations due to events beyond that party's control, the time
provided for performing such obligations shall be extended by a period of time
equal to the duration of such events. Events beyond Landlord's or Tenant's
control include, but are not limited to, acts of God, war, civil commotion,
labor disputes, strikes, fire, flood or other casualty, shortages of labor or
material, government regulation or restriction and weather conditions.
Section 13.14. Execution of Lease. This Lease may be executed in
counterparts, and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. The delivery of this Lease by
Landlord to Tenant shall not be deemed to be an offer and shall not be binding
upon either party until executed and delivered by both parties.
ARTICLE FOURTEEN: BROKERS
Section 14.01. Tenant represents and warrants to Landlord that the
representatives/brokers named in Section 1.08 above are the only agents,
brokers, finders or other parties with whom Xxxxxx has dealt who are or may be
entitled to any commission or fee with respect to this Lease or the Property.
ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED HERETO
OR IN THE BLANK SPACE BELOW. IF NO ADDITIONAL PROVISIONS ARE INSERTED, PLEASE
DRAW A LINE THROUGH THE SPACE BELOW.
Landlord and Xxxxxx have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
ARTICLE FIFTEEN: TENANT IMPROVEMENT ALLOWANCE
Landlord shall make up to Twenty Thousand Dollars ($20,000) (the "Tenant
Improvement Allowance") available to Tenant to reimburse Tenant for actual out-
of-pocket costs paid to third parties for designing and constructing tenant
improvements to the Premises pursuant to plans reasonably approved by Landlord
and otherwise subject to the provisions of Section 14. Landlord shall pay the
Tenant Improvement Allowance within thirty (30) days of invoice submitted after
the improvements have been inspected and accepted by Tenant (less minor punch
list items). The Tenant Improvement Allowance shall be available on a one-time
basis for improvements constructed concurrently with Xxxxxx's initial occupancy
of the Premises.
Signed on February 6 , 1997.
------------- --
"LANDLORD"
WRC PROPERTIES, INC.,
a Delaware corporation
By: /S/ Xxxxx Xxxxxxxx
--------------------------
Its: Assistant Secretary
-------------------------
15
Signed on January 7 , 1997 .
-------------------- --
"TENANT"
ICOS Corporation, a Washington
corporation
By: Xxxx Xxxxxx
---------------------------
Its: Executive Vice President/Operations
--------------------------
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
I certify that I know or have satisfactory evidence that the person
appearing before me and making this acknowledgement is the person whose true
signature appears on this document.
On this day of 1996 before me personally appeared Xxxxx Xxxxxxxx to be
----
known to be the Assistant Secretary of WRC Properties, Inc., the corporation
that executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of such party for the uses
and purposes mentioned in the instrument.
Dated this 6 day of February , 1997 .
------- ----------------------- -----
/S/ X. Xxxxxx Xxxxxxxx
--------------------------------
(Signature)
16
X. Xxxxxx Xxxxxxxx
-----------------------------------
(Print Name)
Notary Public, in and for the State
of Washington, residing at
--------
My Commission Expires 07/31/98
----------
STATE OF )
) ss.
COUNTY OF Snohomish )
I certify that I know or have satisfactory evidence that the person appearing
before me and making this acknowledgement is the person whose true signature
appears on this document.
On this 7th day of Jan. 1997 before me personally appeared Xxxx Xxxxxx to
---- -----------
be known to be the Executive Vice President/Operations of ICOS Corporation
----------------------------------- ----------------
the corporation that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed
of such party for the uses and purposes mentioned in the instrument.
Dated this 7th day of January , 1997 .
------- ----------------------- -----
/S/ Xxxx X. Xxxxxx
-----------------------------------
(Signature)
Xxxx X. Xxxxxx
-----------------------------------
(Print Name)
Notary Public, in and for the State
of Washington, residing at Bothell
-------
My Commission Expires 10/19/00
-------------
17
RIDER 1: MULTI-TENANT FACILITY LEASE RIDER
This Rider is attached to and made part of that certain lease dated between
WRC Properties, Inc., a Delaware corporation, as Landlord, and ICOS Corporation,
a Delaware corporation, as Tenant, covering the Property commonly known as
00000 - 00xx Xxx. S.E., Bothell, WA (the "Lease"). The terms used in this Rider
shall have the same definitions as set forth in the Lease. The provisions of
this Rider shall prevail over any inconsistent or conflicting provisions of the
Lease .
A. Amendment to Section 1.04 of the Lease.
The following is hereby added at the end of Section 1.04 of the Lease:
"The Property is part of a multi-tenant industrial/commercial real property
development of Landlord described in an exhibit attached hereto and
incorporated herein by this reference (the "Project") and consisting of
approximately 93,295 Rentable Square Feet. The Project includes the land,
the buildings and all other improvements located thereon, and the common
areas described in Paragraph 4.05(a) below.
B. Amendment to Section 4.05 of the Lease.
Section 4.05 of the Lease is hereby deleted and the following is inserted
in its place:
"4.05 Common Areas; Use, Maintenance and Costs."
(a) Common Areas. As used in this Lease, 'Common Areas" shall mean all
areas within the Project which are available for the common use of tenants of
the Project and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord may from time to time change the size, location, nature and use
of any of the Common Areas, including converting Common Areas into leasable
areas, constructing additional parking facilities (including parking structures)
in the Common Areas, and increasing or decreasing Common Area land and/or
facilities. Tenant acknowledges that such activities may result in occasional
inconvenience to Tenant from time to time. Such activities and changes shall be
expressly permitted if they do not materially affect Tenant's use of the
Property.
(b) Use of Common Areas. Tenant shall have the nonexclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations as Landlord may establish from time to
time. Tenant shall abide by such rules and regulations and shall use its best
efforts to cause others who use the Common Areas with Xxxxxx's expressed or
implied permission to abide by Landlord's rules and regulations. At any time,
Landlord may close any Common Areas to perform any acts in and to the Common
Areas as, in Landlord's judgment, may be desirable to improve the Project.
Tenant shall not, at any time, interfere with the rights of Landlord, other
tenants or any other person entitled to use the Common Areas.
(c) Specific Provision re: Vehicle Parking. Tenant shall be entitled
to use the vehicle parking spaces in the Project allocated to Tenant in Section
1.12 of the Lease without paying any additional rent. Tenant's parking shall be
limited to vehicles no larger than standard size automobiles or pickup utility
vehicles. Tenant shall not cause large trucks or other large vehicles to be
parked within the Project or on the adjacent public streets. Temporary parking
of large delivery vehicles in the Project may be permitted by the rules and
regulations established by Landlord. Vehicles shall be parked only in striped
parking spaces and not in driveways, loading areas or other locations not
specifically designated for parking. If Tenant parks more vehicles in the
parking area than the number set forth in Section 1.12 of the Lease, such
conduct shall be a breach of the Lease and Tenant shall pay a reasonable daily
charge for such additional vehicle.
18
(d) Maintenance of Common Areas. Landlord shall maintain the Common
Areas in good order, condition and repair and shall operate the Project, in
Landlord's sole discretion, as a first class industrial/commercial real property
development. Tenant shall pay Tenant's pro rata share (as defined below) of all
costs incurred by Landlord for the operation and maintenance of the Common
Areas. Common Area costs include, but are not limited to, costs and expenses for
the following: professional management fees paid to property managers not to
exceed a competitive rate (Xxxx Management Services, Inc. currently charges 2.3%
of gross rents plus an allocated portion of Xxxx'x office overhead); gardening
and landscaping; utilities, water and sewage charges; maintenance of signs
(other than Tenant's signs); premiums for liability, property damage, fire and
other types of casualty insurance on the Common Areas and worker's compensation
insurance; all real property taxes and assessments levied on or attributable to
the Common Areas and all Common Areas improvements; all personal property taxes
levied on or attributable to personal property used in connection with the
Common Areas; straight line depreciation on personal property owned by Landlord
which is consumed in the operation or maintenance of the Common Areas; rental or
lease payments paid by Landlord for rented or leased personal property used in
the operation or maintenance of the Common Areas; fees for required licenses and
permits; repairing, resurfacing, repaving, maintaining, painting, lighting,
cleaning, refuse removal, security and similar items; reserves for roof
replacement and exterior painting and other appropriate reserves; and the common
area charges assessed by the Canyon Park Business Center Owner's Association.
Landlord may cause any or all of such services to be provided by third parties.
Common area costs shall not include depreciation or real property which forms
part of the Common Areas. Landlord may, at Xxxxxxxx's election, estimate in
advance and charge to Tenant monthly as Common Area costs, all real property
taxes for which Tenant is liable under Paragraph 4.02 of the Lease, all
insurance premiums for which Tenant is liable under Paragraph 4.04 of the Lease,
and all maintenance and repair costs for which Tenant is liable under Section
6.03 of the Lease.
(e) Tenant's Share and Payment. Tenant shall pay Tenant's annual pro
rata share of all estimated Common Area costs, in advance, in monthly
installments on the first day of each month during the Lease Term (pro rated for
any fractional month). Tenant's pro rata share shall be calculated by dividing
the square foot area of the Property, as set forth in Section 1.04 of the Lease,
by the aggregate square foot area of the Project which is leased or held for
lease for the exclusive use by Tenants upon the date the computation is made.
When Xxxxxx takes possession of the Property, and at the commencement of each
subsequent calendar year, Landlord shall estimate Tenant's Share of Common Area
Costs. Landlord may adjust such estimates at any time and from time to time
based upon Xxxxxxxx's experience and reasonable anticipation of costs. If
Landlord anticipates that year-end Common Area costs will exceed estimated costs
by 5% or greater, Landlord shall make a mid-year adjustment of Common Area
charges within a reasonable period of time after determining that such increased
charges will be incurred. Such adjustments shall be effective as of the next
rent payment date after notice to Tenant. Within ninety (90) days after the end
of each calendar year of the Lease Term, Landlord shall deliver to Tenant a
statement prepared in accordance with generally accepted accounting principles
setting forth, in reasonable detail, the actual Common Area costs paid or
incurred by Landlord during the preceding calendar year and Xxxxxx's pro rata
share. Upon request, Landlord shall provide Tenant with reasonable supporting
documentation showing payment of Common Area costs. Upon receipt of such
statement, there shall be an adjustment between Landlord and Tenant with payment
to or credit given by Landlord (as the case may be) (with refund to Tenant if
applicable for adjustments after the end of the Lease Term) so that Landlord
shall receive the entire amount of Tenant's share of such costs and expenses for
such period. Any changes in the Common Area costs and/or the aggregate area
leased or held for lease for the exclusive use of all tenants of the Project
during the Lease Term shall be effective on the first day of the month after
such change occurs.
(f) Notwithstanding anything to the contrary in this Rider 1, so long
as Tenant and any subtenant(s) of Tenant that may be approved by Landlord is or
are the sole occupants of both buildings comprising the Project, then (i) Tenant
shall be entitled to restrict entry into the interior Common Areas of the
buildings by the public and (ii) Tenant shall be entitled to take over routine
maintenance of the interior Common Areas from Landlord. In such case, Tenant
shall maintain the interior Common Areas to the same extent as Landlord would
have otherwise have been obligated to maintain them and Tenant shall insure the
interior Common Areas as though they were part of the Property. Landlord shall
remain obligated to conduct any capital repairs or replacement of the interior
Common Areas. In the event Tenant assumes control over the routine maintenance
of the interior Common Areas, Tenant's Base Rent shall not be increased, and
Tenant's share of Common Area Costs shall be computed to reflect the costs that
Landlord no longer incurs with
19
respect to those areas. Landlord agrees that the provisions of this Subsection
(f) shall be applicable on a building-by-building basis within the Project (i.e.
to either building if Tenant occupies all of that building) if, but only if, the
control and accounting provisions of this Subsection (f) would not thereby
result in Landlord receiving less than full reimbursement for the Common Area
Costs properly chargeable to the Project (i.e. if separately allocating Common
Area Costs on one building would not result in Landlord's underrecovery of
Common Area Costs from Tenant's co-tenant in the other building). Landlord shall
use commercially reasonable efforts to allow application of this Subsection (f)
on a building-by-building basis.
(g) The Project consists of approximately 93,259 Rentable Square Feet.
Some Common Area Costs may be incurred by Landlord based on a larger parcel
(which is usually the Canyon Park Business Center), as in the case of insurance
and management fees. In such cases, the Common Area Costs incurred based on the
larger parcel shall be allocated between the Project and the larger parcel based
on the ratio that the rentable square feet of the Project bears to the rentable
square feet in the larger parcel, provided only that Landlord may specially
allocate individual expenses between the Project and the larger parcel where and
in the manner necessary, in Landlord's reasonable discretion, to accurately
reflect the actual consumption of the expense or service.
C. Amendment to Article Six of Lease
Sections 6.03 and 6.04 of the Lease are hereby deleted and the following
inserted in their place:
"Section 6.03 Landlord's Obligations.
(a) Except as provided in Article Seven (Damage and Destruction) and
Article Eight (Condemnation), Landlord shall keep the following in good order,
condition and repair: the foundations, except where altered by Tenant; exterior
walls and roof of the Property, except where penetrated by Xxxxxx's equipment.
Landlord shall review the condition of the roof annually to determine whether in
Landlord's reasonable discretion a roof replacement reserve should be
established. However, Landlord shall not be obliged to maintain or repair
windows, doors, plate glass or the interior surfaces of exterior walls. Landlord
shall have no obligation to make repairs under this Section 6.03 until a
reasonable time after receipt of written notice from Tenant for the need for
such repairs.
(b) If the Lease to which this Rider is attached is an SIR NET LEASE
or any other form of net lease, Tenant shall pay or reimburse Landlord for all
costs incurred by Landlord under Section 6.03(a) above.
Section 6.04 Tenant's Obligations.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions of
the Property (including structural (see paragraph 6.03), nonstructural,
interior, exterior and landscaped areas, portions, systems and equipment) in
good order, condition and repair. If any portion of the Property or any system
or equipment in the Property which Tenant is obligated to repair cannot be fully
repaired, Tenant shall promptly replace such portion of or system or equipment
in the Property, regardless of whether the benefit of such replacement extends
beyond the Lease Term. Tenant shall maintain a preventative maintenance contract
providing for the regular inspection and maintenance of the heating and air
conditioning system by a licensed heating and air conditioning contractor,
unless such equipment is maintained by Landlord pursuant to Section 6.03 above.
Except as provided in Sections 4.04 and 13.02, if any part of the Property or
the Project is damaged by any act or omission of Tenant, Tenant shall pay
Landlord the cost of repairing or replacing such damaged property, whether or
not Landlord would otherwise be obligated to pay the cost of maintaining or
repairing such property. It is the intention of Landlord and Tenant that, at all
times during the Lease Term, Tenant shall maintain the portions of the Property,
which it is obligated to maintain, in an attractive, first-class and fully
operating condition.
(b) All of Tenant's obligations under this Section 6.04 shall be
accomplished at Xxxxxx's sole expense. If Tenant fails to maintain or repair the
Property as required by this Section 6.04, Landlord may, upon ten (10) days'
prior notice to Tenant (except that no notice shall be required in the case of
an
20
emergency), enter the Property and perform such maintenance or repair on behalf
of Tenant. In such case, Tenant shall reimburse Landlord for all costs incurred
in performing such maintenance or repair immediately upon demand.
Attach site plan of Project as an exhibit. Cross-hatch the Property leased
on such exhibit or attach a separate exhibit showing the Property leased.
21
RIDER 2: OPTION TO RENEW/RIGHT OF FIRST
OPPORTUNITY
This Rider is attached to and made part of that certain lease dated between
WRC Properties, Inc., a Delaware corporation, as Landlord, and ICOS Corporation,
a Delaware corporation, as Tenant, covering the Property commonly known as
00000 - 00xx Xxx. S.E., Bothell, WA (the "Lease"). The terms used in this Rider
shall have the same definitions as set forth in the Lease. The provisions of
this Rider shall prevail over any inconsistent or conflicting provisions of the
Lease.
OPTION TO RENEW
Tenant is granted the right to extend the term of this Lease beyond the
expiration date of the initial term for one (1) successive term of forty-eight
(48) months (the "Extension Term"). Tenant may not exercise its Extension
Rights if it is then in default beyond any applicable cure period or if it has
ever been in default beyond any applicable cure period more than two (2) times
in any twelve (12) month period. Tenant may exercise its Extension Right by
delivering written notice thereof to Landlord not later than twelve (12) months
prior to the expiration of the initial term. In the Extended Term, all terms
and conditions of this Lease shall apply except (i) the Base Monthly Rent for
the first twenty-four (24) months of the Extended Term ninety-five percent (95%)
of the then prevailing market rate for a similar lease and term for similarly
situated and improved space in the Bothell-Woodinville High-Tech Industrial
Market (the market rent being referred to herein as the "Fair Market Rent" and
the 95% adjusted number being referred to herein as the "Extension Term Adjusted
Rent"), provided that in no event shall the Extension Term Adjusted Rent be less
than the Base Monthly Rent for the last month of immediately preceding term, and
(ii) at the beginning of the twenty-fifth (25th) month of the Extended Term,
Base Rent for the balance of the Extended Term shall be adjusted based upon the
increase in the Consumer Price Index, all Urban Consumers, for the
Seattle/Tacoma SMSA, published by the United States Department of Labor, Bureau
of Labor Statistics ("Index") which is in effect on the first day of the
Extended Term ("Beginning Index"). The corresponding index ("Extension Index")
which is in effect on the first day of the twenty-fifty (25th) month of the
Extended Term shall be used as a comparison in determining the amount of the
Base Rent Increase. In calculating the CPI increase, the Base Monthly Rent
shall be increased to equal the product achieved by multiplying the Base Monthly
Rent due with respect to that first paying month of the initial term by a
fraction, the numerator of which is the Extension Index and the denominator of
which is the Beginning Index. If the method of computing the Index is changed
from that in effect when the Beginning Index was established, then the Beginning
Index and all Extension Indexes shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If during the Term, the Index is (a) discontinued or (b)
revised without such a Conversion Factor being so published, such other
government index or computation with which it is replaced shall be used in order
to obtain substantially the same result as would be obtained if the Index had
not been discontinued or revised.
Extension Rights shall apply to all of the Property then under lease to
Tenant. Tenant's Extension Right is personal and may not be exercised by any
assignee or sublessee other than an affiliate of Tenant or a successor by merger
or consolidation.
If Landlord and Tenant are not able to agree on the Fair Market Rent
component of the Extension Term Adjusted Rent within thirty days after Xxxxxx's
notice of election to renew, then such Fair Market Rent shall be determined by
arbitration (which shall be governed by applicable state law on arbitrations) as
follows. Landlord and Tenant shall each select an appraiser with at least ten
years experience in the office/high-tech industrial market in the eastside area.
If the two appraisers are unable to agree within ten days after their selection,
they shall select a similarly qualified third appraiser (the "Neutral
Appraiser"). If the three appraisers are unable to agree unanimously on Fair
Market Rent within fourteen (14) days after appointment of the Neutral
Appraiser, the issue shall be resolved by the three appraisers in accordance
with the following procedure. The appraiser selected by each of the parties
shall state in writing his determination of the Fair Market Rent supported by
the reasons therefor with counterpart copies to each party. The appraisers shall
arrange for a simultaneous exchange of such proposed resolutions. The role of
the Neutral Appraiser shall be to select which of the two proposed resolutions
most closely approximates his determination of Fair Market Rent. The Neutral
Appraiser shall have no right to propose a middle ground or any modification of
either of the two proposed resolutions. The resolution he chooses as most
closely
22
approximating his determination shall constitute the decision of the appraisers
and be final and binding upon the parties. Each party shall bear the cost of its
own appraiser, and the non-prevailing party shall pay the costs of the Neutral
Appraiser.
23
RIDER NO. 3
EMISSIONS, STORAGE, USE AND
DISPOSAL OF WASTE
1. Compliance With Law
Notwithstanding any other provision in this Lease to the contrary, Tenant
shall comply with all applicable laws, statutes, ordinances, regulations, rules
and other governmental requirements in complying with its obligations under this
Lease, and in particular, those relating to the storage, use and disposal of
hazardous or toxic matter ("Environmental Laws").
2. Emissions
Tenant shall not violate any Environmental Law concerning emissions.
Specifically, but not by way of limitation, Tenant shall not:
(a) Violate any Environmental Law regarding vehicle emissions;
(b) Discharge, emit or permit to be discharged or emitted, in
violation of any Environmental Law, any liquid, solid or gaseous matter, or any
combination thereof, into the atmosphere, the ground or any body of water;
(c) Produce, or permit to be produced, in violation of any
Environmental Law, any intense glare, light or heat;
(d) Create, or permit to be created, in violation of any Environmental
Law, any sound pressure level which will interfere with the quiet enjoyment of
any real property outside the Property, or which will create a nuisance or
violate any governmental law, rule, regulation or requirement;
(e) Create, or permit to be created, in violation of any Environmental
Law, any ground vibration that is discernible outside the Property; or
(f) Transmit, receive or permit to be transmitted or received, in
violation of any Environmental Law, any electromagnetic, microwave or other
radiation.
3. Storage and Use
3.1 Storage
Subject to the uses permitted and prohibited to Tenant under this
Lease, Tenant shall comply with all Environmental Laws concerning storage of
hazardous or toxic substances or wastes. Specifically, but not by way of
limitation, where required by Environmental Laws, Tenant shall store in
appropriate leak-proof containers all solid, liquid or gaseous matter, or any
combination thereof, which matter, if discharged or emitted into the atmosphere,
the ground or any body of water, does or may violate any Environmental Law.
3.2 Use
In addition, Tenant shall not use, store or permit to remain on the
Property any solid, liquid or gaseous matter which is, or may become,
radioactive except in compliance with Environmental Laws.
24
4. Disposal of Waste
4.1 Refuse Disposal
Tenant shall not keep any trash, garbage, waste or other refuse on the
Property except in sanitary containers and shall regularly and frequently remove
same from the Property. Tenant shall keep all incinerators, containers or other
equipment used for storage or disposal of such materials in a clean and sanitary
condition.
4.2 Sewage Disposal
Tenant shall properly dispose of all sanitary sewage and shall not use
the sewage disposal system (a) for the disposal of anything except sanitary
sewage or (b) for disposal of materials in excess of the lesser of the amount
(i) reasonably contemplated by the uses permitted under this Lease or (ii)
permitted by any governmental entity. Tenant shall keep the sewage disposal
system free of all obstructions and in good operating condition.
4.3 Disposal of Other Waste
Tenant shall properly dispose of all other waste or other matter
delivered to, stored upon, located upon or within, used on or removed from the
Property in compliance with Environmental Laws.
5. Information
Upon request, but no more frequently than quarterly, Tenant shall provide
Landlord with copies of all reports regarding hazardous or toxic materials in
the Property that Tenant has provided to any governmental agency in the previous
quarter. In the event of any accident, spill or other incident involving
hazardous or toxic matter that Tenant is required to report to any governmental
agency, Tenant shall report the same to Landlord as promptly as is practicable
under the circumstances and supply Landlord with copies of all information and
reports provided to any governmental agency. All information described herein
shall be provided to Landlord regardless of any claim by Xxxxxx that it is
confidential or privileged, provided that Landlord shall not publish or disclose
the information to any third party.
6. Indemnification
Tenant shall defend, indemnify and hold Landlord harmless from any loss,
claim, liability or expense, including attorneys' fees and costs, arising out of
or in connection with its failure to observe or comply with the provisions of
this Lease.
25
