Contract
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COMMERCIAL LEASE By and Between Gemdale Aperture Phase I, LLC a Delaware limited liability company “Landlord” and Neurocrine Biosciences, Inc., a Delaware corporation, “Tenant” Dated: February , 2022 Exhibit 10.1
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i. Basic Lease Information A. Lease Date: B. Landlord: C. Landlord’s Address: D. Tenant: February , 2022 Gemdale Aperture Phase I, LLC, a Delaware limited liability company Gemdale Aperture Phase I, LLC 000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxx 00000 Attention: Property Management With an email copy, which shall not constitute notice, to: Connor XxXxxxxx, Esq. XxXxxxxx Law Group, P.C. xxxxxx@xxxxxxxxxxx.xxx Neurocrine Biosciences, Inc., a Delaware corporation E. Tenant’s Address: Prior to occupancy: Neurocrine Biosciences, Inc. 00000 Xx Xxxxxx Xxxx Xxx Xxxxx, Xxxxxxxxxx 00000 Attn: Chief Legal Officer After occupancy: Neurocrine Biosciences, Inc. 0000 Xxxxxxxx Xxxx Xxxxx Xxx Xxxxx, Xxxxxxxxxx 00000 Attention: Chief Legal Officer In each case, with a copy to: Xxxxxx LLP 0000 Xxxxxxxx Xxxx Xxx Xxxxx, Xxxxxxxxxx 00000 Attn: Xxxxx X. Xxxxxxxx F. Guarantor: None. G. Property or Project: A five (5) building campus, plus structured parking, situated on approximately 15.72 acres of land, consisting of approximately 535,246 gross square feet (excluding any gross square footage in the Phase 3 Premises which is subject to Section 40.2 below), located on a parcel of improved real property located at 0000 Xxxxxxxx Xxxx Xxxxx, xx xxx Xxxx xx Xxx Xxxxx, Xxxxxx of San Diego, State of California, as delineated in the attached Exhibit A. H. Building or Buildings: “Building 1” is that certain 4-story building located at the Project, containing approximately 123,962 gross square feet of space (which includes 1,468 gross square feet of the CUP (as defined in Section 1.5.5 of the Work Letter)), to be determined in accordance with Section 1.5, as shown as Building 1 on
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ii. the site plan attached hereto as Exhibit A. Subject to Section 1.5, approximately 2,962 gross square feet of the Fitness Center (defined below) will be allocated to Building 1. “Building 2” is that certain 4.5-story building located at the Project, containing approximately 109,700 gross square feet of space (which includes 1,300 gross square feet of the CUP), to be determined in accordance with Section 1.5, as shown as Building 2 on the site plan attached hereto as Exhibit A. Subject to Section 1.5, approximately 2,622 gross square feet of the Fitness Center will be allocated to Building 2. “Building 3” is that certain 4-story building to be constructed by Landlord pursuant to the Work Letter attached as Exhibit B (the “Work Letter”) to contain approximately 166,238 gross square feet of space (which includes 1,948 gross square feet of the CUP), to be determined in accordance with Section 1.5, as shown as Building 3 on the site plan attached hereto as Exhibit A. Building 3 will contain subterranean parking shared with Building 4. Subject to Section 1.5, approximately 3,929 gross square feet of the Fitness Center will be allocated to Building 3. “Building 4” is that certain 4-story building to be constructed by Landlord pursuant to the Work Letter to contain approximately 122,928 gross square feet of space (which includes 1,440 gross square feet of the CUP), to be determined in accordance with Section 1.5, as shown as Building 4 on the site plan attached hereto as Exhibit A. Building 4 will contain subterranean parking shared with Building 3. Subject to Section 1.5, approximately 2,905 gross square feet of the Fitness Center will be allocated to Building 4. “Building 5” is that certain building to be designed and constructed by Landlord pursuant to Section 40.2 below and the Work Letter, to contain a minimum of approximately 121,424 gross square feet of space and a maximum of five (5) floors, to be determined in accordance with Sections 1.5 and 40.2, as preliminarily shown as Building 5 on the site plan attached hereto as Exhibit A. I. Premises: Initially, and from and after the Phase 1 Delivery Date, a total of approximately 233,662 gross square feet of space (inclusive of the square footage allocable to the CUP), to be determined in accordance with Section 1.5, consisting of the entirety of Building 1 and Building 2 and the CUP, all as set forth below and as more particularly identified in Exhibit A attached hereto (the “Phase 1 Premises”). For so long as Tenant is the Sole Occupant (defined below), and from and after the Fitness Center Delivery Date (as defined in Section 3.6.5 of the Work Letter), the Premises shall be expanded to include an additional approximately 12,418 gross square feet, to be determined in accordance with Section 1.5, consisting of the Fitness Center, a general description of which is included in the Phase 2 Basis of Design (as defined in Section 3.3.1 of the Work Letter), and the location of which is identified in Exhibit A attached hereto (the “Fitness Center”). From and after the Delivery Date (as defined in Section 3.5.3 of the Work Letter) for Phase 2, the Premises shall be expanded to include an additional approximately 289,166 gross square feet, to be determined in accordance with Section 1.5, consisting of the entirety of Building 3 and Building 4, all as set forth below and as more particularly identified in Exhibit A attached hereto (the “Phase 2 Premises”).
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iii. If Tenant validly exercises the Expansion Option (as defined in Section 40.2), then, subject to Section 40.2, upon the Phase 3 Delivery Date, the Premises shall be expanded to contain a minimum of approximately 121,424 gross square feet, to be determined in accordance with Sections 1.5 and 40.2, consisting of the entirety of Building 5 (the “Phase 3 Premises”). Xxx Xxxxx 0 Xxxxxxxx, Xxxxx 0 Premises, and Phase 3 Premises, to the extent a part of the premises leased by Tenant after the applicable Delivery Date, shall be collectively referred to herein as the “Premises”. The Amenities (as that term is defined in Section 38 below) shall be included in the gross square footage of the applicable Phase of the Premises. The gross square feet of the Xxxxx 0 Xxxxxxxx, Xxxxx 0 Premises and Phase 3 Premises, as applicable, shall be determined in accordance with the Measurement Standard and the process in Section 1.5 below. J. Parking: The “Phase 1 Parking” shall consist of approximately 148 surface parking stalls and 1,222 parking stalls in structured parking, for a total of approximately 1,370 combined stalls. As part of the parking structure parking, Landlord shall provide, at Landlord’s sole cost and expense, ten (10) EV Stations. Additional EV Stations may be added by Tenant in accordance with Section 42 below. The “Phase 2 Parking” shall consist of 70 subterranean parking stalls exclusive to Buildings 3 and 4, as well as an additional 11 surface parking stalls throughout the site and 68 parking spaces located in a surface parking lot immediately adjacent to the existing parking structure as further depicted in the Preliminary Premises Site Plan (attached to the Work Letter as Schedule A-1). The number of parking stalls contained in the Phase 1 Parking and Phase 2 Parking, respectively, are estimates, and Landlord shall not be in breach of this Lease provided Landlord provides a minimum of 1,350 parking stalls in Phase 1 Parking, and 1,475 parking stalls total after delivery of Phase 2 Parking. Landlord’s obligation to deliver parking shall be part of “Landlord’s Project Work” (as that term is defined in Section 1.5.3 of the Work Letter). Landlord will use commercially reasonable efforts to not voluntarily reduce, or permit a reduction in, anticipated parking counts in excess of the minimum, while Tenant acknowledges that such reductions may result from permit or regulatory requirements, design requirements, Tenant Requested Changes (as defined in Section 3.4.2 of the Work Letter) or other circumstances beyond the reasonable control of Landlord. K. Phases: The Phase 1 Premises and Phase 1 Parking shall be collectively referred to as “Phase 1”; the Phase 2 Premises, and, to the extent included in Phase 2, the Phase 2 Parking shall be collectively referred to as “Phase 2”; and, if Tenant exercises the Expansion Option and subject to Section 40.2, the Phase 3 Premises, and, to the extent included in Phase 3, the Phase 2 Parking shall be collectively referred to as “Xxxxx 0”. Xxxxx 0, Xxxxx 2, and Phase 3 may be referred to individually as a “Phase” and collectively as the “Phases”. L. Initial Term: The period commencing on the Phase 1 Delivery Date and ending on the Expiration Date which is to be approximately one hundred sixty three (163) months after the Phase 1 Lease Commencement Date, subject to extension in connection with Tenant’s exercise of the Expansion Option pursuant to Section 40.2 below. The Initial Term for the Phase 2 Premises shall be coterminous with the Initial Term for the Phase 1 Premises. Should Tenant
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v. Phase 2 Delivery Date (the “Phase 2 Lease Commencement Date” and item (iii) being the “Phase 2 Lease Commencement Date Limit”). The lease commencement date for the Phase 3 Premises, subject to Section 40.2.4 below, the earlier of (i) Tenant’s receipt of a Certificate of Occupancy for the Phase 3 Premises, (ii) the date Tenant commences business operations in all or a portion of the Phase 3 Premises, or (iii) on the date that is nine (9) months after the Phase 3 Delivery Date (the “Phase 3 Lease Commencement Date” and item (iii) being the “Phase 3 Lease Commencement Date Limit”). Each of the foregoing lease commencement dates are individually a “Lease Commencement Date” and collectively as the “Lease Commencement Dates”. The outside deadlines for commencement dates in each item (iii) above are individually a “Lease Commencement Date Limit” and collectively the “Lease Commencement Date Limits.” P. Rent Commencement Date; Abated Rent: Subject to adjustment for Tenant Delays (as defined in Section 2.2.1 of the Work Letter) and Force Majeure Delays and Permit Delays (each as defined in Section 2.3.1 of the Work Letter and subject to Section 2.3.2 of the Work Letter), Tenant’s obligation to pay Rent shall commence for the Phase 1 Premises on the date that is ten (10) months after the Phase 1 Lease Commencement Date (the “Phase 1 Rent Commencement Date”). The period between the Phase 1 Lease Commencement Date and the Phase 1 Rent Commencement Date shall be referred to as the “Phase 1 Abatement Period”. The total abatement of Base Rent for the Phase 1 Abatement Period shall be set forth in confirmation amendment substantially in the form of Exhibit C, calculated in accordance with the gross square footage of the Phase 1 Premises after a Confirmation of Measurements (the “Phase 1 Abated Rent”). Tenant’s obligation to pay Additional Rent for the Fitness Center shall commence on the Fitness Center Delivery Date, and Tenant’s obligation to pay Base Rent for the Fitness Center shall commence for the Fitness Center on the date that is ten (10) months after the Fitness Center Delivery Date (“Fitness Center Base Rent Commencement Date”). The period between the Fitness Center Delivery Date and the Fitness Center Base Rent Commencement Date shall be referred to as the “Fitness Center Abatement Period”. The total abatement of Base Rent for the Fitness Center Abatement Period shall be set forth in confirmation amendment substantially in the form of Exhibit C, calculated in accordance with the gross square footage of the Fitness Center after a Confirmation of Measurements (the “Fitness Center Abated Rent”). Subject to adjustment for Tenant Delays, Force Majeure Delays and Permit Delays, Tenant’s obligation to pay Rent shall commence for the Phase 2 Premises on the date that is ten (10) months after the Phase 2 Lease Commencement Date (the “Phase 2 Rent Commencement Date”). The period between the Phase 2 Lease Commencement Date and the Phase 2 Rent Commencement Date shall be referred to as the “Phase 2 Abatement Period”. The total abatement of Base Rent for the Phase 2 Abatement Period shall be set forth in confirmation amendment substantially in the form of Exhibit C, calculated in accordance with the gross square footage of the Phase 2 Premises after a Confirmation of Measurements (the “Phase 2 Abated Rent”). Subject to adjustment for Tenant Delays, Force Majeure Delays and Permit Delays, Tenant’s obligation to pay Rent shall commence for the Phase 3
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1. COMMERCIAL LEASE The Basic Lease Information set forth on Pages i through vi and this Commercial Lease (the “Lease”) are and shall be construed as a single instrument. 1. PREMISES; BUILDING; PROJECT AND COMMON AREAS. 1.1 The Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the premises set forth in Paragraph I of the Basic Lease Information (the “Premises”). The outline of the Buildings and the Project are depicted on the attached Exhibit A. The parties hereto agree that the lease of the Premises is upon and subject to the terms, covenants and conditions herein set forth, and Tenant covenants as a material part of the consideration for this Lease to keep and perform each and all of such terms, covenants and conditions by it to be kept and performed and that this Lease is made upon the condition of such performance. The parties hereto hereby acknowledge that the purpose of Exhibit A is to show the approximate location of the Buildings only, and such Exhibit is not meant to constitute an agreement, representation or warranty as to the construction of the Premises, the precise area thereof or the specific location of the “Common Areas,” as that term is defined in Section 1.3, below, or the elements thereof or of the accessways to the Premises or the “Project,” as that term is defined in Section 1.2, below, provided however that the Building footprints, site access, parking areas and common areas shall be substantially as depicted on Exhibit A and shall materially conform to the applicable Construction Documents (as such term is defined in the Work Letter). Except as specifically set forth in this Lease and in the Work Letter, Landlord shall not be obligated to provide or pay for any improvement work or services related to the improvement of the Premises, the Buildings or the Project. Landlord shall be deemed to have delivered (i) the Phase 1 Premises to Tenant as of the Lease Date (or such later date that Tenant delivers the insurance certificates as required by Section 3.1 below), and (ii) the Phase 2 Premises or Phase 3 Premises, as applicable, on the date that the Landlord’s Base Building Work achieves Delivery Condition (as defined in Section 3.5.3 of the Work Letter) (in each instance, the “Delivery Date”). Tenant also acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty regarding the condition of the Premises, the Buildings or the Project or with respect to the suitability of any of the foregoing for the conduct of Tenant’s business. The taking of possession of the applicable Premises by Tenant after the applicable Hand-off Inspection shall conclusively establish that the applicable Premises and Building(s) were at such time in good and sanitary order, condition and repair. Subject to the terms of this Lease and applicable Laws, and except in the case of an emergency, Tenant shall have access to the Premises 24 hours per day, 7 days per week. 1.2 The Building and The Project. The Premises constitutes the buildings set forth in Paragraph H of the Basic Lease Information (collectively, the “Buildings”, and each, a “Building”). The Buildings are part of an office/laboratory project currently known as “APERTURE DEL MAR.” The term “Project,” as used in this Lease, shall mean (i) the Buildings and the Common Areas, and (ii) the land (which is improved with landscaping, parking facilities and other improvements) upon which the Buildings and the Common Areas are located. 1.3 Common Areas. Subject to Section 1.4, below, Tenant shall have the non-exclusive right to use in common with other tenants in the Project, if any, and subject to Landlord’s rules and regulations, if applicable, those portions of the Project which are provided, from time to time, for use in common by Landlord, Tenant and any other tenants of the Project (such areas, together with such other portions of the Project designated by Landlord, in its discretion, are collectively referred to herein as the “Common Areas”). Landlord shall maintain and operate the Common Areas in a first-class manner. Subject to the next sentence and the terms of Section 1.4, below, Landlord reserves the right to close temporarily, make alterations or additions to, or change the location of elements of the Project and the Common Areas. Notwithstanding the foregoing, for so long as Tenant is the Sole Occupant (as defined in Section 1.4), no Common Areas shall be deemed to exist in the Project, and during such period references in this Lease to Common Areas shall mean and refer to areas of the Project located outside of the Buildings. In addition, if the Premises includes, or Landlord otherwise permits Tenant’s use of, any exterior areas, Tenant may (at Tenant’s sole risk and cost) provide for and arrange in such exterior area tables, chairs, umbrellas,
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2. waste receptacles and other customary items, provided that such exterior area use shall in no event adversely affect pedestrian or vehicular traffic in other portions of the Common Area. 1.4 Exclusive Control. Notwithstanding anything to the contrary set forth in this Lease, for so long as Tenant (or its Non-Transferee) is leasing one hundred percent (100%) of the then-existing Premises (during such time, Tenant is the “Sole Occupant”), but subject to all Legal Requirements and the terms and conditions of this Lease, including without limitation Landlord’s rights and obligations set forth in this Lease, (i) Tenant shall have exclusive use of the Project, (ii) Landlord shall not permit the use of the Project, or its parking facilities by third parties (subject to the rights of easement holders with respect to matters of record), (iii) Tenant shall have exclusive use of all parking facilities located at the Project, including, without limitation, the right to stripe parking spaces as reserved, control access to the parking facilities, issue reasonable rules and regulations for the parking facilities, establish a permit or entry system, and exclude third parties from using the parking facilities (including by towing unauthorized vehicles), provided that Tenant does not exclude Landlord or its agents from the parking facilities or charge Landlord or its agents parking fees, and (iv) Tenant shall have the right to control access to the Project site, including, without limitation, by installing gates or other barriers at vehicular or pedestrian entries to the Project (the “Access Control Improvements”), provided that (a) any such installation shall be performed as an Alteration (or as part of the Tenant Improvements, provided that (1) the Access Control Improvements shall be deemed “Specialty Alterations” (as defined in Section 10.1.2), and (2) Landlord shall have the right to take ownership and control to of the Access Control Improvements if Tenant or its Non-Transferee ever ceases to be the Sole Occupant) and shall be subject to Landlord’s reasonable approval, (b) Tenant does not exclude Landlord or its agents from the Project, and (c) Tenant may not interfere with vehicular and/or pedestrian access to the Project (other than as is inherent to the Access Control Improvements). All costs and expenses associated with the removal of the Access Control Improvements and the repair of any damage to the Project resulting from the installation and/or removal of same shall be borne solely by Tenant. Notwithstanding anything to the contrary contained herein, Landlord shall not be directly or indirectly liable to Tenant, any Tenant Parties or any other person and Tenant hereby waives any and all claims against and releases Landlord from any and all claims arising as a consequence of or related to the Access Control Improvements, or the failure thereof. If the Access Control Improvements or Tenant’s exercise of its rights under this Section 1.4 shall in any way impede, interfere with, or delay the completion of any of Landlord’s Work, and such is not remedied within 24 hours after notice to Tenant of same, then such shall constitute a Tenant Delay as defined in Section 2.2.1 of the Work Letter. Any use of portions of the Premises by Permitted Users or Non-Transferees, or any subleasing of less than the entire Premises, shall not affect Tenant or its Non-Transferee’s status as the Sole Occupant. 1.5 Confirmation of Measurements. Within sixty (60) days after the later of (i) the Delivery Date for a Phase, or (ii) the completion of Landlord’s Project Work, but prior to the Rent Commencement Date for such Phase, Xxxxxxxxx Systems (“Measurement Architect”) shall calculate and certify in writing to Landlord and Tenant the gross square feet of the Base Building(s) of such Phase (a “Confirmation of Measurements”) in accordance with the Building Owners & Manager’s Association standards (ANSI/BOMA-Z.65 3-2018 Gross Area Standard) and in accordance with the Xxxxxxxxx Building Report dated January 13, 2022 and approved January 14, 2022 (“Measurement Standard”). The measurement of gross square feet as determined by the Measurement Architect in accordance with the Measurement Standard shall be referred to as the gross square feet or gross square footage for all purposes of this Lease, and shall not be changed unless a Building is thereafter physically expanded or contracted. All Confirmation of Measurements made in accordance with this Section 1.5 shall be final, conclusive and binding on Landlord and Tenant, absent manifest error. If Tenant believes that the Measurement Architect has made a material miscalculation (i.e. an error of greater than 2,500 gross square feet with respect to any Phase) in a Confirmation of Measurements, Tenant may request the Measurement Architect to investigate the error as described by Tenant in reasonable detail, and make any adjustments to the Confirmation of Measurements as the Measurement Architect may determine, which determination shall thereafter be binding on Landlord and Tenant. 1.6 Phase 2 Premises; Fitness Center;. The Premises shall be expanded to include the gross square footage of the “Phase 2 Premises” and the “Fitness Center” as each such term is defined in Paragraph I of the Basic Lease Information, as set forth in this Section 1.6 and this Lease.
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8. the Phase 1 Pre-Paid Rent as set forth in Paragraph T of the Basic Lease Information, (ii) all insurance certificates evidencing the insurance required to be obtained by Tenant pursuant to Section 12 of this Lease and as set forth in the Work Letter, and (iii) the completed Environmental Questionnaire. Notwithstanding the foregoing, Tenant may have up to two (2) weeks after the Lease Date to deliver to Landlord all insurance certificates required by item (ii) in the immediately preceding sentence, but Landlord has no obligation to deliver possession of the Premises to Tenant until all such insurance certificates are received. Base Rent shall commence on the Phase 1 Rent Commencement Date and shall increase by three percent (3%) per annum during the Initial Term with the first escalation occurring on the first (1st) anniversary of the Phase 1 Rent Commencement Date and such escalations shall apply to all applicable Phases later included in the Premises. The term “Rent” whenever used herein refers to the aggregate of Base Rent and Additional Rent (as defined in Section 4 below). The Rent for any fractional part of a calendar month at the commencement or expiration or termination of the Term shall be a prorated amount of the Rent for a full calendar month based upon a thirty (30) day month. Any prorated Rent for the first month of the Term shall be paid on the applicable Rent Commencement Date, and any prorated Rent for the final calendar month hereof shall be paid on the first day of the calendar month in which the Expiration Date occurs. 3.2 Base Rent for Extended Term(s). The annual Base Rent payable by Tenant during each Extended Term (the “Option Rent”) shall be equal to the "Fair Rental Value," as that term is defined below, for the Premises as of the commencement date of the applicable Extended Term. The "Fair Rental Value," as used in this Lease, shall be equal to the annual rent per gross square foot (including additional rent and considering any "base year" or "expense stop" applicable thereto), including all escalations, at which tenants (pursuant to leases consummated within the twelve (12) month period preceding the first day of the applicable Extension Term), are leasing non-sublease, non-encumbered, non-equity space which is not significantly greater or smaller in size than the subject space, for a comparable lease term, in an arm's length transaction, which comparable space is located in the "Comparable Buildings," as that term is defined below (transactions identified by Landlord as satisfying the foregoing criteria shall be known as the "Comparable Transactions"), taking into consideration (a) the value of all tenant improvements and alterations in the Premises which are, or will be upon the expiration of the Term, Landlord’s Property, (b) comparable lease terms (including that no construction period or landlord improvement work will occur at the beginning of the term), and (c) the following concessions (the "Concessions"): (i) rental abatement concessions, if any, being granted such tenants in connection with such comparable space; (ii) tenant improvements or allowances provided or to be provided for such comparable space, and taking into account the value, if any, of the existing improvements in the subject space, such value to be based upon the age, condition, design, quality of finishes and layout of the improvements and the extent to which the same can be utilized by a general life sciences user other than Tenant (e.g. assuming landlord’s delivery of a completed “warm shell” intended for laboratory and research & development uses); and (iii) other reasonable monetary concessions being granted such tenants in connection with such comparable space (including, without limitation, discounted or free parking); provided, however, that in calculating the Fair Rental Value, no consideration shall be given to (x) the fact that Landlord is or is not required to pay a real estate brokerage commission in connection with Tenant's exercise of an Option, or the fact that landlords are or are not paying real estate brokerage commissions in connection with such comparable space, and (y) any period of rental abatement, if any, granted to tenants in comparable transactions in connection with the design, permitting and construction of tenant improvements in such comparable spaces. The Concessions (A) shall be reflected in the effective rental rate (which effective rental rate shall take into consideration the total dollar value of such Concessions as amortized on a straight-line basis over the applicable term of the Comparable Transaction (in which case such Concessions evidenced in the effective rental rate shall not be granted to Tenant)) payable by Tenant, or (B) at Landlord’s election, all such Concessions shall be granted to Tenant in kind. The term "Comparable Buildings" shall mean Class A life sciences office and laboratory buildings which are comparable to the Premises (including comparable laboratory services, amenities, views, building age and parking facilities) and located in Xxxxxx Xxxxx, UTC, and/or Del Mar Heights/Highway 56 Corridor (but as to Del Mar Heights/Highway 56 Corridor including only areas to the West, and not to the East, of the Project). The Option Rent shall escalate annually in accordance with the Fair Rental Value determination, but by no less than three percent (3%), with the first escalation on the first anniversary of the commencement of the applicable Extended Term. In the event Tenant timely and appropriately exercises an Option, Landlord shall notify Tenant of Landlord's determination of the Option Rent on or before ninety (90) days prior to the Lease Expiration Date. If Tenant,
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9. on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord's determination of the Option Rent, in good faith objects to Landlord's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement on or before the commencement of the Extended Term (the "Outside Agreement Date"), then each party shall make a separate determination of the Option Rent, within five (5) days, and such determinations shall be submitted to arbitration in accordance with Sections 3.2.1 through 3.2.8, below. If Tenant fails to object to Landlord's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have accepted Landlord's determination of Option Rent. 3.2.1 Landlord and Tenant shall each appoint one arbitrator who shall be, at the option of the appointing party, be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the leasing or appraisal, as the case may be, of Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord's or Tenant's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of this Section 3.2, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed "Advocate Arbitrators." 3.2.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant’s counsel. 3.2.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord's or Tenant's submitted Option Rent as the determination that more closely approximates Fair Rental Value, and shall notify Landlord and Tenant thereof. 3.2.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant. 3.2.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 3.2.1 above, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. 3.2.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days following the date of the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 3.2.1 above, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator. 3.2.7 The cost of the arbitration shall be paid by Landlord and Tenant equally. 3.2.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Extended Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
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14. waiver of Landlord’s right to collect any of Tenant’s underpayment at any time during the Term of the Lease or at any time after the expiration or earlier termination of this Lease. 4.4 Audit. Tenant shall have the right, at Tenant's cost, after reasonable notice to Landlord, to have Tenant's authorized employees or agents inspect, at Landlord's or, at Landlord’s election, Landlord’s property manager’s main corporate office in southern California, during normal business hours, Landlord's or, at Landlord’s election, Landlord’s property manager’s books, records and supporting documents concerning the Operating Expenses and Tax Expenses set forth in any Expense Statement delivered by Landlord to Tenant pursuant to Section 4.3. above; provided, however, Tenant shall have no right to conduct such inspection or object to or otherwise dispute the amount of the Operating Expenses or Tax Expenses set forth in any such Statement, unless Tenant notifies Landlord of such inspection objection and dispute, completes such inspection within one hundred twenty (120) days immediately following Landlord's delivery of an Expense Statement (the "Review Period"); provided, further, that notwithstanding any such timely inspection, objection, dispute, and/or audit, and as a condition precedent to Tenant's exercise of its right of inspection, objection, dispute, and/or audit as set forth in this Section 4.4, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Expense Statement. However, such payment may be made under protest pending the outcome of any audit. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord's operation and management of the Project. If after such inspection and/or request for documentation, Tenant disputes the amount of the Operating Expenses or Tax Expenses set forth in the Statement, Tenant shall have the right, but not the obligation, within the Review Period, to cause an independent certified public accountant which is not paid on a contingency basis and which is mutually approved by Landlord and Tenant (the "Accountant") to complete an audit of Landlord's books and records to determine the proper amount of the Operating Expenses and Tax Expenses incurred and amounts payable by Tenant for the year which is the subject of such Expense Statement. Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the identity of the Accountant within thirty (30) days after Tenant notifies Landlord that Tenant desires an audit to be performed, then the Accountant shall be one of the "Big 4" accounting firms selected by Landlord, which is not paid on a contingency basis and is not, and has not been, otherwise employed or retained by Landlord. If such audit reveals that Landlord has over-charged Tenant, then within thirty (30) days after the results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the audit reveals that the Tenant was under- charged, then within thirty (30) days after the results of such audit are made available to Tenant, Tenant shall reimburse to Landlord the amount of such under-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord's original Expense Statement which was the subject of such audit was in error to Tenant's disadvantage by eight percent (8%) or more of the total Operating Expenses and Taxes Expenses which was the subject of the audit (in which case Landlord shall pay the cost of such audit). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning the correctness of any Expense Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to object thereto, conduct and complete its inspection and have the Accountant conduct and complete the audit as described above prior to the expiration of the Review Period shall be conclusively deemed Tenant's approval of the Expense Statement in question and the amount of Operating Expenses and Tax Expenses, subject to Tenant's right to review Statements for the prior twelve (12) months. In connection with any inspection and/or audit conducted by Tenant pursuant to this Section 4.4, Tenant agrees to keep, and to cause all of Tenant's employees and consultants and the Accountant to keep, all of Landlord's books and records and the audit, and all information pertaining thereto and the results thereof, strictly confidential, and in connection therewith, Tenant shall cause such employees, consultants and the Accountant to execute such reasonable confidentiality agreements as Landlord may require prior to conducting any such inspections and/or audits. Notwithstanding the foregoing, for any period where Tenant is the Sole Occupant and is Self-Managing the Project, Tenant’s right to audit Landlord’s books and records shall be limited to capital expenditures permitted by Section 4.1.1 above or Section 11.2 below, any costs incurred in the categories specific in Section 4.1.1(ix) or (xiii) above, Tax Expenses, and the costs of insurance coverages required to be carried by Landlord as set forth in Section 12.5.1 below.
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15. 4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible. 4.5.1 Tenant shall be liable for and shall pay before delinquency, taxes levied or assessed against Tenant’s equipment, furniture, fixtures and any other personal property (including any of Tenant’s equipment or other property that may be located on or about the Project other than inside the Premises (collectively, “Tenant’s Off-Premises Equipment”)) located in or about the Premises or the Project. If any such taxes on Tenant’s equipment, furniture, fixtures and any other personal property are levied against Landlord or Landlord’s property or if the assessed value of Landlord’s property is increased by the inclusion therein of a value placed upon such equipment, furniture, fixtures or any other personal property and if Landlord pays the taxes based upon such increased assessment, which Landlord shall have the right to do regardless of the validity thereof but only under proper protest if requested by Tenant, Tenant shall upon demand repay to Landlord the taxes so levied against Landlord or the proportion of such taxes resulting from such increase in the assessment, as the case may be. 4.5.2 Notwithstanding any contrary provision of this Lease, Tenant shall pay prior to delinquency any (i) rent tax or sales tax, service tax, transfer tax or value added tax, or any other applicable tax on the rent or services herein or otherwise respecting this Lease; (ii) taxes assessed upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of the Project; or (iii) taxes assessed upon this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises. 5. LETTER OF CREDIT. 5.1 Delivery of Letter of Credit. Tenant shall deliver to Landlord within ten (10) business days of Tenant’s execution of this Lease, as protection for the full and faithful performance by Tenant of all of its obligations under this Lease and for all losses and damages Landlord may suffer (or which Landlord reasonably estimates that it may suffer) as a result of any breach or default by Tenant under this Lease, an unconditional, clean, irrevocable negotiable standby letter of credit (the “Letter of Credit”) in the amount set forth in Paragraph U of the Basic Lease Information (the “Letter of Credit Amount”), in the form attached hereto as Exhibit D, payable in the City of San Diego or City of Los Angeles, California, running in favor of Landlord, issued by a solvent, nationally recognized commercial bank (the “Bank”) that is acceptable to Landlord in its sole discretion and (1) is chartered under the laws of the United States, any State thereof or the District of Columbia, and which is insured by the Federal Deposit Insurance Corporation; and (2) issued by a solvent nationally recognized bank with a long term rating of Baa3 or higher, as rated by Xxxxx’x Investors Service and/or a long term rating of BBB or higher as rated by Standard & Poor’s, under the supervision of the Superintendent of Banks of the State of California, or a National Banking Association (the “Letter of Credit Issuer Requirements”), and otherwise conforming in all respects to the requirements of this Section 5. Xxxxx Fargo Bank is deemed an approved Bank as of the Lease Date. Tenant shall pay all expenses, points and/or fees incurred by Tenant in obtaining and maintaining the Letter of Credit. In the event of an assignment by Tenant of its interest in the Lease, the acceptance of any replacement or substitute letter of credit by Landlord from the assignee shall be subject to Landlord’s prior written approval, in Landlord’s sole and absolute discretion, and the attorney’s fees incurred by Landlord in connection with such determination shall be payable by Tenant to Landlord upon demand. Tenant shall have no right to voluntarily replace the Letter of Credit without Landlord’s prior written approval, in Landlord’s sole and absolute discretion. Tenant shall be responsible for the payment of any and all out-of-pocket costs incurred by Landlord relating to the review of any replacement Letter of Credit (including, without limitation, reasonable attorneys’ fees), which replacement is required pursuant to this Section or is otherwise requested by Tenant, and such attorneys’ fees shall be payable by Tenant to Landlord upon demand. If Landlord approves any replacement or substitute letter of credit, Landlord shall return the Letter of Credit then held by Landlord within ten business (10) business days following Landlord’s receipt of the replacement or substitute Letter of Credit tendered by Tenant. 5.2 In General. The Letter of Credit shall be “callable” at sight, permit partial draws and multiple presentations and drawings, and be otherwise subject to the Uniform Customs and Practices for Documentary Credits (1993-Rev), International Chamber of Commerce Publication #500, or the
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17. 5.3 Application of Letter of Credit. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit as protection for the full and faithful performance by Tenant of all of its obligations under this Lease and for all losses and damages Landlord may suffer (or which Landlord reasonably estimates that it may suffer) as a result of any breach or default by Tenant under this Lease. Landlord, or its then managing agent, shall have the right to draw down an amount up to the face amount of the Letter of Credit if any of the following shall have occurred or be applicable: (A) such amount is due to Landlord under the terms and conditions of this Lease following a Default by Tenant, or (B) Tenant has filed a voluntary petition under the U. S. Bankruptcy Code or any state bankruptcy code (collectively, the “Bankruptcy Code”), or (C) an involuntary petition has been filed against Tenant under the Bankruptcy Code, or (D) the Bank has notified Landlord that the Letter of Credit will not be renewed or extended through the Letter of Credit Expiration Date, or (E) a Bank Credit Threat or Receivership (as such term is defined in Section 5.6, below) has occurred and Tenant has failed to comply with the requirements of either Section 5.2.5, above, or Section 5.6, below, as applicable. If Tenant shall breach any provision of this Lease or otherwise be in default hereunder beyond any applicable notice and cure period or if any of the foregoing events identified in Sections 5.3(B) through (E) shall have occurred, Landlord may, but without obligation to do so, and without notice to Tenant, draw upon the Letter of Credit, in part or in whole, and the proceeds may be applied by Landlord (i) to cure any breach or default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant’s breach or default, (ii) against any Rent payable by Tenant under this Lease that is not paid when due and/or (iii) to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any breach or default by Tenant under this Lease. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit, either prior to or following a “draw” by Landlord of any portion of the Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord’s right to draw upon the Letter of Credit. In the event of a wrongful draw, the parties shall cooperate to allow Tenant to post a replacement Letter of Credit simultaneously with the return to Tenant of the wrongfully drawn sums, and Landlord shall upon request confirm in writing to the issuer of the Letter of Credit that Landlord’s draw was erroneous. No condition or term of this Lease shall be deemed to render the Letter of Credit conditional to justify the issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (a) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (b) Tenant is not a third party beneficiary of such contract, (c) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (d) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant’s bankruptcy estate shall have any right to restrict or limit Landlord’s claim and/or rights to the Letter of Credit and/or the proceeds thereof by application of Section 502(b)(6) of the U.S. Bankruptcy Code or otherwise. 5.4 Letter of Credit not a Security Deposit. Landlord and Tenant acknowledge and agree that in no event or circumstance shall the Letter of Credit or any renewal thereof or any proceeds thereof be (i) deemed to be or treated as a “security deposit” within the meaning of California Civil Code Section 1950.7, (ii) subject to the terms of such Section 1950.7, or (iii) intended to serve as a “security deposit” within the meaning of such Section 1950.7. The parties hereto (A) recite that the Letter of Credit is not intended to serve as a security deposit and such Section 1950.7 and any and all other laws, rules and regulations applicable to security deposits in the commercial context (“Security Deposit Laws”) shall have no applicability or relevancy thereto and (B) waive any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. 5.5 Proceeds of Draw. In the event Landlord draws down on the Letter of Credit pursuant to Sections 5.3(D) or (E), above, the proceeds of the Letter of Credit may be held by Landlord and applied by Landlord against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any breach or default by Tenant under this Lease. Any unused proceeds shall constitute the
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18. property of Landlord and need not be segregated from Landlord’s other assets. Tenant hereby (i) agrees that (A) Tenant has no property interest whatsoever in the proceeds from any such draw, and (B) such proceeds shall not be deemed to be or treated as a “security deposit” under the Security Deposit Law, and (ii) waives all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Landlord agrees that the amount of any proceeds of the Letter of Credit received by Landlord, and not (a) applied against any Rent payable by Tenant under this Lease that was not paid when due, or (b) used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any breach or default by Tenant under this Lease (the “Unused Letter of Credit Proceeds”), shall be paid by Landlord to Tenant (x) upon receipt by Landlord of a replacement Letter of Credit in the full Letter of Credit Amount, which replacement Letter of Credit shall comply in all respects with the requirements of this Section 5, or (y) within thirty (30) days after the Letter of Credit Expiration Date; provided, however, that if prior to the Letter of Credit Expiration Date a voluntary petition is filed by Tenant, or an involuntary petition is filed against Tenant by any of Tenant’s creditors, under the Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the Unused Letter of Credit Proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed. 5.6 Bank Placed Into Receivership. In the event the Bank is placed into receivership or conservatorship (any such event, a “Receivership”) by the Federal Deposit Insurance Corporation or any successor or similar entity (the “FDIC”), then, effective as of the date such Receivership occurs, the Letter of Credit shall be deemed to not meet the requirements of this Section 5, and, within ten (10) business days following Landlord’s notice to Tenant of such Receivership (the “Letter of Credit Replacement Notice”), Tenant shall replace the Letter of Credit with a substitute Letter of Credit from a different issuer reasonably acceptable to Landlord and that complies in all respects with the requirements of this Section 5. If Tenant fails to replace such Letter of Credit with a substitute Letter of Credit from a different issuer pursuant to the terms and conditions of this Section 5.6, then, notwithstanding anything in this Lease to the contrary, Landlord shall have the right, at Landlord’s option, to either (i) declare Tenant in default of this Lease for which there shall be no notice or grace or cure periods being applicable thereto, in which event, Landlord shall have the right to pursue any and all remedies available to it under this Lease and at law, including, without limitation, treating any Receivership as a Bank Credit Threat and exercising Landlord’s remedies under Section 5.2.5, above, to the extent possible pursuant to then-existing FDIC policy; or (ii) elect to increase the Base Rent due and owing under the terms of this Lease pursuant to the terms and conditions of Section 5.7 of this Lease, below. Tenant shall be responsible for the payment of any and all costs incurred with the review of any replacement Letter of Credit (including, without limitation, attorneys’ fees). 5.7 FAILURE TO REPLACE LETTER OF CREDIT; LIQUIDATED DAMAGES. IN THE EVENT THAT TENANT FAILS TO REPLACE THE LETTER OF CREDIT PURSUANT TO, AND WITHIN THE TIME PERIODS SET FORTH IN, SECTION 5.6 OF THIS LEASE, ABOVE, THEN TENANT’S MONTHLY INSTALLMENT OF BASE RENT SHALL BE INCREASED TO ONE HUNDRED FIVE PERCENT (105%) OF ITS THEN EXISTING LEVEL DURING THE PERIOD COMMENCING ON THE DATE THAT OCCURS TEN (10) BUSINESS DAYS FOLLOWING THE DATE TENANT RECEIVES THE LETTER OF CREDIT REPLACEMENT NOTICE AND ENDING ON THE EARLIER TO OCCUR OF (I) THE DATE SUCH REPLACEMENT LETTER OF CREDIT IS DELIVERED TO LANDLORD PURSUANT TO THE TERMS OF SECTION 5.6, OR (II) THE DATE WHICH IS NINETY (90) DAYS AFTER THE DATE OF SUCH LETTER OF CREDIT REPLACEMENT NOTICE. IN THE EVENT THAT TENANT FAILS, DURING SUCH NINETY (90) DAY PERIOD FOLLOWING THE DATE OF THE LETTER OF CREDIT REPLACEMENT NOTICE, TO CAUSE THE REPLACEMENT LETTER OF CREDIT TO BE DELIVERED TO LANDLORD PURSUANT TO THE TERMS OF SECTION 5.6, THEN ONE HUNDRED FIFTEEN PERCENT (115%) OF ITS THEN EXISTING LEVEL DURING THE PERIOD COMMENCING ON THE DATE WHICH IS NINETY (90) DAYS AFTER THE DATE OF SUCH LETTER OF CREDIT REPLACEMENT NOTICE AND ENDING ON THE DATE SUCH REPLACEMENT LETTER OF CREDIT IS DELIVERED TO LANDLORD PURSUANT TO THE TERMS OF SECTION 5.6, PROVIDED, HOWEVER, THAT THE TOTAL AGGREGATE AMOUNT OF BASE RENT PAID BY TENANT IN EXCESS OF THE AMOUNT OF BASE RENT THAT TENANT WOULD HAVE PAID HAD SUCH LETTER OF CREDIT REPLACEMENT FAILURE NEVER OCCURRED SHALL IN NO EVENT EXCEED THE LETTER OF CREDIT AMOUNT. THE
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21. grossly negligent acts or willful misconduct result in any such interruption, cessation or disturbance in the provision of services to the Premises materially impair Tenant’s use and occupancy of the Premises, such that Tenant prevented from using, and does not use the Premises or any portion thereof, for more than three (3) consecutive days, commencing on the fourth (4th) day after the commencement of such interruption, cessation or disturbance the Rent payable hereunder by Tenant shall xxxxx during such time that Tenant continues to be so prevented from using, and does not use, the Premises or a portion thereof, in the proportion that the gross square feet of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total gross square feet of the Premises; provided, however, that Tenant shall not be entitled to abatement or reduction of Rent to the extent the matters described in this sentence above arise out of or results from a matter outside of Landlord’s reasonable control. To the extent Tenant shall be entitled to abatement of Rent because of a damage or destruction pursuant to Section 26 below or a taking pursuant to Section 27 below, then the terms of this sentence shall not be applicable. 7.4 Energy Performance Disclosure Information. Tenant hereby acknowledges that Landlord may be required to disclose certain information concerning the energy performance of the Building(s) pursuant to California Public Resources Code Section 25402.10 and the regulations adopted pursuant thereto (collectively the “Energy Disclosure Requirements”). Tenant hereby acknowledges prior receipt of the Data Verification Checklist, as defined in the Energy Disclosure Requirements (the “Energy Disclosure Information”), and agrees that Landlord has timely complied in full with Landlord’s obligations under the Energy Disclosure Requirements. Tenant acknowledges and agrees that (i) Landlord makes no representation or warranty regarding the energy performance of the Buildings or the accuracy or completeness of the Energy Disclosure Information, (ii) the Energy Disclosure Information is for the current occupancy and use of the Building(s) and that the energy performance of the Building(s) may vary depending on future occupancy and/or use of the Building(s), and (iii) Landlord shall have no liability to Tenant for any errors or omissions in the Energy Disclosure Information. If and to the extent not prohibited by applicable laws, Tenant hereby waives any right Tenant may have to receive the Energy Disclosure Information, including, without limitation, any right Tenant may have to terminate this Lease as a result of Landlord’s failure to disclose such information. Further, Tenant hereby releases Landlord from any and all losses, costs, damages, expenses and/or liabilities relating to, arising out of and/or resulting from the Energy Disclosure Requirements, including, without limitation, any liabilities arising as a result of Landlord’s failure to disclose the Energy Disclosure Information to Tenant prior to the execution of this Lease. Tenant’s acknowledgment of the AS-IS condition of the Premises pursuant to the terms of this Lease shall be deemed to include the energy performance of the Building(s). Tenant further acknowledges that pursuant to the Energy Disclosure Requirements, Landlord may be required in the future to disclose information concerning Tenant’s energy usage to certain third parties, including, without limitation, prospective purchasers, lenders and tenants of the Project (the “Tenant Energy Use Disclosure”). Tenant hereby (A) consents to all such Tenant Energy Use Disclosures, and (B) acknowledges that Landlord shall not be required to notify Tenant of any Tenant Energy Use Disclosure. Further, Tenant hereby releases Landlord from any and all losses, costs, damages, expenses and liabilities relating to, arising out of and/or resulting from any Tenant Energy Use Disclosure. The terms of this Section 7.4 shall survive the expiration or earlier termination of this Lease. 7.5 Generator. 7.5.1 Tenant, subject to Landlord’s review and approval of Tenant’s plans therefor, shall have the right to install a diesel-powered standby emergency generator(s) with associated fuel tank and equipment including an automatic transfer switch (collectively, the “Generator”) to provide emergency additional electrical capacity to the Premises during the Term. Tenant’s plans for the Generator shall include a secondary containment system to protect against and contain any release of Hazardous Materials. The Generator shall be placed at the location designated by Landlord in the surface parking lot or other mutually approved location in the Project (the “Generator Area”). Notwithstanding the foregoing, Tenant’s right to install the Generator shall be subject to Landlord’s reasonable approval of the manner in which the Generator is installed, the manner in which any fuel pipe is installed, the manner in which any ventilation and exhaust systems are installed, the manner in which any cables are run to and from the Generator to the Premises and the measures that will be taken to eliminate any vibrations or sound disturbances from the operation of the Generator, including, without limitation, any necessary two (2) hour rated enclosures
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22. or sound installation. Landlord shall have the right to require an acceptable enclosure to hide or disguise the existence of the Generator and to minimize any adverse effect that the installation of the Generator may have on the appearance of the Buildings and Property. Tenant shall be solely responsible for obtaining all necessary governmental and regulatory approvals (and Landlord agrees to reasonably cooperate with Tenant, at no cost or liability to Landlord, in connection therewith), and for the cost of installing, designing, operating, maintaining and, if required by Landlord, removing the Generator. Tenant shall not install or operate the Generator until Tenant has obtained and submitted to Landlord copies of all required governmental permits, licenses and authorizations necessary for the installation and operation of the Generator. In addition to, and without limiting Tenant’s obligations under the Lease, Tenant shall comply with all applicable environmental and fire prevention laws pertaining to Tenant’s use of the Generator Area. Tenant shall also be responsible for the cost of all utilities consumed in the operation of the Generator. 7.5.2 Tenant shall be responsible for assuring that the installation, maintenance, operation and, if required, the removal of the Generator shall in no way damage any portion of the Buildings or Property. To the maximum extent permitted by Law, the Generator and all appurtenances in the Generator Area shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant if the Generator or any appurtenances installations are damaged for any reason other than Landlord’s gross negligence or willful misconduct. Tenant agrees to be responsible for any damage caused to the Building or Property in connection with the installation, maintenance, operation or removal of the Generator and to indemnify, defend and hold Landlord and the Indemnitees harmless from all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including, without limitation, reasonable architects’ and attorneys’ fees (if and to the extent permitted by law), which may be imposed upon, incurred by, or asserted against Landlord or any of the Indemnitees in connection with the installation, maintenance, operation or removal of the Generator during the Term, including, without limitation, any Environmental Laws or Hazardous Materials claims. In addition to, and without limiting Tenant’s obligations under the Lease, Tenant covenants and agrees that the installation and use of the Generator and appurtenances shall not adversely affect the insurance coverage for the Buildings. If for any reason during the Term, the installation or use of the Generator and/or the appurtenances shall result in an increase in the amount of the premiums for such coverage, then Tenant shall be liable for the full amount of any such increase. 7.5.3 Tenant shall be responsible for the installation, operation, cleanliness, maintenance and, if applicable, the removal of the Generator and the appurtenances, all of which shall remain the personal property of Tenant during the Term. Upon the expiration or earlier termination of this Lease, the Generator shall become a part of the realty and shall belong to Landlord without compensation, and title shall pass to Landlord under this Lease. Notwithstanding the foregoing, Landlord may elect to require Tenant to remove the Generator upon the expiration of the Term by providing no less than sixty (60) days prior notice to Tenant. In such an event Tenant shall repair any damage caused by such removal, including the patching of any holes to match, as closely as possible, the color surrounding the area where the Generator and appurtenances were attached. Such maintenance and operation shall be performed in a manner to avoid any unreasonable interference with any other tenants or Landlord. Tenant shall take the Generator Area “as is” in the condition in which the Generator Area is in as of the Delivery Date, without any obligation on the part of Landlord to prepare or construct the Generator Area for Tenant’s use or occupancy. Without limiting the foregoing, Landlord makes no warranties or representations to Tenant as to the suitability of the Generator Area for the installation and operation of the Generator. Tenant shall have no right to make any changes, alterations, additions, decorations or other improvements to the Generator Area except as an Alteration pursuant to Article 10. Tenant agrees to maintain the Generator, including without limitation, any enclosure installed around the Generator, in good working order, condition and repair and in accordance with the manufacturer’s recommendations. Tenant shall, during the Term, as the same may be extended, be responsible for performing any maintenance and improvements to any enclosure surrounding the Generator so as to keep such enclosure in good condition. Tenant shall, during the Term, as the same may be extended, provide maintenance records regarding the Generator and any related equipment to Landlord within ten (10) days following Landlord’s request therefor. 7.5.4 Tenant shall be permitted to use the Generator Area solely for the maintenance and operation of the Generator, and the Generator and Generator Area are solely for the benefit of Tenant. All electricity generated by the Generator may only be consumed by Tenant in the Premises.
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23. 7.5.5 Landlord shall have no obligation to provide any services, including, without limitation, electric current, to the Generator Area. Landlord shall have no obligation to provide Tenant with an alternative back-up generator or generators or alternative sources of back-up power. 7.5.6 Tenant shall have no right to sublet the Generator Area or to assign its interest hereunder, but may allow its subtenants to connect to the Generator. 7.5.7 If Tenant ceases to be the Sole Occupant, Tenant shall remain responsible for all operation, maintenance, repair, replacement and eventual removal of the Generator, at Tenant’s sole cost and expense; provided that Tenant shall not be responsible for maintenance, repair or removal of a Generator solely serving Phase 3, unless Tenant occupies all of Phase 3. 8. USE OF PREMISES. 8.1 Approved Use. The Premises are to be used solely for the purposes and uses specified in the Basic Lease Information and for no other uses or purposes without Landlord’s prior written consent, which may be withheld in Landlord’s reasonable discretion. In no event shall Tenant, or any assignee of Tenant, unless expressly permitted in the Basic Lease Information, shall the permitted use include: (i) offices of any agency or bureau of the United States or any state or political subdivision thereof, (ii) offices or agencies of any foreign government or political subdivision thereof, (iii) offices of any health care professionals or service organizations, except for the administrative offices where no patient-specific diagnostic, treatment or laboratory services are performed, (iv) schools or other educational facilities, (v) retail or restaurant use (other than in connection with Amenities not available to the general public), (vi) broadcast studios or other broadcast production facilities, such as radio and/or television stations, (vii) product display or demonstration facilities (except as described in the Basic Lease Information), and (viii) executive suites uses or other uses that license or lease office space for use by others as a primary business purpose. 8.2 Prohibition on Use. 8.2.1 Tenant covenants and agrees that Tenant shall not use, or suffer or permit any person or persons to use, the Premises or any part thereof for any use or purpose in violation of the laws of the United States of America, the State of California, or the ordinances, regulations or requirements of the local municipal or county governing body or other lawful authorities having jurisdiction over the Property) including, without limitation, any such laws, ordinances, regulations or requirements relating to hazardous materials or substances, as those terms are defined by applicable laws now or hereafter in effect. Tenant shall comply with, and Tenant’s rights and obligations under the Lease and Tenant’s use of the Premises shall be subject and subordinate to, all recorded easements, covenants, conditions, and restrictions now or hereafter affecting the Property (including, without limitation, the CC&Rs) (collectively, the “Underlying Documents”); provided, however, that Landlord shall not voluntarily enter into or acquiesce to any Underlying Documents after the Lease Date that would materially diminish Tenant’s rights or materially increase Tenant’s obligations under this Lease. Tenant shall not use the Premises or permit anything to be done in or about the Premises nor keep or bring anything therein that will in any way materially increase the existing rate of or affect any policy of fire or other insurance upon the Buildings or any of its contents, or cause a violation or cancellation of any insurance policy. No auctions may be held or otherwise conducted in, on or about any portion of the Premises or the Building without Landlord’s prior written consent thereto, in its sole and absolute discretion. For any period where Tenant is not the Sole Occupant, Tenant shall not do or permit anything to be done in or about the Premises that will in any way obstruct or interfere with the rights of Landlord or other tenants or occupants of any portion of the Property, provided that at all times Tenant shall be entitled to use the Premises for the use permitted in this Lease. The Premises shall not be used for any unlawful purpose. Tenant will not cause, maintain or permit any private or public nuisance in, on or about any portion of the Premises, including, but not limited to, any offensive and unreasonable odors, noises, fumes or vibrations. 8.2.2 Tenant further covenants and agrees that Tenant shall not commit waste, overload the Premises or subject the Premises to use that would damage the Premises or use, or suffer or permit
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24. any person or persons to use, the Premises or any part thereof for any use or purpose in violation of any applicable Laws. Tenant’s use shall not result in an occupancy density for the Premises which is greater than allowed by applicable Laws. Tenant shall not do or permit anything to be done in or about the Premises or the Project which will in any way damage the reputation of the Project, create extraordinary fire hazards, or allow the Premises or any of Tenant’s Off-Premises Equipment to be used for any improper or unlawful purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises or the Project. Tenant shall comply with, and Tenant’s rights and obligations under the Lease and Tenant’s use of the Premises shall be subject and subordinate to, all underlying documents now or hereafter affecting the Project. 8.2.3 THE PREMISES SHALL BE USED SOLELY FOR THE PERMITTED USE SET FORTH IN PARAGRAPH V OF THE BASIC LEASE INFORMATION OF THIS LEASE, AND IN COMPLIANCE WITH ALL LAWS, ORDERS, JUDGMENTS, ORDINANCES, REGULATIONS, CODES, DIRECTIVES, PERMITS, LICENSES, COVENANTS AND RESTRICTIONS NOW OR HEREAFTER APPLICABLE TO THE PREMISES, AND TO THE USE AND OCCUPANCY THEREOF, INCLUDING, WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. § 12101, ET SEQ. (TOGETHER WITH THE REGULATIONS PROMULGATED PURSUANT THERETO, “ADA”) (COLLECTIVELY, “LEGAL REQUIREMENTS” AND EACH, A “LEGAL REQUIREMENT”). TENANT SHALL, UPON FIVE (5) DAYS’ WRITTEN NOTICE FROM LANDLORD, DISCONTINUE ANY USE OF THE PREMISES WHICH IS DECLARED BY ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION TO BE A VIOLATION OF A LEGAL REQUIREMENT. TENANT WILL NOT USE OR PERMIT THE PREMISES TO BE USED FOR ANY PURPOSE OR IN ANY MANNER THAT WOULD VOID TENANT’S OR LANDLORD’S INSURANCE, MATERIALLY INCREASE THE INSURANCE RISK, OR CAUSE THE DISALLOWANCE OF ANY SPRINKLER OR OTHER CREDITS. TENANT SHALL NOT PERMIT ANY PART OF THE PREMISES TO BE USED AS A “PLACE OF PUBLIC ACCOMMODATION”, AS DEFINED IN THE ADA OR ANY SIMILAR LEGAL REQUIREMENT. TENANT SHALL REIMBURSE LANDLORD PROMPTLY UPON DEMAND FOR ANY ADDITIONAL PREMIUM CHARGED FOR ANY SUCH INSURANCE POLICY BY REASON OF TENANT’S FAILURE TO COMPLY WITH THE PROVISIONS OF THIS SECTION OR OTHERWISE CAUSED BY TENANT’S PARTICULAR USE AND/OR OCCUPANCY OF THE PREMISES. TENANT WILL USE THE PREMISES IN A CAREFUL, SAFE AND PROPER MANNER AND WILL NOT COMMIT OR PERMIT WASTE, OVERLOAD THE FLOOR OR STRUCTURE OF THE PREMISES, SUBJECT THE PREMISES TO USE THAT WOULD DAMAGE THE PREMISES OR OBSTRUCT OR INTERFERE WITH THE RIGHTS OF LANDLORD OR OTHER TENANTS OR OCCUPANTS OF THE PROJECT, INCLUDING CONDUCTING OR GIVING NOTICE OF ANY AUCTION, LIQUIDATION, OR GOING OUT OF BUSINESS SALE ON THE PREMISES, OR USING OR ALLOWING THE PREMISES TO BE USED FOR ANY UNLAWFUL PURPOSE. TENANT SHALL CAUSE ANY EQUIPMENT OR MACHINERY TO BE INSTALLED IN THE PREMISES SO AS TO REASONABLY PREVENT SOUNDS OR VIBRATIONS FROM THE PREMISES FROM EXTENDING INTO COMMON AREAS, OR OTHER SPACE IN THE PROJECT. TENANT SHALL NOT PLACE ANY MACHINERY OR EQUIPMENT WHICH WOULD OVERLOAD THE FLOOR IN OR UPON THE PREMISES OR TRANSPORT OR MOVE SUCH ITEMS THROUGH THE COMMON AREAS OF THE PROJECT OR IN THE PROJECT ELEVATORS WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. 8.2.4 Landlord shall be responsible for the legal compliance of Buildings as of the applicable Delivery Date. Following the applicable Delivery Date, and subject to the Construction Warranties (as defined in Section 5.7.3 of the Work Letter), Tenant shall, at Tenant’s expense make any alterations or modifications to the Premises, Common Areas or the exterior of the Building(s) that are required by Legal Requirements (or pursue direct enforcement of any applicable Construction Warranties). Tenant, at its sole expense, shall make any alterations or modifications to the interior of the Premises that are required by Legal Requirements (including, without limitation, compliance of the Premises with the ADA) related to Tenant’s particular use or occupancy of the Premises or Alterations or the Tenant Improvements. Notwithstanding any other provision herein to the contrary, Tenant shall be responsible for any and all Claims arising out of or in connection with Legal Requirements related to Tenant’s particular use or occupancy of the Premises or Alterations or the Tenant Improvements, and Tenant shall indemnify, defend, hold and save Landlord harmless from and against any and all Claims arising out of or in connection with
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27. Specialty Alterations in the Premises and return the affected portion of the Premises to a building standard tenant improved condition as reasonably determined by Landlord, Landlord may do so and may charge the cost thereof to Tenant. Tenant hereby protects, defends, indemnifies and holds Landlord harmless from any liability, cost, obligation, expense or claim of lien in any manner relating to the installation, placement, removal or financing of any such Alterations in, on or about the Premises, which obligations of Tenant shall survive the expiration of the Term or earlier termination of this Lease. 10.1.3 Subject to the terms of this Lease, Tenant, at Tenant’s sole cost and expense, shall have the right to install and maintain a security system exclusively serving the Premises (“Tenant’s Security System”), subject to the following conditions: (i) Tenant’s plans and specifications for the proposed location of Tenant’s Security System and Tenant’s protocol for the operation of Tenant’s Security System shall be subject to Landlord’s prior written approval, which approval will not be unreasonably withheld; provided, however, that Tenant shall coordinate the installation and operation of Tenant’s Security System with Landlord to assure that Tenant’s Security System may be compatible with the Building’s systems and equipment and Tenant does not violate the reasonable privacy rights of any other occupants of the Project (if appliable); (ii) Landlord shall be provided with keys, codes and/or access cards, as applicable, and means of immediate access to fully exercise all of its entry rights under the Lease with respect to the Premises; and (iii) Tenant shall be solely responsible, at Tenant’s sole cost and expense, for the monitoring, operation and removal of Tenant’s Security System. Upon the expiration of the Term or earlier termination of this Lease, Tenant shall remove Tenant’s Security System. All costs and expenses associated with the removal of Tenant’s Security System and the repair of any damage to the Premises and the Building resulting from the installation and/or removal of same shall be borne solely by Tenant. Notwithstanding anything to the contrary contained herein, Landlord shall not be directly or indirectly liable to Tenant, any Tenant Parties or any other person and Tenant hereby waives any and all claims against and releases Landlord from any and all claims arising as a consequence of or related to Tenant’s Security System, or the failure thereof. 10.2 Manner of Construction. Landlord may impose, as a condition of its consent to any and all Alterations or repairs of the Premises or about the Premises, such requirements as Landlord in its reasonable discretion may deem desirable, including, but not limited to, the requirement that upon Landlord’s request, Tenant shall, at Tenant’s expense, remove any Specialty Alterations upon the expiration of the Term or earlier termination of this Lease. Tenant shall construct such Alterations and perform such repairs in a good and workmanlike manner, in conformance with any and all applicable federal, state, county or municipal laws, rules and regulations and pursuant to a valid building permit, issued by the city in which the Building is located (or other applicable governmental authority). Tenant shall not use (and upon notice from Landlord shall cease using) contractors, services, workmen, labor, materials or equipment that, in Landlord’s reasonable judgment, would disturb labor harmony with the workforce or trades engaged in performing other work, labor or services in or about the Building or the Common Areas. Upon completion of any Alterations (or repairs), Tenant shall deliver to Landlord final lien waivers from all contractors, subcontractors and materialmen who performed such work. Upon completion of any Alterations, Tenant agrees to cause a Notice of Completion to be recorded in the office of the Recorder of the County of San Diego in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and Tenant shall deliver to the Project construction manager a reproducible copy of the “as built” drawings of the Alterations as well as all permits, approvals and other documents issued by any governmental agency in connection with the Alterations. 10.3 Payment for Improvements. If Tenant orders any work directly from Landlord, Tenant shall pay to Landlord an amount equal to five percent (5%) of the cost of such work to compensate Landlord for all overhead, general conditions, fees and other costs and expenses arising from Landlord’s involvement with such work (“Landlord Supervision Fee”). If Tenant does not order any work directly from Landlord, Tenant shall reimburse Landlord for Landlord’s reasonable, actual, out-of-pocket costs and expenses actually incurred in connection with Landlord’s review of such work. 10.4 Construction Insurance. Prior to the commencement of such Alterations, Tenant shall provide Landlord with evidence that Tenant carries “Builder’s All Risk” insurance in an amount approved by Landlord covering the construction of such Alterations, and such other insurance as Landlord may
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28. reasonably require, it being understood and agreed that all of such Alterations shall be insured by Tenant pursuant to Section 12 of this Lease immediately upon completion thereof. In addition, Tenant’s contractors and subcontractors shall be required to carry (i) Commercial General Liability Insurance in an amount approved by Landlord, with Landlord, and, at Landlord’s option, Landlord’s lender, property manager and project manager, as additional insureds in an amount approved by Landlord, and otherwise in accordance with the requirements of Section 12 of this Lease, and (ii) workers compensation insurance with a waiver of subrogation in favor of Landlord. If any Alterations are expected to cost more than $500,000, Landlord may, in its discretion, require Tenant to obtain a lien and completion bond or some alternate form of security satisfactory to Landlord in an amount sufficient to ensure the lien-free completion of such Alterations and naming Landlord as a co-obligee. 10.5 Tenant’s Property; Landlord’s Property. “Specified Alterations” means any Alterations which are not otherwise Tenant’s Property pursuant to the definition in this Section which Landlord and Tenant agree to designate as Tenant’s Property for purposes of this Lease. “Tenant’s Property” means all Specified Alterations and, other than Landlord’s Property, all Alterations, personal property, fixtures, trade fixtures, equipment, or appurtenances of Tenant that may be removed without material damage to the Premises. “Landlord’s Property” “ means all property of any kind paid for in whole or in part by Landlord (including through use of Tenant Improvement Allowance funds but excluding the FF&E Allowance) and/or as part of the Tenant Improvements (as defined in Section 1.5.5 of the Work Letter), all Alterations, all fixtures, and all partitions, hardware, built-in machinery, built-in casework and cabinets and other similar additions, equipment, property and improvements built into the Premises so as to become an integral part of the Premises, including, without limitation, fume hoods which penetrate the roof or plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms, walk-in warm rooms, deionized water systems, glass washing equipment, autoclaves, chillers, and built-in plumbing, electrical and mechanical equipment and systems. All Tenant’s Property which may be installed or placed in or about the Premises, from time to time, shall be at the sole cost of Tenant and shall be Tenant’s property during the Term, and, unless removed by Tenant at the expiration or earlier termination of the Term, become the property of Landlord and remain in place at the Premises from and after the expiration or earlier termination of this Lease. All manner of property not identified as Tenant’s Property under this Section 10.5 shall be Landlord’s property during and after the Term and shall be surrendered to Landlord in the condition required by this Lease. 10.6 Surrender of Premises. 10.6.1 At the expiration of the Term or earlier termination of this Lease, Tenant shall surrender the Premises to Landlord broom swept, in first-class condition and repair (damage by acts of God, casualty, and normal wear and tear excepted), but with all interior walls, appliances, cabinetry, exclusive use bathrooms and carpets and floors cleaned, and free of Hazardous Materials brought upon, kept, used, stored, handled, treated, generated in, or released or disposed of from, the Premises for which Tenant is liable or responsible for pursuant to this Lease and released of all Hazardous Materials Permits (collectively, “Hazardous Materials Operations”). At least six (6) months prior to the Expiration Date, Tenant shall deliver to Landlord a written description of the actions proposed to be taken by Tenant or required by any governmental authority in order to surrender the Premises (including removal of any Specialty Alterations and any other Tenant’s Property which Tenant is obligated to remove) at the expiration or earlier termination of the Term, free from any residual impact from the Hazardous Materials Operations and otherwise released for unrestricted use and occupancy (the “Surrender Plan”). Such Surrender Plan shall be accompanied by a current listing of (i) all Hazardous Materials licenses and permits held by or on behalf Tenant or any Tenant Party with respect to the Premises, and (ii) all Hazardous Materials used, stored, handled, treated, generated, released or disposed of from the Premises, and shall be subject to the review and approval of Landlord’s environmental consultant, such approval not to be unreasonably withheld or delayed. In connection with the review and approval of the Surrender Plan, upon the request of Landlord, Tenant shall deliver to Landlord or its consultant such additional non-proprietary information concerning the Hazardous Materials Operations as Landlord or Landlord’s mortgagee shall reasonably request. On or before such surrender, Tenant shall deliver to Landlord evidence that the approved Surrender Plan shall have been satisfactorily completed and Landlord shall have the right, subject to reimbursement at Tenant’s expense as set forth below, to cause Landlord’s environmental consultant to inspect the Premises and
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32. (d) A policy or policies of comprehensive pollution liability and property damage insurance covering the Premises and the business operated by Tenant and any Tenant Party on or about the Premises. The pollution liability insurance shall not be less than $3,000,000.00 per occurrence, $3,000,000.00 general aggregate. Such insurance shall include but not be limited to bodily injury liability, property damage liability, environmental response and remediation costs, other cleanup costs, environmental consultants’ fees, attorneys’ fees, civil fines and penalties, laboratory testing fees, claims by third parties and governmental authorities for death, personal injuries, property damage, business disruption, lost profits, natural resource damages and any other costs, for any release of any pollutants and/or contaminants, whether released to air, soil or water and whether the release is on or migrates from the Premises. (e) Umbrella liability insurance policy with a limit of not less than $25,000,000. The policy shall provide excess coverage over Tenant’s Employers’ Liability, Automobile Liability and Commercial General Liability coverages. (f) All risk property insurance policy for full replacement cost of Tenant’s movable furniture, equipment, trade fixtures and personal property in the Premises and any Alterations (including the Tenant Improvements) made by or for Tenant after the Delivery Date, with special form cause of loss (including sprinkler damage) with agreed value endorsement, and earthquake insurance with limits and deductibles reasonably acceptable to Landlord (provided that a $10,000,000 limit shall be deemed reasonable ), which policies will name Landlord as a loss payee for all property in which Landlord has an insurable interest. Loss of business income and continuing expense coverage will be included for a minimum of $9,000,000. Tenant will name Landlord as additional insured or loss payee, as applicable, for loss of business income and continuing expenses. All amounts received by Tenant under the insurance specified in this Section 12.1(f) shall first be applied to the payment of the cost of the repair and replacement Tenant is obligated to do under this Lease; and (g) Such other insurance or higher limits of liability as is then customarily required for similar types of Comparable Buildings or as may be required by any of Landlord’s lenders (provided, however, that Landlord makes no representation that the limits of liability required hereunder from time to time shall be adequate to protect Tenant). In addition, Landlord reserves the right to require that Tenant cause any of its contractors, vendors, movers or other parties conducting activities in or about or occupying the Premises to obtain and maintain insurance as determined by Landlord (which insurance coverages may be greater than those set forth above and which may include types of insurance not specified above with respect to Tenant) and as to which Landlord and such other parties designated by Landlord shall be additional insureds. 12.2 Insurance Policies. Insurance required to be maintained by Tenant shall be written by companies (i) licensed to do business in the State of California, (ii) domiciled in the United States of America, and (iii) having a “General Policyholders Rating” of at least A:VIII (or such higher rating as may be required by a lender having a lien on the Premises) if and as set forth in the most current issue of “A.M. Best’s Rating Guides.” Any deductible amounts under any of the insurance policies required hereunder shall not exceed $100,000; provided that Tenant’s earthquake insurance deductibles shall not exceed five percent (5%) of the total insurable values of each unit of Tenant corresponding to the Premises that is covered by the earthquake policy. Tenant shall deliver to Landlord certificates of insurance and true and complete copies of any and all endorsements required herein for all insurance required to be maintained by Tenant hereunder at the time of execution of this Lease by Tenant. Tenant shall, as soon as practicable prior to expiration of each policy, furnish Landlord with certificates of renewal or “binders” thereof. Each certificate shall expressly provide that such policies shall not be cancelable except after thirty (30) days prior written notice to the parties named as additional insureds as required in this Lease (except for cancellation for nonpayment of premium, in which event cancellation shall not take effect until at least ten (10) days’ notice has been given to Landlord). 12.3 Additional Insureds and Coverage. Each of Landlord, Landlord’s property management company or agent, and Landlord’s lender(s) having a lien against the Premises or any other portion of the Property shall be named as additional insureds under the policies required in Section 12.1 (except with
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37. of this Lease, in either case, as of the Proposed Effective Date. If this Lease is terminated pursuant to the foregoing provisions with respect to less than the entire Premises, the Rent shall be adjusted on the basis of the proportion of gross square feet retained by Tenant to the gross square feet originally demised and this Lease as so amended shall continue thereafter in full force and effect. Notwithstanding anything to the contrary herein, if Landlord delivers Notice to Tenant of Landlord’s election to recapture the Subject Space, Tenant shall have the right, exercisable within ten (10) days of Tenant’s receipt of such Notice, to rescind the Tenant’s Transfer Notice and thereby nullify Landlord’s recapture right with respect to the Subject Space and continue this Lease in full force and effect as if Tenant had never provided the subject Tenant’s Transfer Notice. 14.7 Transfer Premium. For any Transfer done in accordance with this Section 14 Tenant shall be entitled to retain, without any profit-sharing with Landlord, one hundred percent (100%) any “Transfer Premium” received by Tenant from any Transferee. The term “Transfer Premium” shall mean all rent, additional rent and other consideration payable by such Transferee and received by Tenant that either initially or over the term of the Transfer exceeds the Rent or pro rata portion of the Rent, as the case may be, for such space reserved in the Lease. 14.8 No Release. No Transfer, occupancy or collection of rent from any proposed Transferee shall be deemed a waiver on the part of Landlord, or the acceptance of the Transferee as Tenant and no Transfer shall release Tenant of Tenant’s obligations under this Lease or alter the primary liability of Tenant to pay Rent and to perform all other obligations to be performed by Tenant hereunder. Landlord may require that any Transferee remit directly to Landlord on a monthly basis, all monies due Tenant by said Transferee, and each sublease shall provide that if Landlord gives said sublessee written notice that Tenant is in default under this Lease, said sublessee will thereafter make all payments due under the sublease directly to or as directed by Landlord, which payments will be credited against any payments due under this Lease. Tenant hereby irrevocably and unconditionally assigns to Landlord all rents and other sums payable under any sublease of the Premises; provided, however, that Landlord hereby grants Tenant a license to collect all such rents and other sums so long as Tenant is not in default under this Lease. Consent by Landlord to one Transfer shall not be deemed consent to any subsequent Transfer. In the event of default by any Transferee of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor. Landlord may consent to subsequent assignments of this Lease or sublettings or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto and any such actions shall not relieve Tenant of liability under this Lease. Tenant hereby waives (for itself and all persons claiming under Tenant) the provisions of Civil Code Section 1995.310(b). 14.9 Waiver. Notwithstanding any Transfer, or any indulgences, waivers or extensions of time granted by Landlord to any Transferee, or failure by Landlord to take action against any Transferee, Tenant agrees that Landlord may, at its option, proceed against Tenant without having taken action against or joined such Transferee, except that Tenant shall have the benefit of any indulgences, waivers and extensions of time granted to any such Transferee. 14.10 Permitted Users. Notwithstanding any contrary provision of this Section 14, the originally- named Tenant or its Non-Transferee shall have the right, without the receipt of Landlord’s consent, but on not less than five (5) days prior written notice to Landlord, to permit the occupancy of portions of the then- existing Premises to any individual(s) or companies with an ongoing, bona-fide business relationship and/or strategic partnership with Tenant, or companies spun off from Tenant, where each company benefits in the research and subsequent products resulting from such research (other than the relationship created by the dual occupancy of the Premises) (each, a “Permitted User”), which occupancy may include the use of a corresponding interior support area and other portions of the Premises which shall be common to Tenant and the permitted occupants (i.e. not separately demised), on and subject to the following conditions: (i) Landlord and any Landlord Party shall not have litigated against any such proposed Permitted User; (ii) the Permitted User shall not be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be subject to service of process in and subject to the jurisdiction of, the courts of the State; (iii) each Permitted User shall be of a character and reputation consistent with the quality of the Building and the
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40. 18. ESTOPPEL CERTIFICATE. Tenant shall execute (and acknowledge if required by any lender or ground lessor) and deliver to Landlord, within fifteen (15) days after Landlord provides such to Tenant, a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification), the date to which the Rent and other charges are paid in advance, if any, acknowledging that there are not, to Tenant’s knowledge, any uncured Defaults on the part of Landlord hereunder or specifying such Defaults as are claimed, and such other factual matters as Landlord may reasonably require. Any such statement may be conclusively relied upon by Landlord and any prospective purchaser or encumbrancer of the Buildings or other portions of the Project. Tenant’s failure to deliver such statement within such time shall result in the estoppel being deemed certified by Tenant, as the case may be, that (a) this Lease is in full force and effect, without modification except as may be represented by Landlord; (b) there are no uncured Defaults in Landlord’s performance; and (c) not more than one month’s Rent has been paid in advance. 19. TENANT’S DEFAULT. The occurrence of any one or more of the following events shall, at Landlord’s option, constitute a material default by Tenant of the provisions of this Lease (each a “Default”): 19.1 Tenant’s failure to occupy the Premises within sixty (60) days after receipt of a Certificate of Occupancy for the applicable Phase, or the abandonment of all or a substantial portion of any Phase of the Premises by Tenant during the term of this Lease, after the receipt of a Certificate of Occupancy for the applicable Phase; 19.2 The failure by Tenant to make any payment of Rent, Additional Rent or any other payment required hereunder within three (3) business days after the same is due provided that for the first two (2) such failures in any twelve (12) month period, Landlord shall provide written notice to Tenant and the same shall not be a default by Tenant unless such failure continues for more than three (3) business days after Landlord’s delivery of such notice to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161 or any similar or successor law; 19.3 The failure by Tenant to observe, perform or comply with any of the conditions, covenants or provisions of this Lease (except failure to make any payment of Rent and/or Additional Rent) and such failure is not cured within (i) thirty (30) days from the date that Landlord delivers written notice of such failure to Tenant for all failures other than with respect to the timely delivery by Tenant of any documents required by Section 16, a counterpart of a fully executed Transfer document and a consent thereto (collectively, the “Transfer Documents”), an estoppel certificate or insurance certificates, and (ii) the time period, if any, specified in the applicable sections of this Lease with respect to subordination, assignment and sublease, estoppel certificates and insurance. However, a Default shall not be considered to have occurred if such failure (other than any failure of Tenant to timely deliver any documents required by Section 16, the Transfer Documents, an estoppel certificate or insurance certificates, for which no additional cure period shall be given to Tenant) cannot reasonably be cured within such thirty (30) day or shorter applicable period, and Tenant promptly commences, and thereafter diligently proceeds with same to completion, all actions necessary to cure such failure as soon as is reasonably possible, but in no event shall the completion of such cure be later than ninety (90) days after the date on which Landlord delivers to Tenant written notice of such failure, unless Landlord, acting reasonably and in good faith, otherwise expressly agrees in writing to a longer period of time based upon the circumstances relating to such failure as well as the nature of the failure and the nature of the actions necessary to cure such failure; or 19.4 Any Transfer in violation of Section 14; 19.5 Tenant shall fail to discharge, bond over in a manner reasonably acceptable to Landlord or otherwise obtain the release of any lien placed upon the Premises in the manner required by this Lease; or
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42. any Abated Rent (which will be amortized on a straight-line basis for each Phase (i.e. Phase 1 Abated Rent will be amortized over the period from the Phase 1 Rent Commencement Date until the Expiration Date, Phase 2 Abated Rent will be amortized over the period from the Phase 2 Rent Commencement Date until the Expiration Date, etc.), and the worth at the time of the award (computed in accordance with paragraph (3) of Subdivision (a) of Section 1951.2 of the California Civil Code) of the amount by which the Rent then unpaid hereunder for the balance of the Term exceeds the amount of such loss of Rent for the same period which Tenant proves could be reasonably avoided by Landlord and in such case, Landlord prior to the award, may re let the Premises for the purpose of mitigating damages suffered by Landlord because of Tenant’s failure to perform its obligations hereunder; provided, however, that even though Tenant has abandoned the Premises following such Default, this Lease shall nevertheless continue in full force and effect for as long as Landlord does not terminate Tenant’s right of possession, and until such termination, Landlord shall have the remedy described in Section 1951.4 of the California Civil Code (Landlord may continue this Lease in effect after Tenant’s Default and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations) and may enforce all its rights and remedies under this Lease, including the right to recover the Rent from Tenant as it becomes due hereunder. The “worth at the time of the award” within the meaning of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil Code shall be computed by allowing interest at the rate of ten percent (10%) per annum. Tenant waives redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179 (or any successor or substitute statute), or under any other present or future law, in the event Tenant is evicted or Landlord takes possession of the Premises by reason of any Default of Tenant hereunder. Tenant hereby waives for Tenant and for all those claiming under Tenant all rights now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, Tenant’s right of occupancy of the Premises after any termination of this Lease. 20.3 Rights and Remedies Cumulative. The foregoing rights and remedies of Landlord are not exclusive; they are cumulative in addition to any rights and remedies now or hereafter existing at law, in equity by statute or otherwise, or to any equitable remedies Landlord may have, and to any remedies Landlord may have under bankruptcy laws or laws affecting creditors’ rights generally. In addition to all remedies set forth above, if Tenant Defaults under this Lease, all options granted to Tenant hereunder shall automatically terminate, unless otherwise expressly agreed to in writing by Landlord. Tenant hereby waives, for Tenant and for all those claiming under Tenant, any and all rights now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, Tenant’s right of occupancy of the Premises after any termination of this Lease. 20.4 Right to Injunction. In the event of a breach or threatened breach on the part of either party with respect to any of the covenants or agreements on the part of or on behalf of the other to be kept, observed or performed, Landlord or Tenant shall also have the right of injunction. The specified remedies to which either party may resort hereunder are cumulative and are not intended to be exclusive of any other remedies or means of redress to which such party may lawfully be entitled at any time, and such party may invoke any remedy allowed at Law or in equity as if specific remedies were not herein provided for. 20.5 Landlord’s Cure. All covenants and agreements to be kept or performed by Tenant under this Lease shall be performed by Tenant at Tenant’s sole cost and expense and without any reduction of Rent, except to the extent, if any, otherwise expressly provided herein. If Tenant shall fail to perform any obligation under this Lease, and such failure shall continue in excess of the time allowed under Section 19, above, unless a specific time period is otherwise stated in this Lease, Landlord may, but shall not be obligated to, make any such payment or perform any such act on Tenant’s part without waiving its rights based upon any default of Tenant and without releasing Tenant from any obligations hereunder. 20.6 Tenant’s Reimbursement. Except as may be specifically provided to the contrary in this Lease, Tenant shall pay to Landlord, within thirty (30) days of delivery by Landlord to Tenant of statements therefor: (i) sums equal to expenditures reasonably made and obligations incurred by Landlord in connection with the remedying by Landlord of Tenant’s defaults pursuant to the provisions of Section 20.5; (ii) sums equal to all losses, costs, liabilities, damages and expenses referred to in Section 13 of this Lease; and (iii) sums equal to all expenditures made and obligations incurred by Landlord in collecting or attempting to collect the Rent or in enforcing or attempting to enforce any rights of Landlord under this Lease or
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59. information. Tenant may make any public filing of this lease with the U.S. Securities and Exchange Commission or other regulatory authority as and to the extent required by applicable law. 37.12 Landlord Renovations. Tenant acknowledges that Landlord may from time to time, at Landlord’s sole option, renovate, improve, develop, alter, or modify (collectively, the “Renovations”) portions of the Building(s), Premises, and the Property, which Renovations may include, without limitation any improvement or renovation done to increase the safety or security of the Building(s) in excess of the requirements required by the Laws, as Landlord determines to be necessary in its sole and absolute discretion. In connection with the Renovations, Landlord may, among other things, erect scaffolding or other necessary structures in the Building(s), limit or eliminate access to portions of the Building(s), or perform work in the Building(s), which work may create noise, dust or leave debris in the Building(s). Similarly, other properties in the vicinity of the Building(s) may undergo substantial construction or renovation during the Term, which may cause substantial disturbance to traffic and parking, and may cause dust, noise and vibration which may affect the Premises. Tenant hereby agrees that such Renovations and Landlord’s actions in connection with such Renovations shall in no way constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent, provided that Landlord uses commercially reasonable efforts not to disturb Tenant’s use or quiet enjoyment of the Premises and access to the Premises. Such commercially reasonable efforts may include, at Landlord’s reasonable discretion, after-business hours’ work for Renovations that generate significant noise, dust or vibration. Landlord shall have no responsibility, or for any reason be liable to Tenant, for any direct or indirect injury to or interference with Tenant’s business arising from the Renovations, nor shall Tenant be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Premises or of Tenant’s Property, Alterations or improvements resulting from the Renovations or Landlord’s actions in connection with such Renovations, or for any inconvenience or annoyance occasioned by such Renovations or Landlord’s actions in connection with such Renovations. Notwithstanding the foregoing, for so long as Tenant is the Sole Occupant, Landlord shall not make any Renovations without Tenant’s prior consent, not to be unreasonably withheld, conditioned or delayed; provided, however, that this sentence shall not limit Landlord’s express rights and construction obligations set forth elsewhere in this Lease and the Work Letter. 37.13 Submission of Lease. Neither submission of this instrument for examination by Tenant, nor signature by Tenant shall constitute a reservation of or an option for lease and it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant. 37.14 Counterparts; Electronic Signatures. This Lease may be executed in counterparts, each of which shall constitute an original, but all of which together shall constitute one (1) and the same instrument. The parties hereto consent and agree that this Lease may be signed and/or transmitted by facsimile, e-mail of a .pdf document or using electronic signature technology (e.g., via DocuSign or similar electronic signature technology), and that such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s handwritten signature. The parties further consent and agree that (1) to the extent a party signs this Lease using electronic signature technology, by clicking “SIGN”, such party is signing this Lease electronically, and (2) the electronic signatures appearing on this Lease shall be treated, for purposes of validity, enforceability and admissibility, the same as handwritten signatures 37.15 OFAC Representation. For purposes hereof, “List” shall mean the Specially Designated Nationals and Blocked Persons List maintained by OFAC and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and “OFAC” shall mean the Office of Foreign Assets Control, Department of the Treasury. Each party represents and warrants to the other that, to its knowledge, (i) each person or entity owning a ten percent (10%) or greater interest in such party is (A) not currently identified on the List, and (B) is not a person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States and (ii) each party has implemented procedures, and will consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times. Each party shall comply with all requirements of law relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect and shall use reasonable efforts to notify the other in writing if any of the forgoing
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69. (b) Tenant shall engage a licensed contractor reasonably acceptable to Landlord to install the EV Station(s) and related infrastructure and shall engage a licensed vendor reasonably acceptable to Landlord for the maintenance of the EV Station(s); (c) Tenant shall comply with such reasonable insurance requirements that Landlord may impose in connection with Tenant’s installation and operation of the EV Station(s) and related infrastructure; (d) Any and all EV Station(s) installed by Tenant shall satisfy all applicable Legal Requirements at all times including, without limitation, all applicable health and safety standards and requirements imposed by Governmental Authorities as well as all other applicable zoning, land use or other ordinances or land use permit requirements; (e) Landlord shall designate which parking spaces in the parking areas serving the Project may be utilized by Tenant for the installation and operation of EV Station(s) (the “EV Spaces”). The number of parking spaces that Tenant is entitled to use at the Project shall be reduced by a number equal to the number of EV Stations allocated to Tenant if Tenant ceases to be the Sole Occupant (and upon such cessation, Landlord may, in its reasonable discretion, require Tenant to move any existing EV Station(s) to other areas of the Project). (f) Landlord shall have no obligation to install any EV Stations (except as provided in Paragraph J of the Basic Lease Information) or to operate, repair, maintain or replace any EV Station(s) at the Project and Tenant shall maintain the EV Station(s) (including any initially installed by Landlord), at Tenant’s sole cost and expense, in good repair and condition and in good working order during the Term as though the same were part of the Premises; and (g) Unless Tenant so elects, Tenant shall have no obligation to remove the EV Station(s), provided that Tenant may elect, in Tenant’s sole discretion and at Tenant’s sole cost and expense, to remove the EV Station(s) installed by Tenant and all related infrastructure from the Project, in which case Tenant shall deliver, within seven (7) days, the EV Spaces to Landlord in their original condition prior to the installation of the EV Station(s). 42.1.2 At the expiration or earlier termination of the Term, Tenant shall deliver the EV Spaces to Landlord free of any debris and trash and free of any Hazardous Materials. 42.1.3 Tenant shall be responsible for and shall indemnify, defend and hold Landlord, and its property manager, mortgagees, and ground lessors harmless from and against all of the following: (i) all costs incurred for the maintenance, repair, and replacement of the EV Station(s) and related infrastructure and all costs incurred by Landlord in connection with Tenant’s installation and operation of the EV Station(s) and related infrastructure; and (ii) injury to persons and damage to property (including, without limitation, the Project) resulting from the installation, maintenance, repair, removal, or replacement of the EV Station(s) and related infrastructure. 42.1.4 Notwithstanding anything to the contrary contained herein, Landlord may withhold its approval of any EV Station(s) to the extent that Landlord is not required to approve of such EV Stations pursuant to Section 1952.7 of the California Civil Code. Nothing contained in this Section 42 is intended to increase the number of parking spaces which Tenant is otherwise entitled to use at the Project under Section 1.7 of the Lease nor impose any additional obligations on Landlord with respect to parking by Tenant and/or any other persons at the Project. [Signature Page Follows]
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