LEASE AGREEMENT
Exhibit 10.2
THIS LEASE AGREEMENT (this “Lease”) is made this 8th day of February, 2006,
between ARE-SAN FRANCISCO NO. 26, LLC, a Delaware limited liability company (“Landlord”), and SIRNA
THERAPEUTICS, INC., a Delaware corporation (“Tenant”).
Building:
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The to be constructed building to be known as1700 Xxxxx Street, San Francisco, California | |
The entire fourth floor of the Building, containing approximately 33,042 rentable square feet, as determined by Landlord, as shown on Exhibit A-1 (the “Fourth Floor Premises”), and that certain portion of the fifth floor of the Building, containing approximately 3,714 rentable square feet, as determined by Landlord, as shown on Exhibit A-2 (the “Fifth Floor Premises”). | ||
Project:
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The real property on which the Building in which the Premises will be located, together with all improvements thereon and appurtenances thereto as described on Exhibit B. | |
Base Rent:
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$3.00 per rentable square foot per month for the Fourth Floor Premises and $2.50 per rentable square foot per month for the Fifth Floor Premises, all subject to adjustment as provided for in Section 4 hereof. | |
Rentable Area of Premises: 36,756 sq. ft., subject to adjustment as provided for in the last paragraph of Section 5 hereof. | ||
Rentable Area of Project: 157,340 sq. ft., subject to adjustment as provided for in the last paragraph of Section 5 hereof. | ||
Tenant’s Share of Operating Expenses: 23.36%, subject to adjustment as provided for in the last paragraph of Section 5 hereof. | ||
Security Deposit: $889,029.00 | ||
Rent Adjustment Percentage: Greater of 3% or the CPI Adjustment Percentage (as hereinafter defined) not to exceed 6% | ||
Target Commencement Date: November 15, 2006 | ||
Base Term:
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Beginning on the Commencement Date and ending 84 months from the first day of the first full month following the Commencement Date (as defined in Section 2 hereof). |
Permitted Use:
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Research and development laboratory (including, without limitation, laboratory uses for chemistry and biology), related office and other related uses consistent with the character of the Project and otherwise in compliance with the provisions of Section 7 hereof. |
Address for Rent Payment:
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Landlord’s Notice Address: | |
000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
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000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | |
Xxxxxxxx, XX 00000
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Xxxxxxxx, XX 00000 | |
Attention: Accounts Receivable
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Attention: Corporate Secretary | |
Tenant’s Notice Address: |
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0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
The following Exhibits and Addenda are attached hereto and incorporated herein by this reference:
[X]
EXHIBIT A — PREMISES DESCRIPTION
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[X] EXHIBIT B — DESCRIPTION OF PROJECT | |
[X] EXHIBIT C — WORK LETTER
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[X] EXHIBIT D — COMMENCEMENT DATE | |
[X]
EXHIBIT E — RULES AND REGULATIONS
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[X] EXHIBIT F — TENANT’S PERSONAL PROPERTY | |
[X] EXHIBIT G — TENANT’S SCOPE OF WORK
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[X] EXHIBIT H — BASE BUILDING | |
[X] EXHIBIT I — PARKING
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[X] EXHIBIT J — MISSION BAY REQUIREMENTS | |
[X] EXHIBIT K — SUCCESSOR PROJECT LABOR AGREEMENT |
The “Commencement Date” shall be the earlier of: (i) the date Landlord Delivers the Premises
to Tenant; and (ii) the date Landlord could have Delivered the Premises but for Tenant Delays.
Upon request of Landlord, Tenant shall execute and deliver a written acknowledgment of the
Commencement Date and the expiration date of the Term when such are established in the form of the
“Acknowledgement of Commencement Date” attached to this Lease as Exhibit D; provided,
however, Tenant’s failure to execute and deliver such acknowledgment shall not affect
Landlord’s rights hereunder. The “Term” of this Lease shall be the Base Term, as defined above on
the first page of this Lease.
Except as expressly set forth in this Lease and as set forth in the Work Letter, if
applicable: (i) Tenant shall accept the Premises in their condition as of the Commencement Date,
subject to all applicable Legal Requirements (as defined in Section 7 hereof); (ii)
Landlord shall have no obligation for
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any defects in the Premises; and (iii) Tenant’s taking possession of the Premises shall be
conclusive evidence that Tenant accepts the Premises and that the Premises were in good condition
at the time possession was taken. Any occupancy of the Premises by Tenant before the Commencement
Date shall be subject to all of the terms and conditions of this Lease.
Tenant agrees and acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the condition of all or any portion of the Premises or
the Project, and/or the suitability of the Premises or the Project for the conduct of Tenant’s
business, and Tenant waives any implied warranty that the Premises or the Project are suitable for
the Permitted Use. This Lease constitutes the complete agreement of Landlord and Tenant with
respect to the subject matter hereof and supersedes any and all prior representations, inducements,
promises, agreements, understandings and negotiations which are not contained herein. Landlord in
executing this Lease does so in reliance upon Tenant’s representations, warranties, acknowledgments
and agreements contained herein.
(a) Base Rent for the Fourth Floor Premises shall be increased: (i) on the first anniversary
of the Commencement Date from $3.00 per rentable square foot per month to $3.50 per rentable square
foot per month; and (ii) on the second anniversary of the Commencement Date from $3.50 per rentable
square foot per month to $3.75 per rentable square foot per month. Base Rent for the Fifth Floor
Premises shall be increased: (i) on the first anniversary of the Commencement Date from $2.50 per
rentable square foot per month to $2.58 per rentable square foot per month; and (ii) on the second
anniversary of the Commencement Date from $2.58 per rentable square foot per month to $2.67 per
rentable square foot per month.
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adjustments
for any fractional calendar month shall be prorated. “CPI Adjustment Percentage”
means (i) a fraction, stated as a percentage, the numerator of which shall be the Index for the
calendar month 3 months before the month in which the Adjustment Date occurs, and the denominator
of which shall be the Index for the calendar month 3 months before the last Adjustment Date or, if
no prior Base Rent adjustment has been made, 3 months before the second anniversary of the
Commencement Date, less (ii) 1.00. “Index” means the “Consumer Price Index-All Urban Consumers-San
Francisco-Oakland-San Xxxx, All Items” compiled by the U.S. Department of Labor, Bureau of Labor
Statistics, (1982-84 = 100). If a substantial change is made in the Index, the revised Index shall
be used, subject to such adjustments as Landlord may reasonably deem appropriate in order to make
the revised Index comparable to the prior Index. If the Bureau of Labor Statistics ceases to
publish the Index, then the successor or most nearly comparable index, as reasonably determined by
Landlord, shall be used, subject to such adjustments as Landlord may reasonably deem appropriate in
order to make the new index comparable to the Index. Landlord shall give Tenant written notice
indicating the Base Rent, as adjusted pursuant to this Section, and the method of computation and
Tenant shall pay to Landlord an amount equal to any underpayment of Base Rent by Tenant within 15
days of Landlord’s notice to Tenant. Failure to deliver such notice shall not reduce, xxxxx, waive
or diminish Tenant’s obligation to pay the adjusted Base Rent.
The term “Operating Expenses” means all costs and expenses of any kind or description
whatsoever incurred or accrued each calendar year by Landlord with respect to the Project
(including, without duplication, Taxes (as defined in Section 9), capital repairs and
improvements amortized over the lesser of 10 years and the useful life of such capital items, and
the costs of Landlord’s third party property manager in the amount of 3.0% of Base Rent or, if
there is no third party property manager, administration rent in the amount of 3.0% of Base Rent),
excluding only:
(a) the original construction costs of the Project and renovation prior to the date of the
Lease and costs of correcting defects in such original construction or renovation;
(b) capital expenditures for expansion of the Project;
(c) interest, principal payments of Mortgage (as defined in Section 27) debts of
Landlord, financing costs and amortization of funds borrowed by Landlord, whether secured or
unsecured and all payments of base rent (but not taxes or operating expenses) under any ground
lease or other underlying lease of all or any portion of the Project;
(d) depreciation of the Project (except for capital improvements, the cost of which are
includable in Operating Expenses);
(e) advertising, legal and space planning expenses and leasing commissions and other costs and
expenses incurred in procuring and leasing space to tenants for the Project, including any leasing
office maintained in the Project, free rent and construction allowances for tenants;
(f) legal and other expenses incurred in the negotiation or enforcement of leases;
(g) completing, fixturing, improving, renovating, painting, redecorating or other work, which
Landlord pays for or performs for other tenants within their premises, and costs of correcting
defects in such work;
(h) costs of utilities outside normal business hours sold to tenants of the Project;
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(i) costs to be reimbursed by other tenants of the Project or Taxes to be paid directly by
Tenant or other tenants of the Project, whether or not actually paid;
(j) salaries, wages, benefits and other compensation paid to officers and employees of
Landlord who are not assigned in whole or in part to the operation, management, maintenance or
repair of the Project;
(k) general organizational, administrative and overhead costs relating to maintaining
Landlord’s existence, either as a corporation, partnership, or other entity, including general
corporate, legal and accounting expenses;
(l) costs (including attorneys’ fees and costs of settlement, judgments and payments in lieu
thereof) incurred in connection with disputes with tenants, other occupants, or prospective
tenants, and costs and expenses, including legal fees, incurred in connection with negotiations or
disputes with employees, consultants, management agents, leasing agents, purchasers or mortgagees
of the Building;
(m) costs incurred by Landlord due to the violation by Landlord, its employees, agents or
contractors or any tenant of the terms and conditions of any lease of space in the Project or any
Legal Requirement (as defined in Section 7);
(n) penalties, fines or interest incurred as a result of Landlord’s inability or failure to
make payment of Taxes and/or to file any tax or informational returns when due, or from Landlord«’s
failure to make any payment of Taxes required to be made by Landlord hereunder before delinquency;
(o) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in or to the Project to the extent the same exceeds the costs of
such goods and/or services rendered by unaffiliated third parties on a competitive basis;
(p) costs of Landlord’s charitable or political contributions, or of fine art maintained at
the Project;
(q) costs in connection with services (including electricity), items or other benefits of a
type which are not standard for the Project and which are not available to Tenant without specific
charges therefor, but which are provided to another tenant or occupant of the Project, whether or
not such other tenant or occupant is specifically charged therefor by Landlord;
(r) costs incurred in the sale or refinancing of the Project;
(s) net income taxes of Landlord or the owner of any interest in the Project, franchise,
capital stock, gift, estate or inheritance taxes or any federal, state or local documentary taxes
imposed against the Project or any portion thereof or interest therein;
(t) any expenses otherwise includable within Operating Expenses to the extent actually
reimbursed by persons other than tenants of the Project under leases for space in the Project;
(u) Landlord’s earthquake-related insurance deductibles but only to the extent that Tenant’s
Share of such deductibles exceed $100,000. Tenant shall have the right to elect to fully amortize
(with annualized interest on the unamortized amount at the lesser of 10% or the maximum rate
permitted by law in connection with this Lease) Tenant’s Share of such deductibles over the greater
of the then remaining number of months in the Term of the Lease or 18 months and such payments
shall be due on the first day of each month for the balance of the Term; and
(v) the costs of any Phase I or similar non-invasive environmental audits conducted by
Landlord with respect to the Premises or the Project.
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Within 90 days after the end of each calendar year (or such longer period as may be reasonably
required), Landlord shall furnish to Tenant a statement (an “Annual Statement”) showing in
reasonable detail: (a) the total and Tenant’s Share of actual Operating Expenses for the previous
calendar year, and (b) the total of Tenant’s payments in respect of Operating Expenses for such
year. If Tenant’s Share of actual Operating Expenses for such year exceeds Tenant’s payments of
Operating Expenses for such year, the excess shall be due and payable by Tenant as Rent within 30
days after delivery of such Annual Statement to Tenant. If Tenant’s payments of Operating Expenses
for such year exceed Tenant’s Share of actual Operating Expenses for such year Landlord shall pay
the excess to Tenant within 30 days after delivery of such Annual Statement, except that after the
expiration, or earlier termination of the Term or if Tenant is delinquent in its obligation to pay
Rent, Landlord shall pay the excess to Tenant after deducting all other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless Tenant, within 30 days
after Tenant’s receipt thereof, shall contest any item therein by giving written notice to
Landlord, specifying each item contested and the reason therefor. If, during such 30 day period,
Tenant reasonably and in good faith questions or contests the accuracy of Landlord’s statement of
Tenant’s Share of Operating Expenses, Landlord will provide Tenant with access to Landlord’s books
and records relating to the operation of the Project and such information as Landlord reasonably
determines to be responsive to Tenant’s questions (the “Expense Information”). If after Tenant’s
review of such Expense Information, Landlord and Tenant cannot agree upon the amount of Tenant’s
Share of Operating Expenses, then Tenant shall have the right to have an independent public
accounting firm selected by Tenant from among the 4 largest in the United States, working pursuant
to a fee arrangement other than a contingent fee (at Tenant’s sole cost and expense) and approved
by Landlord (which approval shall not be unreasonably withheld or delayed), audit and/or review the
Expense Information for the year in question (the “Independent Review”). The results of any such
Independent Review shall be binding on Landlord and Tenant. If the Independent Review shows that
the payments actually made by Tenant with respect to Operating Expenses for the calendar year in
question exceeded Tenant’s Share of Operating Expenses for such calendar year, Landlord shall at
Landlord’s option either (i) credit the excess amount to the next succeeding installments of
estimated Operating Expenses or (ii) pay the excess to Tenant within 30 days after delivery of such
statement, except that after the expiration or earlier termination of this Lease or if Tenant is
delinquent in its obligation to pay Rent, Landlord shall pay the excess to Tenant after deducting
all other amounts due Landlord. If the Independent Review shows that Tenant’s payments with
respect to Operating Expenses for such calendar year were less than Tenant’s Share of Operating
Expenses for the calendar year, Tenant shall pay the deficiency to Landlord within 30 days after
delivery of such statement. If the Independent Review shows that Tenant has overpaid with respect
to Operating Expenses by more than 5% then Landlord shall reimburse Tenant for all costs incurred
by Tenant for the Independent Review. Operating Expenses for the calendar years in which Tenant’s
obligation to share therein begins and ends shall be prorated. Notwithstanding anything set forth
herein to the contrary, if the Building is not at least 95% occupied on average during any year of
the Term, Tenant’s Share of Operating Expenses for such year shall be computed as though the
Building had been 95% occupied on average during such year.
Landlord shall, within 120 days after Substantial Completion of the Tenant Improvements, cause
the rentable square footage of the Premises and the Building to be measured in accordance with the
1996 Standard Method of Measuring Floor Area in Office Buildings as adopted by the Building Owners
and Managers Association (ANSI/BOMA Z65.1-1996). A copy of the letter or report from Landlord’s
architect or engineer setting forth the Rentable Area of the Premises and the Building, together
with all documentary support therefor, shall be furnished to Tenant. If the actual square footage
of the Premises and Building deviates from the amount specified in the definitions of “Premises”,
“Rentable Area of Premises” and “Rentable Area of Project” on page 1 of this Lease, then, promptly
following such measurement, this Lease shall be amended so as to (i) reflect the actual square
footage thereof in the definitions of “Premises”, “Rentable Area of Premises” and “Rentable Area of
Project”, and (ii) appropriately adjust the amount set forth in the definition of “Tenant’s Share
of Operating Expenses” which was calculated based on the estimated square footage of the Premises
and the Building; provided, however, that in no event shall the actual square footage of the
Premises (and the related calculation of Tenant’s Share of Operating Expenses) change, as a result
of such measurement, by more than 1,000
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square feet from that set forth on Page 1 of this Lease. The results of the measurement
provided for in the first sentence of this paragraph shall conclusively be deemed to be the
rentable square footage of the Premises shall not be subject to further remeasurement. Tenant’s
Share of Operating Expenses shall be subject to further adjustment for changes in the physical size
of the Building or the Project occurring thereafter. If Landlord has a reasonable basis for doing
so, Landlord may equitably increase Tenant’s Share for any item of expense or cost reimbursable by
Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a
portion of the Project that includes the Premises or that varies with occupancy or use. Landlord
agrees to use reasonable efforts to include the foregoing sentence or a provision similar thereto
in other tenant leases at the Project. Base Rent, Tenant’s Share of Operating Expenses and all
other amounts payable by Tenant to Landlord hereunder are collectively referred to herein as
“Rent.”
Landlord shall, upon Tenant’s written request, reduce the Security Deposit by $74,085.75 each
calendar year during the Term of this Lease; provided, however, that at the time of each request:
(i) Tenant provides Landlord with written evidence reasonably satisfactory to Landlord that Tenant
has a market capitalization of at least $500,000,000, and (ii) Tenant has not been in default under
this Lease. Notwithstanding anything to the contrary contained in the preceding sentence, in no
event shall the Security Deposit be reduced to an amount of less than $222,257.25. After each
reduction, the amount of the Security Deposit then being held by Landlord shall be the “Reduced
Security Deposit”. The
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reduction of the Security Deposit shall be effectuated either by Tenant providing Landlord with a new Letter
of Credit and Landlord then returning the then current Letter of Credit to Tenant or Landlord
drawing down on the then current Letter of Credit in the amount of the applicable reduction and
paying the draw down amount to Tenant. If Landlord returns to Tenant any portion of the Security
Deposit in accordance with this Section, then from and after the date such monies are returned to
Tenant, the “Security Deposit” shall be deemed to be the Reduced Security Deposit for all purposes
of this Lease.
If Landlord transfers its interest in the Project or this Lease, Landlord shall either (a)
transfer any Security Deposit then held by Landlord to a person or entity assuming Landlord’s
obligations under this Section 6, or (b) return to Tenant any Security Deposit then held by
Landlord and remaining after the deductions permitted herein. Upon such transfer to such
transferee or the return of the Security Deposit to Tenant, Landlord shall have no further
obligation with respect to the Security Deposit, and Tenant’s right to the return of the Security
Deposit shall apply solely against Landlord’s transferee. The Security Deposit is not an advance
rental deposit or a measure of Landlord’s damages in case of Tenant’s default. Landlord’s
obligation respecting the Security Deposit is that of a debtor, not a trustee, and no interest
shall accrue thereon.
Following the Commencement Date (i.e. Substantial Completion of the Tenant Improvements),
Tenant, at its sole expense, shall make any alterations or modifications to the interior or the
exterior of the Premises or the Project that are required by Legal Requirements (including, without
limitation, compliance of the Premises with the ADA) related to Tenant’s use or occupancy of the
Premises. Notwithstanding any other provision herein to the contrary, Tenant shall be responsible
for any and all demands, claims,
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liabilities, losses, costs, expenses, actions, causes of action,
damages or judgments, and all reasonable
expenses incurred in investigating or resisting the same (including, without limitation,
reasonable attorneys’ fees, charges and disbursements and costs of suit) (collectively, “Claims”)
arising out of or in connection with Legal Requirements, and Tenant shall indemnify, defend, hold
and save Landlord harmless from and against any and all Claims arising out of or in connection with
any failure of the Premises to comply with any Legal Requirement.
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parking spaces per 1,000 rentable square feet of the Premises which parking
shall be in those areas
designated by Landlord for non-reserved parking on land adjacent to or nearby the Project,
subject in each case to Landlord’s rules and regulations and payment of $125 per month for each
surface parking space and $250 per month for each structured parking space. Commencing on the
first anniversary of the Commencement Date and on each anniversary thereafter, the parking charges
provided for in the preceding sentence shall be increased by the Rent Adjustment Percentage. With
respect to the parking allocated to Tenant pursuant to this Section 10, Landlord shall make
the determination of how many of such spaces shall be surface parking spaces and how many shall be
structured parking spaces (after such structure has been constructed). Landlord shall not be
responsible for enforcing Tenant’s parking rights against any third parties, including other
tenants of the Project. Nothing contained herein shall obligate Tenant to use any of the parking
spaces allocated to Tenant pursuant to this Section 10. In the event that Tenant at any
time elects not to use and/or ceases to use any of the parking spaces allocated to Tenant pursuant
to this Section 10, Tenant shall be deemed to have forever waived its right to use such
parking spaces; provided, however, that in no event shall Tenant be deemed to have waived its
rights with respect to or elected not to use any of the parking spaces allocated to it prior to the
Commencement Date.
Tenant shall comply with the requirements and participate in the Transportation Management
Association (“TMA”) that was formed to implement and administer the Transportation System
Management Plan (“TSMP”) for Mission Bay and comply with the requirements set forth in Exhibit I
attached hereto setting forth certain requirements relating to parking and transportation demand
management which are binding on tenant in the Project. Tenant acknowledges that Operating Expenses
shall include expenses and assessments related to the TMA and TSMP.
Landlord shall provide, subject to the terms of this Section 11, water, electricity,
heat, light, power, telephone, a minimum point of entry for IT, sewer, and other utilities
(including gas and fire sprinklers to the extent the Project is plumbed for such services), refuse
and trash collection and janitorial services (collectively, “Utilities”). Except for any
separately metered Utilities to the Premises, Landlord shall pay, as Operating Expenses or subject
to Tenant’s reimbursement obligation, for all Utilities used on the Premises, all maintenance
charges for Utilities, and any storm sewer charges or other similar charges for Utilities imposed
by any Governmental Authority or Utility provider, and any taxes, penalties, surcharges or similar
charges thereon. If Landlord has a reasonable basis for doing so (e.g., Tenant use of any
Utilities is excessive relative to other tenants), Landlord may cause, at Tenant’s expense, any
Utilities to be separately metered or charged directly to Tenant by the provider. Tenant shall pay
directly to the Utility provider, prior to delinquency, any separately metered Utilities and
services which may be furnished to Tenant or the Premises during the Term. Tenant shall pay, as
part of Operating Expenses, its share of all charges for jointly metered Utilities based upon
consumption, as reasonably determined by Landlord. No interruption or failure of Utilities, from
any cause whatsoever other than Landlord’s willful misconduct, shall result in eviction or
constructive eviction of Tenant, termination of this Lease or the abatement of Rent. Tenant agrees
to limit use of water and sewer with respect to Common Areas to normal restroom use.
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plans, specifications,
bid proposals, work contracts and such other information concerning the nature and
cost of the alterations as may be reasonably requested by Landlord, including the identities
and mailing addresses of all persons performing work or supplying materials. Landlord’s right to
review plans and specifications and to monitor construction shall be solely for its own benefit,
and Landlord shall have no duty to ensure that such plans and specifications or construction comply
with applicable Legal Requirements. Tenant shall cause, at its sole cost and expense, all
Alterations to comply with insurance requirements and with Legal Requirements and shall implement
at its sole cost and expense any alteration or modification required by Legal Requirements as a
result of any Alterations. Tenant shall pay to Landlord, as Additional Rent, on demand an amount
equal to 5% of all charges incurred by Tenant or its contractors or agents in connection with any
Alteration to cover Landlord’s overhead and expenses for plan review, coordination, scheduling and
supervision. Before Tenant begins any Alteration, Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall reimburse Landlord for, and
indemnify and hold Landlord harmless from, any expense incurred by Landlord by reason of faulty
work done by Tenant or its contractors, delays caused by such work, or inadequate cleanup.
Tenant shall furnish security or make other arrangements reasonably satisfactory to Landlord
to assure payment for the completion of all Alterations work free and clear of liens, and shall
provide (and cause each contractor or subcontractor to provide) certificates of insurance for
workers’ compensation and other coverage in amounts and from an insurance company reasonably
satisfactory to Landlord protecting Landlord against liability for personal injury or property
damage during construction. Upon completion of any Alterations, Tenant shall deliver to Landlord:
(i) final lien waivers from all contractors and subcontractors who did the work; and (ii) “as
built” plans for any such Alteration.
Except for Removable Installations (as hereinafter defined), all Installations (as hereinafter
defined) shall be and shall remain the property of Landlord during the Term and following the
expiration or earlier termination of the Term, shall not be removed by Tenant at any time during
the Term, and shall remain upon and be surrendered with the Premises as a part thereof.
Notwithstanding the foregoing, Landlord may, at the time its approval of any such Installation is
requested, notify Tenant that Landlord requires that Tenant remove such Installation upon the
expiration or earlier termination of the Term, in which event Tenant shall remove such Installation
in accordance with the immediately succeeding sentence. Upon the expiration or earlier termination
of the Term, Tenant shall remove (i) all wires, cables or similar equipment which Tenant has
installed in the Premises or in the risers or plenums of the Building, (ii) any Installations for
which Landlord has given Tenant notice of removal in accordance with the immediately preceding
sentence, and (iii) all of Tenant’s Property (as hereinafter defined), and Tenant shall restore and
repair any damage caused by or occasioned as a result of such removal, including, without
limitation, capping off all such connections behind the walls of the Premises and repairing any
holes. During any restoration period beyond 7 days after the expiration or earlier termination of
the Term, Tenant shall pay Rent to Landlord as provided herein as if said space were otherwise
occupied by Tenant.
For purposes of this Lease, (w) “Removable Installations” means any items listed on Exhibit F
attached hereto and any items agreed by Landlord in writing to be included on Exhibit F in the
future, (x) “Tenant’s Property” means Removable Installations and, other than Installations, any
personal property or equipment of Tenant that may be removed without material damage to the
Premises, and (z) “Installations” means all property of any kind paid for with the TI Fund or by
Landlord, 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, built-in plumbing, electrical and mechanical equipment and systems, and any power
generator and transfer switch.
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(“Building Systems”), in good repair, reasonable wear and tear and uninsured losses and
damages
caused by Tenant, or by any of Tenant’s agents, servants, employees, invitees and contractors
(collectively, “Tenant Parties”) excluded. Losses and damages caused by Tenant or any Tenant Party
shall be repaired by Landlord, to the extent not covered by insurance, at Tenant’s sole cost and
expense. Landlord reserves the right to stop Building Systems services when necessary (i) by
reason of accident or emergency, or (ii) for planned repairs, alterations or improvements, which
are, in the judgment of Landlord, desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed. Landlord shall use reasonable efforts to
minimize interference with Tenant’s normal business operations at the Premises in connection with
any planned stoppages of Building Systems. Landlord shall have no responsibility or liability for
failure to supply Building Systems services during any such period of interruption;
provided, however, that Landlord shall, except in case of emergency, make a
commercially reasonable effort to give Tenant 24 hours advance notice of any planned stoppage of
Building Systems services for routine maintenance, repairs, alterations or improvements. Tenant
shall promptly give Landlord written notice of any repair required by Landlord pursuant to this
Section, after which Landlord shall make a commercially reasonable effort to effect such repair.
Landlord shall not be liable for any failure to make any repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after Tenant’s written notice of the
need for such repairs or maintenance. Tenant waives its rights under any state or local law to
terminate this Lease or to make such repairs at Landlord’s expense and agrees that the parties’
respective rights with respect to such matters shall be solely as set forth herein. Repairs
required as the result of fire, earthquake, flood, vandalism, war, or similar cause of damage or
destruction shall be controlled by Section 18.
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unless caused solely by the willful misconduct or gross negligence of Landlord.
Landlord shall not be
liable to Tenant for, and Tenant assumes all risk of damage to, personal property (including,
without limitation, loss of records kept within the Premises). Tenant further waives any and all
Claims for injury to Tenant’s business or loss of income relating to any such damage or destruction
of personal property (including, without limitation, any loss of records). Landlord shall not be
liable for any damages arising from any act, omission or neglect of any tenant in the Project or of
any other third party.
Tenant, at its sole cost and expense, shall maintain during the Term: all risk property
insurance with business interruption and extra expense coverage, covering the full replacement cost
of all property and improvements installed or placed in the Premises by Tenant at Tenant’s expense;
workers’ compensation insurance with no less than the minimum limits required by law; employer’s
liability insurance with such limits as required by law; and commercial general liability
insurance, with a minimum limit of not less than $2,000,000 per occurrence for bodily injury and
property damage with respect to the Premises. The commercial general liability insurance policy
shall name Landlord, its officers, directors, employees, managers, agents, invitees and contractors
(collectively, “Landlord Parties”), as additional insureds. The commercial general liability
insurance policy shall insure on an occurrence and not a claims-made basis; shall be issued by
insurance companies which have a rating of not less than policyholder rating of A and financial
category rating of at least Class X in “Best’s Insurance Guide”; shall not be cancelable for
nonpayment of premium unless 10 days prior written notice shall have been given to Landlord from
the insurer; contain a hostile fire endorsement and a contractual liability endorsement; and
provide primary coverage to Landlord (any policy issued to Landlord providing duplicate or similar
coverage shall be deemed excess over Tenant’s policies). Copies of such policies (if requested by
Landlord), or certificates of insurance showing the limits of coverage required hereunder and
showing Landlord as an additional insured, along with reasonable evidence of the payment of
premiums for the applicable period, shall be delivered to Landlord by Tenant upon commencement of
the Term and upon each renewal of said insurance. Tenant’s policy may be a “blanket policy” with
an aggregate per location endorsement which specifically provides that the amount of insurance
shall not be prejudiced by other losses covered by the policy. Tenant shall, at least 5 days prior
to the expiration of such policies, furnish Landlord with renewal certificates.
In each instance where insurance is to name Landlord as an additional insured, Tenant shall
upon written request of Landlord also designate and furnish certificates so evidencing Landlord as
additional insured to: (i) any lender of Landlord holding a security interest in the Project or
any portion thereof, (ii) the landlord under any lease wherein Landlord is tenant of the real
property on which the Project is located, if the interest of Landlord is or shall become that of a
tenant under a ground or other underlying lease rather than that of a fee owner, and/or (iii) any
management company retained by Landlord to manage the Project.
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The property insurance obtained by Landlord and Tenant shall include a waiver of subrogation
by the insurers and all rights based upon an assignment from its insured, against Landlord or
Tenant, and
their respective officers, directors, employees, managers, agents, invitees and contractors
(“Related Parties”), in connection with any loss or damage thereby insured against. Neither party
nor its respective Related Parties shall be liable to the other for loss or damage caused by any
risk insured against under property insurance required to be maintained hereunder, and each party
waives any claims against the other party, and its respective Related Parties, for such loss or
damage. The failure of a party to insure its property shall not void this waiver. Landlord and
its respective Related Parties shall not be liable for, and Tenant hereby waives all claims against
such parties for, business interruption and losses occasioned thereby sustained by Tenant or any
person claiming through Tenant resulting from any accident or occurrence in or upon the Premises or
the Project from any cause whatsoever. If the foregoing waivers shall contravene any law with
respect to exculpatory agreements, the liability of Landlord or Tenant shall be deemed not released
but shall be secondary to the other’s insurer.
Landlord may require insurance policy limits to be raised to conform with requirements of
Landlord’s lender and/or to bring coverage limits to levels then being generally required of new
tenants within the Project.
Tenant, at its expense, shall promptly perform, subject to delays arising from the collection
of insurance proceeds, from Force Majeure (as defined in Section 34) events or to obtain
Hazardous Material Clearances, all repairs or restoration not required to be done by Landlord and
shall promptly re-enter the Premises and commence doing business in accordance with this Lease.
Notwithstanding the foregoing, Landlord may terminate this Lease if the Premises are damaged during
the last 1 year of the Term and Landlord reasonably estimates that it will take more than 2 months
to repair such damage, or if insurance proceeds are not available for such restoration. Rent shall
be abated from the date all required
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Hazardous Material Clearances required in order to proceed
with the repair and/or restoration of the Premises, if any, are obtained until the Premises are
repaired and restored, in the proportion which the
area of the Premises, if any, which is not usable by Tenant bears to the total area of the
Premises, unless Landlord provides Tenant with other space during the period of repair that is
suitable for the temporary conduct of Tenant’s business. Such abatement shall be the sole remedy
of Tenant, and except as provided in this Section 18, Tenant waives any right to terminate
the Lease by reason of damage or casualty loss.
The provisions of this Lease, including this Section 18, constitute an express
agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all
or any part of the Premises, or any other portion of the Project, and any statute or regulation
which is now or may hereafter be in effect shall have no application to this Lease or any damage or
destruction to all or any part of the Premises or any other portion of the Project, the parties
hereto expressly agreeing that this Section 18 sets forth their entire understanding and
agreement with respect to such matters.
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Any notice given under Section 20(h) hereof shall: (i) specify the alleged default,
(ii) demand that Tenant cure such default, (iii) be in lieu of, and not in addition to, or shall be
deemed to be, any notice required under any provision of applicable law, and (iv) not be deemed a
forfeiture or a termination of this Lease unless Landlord elects otherwise in such notice;
provided that if the nature of Tenant’s default pursuant to Section 20(h) is such
that it cannot be cured by the payment of money and reasonably requires more than 10 days to cure,
then Tenant shall not be deemed to be in default if Tenant commences such cure within said 10 day
period and thereafter diligently prosecutes the same to completion; provided,
however, that such cure shall be completed no later than 30 days from the date of
Landlord’s notice.
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(i) Terminate this Lease, or at Landlord’s option, Tenant’s right to possession only,
in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant
fails to do so, Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying the Premises or any part thereof,
without being liable for prosecution or any claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant to the foregoing Section
21(c)(i) or otherwise, Landlord may recover from Tenant the following:
(A) The worth at the time of award of any unpaid rent which has been earned at
the time of such termination; plus
(B) The worth at the time of award of the amount by which the unpaid rent which
would have been earned after termination until the time of award exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided; plus
(C) The worth at the time of award of the amount by which the unpaid rent for
the balance of the Term after the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant’s failure to perform its obligations under this Lease
or which in the ordinary course of things would be likely to result therefrom,
specifically including, but not limited to, the following costs: brokerage
commissions and advertising expenses incurred, expenses of remodeling the Premises
or any portion thereof for a new tenant, whether for the same or a different use,
and any special concessions made to obtain a new tenant; provided, however that
Tenant only shall be responsible for it pro-rata share of such brokerage
commissions, advertising expenses, remodeling expenses and special concessions (with
the numerator being the number of months that would have remained in the Term of
this Lease but for the termination and the denominator being the amount of the
numerator plus the term of the new lease).
(E) At Landlord’s election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.
The term “rent” as used in this Section 21 shall be deemed to be and to mean all
sums of every nature required to be paid by Tenant pursuant to the terms of this Lease,
whether to Landlord or to others. As used in Sections 21(c)(ii) (A) and
(B), above, the “worth at the time of award” shall be computed by allowing interest
at the Default Rate. As used in Section 21(c)(ii)(C) above, the “worth at the time
of award” shall be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%.
(iii) Landlord may continue this Lease in effect after Tenant’s Default and recover
rent as it becomes due (Landlord and Tenant hereby agreeing that Tenant has the right to
sublet or assign hereunder, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease following a Default by Tenant, Landlord may,
from time to time, without terminating this Lease, enforce all of its rights and remedies
hereunder, including the right to recover all Rent as it becomes due.
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(iv) Whether or not Landlord elects to terminate this Lease following a Default by
Tenant, Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord’s sole discretion, succeed to Tenant’s interest
in such subleases, licenses, concessions or arrangements. Upon Landlord’s election to
succeed to Tenant’s interest in any such subleases, licenses, concessions or arrangements,
Tenant shall, as of the date of notice by Landlord of such election, have no further right
to or interest in the rent or other consideration receivable thereunder.
(v) Independent of the exercise of any other remedy of Landlord hereunder or under
applicable law, Landlord may conduct an environmental test of the Premises as generally
described in Section 30(d) hereof, at Tenant’s expense.
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used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment
Date, any relationship between Tenant and the proposed assignee or sublessee, and all material
terms and conditions of the proposed assignment or sublease, including a copy of any proposed
assignment or sublease in its final form, and such other information as Landlord may deem
reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord
may, by giving written notice to Tenant within 15 business days after receipt of the Assignment
Notice: (i) grant such consent, (ii) refuse such consent, in its reasonable discretion; provided
that it shall be reasonable for Landlord to withhold its consent to any assignment or subletting to
an assignee or subtenant whose business or financial reputation is objectionable in Landlord’s
reasonable judgment, or that is engaged in areas of scientific research or other business concerns
that are controversial, in Landlord’s reasonable judgment, or that is at that time negotiating with
Landlord or any affiliates of Landlord for the lease of other space at the Project, or that would
require the removal of, or result in any changes, to Landlord’s Work, or (iii) terminate this
Lease with respect to the space described in the Assignment Notice as of the Assignment Date (an
“Assignment Termination”). If Landlord delivers notice of its election to exercise an Assignment
Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to
Landlord of such election within 5 business days after Landlord’s notice electing to exercise the
Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall continue in
full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the
term and estate herein granted, shall terminate as of the Assignment Date with respect to the space
described in such Assignment Notice. No failure of Landlord to exercise any such option to
terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be
deemed to be Landlord’s consent to the proposed assignment, sublease or other transfer. Tenant
shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with
its consideration of any Assignment Notice.
Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a
subletting of any portion of the Premises to any entity controlling, controlled by or under common
control with Tenant (a “Control Permitted Assignment”) shall not be required, provided that
Landlord shall have the right to approve the form of any such sublease or assignment. In addition,
Tenant shall have the right to assign this Lease, upon 30 days prior written notice to Landlord, to
a corporation or other entity which is a successor-in-interest to Tenant, by way of merger,
consolidation or corporate reorganization, or by the purchase of all or substantially all of the
assets or the ownership interests of Tenant provided that (i) such merger or consolidation, or such
acquisition or assumption, as the case may be, is for a good business purpose and not principally
for the purpose of transferring the Lease, and (ii) the net worth (as determined in accordance with
generally accepted accounting principles (“GAAP”)) of the assignee is not less than the net worth
(as determined in accordance with GAAP) of Tenant as of the date of Tenant’s most current quarterly
or annual financial statements, and (iii) such assignee shall agree in writing to assume all of the
terms, covenants and conditions of this Lease arising after the effective date of the assignment (a
“Corporate Permitted Assignment”). Control Permitted Assignments and Corporate Permitted
Assignments are hereinafter referred to as “Permitted Assignments.”
(i) that any assignee or subtenant agree, in writing at the time of such assignment or
subletting, that if Landlord gives such party notice that Tenant is in default under this
Lease, such party shall thereafter make all payments otherwise due Tenant directly to
Landlord, which payments will be received by Landlord without any liability except to credit
such payment against those due under the Lease, and any such third party shall agree to
attorn to Landlord or its successors and assigns should this Lease be terminated for any
reason; provided, however, in no event shall Landlord or its successors or
assigns be obligated to accept such attornment; and
(ii) A list of Hazardous Materials, certified by the proposed assignee or sublessee to
be true and correct, which the proposed assignee or sublessee intends to use, store, handle,
treat, generate in or release or dispose of from the Premises, together with copies of all
documents relating to such use, storage, handling, treatment, generation, release or
disposal of
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Hazardous Materials by the proposed assignee or subtenant in the Premises or on the
Project, prior to the proposed assignment or subletting, including, without limitation:
permits; approvals; reports and correspondence; storage and management plans; plans relating
to the installation of any storage tanks to be installed in or under the Project (provided,
said installation of tanks shall only be permitted after Landlord has given its written
consent to do so, which consent may be withheld in Landlord’s sole and absolute discretion);
and all closure plans or any other documents required by any and all federal, state and
local Governmental Authorities for any storage tanks installed in, on or under the Project
for the closure of any such tanks. Neither Tenant nor any such proposed assignee or
subtenant is required, however, to provide Landlord with any portion(s) of the such
documents containing information of a proprietary nature which, in and of themselves, do not
contain a reference to any Hazardous Materials or hazardous activities.
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such defaults if any are claimed, and (iii) setting forth such further information with
respect to the status of this Lease or the Premises as may be requested thereon. Any such
statement may be relied upon by any prospective purchaser or encumbrancer of all or any portion of
the real property of which the Premises are a part. Tenant’s failure to deliver such statement
within such time shall, at the option of Landlord, constitute a Default under this Lease, and, in
any event, shall be conclusive upon Tenant that the Lease is in full force and effect and without
modification except as may be represented by Landlord in any certificate prepared by Landlord and
delivered to Tenant for execution.
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shall be accompanied by a current listing of (i) all Hazardous Materials licenses and permits held
by or on behalf of 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. 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 Tenant HazMat
Operations as Landlord shall 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 perform such additional
procedures as may be deemed reasonably necessary to confirm that the Premises are, as of the
effective date of such surrender or early termination of the Lease, free from any residual impact
from Tenant HazMat Operations. Tenant shall reimburse Landlord, as Additional Rent, for the actual
out-of pocket expense incurred by Landlord for Landlord’s environmental consultant to review and
approve the Surrender Plan and to visit the Premises and verify satisfactory completion of the
same, which cost shall not exceed $5,000. Landlord shall have the unrestricted right to deliver
such Surrender Plan and any report by Landlord’s environmental consultant with respect to the
surrender of the Premises to third parties.
If Tenant shall fail to prepare or submit a Surrender Plan approved by Landlord, or if Tenant
shall fail to complete the approved Surrender Plan, or if such Surrender Plan, whether or not
approved by Landlord, shall fail to adequately address any residual effect of Tenant HazMat
Operations in, on or about the Premises, Landlord shall have the right to take such actions as
Landlord may deem reasonable or appropriate to assure that the Premises and the Project are
surrendered free from any residual impact from Tenant HazMat Operations, the cost of which actions
shall be reimbursed by Tenant as Additional Rent, without regard to the limitation set forth in the
first paragraph of this Section 28.
Tenant shall immediately return to Landlord all keys and/or access cards to parking, the
Project, restrooms or all or any portion of the Premises furnished to or otherwise procured by
Tenant. If any such access card or key is lost, Tenant shall pay to Landlord, at Landlord’s
election, either the cost of replacing such lost access card or key or the cost of reprogramming
the access security system in which such access card was used or changing the lock or locks opened
by such lost key. Any Tenant’s Property, Alterations and property not so removed by Tenant as
permitted or required herein shall be deemed abandoned and may be stored, removed, and disposed of
by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any damages
resulting from Landlord’s retention and/or disposition of such property. All obligations of Tenant
hereunder not fully performed as of the termination of the Term, including the obligations of
Tenant under Section 30 hereof, shall survive the expiration or earlier termination of the
Term, including, without limitation, indemnity obligations, payment obligations with respect to
Rent and obligations concerning the condition and repair of the Premises.
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otherwise occurs during the Term or any holding over, Tenant hereby indemnifies and shall
defend and hold Landlord, its officers, directors, employees, agents and contractors harmless from
any and all actions (including, without limitation, remedial or enforcement actions of any kind,
administrative or judicial proceedings, and orders or judgments arising out of or resulting
therefrom), costs, claims, damages (including, without limitation, punitive damages and damages
based upon diminution in value of the Premises or the Project, or the loss of, or restriction on,
use of the Premises or any portion of the Project), expenses (including, without limitation,
attorneys’, consultants’ and experts’ fees, court costs and amounts paid in settlement of any
claims or actions), fines, forfeitures or other civil, administrative or criminal penalties,
injunctive or other relief (whether or not based upon personal injury, property damage, or
contamination of, or adverse effects upon, the environment, water tables or natural resources),
liabilities or losses (collectively, “Environmental Claims”) which arise during or after the Term
as a result of such contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site conditions or any cleanup,
treatment, remedial, removal, or restoration work required by any federal, state or local
Governmental Authority because of Hazardous Materials present in the air, soil or ground water
above, on, or under the Premises. Without limiting the foregoing, if the presence of any Hazardous
Materials on the Premises, the Project or any adjacent property caused or permitted by Tenant or
any Tenant Party results in any contamination of the Premises, the Project or any adjacent
property, Tenant shall promptly take all actions at its sole expense and in accordance with
applicable Environmental Requirements as are necessary to return the Premises, the Building, the
Project or any adjacent property to the condition existing prior to the time of such contamination,
provided that Landlord’s approval of such action shall first be obtained, which approval shall not
unreasonably be withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Premises or the Project.
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the environment under any Environmental Requirements, asbestos and petroleum, including crude
oil or any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic gas usable
for fuel (or mixtures of natural gas and such synthetic gas). As defined in Environmental
Requirements, Tenant is and shall be deemed to be the “operator” of Tenant’s “facility” and the
“owner” of all Hazardous Materials brought on the Premises by Tenant or any Tenant Party, and the
wastes, by-products, or residues generated, resulting, or produced therefrom.
All obligations of Landlord under this Lease will be binding upon Landlord only during the
period of its ownership of the Premises and not thereafter. The term “Landlord” in this Lease
shall mean only the owner for the time being of the Premises. Upon the transfer by such owner of
its interest in the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be binding during the Term
upon each new owner for the duration of such owner’s ownership.
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0000 Xxxxx/Xxxxx — Page 27 |
any signs, notices, window or door lettering, placards, decorations, or advertising media of
any type which can be viewed from the exterior of the Premises. Interior signs on doors and the
directory tablet shall be inscribed, painted or affixed for Tenant by Landlord at the sole cost and
expense of Tenant, and shall be of a size, color and type acceptable to Landlord. Nothing may be
placed on the exterior of corridor walls or corridor doors other than Landlord’s standard
lettering.
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(j) Incorporation by Reference. All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. If there is any conflict between such
exhibits or addenda and the terms of this Lease, such exhibits or addenda shall control.
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1700 Xxxxx/Sirna — Page 29 |
TENANT: | ||||||
SIRNA THERAPEUTICS, INC., | ||||||
a Delaware corporation | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | President and Chief Executive Officer |
LANDLORD: | ||||||||||
ARE-SAN FRANCISCO NO. 26, LLC, | ||||||||||
a Delaware limited liability company | ||||||||||
By: | ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership, managing member |
|||||||||
By: | ARE-QRS CORP., a Maryland corporation, general partner | |||||||||
By: | /s/ Xxxxxxxx Xxxxxx | |||||||||
Its: | VP and Assistant Secretary |
1700 Xxxxx/Sirna — Page 1
EXHIBIT A-1 TO LEASE
DESCRIPTION OF FOURTH FLOOR PREMISES
[Attached]
0000 Xxxxx/Xxxxx — Page 1
EXHIBIT A-2 TO LEASE
DESCRIPTION OF FIFTH FLOOR PREMISES
Landlord and Tenant acknowledge that Tenant has not yet selected which of the two Space Plans
Tenant would like use for the Fifth Floor Premises and accordingly both are being attached as
Exhibit A-2 and Xxxxxxx X.
0000 Xxxxx/Xxxxx — Page 1
EXHIBIT B TO LEASE
DESCRIPTION OF PROJECT
Real property in the City of San Francisco, County of San Francisco, State of California,
described as follows:
LOT 7, AS SAID LOT IS SHOWN ON THAT CERTAIN MAP ENTITLED “FINAL MAP PLANNED DEVELOPMENT MISSION
BAY, BEING PHASE 1 OF A SUBDIVISION OF LOT 1 OF ASSESSOR’S BLOCK 8709, AS SHOWN ON THAT CERTAIN MAP
ENTITLED ‘MAP OF MISSION BAY’ RECORDED ON JULY 19, 1999, IN BOOK Z OF MAPS AT PAGES 97-119 IN THE
OFFICE OF THE RECORDER OF THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA”, FILED JANUARY 25, 2001
IN BOOK Z OF MAPS AT PAGES 154 TO 162, INCLUSIVE, IN THE OFFICE OF THE RECORDER OF THE CITY AND
COUNTY OF SAN FRANCISCO, CALIFORNIA, AS SUCH FINAL MAP WAS CORRECTED BY THAT CERTAIN “CERTIFICATE
OF CORRECTION” RECORDED APRIL 2, 2003, IN REEL I357, IMAGE 396, SERIES NO. 2003-H398817, IN THE
OFFICE OF SUCH RECORDER.
[The foregoing legal description does not include any exceptions or reservations or any
easements that may be appurtenant to such real property]
0000 Xxxxx/Xxxxx — Page 1
EXHIBIT C TO LEASE
WORK LETTER
THIS WORK LETTER dated February 8, 2006 (this “Work Letter”) is made and entered into by and
between ARE-SAN FRANCISCO NO. 26, LLC, LLC, a Delaware limited liability company (“Landlord”), and
SIRNA THERAPEUTICS, INC.,, a Delaware corporation (“Tenant”), and is attached to and made a part of
the Lease dated February 8, 2006 (the “Lease”), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them in the Lease.
0000 Xxxxx/Xxxxx — Page 2
and Tenant further acknowledge and agree that any changes to the TI Space Plan constitute
Change
Requests the costs of which changes shall be paid for by Tenant. Tenant shall be solely
responsible for all costs incurred by Landlord to alter the Building (or Landlord’ s plans for the
Building) as a result of Tenant’s requested changes.
1700 Xxxxx/Sirna — Page 3
Permit subject, in each case, to Minor Variations and normal “punch list” items of a
non-material nature that do not interfere with the use of the Premises (“Substantial Completion” or
“Substantially Complete”). Upon Substantial Completion of Landlord’s Work, Landlord shall require
the TI Architect and
the general contractor to execute and deliver, for the benefit of Tenant and Landlord, a
Certificate of Substantial Completion in the form of the American Institute of Architects (“AIA”)
document G704. For purposes of this Work Letter, “Minor Variations” shall mean any modifications
reasonably required: (i) to comply with all applicable Legal Requirements and/or to obtain or to
comply with any required permit (including the TI Permit); (ii) to comply with any request by
Tenant for modifications to Landlord’s Work; (iii) to comport with good design, engineering, and
construction practices that are not material; or (iv) to make reasonable adjustments for field
deviations or conditions encountered during the construction of Landlord’s Work.
Tenant shall be entitled to receive the benefit of all construction warranties and
manufacturer’s equipment warranties relating to equipment installed in the Premises. If requested
by Tenant, Landlord shall attempt to obtain extended warranties from manufacturers and suppliers of
such equipment, but the cost of any such extended warranties shall be borne solely out of the TI
Fund. Landlord shall promptly undertake and complete, or cause to be completed, all punch list
items.
(i) Tenant’s Representative was not available to give or receive any Communication or
to take any other action required to be taken by Tenant hereunder;
(ii) Tenant’s request for Change Requests (as defined in Section 4(a) below) whether or
not any such Change Requests are actually performed;
(iii) Construction of any Change Requests;
0000 Xxxxx/Xxxxx — Page 4
(iv) Tenant’s request for materials, finishes or installations requiring unusually long
lead times;
(v) Tenant’s delay in reviewing, revising or approving plans and specifications beyond
the periods set forth herein;
(vi) Tenant’s delay in providing information critical to the normal progression of the
Project. Tenant shall provide such information as soon as reasonably possible, but in no
event longer than one week after receipt of any request for such information from Landlord;
(vii) Tenant’s delay in making payments to Landlord for Excess TI Costs (as defined in
Section 5(d) below); or
(viii) Any other act or omission by Tenant or any Tenant Party (as defined in the
Lease), or persons employed by any of such persons.
If Delivery is delayed for any of the foregoing reasons, then Landlord shall cause the TI Architect
to certify the date on which the Tenant Improvements would have been completed but for such Tenant
Delay and such certified date shall be the date of Delivery.
0000 Xxxxx/Xxxxx — Page 5
include a payment to Landlord of administrative rent (“Administrative Rent”) equal to $3.00
per rentable square foot of the Premises for monitoring and inspecting the construction of the
Tenant Improvements and Changes, which sum shall be payable from the TI Fund (as defined in Section
5(d). Administrative Rent shall include, without limitation, all out-of-pocket costs, expenses and
fees incurred by or on behalf
of Landlord arising from, out of, or in connection with monitoring the construction of the
Tenant Improvements and Changes, and shall be payable out of the TI Fund. If the Budget is greater
than the TI Allowance, Tenant shall deposit with Landlord the difference, in cash, prior to the
commencement of construction of the Tenant Improvements or Changes, for disbursement by Landlord as
described in Section 5(d).
Tenant shall have no right to the use or benefit (including any reduction to or payment of
Base Rent) of any portion of the TI Allowance not required for the construction of (i) the Tenant
Improvements described in the TI Construction Drawings approved pursuant to Section 2(d) or (ii)
any Changes pursuant to Section 4.
0000 Xxxxx/Xxxxx — Page 6
Work, to inspect and observe work in process; all such access shall be during normal business
hours or at such other times as are reasonably designated by Landlord. Notwithstanding the
foregoing, Tenant shall have no right to enter onto the Premises or the Project unless and until
Tenant shall deliver to Landlord evidence reasonably satisfactory to Landlord demonstrating that
any insurance reasonably required by Landlord in connection with such pre-commencement access
(including, but not limited to, any insurance that Landlord may require pursuant to the Lease) is
in full force and effect. Any entry by
Tenant shall comply with all established safety practices of Landlord’s contractor and
Landlord until completion of Landlord’s Work and acceptance thereof by Tenant.
0000 Xxxxx/Xxxxx — Page 7
TENANT: | ||||||
SIRNA THERAPEUTICS, INC., | ||||||
a Delaware corporation | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | President and Chief Executive Officer |
LANDLORD: | ||||||||||
ARE-SAN FRANCISCO NO. 26, LLC, | ||||||||||
a Delaware limited liability company | ||||||||||
By: | ALEXANDRIA REAL ESTATE EQUITIES, L.P., a Delaware limited partnership, managing member | |||||||||
By: | ARE-QRS CORP., a Maryland corporation, general partner | |||||||||
By: | /s/ Xxxxxxxx Xxxxxx | |||||||||
Its: | VP and Assistant Secretary |
1700 Xxxxx/Sirna — Page 1
EXHIBIT D TO LEASE
ACKNOWLEDGMENT OF COMMENCEMENT DATE
This ACKNOWLEDGMENT OF COMMENCEMENT DATE is made this
day of
, 200_,
between ARE-SAN FRANCISCO NO. 26, LLC, a Delaware limited liability company (“Landlord”), and SIRNA
THERAPEUTICS, INC., a Delaware corporation (“Tenant”), and is attached to and made a part of the
Lease dated February ___, 2006 (the “Lease”), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them in the Lease.
Landlord and Tenant hereby acknowledge and agree, for all purposes of the Lease, that the
Commencement Date of the Base Term of the Lease is ,
, and the termination
date of the Base Term of the Lease shall be midnight on ,
.
TENANT: | ||||||
SIRNA THERAPEUTICS, INC., | ||||||
a Delaware corporation | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
LANDLORD: | ||||||||||
ARE-SAN FRANCISCO NO. 26, LLC, | ||||||||||
a Delaware limited liability company | ||||||||||
By: | ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership, managing member |
|||||||||
By: | ARE-QRS CORP., a Maryland corporation, general partner | |||||||||
By: | ||||||||||
Its: | ||||||||||
1700 Xxxxx/Sirna — Page 1
EXHIBIT E TO LEASE
RULES AND REGULATIONS
1. The sidewalk, entries, and driveways of the Project shall not be obstructed by Tenant, or
any Tenant Party, or used by them for any purpose other than ingress and egress to and from the
Premises.
2. Tenant shall not place any objects, including antennas, outdoor furniture, etc., in the
parking areas, landscaped areas or other areas outside of its Premises, or on the roof of the
Project.
3. Except for animals assisting the disabled, no animals shall be allowed in the offices,
halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining buildings by the use of
any radio or musical instrument or by the making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric connections in the Premises,
Landlord or its agent will direct the electrician as to where and how the wires may be introduced;
and, without such direction, no boring or cutting of wires will be permitted. Any such
installation or connection shall be made at Tenant’s expense.
6. Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical
apparatus in the Premises, except as specifically approved in the Lease and the TI Construction
Drawings. The use of oil, gas or inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous shall not be brought
into the Project.
7. Parking any type of recreational vehicles is specifically prohibited on or about the
Project. Except for the overnight parking of operative vehicles, no vehicle of any type shall be
stored in the parking areas at any time. In the event that a vehicle is disabled, it shall be
removed within 48 hours. There shall be no “For Sale” or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated parking areas in conformity with
all signs and other markings. All parking will be open parking, and no reserved parking, numbering
or lettering of individual spaces will be permitted except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and other pests.
9. Landlord reserves the right to exclude or expel from the Project any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs or who shall in any
manner do any act in violation of the Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of Tenant’s carelessness or
indifference in the preservation of good order and cleanliness. Landlord shall not be responsible
to Tenant for any loss of property on the Premises, however occurring, or for any damage done to
the effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in the water, lawn sprinkler,
sewage, gas pipes, electrical lights and fixtures, heating apparatus, or any other service
equipment affecting the Premises.
12. Tenant shall not permit storage outside the Premises, including without limitation,
outside storage of trucks and other vehicles, or dumping of waste or refuse or permit any harmful
materials to be placed in any drainage system or sanitary system in or about the Premises.
1700 Xxxxx/Sirna — Page 2
13. All moveable trash receptacles provided by the trash disposal firm for the Premises must
be kept in the trash enclosure areas, if any, provided for that purpose.
14. No auction, public or private, will be permitted on the Premises or the Project.
15. No awnings shall be placed over the windows in the Premises except with the prior written
consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking (except with respect to
the use of a microwave in a kitchen or small kitchenette) or for any immoral or illegal purposes or
for any purpose other than that specified in the Lease. No gaming devices shall be operated in the
Premises.
17. Tenant shall ascertain from Landlord the maximum amount of electrical current which can
safely be used in the Premises, taking into account the capacity of the electrical wiring in the
Project and the Premises and the needs of other tenants, and shall not use more than such safe
capacity. Landlord’s consent to the installation of electric equipment shall not relieve Tenant
from the obligation not to use more electricity than such safe capacity.
18. Tenant assumes full responsibility for protecting the Premises from theft, robbery and
pilferage.
19. Tenant shall not install or operate on the Premises any machinery or mechanical devices of
a nature not directly related to Tenant’s ordinary use of the Premises and shall keep all such
machinery free of vibration, noise and air waves which may be transmitted beyond the Premises.
1700 Xxxxx/Sirna — Page 1
EXHIBIT F TO LEASE
TENANT’S PERSONAL PROPERTY
None except as set forth below:
Nuclear Magnetic Resonance machine
Mass Spectrometer
Dryer
Autoclave
Glass washer
Autoclave Cage Waster
8 fume hoods in Chemistry Lab(s)
Walk-in fume hood in Large Chemistry Lab
Microscope
Mass Spectrometer
Dryer
Autoclave
Glass washer
Autoclave Cage Waster
8 fume hoods in Chemistry Lab(s)
Walk-in fume hood in Large Chemistry Lab
Microscope
Notwithstanding anything to the contrary contained in the Lease or in this Exhibit F, none of the
items above shall constitute a Removable Installation unless all of the following conditions are
true with respect to the item in question: (i) the cost of the item is paid for solely by Tenant
(and not paid for by Landlord or paid for out of the TI Fund), and (ii) the item is not an item
listed on Exhibit G that is noted as Provided By Alexandria.
1700 Xxxxx/Sirna — Page 1
EXHIBIT G TO LEASE
TENANT’S SCOPE OF WORK
Provided by Alexandria
Alexandria is proposing to provide the following building common systems and finishes to specified
areas, which are described in detail later in this memo:
• | Ceiling Heights: 10’ in labs and open office areas, 10’ stepping up to 12’ at mullion for offices and conference rooms along window line. | ||
• | Doors: maple 8’ or 9’ (except hollow metal for vivarium, tissue culture, and glass wash areas). | ||
• | Flooring: VCT flooring in lab and lab support areas, except epoxy flooring in vivarium and glass wash, and sheet vinyl flooring in tissue culture, and chemical storage room. | ||
• | Metal lab casework with wood door and drawer fronts. | ||
• | Convenience power throughout, wire mold to lab benches. | ||
• | Emergency power for 50% of exhaust fans, and to typical freezers and refrigerators. | ||
• | Ceilings: Vinyl faced ceiling tile in all lab areas, except hard lid ceilings in vivarium, tissue culture, and glass wash areas. Standard drop ceilings in all other areas. | ||
• | ARE Standard light fixtures throughout (parabolic). | ||
• | ARE Standard 2’ side lights on private offices. | ||
• | Ring and string (“R&S”) provided throughout for subsequent tenant-provided telephone and data cabling and installation. | ||
• | Base building security system on the ground floor and to the exterior building. After hour key card access only to Sirna’s floor from elevator cab. |
The detailed list that follows is organized by room, and includes key building features and
services that ARE will provide per the Lease. Please also refer to the conceptual floor plan
attached at the end of this list.
Any item that is “dashed” on the floor plan is to be tenant-provided (except for reagent racks on
the peninsulas).
Biology Lab & Lab Support Areas
• | Bio Lab (20): 4 peninsulas with reagent racks (2 of the peninsulas each have 1 sink), fume hoods in biology labs are: 6’ (this lab contains 1 fume hood), flammable/solvent base cabinets, adjacent to fume hood is casework, some epower to equipment walls. 1 emergency shower/eyewash combo. | ||
• | Bio Lab (12): 2, 6’ fume hoods, 2 wall benches (1 with a sink, 2 peninsulas with reagent racks, some epower on equipment wall, 1 emergency shower/eyewash combo. | ||
• | Cold Room: Cold box. |
• | In each room: HEPA filtered, 1 sink with base cabinet, casework, some epower. |
Vivarium
• | HEPA filters throughout. | ||
• | Metal casework (no wood drawer fronts). | ||
• | Ceilings: Vinyl faced ceiling tiles in the hallways and clean/dirty cage areas. | ||
• | Hot water heater for cage washer. | ||
• | Holding rooms with some epower and ventilation drops. | ||
• | Clean side of Cage Wash room: floor sink, floor drain, and single water drop to bottle feeder. |
1700 Xxxxx/Sirna — Page 2
• | Dirty side of Cage Wash room: scullery sink, floor sink, floor drain, emergency shower/eyewash combo in Hallway. | ||
• | Framed openings for cage washer and autoclave. | ||
• | 2 Procedure rooms with 1 sink each and casework. | ||
• | 1 Procedure room with 1 sink, casework, 4 foot fume hood. | ||
• | 1 unisex bathroom with 1 toilet, 1 sink, and 1 shower. |
Glass Wash/Media Prep
• | Floor sink on dirty side, scullery sink with case work, glassware cabinets. | ||
• | Framed openings for glass washer, autoclave, dryer. |
NMR
• | Some epower, 220V/20A service, (otherwise no special construction). |
Microscope Room
• | Some epower. |
Mechanical Room
• | 200V/9A and epower. |
Equipment Hallway
• | Some epower and 208 outlets on both walls. |
Synthesis Purification
• | Some epower, rough-in of sink plumbing. |
Chemistry Lab — Large
• | Emergency shower/eyewash combo at each exit door (2 total), | ||
• | At each of 10, 8’ fume hoods: cup sink and argon gas only. | ||
• | 3 peninsulas of casework, reagent racks, each having 1 sink. | ||
• | Some epower to tenant provided equipment along walls. | ||
• | Argon distribution system. | ||
• | Nine additional argon gas drops to future fume hood locations. These nine argon gas drops may be split between the large and small chemistry room at Tenant’s election |
Chemistry
Lab — Small
• | Viewing window between 9 Xxxxxx Office and Small Chemistry Lab (no racks on casework against common wall with 9 Xxxxxx Office). | ||
• | Emergency shower/eyewash combo. | ||
• | 1 peninsula of casework with 1 sink. | ||
• | 1 wall bench with 1 sink. | ||
• | Argon distribution system stubbed into room. |
Office/Lobby
• | Lobby: stone tiles. | ||
• | Conference/Library, Seminar, and Board Room: carpet, power and ring & string data to center of room. Full height walls and insulation in Conf./Library, Board Room, and seminar room. | ||
• | Walls between Seminar Room and the lobby to be 4 pieces of floor to ceiling glass on Seminar Room and 3 pieces of floor to ceiling glass on Conference/Library. | ||
• | Open Office Left, Right, & Right Corner: Carpet. Power. | ||
• | Private Offices (unless specified otherwise): Power and R&S for data. | ||
• | Copy/Mail: VCT, power, R&S for data. |
1700 Xxxxx/Sirna — Page 3
• | CEO’s Conf Rooms (in the CEO suite area): Power & R&S for data, full height walls and insulation. | ||
• | CEO’s Office: 3 pieces of floor to ceiling glass, power & R&S for data, full height walls and insulation. | ||
• | Private offices proximate to CEO’s office (6 total): Full height walls and insulation. | ||
• | Carrels (9): Power in the walls and ceiling. | ||
• | Carrels (15): Power in the walls and ceiling. | ||
• | Break room: Sink, counter space, cabinets, VCT, power. | ||
• | File Server room with house air VAV box, epower, VCT. |
Provided by Tenant
Lab equipment, lab and office furniture, or system upgrades from those specified above are to be
provided at Tenant’s option and cost. This may include and not be limited to the following items:
• | All furniture (conference room tables and chairs, carrels tables, cubicles, reception desk and curved divider in lobby). | ||
• | Equipment such as glass wash, autoclave, cage washer, vivarium autoclave, (steam generator for both autoclaves), dryer, dishwasher, bio-safety hoods, future fume hoods, and walk-in fume hood. | ||
• | Trim pieces for equipment such as cage wash, glass wash, and autoclave. | ||
• | Watering system for animals. | ||
• | Process piping and equipment for services such as vacuum, CDX, XX0, nitrogen, and D/I water, etc. | ||
• | Data and phone cabling, file server, file server racks, phone switch. | ||
• | Security system or card readers for access to suite, and any interior doors to labs and offices. |
1700 Xxxxx/Sirna — Page 1
EXHIBIT H TO LEASE
BASE BUILDING
Building shell shall include steel structure with foundations, fireproofing, roof, curtainwall,
flashings and sealants. Includes finished restrooms, code required exit stairs, elevators and
elevator lobbies. Includes electrical switchgear and transformers with vertical distribution to on
floor electrical room and TI provided electrical service. Includes water service plumbing risers
and both lab and domestic under slab waste mains. Includes HVAC chillers, boilers, exhaust fans and
on floor supply fans. Includes code compliant fire alarm main panel and risers.
1700 Xxxxx/Sirna — Page 1
EXHIBIT I TO LEASE
PARKING
[To be attached upon creation of Landlord’s TMP plan]
1700 Xxxxx/Sirna — Page 1
EXHIBIT J TO LEASE
MISSION BAY REQUIREMENTS
1. Environmental Covenant. The Project may contain hazardous materials in soils and
in the ground water under the Project, and is subject to a deed restriction (Covenant and
Environmental Restriction on Property) dated as of February 23, 2000, and recorded in the Official
Records on March 21, 2000, as Document No. 2000-G748552-00, Reel H598, Image 172 (the
“Environmental Covenant”), which Environmental Covenant imposes certain covenants,
conditions, and restrictions on usage of the Project. The foregoing statement is required by
the Environmental Covenant and is not a declaration that a hazard exists. The Environmental
Covenant references and requires compliance with the provisions of the Risk Management Plan,
Mission Bay Area, San Francisco, California, dated May 11, 1999 (the “RMP”). Tenant hereby
acknowledges receipt of a copy of the RMP, and hereby covenants (i) to comply with the RMP (to the
extent the RMP applies to Tenant’s activities), (ii) to obligate other entities with which Tenant
contracts for construction, property maintenance, or other activities that may disturb soil or
groundwater to comply with the applicable provisions of the RMP, and (iii) to refrain (and to cause
the entities with which it so contracts to refrain) from interfering with Landlord’s compliance
with the RMP.
2. Special Tax Acknowledgment. In accordance with Section 53341.5 of the California
Government Code, Tenant previously has delivered to Landlord acknowledgments, duly executed by
Tenant, confirming that Tenant has been advised of the terms and conditions of the “CFDs”
(as defined below), including that the Project is subject to the “CFD Assessments” (as
defined below). As used herein, (a) “CFDs” shall mean, collectively, (i) the Redevelopment
Agency of the City and County of San Francisco Community Facilities District No. 5 (Mission Bay
Maintenance District) (the “Maintenance CFD”) (established to pay a portion of the costs of
ongoing maintenance of open space parcels in Mission Bay), (ii) the Redevelopment Agency of the
City and County of San Francisco Community Facilities District No. 6 (Mission Bay South Public
Improvements) (the “Infrastructure CFD”) (established to pay a portion of the costs of
constructing and installing public infrastructure in Mission Bay), and (iii) the San Francisco
Unified School District of the City and County of San Francisco Community Facilities District No.
90-1 (Public School Facilities) (the “Public School CFD”) (established to pay a portion of
the costs of acquiring and/or constructing public school facilities), and (b) “CFD
Assessments” shall mean the special taxes (i) to be levied on the Project and other property in
Mission Bay in accordance with the terms and conditions of the “Rate and Method of Apportionment of
Special Tax” applicable to the Infrastructure CFD and the Maintenance CFD, respectively, and (ii)
to be levied on the Project and other property in accordance with the terms and conditions
applicable to the Public School CFD. Tenant acknowledges that, pursuant to the CFDs, CFD
Assessments may be levied on the Project and that, without limiting the generality of any other
provision contained in this Lease, Operating Expenses shall include such CFD Assessments.
3. Project Labor Agreement. Tenant has been informed by Landlord of the following:
(a) Catellus Development Corporation (“CDC”) and the individual members of the San
Francisco Building and Construction Trades Council, AFL-CIO (“Council”), originally entered
into a certain Mission Bay Project Agreement (the “Original Project Labor Agreement”) for
the Mission Bay project on October 8, 1990, pursuant to which CDC agreed, to the fullest extent
possible, to award all construction contracts in Mission Bay for “Covered Work” (as defined in the
Original Project Labor Agreement) to unionized construction firms; and (b) in 2003, CDC and the
Council entered into an Addendum to Agreement (“Addendum”) that amended certain terms of
the Original Project Labor Agreement (the Original Project Labor Agreement, as amended by the
Addendum, shall be referred to as the “Project Labor Agreement”), pursuant to which CDC
agreed that CDC would require, as a condition of any sale, conveyance, ground
1700 Xxxxx/Sirna — Page 2
lease, or donation of real property covered by the Project Labor Agreement (“Covered
Property”), that any and all successors in interest and/or assignees, buyers, ground lessees,
or donees (any of the foregoing,
a “Covered Successor”) of Covered Property shall require any contractors to which the
Covered Successor contracts work that is covered by the Project Labor Agreement to sign and become
a party to the Project Labor Agreement through the execution and delivery of a successor project
agreement (a “Successor Project Labor Agreement”). Tenant acknowledges that the Project is
Covered Property, that Landlord is a Covered Successor, and that Landlord has agreed to require any
contractors to which Landlord contracts work with respect to the Project that is covered by the
Project Labor Agreement to sign and become a party to the Project Labor Agreement through the
execution and delivery of a Successor Project Labor Agreement (the form of which is attached hereto
as Exhibit K). Accordingly, Tenant hereby agrees that Tenant shall require any contractors
to which Tenant or any of its contractors contract work with respect to the Project that is covered
by the Project Labor Agreement to execute and deliver a Successor Project Labor Agreement. Tenant
will cause its general contractor to execute the Successor Project Labor Agreement and shall
deliver an executed original of the Successor Project Labor Agreement to Landlord. Following
Landlord’s receipt of such executed original of the Successor Project Labor Agreement, Landlord
shall use commercially reasonable efforts to obtain full execution of the Successor Project Labor
Agreement by the union signatories, but Tenant acknowledges that Landlord shall have no liability
whatsoever if full execution of the Successor Project Labor Agreement is not obtained.
4. First Source Hiring Program. Tenant has been informed by Landlord that there is a
City-wide “First Source Hiring Program” (FSHP) (adopted by the City and County of San Francisco on
August 3, 1998, Ordinance No. 264-98; codified at San Francisco Administrative Code Sections
83.1-83.1(8)). Tenant hereby acknowledges that its activities with respect to the Project are or
may be subject to the FSHP. Accordingly, Tenant shall comply with any provisions of the FSHP that
are applicable to the Premises or any construction in, or use or development of, the Premises by
Tenant.
5. Non-Discrimination. Without limiting the generality of any other provision of this
Lease, there shall be no discrimination against, or segregation of, any person or group of persons
or any employee or applicant for employment on account of race, color, creed, religion, sex,
marital or domestic partner status, familial status, national origin, ancestry, lawful source of
income (as defined in Section 3304 of the San Francisco Police Code), gender identity, sexual
orientation, age, or disability (including, without limitation, HIV/AIDS status) in the sale,
lease, sublease, transfer, use, occupancy, tenure, or enjoyment of any part of the Project, nor
shall Tenant or any person claiming under or through Tenant, establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location, number,
use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in any part of the
Project. All deeds, leases, subleases, or contracts concerning the Project shall contain the
non-discrimination and non-segregation clauses specified for each type of document in Section 33436
of the California Health and Safety Code (except to the extent any party to any such document is
not required by applicable law to include such non-discrimination and non-segregation clauses in
such document).
6. Tax Exempt Entities. Tenant acknowledges that it has received and reviewed a
certain Tax Payment Agreement dated November 15, 2005, executed and acknowledged on behalf of
FOCIL-MB, LLC and Landlord, recorded November 15, 2005, as Document No. 2005-I072105 in the
Official Records of the City and County of San Francisco, California. Such Tax Payment Agreement
contains certain covenants by Landlord if (a) Landlord (or any successor) becomes an entity that is
exempt from property taxation (a “Tax Exempt Entity”), (b) there is any sale, assignment,
conveyance, lease, sublease, or other alienation of any portion of the Project to a Tax Exempt
Entity, or (c) there is a grant to a Tax Exempt Entity of occupancy rights (such as under a space
lease) where, as the result of such grant, all or any portion of any improvements on all or any
portion of the Project would or could be exempt from property taxation. Accordingly,
notwithstanding any other provision of this Lease, Tenant shall not assign, convey, sublease, or
otherwise alienate any portion of the Project to a Tax Exempt Entity, and shall not grant to a Tax
Exempt Entity any occupancy rights where, as the result of such grant,
1700 Xxxxx/Sirna — Page 3
all or any portion of any improvements on all or any portion of the Project would or could be
exempt from property taxation, without Landlord’s prior written consent, which may be withheld in
Landlord’s sole and absolute discretion. Any such purported action by Tenant without Landlord’s
prior written consent shall be null and void ab initio.
1700 Xxxxx/Sirna — Page 1
EXHIBIT K TO LEASE
SUCCESSOR PROJECT LABOR AGREEMENT
[Attached]