STANDARD INDUSTRIAL NET LEASE
Exhibit 99.3
BUILDING NAME:
|
BC SORRENTO | |
LANDLORD:
|
BC SORRENTO, LLC, | |
| a California limited liability company | ||
TENANT:
|
HALOZYME, INC., | |
| a California corporation |
This
STANDARD INDUSTRIAL NET LEASE (“Lease” ), dated for
reference purposes only July 24, 2007, is entered into by BC SORRENTO, LLC, a California limited
liability company (“Landlord”), and HALOZYME, INC., a California corporation (“Tenant”).
1. BASIC LEASE TERMS
The basic terms of the Lease set forth in this Article 1 shall be read in conjunction with the
other Articles of this Lease, which define and explain the basic terms.
1.1 Address for Notice (see Section 24.19):
| Landlord: | BC Sorrento, LLC | |||
| 000 Xxxxx Xxxxx Xx, Xxxxx 000 | ||||
| Xxxxxx Xxxxx, XX 00000 | ||||
| Attention: Xx. Xxxxxxx X. Xxxxxxx | ||||
| Tenant: | At the Premises |
1.2 Description of Premises:
| Building Name: | BC Sorrento | |||
| Address: | 00000 Xxxxxxxx Xxxxxx Xxxx | |||
| Xxx Xxxxx, XX 00000 | ||||
| Suite/Unit: | All of the second floor, a portion of the first floor and a portion of the Utility Yard (as defined below). | |||
| Approximate square footage of the Premises (see Exhibit “A”): 27,575 | ||||
1.3 Commencement Date: September 1, 2008 (the “Commencement Date”).
1.4 Lease Term (see Article 3): Fifty-one and one-half months, beginning on the Commencement
Date and ending on January 14, 2013 (the “Expiration Date”).
1.5 Minimum Monthly Rent: Minimum Monthly Rent shall be the following amount during the
following periods:
September 1, 2008 through August 30, 2009
|
$73,075, subject to partial abatement. See Section 4.2. | |
September 1, 2009 through August 30, 2010
|
$75,005 | |
September 1, 2010 through August 30, 2011
|
$78,038 | |
September 1, 2011 through August 30, 2012
|
$81,071 | |
September 1, 2012 through January 14, 2013
|
$84,380 |
1.6 Security Deposit: A letter of credit in the full amount of Three Hundred Seventy-Five
Thousand Dollars ($375,000) subject to reduction on certain terms and conditions, all as set forth
in Article 5 and Exhibits “D-1” and “D-2”.
1.7 Tenant’s Percentage (see Article 6): 75.26%.
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1.8 Permitted Use (see Article 11): Life science and biotechnology laboratory and related
office use, and for no other use.
1.9 Intentionally Omitted.
1.10 Tenant’s Parking Spaces (Unassigned) (see Section 11.6): 90 spaces, subject to
proportionate adjustment if Tenant’s percentage occupancy of the Building changes (based on
adjustments in the square footage of the Premises).
1.11 Landlord’s Broker (If none, so state): None.
Tenant’s Broker (If none, so state): Xxxxx & Xxxxx/BRE Commercial.
1.12 Tenant Improvement Allowance: Landlord shall provide a Tenant Improvement Allowance of
$10.00 per square foot of the Premises (or $275,750), in accordance with Exhibit “C”.
1.13 Exhibits: The following Exhibits are attached to and made a part of this Lease:
| Exhibit “A” - | Description of Premises | |||
| Exhibit “B” - | Rules and Regulations | |||
| Exhibit “C” - | Tenant Improvement Allowance | |||
| Exhibit “D-1” - | Approved form of Letter of Credit | |||
| Exhibit “D-2” - | Provisions Related to Letter of Credit | |||
| Exhibit “E” - | List of Items Tenant is Prohibited from Removing at End of Term |
2. LEASE OF PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the premises (the
“Premises”) described in Section 1.2, which Premises are indicated on the site/floor plan attached
as Exhibit “A”. The Premises are part of the Building (including surrounding parking lots,
landscape areas and common facilities described in Section 6.5) (the “Building”).
3. LEASE TERM
The term of this Lease (the “Lease Term”) shall commence on the Commencement Date stated in
Section 1.3 and shall continue for the period stated in Section 1.4, unless sooner terminated
pursuant to any provision of this Lease. The parties understand that Tenant will already be in
possession of the Premises on the Commencement Date pursuant to that certain Sublease Agreement,
dated as of July 2, 2007, by and between Tenant, as sublessee and Avanir Pharmaceuticals, a
California corporation (“Avanir”), as sublessor (the “Avanir Sublease”). The Avanir Sublease is a
sublease under that certain Standard Industrial Net Lease dated March 20, 2000, by and between
Landlord and Avanir (the “Avanir Lease”). Landlord and Tenant acknowledge and agree that (i)
Tenant’s right to possess the property prior to the Commencement Date arises, if at all, pursuant
to the Avanir Sublease and the Avanir Lease, and exists only during the effectiveness of such
sublease, and (ii) in the event the Avanir Lease terminates prior to September 1, 2008, due to
casualty, condemnation or otherwise, then this Lease shall terminate
concurrently therewith (subject, however, to any right of Tenant to
a new lease under the terms and conditions set forth in a separate
agreement between Landlord and Tenant concerning the Avanir
Sublease).
4. RENT
4.1 Minimum Monthly Rent. Tenant shall pay minimum monthly rent (“Minimum Monthly Rent”) in
the initial amount stated in Section 1.5. The Minimum Monthly Rent shall be increased as set forth
in Section 1.5 and/or elsewhere in this Lease. Tenant shall pay the Minimum Monthly Rent on or
before the first day of each calendar month, in advance, at the office of Landlord or at such other
place designated by Landlord, without deduction, offset or prior demand. If the Commencement Date
is not the first day of a calendar month, the rent for the partial month at the beginning of the
Lease Term shall be prorated on a per diem basis and shall be due on the first day of such partial
month.
4.2 Abated Rent; Recovery of Rent Concession. One-half of the Minimum Monthly Rent for the
six (6) calendar months September 2008 through February 2009 shall be abated so long as Tenant is
not in default under any of the terms of this Lease. During such partial rent abatement period,
Tenant shall pay its full Share of Additional Rent in accordance with this Lease.
4.3 Lease Year. As used in this Lease, the term “Lease Year” means (i) the first period of
twelve (12) full calendar months following the Commencement Date (including, if the Commencement
Date is not the first day of a calendar month, the period between the Commencement Date and the
next first day of the month), (ii) each period of twelve (12) full calendar months thereafter, and
(iii) any remaining period at the end of the Lease Term of less than twelve (12) full calendar
months.
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4.4 Additional Rent. All charges payable by Tenant for Operating Costs (Article 6),
Maintenance and Repairs (Article 7), Real Property Taxes (Article 8), Insurance Costs (Article 9),
and Utilities (Article 10) are hereinafter referred to herein as “Additional Rent.” All Minimum
Monthly Rent, Additional Rent, and all other charges and monetary
amounts due Landlord from Tenant under this Lease or otherwise shall constitute “rent.”
Unless this Lease provides otherwise, all Additional Rent shall be paid by Tenant, without
limitation or offset, within fifteen (15) days after Tenant’s receipt of a statement from Landlord.
If any Minimum Monthly Rent is abated or waived pursuant to another specific term of this Lease or
in any separate agreement, it is understood that such abatement or waiver shall apply only to the
Minimum Monthly Rent, and Tenant shall be obligated to pay all Additional Rent and other charges
(including the applicable impounds thereof) during such periods of abatement or waiver of Minimum
Monthly Rent.
4.5 Impounds. Landlord shall have the right, but not the obligation, to collect and impound,
in advance, any or all components of Additional Rent based upon Landlord’s reasonable estimate of
Tenant’s future liability for such amounts under this Lease. Landlord shall initially establish
the monthly amount of such impound (“Monthly Impound Payments”), based upon its estimate of
one-twelfth of Tenant’s annual liability therefor. Landlord shall have the right at any time to
adjust the amount of the Monthly Impound Payment upon notice to Tenant in the exercise of its
reasonable discretion. The Monthly Impound Payment shall be due and payable on the first day of
each month throughout the Lease Term. Any failure to pay the Monthly Impound Payment when due
shall be considered a failure to pay rent when due under Section 21.1 and other relevant provisions
of this Lease, and shall entitle Landlord to exercise any or all of its remedies available in the
same manner as for the failure to pay rent. Upon the occurrence of any Event of Default by Tenant
hereunder, Landlord shall have the right to apply all unapplied amounts of Monthly Impound Payments
to Tenant’s default. Within ninety (90) days after the end of each calendar year, Landlord shall
deliver to Tenant an accounting of Tenant’s actual Share of Additional Rent and the estimated
amounts previously paid by Tenant. Any overpayment by Tenant shall be credited against next
Monthly Impound Payments due hereunder, or, if the Term has expired, shall be remitted to Tenant.
Tenant shall pay the amount of any underpayment within fifteen (15) days after receipt of the
accounting. Tenant acknowledges that the Monthly Impound Payments are estimates only and not a
representation of the amount of Tenant’s ultimate liability for Additional Rent.
4.6 Payment by EFT or ACH. At Landlord’s election, and upon at least thirty (30) days’ notice
to Tenant, Landlord may require that all payments of Minimum Monthly Rent, Additional Rent and
other amounts due hereunder be made in immediately available funds or by wire transfer by
electronic fund transfer through the Automated Clearing House network or any similar system
designated by Landlord (“ACH”). Such payments shall be initiated by Tenant or Landlord, at
Landlord’s election, to an account designated from time to time by Landlord at an ACH member bank
for settlement not later than 12:00 o’clock noon, San Diego, California time, on the dates such
sums or payments are respectively due. Any payment received after such time shall be deemed to
have been made after the due date.
4.7 Audit Rights. Within 90 days after receipt of the Statement, Tenant shall have the right
to audit at Landlord’s local offices, at Tenant’s expense, Landlord’s accounts and records relating
to Additional Rent. Such audit shall be conducted by a certified public accountant approved by
Landlord, which approval shall not be unreasonably withheld. Notwithstanding the foregoing, no
accountant whose compensation is contingent in any way upon the existence of any or the amount of
any discrepancy shall be utilized for such audit. If such audit reveals that Landlord has
overcharged Tenant, the amount overcharged shall be paid to Tenant within 30 days after the audit
is concluded, together with interest thereon at the rate of 10% per annum, from the date the
Statement was delivered to Tenant until payment of the overcharge is made to Tenant.
5. SECURITY DEPOSIT
5.1 Letter of Credit. No later than ten (10) business days prior to the Commencement Date,
Tenant shall deliver to Landlord a letter of credit in the amount specified in Section 1.6 (the
“Security Deposit”) conforming to the requirements set forth on Exhibit “D-1” and “D-2”) (the
“Letter of Credit”) to be held by Landlord, without liability for interest, as security for
Tenant’s performance of its obligations under this Lease. Landlord may draw upon the Letter of
Credit any unpaid rent (including unpaid Additional Rent or Monthly Impound Payments) to any other
monetary payments due from Tenant, to the damages sustained by Landlord under Section 22.1(c), to
cure any other default of Tenant hereunder, and/or to compensate Landlord for all damage and
expense sustained as a result of such default. If all or any portion of the Security Deposit is so
applied, Tenant shall restore the Letter of Credit to its full original amount within fifteen (15)
days after receipt of Landlord’s written demand. Provided Tenant is not then in default hereunder,
the Letter of Credit shall be returned to Tenant within thirty (30) days of the later of the
expiration or earlier termination of this Lease or the vacation of the Premises by Tenant. At
Landlord’s request, Tenant shall accompany Landlord or Landlord’s representative on a
“walk-through” of the Premises prior to Landlord’s return of the Security Deposit. Tenant waives
the provision of California Civil Code Section 1950.7, and all other provisions of law now in force
or that become in force after the date of execution of this Lease, that provide that Landlord may
claim from a security deposit only those sums reasonably necessary to remedy any defaults in the
payment of Rent, to repair damage caused by Tenant, or to clean the Premises. Landlord and Tenant
agree that Landlord, in addition, may claim those sums reasonably necessary to compensate Landlord
for any other foreseeable or unforeseeable loss or damage caused by the acts or omissions of Tenant
or Tenant’s officers, agents, employees, independent contractors, or invitees.
5.2 Reduction of Security Deposit Amount. The required amount of the Letter of Credit shall
be reduced at the end of the first Lease Year and the end of each Lease Year thereafter by the
amount of $75,000, provided that (i) during the twelve (12) month period prior to the time of the
reduction no Event of Default has occurred and that at the time of reduction no condition exists
that, with the passage of time or the giving of notice or both would
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constitute an Event of
Default, and (ii) the verifiable net worth of Tenant at the time of the scheduled reduction,
determined in accordance with generally accepted accounting principles consistently applied, is
more than Twenty-Five Million Dollars ($25,000,000). Provided, however, that the amount of such
letter of credit shall never be reduced below $150,000.
6. OPERATING COSTS
6.1 Payment of Operating Costs by Tenant. Tenant shall pay its Share of Operating Costs to
Landlord on a monthly or other periodic basis selected by Landlord. Tenant shall pay the amount of
such Share to Landlord, to the extent such obligation exceeds any amount thereof impounded under
Section 4.5, within fifteen (15) days after receipt of a statement from Landlord.
6.2 Tenant’s Share. Tenant’s “Share” (sometimes referred to as “Pro Rata Share”) is the
percentage or proportion of the various components of Additional Rent and certain other charges for
which Tenant is responsible under this Lease. Tenant’s Share for each such component shall be
Tenant’s Percentage as stated in Section 1.7, unless Landlord reasonably determines that another
percentage or proportion would be equitable based on factors such as Tenant’s use of such in excess
of its Percentage, Tenant’s use of the Licensed Common Areas, that such component of Additional
Rent applies to some but not all of the Building, or factors set forth elsewhere in this Lease.
Tenant’s Percentage represents the approximate current ratio of the square footage of the Premises
(identified in Section 1.2) to the total square footage of the Building, as reasonably determined
by Landlord from time to time. Changes in square footage shall be effective on the first day of
the first calendar month following the change. In the event the Building is not fully occupied
during any year then an adjustment shall be made by Landlord in computing those Operating Costs
that vary with occupancy for such year so that such Operating Costs shall be computed as though 95%
of the Building had been occupied during such year (or such Operating Costs shall be computed in
accordance with actual occupancy if such amount shall exceed 95%); provided, however, that in no
event shall the aggregate amount of Operating Costs collected by Landlord from all tenants in the
Building exceed the actual Operating Costs for said year. Additionally, if any substantial item of
the Common Facilities exclusively serves the Premises (such as the elevators for so long as Tenant
is the sole occupant of the second floor of the Building) or the premises leased by another tenant
of the building, then the tenant receiving such exclusive service (including Tenant, if applicable)
shall be responsible for 100% of Operating Costs relating to the same.
6.3 Operating Costs. “Operating Costs” includes all costs of operating, managing, repairing
and maintaining the Common Facilities, including without limitation: gardening and landscaping; the
cost of public liability, property damage and other insurance applicable to the Common Facilities,
including any reasonable deductibles thereunder; Real Property Taxes applicable to the Common
Facilities; utilities; line painting and parking lot repairs; roof repairs; lighting; trash and
refuse removal; supplies; equipment; exterior painting; capital improvements (including without
limitation the costs of roof, parking lot and underground utilities replacements); the costs of
altering, improving, renovating, upgrading or retrofitting any portion of the Common Facilities to
comply with all laws, regulations and governmental requirements applicable to the Building
(including without limitation those related to disabled persons, hazardous materials, lighting
upgrades, sprinkler and energy-saving retrofits); security service; property management costs and
administrative fees; bookkeeping services; labor; the cost of personnel to implement such services
and to direct parking; and the includable amount of Capital Costs (as provided in Section 6.4).
Notwithstanding anything to the contrary contained in this Lease, the following shall not be
included within Operating Costs: Leasing commissions, attorneys’ fees, costs, disbursements, and
other expenses incurred in connection with negotiations or disputes with other tenants, or in
connection with leasing, renovating, or improving space for tenants or other occupants or
prospective tenants or other occupants of the Building; The cost of any service sold to any tenant
(including Tenant) or other occupant for which Landlord is entitled to be reimbursed separately as
an additional charge or rental over and above the basic rent and escalations payable under the
lease with that tenant; Any depreciation on the Building or Property; Costs incurred due to
Landlord’s violation of any terms or conditions of this Lease or any other lease relating to the
Building or Property; Overhead profit increments paid to Landlord’s subsidiaries or affiliates for
management or other services on or to the building or for supplies or other materials to the extent
that the cost of the services, supplies, or materials exceeds the cost that would have been paid
had the services, supplies, or materials been provided by unaffiliated parties on a competitive
basis; All interest, loan fees, and other carrying costs related to any mortgage or deed of trust
or related to any capital item, and all rental and other payable due under any ground or underlying
lease, or any lease for any equipment ordinarily considered to be of a capital nature (except as
provided in Section 6.4 and except janitorial and other equipment which is not affixed to the
Building); Any compensation paid to clerks, attendants, or other persons in commercial concessions
operated by Landlord; Advertising and promotional expenditures; Costs of repairs and other work
occasioned by fire, windstorm, or other casualty to the extent reimbursed by insurance; Any costs,
fines, or penalties incurred due to violations by Landlord of any governmental rule or authority;
Costs for sculpture, paintings, or other objects of art (nor insurance thereon or extraordinary
security in connection therewith); Wages, salaries, or other compensation paid to any executive
employees above the grade of building manager; or Costs of Hazardous Materials Remediation of the
Common Areas not arising out of any act or omission of Tenant, or any assignee or subtenant of
Tenant, or their respective agents, contractors, employees, licensees, or invitees.
6.4 Capital Costs. As used herein, “Capital Costs” shall mean any cost or expense for any
furniture, fixture, equipment or other physical improvement alterations, replacements and repairs
the amount of which exceeds $25,000 and that is properly treated as a capitalized expense under
generally accepted accounting principles. Landlord may only include in Operating Costs the
amortized amount of any such Capital Cost, as the same is
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amortized over the useful life of the
asset. Capital Costs shall not include items that do not reasonably serve the Premises or the
Building, and shall not include any improvement that results in additional space from which
Landlord will derive rental income.
6.5 Common Facilities. Common Facilities” (sometimes referred to herein as “Common Areas”)
means all areas, facilities, utilities, equipment and services provided by Landlord for the common
use or benefit of the
occupants of the Building and their employees, agents, customers and other invitees, including
without limitation: building lobbies, common corridors and hallways, restrooms, pedestrian
walkways, utility yard, driveways and access roads, access facilities for disabled persons
(including elevators), truck serviceways, loading docks, garages, driveways, parking lots,
landscaped areas, stairways, elevators, retaining walls, all areas required to be maintained under
the conditions of governmental approvals for the Building, and other generally understood public or
common areas. All Common Facilities shall at all times be subject to the exclusive control and
management of Landlord. Landlord reserves the right to relocate, alter, improve, or adjust the size
and location of any Common Facilities from time to time without liability to Tenant. Landlord
shall have the right from time to time to establish, modify and enforce reasonable rules and
regulations with respect to the Common Facilities. Landlord shall have the right to construct,
maintain and operate lighting facilities on the Common Facilities; to police the same; from time to
time to change the area, level, location and arrangement of parking areas and other facilities; to
restrict parking by tenants, their officers, agents and employees to employee parking areas; to
close all or any portion of the Common Facilities to such extent; to close temporarily all or any
portion of the Common Facilities for any reason, including for the purpose of preventing a
dedication thereof or the accrual of any rights to any person or the public therein; and to do and
perform such other acts in and to the Common Facilities which Landlord shall determine, using good
business judgment, to be advisable to improve the convenience and use thereof by tenants, their
officers, agents, employees and customers. Subject to the foregoing, all Common Facilities not
within the Premises, which Tenant may use under a revocable license, on a nonexclusive basis in
common with other tenants, and if any such license is revoked, or if the amount of such areas is
diminished, Landlord shall not be subject to any liability and Tenant shall not be entitled to any
compensation or abatement of rent, nor shall such revocation or diminution be deemed constructive
or actual eviction, so long as Tenant retains sufficient access to the Premises and that Tenant’s
use of the Common Areas remains reasonably equivalent. Landlord’s right pursuant to this Section
6.5, including without limitation the rights to construct, maintain, relocate, alter, improve, or
adjust the Common Facilities shall be subject to the condition that (i) the exercise of any of such
rights shall not unreasonably interfere with Tenant’s use of the Premises, or decrease the number
of Tenant’s parking spaces, (ii) Landlord shall provide reasonable prior notice to Tenant before
exercising any such rights which may interfere with Tenant’s business, and (ii) Landlord shall use
its best efforts to minimize to the extent possible any interference with Tenant’s business,
including without limitation scheduling such work after business hours or on weekends.
6.6 Licensed Common Areas. From time to time, at the sole discretion of Landlord, and at the
request of Tenant, Landlord may license certain portions of the Common Areas to Tenant on a primary
(although not necessarily exclusive) use basis. The areas so licensed to Tenant are referred to
herein as the “Licensed Common Areas.” All of Tenant’s obligations with respect to indemnity
(Section 13), insurance (Article 9), Use (Article 11) and other applicable provisions shall apply
to Tenant’s use and occupancy of the Licensed Common Areas. Such license may be revoked by
Landlord upon 10 business days notice in Landlord’s sole discretion. Landlord may impose
additional conditions upon such license and the use of the Licensed Common Areas, upon 10 days
written notice to Tenant in its sole discretion. Tenant shall pay all costs attributable to such
use of the Licensed Common Areas either directly or through an increase in Tenant’s Share as
provided in Section 6.2.
7. MAINTENANCE AND REPAIRS
7.1 Tenant’s Obligations. Except as provided in Section 7.2, Tenant, at its sole cost, shall
keep the Premises and the Licensed Common Areas in good order, condition and repair during the
Lease Term, including without limitation: all nonstructural, interior areas; all heating,
ventilating and air conditioning systems and equipment; all glass, glazing, windows, window
moldings, partitions, doors and door hardware; all interior painting; all fixtures and
appurtenances in the Premises or exclusively serving the Premises including electrical, lighting
and plumbing fixtures; and all other portions of the Premises seen or unseen. If any portion or
element of the Premises, or the other systems or equipment for which Tenant is responsible
hereunder cannot be fully repaired, Tenant shall promptly replace the same at its sole cost and
expense regardless of whether the benefit of such replacement extends beyond the Lease Term. It is
the intention of Landlord and Tenant that Tenant shall maintain the Premises, at all times during
the Lease Term, in an attractive, first-class and fully operative condition, at Tenant’s expense.
If any heating, ventilating and air conditioning system or equipment exclusively serves the
Premises, Tenant shall additionally obtain and keep in force a preventive maintenance contract
providing for the regular (at least quarterly) inspection and maintenance of the heating,
ventilating and air conditioning system (including leaks around ducts, pipes, vents, and other
parts of the air conditioning) by a reputable licensed heating, ventilating and air conditioning
contractor acceptable to Landlord. Prior to April 1 of each calendar year, Tenant shall deliver
Landlord written confirmation from such contractor verifying that such a contract has been entered
into and that the required service will be provided. Notwithstanding the foregoing, Landlord shall
have the right, upon written notice to Tenant, to undertake the responsibility for preventive
maintenance and repair of the heating, ventilating and air conditioning system, at Tenant’s sole
cost and expense, so long as such services are provided at market rates.
7.2 Landlord’s Obligations. Landlord shall repair and maintain the Common Facilities, the
roof (structure and membrane), the foundations, exterior walls and structural portions of the
Premises and the Building. Tenant shall
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pay (a) subject to the terms and provisions of Section 6
above, its Share of the costs of such maintenance, (b) the full amount of any maintenance and
repairs necessitated by any negligence or willful misconduct of, or breach of this Lease by, Tenant
or any of Tenant’s officers, agents, customers or invitees (plus ten percent (10%) of the cost
thereof to reimburse Landlord for overhead); and (c) any maintenance and repairs necessitated by
breaking and entering of the Premises. Subject to the terms and provisions of Section 6 above,
Tenant shall pay its Share of such maintenance and
repair costs incurred by Landlord, to the extent such obligation exceeds any amount thereof
impounded under Section 4.5, within fifteen (15) days after receipt of a statement from Landlord.
There shall be no abatement of rent, and no liability of Landlord, by reason of any injury to or
interference with Tenant’s business arising from the making of any repairs, alterations, or
improvements to any portion of the Premises or the Building, except to the extent caused by
Landlord’s gross negligence or willful misconduct. Tenant expressly waives all rights to make
repairs at the expense of Landlord or deduct any amounts from rent as provided in any statute or
ordinance now or hereafter in effect, including its rights under the provisions of California Civil
Code Sections 1941 and 1942. Landlord’s obligations under this Section are not intended to alter
or modify in any way the provisions of Article 12.
7.3 Performance By Landlord. If Tenant refuses or neglects to perform its maintenance
obligations hereunder to the reasonable satisfaction of Landlord, Landlord shall have the right
(but not the obligation), upon ten (10) days’ prior notice to Tenant (except in case of emergency,
in which case only notice that is reasonable under the circumstances shall be required), to enter
the Premises and perform such repairs and maintenance on behalf of Tenant. Landlord shall also
have the right (but not the obligation), without prior notice to Tenant, to correct or remove any
dangerous or hazardous condition, to repair the heating, ventilating, air conditioning or plumbing
systems, to correct, repair or bring into legal compliance any fire or other life safety systems of
the Premises, and to repair or replace any broken glass or glazing, if Tenant fails to correct or
repair the same within twenty-four (24) hours after the need arises. Landlord shall not be liable
to Tenant for any loss or damage to Tenant’s merchandise, fixtures, or other property or to
Tenant’s business in connection with Landlord’s performance hereunder, and Tenant shall pay
Landlord’s costs plus fifteen percent (15%) of such amount for overhead, upon presentation of a
statement therefor. Tenant shall also pay interest at the rate provided in Section 22.4 from the
date of completion of repairs by Landlord to the date paid by Tenant.
8. REAL PROPERTY TAXES
8.1 Payment of Real Property Taxes by Tenant. Tenant shall pay all Real Property Taxes
applicable to the Premises during the Lease Term. If the Premises are not separately assessed,
Tenant shall pay its Share thereof as equitably determined by Landlord based upon the square
footage of the Premises compared to the total square footage covered by the tax xxxx, the
respective valuations assigned in the assessor’s worksheet, and/or or other reasonably available
information. Tenant shall pay its Share of Real Property Taxes to Landlord, to the extent such
obligation exceeds any amount thereof impounded under Section 4.5, within fifteen (15) days after
receipt of a statement from Landlord.
8.2 Real Property Taxes Defined. “Real Property Taxes” means all taxes, assessments, levies,
fees and other governmental charges levied on or attributable to the Premises or any part thereof,
including without limitation: (a) real property taxes and assessments levied with respect to all or
a portion of the Premises, (b) assessments, charges and fees charged by governmental agencies or
districts for services or facilities provided to the Premises, (c) transfer, transaction, rental,
gross receipts, license or similar taxes or charges measured by rent received by Landlord,
excluding any federal or state income, franchise, estate or inheritance taxes of Landlord, (d)
taxes based upon a reassessment of the Premises due to a transfer or change of ownership, and (e)
any assessment, charge or fee that is a substitute in whole or in part for any tax now or
previously included within the definition of Real Property Taxes. If Landlord elects to contest an
assessment of any Real Property Taxes, Landlord shall have the right to recover its actual costs of
such contest (including attorneys’ fees and costs) as part of Real Property Taxes, but only to the
extent such contest has resulted in a reduction of Real Property Taxes. Tenant shall not be
entitled to the benefit of any reduction, refund, rebate or credit accruing or payable to Landlord
prior to the commencement of or after the expiration or other termination of the Lease Term.
Notwithstanding anything herein to the contrary, “Real Property Taxes” shall not include any
franchise, estate, gift, inheritance, net income, or excess profits tax imposed upon Landlord, or
any penalties or fees. Additionally, Tenant’s obligation to pay any assessments included within
Real Property Taxes shall be calculated on the basis of the amount due if Landlord had allowed the
assessment to go to bond and the same were to be paid over the longest period available.
8.3 Personal Property Taxes. Tenant shall pay prior to delinquency all taxes charged against
trade fixtures, furnishings, equipment or any other personal property belonging to Tenant. Tenant
shall attempt to have such personal property taxed separately from the Premises. If any such taxes
on Tenant’s personal property are levied against Landlord or the Premises, or if the assessed value
of the Premises is increased by inclusion of a value placed upon such personal property of Tenant,
then: (a) Landlord, after written notice to Tenant, shall have the right to pay the taxes levied
against Landlord, or the taxes based upon such increased valuation, but under protest if so
requested by Tenant in writing, and (b) Tenant shall pay to Landlord the taxes levied against
Landlord, or the taxes resulting from such increased valuation, within fifteen (15) days after
Tenant’s receipt of a written statement from Landlord.
9. INSURANCE
9.1 Landlord’s Insurance. During the Lease Term, Landlord shall maintain insurance covering
loss or damage to the Premises (excluding Tenant’s Alterations, fixtures, equipment and personal
property), insuring against any or all risks of physical loss (and including, at Landlord’s option,
flood and earthquake coverage), with the scope
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and amounts of such coverage as determined by
Landlord. Said insurance shall provide for payment of loss thereunder to Landlord or to the holder
of a first mortgage or deed of trust on the Premises. Landlord shall also maintain during the
Lease Term, as part of its casualty insurance, a policy of rental income insurance covering a
period of one (1) year, with loss payable to Landlord. Landlord may also maintain (but shall not
be required to maintain) liability and other insurance (including environmental insurance) as
Landlord, at its sole option, may elect to maintain.
9.2 Tenant’s Insurance.
(a) Tenant shall carry, at Tenant’s sole expense, insurance against any or all risks of
physical loss in an amount adequate to cover the cost of replacement of all of Tenant’s
Alterations, trade fixtures, equipment and personal property. If Tenant’s insurance does not
otherwise cover losses caused by breakage or other malfunction of any of Tenant’s machinery or
equipment used by Tenant in the Premises, then Tenant shall carry equipment breakdown insurance (so
called boiler and machinery insurance) covering Tenant’s equipment and machinery (including any
heating, ventilating and air conditioning systems, electrical equipment, and the like). Tenant
acknowledges that Landlord’s insurance is not intended to cover Tenant’s Alterations, trade
fixtures, equipment, and personal property. If the Premises contains any plate glass, Tenant shall
carry plate-glass insurance covering all plate glass on the Premises at full replacement cost. Any
policy proceeds shall be used for the repair or replacement of the property damaged or destroyed
unless this Lease shall cease and terminate under the provisions of Article 16, whereupon any
insurance proceeds covering any of Tenant’s Alterations, fixtures, equipment and personal property
that Tenant is required to leave in the Premises at the expiration or earlier termination of the
Lease Term under Article 20 shall be payable to Landlord. Provided, however, that in the event
Tenant fails to carry any required insurance, at Landlord’s sole election, Landlord may obtain at
Tenant’s expense any or all of the insurance described in this Section.
(b) Tenant shall carry, at Tenant’s sole expense, comprehensive or commercial general
liability insurance, fully covering any and all claims arising from personal injury, death, and/or
property damage occurring in or about the Premises or the Building. Such liability insurance shall
include without limitation bodily injury (including wrongful death), property damage, advertising
injury, personal injury and contractual liability coverages (including Tenant’s indemnification
obligations under Article 13), independent contractors, owned, nonowned, and hired vehicle
liability and, if alcoholic beverages are served, sold, consumed or obtained in the Premises,
liquor-law liability. The initial limit of such insurance shall be at least $5,000,000 combined
single liability limit. Such liability insurance limit shall be subject to periodic increase, at
Landlord’s election, based upon inflation, increased liability awards, lender requirements, the
recommendations of Landlord’s professional insurance advisors, and other relevant factors. Tenant
shall also, at its sole cost and expense, obtain worker’s compensation coverage in an amount
adequate to comply with law, and employer’s liability coverage with a limit of not less than
$2,000,000. If Tenant’s use of the Premises involves any use, generation, manufacturing, storage
or disposal of any Hazardous Materials, or if any of Tenant’s activities increases any risk of any
liability to Tenant or Landlord under Hazardous Materials Laws, Tenant shall carry such
environmental insurance as may be required by Landlord’s lender or as otherwise reasonably required
by Landlord. Tenant shall, at Tenant’s sole expense, maintain such other liability insurance as
Tenant deems necessary to protect Tenant.
(c) Each policy of insurance required to be carried by Tenant hereunder shall (i) name
Landlord, Landlord’s lender and Landlord’s property manager (if any) as additional insureds, (ii)
contain cross-liability and contractual liability provisions, (ii) provide that no cancellation or
reduction in coverage shall be effective until thirty (30) days after written notice to Landlord
and Landlord’s lender, (iii) be issued by an insurer licensed in California and reasonably approved
by Landlord, (iv) include coverage for acts of terrorism, and (v) be primary and noncontributory to
any insurance carried by Landlord, regardless of the absence of negligence or other fault of Tenant
for alleged injury, death and/or property damage. The deductible or self-insured retention on any
insurance required to be carried by Tenant hereunder shall not exceed, without the prior written
consent of Landlord, Five Thousand Dollars ($5,000) per occurrence. Tenant shall be responsible
for the payment of the full amount of any deductible or self-insured retention on its insurance.
No insurance carried or required to be carried by Tenant, nor the amount or limits thereof, shall
limit Tenant’s liability nor relieve Tenant of any obligation under this Lease.
(d) Each policy of insurance required to be carried by Tenant hereunder shall be obtained by
Tenant and maintained in full force and effect throughout the Lease Term and any other period of
Tenant’s actual or constructive possession of the Premises. Prior to the Commencement Date or any
earlier taking of possession of any part of the Premises, Tenant shall deliver to Landlord (i) an
XXXXX Form 27 certificate (or such other certificate providing the greatest protection to Landlord
reasonably available) evidencing all insurance required to be maintained by Tenant and identifying
all additional insureds required to be so designated under the terms of this Lease, and (ii) all
additional insured endorsements provided by the insurer in favor of Landlord, Landlord’s property
manager and Landlord’s lender as required by this Lease. Tenant shall deliver evidence of a
renewal of each required policy, together with all required endorsements, at least thirty (30) days
prior to expiration thereof. Tenant shall permit Landlord at all reasonable times to inspect the
policies of insurance, and shall deliver copies thereof to Landlord within ten (10) days after
Landlord’s request therefor. Tenant shall be in material breach of this Lease if Tenant fails to
obtain the insurance required under this Section, or if Tenant obtains insurance with terms,
conditions and/or exclusions that are inconsistent with the requirements and terms of this Lease.
9.3 Payment of Insurance Costs. Tenant shall pay directly all premiums for its liability
insurance required under Section 9.2 and for all other insurance Tenant elects to carry. Tenant
shall pay its Share of the
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premiums for the insurance policies carried by Landlord described in
this Article or elsewhere in this Lease (“Insurance Costs”) subject to and in accordance with
Section 6 above. If the Lease Term expires before the expiration of any such insurance policy,
Tenant’s liability for premiums shall be prorated on an annual basis. Tenant shall pay its Share
of Insurance Costs to Landlord, to the extent such obligation exceeds any amount thereof impounded
under Section 4.5, within fifteen (15) days after receipt of a statement from Landlord. If any
insurance policy maintained by Landlord covers property other than the Building (under a so-called
“blanket” policy or otherwise), Landlord shall reasonably apportion the premium therefor among the
properties so covered. In addition, subject to and in accordance with Section 6 above, Tenant
shall
pay its Share of any reasonable deductible amount under Landlord’s insurance policies within
fifteen (15) days after receipt of a statement from Landlord. Subject to Section 6 above, Tenant’s
Share of any such reasonable deductible shall be equitably determined by Landlord based upon, among
other factors, the square footage of the Premises affected compared to the square footage of all
other affected areas in the Building, and the Replacement Cost (as defined in Section 16.1)
applicable to the damage to the Premises compared to that applicable to all other affected areas.
9.4 Waiver of Subrogation. Landlord and Tenant each hereby waive any and all claims against
the other party and its officers, directors, shareholders, partners, members, principals,
employees, agents, representatives, and other related entities and individuals, and their
respective successors and assigns, for any and all loss of or damage to the Premises, Building or
other tangible property, or any resulting loss of income, or losses under worker’s compensation
laws and benefits, which loss or damage arises out of any peril that is or would be covered by any
physical damage insurance policy actually carried or required to be carried pursuant to this Lease.
The foregoing waiver shall apply regardless of whether the party suffering the loss or damage
actually carries such insurance, recovers under such insurance, or self-insures the loss or damage.
Inasmuch as the foregoing waiver will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to
each insurance company issuing to it any policy of physical damage insurance written notice of the
terms of this mutual waiver, and to have each such insurance policy properly endorsed, if
necessary, to prevent the invalidation of such insurance coverage by reason of such waiver. The
waiver set forth herein shall apply to any deductible amount under any insurance policy, is not
limited by the amount of insurance carried or required to be carried, and is in addition to any
other waiver or release contained in this Lease. If Landlord has contracted with a third party for
the management of the Building, the waiver of subrogation by Tenant herein shall also run in favor
of such third party.
9.5 Tenant’s Use Not to Increase Premium. Tenant shall not keep, use, manufacture, assemble,
sell or offer for sale in or upon the Premises any article that may be prohibited by, or that might
invalidate, in whole or in part, the coverage afforded by, a standard form of fire or all risk
insurance policy. Tenant shall pay the entire amount of any increase in premiums that may be
charged during the Lease Term for the insurance that may be maintained by Landlord on the Premises
or the Building resulting from the type of materials or products stored, manufactured, assembled or
sold by Tenant in the Premises, whether or not Landlord has consented to the same. In determining
whether increased premiums are the result of Tenant’s use of the Premises, a schedule issued by the
entity making the insurance rate on the Premises showing the various components of such rate shall
be conclusive evidence of the items and charges that make up the fire insurance rate on the
Premises.
10. UTILITIES
Tenant shall pay the cost of all water, gas, heat, light, power, sewer, telephone, refuse
disposal, and all other utilities and services supplied to the Premises. Tenant shall make
payments for all separately metered utilities, when due, directly to the appropriate supplier. In
the event Landlord reasonably determines that Tenant is using more than its Share of any utilities
that are not separately metered, then Landlord shall have the right to require Tenant to install,
at Tenant’s sole expense, separate meters (or other submeter, device or monitor for the measurement
of utility usage) for any utility for which a separate meter is not installed as of the
Commencement Date. ||Electricity and gas are separately metered – water is not.|| If any
utilities or services are not separately metered or monitored with respect to the Premises, Tenant
shall pay its Share thereof to Landlord, to the extent such obligation exceeds any amount thereof
impounded under Section 4.5, within fifteen (15) days after receipt of a statement from Landlord.
Landlord shall in no way be liable or responsible for any loss, damage or expense that Tenant may
sustain or incur by reason of any change, failure, interruption, interference or defect in the
supply or character of the electricity or other utilities supplied to the Premises. Landlord makes
no representation or warranty as the suitability of the utility service for Tenant’s requirements,
and no such change, failure, defect, unavailability or unsuitability shall constitute any actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of
rent, or relieve Tenant of any of its obligations under the Lease. Landlord shall not be liable in
damages or otherwise for any failure or interruption of any utility service, and no such failure or
interruption shall entitle Tenant to terminate this Lease or xxxxx the rent due hereunder.
11. USE
11.1 Permitted Use. The Premises shall be used and occupied only for the permitted uses
specified in Section 1.8, and shall not be used or occupied for any other purposes without the
prior written consent of Landlord. Should Tenant desire to change its use, Tenant shall request
Landlord’s prior consent to such change in writing, and shall provide in writing such reasonably
detailed information about the proposed new use as may be requested by Landlord. Landlord shall
not unreasonably withhold its consent to any requested change of use, and shall have the right to
impose reasonable restrictions on such new use. Factors that Landlord may take into account in
granting or
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withholding its consent shall include, without limitation: (i) whether the proposed use
is compatible with the character and tenant mix of the Building, (ii) whether the proposed use
poses any increased risk to Landlord or any other occupant of the Building, (iii) whether any
proposed Alterations to accommodate such proposed use might decrease the rental or sale value of
the Premises or the Building, and (iv) whether Tenant has the requisite expertise and financial
ability to successfully operate in the Premises with the proposed new use.
11.2 Compliance with Legal Requirements. Tenant shall at all times and at its sole expense
comply with all federal, state, local and other laws, ordinances, rules, regulations, orders,
requirements, and recorded covenants and restrictions applicable to the Building, whether now in
force or hereafter in effect (including without limitation those
related to disabled persons, access, hazardous materials, lighting upgrades, energy saving,
and sprinkler and seismic retrofits, and those required because of Tenant’s occupancy or the
conduct of Tenant’s business) (collectively, “Legal Requirements”). Tenant shall not do or permit
anything to be done in or about the Premises in conflict with any Legal Requirement. Without
limiting the generality of the foregoing, Tenant shall at its sole cost take all actions, make all
alterations, install all additional facilities, and perform all work required to cause the Premises
(and any and all other areas of the Building under the control of Tenant or that Tenant is required
to maintain) to comply with all Legal Requirements. Anything to the contrary contained in this
Lease notwithstanding, Tenant shall not be responsible for compliance with any Legal Requirements
where such compliance would require physical changes to the Premises or Building and is not related
specifically to Tenant’s use and occupancy of the Premises. For example, if any governmental
authority should require the Building or the Premises to be structurally strengthened against
earthquake, or should require the removal of asbestos from the Premises and such measures are
imposed as a general requirement applicable to all tenants rather than as a condition to Tenant’s
specific use or occupancy of the Premises, then Tenant shall have no obligation to perform such
work.
11.3 Waste, Quiet Conduct. Tenant shall not use or permit the use of the Premises in any
manner that tends to create waste or a nuisance, that will cause objectionable noise or odors, or
that may disturb the quiet enjoyment of any other tenant in the Building.
11.4 Rules and Regulations. Tenant shall comply with the Rules and Regulations for the
Building attached as Exhibit “B”, as the same may be amended by Landlord from time to time, upon
notice to Tenant.
11.5 Signs. Tenant may, at Tenant’s sole cost, install signage at the Building. All signs
must be fabricated by a contractor reasonably approved by Landlord. Prior to construction of any
such sign, a detailed drawing of the proposed sign shall be prepared by Landlord’s contractor, at
the sole expense of Tenant, and submitted to Landlord for written approval, which approval Landlord
shall not unreasonably withhold. All signs must comply in all respects with all governmental laws
rules and regulations in effect from time to time. No sign, placard, pennant, flag, awning,
canopy, or advertising matter of any kind shall be placed or maintained on any exterior door, wall
or window of the Premises or in any area outside the Premises, and no decoration, lettering or
advertising matter shall be placed or maintained on the glass of any window or door, or that can be
seen through the glass, of the Premises without first obtaining Landlord’s written approval. All
signs and sign cases shall be considered fixtures and improvements and shall become the property of
Landlord upon expiration or termination of the Lease. Landlord shall have the right at any time to
establish a sign criteria for the Building, and to revise the same from time to time, which shall
be applicable to any signage thereafter installed.
11.6 Parking. Tenant shall have the nonexclusive right, in common with others, to use the
parking areas of the Building; provided, however, that Tenant shall not use more than the number of
parking spaces designated in Section 1.10, or if no number of such spaces is so indicated, Tenant
shall not use more than its reasonable share of parking spaces, as Landlord shall determine.
Landlord reserves the right, without liability to Tenant, to modify the parking areas, to designate
the specific location of the parking for Tenant and Tenant’s customers and employees, and to adopt
reasonable rules and regulations for use of the parking areas.
11.7 Entry by Landlord. Subject to Tenant’s reasonable security requirements, Tenant shall
permit Landlord and Landlord’s agents to enter the Premises at all reasonable times for any of the
following purposes: (a) to inspect the Premises, (b) to supply any services or to perform any
maintenance obligations of Landlord, including the erection and maintenance of such scaffolding,
canopies, fences, and props as may be required, (c) to make such improvements, replacements or
additions to the Premises or the Building as Landlord deems necessary or desirable, (d) to post
notices of nonresponsibility, (e) to place any usual or ordinary “for sale” signs, or (f) within
six (6) months prior to the expiration of this Lease, to place any usual or ordinary “for lease”
signs. No such entry shall result in any rebate of rent or any liability to Tenant for any loss of
occupation or quiet enjoyment of the Premises, provided, however, that in connection with any such
entry Landlord shall use reasonable efforts to minimize interference with Tenant’s business.
Landlord shall give reasonable notice to Tenant prior to any entry except in an emergency or unless
Tenant consents at the time of entry. If Tenant is not personally present to open and permit an
entry into the Premises, at any time when for any reason an entry therein shall be necessary or
permissible, Landlord or Landlord’s agents may enter the same by a master key, or may forcibly
enter the same without rendering Landlord or such agents liable therefor, and without in any manner
affecting the obligations and covenants of this Lease. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation, responsibility or liability whatsoever
for the care, maintenance or repair of the Premises or any part thereof, except as otherwise
specifically provided herein.
11.8 Utility Yard. Throughout the Lease Term Tenant shall have a non-exclusive license to a
portion of the Utility Yard depicted on the attached Exhibit “A” (the “Utility Yard”) solely for
the purpose of installing, maintaining and
9
operating thereon (all at Tenant’s sole cost) certain
equipment necessary for Tenant’s use of the Premises. Prior to the installation of any equipment in
the Utility Yard, Tenant shall provide to Landlord a detailed listing and description of the
equipment, together with a plat showing the proposed location thereof. Tenant shall also describe
in detail whether such equipment emits any noise, vibrations, fumes, or other substances, or would
otherwise cause any nuisance or disturbance to Landlord or any other tenant. The types and
locations of the equipment to be installed shall be subject to Landlord’s reasonable approval.
Tenant shall screen, fence or otherwise enclose Tenant’s approved equipment at its sole cost in
accordance with any requirements of governmental agencies and/or the reasonable requirements of
Landlord. The portion of the Utility Yard used by tenant shall form a part of the Premises (except
that such area shall not be included for calculation of the square footage of the Premises) and
shall be governed and subject to all of the
restrictions, indemnification obligations, use requirements and other terms and provisions of
the Lease applicable to the Premises. Under no circumstances shall Tenant install any underground
storage tanks or other equipment utilizing Hazardous Materials without Landlord’s prior written
consent, and otherwise on the terms and conditions set forth in Article 14. Tenant acknowledges
and agrees that a portion of the Utility Yard may be needed by other tenants of the Building, and
therefore agrees to cooperate with Landlord in allowing the use of and access to the Utility Yard
by such other tenants. Tenant additionally agrees to relocate, consolidate or otherwise adjust its
usage of the Utility Yard to accommodate the needs of Landlord and other tenants of the Building
from time to time upon reasonable notice from Landlord. Under no circumstances shall Tenant’s use
of the Utility Yard interfere with any operations of Landlord or any other tenant of the Building
12. ACCEPTANCE OF PREMISES; NONLIABILITY OF LANDLORD; DISCLAIMER
12.1 Acceptance of Premises. By taking possession hereunder, Tenant acknowledges that it has
examined the Premises and accepts the condition thereof. Tenant acknowledges and agrees that
Landlord has no obligation to improve the Premises other than as set forth specifically in this
Lease, if at all. In particular, Tenant acknowledges that any additional improvements or
alterations needed to accommodate Tenant’s intended use shall be made solely at Tenant’s sole cost
and expense, and strictly in accordance with the requirements of this Lease (including the
requirement to obtain Landlord’s consent thereto), unless such improvements and alterations are
specifically required of Landlord. Landlord shall have no responsibility to do any work required
under any building codes or other governmental requirements not in effect or applicable at the time
the Premises were constructed, including without limitation any requirements related to sprinkler
retrofitting, seismic structural requirements, accommodation of disabled persons, or hazardous
materials. Landlord shall be under no obligation to provide utility, telephone or other service or
access beyond that which exists at the Premises as of the date of this Lease, unless Landlord
specifically agrees in writing to provide the same. If it is anticipated that Tenant will be doing
any Alterations or installations prior to taking occupancy, any delays encountered by Tenant in
accomplishing such work or obtaining any required permits therefor shall not delay the Commencement
Date or the date that Tenant becomes liable to pay rent, or the date that Landlord may effectively
deliver possession of the Premises to Tenant. By taking possession hereunder, Tenant acknowledges
that it accepts the square footage of the Premises as delivered and as stated in this Lease. No
discovery or alleged discovery after such acceptance of any variance in such square footage as set
forth in this Lease (or in any proposal, advertisement or other description thereof) shall be
grounds for any adjustment in any element of the rent payable hereunder, unless such adjustment is
initiated by and implemented by Landlord in writing.
12.2 Landlord’s Exemption From Liability. Landlord shall not be liable for injury to Tenant’s
business or loss of income therefrom, or for personal injury or property damage that may be
sustained by Tenant or any subtenant of Tenant, or their respective employees, invitees, customers,
agents or contractors or any other person in or about the Premises, caused by or resulting from
fire, flood, earthquake or other natural disaster, or from steam, electricity, gas, water or rain,
or dampness of any origin, that may leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air-conditioning, lighting fixtures or computer equipment or software, whether such damage or
injury results from conditions arising upon the Premises or upon other portions of the Building, or
from other sources, and regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant. Landlord shall not be liable for any damages to
property or for personal injury or loss of life arising from any use, act or failure to act of any
third parties (including other occupants of the Building) occurring in, or about the Premises or in
or about the Building (including without limitation the criminal acts of any third parties).
Landlord shall not be liable for any latent defect in the Premises or in the Building. All
property of Tenant kept or stored on the Premises shall be so kept or stored at the risk of Tenant
only, and Tenant shall indemnify, protect, hold harmless and defend Landlord and Landlord’s
officers, directors, shareholders, partners, members, principals, employees, agents,
representatives, and other related entities and individuals, and their respective successors and
assigns, from and against any claims arising out of damage to the same, including subrogation
claims by Tenant’s insurance carriers. The indemnifications and waivers of Tenant set forth in
this Section shall apply notwithstanding Landlord’s negligence, but shall not apply to damage and
liability caused by the gross negligence or willful misconduct of Landlord, and through no fault of
Tenant, its assignees or subtenants, or their respective agents, contractors, employees, customers,
invitees or licensees.
12.3 No Warranties or Representations.
(a) Neither Landlord nor Landlord’s agents make any warranty or representation with respect to
the suitability or fitness of the space for the conduct of Tenant’s business, or for any other
purpose.
(b) Neither Landlord nor Landlord’s agents make any warranty or representation with respect to
any other tenants or users that may or may not construct improvements, occupy space or conduct
business within the
10
Building, and Tenant hereby acknowledges and agrees that it is not relying on
any warranty or representation relating thereto in entering into this Lease.
(c) Landlord specifically disavows any oral representations made by or on behalf of its
employees, agents and independent contractors, and Tenant hereby acknowledges and agrees that it is
not relying and has not relied on any oral representations in entering into this Lease.
(d) Landlord has not made any promises or representations, expressed or implied, that it will
renew, extend or modify this Lease in favor of Tenant or any permitted transferee of Tenant, except
as may be specifically set forth herein or in a written instrument signed by both parties amending
this Lease in the future.
(e) Notwithstanding that the rent payable to Landlord hereunder may at times include the cost
of guard service or other security measures, it is specifically understood that Landlord does not
represent, guarantee or assume responsibility that Tenant will be secure from any damage, injury or
loss of life because of such guard service. Landlord shall have no obligation to hire, maintain or
provide such services, which may be withdrawn or changed at any time with or without notice to
Tenant or any other person and without liability to Landlord. To induce Landlord to provide such
service if Landlord elects in its sole discretion to do so, Tenant agrees that (i) Landlord shall
not be liable for any damage, injury or loss of life related to the provision or nonprovision of
such service, and (ii) Landlord shall have no responsibility to protect Tenant, or its employees or
agents, from the acts of any third parties (including other occupants of the Building) occurring in
or about the Premises or in or about the Building (including without limitation the criminal acts
of any third parties), whether or not the same could have been prevented by any such guard service
or other security measures.
12.4 Tenant’s Prior Occupancy of Premises. Landlord and Tenant acknowledge that Tenant was
the occupant of the Premises immediately prior to the Commencement Date pursuant to a sublease of
the Premises with the prior tenant thereof. Accordingly, any timeframe set forth herein or
pursuant to law that is to run from the occupancy of the Premises shall commence on the date Tenant
took occupancy of the Premises pursuant to such sublease, and not from the Commencement Date of
this Lease. Additionally, Tenant acknowledges and agrees that it has had a full and fair
opportunity to examine the Building and the Premises during such sublease period, and accepts the
Premises in their “as-is, with all its faults” condition. In particular, Tenant acknowledges that
the occupant of the Premises prior to Tenant’s occupancy thereof used, stored, generated and
transported significant Hazardous Materials at, to and from the Premises, and has satisfied itself
with respect to such prior occupant’s proper handling, disposal, clean-up and remediation of
Hazardous Materials.
13. INDEMNIFICATION
Tenant shall indemnify, defend and hold Landlord and Landlord’s officers, directors,
shareholders, partners, members, principals, employees, agents, representatives, and other related
entities and individuals (collectively, “Landlord’s Related Entities”), harmless from and against
any and all claims, actions, damages, liability, costs, and expenses, including attorneys’ fees and
costs, arising from personal injury, death, and/or property damage and arising from: (a) Tenant’s
use or occupation of the Premises or any work or activity done or permitted by Tenant in or about
the Premises (including without limitation any storage or display of materials or merchandise, or
other activity by Tenant in the Common Facilities), (b) any activity, condition or occurrence in
the Premises or other area under the control of Tenant, (c) any breach or failure to perform any
obligation imposed on Tenant under this Lease, or (d) any other negligent act or omission of Tenant
or its assignees or subtenants or their respective agents, contractors, employees, customers,
invitees or licensees. Tenant’s obligation to defend and indemnify shall include, but not be
limited to, claims based on duties, obligations, or liabilities imposed on Landlord or Landlord’s
Related Entities by statute, ordinance, regulation, or other law, such as claims based on theories
of peculiar risk and nondelegable duty, and to any and all other claims based on the negligent act
or omission of Landlord or Landlord’s Related Entities. The parties intend that this provision be
interpreted as the broadest Type I indemnity provision as defined in McDonald & Xxxxx, Inc. v. San
Xxxx Steel Co., 29 Cal. App. 3rd 413 (1972), and as allowed by law between a landlord and a tenant.
Upon notice from Landlord, Tenant shall, at Tenant’s sole expense and by counsel satisfactory to
Landlord, defend any action or proceeding brought against Landlord or Landlord’s Related Entities
by reason of any such claim. If Landlord or any of Landlord’s Related Entities is made a party to
any litigation commenced by or against Tenant (other than a suit by Tenant against Landlord or any
of Landlord’s Related Entities), then Tenant shall indemnify, defend and hold Landlord and
Landlord’s Related Entities harmless from, and shall pay all costs, expenses and attorneys’ fees
and costs incurred or paid in connection with, such litigation. Tenant, as a material part of the
consideration to Landlord hereunder, assumes all risk of, and waives all claims against Landlord
for, personal injury or property damage in, upon or about the Premises, from any cause whatsoever.
Provided, however, that the indemnifications and waivers of Tenant set forth in this Section shall
not apply to damage and liability caused (i) by the gross negligence or willful misconduct of
Landlord, and (ii) through no fault of Tenant, its assignees or subtenants, or their respective
agents, contractors, employees, customers, invitees or licensees.
14. HAZARDOUS MATERIALS
14.1 Definitions. “Hazardous Materials Laws” means any and all federal, state or local laws,
ordinances, rules, decrees, orders, regulations or court decisions relating to hazardous
substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on,
under or about the Premises, or soil and ground water conditions, including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. '9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. '6901, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. '1801, et seq., the California
Hazardous Waste
11
Control Act, Cal. Health and Safety Code '25100, et seq., the
Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substances Account Act, Cal. Health and Safety Code
'25300, et seq., the Safe Drinking Water and Toxic Enforcement Act, Cal. Health and Safety
Code '25249.5, et seq., the Xxxxxx-Cologne Water Quality Control Act, Cal. Water Code
'13000, et seq., any amendments to the foregoing, and any similar federal, state or local
laws, ordinances, rules, decrees, orders or regulations. “Hazardous Materials” means any chemical,
compound, material, substance or other matter that: (a) is defined as a hazardous substance,
hazardous material, hazardous waste or toxic substance under any Hazardous Materials Law, (b) is
controlled or governed by any Hazardous Materials Law or gives rise to any reporting, notice or
publication requirements hereunder, or gives rise to any liability, responsibility or duty on
the part of Tenant or Landlord with respect to any third person hereunder; or (c) is flammable or
explosive material, oil, asbestos, urea formaldehyde, radioactive material, nuclear medicine
material, drug, vaccine, bacteria, virus, mold, hazardous waste, toxic substance, or related
injurious or potentially injurious material (by itself or in combination with other materials).
14.2 Use of Hazardous Materials. Tenant shall not allow any Hazardous Material to be used,
generated, manufactured, released, stored or disposed of on, under or about, or transported from,
the Premises, unless: (a) such use is specifically disclosed to and approved by Landlord in writing
prior to such use, and (b) such use is conducted in compliance with the provisions of this Article.
Landlord’s consent may be withheld in Landlord’s sole discretion and, if granted, may be revoked
at any time upon reasonable cause. Landlord may approve such use subject to reasonable conditions
to protect the Premises and Landlord’s interests. Landlord may withhold approval if Landlord in
good faith determines that such proposed use involves a material risk of a release or discharge of
Hazardous Materials or a violation of any Hazardous Materials Laws or that Tenant has not provided
reasonably sufficient assurances of its ability to remedy such a violation and fulfill its
obligations under this Article. Notwithstanding the foregoing or anything in this Lease to the
contrary, Landlord hereby consents to the use, storage or disposal of Hazardous Materials necessary
for the conduct of the business of Halozyme, Inc., in its capacity as Tenant hereunder, so long as
Tenant handles, uses, stores and disposes of the same in compliance with all Hazardous Materials
Laws, including, without limitation, (x)products containing small amounts of Hazardous Materials
that are of a type customarily found in offices and households (such as aerosol cans containing
insecticides, toner for copies, paints, paint remover and similar items); (y) small quantities of
radioactive material used in the life science research activities of Tenant, but only to the extent
necessary for such activities; and (z) animal-related supplies used in the life science research
activities of Tenant, but only to the extent necessary for such activities.
14.3 Compliance With Laws; Handling Hazardous Materials. Tenant shall strictly comply with,
and shall maintain the Premises in compliance with, all Hazardous Materials Laws. Tenant shall
obtain, maintain in effect and comply with the conditions of all permits, licenses and other
governmental approvals required for Tenant’s operations on the Premises under any Hazardous
Materials Laws, including, but not limited to, the discharge of appropriately treated Hazardous
Materials into or through any sanitary sewer serving the Premises. At Landlord’s request, Tenant
shall deliver copies of, or allow Landlord to inspect, all such permits, licenses and approvals.
All Hazardous Materials removed from the Premises shall be removed and transported by duly licensed
haulers to duly licensed disposal facilities, in compliance with all Hazardous Materials Laws.
Tenant shall perform any monitoring, testing, investigation, clean-up, removal, detoxification,
preparation of closure or other required plans and any other remedial work required by any
governmental agency or lender, or recommended by Landlord’s environmental consultants, as a result
of any release or discharge or potential release or discharge of Hazardous Materials affecting the
Premises or the Building or any violation or potential violation of Hazardous Materials Laws by
Tenant or any assignee or subtenant of Tenant or their respective agents, contractors, employees,
licensees or invitees (collectively, “Remedial Work”). Landlord shall have the right to intervene
in any governmental action or proceeding involving any Remedial Work, and to approve performance of
the work, in order to protect Landlord’s interests. Tenant shall not enter into any settlement
agreement, consent decree or other compromise with respect to any claims relating to Hazardous
Materials without notifying Landlord and providing ample opportunity for Landlord to intervene.
Tenant shall additionally comply with the recommendations of Landlord’s and Tenant’s insurers based
upon National Fire Protection Association standards or other applicable guidelines regarding the
management and handling of Hazardous Materials. If any present or future law imposes any
requirement of reporting, survey, investigation or other compliance upon Landlord, Tenant, or the
Premises, and if such requirement is precipitated by a transaction involving the Lease (other than
the natural expiration thereof at the end of this Lease Term), including without limitation the
assignment or sublease, in whole or in part of Tenant’s interest in the Lease, or the change in the
ownership of Tenant, then Tenant shall fully comply with and pay all costs of compliance with such
requirement, including Landlord’s attorneys’ fees and costs.
14.4 Notice; Reporting; Notice Under Health and Safety Code Section 25359.7. Tenant shall
notify Landlord, in writing, within three (3) days after any of the following: (a) Tenant has
knowledge, or has reasonable cause to believe, that any Hazardous Material has been released,
discharged or is located on, under or about the Premises, whether or not the release or discharge
is in quantities that would otherwise be reportable to a public agency, (b) Tenant receives any
order of a governmental agency requiring any Remedial Work pursuant to any Hazardous Materials
Laws, (c) Tenant receives any warning, notice of inspection, notice of violation or alleged
violation or Tenant receives notice or knowledge of any proceeding, investigation or enforcement
action, pursuant to any Hazardous Materials Laws; or (d) Tenant receives notice or knowledge of any
claims made or threatened by any third party against Tenant or the Premises relating to any loss or
injury resulting from Hazardous Materials. If the potential risk of any of the foregoing events is
material, Tenant shall deliver immediate verbal notice to Landlord, in addition to written notice
as set forth above. Tenant shall deliver to Landlord copies of all test results, reports and
business or
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management plans required to be filed with any governmental agency pursuant to any
Hazardous Materials Laws. Landlord hereby notifies Tenant, and Tenant hereby acknowledges that,
prior to the leasing of the Premises pursuant to this Lease, Tenant has been notified, pursuant to
California Health and Safety Code Section 25359.7 (or any successor statue), that Landlord knows,
or has reasonable cause to believe, that certain hazardous substances (as such term is used in such
Section 25359.7) may have come to be located in, on or beneath the Premises.
14.5 Indemnity. Tenant shall indemnify, protect, hold harmless and defend Landlord and
Landlord’s officers, directors, shareholders, partners, members, principals, employees, agents,
representatives, and other related
entities and individuals, and their respective successors and assigns, from and against any
and all liabilities, claims, suits, judgments, actions, investigations, proceedings, costs and
expenses (including attorneys’ fees and costs) arising out of or in connection with any breach of
any provisions of this Article or directly or indirectly arising out of the use, generation,
storage, release, disposal or transportation of Hazardous Materials by Tenant, or any assignee or
subtenant of Tenant, or their respective agents, contractors, employees, licensees, or invitees,
on, under or about the Premises during the Lease Term or any other period of Tenant’s actual or
constructive occupancy of the Premises, including, but not limited to, all foreseeable and
unforeseeable consequential damages and the cost of any Remedial Work. Any defense of Landlord
pursuant to this Section shall be by counsel acceptable to Landlord. Neither the consent by
Landlord to the use, generation, storage, release, disposal or transportation of Hazardous
Materials nor the strict compliance with all Hazardous Materials Laws shall excuse Tenant from
Tenant’s indemnification obligations pursuant to this Article. The foregoing indemnity shall be in
addition to and not a limitation of the indemnification provisions of Article 13 of this Lease.
Tenant’s obligations pursuant to this Article shall survive the termination or expiration of this
Lease.
14.6 Entry and Inspection; Cure. Landlord and its agents, employees and contractors, shall
have the right (but not the obligation) to enter the Premises at all reasonable times to inspect
the Premises and Tenant’s compliance with the terms and conditions of this Article, or to conduct
investigations and tests. No prior notice to Tenant shall be required in the event of an
emergency, or if Landlord has reasonable cause to believe that violations of this Article have
occurred, or if Tenant consents at the time of entry. In all other cases, Landlord shall give at
least twenty-four (24) hours’ prior notice to Tenant. Landlord shall have the right (but not the
obligation) to remedy any violation by Tenant of the provisions of this Article pursuant to Section
22.3 of this Lease or to perform any Remedial Work. Tenant shall pay, upon demand, all costs
incurred by Landlord in investigating any such violations or potential violations or performing
Remedial Work, plus interest thereon at the rate specified in this Lease from the date of demand
until the date paid by Tenant.
14.7 Termination; Expiration. Upon termination or expiration of this Lease, Tenant shall, at
Tenant’s cost, remove any equipment, improvements or storage facilities installed by Tenant in
connection with its use of Hazardous Materials and shall clean up, detoxify, repair and otherwise
restore the Premises to a condition free of Hazardous Materials, to the extent such condition is
caused by Tenant or any assignee or subtenant of Tenant or their respective agents, contractors,
employees, licensees or invitees.
14.8 Exit Assessment. No later than ten (10) days after the expiration or earlier termination
of this Lease, Tenant shall cause to be performed, at its sole expense, an environmental assessment
(the “Exit Assessment”) of the Premises. Landlord agrees to allow Tenant access to the Premises
for such purpose. The Exit Assessment must be performed by a qualified environmental consultant
acceptable to Landlord, and shall include without limitation the following, as applicable to the
Premises and Tenant’s activities: (a) inspection of all floors, walls, ceiling tiles, benches,
cabinet interiors, sinks, the roof and other surfaces for signs of contamination and/or
deterioration related to Hazardous Materials, (b) inspection of any and all ducts, hoods and
exhaust systems for signs of contamination, deterioration and/or leakage related or potentially
related to Hazardous Materials, (c) inspection of all readily accessible drain lines and other
discharge piping for signs of deterioration, loss of integrity and leakage, (d) Tenant interviews
and review of appropriate Tenant records to determine the uses to which Tenant has put the Premises
that involve or may have involved Hazardous Materials, and to determine if any known discharges to
the Premises or ground or soils from Tenant’s activities have occurred, (e) documentation in detail
of all observations, including dated photographs, (f) if applicable a certification that all areas
inspected are clean and free of any Hazardous Materials and that the investigation conducted by the
consultant does indicate that any release of any Hazardous Materials has occurred in the Premises
or the Building as a result of Tenant’s activities, (g) if applicable, a detailed description of
Hazardous Materials remaining in the Premises and of any contamination, deterioration and/or
leakage observed, together with detailed recommendations for the removal, repair or abatement of
the same, and (h) if applicable, a detailed description of evidence of possible or past releases of
Hazardous Materials, together with detailed recommendations for the prevention of the same in the
future. Landlord shall have the right to require additional evaluations or work in connection with
the Exit Assessment based upon Tenant’s use of the Premises, any actual or suspected Hazardous
Materials issues, or other reasonable factors. The original of the Exit Assessment shall be
addressed to Landlord and shall be provided to Landlord within twenty (20) days of the expiration
or earlier termination of this Lease. In addition to Tenant’s obligations under Section 14.7,
Tenant agrees to fully implement and address all recommended actions contained in the Exit
Assessment, at its sole cost, within thirty (30) days of the date thereof.
14.9 Event of Default. The release or discharge of any Hazardous Material or the violation of
any Hazardous Materials Law by Tenant or any assignee or subtenant of Tenant shall be a material
default by Tenant under this Lease subject to the provisions of Section 21.2 below. In addition to
or in lieu of the remedies available under this Lease as a result of such Event of Default,
Landlord shall have the right, without terminating this Lease, to
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require Tenant to suspend its
operations and activities on the Premises until Landlord is satisfied that appropriate Remedial
Work has been or is being adequately performed; Landlord’s election of this remedy shall not
constitute a waiver of Landlord’s right thereafter to declare an Event of Default and pursue any
other available remedy.
15. ALTERATIONS; LIENS
15.1 Alterations by Tenant. Tenant shall not make any alterations, additions or improvements
(“Alterations”) to the Premises without Landlord’s prior written consent, except for nonstructural
Alterations that cost $5,000 or less and are not visible from the exterior of the Premises. All
Alterations installed by Tenant shall be new or
completely reconditioned. Landlord shall have the right to approve the contractor, the method
of payment of the contractor, and the plans and specifications for all proposed Alterations, which
approval shall not be unreasonably withheld, conditioned or delayed. Tenant shall obtain
Landlord’s consent to all proposed Alterations requiring Landlord’s consent prior to the
commencement of any such Alterations. Tenant’s request for consent shall be accompanied by
information identifying the contractor and method of payment and two (2) copies of the proposed
plans and specifications. All Alterations of whatever kind and nature shall become at once a part
of the realty and shall be surrendered with the Premises upon expiration or earlier termination of
the Lease Term, unless Landlord requires Tenant to remove the same as provided in Article 20. If
Tenant demolishes or removes any then-existing tenant improvements or other portions of the
Premises or the Building (including without limitation any previously-installed Alterations),
Tenant shall promptly commence and diligently pursue to completion all Alterations then underway;
provided, however, that if Tenant fails to do so, at the election of Landlord, Tenant shall restore
the Premises and the Building to its condition and state of improvement prior to such demolition or
removal. During the Lease Term, Tenant agrees to provide, at Tenant’s expense, a policy of
insurance covering loss or damage to Alterations made by Tenant, in an amount adequate to repair or
replace the same, naming Landlord and Landlord’s property manager (if any) as additional insureds.
Notwithstanding anything herein to the contrary, Tenant may install movable furniture, trade
fixtures, machinery or equipment in conformance with applicable governmental rules or ordinances
and remove the same upon expiration or earlier termination of this Lease as provided in Article 20.
15.2 Permits and Governmental Requirements. Tenant shall obtain, at Tenant’s sole cost and
expense, all building permits and other permits of every kind and nature required by any
governmental agency having jurisdiction in connection with the Alterations. Tenant shall
indemnify, protect, hold harmless and defend Landlord and Landlord’s officers, directors,
shareholders, partners, members, principals, employees, agents, representatives, and other related
entities and individuals, and their respective successors and assigns, from and against any and all
claims, actions, damages, liability, costs, and expenses, including attorneys’ fees and costs,
arising out of any failure by Tenant or Tenant’s contractor or agents to obtain all required
permits, regardless of when such failure is discovered. Tenant shall do any and all additional
construction, alterations, improvements and retrofittings required to be made to the Premises
and/or the Building, or any other property of Landlord as a result of, or as may be triggered by,
Tenant’s Alterations. Landlord shall have the right to do such construction itself; but in all
instances Tenant shall pay all costs directly or indirectly related to such work and shall
indemnify, protect, hold harmless and defend Landlord and Landlord’s officers, directors,
shareholders, partners, members, principals, employees, agents, representatives, and other related
entities and individuals, and their respective successors and assigns, from and against any and all
claims, actions, damages, liability, costs, and expenses, including attorneys’ fees and costs,
arising out of any such additionally required work. All payment and indemnification obligations
under this Section shall survive the expiration or earlier termination of the Lease Term.
15.3 Liens. Tenant shall pay when due all claims for any work performed, materials furnished
or obligations incurred by or for Tenant, and Tenant shall keep the Premises free from any liens
arising with respect thereto. If Tenant fails to cause any such lien to be released within fifteen
(15) days after obtaining notice or knowledge of the same, by payment or posting of a proper bond,
Landlord shall have the right (but not the obligation) to cause such release by such means as
Landlord deems proper. Tenant shall pay Landlord upon demand for all costs incurred by Landlord in
connection therewith (including attorneys’ fees and costs), with interest at the rate specified in
Section 22.4 from the date of payment by Landlord to the date of payment by Tenant. Tenant will
notify Landlord in writing thirty (30) days prior to commencing any alterations, additions,
improvements or repairs in order to allow Landlord time to file a notice of nonresponsibility.
16. DAMAGE AND DESTRUCTION
16.1 Partial Damage. If, during the Lease Term, the Premises are damaged or destroyed by fire
or other casualty, or if the Building is damaged or destroyed by fire or other casualty and such
damage or destruction affects Tenant’s use of the Premises (collectively, “Premises Damage”),
Landlord shall perform the necessary repairs (other than to Tenant’s Alterations, trade fixtures,
equipment, and personal property, the repair of which Tenant shall be solely responsible), and this
Lease shall continue in full force and effect. Provided, however, that Landlord may, at its
option, elect to terminate this Lease if (i) Landlord’s repairs cannot reasonably be completed
within sixty (60) days after the date of the Premises Damage in accordance with applicable laws and
regulations, or (ii) the Replacement Cost (defined below) exceeds six (6) months’ Minimum Monthly
Rent, or (iii) Landlord does not receive sufficient insurance proceeds to pay the full Replacement
Cost and the shortfall exceeds one (1) month’s Minimum Monthly Rent. As used herein, “Replacement
Cost” shall mean the cost to repair or rebuild the Premises, Building (other than Tenant’s
Alterations, equipment, trade fixtures, and personal property) at the time of the damage or
destruction to their condition existing immediately prior thereto, including without limitation all
costs of demolition, debris removal, permits, fees and
14
other governmental requirements, and
upgrading the Premises, Building as required by law or other requirements, without deduction for
depreciation.
16.2 Total Destruction. Notwithstanding any other provisions of this Lease, a total
destruction (including any destruction required by any authorized public authority) of either the
Premises or the Building shall, at the election of Landlord, terminate this Lease as of the date of
such destruction.
16.3 Partial Destruction of Building. Notwithstanding any other provision of this Lease, if
fifty percent (50%) or more of the square footage of the Building or the Building is damaged or
destroyed, notwithstanding that the Premises may be unaffected, Landlord shall have the right to
terminate this Lease.
16.4 Insurance Deductible. If Landlord is required or elects to repair any Premises Damage
caused by an insured casualty as provided in Section 16.1, Tenant shall, within fifteen (15) days
after receipt of written notice from Landlord, pay the amount of any deductible (or its Share
thereof) under any insurance policy covering such Premises Damage, subject to the limitations set
forth in Section 6, and otherwise in accordance with Section 9.3 above.
16.5 Damage Near End of Term. If at any time during the last twelve (12) months of the Lease
Term there is Premises Damage for which Replacement Cost exceeds one (1) month’s Minimum Monthly
Rent, Landlord may, at its option, elect to terminate this Lease; provided, however, that if Tenant
has any valid, unexercised option to extend the term of this Lease, Tenant may prevent Landlord’s
termination under this Section by exercising such option within five (5) business days of receipt
of Landlord’s election to terminate.
16.6 Landlord’s Termination Notice; Effective Date; Relocation. If Landlord elects to
terminate this Lease under any applicable provision of this Article 16, Landlord shall give notice
of such election within forty-five (45) days of the date of the damage or destruction. In the case
of a total destruction (Section 16.2) or Premises Damage that prevents Tenant from occupying the
Premises for its permitted use, the effective date of such termination shall be the date of such
Premises Damage; otherwise the effective date of termination shall be a date selected by Landlord
not earlier than thirty (30) days from the date of Landlord’s notice.
16.7 Rent Abatement. If Landlord repairs the Premises or the Building after a Premises Damage
as described in this Article 16, Minimum Monthly Rent and Additional Rent shall be equitably
reduced from the date of the Premises Damage until the repairs are completed, based upon the extent
to which such damage and/or repairs interfere with the business carried on by Tenant in the
Premises, but only to the extent such rental loss is covered by (or would have been covered by) the
rental income insurance required pursuant to Section 9.1. Landlord agrees to take reasonable steps
to make a claim for and collect any rental income insurance proceeds that might be available.
16.8 Tenant’s Obligations. Landlord shall not be required to repair any injury or damage by
fire or other cause, or to make any restoration or replacement of, any of Alterations, equipment,
trade fixtures, and personal property owned, placed or installed in or about the Premises by or on
behalf of Tenant. Unless this Lease is terminated pursuant to this Article, Tenant shall promptly
repair, restore or replace the same in the event of any damage thereto. If all or any portion of
the Premises, Building is damaged or destroyed by reason of any act or omission of Tenant, except
as provided in Section 9.4 (Waiver of Subrogation), Tenant shall either make the necessary repairs
at Tenant’s expense or pay to Landlord the Replacement Cost arising therefrom, regardless of
whether this Lease is terminated. Nothing contained in this Article shall be construed as a
limitation on Tenant’s liability for any damage or destruction if such liability otherwise exists.
16.9 Tenant’s Rights. Notwithstanding anything to the contrary contained herein: (i) if
Tenant’s use of the Premises is substantially impaired for a period of more than nine (9) months
after the date of such Premises Damage, or during the last six (6) months of the Term, then Tenant
shall have the right to terminate this Lease by written notice to Landlord at any time thereafter
until Tenant’s use of the Premises is substantially restored, and (ii) if this Lease is terminated
by either Landlord or Tenant due to a casualty, then Tenant shall not be required to pay for any
insurance deductibles as part of Landlord’s insurance cost or otherwise.
16.10 Waiver of Inconsistent Statutes. The parties’ rights and obligations in the event of
damage or destruction shall be governed by the provisions of this Lease; accordingly, Tenant waives
the provisions of California Civil Code Sections 1932(2) and 1933(4), and any other statute, code
or judicial decisions that grants a tenant a right to terminate a lease in the event of damage or
destruction of a leased premises.
17. CONDEMNATION
17.1 Effect on Lease. If all of the Premises, or so much thereof that the remaining portion
of the Premises cannot be used by Tenant for the conduct of its business, is taken under the power
of eminent domain or sold under the threat of the exercise of such power (collectively
“Condemnation”), this Lease shall terminate as of the earlier of the date title vests in the
condemnor or the date the condemnor is entitled to possession of the interest condemned (the
“Condemnation Date”). In all other cases, Landlord may terminate this Lease as of the Condemnation
Date if (i) the Condemnation affects any material portion of the Premises or the Building, (ii)
Landlord receives insufficient funds from the condemnor to complete the restoration of the Premises
required under this Section, or (iii) if the Condemnation affects such a substantial portion of the
Building (including the Common Facilities, parking lots or access to the Building) that it is no
longer economically appropriate in Landlord’s business judgment to lease the Premises on the terms
and conditions of this Lease. If such Condemnation affects the Premises and this Lease remains in
effect, (a) this Lease shall terminate as to the portion of the Premises taken as of the
Condemnation Date, (b) the Minimum Monthly Rent shall be equitably adjusted based upon the rental
value of the Premises remaining after the Condemnation compared to the rental value of the Premises
prior to Condemnation, (c) Tenant’s Share shall be adjusted based on any changes in the square
footage of the Premises and/or the Building, and (d) Landlord shall,
15
within a reasonable period of
time, undertake such construction or restoration as may be reasonably necessary to place the
remaining Premises in a useable condition (provided that the cost of such construction or
restoration does not exceed the amount awarded to Landlord by the condemnor for such purpose).
Landlord shall not be responsible to restore or replace any of Tenant’s Alterations, fixtures,
equipment or personal property.
17.2 Condemnation Award. All compensation, damages and other items of value awarded, paid or
received in settlement or otherwise (“Award”) upon any partial or total Condemnation shall be paid
to Landlord, and Tenant shall have no claim thereto. Tenant hereby irrevocably assigns and
transfers to Landlord, and fully waives, releases and relinquishes any and all claims to or
interest in the Award, including, without limitation, any amount
attributable to the amount, if any, by which rental value of the Premises exceeds the rent
payable for the remainder of the Lease Term, to the value of any unexercised options to extend the
term or expand the Premises, or to Tenant’s goodwill. Notwithstanding the foregoing, Tenant shall
have the right to make a separate claim and to recover from the condemning authority, but not from
Landlord, so long as the Award payable to Landlord is not reduced thereby, such compensation as may
be separately awarded or recoverable by Tenant in Tenant’s own right on account of (a) the taking
of the unamortized or undepreciated value of any Alterations or any leasehold improvements owned by
Tenant that Tenant has the right to remove at the end of the Lease Term and Tenant elects not to
remove; (b) reasonable removal and relocation costs for any Alterations or any leasehold
improvements that Tenant has the right to remove and elects to remove (if the condemning authority
approves of the removal); and (c) relocation costs under Government Code Section 7262, the claim
for which Tenant may pursue by separate action independent of this Lease.
17.3 Waiver of Inconsistent Statutes. The parties’ rights and obligations in the event of
Condemnation shall be governed by the provisions of this Lease; accordingly, Tenant waives the
provisions of California Code of Civil Procedure Sections 1265.110 through 1265.150, and any other
statute, code or judicial decisions that grants a tenant a right to terminate a lease in the event
of the Condemnation of a leased premises.
18. ASSIGNMENT AND SUBLETTING
18.1 Landlord’s Consent Required. Tenant shall not voluntarily or involuntarily assign,
sublease, mortgage, encumber, or otherwise transfer all or any portion of the Premises or its
interest in this Lease (collectively, “Transfer”) without Landlord’s prior written consent, which
consent Landlord shall not unreasonably withhold. Landlord may withhold its consent until Tenant
has complied with the provisions of Sections 18.2 and 18.3. Any attempted Transfer without
Landlord’s written consent shall be void and shall constitute a noncurable Event of Default under
this Lease. If Tenant is a corporation, any cumulative Transfer of more than twenty percent (20%)
of the voting stock of such corporation shall constitute a Transfer requiring Landlord’s consent
hereunder; provided, however, that this sentence shall not apply to any corporation whose stock is
publicly traded. If Tenant is a partnership, limited liability company, trust or other entity, any
cumulative Transfer of more than twenty percent (20%) of the partnership, membership, beneficial or
other ownership interests therein shall constitute a Transfer requiring Landlord’s consent
hereunder. Tenant shall not have the right to consummate a Transfer or to request Landlord’s
consent to any Transfer if any Event of Default has occurred and is continuing or if Tenant or any
affiliate of Tenant is in default under any lease of any other real property owned or managed (in
whole or in part) by Landlord or any affiliate of Landlord.
18.2 Landlord’s Election. Tenant’s request for consent to any Transfer shall be accompanied
by a written statement setting forth the details of the proposed Transfer, including the name,
business and financial condition of the prospective Transferee, financial details of the proposed
Transfer (e.g., the term and the rent and security deposit payable), and any other related
information that Landlord may reasonably require. Landlord shall have the right: (a) to withhold
consent to the Transfer, if reasonable, (b) to grant consent, (c) to terminate this Lease in
connection with any Transfer for substantially the remainder of the Lease Term, but only as to the
portion of the Premises affected by any proposed Transfer, in which event Landlord may enter into a
lease directly with the proposed Transferee (which election to terminate shall not be construed to
be a consent to the proposed Transfer), or (d) to consent on the condition that Landlord be paid
fifty percent (50%) of all subrent or other consideration to be paid to Tenant under the terms of
the Transfer in excess of the total rent due hereunder, as offset by any costs incurred in
connection with such Transfer. Landlord may require any permitted subtenant to make rental
payments directly to Landlord, in the amount of rent due under the sublease. The grounds on which
Landlord may reasonably withhold its consent to any requested Transfer include, without limitation,
that: (i) the proposed Transferee’s contemplated use of the Premises following the proposed
Transfer is not reasonably similar to the use of the Premises permitted hereunder, (ii) in
Landlord’s reasonable business judgment, the proposed Transferee lacks sufficient business
reputation or experience to operate a successful business of the type and quality permitted under
this Lease, (iii) in Landlord’s reasonable business judgment, the proposed Transferee lacks
sufficient net worth, working capital, anticipated cash flow and other indications of financial
strength to meet all of its obligations under this Lease, (iv) the proposed Transfer would breach
any covenant of Landlord respecting a radius restriction, location, use or exclusivity in any other
lease, financing agreement, or other agreement relating to the Building, and (iv) in Landlord’s
reasonable business judgment, the possibility of a release of Hazardous Materials is materially
increased as a result of the Transfer or if Landlord does not receive sufficient assurances that
the proposed Transferee has the experience and financial ability to remedy a violation of Hazardous
Materials and to fulfill its obligations under Articles 13 and 14. In connection with any such
Transfer, Landlord shall have the right to require Tenant, at Tenant’s sole cost, to cause
environmental testing meeting the requirements of an Exit Assessment described in Section 14.8 to
be performed. Landlord need only respond to any request by Tenant hereunder within a reasonable
time of not less than ten (10) business days after receipt of all information and other submission
required in connection with such request.
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18.3 Costs; Transfer Fee. Tenant shall pay all costs and expenses in connection with any
permitted Transfer, including any real estate brokerage commissions due with respect to the
Transfer. Tenant shall reimburse all attorneys’ fees and costs reasonably incurred by Landlord and
a fee of $500 to reimburse Landlord for costs and expenses incurred in connection with any request
by Tenant for Landlord’s consent to a Transfer. Such fee shall be delivered to Landlord
concurrently with Tenant’s request for consent. Such payment obligations shall apply regardless of
whether Landlord ultimately grants or denies Tenant’s request.
18.4 Assumption; No Release of Tenant. Any permitted assignee shall assume in writing all
obligations of Tenant under this Lease, utilizing a form of assumption agreement provided or
approved by Landlord, and an executed
copy of such assumption agreement shall be delivered to Landlord within fifteen (15) days
after the effective date of the Transfer. The taking of possession of all or any part of the
Premises by any such permitted assignee or subtenant shall constitute an agreement by such person
or entity to assume without limitation or qualification all of the obligations of Tenant under this
Lease, notwithstanding any failure by such person to execute the assumption agreement required in
the immediately preceding sentence. No permitted Transfer shall release or change Tenant’s primary
liability to pay the rent and to perform all other obligations of Tenant under this Lease.
Landlord’s acceptance of rent from any other person is not a waiver of any provision of this
Article nor a consent to any Transfer. Consent to one Transfer shall not constitute a consent to
any subsequent Transfer. If any transferee defaults under this Lease, Landlord may proceed
directly against Tenant without pursuing remedies against the transferee. Landlord may consent to
subsequent Transfers or modifications of this Lease by Tenant’s transferee, without notifying
Tenant or obtaining its consent, and such action shall not relieve Tenant of its liability under
this Lease.
18.5 Permitted Transfers. Notwithstanding anything to the contrary contained in this Lease,
Tenant may assign this Lease or sublet the Premises, or any portion thereof, without Landlord’s
prior consent, to any entity which controls, is controlled by, or is under common control with
Tenant; to any entity which results from a merger of, reorganization of, or consolidation with
Tenant; to any entity engaged in a joint venture with Tenant; or to any entity which acquires
substantially all of the stock or assets of Tenant, as a going concern, with respect to the
business that is being conducted in the Premises (hereinafter each a “Permitted Transfer”), so long
as (A) the overall net worth of the resulting Tenant is not materially less than the overall net
worth of Tenant prior to such Permitted Transfer, (B) the liquid assets forming a portion of such
net worth of the resulting Tenant are not materially less than the liquid assets forming a portion
of the net worth of Tenant prior to such Permitted Transfer, and (C) Landlord receives notice of
such Permitted Transfer, together with satisfactory evidence of the satisfaction of such net worth
tests set forth in the preceding phrases (A) and (B) within five (5) business days of the date of
such Permitted Transfer. In addition, a sale or transfer of the capital stock of Tenant shall be
deemed a Permitted Transfer if (1) such sale or transfer occurs in connection with any bona fide
financing or capitalization for the benefit of Tenant, or (2) Tenant is or becomes a publicly
traded corporation. Landlord shall have no right to terminate the Lease in connection with, and
shall have no right to any sums or other economic consideration resulting from any Permitted
Transfer. Additionally, any rights that are personal to Tenant shall also accrue to any Permitted
Transferee.
18.6 No Merger. No merger shall result from any Transfer pursuant to this Article, any
surrender by Tenant of its interest under this Lease, or any termination hereof in any other
manner. In any such event, Landlord may either terminate any or all subleases or succeed to the
interest of Tenant thereunder.
18.7 Reasonable Restriction. Tenant acknowledges that the restrictions on Transfer contained
herein are reasonable restrictions for purposes of Section 22.2 of this Lease and California Civil
Code Section 1951.4.
19. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE
19.1 Subordination. The lien and terms of this Lease are and shall be unconditionally junior
and subordinate to the lien and terms of all ground leases, mortgages, deeds of trust, and other
security instruments now or hereafter affecting the real property of which the Premises are a part,
and to all advances made on the security thereof, and to all renewals, modifications,
consolidations, replacements and extensions thereof. If any mortgagee, beneficiary under deed of
trust or ground lessor shall elect to have this Lease prior to its mortgage, deed of trust or
ground lease, and gives written notice thereof to Tenant, this Lease shall be deemed prior thereto.
Tenant agrees to execute any documents required to effectuate such subordination or to make this
Lease prior to the lien of any such mortgage, deed of trust or ground lease, as the case may be.
If Tenant fails to deliver such agreement within ten (10) days after written demand, (a) Tenant
does hereby make, constitute and irrevocably appoint Landlord as Tenant’s attorney-in-fact and in
Tenant’s name, place and stead, to do so, and (b) an Event of Default shall be deemed to have
occurred and, in addition to all other liability, Tenant shall be liable for the immediate payment
of all foreseeable and unforeseeable damages, penalties and attorneys’ fees and costs incurred by
Landlord as a result of such failure. Notwithstanding the foregoing, or anything in this Lease to
the contrary, Tenant shall not be required to subordinate its interest under this Lease unless
Landlord first obtains from the holder of the mortgage, deed of trust, or other instrument of
security to which this Lease is to become subordinated a written agreement that provides
substantially that Tenant’s right of possession shall not be disturbed if at the time of
foreclosure no Event of Default has occurred.
19.2 Attornment. If Landlord sells, transfers, or conveys its interest in the Premises or
this Lease, or if the same is foreclosed judicially or nonjudicially, or is otherwise acquired, by
a mortgagee, beneficiary under deed of trust or ground lessor, upon the request and at the sole
election of Landlord’s lawful successor, Tenant shall attorn to said successor, provided said
successor accepts the Premises subject to this Lease. Tenant shall, upon request of Landlord or
any such mortgagee, beneficiary under deed of trust or ground lessor execute an attornment
agreement conforming the same, in form and substance acceptable to Landlord. Such agreement shall
provide among other
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things, that such successor shall not be (a) bound by any prepayment of more
than one (1) month’s rent, (b) liable for the return of any Security Deposit or other sums not
actually received by said successor, (c) bound by any act or omission of Landlord arising prior to
the succession of such successor to the Landlord’s interest in this Lease, or be subject to any
offset, defense or counter-claim that Tenant may have previously accrued against Landlord, or (d)
be bound by any material amendment of this Lease made after the later of the initial effective date
of this Lease, or the date that such successor’s lien or interest first arose, unless said
successor shall have consented to such amendment in writing.
19.3 Estoppel Certificates. Within fifteen (15) days after written request from Landlord,
Tenant at Tenant’s sole cost shall execute, acknowledge and deliver to Landlord a written
certificate in favor of Landlord and any
prospective lender on or purchaser of the Building or any part thereof, (a) that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of such modifications
and certifying that this Lease is in full force and effect as so modified), (b) the amount of any
rent paid in advance, and (c) that there are no uncured defaults on the part of Landlord, or
specifying the nature of such defaults if any are claimed. In addition to the foregoing, such
certificate shall include Tenant’s certification to such other matters of fact, and be on such
form, as Landlord or such prospective lender or purchaser shall reasonably require. If Tenant
fails to deliver such certificate within said 15-day period, an Event of Default shall be deemed to
have occurred and, in addition to all other liability, Tenant shall be liable for the immediate
payment of all foreseeable and unforeseeable damages, penalties and attorneys’ fees and costs
incurred by Landlord as a result of such failure. Tenant’s failure to deliver such certificate
within said 15-day period shall constitute a conclusive acknowledgment by Tenant: (i) that this
Lease is in full force and effect without modification except as may be represented by Landlord,
(ii) that not more than one month’s rent has been paid in advance, and (iii) that there are no
uncured defaults in Landlord’s performance.
20. SURRENDER OF PREMISES
20.1 Condition of Premises. Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Premises to Landlord, broom clean and in the same condition and state of repair
as at the commencement of the Lease Term, except for ordinary wear and tear that Tenant is not
otherwise obligated to remedy under the provisions of this Lease. Tenant shall deliver all keys to
the Premises and the Building to Landlord. Upon expiration of the Lease, Tenant shall remove all
portable furniture, trade fixtures, machinery, equipment, signs and other items of personal
property (unless prohibited from doing the same under Section 20.2), and shall remove any
Alterations (whether or not made with Landlord’s consent) that Landlord may require Tenant to
remove; provided, Tenant shall not be required to remove any Alterations for which Tenant has
previously obtained Landlord’s written agreement that such removal would not be required at the end
of the Lease term. Tenant shall repair all damage to the Premises caused by such removal and shall
restore the Premises to its prior condition, all at Tenant’s expense. Such repairs shall be
performed in a manner satisfactory to Landlord and shall include, but are not limited to, the
following: capping all plumbing, capping all electrical wiring, repairing all holes in walls,
restoring damaged floor and/or ceiling tiles, and thorough cleaning of the Premises. If Tenant
fails to remove any items that Tenant has an obligation to remove under this Section when required
by Landlord or otherwise, such items shall, at Landlord’s option, become the property of Landlord
and Landlord shall have the right to remove and retain or dispose of the same in any manner,
without any obligation to account to Tenant for the proceeds thereof. Tenant waives all claims
against Landlord for any damages to Tenant resulting from Landlord’s retention or disposition of
such Alterations or personal property. Tenant shall be liable to Landlord for Landlord’s costs of
removing, storing and disposing of such items.
20.2 Removal of Certain Alterations, Fixtures and Equipment Prohibited. All Alterations,
fixtures (whether or not trade fixtures), machinery, equipment, signs that Landlord has not required Tenant to remove under Section 20.1 shall become Landlord’s
property and shall be surrendered to Landlord with the Premises, regardless of who paid for the
same. In particular and without limiting the foregoing, Tenant shall not remove any of the
following materials or equipment without Landlord’s prior written consent, regardless of who paid
for the same and regardless of whether the same are permanently attached to the Premises: power
wiring and power panels; piping for industrial gasses or liquids; laboratory benches, sinks,
cabinets and casework; fume hoods or specialized air-handling and evacuation systems; drains or
other equipment for the handling of waste water or hazardous materials; computer, telephone and
telecommunications wiring, panels and equipment; lighting and lighting fixtures; wall coverings;
drapes, blinds and other window coverings; carpets and other floor coverings; heaters, air
conditioners and other heating or air conditioning equipment; fencing; security gates and systems;
and other building operating equipment and decorations; provided,
however, that following modifications and clarifications shall govern this Section 20.2 notwithstanding
anything in this Section 20.2 to the contrary:
(a)
Landlord has no ownership interest in the furniture, fixtures and equipment
listed on the attached Exhibit “E-1” and Tenant may remove
or transfer the same in its discretion;
(b) Tenant shall not be required to remove or restore at the
expiration of the Term or otherwise any Alterations, fixtures
(whether or not trade fixtures), machinery or equipment made to or
installed in the Premises prior to the date of this Lease;
(c) The laboratory
benches, sinks, cabinets, casework, counters, desktops, working
surfaces, file cabinets, fume hoods, cage washers, and other
fixtures and improvements indicated on the drawings attached
hereto as Exhibit “E-2” shall not
be to be removed at the end of the Term,
and Tenant shall have no duty to remove the same at the end of the
Term;
(d) Tenant shall retain
ownership of all of its fixtures, machinery,
equipment, and other items of personal property installed by Tenant
(pursuant to the Avanir Sublease or otherwise) and may remove the
same from the Premises so long as such items do not appear in the
attached Exhibit E-2 and if such removal can be accomplished (and is
accomplished) without material physical damage to the Building or
material impairment of the operation thereof;
(e) In the event of any ambiguity as to whether
a particular item is covered by Exhibit “E-1” or Exhibit
“E-2”, the
parties agree that the provisions of Exhibit “E-1” shall
control.
20.3 Surrender Plan. At least sixty (60) days prior to the expiration of the Term (or such
earlier time that Tenant intends to remove any furnishings, fixtures or equipment from the
Premises), Tenant shall provide to Landlord a detailed list and narrative description of its plan
of surrender (“Surrender Plan”) that implements the terms of Sections 20.1. 20.2, and 20.3
including a detailed listing and description of the items in the Premises that Tenant intends to
remove. Landlord shall have the right to make reasonable objections to or modifications of such
Surrender Plan, and Tenant shall satisfy Landlord’s reasonable objections prior to the expiration
of the Term (or any earlier date that Tenant intends to begin removing items). Tenant’s surrender
of the Premises and removal and repair thereof shall
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follow in all respects the Surrender Plan, as
the same may have been modified to reasonably satisfy Landlord, and on all of the other terms and
conditions of this Lease. Landlord shall have the right to have a representative observe all
aspects of Tenant’s vacation of the Premises to ensure compliance with this Lease and the Surrender
Plan.
20.4 Holding Over. Tenant shall vacate the Premises upon the expiration or earlier
termination of this Lease, and Tenant shall indemnify, protect, hold harmless and defend Landlord
against all liabilities, damages and expenses incurred by Landlord as a result of any delay by
Tenant in vacating the Premises. If Tenant remains in possession of the Premises or any part
thereof after the expiration of the Lease Term with Landlord’s written permission, Tenant’s
occupancy shall be a tenancy from month-to-month only, and not a renewal or extension hereof. All
provisions of this Lease (other than those relating to the term) shall apply to such month-to-month
tenancy, except that the
Minimum Monthly Rent shall be increased to 150% of the Minimum Monthly Rent in effect during
the last month of the Lease Term. No acceptance of rent, negotiation of rent checks or other act
or omission of Landlord or its agents shall extend the Expiration Date of this Lease other than a
writing executed by Landlord giving Tenant permission to remain in occupancy beyond the Expiration
Date under the terms of the immediately preceding sentence.
21. DEFAULT BY TENANT
The occurrence of any of the following shall constitute an “Event of Default” under this Lease
by Tenant:
21.1 Failure to pay when due any Minimum Monthly Rent, Additional Rent or any other monetary
sums required to be paid by Tenant under the terms of this Lease.
21.2 Failure to perform any other agreement or obligation of Tenant hereunder, if such failure
continues for thirty (30) days after written notice by Landlord to Tenant (except as to those
Events of Default that are noncurable, in which case no such grace period shall apply); provided,
however that if any curable failure cannot reasonably be cured within such 30 day period, Tenant
shall have an additional reasonable period of time within which to cure such failure, not to exceed
ninety (90) days form Landlord’s notice, so long as Tenant commences to cure such failure within
said 30 days and thereafter diligently prosecute such cure to completion. Landlord’s notice
described herein is intended to satisfy, and is not in addition to, any and all legal notices
required prior to commencement of an unlawful detainer action, including without limitation the
notice requirements of California Code of Civil Procedure Sections 1161 et seq.
21.3 Abandonment of the Premises by Tenant.
21.4 If any of the following occurs: (i) a petition is filed for an order of relief under the
federal Bankruptcy Code or for an order or decree of insolvency or reorganization or rearrangement
under any state or federal law, and such petition is not dismissed within thirty (30) days after
the filing thereof; (ii) Tenant makes a general assignment for the benefit of creditors; (iii) a
receiver or trustee is appointed to take possession of any substantial part of Tenant’s assets,
unless such appointment is vacated within thirty (30) days after the date thereof; or (iv) Tenant
consents to or suffers an attachment, execution or other judicial seizure of any substantial part
of its assets or its interest under this Lease, unless such process is released or satisfied within
thirty (30) days after the occurrence thereof. If a court of competent jurisdiction determines
that any of the foregoing events is not a default under this Lease, and a trustee is appointed to
take possession (or if Tenant remains a debtor in possession), and such trustee or Tenant transfers
Tenant’s interest hereunder, then Landlord shall receive the difference between the rent (or other
consideration) paid in connection with such transfer and the rent payable by Tenant hereunder. Any
assignee pursuant to the provisions of any bankruptcy law shall be deemed without further act to
have assumed all of the obligations of Tenant hereunder arising on or after the date of such
assignment. Any such assignee shall, upon demand, execute and deliver to Landlord an instrument
confirming such assumption.
22. REMEDIES
Upon the occurrence of any Event of Default by Tenant, Landlord shall have the following
remedies, each of which shall be cumulative and in addition to any other remedies now or hereafter
available at law or in equity:
22.1 Termination of Lease. Landlord can terminate this Lease and Tenant’s right to possession
of the Premises by giving written notice of termination, and then re-enter the Premises and take
possession thereof. No act by Landlord other than giving written notice to Tenant of such
termination shall terminate this Lease. Upon termination, Landlord has the right to recover all
damages incurred by Landlord as a result of Tenant’s default, including:
(a) The worth at the time of award of any unpaid rent that had 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 that would have been
earned after the date of termination until the time of award exceeds the amount of the loss of rent
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 Lease 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 default, including, but not limited to (i) expenses for cleaning, repairing or
restoring the Premises, (ii) expenses for altering, remodeling or otherwise improving the Premises
for the purpose of reletting, (iii) brokers’ fees and commissions, advertising costs and other
expenses of reletting the Premises, (iv) costs of carrying the Premises, such as taxes, insurance
premiums, utilities and security precautions, (v) expenses in retaking possession of the Premises,
(vi) attorneys’ fees and costs, (vii) any unearned brokerage commissions paid in connection with
this Lease, and (viii) reimbursement of any previously waived or abated Minimum Monthly Rent,
Additional Rent or other charges; plus
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(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 under applicable law. As used in paragraphs (a) and (b) above,
the “worth at the time of award” shall be computed by allowing interest at the maximum permissible
legal rate. As used in paragraph (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 one percent (1%).
22.2 Continuation of Lease. Landlord has the remedy described in California Civil Code
Section 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach and abandonment
and recover rent as it becomes due, if Tenant has the right to sublet or assign, subject only to
reasonable limitations), as follows:
(a) Landlord can continue this Lease in full force and effect without terminating Tenant’s
right of possession, and Landlord shall have the right to collect rent and other monetary charges
when due and to enforce all other obligations of Tenant hereunder. Landlord shall have the right
to enter the Premises to do acts of maintenance and preservation of the Premises, to make
alterations and repairs in order to relet the Premises, and/or to undertake other efforts to relet
the Premises. Landlord may also remove personal property from the Premises and store the same in a
public warehouse at Tenant’s expense and risk. No act by Landlord permitted under this paragraph
shall terminate this Lease unless a written notice of termination is given by Landlord to Tenant or
unless the termination is decreed by a court of competent jurisdiction.
(b) In furtherance of the remedy set forth in this Section, Landlord may relet the Premises or
any part thereof for Tenant’s account, for such term (which may extend beyond the Lease Term), at
such rent, and on such other terms and conditions as Landlord may deem advisable in its sole
discretion. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in
reletting the Premises. Any rents received by Landlord from such reletting shall be applied to the
payment of: (i) any indebtedness other than rent due hereunder from Tenant to Landlord, (ii) the
costs of such reletting, including brokerage and attorneys’ fees and costs, and the cost of any
alterations and repairs to the Premises, and (iii) the payment of rent due and unpaid hereunder,
including any previously waived or abated rent. Any remainder shall be held by Landlord and
applied in payment of future amounts as the same become due and payable hereunder. In no event
shall Tenant be entitled to any excess rent received by Landlord after an Event of Default by
Tenant and the exercise of Landlord’s remedies hereunder. If the rent from such reletting during
any month is less than the rent payable hereunder, Tenant shall pay such deficiency to Landlord
upon demand.
(c) Landlord shall not, by any re-entry or other act, be deemed to have accepted any surrender
by Tenant of the Premises or Tenant’s interest therein, or be deemed to have terminated this Lease
or Tenant’s right to possession of the Premises or the liability of Tenant to pay rent accruing
thereafter or Tenant’s liability for damages under any of the provisions hereof, unless Landlord
shall have given Tenant notice in writing that it has so elected to terminate this Lease.
(d) Tenant acknowledges and agrees that the restrictions on the Transfer of this Lease set
forth in Article 18 of this Lease constitute reasonable restrictions on such transfer for purposes
of this Section and California Civil Code Section 1951.4.
22.3 Performance By Landlord. If Tenant fails to pay any sum of money or perform any other
act to be performed by Tenant hereunder, and such failure continues for fifteen (15) days after
notice by Landlord, Landlord shall have the right (but not the obligation) to make such payment or
perform such other act without waiving or releasing Tenant from its obligations. All sums so paid
by Landlord and all necessary incidental costs, together with interest thereon at the rate
specified in Section 22.4, shall be payable to Landlord on demand. Landlord shall have the same
rights and remedies in the event of nonpayment by Tenant as in the case of default by Tenant in the
payment of the rent.
22.4 Late Charge; Interest on Overdue Payments. The parties acknowledge that late payment by
Tenant of Minimum Monthly Rent, Additional Rent or other charges hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult
and impractical to determine, including, but not limited to, processing and accounting charges,
administrative expenses, and additional interest expenses or late charges that Landlord may be
required to pay as a result of late payment on Landlord’s obligations. Therefore, if any
installment of Minimum Monthly Rent, Additional Rent or other charges is not received by Landlord
by the date which is five days following the date due, and without regard to whether Landlord gives
Tenant notice of such failure or exercises any of its remedies upon an Event of Default, Tenant
shall pay a late charge equal to the greater of five percent (5%) of the overdue amount or One
Hundred Dollars ($100). The parties hereby agree that such late charge represents a fair and
reasonable estimate of the damages Landlord will incur by reason of late payment by Tenant. In
addition, any amount due from Tenant that is not paid when due shall bear interest at a rate equal
to two percent (2%) over the then current Bank of America prime or reference rate or ten percent
(10%) per annum, whichever is greater, but not in excess of the maximum permissible legal rate,
from the date such payment is due until the date paid by Tenant. Landlord’s acceptance of any
interest or late charge shall not constitute a waiver of Tenant’s default or prevent Landlord from
exercising any other rights or remedies available to Landlord.
22.5 Landlord’s Right to Require Advance Payment of Rent; Cashier’s Checks. If Tenant is late
in paying any component of rent more than two (2) times in any consecutive 24 month period,
Landlord shall have the right, upon notice to Tenant, to require that all rent be paid three (3)
months in advance. Additionally, if any of Tenant’s checks are returned for nonsufficient funds,
Landlord may, at its option, require that all future rent (including any sums demanded in any
subsequent three (3) day notice) be paid exclusively by money order or cashier’s check.
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23. DEFAULT BY LANDLORD
23.1 Notice to Landlord. Landlord shall not be in default under this Lease unless Landlord
fails to perform an obligation required of Landlord within a reasonable time, but in no event later
than thirty (30) days after written notice by Tenant to Landlord and to each Mortgagee as provided
in Section 23.2, specifying the nature of the alleged default; provided, however, that if the
nature of the obligation is such that more than thirty (30) days are required for performance, then
Landlord shall not be in default if Landlord commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
23.2 Notice to Mortgagees. Tenant agrees to give each mortgagee or trust deed holder on the
Premises or the Building (“Mortgagee”), by certified mail, a copy of any notice of default served
upon Landlord, provided that Tenant has been previously notified in writing of the address of such
Mortgagee. Tenant further agrees that if Landlord fails to
cure such default within the time provided for in this Lease, then the Mortgagees shall have
an additional thirty (30) days after Tenant’s notice within which to cure such default, or if such
default cannot reasonably be cured within that time, then such additional time as may be necessary
if, within said 30-day period, any Mortgagee has commenced and is diligently pursuing the remedies
necessary to cure the default (including but not limited to commencement of foreclosure proceedings
if necessary to affect such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
23.3 Limitations on Remedies Against Landlord. In the event Tenant has any claim or cause of
action against Landlord: (a) Tenant’s sole and exclusive remedy shall be against Landlord’s
interest in the Building, and neither Landlord nor any of Landlord’s officers, directors,
shareholders, partners, members, principals, employees, agents, representatives, or other related
entities or individuals, or their respective successors and assigns (collectively, “Landlord’s
Related Entities”), nor any other property of Landlord or Landlord’s Related Entities shall be
liable for any deficiency, (b) none of Landlord’s Related Entities shall be sued or named as a
party in any suit or action (except as may be necessary to secure jurisdiction over Landlord), (c)
no service of process shall be made against any of Landlord’s Related Entities (except as may be
necessary to secure jurisdiction), and none of Landlord’s Related Entities shall be required to
answer or otherwise plead to any service of process, (d) no judgment shall be taken against any of
Landlord’s Related Entities and any judgment taken against any of Landlord’s Related Entities may
be vacated and set aside at any time, and (e) no writ of execution will ever be levied against the
assets of any of Landlord’s Related Entities. The covenants and agreements set forth in this
Section shall be enforceable by Landlord and/or by any of Landlord’s Related Entities. If Landlord
fails to give any consent that a court later holds Landlord was required to give under the terms of
this Lease, Tenant shall be entitled solely to specific performance and such other remedies as may
be specifically reserved to Tenant under this Lease, but in no event shall Landlord be responsible
for monetary damages (including incidental and consequential damages) for such failure to give
consent.
24. GENERAL PROVISIONS
24.1 Action or Defense by Tenant. Any claim, demand or right of defense of any kind by Tenant
that is based upon or arises in any connection with this Lease or negotiations prior to its
execution shall be barred unless Tenant commences an action thereon or initiates a legal proceeding
or defense by reason thereof within six (6) months after the date of the occurrence of the event,
act or omission to which the claim, demand or right of defense relates. Tenant acknowledges and
understands that, after having had an opportunity to consult with legal counsel, the purpose of
this paragraph is to shorten the time period within which Tenant would otherwise have to raise such
claims, demands or rights of defense.
24.2 Arbitration and Mediation; Waiver of Jury Trial. Except as provided in this Section, if
any dispute ensues between Landlord and Tenant arising out of or concerning this Lease, and if said
dispute cannot be settled through direct discussions between the parties, the parties shall first
to attempt to settle the dispute through mediation before a mutually acceptable mediator. The cost
of mediation shall be divided equally between the parties. Thereafter, any remaining, unresolved
disputes or claims shall be resolved by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered by the arbitrator may be
entered in any court of competent jurisdiction. The prevailing party in any such arbitration shall
be entitled to recover reasonable costs and attorneys’ fees and costs as determined by the
arbitrator; provided, however, that the foregoing provisions regarding mediation and arbitration
shall not apply to (a) any issue or claim that might properly be adjudicated in an unlawful
detainer proceeding, or (b) to any issue or claim that Landlord elects not to have resolved through
arbitration and with respect to which Landlord commences an action in law or equity to determine
the same. Without limiting the foregoing, Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim (including any claim of injury or damage and any emergency and
other statutory remedy in respect thereof) brought by either against the other on any matter
arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, or
Tenant’s use or occupancy of the Premises.
24.3 Attorneys’ Fees. If Landlord brings any legal action or proceeding, declaratory or
otherwise, arising out of this Lease, including any suit by Landlord to recover rent or possession
of the Premises or otherwise to enforce this Lease, Tenant shall pay Landlord’s costs and
attorneys’ fees and costs incurred in such proceeding. As used herein, “attorneys’ fees and costs”
include without limitation attorneys’ fees and costs, printing, photocopying, duplicating and other
expenses, air freight charges, fees billed for law clerks, paralegals and other persons not
admitted to the bar but performing services under the supervision of an attorney, experts’ fees,
appraisers’ fees, accountants’ fees, court costs, the fees of other professionals, costs incurred
in connection with any and all arbitrations, mediations, post-judgment motions, contempt
proceedings, garnishments, levies, debtor and third party
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examination, discovery and bankruptcy
litigation. If Landlord issues notice(s) to pay rent, notice(s) to perform covenant, notice(s) of
abandonment or similar documents as a result of Tenant’s default under this Lease, and if Tenant
cures such default, Tenant shall pay to Landlord within fifteen (15) days of demand, the reasonable
costs incurred by Landlord in preparing and delivering the same, including Landlord’s attorneys’
fees and costs.
24.4 Authority of Tenant. Tenant represents and warrants that it has full power and authority
to execute and fully perform its obligations under this Lease pursuant to its governing
instruments, without the need for any further action, and that the person(s) executing this
Agreement on behalf of Tenant are the duly designated agents of Tenant and are authorized to do so.
Prior to execution of this Lease, Tenant shall supply Landlord with such evidence as Landlord may
request regarding the authority of Tenant to enter into this Lease. Any actual or constructive
taking of possession of the Premises by Tenant shall constitute a ratification of this Lease by
Tenant.
24.5 Binding Effect; Parties Benefited. Subject to the provisions of Article 18 restricting
transfers by Tenant and subject to Section 24.26 regarding transfer of Landlord’s interest, all of
the provisions of this Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns. Except for Landlord’s employees
and agents (including without limitation any property manager or property management firm engaged
by Landlord with respect to the Premises), each of whom shall be entitled to the benefits of and
shall be third party beneficiaries of the provisions of Articles 12 and 13, no third person shall
be entitled to enforce or be entitled to any rights hereunder or be a third party beneficiary of
any term or provision this Lease.
24.6 Brokers. Tenant warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiation of this transaction except only the broker(s) set forth in
Section 1.11 of the Basic Lease Provisions, and it knows of no other real estate broker or agent
who is entitled to a commission in connection with this transaction. Tenant agrees to indemnify,
protect, hold harmless and defend Landlord from and against any obligation or liability to pay any
commission or compensation to any other party arising from the act or agreement of Tenant.
24.7 Construction. The headings and captions used in this Lease are for convenience only and
are not a part of the terms and provisions of this Lease. In any provision relating to the
conduct, acts or omissions of Tenant, the term “Tenant” shall include Tenant, its subtenants and
assigns and their respective agents, employees, contractors, and invitees, and any others using the
Premises with Tenant’s express or implied permission.
24.8 Counterparts. This Lease may be executed in multiple copies, each of which shall be
deemed an original, but all of which shall constitute one Lease binding on all parties after all
parties have signed such a counterpart.
24.9 Covenants and Conditions. Each provision to be performed by Tenant shall be deemed to be
both a covenant and a condition.
24.10 Entire Agreement. This Lease, together with any and all exhibits, schedules, riders and
addenda attached or referred to herein, constitutes the entire agreement between the parties with
respect to the subject matter hereof. There are no oral or written agreements or representations
between the parties hereto affecting this Lease, and this Lease supersedes, cancels and merges any
and all previous verbal or written negotiations, arrangements, representations, brochures,
displays, models, photographs, renderings, floor plans, elevations, projections, estimates,
agreements and understandings if any, made by or between Landlord and Tenant and their agents, with
respect to the subject matter, and none thereof shall be used to interpret, construe, supplement or
contradict this Lease. This Lease and all amendments thereto is and shall be considered to be the
only agreement between the parties hereto and their representatives and agents. There are no other
representations or warranties between the parties, and all reliance with respect to representations
is solely based upon the representations and agreements contained in this Lease.
24.11 Exhibits. Any and all exhibits, schedules, riders and addenda attached or referred to
herein are hereby incorporated herein by reference.
24.12 Financial Statements. Within ten (10) days after written request from Landlord, Tenant
shall deliver to Landlord its then current financial statements, or if applicable the financial
statements of any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall deliver
to any proposed or actual lender or purchaser of the Premises designated by Landlord any such
financial statements as required by such party to facilitate the sale, financing or refinancing of
the Premises, including the past three (3) years’ financial statements. Tenant represents and
warrants to Landlord that each such financial statement is a true and accurate statement as of the
date of such statement. All such financial statements shall be received in confidence and shall be
used only for the purposes set forth herein. Tenant hereby irrevocably authorizes Landlord to
conduct credit checks and other investigations into Tenant’s financial affairs.
24.13 Force Majeure. If Landlord is delayed in or prevented from the performance of any act
required under this Lease by reason of strikes, lock-outs, labor troubles, inability to procure
standard materials, failure of power, restrictive governmental laws, regulations or orders,
governmental action or inaction (including failure, refusal or delay in issuing permits, approvals
and/or authorizations), riots, civil unrest or insurrection, war, terrorism, bioterrorism, fire,
earthquake, flood or other natural disaster, unusual and unforeseeable delay that results from an
interruption of any public utilities, or other unusual and unforeseeable delay not within the
reasonable control of Landlord, then performance of such act will be excused for the period of the
delay and the period for the performance of any such act will be extended for a period equivalent
to the period of such delay.
24.14 Governing Law. This Lease shall be governed, construed and enforced in accordance with
the laws of the State of California.
24.15 Joint and Several Liability. If more than one person or entity executes this Lease as
Tenant, each of them is jointly and severally liable for all of the obligations of Tenant
hereunder.
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24.16 Modification. The provisions of this Lease may not be modified or amended, except by a
written instrument signed by all parties.
24.17 Modification for Lender. If, in connection with obtaining financing or refinancing for
the Premises or the Building, Landlord’s lender requests reasonable modifications to this Lease,
Tenant will not unreasonably withhold or delay its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or adversely affect Tenant’s
rights hereunder.
24.18 Intentionally Omitted.
24.19 Notice. Any and all notices to either party shall be personally delivered, sent by
recognized courier service (such as Federal Express or United Parcel Service), or sent by certified
mail, return receipt requested, postage prepaid, addressed to the party to be notified at the
address specified in Section 1.1, or at such other address as such party may from time to time
designate in writing. Notice shall be deemed delivered on the date of personal delivery, on
the date scheduled for delivery by such courier service, or three (3) business days after
deposit in the U.S. Mail, certified, return receipt requested. Provided, however, that any notice
required pursuant to California Code of Civil Procedure Sections 1161 et seq. may be given as
provided in such sections. Any and all notices provided herein that Landlord may give setting
forth or alleging any default or breach of this Lease, or of any failure of Tenant to perform its
obligations hereunder shall be deemed to satisfy, and shall not be in addition to, any and all
legal notices required prior to the commencement of an unlawful detainer action, including without
limitation the notices required pursuant to California Code of Civil Procedure Sections 1161 et
seq.
24.20 Partial Invalidity. If any provision of this Lease is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by
law.
24.21 Quiet Enjoyment. Landlord agrees that Tenant, upon paying the rent and performing the
terms, covenants and conditions of this Lease, may quietly have the right to use and occupy the
Premises as against Landlord during the Lease Term, subject, however, to the lien and provisions of
any mortgage or deed of trust to which this Lease is or becomes subordinate.
24.22 Recording; Non-Disclosure. Tenant shall not record this Lease or any memorandum hereof
without Landlord’s prior written consent. Tenant shall not, without the express written consent of
Landlord, disclose the terms or provisions of this Lease to any person, except for Tenant’s
employees, agents, attorneys, officers and directors whose duties require such persons to be
informed of such matters, or except as required by law.
24.23 Relationship of the Parties. Nothing contained in this Lease shall be deemed or
construed as creating a partnership, joint venture, principal-agent, or employer-employee
relationship between Landlord and any other person or entity (including, without limitation,
Tenant) or as causing Landlord to be responsible in any way for the debts or obligations of such
other person or entity.
24.24 Intentionally Omitted.
24.25 Time of the Essence. Time is of the essence of each and every provision of this Lease.
24.26 Transfer of Landlord’s Interest. In the event of a sale, assignment, exchange or other
disposition of Landlord’s interest in the Premises, other than a transfer for security purposes
only, Landlord shall be relieved of all obligations and liabilities accruing hereunder after the
effective date of said sale, assignment, exchange or other disposition, provided that any Security
Deposit or other funds then held by Landlord in which Tenant has an interest are delivered to
Landlord’s successor. The obligations to be performed by Landlord hereunder shall be binding on
Landlord’s successors and assigns only during their respective periods of ownership.
24.27 Waiver. No provision of this Lease or the breach thereof shall be deemed waived, except
by written consent of Landlord. A waiver of any such breach shall not be deemed a waiver of any
preceding or succeeding breach of the same or any other provision. No delay or omission by
Landlord in exercising any of its remedies shall impair or be construed as a waiver thereof, unless
such waiver is expressly set forth in a writing signed by Landlord. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any previous breach by Tenant,
other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord’s
knowledge of such previous breach at the time of acceptance of such rent.
24.28 OFAC Certification. Tenant and each Guarantor hereby jointly and severally certify,
warrant, represent and covenant to and for the benefit of Landlord as follows: (a) Tenant and each
of its subsidiaries, predecessors, agents, direct and indirect owners and their respective
affiliates has at all applicable times been, is now and will in the future be, in compliance with
U.S. Executive Order 13224 and no action, proceeding, investigation, charge, claim, report or
notice has been filed, commenced or threatened against any of them alleging any failure to so
comply; (b) neither Tenant nor any Guarantor or any of their respective agents, subsidiaries or
other affiliates has, after due investigation and inquiry, knowledge or notice of any fact, event,
circumstance, situation or condition which could reasonably be expected to result in any action,
proceeding, investigation, charge, claim, report or notice being filed, commenced or threatened
against any of them alleging any failure to comply with the Order, or the imposition of any civil
or criminal penalty against any of them for any failure to so comply; (c) prior to any changes in
direct or indirect ownership of Tenant or any Guarantor, Tenant shall give a written notice to
Landlord signed by Tenant and each Guarantor advising Landlord in reasonable detail as to the
proposed ownership change, and reaffirming that the representations and warranties herein contained
will remain true and correct; and (d) Tenant hereby agrees to defend, indemnify, and hold harmless
Landlord from and against any and all claims, damages, losses, risks, liabilities, and expenses
(including attorney’s fees and costs) arising from or related to any breach of the foregoing
certification.
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THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND/OR SIGNATURE BY
TENANT IS NOT A COMMITMENT BY LANDLORD OR ITS AGENTS TO RESERVE THE
PREMISES OR TO LEASE THE PREMISES TO TENANT. THIS LEASE SHALL BECOME
EFFECTIVE AND LEGALLY BINDING ONLY UPON FULL EXECUTION AND DELIVERY BY
BOTH LANDLORD AND TENANT. UNTIL LANDLORD DELIVERS A FULLY EXECUTED
COUNTERPART HEREOF TO TENANT, LANDLORD HAS THE RIGHT TO OFFER AND TO
LEASE THE PREMISES TO ANY OTHER PERSON TO THE EXCLUSION OF TENANT.
EXECUTED, by Landlord and Tenant as of the date first written above.
| TENANT: | LANDLORD: | |||||||
| HALOZYME, INC., a California corporation |
BC SORRENTO, LLC, a California limited liability company |
|||||||
By:
|
/s/ Xxxxxxxx Xxx | By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Title: President and Chief Executive Officer | Title: | Managing Member | ||||||
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