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EXHIBIT 10.13
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 21st day of June, 1999, between
ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation ("LANDLORD"), and
XCYTE THERAPIES, INC., a Delaware corporation ("TENANT").
ADDRESS: 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
PREMISES: That portion of the Project, containing approximately 20,659
rentable square feet, as determined by Landlord, as shown on
Exhibit A.
PROJECT: The real property on which the building in which the Premises
are located (the "BUILDING"), together with all improvements
thereon and appurtenances thereto as described on EXHIBIT B.
BASE RENT: $39,840.79 per month RENTABLE AREA OF PREMISES: 20,659 sq. ft.
SECURITY DEPOSIT: $119,522.38 TARGET COMMENCEMENT DATE: September 1, 1999
RENT ADJUSTMENT PERCENTAGE: 3.0% TENANT'S SHARE OF
NET OPERATING EXPENSES: 8.61%
TERM: 84 months from the first day of the month following the month in
which the Commencement Date occurs
PERMITTED USE: Research and development laboratory, general office and other
related uses
ADDRESS FOR RENT PAYMENT: LANDLORD'S NOTICE ADDRESS:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Accounts Receivable Attention: General Counsel
TENANT'S NOTICE ADDRESS:
0000 Xxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
The following Exhibits and Addenda are attached hereto and incorporated herein
by this reference:
[ ] EXHIBIT A - DESCRIPTION OF PREMISES [ ]EXHIBIT B - DESCRIPTION OF PROJECT
[ ] EXHIBIT C - WORK XXXXX [ ]EXHIBIT D - COMMENCEMENT DATE
[ ] EXHIBIT E - RULES AND REGULATIONS [ ]EXHIBIT F - TENANTS PERSONAL PROPERTY
[ ] EXHIBIT G - ESTOPPEL CERTIFICATE [ ]EXHIBIT H - NONDISTURBANCE AGREEMENT
[ ] EXHIBIT I - PARKING LOCATION
1. LEASE OF PREMISES. Upon and subject to all of the terms and
conditions hereof, Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord. The portions of the Project which are
for the non-exclusive use of tenants of the Project are collectively referred to
herein as the "COMMON AREAS." Landlord reserves the right to modify Common
Areas, provided that such modifications do not materially adversely affect
Tenant's use of the Premises for the Permitted Use. Tenant shall have the right
to use the loading area in the annex level of the Project leased by Corixa
Corporation, a Delaware corporation ("Corixa") under that certain Columbia
Building Lease dated October 28, 1994, and as amended (the "Corixa Lease") and
the portion of the bio-hazards waste cage facility assigned to Tenant and
located on the basement level of the Building.
2. DELIVERY; ACCEPTANCE OF PREMISES; COMMENCEMENT DATE. Landlord shall
deliver the Premises to Tenant for Tenant's Work under the Work Letter within 5
days of full execution of this Lease
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and Tenant's delivery of evidence of the insurance required hereby and by the
Work Letter ("DELIVERY" or "DELIVER"). If Landlord fails to timely Deliver the
Premises, Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom, and this Lease shall not be void or voidable except as
provided herein. If Landlord does not Deliver the Premises within 15 days after
full execution of this Lease and the delivery of Tenant's insurance certificates
to Landlord for any reason, this Lease shall be voidable by Tenant by written
notice to Landlord. If Landlord is unable despite the exercise of reasonable
efforts to Deliver the Premises within 60 days after full execution of this
Lease and the delivery of Tenant's insurance certificates to Landlord, this
Lease shall be voidable by Landlord by written notice to Tenant. If this Lease
is so voided by either: (a) so long as Tenant is not in default hereunder, the
Security Deposit shall be returned to Tenant, and (b) neither Landlord nor
Tenant shall have any further rights, duties or obligations under this Lease,
except with respect to provisions which expressly survive termination of this
Lease. If neither Landlord nor Tenant voids this Lease as described above, this
Lease shall remain in full force and effect. If neither party elects to void
this Lease within 5 business days of the lapse of the applicable time period,
such right to void this Lease shall be waived.
The "COMMENCEMENT DATE" shall be earlier of: (i) September 1, 1999; and
(ii) the date Tenant conducts any business in the Premises or any part thereof.
Upon request of Landlord, Tenant shall execute and deliver a written
acknowledgment of the Term Commencement Date and the expiration date of the Term
when such are established and shall attach the acknowledgment to this Lease as
part of EXHIBIT D; provided, however, Tenant's failure to execute and deliver
such acknowledgment shall not affect Landlord's rights hereunder.
Except as set forth in the Work Letter, if applicable: (i) Tenant shall
accept the Premises in their condition as of the Commencement Date, subject to
all applicable laws, ordinances, regulations, covenants and restrictions; (ii)
Landlord shall have no obligation for any defects in the Premises; and (ii)
Tenant's taking possession of the Premises shall be conclusive evidence that
Tenant accepts the Premises and that the Premises were in good condition at the
time possession was taken. Any occupancy of the Premises by Tenant before the
Commencement Date other than for the construction of Tenant's Work pursuant to
the Work Letter shall be subject to all of the terms and conditions of this
Lease, including the obligation to pay Rent.
Tenant agrees and acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the condition
of any or all of the Premises (other than Landlord's Work, if any) or the
Project, and/or the suitability of the Premises or the Project for the conduct
of Tenant's business, and Tenant waives any implied warranty that the Premises
or the Project are suitable for Tenant's intended purposes. This Lease
constitutes the complete agreement of Landlord and Tenant with respect to the
subject matter hereof and supersedes any and all prior representations,
inducements, promises, agreements, understandings and negotiations which are not
contained herein. Landlord in executing this Lease does so in reliance upon
Tenant's representations, warranties, acknowledgments and agreements contained
herein.
3. RENT.
(a) BASE RENT. The initial Base Rent for the first floor Premises
(comprising 8,029 rentable square feet of the Premises) shall be $15.50 per
rentable square foot and the initial Base Rent for the seventh floor Premises
(the balance of the Premises) shall be $28.00 per rentable square foot. The
first month's Base Rent and the Security Deposit shall be due and payable on
delivery of an executed copy of this Lease to Landlord. Tenant shall pay to
Landlord in advance, without demand, abatement, deduction or set-off, monthly
installments of Base Rent on or before the first day of each calendar month
during the Term hereof, in lawful money of the United States of America, at the
office of Landlord for payment of Rent set forth above, or to such other person
or at such other place as Landlord may from time designate in writing. Payments
of Base Rent for any fractional calendar month shall be prorated and paid on the
basis of a thirty (30) day month. The obligation of Tenant to pay Base Rent and
other sums to Landlord and the obligations of Landlord under this Lease are
independent obligations. Tenant shall have no right
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at any time to xxxxx, reduce, or set-off any Rent due hereunder except for any
abatement as may be expressly provided in this Lease.
(b) ADDITIONAL RENT. In addition to Base Rent, Tenant agrees to pay to
Landlord as additional rent ("ADDITIONAL RENT"): (i) Tenant's Share of Net
Building Expenses, as defined below, (ii) Tenant's First Floor Operating
Expenses, as defined below, (iii) the rent and expenses for the parking
described in Section 10 hereof, and (iv) any and all other amounts Tenant
assumes or agrees to pay under the provisions of this Lease, including, without
limitation, any and all other sums that may become due by reason of any default
of Tenant or failure to comply with the agreements, terms, covenants and
conditions of this Lease to be performed by Tenant, after any applicable notice
and cure period.
4. BASE RENT ADJUSTMENTS. Base Rent shall be increased on each annual
anniversary of the first day of the first full month during the Term of this
Lease by multiplying the Base Rent payable immediately before such adjustment by
the Rent Adjustment Percentage and adding the resulting amount to the Base Rent
payable immediately before such adjustment. Base Rent, as so adjusted, shall
thereafter be due as provided herein. Base Rent adjustments for any fractional
calendar month shall be prorated.
5. OPERATING EXPENSE PAYMENTS. Landlord shall deliver to Tenant a
written estimate of Net Building Expenses for each calendar year during the Term
(the "ANNUAL ESTIMATE"), which may be revised by Landlord from time to time
during such calendar year. During each month of the Term, on the same date that
Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12 of the
annual cost, as reasonably estimated by Landlord from time to time, of Tenant's
Share of Net Building Expenses together with 1/12 of Tenant's First Floor
Operating Expenses, as defined below. Payments for any fractional calendar month
shall be prorated.
"NET BUILDING EXPENSES" for any period shall mean the Operating Expenses
for the Project for such period less the First Floor Operating Expenses for such
period. "FIRST FLOOR OPERATING EXPENSES" means an amount equal to the First
Floor Operating Expense Rate, as defined below, multiplied by 16,894, the total
rentable square feet on the first floor of the Project. "FIRST FLOOR OPERATING
EXPENSE RATE" shall mean an initial rate of $8.00 per rentable square foot per
year, which shall be increased by 3% each calendar year commencing on January 1,
2000, including, without limitation, throughout the Extension Term(s). "TENANT'S
FIRST FLOOR OPERATING EXPENSES" shall equal 8,029 rentable square feet
multiplied by the First Floor Operating Expense Rate.
The term "OPERATING EXPENSES" means all costs and expenses of any kind
or description whatsoever incurred or accrued by Landlord with respect to the
Project (including the cost of capital repairs and improvements, amortized over
the lesser of 7 years or the useful life of such capital item, the costs of
Landlord's or a third party's management services not to exceed 5.0% of Base
Rent), excluding only:
(a) the original construction costs of the Project and renovation
prior to the date of the Lease, the costs of correcting defects
in such original construction or renovation, costs of any
structural repairs to the Building and costs of correcting any
releases of Hazardous Materials in the Building or migrating to
the Project from adjoining property;
(b) completing, fixturing, improving, renovating, painting,
redecorating or other work, which Landlord pays for or performs
for specific tenants within their premises and costs of
correcting defects in such work;
(c) capital expenditures for expansion of the Project;
(d) interest, financing costs and amortization of funds borrowed by
Landlord, whether secured or unsecured;
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(e) depreciation of the Project (except for the amortization of
capital improvements which are includable in Operating
Expenses);
(f) advertising, legal and space planning expenses, leasing
commissions and other costs and expenses incurred in procuring
tenants for the Project, including any leasing office maintained
in the Project;
(g) salaries, wages, benefits and other compensation paid to
officers and employees of Landlord who are not assigned in whole
or in part to the operation, management, maintenance or repair
of the Project;
(h) costs of utilities outside normal business hours sold to tenants
of the Project;
(i) any expenses otherwise includable within Operating Expenses to
the extent actually reimbursed by persons other than tenants of
the Project under leases for space in the Project;
(j) legal and other expenses incurred in the negotiation or
enforcement of leases;
(k) costs relating to maintaining Landlord's existence, either as a
corporation, partnership, or other entity;
(l) costs (including attorneys' fees and costs of settlement,
judgments and payments in lieu thereof) arising from claims,
disputes or potential disputes pertaining to Landlord and/or the
Project or from Landlord's failure to make any payment required
to be made by Landlord hereunder before delinquency;
(m) costs incurred by Landlord due to the violation by Landlord, its
employees, agent or contractors or any tenant of the terms and
conditions of any lease of space in the Project or any Legal
Requirement;
(n) tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payment and/or to file any
tax or informational returns when due;
(o) overhead and profit increment paid to the Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services
in or to the Project to the extent the same exceeds the costs of
such goods and/or services rendered by unaffiliated third
parties on a competitive basis;
(p) costs arising from Landlord's charitable or political
contributions or fine art maintained at the Project;
(q) costs to be reimbursed by Other tenants of the Project, whether
or not actually paid;
(r) costs in connection with services (including electricity), items
or other benefits of a type which are not standard for the
Project and which are not available to Tenant without specific
charges therefor, but which are provided to another tenant or
occupant of the Project, whether or not such other tenant or
occupant is specifically charged therefor by Landlord;
(s) costs to maintain the parking lots, which shall be allocated to
tenants who park in such lots based on the number of cars such
tenant may park in such lot over the total number of parking
stalls located in said lot ("Allocated Parking Expenses");
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(t) costs incurred in the sale or refinancing of the Project;
(u) net income, franchise, capital stock, estate or inheritance
taxes; and
(v) insurance deductibles and other costs of casualty to the extent
Tenant's Share thereof exceeds (I) with respect to earthquake
insurance, $30,000, and (II) with respect to all other
insurance, $15,000.
Within 90 days after the end of each calendar year (or such longer
period as may be reasonably required), Landlord shall furnish to Tenant a
statement (an "ANNUAL STATEMENT") showing in reasonable detail: (a) the total
and Tenant's Share of actual Operating Expenses for the previous calendar year,
and (b) the total of Tenant's payments in respect of Operating Expenses for such
year. If Tenant's Share of actual Operating Expenses for such year exceeds
Tenant's payments of Operating Expenses for such year, the excess shall be due
and payable by Tenant as Rent within 30 days after demand therefor. If Tenant's
payments of Operating Expenses for such year exceed Tenant's Share of actual
Operating Expenses for such year Landlord shall pay the excess to Tenant within
30 days after delivery of such Annual Statement, except that after expiration
of, or termination of the Term, Landlord shall pay the excess to Tenant after
deducting all other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless
Tenant, within 30 days after Tenant's receipt thereof, shall contest any item
therein by giving written notice to Landlord, specifying each item contested and
the reason therefor. If, during such 60 day period, Tenant reasonably and in
good faith questions or contests the correctness of Landlord's statement of
Tenant's Share of Operating Expenses, Landlord will provide Tenant with access
to Landlord's books and records and such information as Landlord reasonably
determines to be responsive to Tenant's questions. If after Tenant's review of
such information, Landlord and Tenant cannot agree upon the amount of Tenant's
Share of Operating Expenses, then Tenant shall have the right to have an
independent public accounting firm selected from among the 6 largest in the
United States, hired by Tenant (at Tenant's sole cost and expense) and approved
by Landlord (which approval shall not be unreasonably withheld or delayed),
audit and/or review such Landlord's books and records for the year in question
(the "INDEPENDENT REVIEW"). The results of any such Independent Review shall be
binding on Landlord and Tenant. If the Independent Review shows that Tenant's
pro rata share of the Operating Expenses actually paid by Tenant for the
calendar year in question exceeded Tenant's obligations for such calendar year,
Landlord shall at Landlord's option either (i) credit the excess amount to the
next succeeding installments of estimated Operating Expenses or (ii) pay the
excess to Tenant within 30 days after delivery of such statement, except that
after expiration of, or termination of the Term, Landlord shall pay the excess
to Tenant after deducting all other amounts due Landlord. If the Independent
Review shows that Tenant's payments of Tenant's Share of Operating Expenses for
such calendar year were less than Tenant's obligation for the calendar year,
Tenant shall pay the deficiency to the Landlord within 30 days after delivery of
such statement. If the Independent Review shows that Tenant has overpaid
Tenant's pro rata share of Operating Expenses by more than 5% then Landlord
shall reimburse Tenant for all costs incurred by Tenant for the Independent
Review. Operating Expenses for the calendar years in which Tenant's obligation
to share therein begins and ends shall be prorated. Notwithstanding anything set
forth herein to the contrary, if the Project is not at least 95% occupied on
average during any year of the Term, Tenant's Share of Operating Expenses for
such year shall be computed as though the Project had been 95% occupied on
average during such year.
"TENANT'S SHARE" shall be the percentage set forth on the first page of
this Lease as Tenant's Share as reasonably adjusted by Landlord for changes in
the physical size of the Premises or the Project occurring thereafter. Landlord
may equitably increase Tenant's Share for any item of expense or cost
reimbursable by Tenant that relates to a repair, replacement, or service that
benefits only the Premises or only a portion of the Project that includes the
Premises or that varies with occupancy or use. Base Rent, Tenant's Share of
Operating Expenses and all other amounts payable by Tenant to Landlord hereunder
are collectively referred to herein as "RENT."
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6. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord as
security for the performance of Tenant's obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's Default. Upon each occurrence of a Default, Landlord
may use all or part of the Security Deposit to pay delinquent payments due under
this Lease, and the cost of any damage, injury, expense or liability caused by
such Default, without prejudice to any other remedy provided herein or provided
by law. Upon any. such use of all or any portion of the Security Deposit, Tenant
shall pay Landlord on demand the amount that will restore the Security Deposit
to its original amount. Upon bankruptcy or other debtor-creditor proceedings
against Tenant, the Security Deposit shall be deemed to be applied first to the
payment of Rent and other charges due Landlord for periods prior to the filing
of such proceedings. Landlord's obligation respecting the Security Deposit is
that of a debtor, not a trustee; no interest shall accrue thereon. The Security
Deposit shall be the property of Landlord, but shall be paid to Tenant when
Tenant's obligations under this Lease have been completely fulfilled. Landlord
shall be released from any obligation with respect to the Security Deposit upon
transfer of this Lease and the Premises to a person or entity assuming
Landlord's obligations under this Section 6. Tenant hereby waives the provisions
of any law, now or hereafter in force, which provide that Landlord may claim
from a security deposit only those sums reasonably necessary to remedy defaults
in the payment of Rent, to repair damage caused by Tenant or to clean the
Premises, it being agreed that Landlord may, in addition, claim those sums
reasonably necessary to compensate Landlord for any other loss or damage,
foreseeable or unforeseeable, caused by the act or omission of Tenant or any
officer, employee, agent or invitee of Tenant. If Tenant shall fully perform
every provision of this Lease to be performed by Tenant, the Security Deposit,
or any balance thereof, shall be returned to Tenant (or, at Landlord's option,
to the last assignee of Tenant's interest hereunder) within 90 days after the
expiration or earlier termination of this Lease.
7. USE. The Premises shall be used solely for the Permitted Use set
forth in the Basic Lease Provisions and for lawful purposes incidental thereto,
all in compliance with all laws, orders, judgments, ordinances, regulations,
codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises, and the use and occupancy thereof
(collectively, "LEGAL REQUIREMENTS"). Tenant shall, upon 5 days' written notice
from Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation of any Legal
Requirement. Tenant will not use or permit the Premises to be used for any
purpose or in any manner that would void Tenant's or Landlord's insurance,
increase the insurance risk, or cause the disallowance of any sprinkler or other
credits. Tenant shall reimburse Landlord promptly upon demand for any additional
premium charged for any such insurance policy by reason of Tenant's failure to
comply with the provisions of this Section or otherwise caused by Tenant's use
and/or occupancy of the Premises. Tenant will use the Premises in a careful,
safe and proper manner and will not commit waste, overload the floor or
structure of the Premises, subject the Premises to use that would damage the
Premises or obstruct or interfere with the rights of Landlord or other tenants
or occupants of the Project, including conducting or giving notice of any
auction, liquidation, or going out of business sale on the Premises, or using or
allowing the Premises to be used for any unlawful purpose. Tenant shall cause
any equipment or machinery to be installed in the Premises so as to reasonably
prevent sounds or vibrations therefrom from extending into Common Areas, or
other space in the Project. Tenant shall not place any machinery or equipment
weighing 500 pounds or more in or upon the Premises or transport or move such
items through the Common Areas of the Project or in the Project elevators
without the prior written consent of Landlord. Except as may be provided under
the Work Letter, Tenant shall not, without the prior written consent of
Landlord, use the Premises in any manner which will require ventilation, air
exchange, heating, gas, steam, electricity or water beyond the existing capacity
of the Project as proportionately allocated to the Premises based upon Tenant's
Share as usually furnished for the Permitted Use.
Landlord shall be responsible for all the compliance of the common areas
of the Project with the Americans With Disabilities Act, 42 U.S.C. Section
12101, et seq. (together with regulations promulgated pursuant thereto, "ADA")
as of the Commencement Date. Tenant, at its sole expense, shall make any
alterations or modifications, to the interior or the exterior of the Premises or
the Project, that are required by Legal Requirements (including, without
limitation, compliance of the Premises with the ADA) related to
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Tenant's use or occupancy of the Premises; provided, however, if any such
alterations or modifications are required as a result of any Legal Requirement
of general applicability, requiring alterations or modifications throughout the
Building, Landlord shall construct any such required alteration or modification
and charge the cost thereof back to Tenant, either as an Operating Expense or by
direct charge to Tenant of Tenant's proportional share of such costs, provided
further that to the extent any portions of such required alterations or
modifications are properly treated as a capital items, the costs applicable to
such capital items shall be amortized over the lesser of 7 years or the useful
life of such capital items. Notwithstanding any other provision herein to the
contrary, Tenant shall be responsible for any and all demands, claims,
liabilities, losses, costs, expenses, actions, causes of action, damages or
judgments, and all reasonable expenses incurred in investigating or resisting
the same (including, without limitation, reasonable attorneys' fees, charges and
disbursements and costs of suit) (collectively, "Claims") arising out of or in
connection with Legal Requirements and Tenant shall indemnify, defend, hold and
save Landlord harmless from and against any and all Claims arising out of or in
connection with any failure of the Premises to comply with any Legal
Requirement.
8. HOLDING OVER. If, with Landlord's express written consent, Tenant
retains possession of the Premises after the termination of the Term, unless
otherwise agreed in writing, such possession shall be subject to immediate
termination by Landlord at any time, and all of the other terms and provisions
of this Lease (including, without limitation, the adjustment of Base Rent
pursuant to Section 4 hereof) shall remain in full force and effect (excluding
any expansion or renewal option or other similar right or option) during such
holdover period, and in such case Tenant shall continue to pay Base Rent in the
amount payable upon the date of the expiration or earlier termination of this
Lease or such other amount as Landlord may indicate, in Landlord's sole and
absolute discretion, in such written consent. All other payments shall continue
under the terms of this Lease. If Tenant remains in possession of the Premises
after the expiration or earlier termination of the Term without the express
written consent of Landlord, Tenant shall become a tenant at sufferance upon the
terms of this Lease except that the monthly rental shall be equal to 150% of the
Rent in effect during the last 30 days of the Term. In addition, Tenant shall be
responsible for all damages suffered by Landlord resulting from or occasioned by
Tenant's holding over. No holding over by Tenant, whether with or without
consent of Landlord, shall operate to extend this Lease except as otherwise
expressly provided, and this Section 8 shall not be construed as consent for
Tenant to retain possession of the Premises. Acceptance by Landlord of Rent
after the Term Expiration Date or earlier termination of this Lease shall not
result in a renewal or reinstatement of this Lease.
9. TAXES. Landlord shall pay, as part of Operating Expenses, all taxes,
levies, assessments and governmental charges of any kind (collectively referred
to as "TAXES") imposed by any federal, state, regional, municipal, local or
other governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, "GOVERNMENTAL AUTHORITY") during the Term,
including, without limitation all Taxes: (i) imposed on or measured by or based,
in whole or in part, on rent payable to Landlord under this Lease and/or from
the rental by Landlord of the Project or any portion thereof, or (ii) based on
the square footage, assessed value or other measure or evaluation of any kind of
the Premises or the Project, or (iii) assessed or imposed by or on the operation
or maintenance of any portion of the Premises or the Project, including parking,
or (iv) assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by, any
Governmental Authority, or (v) imposed as a license or other fee on Landlord's
business of leasing space in the Project. Landlord may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens
securing Taxes. Taxes shall not include any net income taxes imposed on Landlord
unless such net income taxes are in substitution for any Taxes payable
hereunder. If any such Tax is levied or assessed directly against Tenant, then
Tenant shall be responsible for and shall pay the same at such times and in such
manner as the taxing authority shall require. Tenant shall pay, prior to
delinquency, any and all Taxes levied or assessed against any personal property
or trade fixtures placed by Tenant in the Premises, whether levied or assessed
against Landlord or Tenant. If any Taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property, or if the assessed
valuation of the Project is increased by a value attributable to improvements in
or alterations to the Premises, whether owned by Landlord or Tenant and whether
or not affixed to the real property so as to become a part thereof, higher
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than the base valuation on which Landlord from time-to-time allocates Taxes to
all tenants in the Project, Landlord shall have the right, but not the
obligation, to pay such Taxes. Landlord's determination of any excess assessed
valuation shall be binding and conclusive, absent manifest error. The amount of
any such payment by Landlord shall constitute Additional Rent due from Tenant to
Landlord immediately upon demand.
10. PARKING.
(a) Tenant shall have the non-exclusive right, in common with others, to
use the Building Common Areas, subject to the rules and regulations attached
hereto as Exhibit E together with such other reasonable and nondiscriminatory
rules and regulations as are hereafter promulgated by Landlord in its
discretion.
(b) Tenant shall be assigned 20 parking stalls to be designated by
Landlord and reserved for Tenant's use, which parking stalls shall be located as
set forth on EXHIBIT I. Landlord reserves the right from time-to-time to provide
other parking for Tenant, which shall be no farther from the Building than the
farther of Landlord's two present lots, except for an interim period not
exceeding 18 months in connection with a redevelopment of either such lot, in
which case such replacement parking shall be no more than 5 blocks from the
Building. Tenant shall pay as triple net Additional Rent the sum of $70.00 per
month, per stall, which sum may be increased Landlord annually, but which
increase shall in no event exceed 3% per annum. In addition, Tenant shall pay
its Allocated Parking Expenses on a monthly basis with Base Rent Allocated
Parking Expenses shall be subject to the operating expense exclusions set forth
in Article 5. Landlord shall not oversubscribe parking.
(c) Tenant agrees not to overburden the guest parking facilities and
agrees to cooperate with Landlord and other tenants in the use of such guest
parking. Landlord reserves the right to determine that guest parking is becoming
overcrowded and to limit Tenant's use thereof. Upon such determination, Landlord
may reasonably allocate guest parking spaces among Tenant and other tenants. If,
after such allocation, Landlord determines that Tenant's customers, clients, or
invitees are using more than the number of guest parking spaces that would
otherwise be attributable to a reasonable number of guest parking spaces for
Tenant's use, Landlord may require Tenant to obtain guest parking outside of the
Building and the parking lot to the extent of such unreasonable excess uses.
However, nothing in this Section 10(c) is intended to create an affirmative duty
on Landlord to monitor parking.
11. UTILITIES, SERVICES.
Landlord shall provide, subject to the terms of this Section 11, potable
water (within 60 days after full execution of this Lease), electricity, heat,
ventilation, air conditioning, light, power, telephone, sewer, and other
utilities (including gas and fire sprinklers to the extent the Project is
plumbed for such services), refuse and trash collection and janitorial services
(collectively, "UTILITIES"). Any use by Tenant of Utilities shall be allocated
to and paid by Tenant on such basis as Landlord shall determine for the Project.
Tenant shall be entitled to use its pro rata share of Utilities. Landlord shall
pay, as Operating Expenses or subject to Tenant's reimbursement obligation, for
all Utilities used on the Premises, all maintenance charges for Utilities, and
any storm sewer charges or other similar charges for Utilities imposed by any
governmental entity or Utility provider, and any taxes, penalties, surcharges or
similar charges thereon. Landlord may cause, at Tenant's expense, any Utilities
to be separately metered or charged directly to Tenant by the provider. Tenant
shall pay directly to the Utility provider, prior to delinquency, any separately
metered Utilities and services which may be furnished to Tenant or the Premises
during the Term. Tenant shall pay, as part of Operating Expenses, its share of
all charges for jointly metered Utilities based upon consumption, as reasonably
determined by Landlord and shall pay the cost of any after hours Utilities
allocated to it by Landlord. No interruption or failure of Utilities, from any
cause whatsoever other than Landlord's willful misconduct, shall result in
eviction or constructive eviction of Tenant, termination of this Lease or the
abatement of Rent. Tenant agrees to limit use of water and sewer with respect to
Common Areas to normal restroom use. If there is any interruption, failure,
stoppage or interference of the utilities,
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services or access to the Premises or the Premises cannot be used due to the
presence of any Hazardous Materials on or about the Building or the Project
(except to the extent released or emitted in violation of Section 30 hereof),
and such interruption continues for seven (7) consecutive calendar days, then
Tenant shall be entitled to an equitable abatement of Rent to the extent of the
interference with Tenant' s use of the Premises occasioned thereby. Landlord's
sole obligation for either providing emergency generators or providing emergency
backup power to Tenant shall be: (i) to provide emergency generators with not
less than the capacity of the emergency generators located in the Building as of
the Commencement Date, and (ii) to contract with a third party to maintain the
emergency generators as per the manufacturer's standard maintenance guidelines.
Landlord shall have no obligation to provide Tenant with operational emergency
generators or back-up power or to supervise, oversee or confirm that the third
party maintaining the emergency generators is maintaining the generators as per
the manufacturer's standard guidelines or otherwise. During any period of
replacement, repair or maintenance of the emergency generators when the
emergency generators are not operational, including any delays thereto due to
the inability to obtain parts or replacement equipment, Landlord shall have no
obligation to provide Tenant with an alternative back-up generator or generators
or alternative sources of back-up power.
12. ALTERATIONS AND TENANT'S PROPERTY. Any alterations, additions, or
improvements made to the Premises by or on behalf of Tenant, including
additional locks or bolts of any kind or nature upon any doors or windows in the
Premises, but excluding installation, removal or realignment of furniture
systems (other than removal of furniture systems owned or paid for by Landlord)
not involving any modifications to the structure or connections (other then by
ordinary plugs or jacks) to building systems (as hereinafter defined)
("ALTERATIONS") shall be subject to Landlord's prior written consent, which
shall not be unreasonably withheld. Tenant may construct nonstructural
Alterations in the Premises without Landlord's prior approval if the aggregate
cost of all such work in any 12 month period does not exceed $20,000. If
Landlord approves any Alterations, Landlord may impose such conditions on Tenant
in connection with the commencement, performance and completion of such
Alterations as Landlord may deem appropriate in Landlord's sole and absolute
discretion. Any request for approval shall be in writing, delivered not less
than 15 business days in advance of any proposed construction, and accompanied
by plans, specifications, bid proposals, work contracts and such other
information concerning the nature and cost of the alterations as may be
reasonably requested by Landlord, including the identities and mailing addresses
of all persons performing work or supplying materials. Landlord's right to
review plans and specifications and to monitor construction shall be solely for
its own benefit, and Landlord shall have no duty to see that such plans and
specifications or construction comply with applicable Legal Requirements. Tenant
shall cause, at its expense, all Alterations to comply with insurance
requirements and with Legal Requirements and shall implement at its sole cost
and expense any alteration or modification required by Legal Requirements as a
result of any Alterations. Tenant shall pay to Landlord, as Additional Rent, on
demand an amount equal to 2.5% of all charges incurred by Tenant or its
contractors or agents in connection with any Alteration to cover Landlord's
overhead and expenses for plan review, coordination, scheduling and supervision.
Before beginning any Alteration, Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall reimburse
Landlord for, and indemnify and hold Landlord harmless from, any extra expense
incurred by Landlord by reason of faulty work done by Tenant or its contractors,
delays caused by such work, or inadequate cleanup.
If any such Alteration project, or series of related Alteration
projects, costs more than $100,000 and Tenant cannot make a showing of financial
capacity to pay for such Alterations reasonably acceptable to Landlord, Tenant
shall furnish security or make other arrangements satisfactory to Landlord to
assure payment for the completion of all work free and clear of liens, and shall
provide certificates of insurance for worker's compensation and other coverage
in amounts and from an insurance company reasonably satisfactory to Landlord
protecting Landlord against liability for personal injury or property damage
during construction. Upon completion of any Alterations, Tenant shall deliver to
Landlord: (i) sworn statements setting forth the names of all contractors and
subcontractors who did the work and final lien waivers from all such contractors
and subcontractors; and (ii) as built plans for any such Alteration.
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Other than (i) the items, if any, listed on EXHIBIT F attached hereto,
(ii) any items agreed by Landlord in writing to be included on EXHIBIT F in the
future, and (iii) any trade fixtures, machinery, equipment and other personal
property (A) not paid for out of the TI Fund, as defined in the Work Letter, or
(B) financed by third parties, which may in either case be removed without
material damage to the Premises, which damage to remove the same shall be
repaired (including capping or terminating utility hookups behind walls) by
Tenant during the Term (collectively, "TENANT'S PROPERTY"), all property of any
kind paid for with the TI FUND, all Alterations, real property fixtures,
built-in machinery and equipment, built-in casework and cabinets and other
similar additions and improvements built into the Premises so as to become an
integral part of the Premises, such as fume hoods which penetrate the roof or
plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms,
walk-in warm rooms, deionized water system, glass washing equipment, autoclaves,
chillers, built-in plumbing, electrical and mechanical equipment and systems,
and any power generator and transfer switch (collectively, "INSTALLATIONS")
shall be and shall remain the property of Landlord during the Term and following
the expiration or earlier termination of the Term, shall not be removed by
Tenant at any time during the Term and shall remain upon and be surrendered with
the Premises as a part thereof following the expiration or earlier termination
of this Lease; provided, however, that Landlord shall, at the time its approval
of such Installation is requested notify Tenant if it has elected to cause
Tenant to remove such Installation upon the expiration or earlier termination of
this Lease. If Landlord so elects, Tenant shall remove such Installation upon
the expiration or earlier termination of this Lease and restore any darnage
caused by or occasioned as a result of such removal. During any such restoration
period, Tenant shall pay Rent to Landlord as provided herein as if said space
were otherwise occupied by Tenant. In no event, however, shall Tenant be
required to remove Tenant's Work, as defined in the Work Letter.
13. LANDLORD'S REPAIRS. Landlord, as an Operating Expense, shall
maintain all of the structural (including, without limitation, the roof),
exterior, parking and other Common Areas of the Project, including HVAC,
plumbing, fire sprinklers, elevators, deionized water, C02, gas, vacuum, and all
other building systems serving the Premises and other portions of the Project
("BUILDING SYSTEMS"), in good repair, reasonable wear and tear and uninsured
damage or destruction caused by Tenant, its agents, servants, employees,
invitees and contractors excluded. Damage and destruction caused by Tenant, its
-agents, servants, employees, invitees and contractors shall be repaired by
Landlord, to the extent not covered by insurance, at Tenant's sole cost and
expense. Landlord reserves the right to stop Building System services when
necessary (i) by reason of accident or emergency, or (ii) for planned repairs,
alterations or improvements, which are, in the reasonable judgment of Landlord,
desirable or necessary to be made, until said repairs, alterations or
improvements shall have been completed. Landlord shall have no responsibility or
liability for failure to supply Building System services during any such period
of interruption; provided, however, that Landlord shall give Tenant 48 hours
advance notice of any planned stoppage of Building System services for routine
maintenance, repairs, alterations or improvements. Tenant shall promptly give
Landlord written notice of any repair required by Landlord pursuant to this
Section, after which Landlord shall have a reasonable opportunity to effect such
repair. Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after Tenant's written notice of the need for such repairs or maintenance.
Tenant waives it rights under any state or local law to terminate this Lease or
to make such repairs at Landlord's expense and agrees that the parties'
respective rights with respect to such matters shall be solely as set forth
herein. Repairs required as the result of fire, earthquake, flood, vandalism,
war, or similar cause of damage or destruction shall be controlled by Section
18.
14. TENANT'S REPAIRS. Subject to Section 13 hereof, Tenant, at its
expense, shall repair, replace and maintain in good condition, reasonable wear
and tear and casualty which Tenant is not obligated to restore excepted, all
portions of the Premises, including, without limitation, entries, doors,
ceilings, interior windows, interior walls, and the interior side of demising
walls. Such repair and replacements may include capital expenditures and repairs
whose benefit may extend beyond the Term. Should Tenant fail to make any such
repair or replacement or fail to maintain the Premises beyond any applicable
notice and cure period, Landlord may perform such work and shall be reimbursed
by Tenant within 10 days after demand therefor. Subject to Sections 17 and 18,
Tenant shall bear the full uninsured
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cost of any repair or replacement to any part of the Project that results from
damage caused by Tenant, its agents, contractors, or invitees and any repair
that benefits only the Premises.
15. MECHANIC'S LIENS. Tenant shall discharge, by bond or otherwise, any
mechanic's lien filed against the Premises or against the Project for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant within 10 days after the filing thereof, at Tenant's sole cost and shall
otherwise keep the Premises and the Project free from any liens arising out of
work performed, materials furnished or obligations incurred by Tenant. Should
Tenant fail to discharge any lien described herein, Landlord shall have the
right, but not the obligation, to pay such claim or post a bond or otherwise
provide security to eliminate the lien as a claim against title to the Project
and the cost thereof shall be immediately due from Tenant as Additional Rent. If
Tenant shall lease or finance the acquisition of office equipment, furnishings,
or other personal property of a removable nature utilized by Tenant in the
operation of Tenant's business, Tenant warrants that any Uniform Commercial Code
Financing Statement executed by Tenant will upon its face or by exhibit thereto
indicate that such Financing Statement is applicable only to removable personal
property of Tenant located within the Premises. In no event shall the address of
the Project be furnished on the statement without qualifying language as to
applicability of the lien only to removable personal property, located in an
identified suite held by Tenant. Landlord hereby waives any statutory lien
rights Landlord may have in and to Tenant's Property, and agrees to execute any
confirmation of such waiver required by any lender secured by a lien on, or any
lessor of, any personal property included within Tenant's Property, provided (i)
such waiver is reasonably acceptable in form and substance to Landlord and (ii)
nothing in this Section 15 shall in any way affect or limit Landlord's rights
pursuant to Section 12 hereof.
16. INDEMNIFICATION. Tenant hereby indemnifies and agrees to defend,
save and hold Landlord harmless from and against any and all Claims for injury
or death to persons or damage to property occurring within or about the
Premises, arising directly or indirectly out of use or occupancy of the Premises
or a breach or default by Tenant in the performance of any of its obligations
hereunder, except to the extent caused by the willful misconduct or gross
negligence of Landlord or Landlord's Related Parties. Landlord shall not be
liable to Tenant for, and Tenant assumes all risk of damage to, personal
property (including, without limitation, loss of records kept within the
Premises). Tenant further waives any and all Claims for injury to Tenants
business or loss of income relating to any such damage or destruction of
personal property (including, without limitation, any loss of records). Landlord
shall not be liable for any damages arising from any act, omission or neglect of
any tenant in the Project or of any other third party. Subject to the
limitations set forth in Section 36 hereof, Landlord shall indemnify Tenant for
any Claims to the extent the same arise as a result of the gross negligence or
willful misconduct of Landlord and its Related Parties.
17. INSURANCE. Landlord, shall maintain all insurance against any peril
generally included within the classification "Fire and Extended Coverage,"
sprinkler damage (if applicable), vandalism and malicious mischief covering the
full replacement cost of the Project. Landlord shall further carry commercial
general liability insurance with a single loss limit of not less than $2,000,000
for death or bodily injury, or property damage with respect to the Project.
Landlord may, but is not obligated to, maintain such other insurance and
additional coverages as it may deem necessary, including, but not limited to,
flood, environmental hazard and earthquake, loss or failure of building
equipment, errors and omissions, rental loss during the period of repair or
rebuilding, workmen's compensation insurance and fidelity bonds for employees
employed to perform services and insurance for any improvements installed by
Tenant or which are in addition to the standard improvements customarily
furnished by Landlord without regard to whether or not such are made a part of
the Project. All such insurance shall be included as part of the Operating
Expenses. The Project may be included in a blanket policy (in-which case the
cost of such insurance allocable to the Project will be determined by Landlord
based upon the insurer's cost calculations).
Tenant, at its expense, shall maintain during the Term: all risk
property insurance covering the full replacement cost of all property and
improvements installed or placed in the Premises by Tenant at
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Tenant's expense; worker's compensation insurance with no less than the minimum
limits required by law; employer's liability insurance with such limits as
required by law; and commercial general liability insurance, with a minimum
limit of not less than $2,000,000 per occurrence for death or bodily injury and
not less than $1,000,000 for property damage with respect to the Premises.
Tenant may aggregate the coverages under any insurance policies maintained
solely for the Premises with coverages under umbrella insurance policies carried
by Tenant, provided that any and all such policies shall comply with the
following sentence. The commercial general liability insurance policies (whether
maintained solely for the Premises or an umbrella policy) shall name Landlord,
its officers, directors, employees, managers, agents, invitees and contractors
(collectively, "RELATED PARTIES"), as additional insureds; insure on an
occurrence and not a claims-made basis; be issued by insurance companies which
have a rating of not less than policyholder rating of A and financial category
rating of at least Class XII in "Best's Insurance Guide"; shall not be
cancelable unless 30 days prior written notice shall have been given to Landlord
from the insuror; contain a hostile fire endorsement and a contractual liability
endorsement; and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over
Tenant's policies). Such policies or certificates thereof shall be delivered to
Landlord by Tenant upon commencement of the Term and upon each renewal of said
insurance. Tenant's policy may be a "blanket policy" which specifically provides
that the amount of insurance shall not be prejudiced by other losses covered by
the policy. Tenant shall, at least 20 days prior to the expiration of such
policies, furnish Landlord with renewals or binders. Tenant agrees that if
Tenant does not take out and maintain such insurance, Landlord may (but shall
not be required to) procure said insurance on Tenant's behalf and at its cost to
be paid as Additional Rent.
In each instance where insurance is to name Landlord as additional
insured, Tenant shall upon written request of Landlord also designate and
furnish certificates so evidencing Landlord as additional insured to: (i) any
lender of Landlord holding a security interest in the Project or any portion
thereof, (ii) the landlord under any lease wherein Landlord is tenant of the
real property on which the Project is located, if the interest of Landlord is or
shall become that of a tenant under a ground lease rather than that of a fee
owner, and/or (iii) any management company retained by Landlord to manage the
Project.
The property insurance obtained by Landlord and Tenant shall include a
waiver of subrogation by the insurers and all rights based upon an assignment
from its insured, against Landlord or Tenant, and their respective Related
Parties, in connection with any loss or damage thereby insured against.
Notwithstanding anything to the contrary herein, neither party nor its
respective Related Parties shall be liable to the other for loss or damage
caused by any risk insured against under property insurance required to be
maintained hereunder, and each party waives any claims against the other party,
and its respective Related Parties for such loss or damage. The failure of a
party to insure its property shall not void this waiver. Landlord and its
respective Related Parties shall not be liable for, and Tenant hereby waives all
claims against such parties for, business interruption, loss of profits and
losses occasioned thereby sustained by Tenant or any person claiming through
Tenant resulting from any accident or occurrence in or upon the Premises or the
Project from any cause whatsoever, including without limitation, damage caused
in whole or in part, directly or indirectly, by the negligence of Landlord or
its respective Related Parties. If the foregoing waivers shall contravene any
law with respect to exculpatory agreements, the liability of Landlord or Tenant
shall be deemed not released but shall be secondary to the other's insurer.
Landlord may require insurance policy limits to be raised to conform
with requirements of Landlord's lender and/or to bring coverage limits to
commercially reasonable levels then being generally required of new tenants
within the Project.
18. RESTORATION. If at any time during the Term the Project or the
Premises are damaged by a fire or other insured casualty, Landlord shall notify
Tenant within 60 days after discovery of such damage as to the amount of time
Landlord reasonably estimates it will take to restore the Project or the
Premises, as applicable. If the restoration time is estimated to exceed 9
months, Landlord may, in such notice, or Tenant may, by written notice to
Landlord within 15 days of Tenant's receipt of Landlord's
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notice, elect to terminate this Lease as of the date that is 75 days after the
date of discovery of such damage or destruction. Unless Landlord or Tenant
elects to terminate this Lease, Landlord shall, subject to receipt of sufficient
insurance proceeds (with any deductible to be treated as a current Operating
Expense), promptly restore the Premises (excluding the improvements installed by
Tenant or by Landlord and paid for by Tenant), subject to delays arising from
the collection of insurance proceeds, from Force Majeure events or as needed to
obtain any license, clearance or other authorization of any kind required to
enter into and restore the Premises issued by any governmental or
quasi-governmental agency having jurisdiction over the use, storage, release or
removal of Hazardous Materials brought into the Premises or the Building by
Tenant or any of Tenant's Related Parties (collectively referred to herein as
"HAZARDOUS MATERIALS CLEARANCES"); provided, however, that if repair or
restoration of the Premises is not Substantially Complete as of the end of 12
months from the date of damage or destruction, Landlord or Tenant may, in its
sole and absolute discretion, elect not to proceed with such repair and
restoration, in which event Landlord shall be relieved of its obligation to make
such repairs or restoration and this Lease shall terminate as of the date that
is 75 days after the later of: (i) discovery of such damage or destruction, or
(ii) the date all required Hazardous Materials Clearances are obtained.
Notwithstanding the foregoing, if insurance proceeds are not available for
restoration of the Premises or the Building solely by reason of Landlord's
failure to maintain the insurance required to be maintained by Landlord under
Section 17 hereof, Landlord shall be responsible for the costs of restoration to
the extent of the insurance proceeds that would have been available had Landlord
performed its obligations pursuant to Section 17 hereof.
Subject to receipt of sufficient insurance proceeds and delays arising
from the collection of such insurance proceeds, from Force Majeure events or to
obtain Hazardous Material Clearances, Tenant, at its expense, shall promptly
perform all repairs or restoration not required to be done by Landlord required
for Tenant's use of the Premises, in Tenant's reasonable judgment, and shall
promptly re-enter the Premises and commence doing business in accordance with
this Lease. Notwithstanding the foregoing, if insurance proceeds are not
available for Tenant's restoration solely by reason of Tenant's failure to
maintain the insurance required to be maintained by Tenant under Section 17
hereof, Tenant shall be responsible for the costs of restoration to the extent
of the insurance proceeds that would have been available had Tenant performed
its obligations pursuant to Section 17 hereof.
Notwithstanding anything set forth above, Landlord may terminate this
Lease if (i) the Premises are damaged during the last year of the Term, Landlord
reasonably estimates that it will take more than 2 months to repair such damage,
and Tenant does not exercise an Extension Right, if any then remain hereunder,
or (ii) subject to the last sentence in the first paragraph of this Section 18,
insurance proceeds are not available for such restoration. Rent shall be abated
from the date all required Hazardous Material Clearances are obtained until the
Premises are repaired and restored, in the proportion which the area of the
Premises, if any, which is not usable by Tenant bears to the total area of the
Premises. Such abatement shall be the sole remedy of Tenant, and except as
provided herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
The provisions of this Lease, including this Section 18, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Premises, or any other portion of
the Project, and any statute or regulation which is now or may hereafter be in
effect, shall have no application to this Lease or any damage or destruction to
all or any part of the Premises or any other portion of the Project, the parties
hereto expressly agreeing this Section 18 sets forth their entire understanding
and agreement with respect to such matters.
19. CONDEMNATION. If any part of the Premises or the Project is taken
for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "TAKING" or "TAKEN"), and the Taking would in Landlord's judgment
either prevent or materially interfere with Tenant's use of the Premises or
materially interfere with or impair Landlord's ownership or operation of the
Project, then upon written notice by Landlord this Lease shall terminate and
Rent shall be apportioned as of said date. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, Landlord shall
promptly restore the Premises and the Project
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as nearly as is commercially reasonable under the circumstances to their
condition prior to such partial taking and the Rent payable hereunder during the
unexpired Term shall be reduced to such extent as may be fair and reasonable
under the circumstances. Upon any such Taking, Landlord shall be entitled to
receive the entire price or award from any such Taking without any payment to
Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if any, in such
award. Tenant shall have the right, to the extent that same shall not diminish
Landlord's award, to make a separate claim against the condemning authority (but
not Landlord) for such compensation as may be separately awarded or recoverable
by Tenant for moving expenses and damage to Tenant's Trade Fixtures, if a
separate award for such items is made to Tenant. Tenant hereby waives any and
all rights it might otherwise have pursuant to any provision of state law to
terminate this Lease upon a partial Taking of the Premises or the Project.
20. EVENTS OF DEFAULT. Each of the following events shall be a default
("DEFAULT") by Tenant under this Lease:
(a) PAYMENT DEFAULTS. Tenant shall fail to pay any installment of Rent
or any other payment hereunder when due; provided, however, that Landlord, not
more than twice in any 12 month period, will give Tenant notice of such default
in the payment of Rent and Tenant shall have 5 days in which to make such
payment after which period Tenant shall be in Default hereunder. Tenant agrees
that such notice shall be in lieu of and not in addition to any notice required
by law.
(b) INSURANCE. Any insurance required to be maintained by Tenant
pursuant to this Lease shall be canceled or terminated or shall expire or shall
be reduced or materially changed, or Landlord shall receive a notice of
nonrenewal of any such insurance and Tenant shall fail to obtain replacement
insurance at least 20 days before the expiration of the current coverage.
(c) ABANDONMENT. Tenant shall abandon the Premises.
(d) IMPROPER TRANSFER. Tenant shall assign, sublease or otherwise
transfer or attempt to transfer all or any portion of Tenant's interest in this
Lease or the Premises except as expressly permitted herein, or Tenant's interest
in this Lease shall be attached, executed upon, or otherwise judicially seized
and such action is not released within 90 days of the action.
(e) LIENS. Tenant shall fail to discharge or otherwise obtain the
release of any lien placed upon the Premises in violation of this Lease within
10 days after any such lien is filed against the Premises.
(f) INSOLVENCY EVENTS. Tenant or any guarantor or surety of Tenant's
obligations hereunder shall: (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"PROCEEDING FOR RELIEF"); (C) become the subject of any Proceeding for Relief
which is not dismissed within 90 days of its filing or entry; or (D) die or
suffer a legal disability (if Tenant, guarantor, or surety is an individual) or
be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
(g) ESTOPPEL CERTIFICATE OR SUBORDINATION AGREEMENT. Tenant fails to
execute any document required from Tenant under Sections 23 or 27 within 5 days
after a written notice of Tenant's failure to provide the documents described in
Sections 23 and/or 27 hereof within the time periods set forth therein.
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(h) OTHER DEFAULTS. Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Section 20, and
except as otherwise expressly provided herein, such failure shall continue for a
period of 30 days after written notice thereof from Landlord to Tenant.
Any notice given under Section 20(h) hereof, shall: (i) specify the alleged
default, (ii) demand that Tenant cure such default, (iii) be in lieu of, and not
in addition to, or shall be deemed to be any notice required under any provision
of applicable law, and (iv) not be deemed a forfeiture or a termination of this
Lease unless Landlord elects otherwise in such notice; provided that if the
nature of Tenant's default pursuant to Section 20(h) is such that it cannot be
cured by the payment of money and reasonably requires more than 30 days to cure,
then Tenant shall not be deemed to be in default if Tenant commences such cure
within said 30 day period and thereafter diligently prosecutes the same to
completion; provided, however, that such cure shall be completed no later than
90 days from the date of Landlord's notice.
21. LANDLORD'S REMEDIES.
(a) PAYMENT BY LANDLORD; INTEREST. Upon a Default by Tenant hereunder,
Landlord may, without waiving or releasing any obligation of Tenant hereunder,
make such payment or perform such act. All sums so paid or incurred by Landlord,
together with interest thereon, from the date such sums were paid or incurred,
at the annual rate equal to 12% per annum or the highest rate permitted by law
(the "DEFAULT RATE"), whichever is less, shall be payable to Landlord on demand
as Additional Rent. Nothing herein shall be construed to create or impose a duty
on Landlord to mitigate any damages resulting from Tenant's Default hereunder.
(b) LATE PAYMENT RENT. Late payment by Tenant to Landlord of Rent and
other sums due will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult and impracticable
to `ascertain. Such costs include, but are not limited to, processing and
accounting charges and late charges which may be imposed on Landlord under any
Mortgage covering the Premises. Therefore, if any installment of Rent due from
Tenant is not received by Landlord within 5 days after the date such payment is
due, Tenant shall pay to Landlord an additional sum of 6% of the overdue Rent as
a late charge. The parties agree that this late charge represents a fair and
reasonable estimate of the costs Landlord will incur by reason of late payment
by Tenant. In addition to the late charge, Rent not paid when due shall bear
interest at the Default Rate from the 5th day after the date due until paid.
Notwithstanding the foregoing, no late charge nor interest shall be due on the
second such failure to pay Rent in any 12 month period until 5 days after
Landlord has given Tenant notice and an opportunity to cure any such failure to
pay Rent and Tenant has failed so to pay Rent. Any such notice shall be in lieu
of and not in addition to any notice required by law;
(c) REMEDIES. Upon the occurrence of a Default, Landlord, at its option,
without further notice or demand to Tenant, shall have in addition to all other
rights and remedies provided in this Lease, at law or in equity, the option to
pursue any one or more of the following remedies, each and all of which shall be
cumulative and nonexclusive, without any notice or demand whatsoever.
(i) Terminate this Lease, or at Landlord's option, Tenant's
right to possession only, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of
the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, without being liable for
prosecution or any claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant to the
foregoing Section 21 (c)(i) or otherwise, Landlord may recover from
Tenant the following:
(A) The worth at the time of award of any unpaid rent
which has been earned at the time of such termination; plus
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(B) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably
avoided; plus
(C) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time
of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom,
specifically including but not limited to, brokerage commissions
and advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for
the same or a different use, and any special concessions made to
obtain a new tenant; and
(E) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from
time to time by applicable law.
The term "RENT" as used in this Section 21 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to
the terms of this Lease, whether to Landlord or to others. As used in
Sections 21(c)(ii)(A) and (B), above, the "WORTH AT THE TIME OF AWARD"
shall be computed by allowing interest at the Default Rate. As used in
Section 21(c)(ii)(C) above, the "WORTH AT THE TIME OF AWARD" shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%.
(iii) Landlord may continue this Lease in effect after Tenant's
Default and recover rent as it becomes due. Accordingly, if Landlord
does not elect to terminate this Lease following a Default by Tenant,
Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies hereunder, including the right to recover
all Rent as it becomes due.
(iv) If Landlord elects to terminate this Lease following a
Default by Tenant, Landlord shall have the right to terminate any and
all subleases, licenses, concessions or other consensual arrangements
for possession entered into by Tenant and affecting the Premises or may,
in Landlord's sole discretion, succeed to Tenant's interest in such
subleases, licenses, concessions or arrangements. Upon Landlord's
election to succeed to Tenant's interest in any such subleases,
licenses, concessions or arrangements, Tenant shall, as of the date of
notice by Landlord of such election, have no further right to or
interest in the rent or other consideration receivable thereunder.
(d) EFFECT OF EXERCISE. Exercise by Landlord of any remedies hereunder
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises and/or a termination of this Lease by Landlord, it being understood
that such surrender and/or termination can be effected only by the express
written agreement of Landlord and Tenant. Any law, usage, or custom to the
contrary notwithstanding, Landlord shall have the right at all times to enforce
the provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in any
way or manner contrary to the specific terms, provisions, and covenants of this
Lease or as having modified the same and shall not be deemed a waiver of
Landlord's right to enforce one or more of its rights in connection with any
subsequent default. A receipt by Landlord of Rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless expressed in writing and signed by Landlord. To
the greatest extent permitted by law, Tenant waives the service of notice of
Landlord's intention to re-enter, re-take or otherwise obtain possession of the
Premises as provided in any
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statute, or to institute legal proceedings to that end, and also waives all
right of redemption in case Tenant shall be dispossessed by a judgment or by
warrant of any court or judge. Any reletting of the Premises or any portion
thereof shall be on such terms and conditions as Landlord in its sole discretion
may determine. Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises or
collect rent due in respect of such reletting or otherwise to mitigate any
damages arising by reason of Tenant's Default.
22. ASSIGNMENT AND SUBLETTING.
(a) GENERAL PROHIBITION. Without Landlord's prior written consent
subject to and on the conditions described in this Section 22, Tenant shall not,
directly or indirectly, voluntarily or by operation of law, assign this Lease or
sublease the Premises or any part thereof or mortgage, pledge, or hypothecate
its leasehold interest or grant any concession or license within the Premises
and any attempt to do any of the foregoing shall be void and of no effect. For
purposes of this Section, a transfer of ownership interests controlling Tenant
shall be deemed an assignment of this Lease unless such ownership interests are
publicly traded or unless such ownership interest are issued by Tenant in an
equity financing.
(b) PERMITTED TRANSFERS. If Tenant desires to assign, sublease,
hypothecate or otherwise transfer this Lease or sublet the Premises other than
pursuant to a Permitted Assignment (as defined below), then at least 15 business
days, but not more than 45 business days, before the date Tenant desires the
assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall
give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information
about the proposed assignee or sublessee, including the proposed use of the
Premises and any Hazardous Materials proposed to be used or stored in the
Premises, the Assignment Date, any relationship between Tenant and the proposed
assignee or sublessee, and all material terms and conditions of the proposed
assignment or sublease, including a copy of any proposed sublease in its final
form, and such other information as Landlord may deem reasonably necessary or
appropriate to its consideration whether to grant its consent. Landlord may, by
giving written notice to Tenant within 15 business days after receipt of the
Assignment Notice: (i) grant or refuse such consent, in its sole discretion with
respect to a proposed assignment, hypothecation or other transfer (other than a
subletting), or grant or refuse such consent, in its reasonable discretion with
respect to a proposed subletting (provided that Landlord shall further have the
right to review and approve or disapprove the proposed form of sublease prior to
the effective date of any such subletting), or (ii) terminate this Lease with
respect to the space described in the Assignment Notice, as of the Assignment
Date (an "ASSIGNMENT TERMINATION"). If Landlord elects an Assignment
Termination, Tenant shall have the right to withdraw such Assignment Notice by
written notice to Landlord of such election within 5 days after Landlord's
notice electing to exercise the Assignment Termination. If Tenant withdraws such
Assignment Notice, this Lease shall continue in full force and effect. If Tenant
does not withdraw such Assignment Notice, this Lease, and the term and estate
herein granted, shall terminate as of the Assignment Date with respect to the
space described in such Assignment Notice. No failure of Landlord to exercise
any such option to terminate this Lease shall be deemed to be Landlord's consent
to the proposed assignment, sublease or other transfer. Tenant shall reimburse
Landlord for all of Landlord's reasonable out-of-pocket expenses in connection
with its consideration of any Assignment Notice, not to exceed $2,000 for each
Assignment Notice. Notwithstanding the foregoing, Landlord's consent to an
assignment of this Lease or a subletting of any portion of the Premises to any
entity controlling, controlled by or under common control with Tenant, or
acquiring substantially all of the issued and outstanding capital stock of
Tenant or succeeding to all or substantially all of Tenant's assets (a
"PERMITTED ASSIGNMENT") shall not be required, provided that Landlord shall have
the right to approve the form of any such sublease or assignment.
(c) ADDITIONAL CONDITIONS. As a condition to any such assignment or
subletting, whether or not Landlord's consent is required, Landlord may require:
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(i) that any assignee or subtenant agree, in writing at the time
of such assignment or subletting, that if Landlord gives such party
notice Tenant is in default under this Lease, such party shall
thereafter make all payments otherwise due Tenant directly to Landlord,
which payments will be received by Landlord without any liability except
to credit such payment against those due under the Lease, and any such
third party shall agree to attorn to Landlord or its successors and
assigns should this Lease be terminated for any reason; provided,
however, in no event shall Landlord or its successors or assigns be
obligated to accept such attornment; and
(ii) A list of Hazardous Materials, certified by the proposed
assignee or sublessee to be true and correct, which the proposed
assignee or sublessee intends to use or store in the Premises together
with copies of all documents relating to the handling, storage, disposal
and emission of Hazardous Materials by the proposed assignee or
subtenant in the Premises or on the Project, prior to the proposed
assignment or subletting, including, without limitation: permits;
approvals; reports and correspondence; storage and management plans;
plans relating to the installation of any storage tanks to be installed
in or under the Project (provided, said installation of tanks shall only
be permitted after Landlord has given its written consent to do so,
which consent may be withheld in Landlord's sole and absolute
discretion); and all closure plans or any other documents required by
any and all federal, state and local governmental agencies and
authorities for any storage tanks installed in, on or under the Project
for the closure of any such tanks. Neither Tenant nor any such proposed
assignee or subtenant is required, however, to provide Landlord with any
portion(s) of the such documents containing information of a proprietary
nature which, in and of themselves, do not contain a reference to any
Hazardous Materials or hazardous activities.
(d) NO RELEASE OF TENANT. Notwithstanding any assignment or subletting,
Tenant and any guarantor or surety of Tenant's obligations under this Lease
shall at all times remain fully and primarily responsible and liable for the
payment of Rent and for compliance with all of Tenant's other obligations under
this Lease, If the Rent due and payable by a sublessee or assignee (or a
combination of the rental payable under such sublease or assignment plus any
bonus or other consideration therefor or incident thereto), exceeds the rental
payable under this Lease (excluding however, any Rent payable under this Section
together with actual and reasonable brokerage fees, legal costs and any design
or construction fees directly related to and required pursuant to the terms of
any such sublease), then Tenant shall be bound and obligated to pay Landlord as
Additional Rent hereunder 50% of such excess rental and other excess
consideration within 10 days following receipt thereof by Tenant. If Tenant
shall sublet the Premises or any part thereof, Tenant hereby immediately and
irrevocably assigns to Landlord, as security for Tenant's obligations under this
Lease, all rent from any such subletting and Landlord as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of a Default, Tenant shall
have the right to collect such rent
(e) NO WAIVER. The consent by Landlord to an assignment or subletting
shall not relieve Tenant or any assignees of this Lease or any sublessees of the
Premises from obtaining the consent of Landlord to any further assignment or
subletting nor shall it release Tenant or any assignee or sublessee of Tenant
from full and primary liability under the Lease. The acceptance of Rent
hereunder, or the acceptance of performance of any other term, covenant, or
condition thereof, from any other person or entity shall not be deemed to be a
waiver of any of the provisions of this Lease or a consent to any subletting,
assignment or other transfer of the Premises.
(f) USE OF HAZARDOUS MATERIALS. Notwithstanding any other provision of
this Section 22, if either (i) the proposed assignee or sublessee of Tenant has
been required by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Materials contaminating a property
if the contamination resulted from such party's action or use of the property in
question, or (ii) the proposed assignee or sublessee is subject to an
enforcement order issued by any governmental authority
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in connection with the use, disposal or storage of a Hazardous Materials,
Landlord shall have the absolute right to refuse to consent to any assignment or
subletting to any such party.
23. ESTOPPEL CERTIFICATE. Tenant shall within 10 business days of
written notice from Landlord, execute, acknowledge and deliver a statement in
writing substantially in the form attached to this Lease as EXHIBIT G with the
blanks filled in, and on any other form reasonably requested by a proposed
lender or purchaser, (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease as so modified is in full force and effect) and the
dates to which the rental and other charges are paid in advance, if any, (ii)
acknowledging that there are not any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed, and (iii) setting
forth such further information with respect to the status of this Lease or the
Premises as may be requested thereon. Any such statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that the Lease is in
full force and effect and without modification except as may be represented by
Landlord in any certificate prepared by Landlord and delivered to Tenant for
execution.
24. QUIET ENJOYMENT. If Tenant shall perform all of the covenants and
agreements herein required to be performed by Tenant, Tenant shall, subject to
the terms of this Lease, at all times during the Term, have peaceful and quiet
enjoyment of the Premises against any person claiming by, through or under
Landlord.
25. PRORATIONS. All prorations required or permitted to be made
hereunder shall be made on the basis of a 360 day year and 30 day months.
26. RULES AND REGULATIONS. Tenant shall, at all times during the Term
and any extension thereof, comply with all reasonable rules and regulations at
any time or from time to time established by Landlord covering use of the
Premises and the Project. The current rules and regulations are attached hereto
as Exhibit E. If there is any conflict between said rules and regulations and
other provisions of this Lease, the terms and provisions of this Lease shall
control. Landlord shall not have any liability or obligation for the breach of
any rules or regulations by other tenants in the Project.
27. SUBORDINATION. This Lease and Tenant's interest and rights hereunder
are and shall be subject and subordinate at all times to the lien of any
Mortgage, now existing or hereafter created on or against the Project or the
Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant; provided,
however that so long as there is no Default hereunder, Tenant's right to
possession of the Premises shall not be disturbed by the Holder of any such
Mortgage. Tenant agrees, at the election of the Holder of any such Mortgage, to
attorn to any such Holder. Tenant agrees upon demand to execute, acknowledge and
deliver a Subordination, Non-disturbance and Attornment Agreement in the form
attached hereto as Exhibit H, or such other instruments, confirming such
subordination and such instruments of attornment as shall be reasonably
requested by any such Holder, provided any such instruments contain appropriate
non-disturbance provisions assuring Tenant's quiet enjoyment of the Premises as
set forth in Section 24 hereof. Notwithstanding the foregoing, any such Holder
may at any time subordinate its Mortgage to this Lease, without Tenant's
consent, by notice in writing to Tenant, and thereupon this Lease shall be
deemed prior to such Mortgage without regard to their respective dates of
execution, delivery or recording and in that event such Holder shall have the
same rights with respect to this Lease as though this Lease had been executed
prior to the execution, delivery and recording of such Mortgage and had been
assigned to such Holder. The term "MORTGAGE" whenever used in this Lease shall
be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the "HOLDER" of a mortgage shall be deemed to
include the beneficiary under a deed of trust. Landlord shall obtain a
Subordination, Non-disturbance and Attornment Agreement, substantially in the
form of EXHIBIT H, from Landlord's existing lender within 90 days of the
Commencement Date.
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28. SURRENDER. Upon expiration of the Term or earlier termination of
Tenant's right of possession, Tenant may, subject to the exercise of any
remedies by Landlord (to the extent not waived with respect to any of Tenant's
personal property which is leased or financed), remove Tenant's Property and
shall surrender the Premises to Landlord in the same condition as received,
broom clean, ordinary wear and tear and casualty loss and condemnation covered
by Sections 18 and 19 excepted and shall return to Landlord all keys to offices
and restrooms furnished to, or otherwise procured by, Tenant. If any, such key
is lost, Tenant shall pay to Landlord, at Landlord's election, either the cost
of replacing such lost key or the cost of changing the lock or locks opened by
such lost key. Any Tenant Property, Alterations and property not so removed by
Tenant as permitted or required herein shall be deemed abandoned and may be
stored, removed, and disposed of by Landlord at Tenant's expense, and Tenant
waives all claims against Landlord for any damages resulting from Landlord's
retention and/or disposition of such property. All obligations of Tenant
hereunder not fully performed as of the termination of the Term shall survive
the termination of the Term, including without limitation, indemnity
obligations, payment obligations with respect to Rent and obligations concerning
the condition and repair of the Premises, including the obligation to obtain all
required Hazardous Materials Clearances.
29. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL
BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
30. ENVIRONMENTAL REQUIREMENTS.
(a) PROHIBITION/COMPLIANCE/INDEMNITY. Tenant shall not cause or permit
any Hazardous Materials (as hereinafter defined) to be brought upon, kept or
used in or about the Premises or the Project in violation of applicable law by
Tenant, its agents, employees, contractors or invitees. If Tenant breaches the
obligation stated in the preceding sentence, or if contamination of the
Premises, the Project or any adjacent property by Hazardous Materials brought
into the Premises or released by anyone other than Landlord and Landlord's
employees, agents and contractors otherwise occurs, in either case during the
term of this Lease or any extension or renewal hereof or holding over hereunder,
except contamination from Hazardous Materials which Tenant can prove migrated
into the Premises from adjacent space in the Building, Tenant hereby indemnifies
and shall defend and hold Landlord, its officers, directors, employees, agents
and contractors harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Premises or any portion of the Project, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the Premises
or the Project, damages arising from any adverse impact on marketing of space in
the Premises or the Project, and sums paid in settlement of claims, attorneys'
fees, consultant fees and expert fees) which arise during or after the Lease
term as a result of such breach. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of such breach present in the air, soil or ground
water above, on, or under the Premises. Without limiting the foregoing, if the
presence of any Hazardous Materials on the Premises, the Project or any adjacent
property, caused or permitted by Tenant results in any contamination of the
Premises, the Project or any adjacent property, Tenant shall promptly take all
actions at its sole expense and in accordance with applicable law as are
necessary to return the Premises, the Project or any adjacent property, to the
condition existing prior to the time of such contamination, provided that
Landlord's approval of such action shall first be obtained, which approval shall
not unreasonably be withheld so long as such actions would not potentially have
any material adverse long-term or short-term effect on the Premises or the
Project.
(b) BUSINESS. Landlord acknowledges that it is not the intent of this
Article 30 to prohibit Tenant from using the Premises for the Permitted Use.
Tenant may operate its business according to the custom of the industry so long
as the use or presence of Hazardous Materials is strictly and properly
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monitored according to all applicable governmental requirements. As a material
inducement to Landlord to allow Tenant to use Hazardous Materials in connection
with its business, Tenant agrees to deliver to Landlord prior to the Term
Commencement Date a list identifying each type of Hazardous Materials to be
present on the Premises and setting forth any and all governmental approvals or
permits required in connection with the presence of such Hazardous Materials on
the Premises ("HAZARDOUS MATERIALS LIST"). Tenant shall deliver to Landlord an
updated Hazardous Materials List at least once a year and shall also deliver an
updated list before any new Hazardous Material(s) is brought onto the Premises.
Tenant shall deliver to Landlord true and correct copies of the following
documents (the "HAZ MAT DOCUMENTS") relating to the handling, use, storage,
disposal and emission of Hazardous Materials prior to the Term Commencement
Date, or if unavailable at that time, concurrent with the receipt from or
submission to a governmental agency: permits; approvals; reports and
correspondence; storage and management plans, notice of violations of any laws;
plans relating to the installation of any storage tanks to be installed in or
under the Project (provided, said installation of tanks shall only be permitted
after Landlord has given Tenant its written consent to do so, which consent may
be withheld in Landlord's sole and absolute discretion); and all closure plans
or any other documents required by any and all federal, state and local
governmental agencies and authorities for any storage tanks installed in, on or
under the Project for the closure of any such tanks. Tenant is not required,
however, to provide Landlord with any portion(s) of the Haz Mat Documents
containing information of a proprietary nature which, in and of themselves, do
not contain a reference to any Hazardous Materials or hazardous activities. It
is not the intent of this Section to provide Landlord with information which
could be detrimental to Tenant's business should such information become
possessed by Tenant's competitors.
(c) TENANT REPRESENTATION AND WARRANTY. Tenant hereby represents and
warrants to Landlord that (i) neither Tenant nor any of its legal predecessors
has been required by any prior landlord, lender or governmental authority at any
time to take remedial action in connection with Hazardous Materials
contaminating a property which contamination resulted from Tenant's or such
predecessor's action or use of the property in question, and (ii) Tenant is not
subject to any enforcement order issued by any governmental authority in
connection with the use, disposal or storage of a Hazardous Materials. If
Landlord determines that this representation and warranty was not true as of the
date of this lease, Landlord shall have the right to terminate this Lease in
Landlord's sole and absolute discretion.
(d) TESTING. Landlord shall have the right to conduct annual tests of
the Premises to determine whether any contamination has occurred as a result of
Tenant's use. Tenant shall be required to pay the cost of such annual test of
the Premises, not to exceed $2,500 per year; provided, however, that if Tenant
conducts its own tests of the Premises using third party contractors and test
procedures reasonably acceptable to Landlord which tests are certified to
Landlord, Landlord shall accept such tests in lieu of the annual tests to be
paid for by Tenant. In addition, at any time, and from time to time, prior to
the expiration or earlier termination of the Term, Landlord shall have the right
to conduct appropriate tests of the Premises and the Project to determine if
contamination has occurred as a result of Tenant's use of the Premises. If
contamination has occurred for which Tenant is liable under this Section 30,
Tenant shall pay all costs to conduct such tests. If no such contamination is
found, Landlord shall pay the costs of such tests (which shall not constitute an
Operating Expense). Landlord shall provide Tenant with a copy of all third
party, non-confidential reports and tests of the Premises made by or on behalf
of Landlord. Tenant shall be solely responsible for and shall defend, indemnify
and hold Landlord, its agents and contractors harmless from and against any and
all claims, costs and liabilities including actual attorneys' fees, charges and
disbursements, arising out of or in connection with any removal, clean up,
restoration and materials required hereunder to return the Premises and any
other property of whatever nature to their condition existing prior to the time
of any such contamination. Landlord's receipt of or satisfaction with any
environmental assessment in no way waives any rights that Landlord holds against
Tenant.
(e) UNDERGROUND TANKS. If underground or other storage tanks storing
Hazardous Materials are hereafter placed on the Premises by Tenant, Tenant shall
monitor the storage tanks, maintain appropriate records, implement reporting
procedures, properly close any underground storage tanks, and
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take or cause to be taken all other actions necessary or required under
applicable state and federal law, as such now exists or may hereafter be adopted
or amended.
(f) TENANT'S OBLIGATIONS. Tenant's obligations under this Article 30
shall survive the expiration or earlier termination of the Lease. During any
period of time after the expiration or earlier termination of this Lease
required by Tenant or Landlord to obtain all required Hazardous Materials
Clearances, Tenant shall continue to pay the full Rent in accordance with this
Lease, which Rent shall be prorated daily.
(g) DEFINITION OF "HAZARDOUS MATERIALS." As used herein, the term
"HAZARDOUS MATERIALS" means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, or regulated
by reason of its impact or potential impact on humans, animals and/or the
environment under any Environmental Requirements, asbestos and petroleum,
including crude oil or any fraction thereof, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and
such synthetic gas). As defined in Environmental Requirements, Tenant is and
shall be deemed to be the "operator" of Tenant's "facility" and the "owner" of
all Hazardous Materials brought on the Premises by Tenant, its agents,
employees, contractors or invitees, and the wastes, by-products, or residues
generated, resulting, or produced therefrom.
31. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). Upon any default by Landlord, Tenant shall give notice
by registered or certified mail to any beneficiary of a deed of trust or
Mortgagee of a Mortgage covering the Premises and to any landlord of any lease
of property in or on which the Premises are located and Tenant shall offer such
beneficiary, Mortgagee and/or landlord a reasonable opportunity to cure the
default, including time to obtain possession or control of the Project by a
receivership if such should prove necessary to effect a cure; provided Landlord
shall have furnished to Tenant in writing the names and addresses of all such
persons who are to receive such notices. All obligations of Landlord hereunder
shall be construed as covenants, not conditions; and, except as may be otherwise
expressly provided in this Lease, Tenant may not terminate this Lease for breach
of Landlord's obligations hereunder.
Notwithstanding the foregoing, if any claimed Landlord default hereunder
will immediately, materially and adversely affect Tenant's ability to conduct
its business in the Premises (a "MATERIAL LANDLORD DEFAULT"), Tenant shall, as
soon as reasonably possible, but in any event within 2 business days of
obtaining knowledge of such claimed Material Landlord Default, give Landlord
written notice of such claim and telephonic notice to Tenant's principal contact
with Landlord. Landlord shall then have 2 business days to commence cure of such
claimed Material Landlord Default and shall diligently prosecute such cure to
completion. If such claimed Material Landlord Default is not a default by
Landlord hereunder, or if Tenant failed to give Landlord the notice required
hereunder within 2 business days of learning of the conditions giving rise the
claimed Material Landlord Default, Landlord shall be entitled to recover from
Tenant, as Additional Rent, any costs incurred by Landlord in connection with
such cure in excess of the costs, if any, that Landlord' would otherwise have
been liable to pay hereunder. If Landlord fails to commence, cure of any claimed
Material Landlord Default as provided above, Tenant may commence and prosecute
such cure to completion, and shall be entitled to recover the costs of such cure
(but not any consequential of other damages) from Landlord, to the extent of
Landlord's obligation to cure such claimed Material Landlord Default hereunder,
subject to the limitations set forth in the immediately preceding sentence of
this paragraph and the other provisions of this Lease.
All obligations of Landlord under this Lease will be binding upon
Landlord only during the period of its ownership of the Premises and not
thereafter. The term "LANDLORD" in this Lease shall mean only the owner, for the
time being of the Premises, and upon the transfer by such owner of its interest
in the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord
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thereafter accruing, but such obligations shall be binding during the Term upon
each new owner for the duration of such owner's ownership.
32. INSPECTION AND ACCESS. Landlord and its agents, representatives, and
contractors may enter the Premises at any reasonable time to inspect the
Premises and to make such repairs as may be required or permitted pursuant to
this Lease and for any other business purpose. Landlord and Landlord's
representatives may enter the Premises during business hours on not less than 48
hours advance written notice (except in the case of emergencies in which case no
such notice shall be required and such entry may be at any time) for the purpose
of effecting any such repairs, inspecting the Premises, showing the Premises to
prospective purchasers and, during the last six months of the Term, to
prospective tenants or for any other business purpose. Landlord may erect during
the last six months of the Term a suitable sign on the Premises stating the
Premises are available to let or that the Project is available for sale.
Landlord may grant easements, make public dedications, designate common areas
and create restrictions on or about the Premises, provided that no such
easement, dedication, designation or restriction materially, adversely affects
Tenant's use or occupancy of the Premises for the Permitted use. At Landlord's
request, Tenant shall execute such instruments as may be necessary for such
easements, dedications or restrictions. Tenant shall at all times, except in the
case of emergencies, have the right to escort Landlord or its agents,
representatives, contractors or guests while the same are in the Premises,
provided such escort does not materially and adversely affect Landlord's access
rights hereunder.
33. SECURITY. Tenant acknowledges and agrees that security devices and
services, if any, while intended to deter crime may not in given instances
prevent theft or other criminal acts and that Landlord is not providing any
security services with respect to the Premises. Tenant agrees that Landlord
shall not be liable to Tenant for, and Tenant waives any claim against Landlord
with respect to, any loss by theft or any other damage suffered or incurred by
Tenant in connection with any unauthorized entry into the Premises or any other
breach of security with respect to the Premises. Tenant shall be solely
responsible for the personal safety of Tenant's officers, employees, agents,
contractors, guests and invitees while any such person is in, on or about the
Premises and/or the Project. Tenant shall at Tenant's cost obtain insurance
coverage to the extent Tenant desires protection against such criminal acts.
34. FORCE MAJEURE. Landlord shall not be held responsible for delays in
the performance of its obligations hereunder when caused by strikes, lockouts,
labor disputes, weather, natural disasters, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls, delay in issuance of permits,
enemy or hostile governmental action, civil commotion, fire or other casualty,
and other causes beyond the reasonable control of Landlord ("FORCE MAJEURE").
35. BROKERS, ENTIRE AGREEMENT, AMENDMENT. Landlord and Tenant each
represent and warrant that it has not dealt with any broker, agent or other
person (collectively "BROKER") in connection with this transaction and that no
Broker brought about this transaction, other than Xxxxxx, Xxxxxxxx & Xxxxxx Inc.
and Alexander Commercial Real Estate. Landlord and Tenant each hereby agree to
indemnify and hold the other harmless from and against any claims by any other
Broker claiming a commission or other form of compensation by virtue of having
dealt with Tenant or Landlord, as applicable, with regard to this leasing
transaction. This Lease may not be amended except by an instrument in writing
signed by both parties hereto.
36. LIMITATION ON LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING SET
FORTH HEREIN OR IN ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE
CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO, TENANT OR ANY OTHER PERSON FOR
(AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS, DAMAGE OR
INJURY, WHETHER ACTUAL OR CONSEQUENTIAL TO: TENANT'S PERSONAL PROPERTY OF EVERY
KIND AND DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT,
INVENTORY, SCIENTIFIC RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS,
PRODUCT, SPECIMENS, SAMPLES, AND/OR SCIENTIFIC, BUSINESS, ACCOUNTING
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AND OTHER RECORDS OF EVERY KIND AND DESCRIPTION KEPT AT THE PREMISES AND ANY AND
ALL INCOME DERIVED OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL
RECOURSE TO LANDLORD FOR ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR
ARISING IN ANY WAY UNDER THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD AND
TENANT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND ANY LIABILITY OF LANDLORD
HEREUNDER SHALL BE STRICTLY LIMITED SOLELY TO LANDLORD'S INTEREST IN THE
PROJECT, AND IN NO EVENT SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST
LANDLORD IN CONNECTION WITH THIS LEASE NOR SHALL ANY RECOURSE BE HAD TO ANY
OTHER PROPERTY OR ASSETS OF LANDLORD OR ANY OF LANDLORD'S OFFICERS, EMPLOYEES,
AGENTS OR CONTRACTORS. UNDER NO CIRCUMSTANCES SHALL LANDLORD OR ANY OF
LANDLORD'S OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE FOR INJURY TO
TENANT'S BUSINESS OR FOR ANY LOSS OF INCOME OR PROFIT THEREFROM.
37. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that event,
it is the intention of the parties hereto that the remainder of this Lease shall
not be affected thereby. It is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is illegal, invalid
or unenforceable, there be added, as a part of this Lease, a clause or provision
as similar in terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.
38. SIGNS; EXTERIOR APPEARANCE. Tenant shall not, without the prior
written consent of Landlord, which may be granted or withheld in Landlord's sole
discretion: (i) attach any awnings, exterior lights, decorations, balloons,
flags, pennants, banners, painting or other projection to any outside wall of
the Project, (ii) use any curtains, blinds, shades or screens other than
Landlord's standard window coverings, (iii) coat or otherwise sunscreen the
interior or exterior of any windows, (iv) place any bottles, parcels, or other
articles on the window xxxxx, (v) place any equipment, furniture or other items
of personal property on any exterior balcony, (vi) paint, affix or exhibit on
any part of the Premises or the Project any signs, notices, window or door
lettering, placards, decorations, or advertising media of any type which can be
viewed from the exterior of the Premises. Interior signs on doors and the
directory tablet shall be inscribed, painted or affixed for Tenant by Landlord
at the sole cost and expense of Tenant, and shall be of a size, color and type
acceptable to Landlord. Nothing may be placed on the exterior of corridor walls
or corridor doors other than Landlord's standard lettering. The directory tablet
shall be provided exclusively for the display of the name and location of
tenants.
39. RIGHT TO EXPAND
(a) EXPANSION IN THE PROJECT. Tenant shall have the right, but not the
obligation, to expand the Premises (the "EXPANSION RIGHT") to include any space
available in the Project (the "EXPANSION SPACE") upon the terms and conditions
in this Section. In the event a vacancy occurs, Landlord shall deliver to Tenant
(and to each other tenant in the Project having an expansion right) written
notice (the "EXPANSION NOTICE") of the availability of such portion of the
Expansion Space, together with the terms and conditions on which Landlord is
prepared to lease to Tenant such portion of the Expansion Space. All other terms
and conditions shall be as set forth in this Lease. Tenant shall have 10
business days following delivery of the Expansion Notice to deliver to Landlord
written notification of Tenant's exercise of the Expansion Right. Provided that
no prior right to expand is exercised by any of Xxxx Xxxxxxxxxx Cancer Research
Center, Corixa or The Hope Heart Institute, Tenant shall be entitled to lease
such Expansion Space upon the terms and conditions set forth in the Expansion
Notice. In the event Tenant fails to timely deliver such notice, or if Landlord
and Tenant are unable to agree upon any of the terms of the lease agreement for
such portion of the Expansion Space after negotiating in good faith for a period
of 60 days from the date Tenant gives notice, Tenant shall be deemed to have
waived any right to lease such portion of the Expansion Space, unless and until
such portion of the Expansion Space again becomes vacant following a tenancy.
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(b) AMENDED LEASE. If: (i) Tenant fails to timely deliver notice
accepting the terms of a Expansion Notice, or (ii) after the expiration of the
60 day period described in Section 39.1 no lease agreement for the Expansion
Space has been executed, and Landlord tenders to Tenant an amendment to this
Lease setting forth the terms for the rental of the Expansion Space consistent
with those set forth in the Expansion Notice and otherwise consistent with the
terms of this Lease and Tenant fails to execute such Lease amendment within ten
business days following such tender, Tenant shall be deemed to have waived its
right to lease such Expansion Space.
(c) EXCEPTIONS. Notwithstanding the above, the Expansion Right shall not
be in effect and may not be exercised by Tenant:
(i) during any period of time that Tenant is in Default under
any provision of the Lease; or
(ii) if Tenant has been in Default under any provision of the
Lease 3 or more times, whether or not the Defaults are cured, during the
12 month period prior to the date on which Tenant seeks to exercise the
Expansion Right
(d) SUBORDINATE. Tenant's rights in connection with the Expansion Right
are and shall be subject to and subordinate to any expansion or extension rights
granted in the Project to Corixa, Xxxx Xxxxxxxxxx Cancer Research Center and The
Hope Heart Institute.
(e) TERMINATION. The Expansion Right shall terminate and be of no
further force or effect even after Tenant's due and timely exercise of the
Expansion Right, if, after such exercise, but prior to the commencement date of
the Expansion Space, (i) Tenant fails to timely cure any Default by Tenant under
the Lease; or (ii) Tenant has Defaulted 3 or more times during the period. from
the date of the exercise of the Expansion Right to the date of the commencement
of the Expansion Space, whether or not such Defaults are cured.
(f) RIGHTS PERSONAL. Expansion Rights are personal to Tenant and are not
assignable except to a Permitted Assignee without Landlord's consent, which may
be granted or withheld in Landlord's sole discretion.
(g) NO EXTENSIONS. The period of time within which any Expansion Rights
may be exercised shall not be extended or enlarged by reason of the Tenant's
inability to exercise the Expansion Rights.
40. RIGHT TO EXTEND TERM. Tenant shall have the right to extend the Term
of the Lease upon the following terms and conditions:
(a) EXTENSION RIGHTS. Tenant shall have 2 consecutive rights (each, an
"EXTENSION RIGHT") to extend the Term of this Lease for 5 years each (each, an
"EXTENSION TERM") on the same terms and conditions as this Lease by giving
Landlord written notice of its election to exercise each Extension Right at
least 6 months prior to the expiration of the initial Term of the Lease or the
expiration of any prior Extension Term.
During any Extension Term, Base Rent shall be payable at the Market Rate
(as defined below). Base Rent shall be adjusted on each annual anniversary of
the commencement of such Extension Term by the rent Adjustment Percentage. As
used herein, "Market Rate" shall mean the then market rental rate as determined
by Landlord and agreed to by Tenant, which shall in no event be less than 103%
of the Base Rent payable as of the date immediately preceding the commencement
of such Extension Term.
If, on or before the date which is 120 days prior to the expiration of
the initial Term of this Lease, or the expiration of any Extension Term, Tenant
has not agreed with Landlord's determination of the Market Rate after
negotiating in good faith, Tenant may by written notice to Landlord elect
arbitration as
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described in Section 41(b) below. If Tenant does not elect such arbitration,
Tenant shall be deemed to have waived any right to extend, or further extend,
the Term of the Lease and all of the remaining Extension Rights shall terminate.
(b) ARBITRATION.
(i) Within 10 days of Tenant's notice to Landlord of its
election to arbitrate Market Rate and escalations, each party shall
deliver to the other a proposal containing the Market Rate and
escalations that the submitting party believes to be correct ("EXTENSION
PROPOSAL"). If either party fails to timely submit an Extension
Proposal, the other party's submitted proposal shall determine the Base
Rent for the Extension Term. If both parties submit Extension Proposals,
then Landlord and Tenant shall meet within 7 days after delivery of the
last Extension Proposal and make a good faith attempt to mutually
appoint a single Arbitrator to determine the Market Rate and
escalations. If Landlord and Tenant are unable to agree upon a single
Arbitrator, then each shall, by written notice delivered to the other
within 10 days after the meeting, select an Arbitrator. If either party
fails to timely giver notice of its selection for an Arbitrator, the
other party's submitted proposal shall determine the Base Rent for the
Extension Term. The 2 Arbitrators so appointed shall, within 5 business
days after their appointment, appoint a third Arbitrator. If the 2
Arbitrators so selected cannot agree on the selection of the third
Arbitrator within the time above specified, then either party, on behalf
of both parties may request such appointment of such third Arbitrator by
application to any state court of general jurisdiction in the
jurisdiction in which the Premises are located, upon 10 days prior
written notice to the other party of such intent.
(ii) The decision of the Arbitrator(s) shall be made within 30
days after the appointment of a single Arbitrator or the third
Arbitrator, as applicable. The decision of the single Arbitrator or
majority of the 3 Arbitrators shall be final and binding upon the
parties. Each party shall pay the fees and expenses of the Arbitrator
appointed by or on behalf of such party and the fees and expenses of the
third Arbitrator shall be borne equally by both parties. If the Market
Rate and escalations are not determined by the first day of the Renewal
Term, then Tenant shall pay Landlord Base Rent in an amount equal to the
Base Rent in effect immediately prior to the Renewal Term until such
determination is made. After the determination of the Market Rate and
escalations, the parties shall make any necessary adjustments to such
payments made by Tenant. Landlord and Tenant shall then execute an
amendment recognizing the Market Rate and escalations for the Renewal
Term.
(iii) An "ARBITRATOR" shall be any person appointed by or on
behalf of either party or appointed pursuant to the provisions hereof
and: (i) shall be (A) a member of the American Institute of Real Estate
Appraisers with not less than 10 years of experience in the appraisal of
improved office and high tech industrial real estate in the greater
Seattle metropolitan area, or (B) a licensed commercial real estate
broker with not less than 15 years experience representing landlords
and/or tenants in the leasing of high tech or life sciences space in the
greater Seattle metropolitan area, (ii) devoting substantially all of
their time to professional appraisal or brokerage work, as applicable,
at the time of appointment and (iii) be in all respects impartial and
disinterested.
(c) RIGHTS PERSONAL. Extension Rights are personal to Tenant and are not
assignable except to a Permitted Assignee without Landlord's consent, which may
be granted or withheld in Landlord's sole discretion.
(d) EXCEPTIONS. Notwithstanding anything set forth above to the
contrary, Extension Rights shall not be in effect and Tenant may not exercise
any of the Extension Rights:
(i) during any period of time that Tenant is in Default under
any provision of this Lease; or
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(ii) if Tenant has been in Default under any provision of this
Lease 3 or more times, whether or not the Defaults are cured during the
12 month period immediately prior to the date that Tenant intends to
exercise an Extension Right, whether or not the Defaults are cured.
(e) NO EXTENSIONS. The period of time within which any Extension Rights
may be exercised shall not be extended or enlarged by reason of the Tenant's
inability to exercise the Extension Rights.
(f) TERMINATION. The Extension Rights shall terminate and be of no
further force or effect even after Tenant's due and timely exercise of an
Extension Right, if, after such exercise, but prior to the commencement date of
an Extension Term, (i) Tenant fails to timely cure any Default by Tenant under
this Lease; or (ii) Tenant has Defaulted 3 or more times during the period from
the date of the exercise of an Extension Right to the date of the commencement
of the Extension Term, whether or not such Defaults are cured.
41. MISCELLANEOUS.
(a) NOTICES. All notices or other communications between the parties
shall be in writing and shall be deemed duly given upon receipt or refusal to
accept delivery by the addressee thereof if delivered in person, or one business
day after being deposited for delivery to the party to whom notice is to be
given with a reputable overnight guaranty courier, addressed and sent to the
parties at their addresses set forth above. Landlord and Tenant may from time to
time by written notice to the other designate another address for receipt of
future notices.
(b) JOINT AND SEVERAL LIABILITY. If and when included within the term
"TENANT," as used in this instrument, there is more than one person or entity,
each shall be jointly and severally liable for the obligations of Tenant.
(c) FINANCIAL INFORMATION. Tenant shall furnish Landlord with true and
complete copies of (i) Tenant's most recent audited annual financial statements
within 30 days of the end of each of Tenant's fiscal years during the Term, (ii)
at Landlord's request from time to time, updated business plans, including cash
flow projections, and/or pro forma balance sheets and income statements, all of
which shall be treated by Landlord as confidential information belonging to
Tenant, (iii) corporate brochures and/or profiles prepared by Tenant for
prospective investors, and (iv) any other financial information or summaries
that Tenant typically provides to its lenders or shareholders.
(d) RECORDATION. Neither this Lease nor a memorandum of lease shall be
filed by or on behalf of Tenant in any public record. Landlord may prepare and
file, and upon request by Landlord Tenant will execute, a memorandum of lease.
(e) INTERPRETATION. The normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease or any exhibits or amendments
hereto. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
(f) NOT BINDING UNTIL EXECUTED. The submission by Landlord to Tenant of
this Lease shall have no binding force or effect, shall not constitute an option
for the leasing of the Premises, nor confer any right or impose any obligations
upon either party until execution of this Lease by both parties.
(g) LIMITATIONS ON INTEREST. It is expressly the intent of Landlord and
Tenant at all times to comply with applicable law governing the maximum rate or
amount of any interest payable on or in connection with this Lease. If
applicable law is ever judicially interpreted so as to render usurious any
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interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder.
(h) CHOICE OF LAW. Construction and interpretation of this Lease shall
be governed by the internal laws of the state in which the Premises are located,
excluding any principles of conflicts of laws.
(i) TIME. Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(j) INCORPORATION BY REFERENCE. All exhibits and addenda attached hereto
are hereby incorporated into this Lease and made a part hereof. If there is any
conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
[SIGNATURES BEGIN ON THE NEXT PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT:
XCYTE THERAPIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxx Xxxxxxxx
--------------------------------------
Its: President & CEO
-------------------------------------
LANDLORD:
ALEXANDRIA REAL ESTATE EQUITIES, INC., a
Maryland corporation
By: /s/ Xxxx Xxxx Xxxxxxx
--------------------------------------
Its: General Counsel
-------------------------------------
[Notary seal]
[Signature of Notary]
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