Ex-10.44
SINGLE-TENANT FULLY-NET LEASE AGREEMENT
(10996 TORREYANA ROAD)
This Single-Tenant Fully-Net Lease Agreement (this "Lease") is entered
into as of January 17, 2002, between 00000 XXXXXXXXX XXXX, L.P., a California
limited partnership ("Landlord"), and IDEC Pharmaceuticals Corporation, a
Delaware corporation ("Tenant"), who agree as follows:
1. Agreement to Let. Effective one day following the date
("Commencement Date") the Conditions Precedent (as defined below) are satisfied,
Landlord shall lease to Tenant and Tenant shall lease from Landlord, the land
and improvements (including all parking areas, driveways and access areas)
located on the real property described on the attached Exhibit "A" (the
"Premises"). The effectiveness of this Lease is conditioned on the satisfaction
(or waiver) of all of the following Conditions on or before February 15,2002
("Outside Date"):
(i) Acquisition by Landlord of the Premises in accordance with the
purchase and sale agreement dated as of September 24, 2001, by and
between Trade Service Corporation, as Seller, and X.X. Xxxxxxxx, Inc.,
as Purchaser, as amended from time to time (the "Purchase Condition");
(ii) Funding of the Loan described in Section 2.8 below (the "Loan
Condition");
(iii) Approval by Landlord of Tenant's conceptual plans and
specifications for Tenant's Work, as defined below, to the extent
submitted to Landlord on or before January 31, 2002 ("Plan Approval
Condition"); and
(iv) The delivery by Landlord to Tenant of the Premises in vacant,
broom-clean condition and, in any event, in substantially the same
condition as existed on the date of this Lease; provided, however, that
Landlord and Tenant acknowledge and agree that the property and items
described on Exhibit "B" attached hereto shall remain in the building
located on the Premises on the Commencement Date (collectively, the
"Delivery Condition"). Landlord agrees to use diligent efforts to cause
any existing occupants of the Premises to vacate the Premises prior to
the Outside Date, including instituting court action, if necessary.
The Purchase Condition, Loan Condition, Plan Approval Condition and Delivery
Condition are collectively referred to in this Lease as the "Conditions
Precedent". After the Outside Date, and until all of the Condition Precedents
are satisfied or waived, each of Landlord and Tenant, in its sole and absolute
discretion, shall have the on-going right, without any liability whatsoever, to
terminate this Lease upon written notice to the other, but such termination
shall only be effective if the Condition Precedent remains unsatisfied 15 days
after the giving of such written notice. Upon such termination, the parties
shall be relieved of all further obligations under this Lease except for those
obligations which, by their terms, survive the expiration or sooner termination
of this Lease.
2. Principal Lease Provisions and Definitions. The following are
the principal lease provisions of this Lease. Other portions of this Lease
explain and define these principal lease provisions in more detail and should be
read in conjunction with this Article.
2.1. "Basic Monthly Rent" means One Hundred Forty-Five
Thousand Fifty-Seven and 50/100 Dollars ($145,057.50), as increased by
four percent (4.0%) on each anniversary of the Rent Commencement Date
(as defined in Section 2.9).
2.2. "Expiration Date": The fourth (4th) anniversary of
the Commencement Date; provided, however, that Tenant shall have the
right to terminate this Lease effective at any time during the Term
after the second (2nd) anniversary of the Commencement Date by giving
Landlord not less than nine (9) months advance written notice prior to
the termination effective date. As used herein, the term "Expiration
Date" shall also include the effective date of any such earlier
termination of this Lease by Tenant in accordance with this Lease.
2.3. Notice Address for Tenant: IDEC Pharmaceuticals
Corporation, Attn: Xxxxxxx Xxxxxxxxx and Corporate Secretary, 0000
Xxxxxx Xxxx, Xxx Xxxxx, XX 00000; telecopy: (000) 000-0000, with a
concurrent copy of all notices to: Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx
LLP, 000 X. Xxxxxxxx, 0xx Xxxxx, Xxx Xxxxx, XX 00000; Attn: V. Xxxxx
Xxxxxx.
2.4. Notice and Payment Address for Landlord: 00000
Xxxxxxxxx Xxxx, L.P., X.X. Xxx 0000, Xxx Xxx, Xxxxxxxxxx, 00000, with a
concurrent copy of all notices to: Vanguard Law Group, LLP, Attn:
Xxxxxxx Xxxxxxxxx, 0000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
XX 00000.
2.5. "Permitted Use" means Tenant's use of the Premises
for general office, administration, and research and development, all
in accordance with applicable laws and regulations and covenants,
conditions and restrictions governing the Premises; provided, however,
Tenant may not perform research and development with actual chemical
compounds except to the extent it first obtains Landlord's approval
(which may not unreasonably be withheld, conditioned, or delayed) of an
Operations Plan detailing a list of all chemicals (including all codes
and classifications) and equipment (including specific make, model, and
specifications) to be used, and identifying the manner and location on
the Premises of such use. Landlord's approval of an Operations Plan may
be subject to Landlord's reasonable requirement that certain
prophylactic measures be taken by Tenant to protect the Premises.
2.6. Intentionally Omitted.
2.7. Landlord's Work: As soon as reasonably practicable,
after receiving notice to do so from any applicable governmental agency
(or notice from Tenant to do so to meet the imminent needs of a
disabled employee of Tenant), Landlord shall take all steps to cause
the exterior Premises to comply with the Americans With Disabilities
Act of 1990 (42 U.S.C. 12181 et seq.) and California's Title 24
requirements (the "ADA") ("Landlord's Work"). Landlord's Work
additionally includes the work necessary to comply with an applicable
ADA notice from a governmental agency with respect to the interior of
the Premises, but only if such notice is not the result (directly or
indirectly) of any acts of Tenant, Tenant's Invitees or employees
(e.g., the direct result of a visit to the Premises by an inspector
reviewing work performed by or on behalf of Tenant or the direct result
of a complaint by an employee, customer or visitor of Tenant; or the
indirect result of a visit to the Premises by an inspector reviewing
work performed by or on behalf of Tenant on one side of the building,
and who visits the bathrooms on the other side of the building and
determines they are ADA deficient and issues a notice of non-compliance
with respect thereto. However, if through no actions by Tenant or
Tenant's Invitees or employees, there is a random inspection by a
governmental agency of the interior of the Premises resulting in a
deficiency notice, then the work necessary to comply with that notice
would be Landlord's Work). Tenant shall reimburse Landlord twenty-five
percent (25%) of all actual, documented and reasonable costs incurred
by Landlord in performing Landlord's Work, but only up to a maximum
reimbursement of Twenty-Five Thousand Dollars ($25,000.00) payable by
Tenant within thirty (30) days after Landlord's presentation to Tenant
of a reasonably particularized invoice evidencing such costs actually
paid by Landlord and evidencing that the work was adequately completed.
2.8. "Loan" means the loan to be made by Tenant, or an
affiliate of Tenant, to Landlord concurrent with Landlord's acquisition
of the Premises, subject, however, to satisfaction of the "Closing
Conditions" described in the Loan.
2.9. "Rent Abatement" means Tenant's right to xxxxx
payment of its Basic Monthly Rent for the period beginning on the
Commencement Date and expiring on the earliest of the following (the
"Rent Commencement Date"): (a) 60 days after the Commencement Date; (b)
the day on which Tenant begins business operations from the Premises;
and (c) the day on which Tenant's Work is substantially completed such
that Tenant is able to commence normal business operations from the
Premises. The Rental Commencement Date shall mean that date which is
one (1) day following the date the Rent Abatement period expires.
2.10. "Tenant's Work" means that certain work that may be
performed by Tenant on the Premises in substantial accordance with any
conceptual plans and specifications approved by Landlord and Tenant
prior to the Commencement Date (the "Pre-Approved Plans"). At its sole
cost, Tenant shall have the right (but not the obligation) to perform
Tenant's Work and to otherwise improve the Premises with the tenant
improvements reasonably necessary for Tenant to conduct its business on
the Premises. Tenant's Work must be made in compliance with Article 12
below and Tenant is solely responsible for the construction of Tenant's
Work, including cost, timing and quality. Landlord will have no
liability for any delays or defects in Tenant's Work.
3. Term. The term of this Lease (the "Term") commences on the
Commencement Date and expires on the Expiration Date, subject to earlier
termination in accordance with this Lease.
4. Possession. Tenant is entitled to possession of the Premises
on the Commencement Date. Tenant has thoroughly inspected and measured the
Premises and accepts the Premises in its as-is condition with no right to
require Landlord to perform any work on the Premises (subject to any specific
obligations of Landlord explicitly set forth elsewhere in this Lease).
5. Use of Premises.
5.1. Permitted Use of Premises. Tenant may use the
Premises for the Permitted Use and for no other use. Any change in the
Permitted Use requires Landlord's prior written consent, which consent
may not be unreasonably withheld, conditioned or delayed. Tenant shall
comply with all laws concerning Tenant's specific use of the Premises,
including, subject to the terms hereof, the obligation at Tenant's sole
cost to alter, maintain, and restore the Premises in compliance with
all applicable laws applicable to Tenant's specific use of the
Premises, even if the laws are enacted after the date of this Lease,
even if compliance entails costs to Tenant of a substantial nature, and
even if compliance requires structural alterations. Such obligation to
comply with laws includes compliance with the ADA if required to do so
by an applicable governmental agency (subject to the terms hereof,
including, but not limited to, Landlord's obligations to perform
Landlord's Work). If Tenant's particular use of the Premises results in
the need for modifications or alterations, then Tenant shall promptly
cause the completion of such modifications and alterations, at Tenant's
sole cost, in accordance with Article 12 below. Tenant may not do,
bring, or keep anything in or about the Premises that will cause a
cancellation of any insurance covering the Premises. Furthermore,
Tenant covenants and agrees that no noxious or offensive activity may
be carried on, in, on, or around the Premises, nor may anything be done
or kept in, on, or around the Premises which may be or become a public
nuisance or which may cause disturbance to others on adjacent or nearby
property. Neither Tenant nor Tenant's agents, owners, employees,
contractors, licensees, guests, service-providers, customers, or
invitees (collectively, "Tenant's Invitees") may do anything that will
cause damage or waste. No machinery, apparatus, or other appliance may
be used or operated in or on the Premises that will in any manner
injure, vibrate, or shake all or any part of the Premises. Landlord and
Tenant acknowledge and agree that Tenant's obligation to alter,
maintain and restore the Premises as provided above is subject to the
other terms and provisions of this Lease including, but not limited to,
Articles 7 and 9.
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5.2. Signs. Tenant may install and modify signage on the
Premises, including any existing monument, subject to Landlord's prior
written consent, which consent may not be unreasonably withheld,
conditioned or delayed. Tenant shall, at Tenant's sole cost, make any
changes to any Tenant installed sign on the Premises as required by any
new or revised applicable laws, ordinances, rules, regulations or
covenants governing the Premises. Tenant shall maintain, repair, and
replace all of Tenant's signs in first class condition and shall, on or
before the Expiration Date or earlier termination of this Lease, remove
all of its signage from the Premises and restore the Premises to their
pre-signage condition.
6. Monthly Rent. Subject to the Rent Abatement, Tenant shall pay
to Landlord as minimum monthly rent, without, except as otherwise expressly
provided in this Lease, deduction, setoff, prior notice, or demand, the Basic
Monthly Rent in advance, on or before the first day of each calendar month
throughout the Term commencing on the Commencement Date. All monetary
obligations of Tenant under this Lease constitute "rent" under this Lease.
Notwithstanding references in this Lease to the size(s) of all or portions of
the Premises, no rent under this Lease is affected by the actual measurement of
the Premises.
7. Operating Expenses.
7.1. Definition of Operating Expenses. Tenant is
responsible for payment of all Operating Expenses of the Premises,
beginning on the Commencement Date; provided however, that Landlord and
Tenant acknowledge and agree that the aggregate amount of all Operating
Expenses paid by Tenant during the Rent Abatement period described in
Section 2.9 above, other than Insurance Expenses, water, sewage
disposal, refuse collection and disposal, gas and electricity, shall be
credited towards the first (1st) installment of Basic Monthly Rent
payable by Tenant under this Lease. As used in this Lease, the term
"Operating Expenses" means all costs and expenses paid or incurred by
Landlord or Tenant relative to the operation, repair, restoration,
replacement, maintenance, and management of the Premises, including:
(i) water, sewage disposal, drainage, refuse collection and disposal,
gas, electricity, and other utility services, and the maintenance of
all components, systems, and apparatus by which such utilities and
services are provided, (ii) general maintenance, repair and replacement
of the landscaping, structural and nonstructural components of the
improvements located on the Premises, janitorial, and security services
(if any), (iii) expenses payable by Landlord pursuant to the provisions
of any recorded Covenants, Conditions, and Restrictions, Reciprocal
Easement Agreements, and any other recorded documents affecting the
Premises, (iv) all real property or real estate taxes, assessments,
association dues, and other impositions, whether general, special,
ordinary, or extraordinary, and of every kind and nature, which may be
levied, assessed, imposed on the Premises ("Real Estate Taxes"), (v)
any personal property taxes, assessments, or other impositions levied,
assessed, or imposed upon any personal property of Tenant or Landlord
used in connection with the Premises, (vi) Insurance Expenses (as
defined below), (vii) a property management fee to Landlord or its
designee in the amount of two percent (2%) of Basic Monthly Rent
payable under this Lease, (viii) capital improvements or structural
modifications required by applicable laws or regulations governing the
Premises or other capital improvements or structural modifications
deemed reasonably necessary by Landlord and approved by Tenant (in
Tenant's sole and absolute discretion); provided, however, the costs of
any capital improvements or structural modifications which are
permitted hereunder and are not the direct result of Tenant's or
Tenant's Invitees' specific use of the Premises or Tenant's failure to
maintain the Premises in accordance with its obligations under this
Lease will, in any event, be amortized (including interest at the
Interest Rate) over the anticipated useful life of such capital
improvements or structural modifications. Notwithstanding anything to
the contrary herein, any Operating Expenses attributable to a period
which falls only partially within the Term of this Lease shall be
prorated between Landlord and Tenant so that Tenant shall pay only that
portion thereof which the part of such period within the Term bears to
the entire period. Operating Expenses shall be determined in accordance
with generally accepted accounting principles consistently applied.
Notwithstanding the foregoing, Operating Expenses do not include (i)
interest and principal payments and all other debt service (including but not
limited to brokerage fees and points) on all loans or indebtedness, whether or
not secured by the Premises; (ii) costs for which Landlord is reimbursed by
insurance proceeds or third parties; (iii) leasing commissions; (iv)
depreciation; (v) costs, fines, penalties or interest incurred due to Landlord's
(as opposed to the Premises') violation of any law or Landlord's failure to make
timely payments of any obligations under this Lease; (vi) salaries and benefits
for employees of Landlord; (vii) repairs made under guaranties or warranties
(i.e., at no cost to Landlord); (viii) any ground rents; (ix) sale and
refinancing costs, including attorneys' fees, brokerage commissions and other
marketing costs relating thereto; (x) any costs in connection with the
investigation, removal, remediation or abatement of Hazardous Materials (as
defined in Article 21 hereof) existing on the Premises before the Commencement
Date and costs due to violations of applicable environmental laws with respect
thereto; (xi) any amounts received by Landlord and/or paid by Tenant pursuant to
another provision of this Lease; and (xii) reserves of any kinds.
7.2. Payment of Operating Expenses. The parties intend
that Tenant pay all Operating Expenses directly to the respective
obligee to the extent feasible, except that Landlord will directly pay
the Real Estate Taxes and Insurance Expenses (other than those Tenant
pays directly) and the costs of maintenance of the landscaping, parking
lot, HVAC and other mechanical and plumbing systems, fire and sprinkler
systems, loading dock system, electrical systems up to local
distribution panels, elevator, and roof. Landlord's maintenance
contractor is subject to Tenant's approval, which may not unreasonably
be withheld, conditioned or delayed. Landlord intends to deliver to
Tenant (i) a monthly statement setting forth any actual Operating
Expenses (excluding Real Estate Taxes and Insurance Expenses) paid by
Landlord for the prior month ("Expense Statement"), and (ii) an annual
statement setting forth the estimated Real Estate Taxes, Insurance
Expenses (other than those for which Tenant pays directly) and property
management fees for the applicable year ("Tax and Insurance
Statement"). Tenant shall pay Landlord the
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amount set forth in each Expense Statement within thirty (30) days of
receipt of the statement. Tenant shall pay one-twelfth of the amount
set forth in the Tax and Insurance Statement with each payment of Basic
Monthly Rent. Tenant's payment obligations under this Section 7.2
constitute additional rent under this Lease. If the sum of Tenant's
payments on account of Operating Expenses during any calendar year
exceeds the actual Operating Expenses for the calendar year, then the
excess will be paid directly to Tenant. If the sum of Tenant's
Operating Expense payments for any calendar year is less than the
actual Operating Expenses for the calendar year, then Tenant shall pay
Landlord the amount of the deficiency within thirty (30) days after
delivery of Landlord's statement reconciling the year's Operating
Expenses. Landlord's delay in delivering any Expense Statement or Tax
and Insurance Statement or reconciliation statement (if applicable)
will not release Tenant of its obligation to pay any portion of the
Operating Expenses. Tenant shall have the right to contest the legal
validity or amount of any personal property taxes or Real Estate Taxes
for which Tenant is responsible under this Lease and may institute such
proceedings as Tenant considers necessary. If Tenant contests any such
tax, assessment or charge, Tenant shall indemnify and hold harmless and
protect Landlord and the Premises from any liens, claims, liability and
damages incurred by Landlord in connection therewith.
7.3. Audit. If Tenant disputes the amount set forth in any
Expense Statement, then Tenant's employees or an independent certified
public accountant designated by Tenant, may, after reasonable notice to
Landlord and at reasonable times, inspect Landlord's records at
Landlord's offices pertaining to Landlord's calculation of Operating
Expenses. If, after such inspection, Tenant notifies Landlord in
writing that Tenant still disputes such amounts, a certification as to
the proper amount shall be made, at Tenant's expense, by an independent
certified public accountant selected by Tenant and reasonably approved
by Landlord and who is a member of a nationally or regionally
recognized accounting firm. If such certification by the accountant
proves that the Operating Expenses set forth in the Expense Statement
were overstated by more than three percent (3%), then Tenant's audit
costs, including the cost of such certification, shall be promptly paid
for by Landlord. Promptly following the parties receipt of such
certification, the parties shall make such appropriate payments or
reimbursements, as the case may be, to each other, as are determined to
be owing pursuant to such certification. Notwithstanding the foregoing,
Tenant may not dispute or audit any Expense Statement more than 180
days after its receipt of the applicable Expense Statement.
8. Utilities and Services. Tenant shall arrange for and pay the
cost of all utilities and services (including any connection charges and taxes
thereon) furnished to the Premises or used by Tenant, including electricity,
water, oil, sewer, gas, telephone, communication services, trash collection,
janitorial, cleaning, and window washing. If Landlord furnishes to the Premises
any of the utilities and services set forth in the preceding sentence, Tenant
shall reimburse Landlord for Landlord's actual and documented cost of furnishing
such utilities and services. Except as otherwise provided below, Landlord may
not be held liable for failure to furnish any utilities or services to the
Premises when such failure results from causes beyond Landlord's reasonable
control. If Landlord constructs new or additional utility facilities, including
wiring, plumbing, conduits, or mains, resulting from Tenant's changed or
increased utility requirements, Tenant shall promptly pay to Landlord the total
actual and documented cost of such items. The discontinuance of any utilities or
services, including Landlord's discontinuance or failure to provide any of the
utilities or services furnished by Landlord to the Premises, shall neither be
deemed an actual or constructive eviction, nor release Tenant from its
obligations under this Lease including Tenant's obligation to pay rent.
Notwithstanding anything above to the contrary, in the event that Tenant is
prevented from using, and does not use, the Premises or any portion thereof, for
three (3) consecutive business days (the "Eligibility Period") as a result of
(i) Landlord's failure to provide to the Premises any of the essential utilities
and services that may be provided by Landlord above, where such failure is due
to the negligence or intentional misconduct of Landlord, (ii) any construction,
repair, maintenance or alteration negligently performed by Landlord after the
Commencement Date (including, but not limited to, Landlord's Work (if any)), but
excluding work performed because of Tenant's failure to fulfill any of its
obligations under this Lease (iii) the presence of Hazardous Materials in, on or
about the Premises which were caused by Landlord or existed on the Premises
before the Commencement Date and which Hazardous Materials pose a material and
significant health risk to occupants of the Premises as determined by applicable
governmental authorities pursuant to applicable environmental laws by written
notice delivered to Landlord and/or Tenant, which notice specifically prohibits
occupancy of the Premises (or portions thereof) as a result of such Hazardous
Materials, and/or (iv) any entry onto the Premises by Landlord pursuant to
Article 20 below, then, in any such case, Tenant's obligation to pay Basic
Monthly Rent and Operating Expenses shall be equitably abated or reduced, as the
case may be, from and after the first (1st) day following the Eligibility Period
and continuing for such time that Tenant continues to be so prevented from
using, and does not use, the Premises or a portion thereof, in the proportion
that the area of the portion of the Premises that Tenant is prevented from
using, and does not use, bears to the total area of the Premises. To the extent
Tenant shall be entitled to abatement of rent because of a damage or destruction
pursuant to Article 17 or a taking pursuant to Article 18, then the Eligibility
Period shall not be applicable.
9. Maintenance. Tenant shall at its sole cost (i) maintain and
repair, all in good condition, all aspects and portions of the Premises, other
than the landscaping, parking lot, HVAC and other mechanical systems, elevator,
and roof (for which items Landlord is responsible as provided below and the
costs of which constitute, subject to the terms hereof, Operating Expenses),
(ii) arrange for the removal of trash from the Premises, and (iii) maintain a
pest and termite control service agreement with respect to the Premises,
reasonably acceptable to Landlord. Each party shall provide the other with
current copies of all of their respective maintenance, service and cleaning
contracts throughout the Term. Tenant is additionally liable for any damage to
the Premises resulting from the acts or omissions of Tenant or Tenant's Invitees
or any other person not controlled by Landlord. If Tenant fails to maintain or
repair, any portion of the Premises as provided above and, if such failure
continues for more than thirty (30) days after written notice thereof from
Landlord (unless Landlord reasonably determines such repairs are in the nature
of an emergency or require completion within a shorter period of time to protect
the Premises or comply with any law or regulation), then Landlord may maintain
or repair, any such portion of the Premises and Tenant shall promptly
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reimburse Landlord for Landlord's actual, documented and reasonable cost
thereof, which sums constitute additional rent under this Lease. Tenant waives
the provisions of California Civil Code Section 1942 (or any successor statute),
and any similar principals of law with respect to Landlord's obligations for
tenantability of the Premises and Tenant's right to make repairs and deduct the
expense of such repairs from rent. Promptly following written notice from
Tenant, Landlord shall (subject to reimbursement from Tenant in accordance with,
and subject to, Article 7) repair and maintain the structural parts of the
Building, including the exterior walls, foundations and the roof (including the
roof membrane) the elevators, mechanical systems, HVAC systems, landscaping and
parking lot(s). Landlord acknowledges and agrees that Tenant shall have the
right to cause Landlord to terminate any such maintenance contracts in the event
that Tenant, in Tenant's reasonable, good faith opinion, determines that the
maintenance is not being reasonably performed. In such event, Tenant shall have
the right to select substitute maintenance contractors (and shall have the right
to pre-approve the maintenance contracts). If Tenant provides written notice to
Landlord of an event or circumstance which requires the action of Landlord with
respect to the Landlord's repair obligations as described above, and Landlord
fails to provide or commence to provide such action as required by the terms of
this Lease within ten (10) days after receipt of such written notice (or such
longer period of time as is reasonable under the circumstances or such shorter
period of time as may be applicable in the event of an emergency), Tenant may
proceed to take the required action upon delivery of an additional three (3)
business days notice to Landlord (or within the applicable and appropriate time
period based on an emergency) specifying that Tenant is taking such required
action, and only if such action was required under the terms of this Lease to be
taken by Landlord at Landlord's expense without reimbursement from Tenant, then
Tenant shall be entitled to prompt reimbursement by Landlord of Tenant's costs
and expenses in taking such action plus interest at the Interest Rate (as
defined in Article 16 below) during the period from the date Tenant incurs such
costs and expenses until such time as payment is made by Landlord (which costs
and expenses shall be set forth in a reasonably particularized invoice) less,
however, any amounts that Tenant would have been responsible for as part of
Operating Expenses if the repair work would have been performed by Landlord and
would have been payable by Tenant. Tenant may utilize the services of any
qualified contractor which normally and regularly performs similar work in other
comparable projects in the general vicinity of the building, of similar age and
quality of construction. Further, if Landlord, within ten (10) days after
receipt of such invoice from Tenant (setting forth documented evidence of the
costs incurred and a reasonably particularized breakdown of its costs and
expenses in connection with taking such action on behalf of Landlord), fails to
pay the amount set forth in Tenant's invoice (less any amounts that Tenant would
have been responsible for as part of Operating Expenses if the repair work would
have been performed by Landlord and would have been payable by Tenant) then
Tenant shall be entitled to deduct from the Basic Monthly Rent payable by Tenant
under this Lease, such amount together with interest at the Interest Rate;
provided, however, that in no event shall Tenant be entitled to offset more than
fifty percent (50%) of the Basic Monthly Rent in any one (1) month during the
Term of this Lease under this Article 9.
Notwithstanding anything above or elsewhere in this Lease to the contrary,
Landlord and Tenant acknowledge and agree that in the event that Landlord is
required to make any repairs, improvements or modifications of a structural
and/or capital nature, the cost of any such structural and/or capital item shall
be amortized (including interest at the Interest Rate) over the anticipated
useful life of such structural or capital item and Tenant shall only be liable
for the amortized portion applicable during the Term of this Lease.
10. Insurance.
10.1. Public Liability and Property Damage Insurance.
Tenant shall maintain public liability and property damage insurance
(i) with a single combined liability limit and property damage limit of
not less than Three Million Dollars ($3,000,000.00), (ii) insuring (a)
against all liability of Tenant and Tenant's Invitees arising out of or
in connection with Tenant's use or occupancy of the Premises, including
products liability coverage, and (b) performance by Tenant of the
indemnity provisions set forth in this Lease, and (iii) naming
Landlord, its agents, and any lender holding a security interest in the
Premises ("Lender") as additional named insureds, and (c) with umbrella
coverage of Five Million Dollars ($5,000,000.00).
10.2. Fire and Extended Coverage Insurance. Tenant shall
maintain on Tenant's Alterations and Tenant's Personal Property (as
defined below) a policy of standard fire and extended coverage
insurance, with vandalism and malicious mischief endorsements, and
sprinkler leakage coverage, in each case to the extent of at least one
hundred percent (100%) of full replacement value (less commercially
reasonable deductibles), issued in the names of Landlord, Tenant, and
any Lenders, as their interests may appear. Such "full replacement
value" shall be determined by the company issuing such policy at the
time the policy is initially obtained.
10.3. Tenant's Insurance Generally. Insurance required to
be maintained by Tenant under this Lease: (i) shall be issued as a
primary policy (not contributed with, and in excess of coverage
Landlord may carry) by insurance companies authorized to do business in
California with a Best's Rating of at least "A" and a Best's Financial
Size Category rating of at least "XIV," as set forth in the most
current edition of "Best's Insurance Reports" (unless otherwise
approved by Landlord); (ii) shall name Landlord and any Lender as
additional named insureds, but the policy must provide that
notwithstanding the fact that Landlord is an additional insured, it is
entitled to recover under the policy for any loss suffered by Landlord
by reason of Tenant's negligence; (iii) shall consist of "occurrence"
based coverage, without provision for subsequent conversion to "claims"
based coverage; (iv) may not be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days' prior
written notice to Landlord and any Lender; and (v) may not provide for
a deductible or co-insurance provision in excess of Five Thousand
Dollars ($5,000.00). Tenant shall, at least sixty (60) days before the
expiration of each such policy, furnish Landlord with a renewal of or
"binder" extending the policy. Tenant shall promptly upon request
deliver to Landlord copies of such policy or policies or certificates
evidencing the existence and amounts of such insurance together with
evidence of payment of premiums. The insurance required to be
maintained by
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Tenant may be carried under blanket insurance policies. Notwithstanding
anything above to the contrary, the original Tenant executing this
Lease may elect to self-insure all or any part of such required
insurance so long as any such self-insurance substantially conforms to
the practice of large corporations maintaining systems of
self-insurance.
10.4. Landlord's Insurance. Landlord shall maintain the
following insurance, in such commercially reasonable amounts and with
such commercially reasonable limits as Landlord determines in its
reasonable discretion (including any insurance required by its Lender
and/or including such commercially reasonable amounts and limits
required by its Lender): (i) public liability and property damage
insurance (excluding earthquake coverage) and products liability
insurance; (ii) fire and extended coverage insurance, with vandalism
and malicious mischief endorsements, coverage with respect to increased
costs due to building ordinances, demolition coverage, and sprinkler
leakage coverage; (iii) boiler and machinery insurance; (iv) plate
glass insurance; and (v) rental interruption insurance. The insurance
required to be maintained by Landlord hereunder shall be issued by
insurance companies authorized to do business in California with a
Best's Rating of at least "A" and a Best's Financial Size Category
rating of at least "XIV," as set forth in the most current edition of
"Best's Insurance Reports". The premiums, costs, expenses, and
deductibles (or similar costs or charges) of or with respect to any
such insurance (all of the preceding, collectively, "Insurance
Expenses") are included in Operating Expenses; provided, however,
Tenant, upon notice to Landlord, shall have the right to separately
contract for all or any portion of the insurance required to be
maintained by Landlord hereunder and, in such event, Tenant shall
directly pay the costs of any Insurance Expense to the insurance
company. In the event Tenant elects to maintain any such insurance,
then such insurance shall name Landlord as the primary insured, and
Landlord's agents and any Lender as additional named insureds.
10.5. Waiver of Subrogation. Landlord and Tenant release
each other, Tenant's Invitees, and Landlord's guests, invitees,
customers and licensees (collectively, "Landlord's Invitees") from all
claims for damage, loss, or injury to the Premises, to Tenant's
Personal Property, and to the fixtures and Alterations of either
Landlord or Tenant in or on the Premises to the extent the damage, loss
or injury is covered by any insurance policies carried by Landlord and
Tenant and in force at the time of such damage. Landlord and Tenant
shall each use its best efforts to cause all insurance policies
obtained by it pursuant to this Lease to provide that the insurance
company waives all right of recovery by way of subrogation against
Landlord and Tenant in connection with any damage, loss, or injury
covered by such policy.
11. Taxes. Tenant shall pay before delinquency all taxes,
assessments, license fees, and other charges that are levied or assessed
against, or based on the value of, Tenant's personal property installed or
located in or on the Premises including trade fixtures, furnishings, equipment,
and inventory (collectively, "Tenant's Personal Property") and any real property
or real estate taxes, assessments, and other impositions, whether general,
special, ordinary, or extraordinary, and of every kind and nature, which may be
separately levied, assessed, imposed upon or with respect to the Premises.
(Section 7.2 provides that Tenant will pay directly to Landlord, in addition to
Base Monthly Rent, l/12th of all annual Real Estate Taxes due under this Lease
from which Landlord will make the real property tax payment). On written demand
by Landlord, Tenant shall furnish Landlord with satisfactory evidence of such
payments. If any such taxes, assessments, license fees, or other charges are
levied against Landlord or Landlord's property, or if the assessed value of the
Premises is increased by the inclusion of a value placed on Tenant's Personal
Property, then Tenant, within thirty (30) days after Landlord's written demand,
shall immediately reimburse Landlord for the sum of such taxes, assessments,
license fees, and other charges so levied against Landlord, or the proportion of
taxes resulting from such increase in Landlord's assessment, which amounts
constitute additional rent under this Lease. Landlord may pay such taxes,
assessments, license fees, or other charges or such proportion, and receive such
reimbursement, regardless of the validity of the levy.
12. Alterations. Tenant may make alterations, improvements,
additions, installations, or changes to the Premises (any of the preceding,
including Tenant's Work, are "Alterations") only if: (i) Tenant first obtains
Landlord's written consent, which consent may not unreasonably be withheld,
conditioned or delayed, and (ii) Tenant complies with all commercially
reasonable conditions which may be reasonably imposed by Landlord, and (iii)
Tenant pays to Landlord the actual, documented and reasonable costs and expenses
of Landlord for architectural, engineering, or other consultants which
reasonably may be incurred by Landlord in determining whether to approve any
such Alterations; provided, however, that Landlord's consent shall not be
required for Tenant's Work to the extent that Tenant's Work is performed in
substantial accordance with the Pre-Approved Plans to the extent they include
sufficiently detailed specifications. In addition, and notwithstanding the
foregoing, Landlord's prior approval shall not be required for any Alteration
which satisfies all of the following conditions (hereinafter a "Pre-Approved
Alteration"): (i) the costs of such Alteration does not exceed Fifty Thousand
Dollars ($50,000.00) individually; (ii) Tenant delivers to Landlord final plans,
specifications and working drawings for such Alteration at least ten (10) days
prior to commencement of the work thereof (if working drawings are prepared in
connection with the Alteration); and (iii) the Alteration does not adversely
affect the structural elements of the building located on the Premises, the base
mechanical systems of the building or the exterior elements of the Premises. At
least thirty (30) days before making any Alterations, Tenant shall submit to
Landlord, in written form, proposed detailed plans of such Alterations. Tenant
shall, before commencing any Alterations (including Tenant's Work), at Tenant's
sole cost, (i) acquire (and deliver to Landlord a copy of) a permit from the
appropriate governmental agencies (but only to the extent any such permit is
required to perform such Alterations (and any conditions of which permit (if
any) Tenant shall comply with, at Tenant's sole cost, in a prompt and
expeditious manner)), (ii) obtain and deliver to Landlord (unless this condition
is waived in writing by Landlord) a lien and completion bond or other security
acceptable to Landlord, to insure Landlord against any liability for mechanics'
liens and to ensure completion of the work (provided, however, that in no event
shall the original Tenant executing this Lease be obligated to provide such lien
and/or completion bond), (iii) provide Landlord with ten (10) days' prior
written notice of the date the installation of the Alterations is to commence
with an explicit reminder to Landlord to
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post and record an appropriate notice of non-responsibility, and (iv) obtain
(and deliver to Landlord proof of) reasonably adequate workers compensation
insurance with respect to any of Tenant's employees installing or involved with
such Alterations (which insurance Tenant shall maintain in force until
completion of the Alterations). Landlord may condition its consent to any
Alteration upon the requirement that such Alteration be removed upon the
expiration or earlier termination of this Lease. All Alterations other than
Tenant's trade fixtures (which, the parties agree, may be removed from the
Premises by Tenant at any time before termination of the Lease) and other than
those which Tenant is required to remove pursuant to the preceding sentence,
shall upon installation become the property of Landlord and shall remain on and
be surrendered with the Premises on termination of this Lease. Tenant shall pay
all costs for Alterations and other construction done or caused to be done by
Tenant and Tenant shall keep the Premises free and clear of all mechanics' and
materialmen's lien's resulting from or relating to any Alterations or other
construction.
13. Surrender of Premises and Holding Over. On the Expiration Date
or earlier termination of this Lease, Tenant shall (i) surrender to Landlord the
Premises in good and clean condition, along with all keys to the Premises
(including any keys to any exterior or interior doors), and (ii) remove all of
Tenant's Personal Property and perform all repairs and restoration required by
the removal of any Alterations (to the extent Tenant is required to remove such
Alterations pursuant to the preceding paragraph or to the extent that Tenant
elects, in its sole discretion, to remove Alterations) or Tenant's Personal
Property. Landlord may elect to retain or dispose of in any manner any
Alterations or Tenant's Personal Property that Tenant does not remove from the
Premises on the Expiration Date or earlier termination of this Lease as required
by this Lease by giving written notice to Tenant. Any such Alterations or
Tenant's Personal Property that Landlord elects to retain or dispose of will
vest in Landlord immediately on notice to Tenant. Tenant waives all claims
against Landlord for any damage to Tenant resulting from Landlord's retention or
disposition of any such Alterations or Tenant's Personal Property. Tenant is
liable to Landlord for Landlord's costs for storing, removing or disposing of
any such Alterations or Tenant's Personal Property. If Tenant fails to surrender
the Premises to Landlord on the Expiration Date or earlier termination of this
Lease, Tenant shall indemnify Landlord against all liabilities, damages, losses,
costs, expenses, attorneys' fees and claims resulting from such failure,
including any claim for damages made by a succeeding tenant. If Tenant, with
Landlord's consent, remains in possession of the Premises after the Expiration
Date or earlier termination of this Lease, such possession by Tenant shall be
deemed to be a month to month tenancy terminable on thirty (30) days' written
notice given at any time by Landlord or Tenant. During any such month to month
tenancy, Tenant shall pay, as Basic Monthly Rent, 110 percent of the Basic
Monthly Rent in effect immediately before the Expiration Date or earlier
termination of this Lease, as the case may be, unless Landlord and Tenant
mutually agree otherwise in writing. All provisions of this Lease other than
those pertaining to Term apply to such month to month tenancy. Notwithstanding
anything in Article 12 or this Article 13 to the contrary, Tenant shall have the
right to remove any Alterations from the Premises so long as Tenant repairs any
damage to the Premises caused by such removal.
14. Default. The occurrence of any of the following constitutes a
material default and breach of this Lease by Tenant:
14.1. Tenant's failure to make any payment of Basic Monthly
Rent within ten (10) days after written notice of such failure from
Landlord. No grace period before the imposition of a late charge
extends the date when such rent is due and payable, and Tenant is in
default under this Lease if such payment is not timely made.
14.2. Tenant's failure to make any payment of other rent
(other than Basic Monthly Rent) within ten (10) days after written
notice of such failure from Landlord.
14.3. Tenant's failure to observe or perform any other
provision of this Lease for a period of thirty (30) days after written
notice of such failure from Landlord to Tenant; provided, however, such
notice is in lieu of, and not in addition to, any notice required under
applicable unlawful detainer statute; and provided further, however,
that if the nature of Tenant's default is such that more than thirty
(30) days are required for its cure, then Tenant is not deemed to be in
default if Tenant commences such cure within the thirty (30) day period
and thereafter diligently prosecutes such cure to completion.
15. Landlord's Remedies. Landlord is entitled to the following
remedies if Tenant commits a default or breach under this Lease; these remedies
are not exclusive, but are cumulative and in addition to any remedies provided
elsewhere in this Lease, or now or later allowed by law.
15.1. Continuation of Lease. No act by Landlord (including
the acts set forth in the next sentence) terminates Tenant's right to
possession unless Landlord notifies Tenant in writing that Landlord
elects to terminate Tenant's right to possession. As long as Landlord
does not terminate Tenant's right to possession, Landlord may (i)
continue this Lease in effect, (ii) continue to collect rent when due
and enforce all the other provisions of this Lease, (iii) enter the
Premises and relet them, or any part of them, to third parties for
Tenant's account, for a period shorter or longer than the remaining
term of this Lease, and (iv) have a receiver appointed to collect rent
and conduct Tenant's business. Tenant shall immediately pay to Landlord
all actual, documented, and reasonable costs Landlord incurs to such
reletting, including brokers' commissions, attorneys' fees and
advertising costs. If Landlord elects to relet all or any porti on of
the Premises as permitted above, rent that Landlord receives from such
reletting will be applied to the payment of, in the following order and
priority, (i) any indebtedness from Tenant to Landlord other than Basic
Monthly Rent due from Tenant, (ii) all costs incurred by Landlord in
the reletting, and (iii) Basic Monthly Rent then due and unpaid under
this Lease. After applying the payments as referred to above, any sum
remaining from the rent Landlord receives from the reletting will be
held by Landlord and applied in payment of future rent as it becomes
due under this Lease. Tenant will not be entitled to any excess rent
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received by Landlord unless and until all obligations of Tenant under
this Lease, including all future obligations, are satisfied in full.
15.2. Termination of Tenant's Right to Possession. In the
event of such breach or default by Tenant, Landlord may terminate
Tenant's right to possession of the Premises at any time, by notifying
Tenant in writing that Landlord elects to terminate Tenant's right to
possession. On termination of this Lease, Landlord has the right to
recover from Tenant (i) the worth at the time of the award of the
unpaid rent which had been earned at the time of such termination, (ii)
the worth at the time of the award of the amount by which the unpaid
rent which would have been earned after such termination until the time
of award exceeds the amount of such loss of rent that Tenant proves
could have been reasonably avoided, (iii) the worth at the time of the
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 loss of rent
that Tenant proves could be reasonably avoided, and (iv) any other
amount necessary to compensate Landlord for all detriment proximately
caused by Tenant's failure to perform Tenant's obligations under this
Lease or in the ordinary course of things would be likely to result
therefrom. The "worth at the time of the award" of the amounts referred
to in Clauses (i) and (ii) above is to be computed by allowing interest
at the Interest Rate, as set forth below. The "worth at the time of the
award" of the amount referred to in Clause (iii) above is to be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award.
15.3. Landlord's Right to Cure Default. Landlord, at any
time after Tenant commits a default or breach under this Lease (and
such default continues beyond 30 days after notice, or such fewer days
if urgent), may cure such default or breach at Tenant's sole cost. If
Landlord at any time, by reason of Tenant's uncured default or breach,
pays any sum or does any act that requires the payment of any sum, such
sum shall be due immediately from Tenant to Landlord at the time such
sum is paid, and constitutes additional rent under this Lease.
15.4. Enforcement Costs. On demand, Tenant shall pay
Landlord all costs and expenses incurred by Landlord in connection with
collecting any amounts and damages owing by Tenant under this Lease, or
to enforce any provision of this Lease, including reasonable attorneys'
fees, whether or not any action is commenced by Landlord.
16. Interest and Late Charges. Late payment by Tenant to Landlord
of amounts due under this Lease will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which would be impracticable or
extremely difficult to fix. Costs include processing, collection and accounting
charges, and late charges that may be imposed on Landlord by the terms of any
deeds of trust covering the Premises. Therefore, if any rent or other payment is
not received by Landlord within ten (10) days after written notice from Landlord
to Tenant, then, without any requirement for notice to Tenant, Tenant shall pay
to Landlord an additional sum of five percent (5%) of such overdue amount as a
late charge. Such late charge represents a fair and reasonable estimate of the
costs that Landlord will incur by reason of any late payment by Tenant, and
therefore this Article 16 is reasonable under the circumstances existing at the
time this Lease is made. Acceptance of such late charge by Landlord does not
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies available
to Landlord under this Lease. In addition to the late charge payable by Tenant,
if any amount due by Tenant under this Lease is not paid within thirty (30) days
of the date such payment is due, then Tenant shall pay to Landlord interest on
the overdue rent at the rate equal to ten percent (10%) per annum (the "Interest
Rate"). All late charges and interest under this Article 16 constitute
additional rent under this Lease.
17. Destruction. If the Premises is totally or partially destroyed
during the Term, rendering the Premises totally or partially inaccessible or
unusable, then (i) Landlord shall, within ten (10) days after such damage,
notify Tenant in writing ("Landlord's Damage Notice") of the estimated time
(which estimate shall be based on a certification from a reputable, duly
licensed contractor) required to substantially complete the repair of such
damage (ii) Landlord shall, unless Tenant has elected to terminate this Lease as
provided below, restore the Premises to substantially the same condition as it
was in immediately before such destruction, (iii) Landlord will not be required
to restore Tenant's Alterations (including the Tenant's Work) or Tenant's
Personal Property, such excluded items being the sole responsibility of Tenant
to restore, (iv) the destruction will not (except as otherwise provided below)
terminate this Lease, and (v) all obligations of Tenant under this Lease will
(except as otherwise provided below) remain in effect, except that the Basic
Monthly Rent will be abated or reduced, between the date of the destruction and
the date of completion of Landlord's and Tenant's restoration, by the ratio of
(a) the area of the Premises rendered unusable or inaccessible by the
destruction to (b) the area of the Premises before the destruction.
Notwithstanding anything above to the contrary, in the event that Landlord's
Damage Notice indicates that the repair of such damage cannot be completed
within one hundred eighty (180) days from the date of such damage, then Tenant
may elect to terminate this Lease by delivering written notice to Landlord
within ten (10) days after Tenant's receipt of Landlord's Damage Notice.
Notwithstanding anything to the contrary in this Lease, Landlord may terminate
this Lease by so notifying Tenant in writing on or before the earlier of thirty
(30) days after the destruction or thirty (30) days after Landlord's receipt of
the proceeds from insurance maintained by Landlord (or maintained by Tenant if
Tenant elects to maintain such insurance as provided above), if (A) then
existing laws do not permit such restoration, (B) Tenant does not commit to
continue the Term for at least two years after the expected completion of
reconstruction where the destruction exceeds twenty-five percent (25%) of the
then replacement value of the shell improvements on the Premises, (C) the
destruction exceeds twenty-five percent (25%) of the then replacement value of
the shell improvements on the Premises, or (D) Landlord determines that the cost
of the restoration exceeds, by more than Two Hundred Fifty Thousand Dollars
($250,000.00), the amount of insurance proceeds relating to the destruction
actually received by Landlord from insurance maintained by Landlord (or would
have received if Landlord were carrying the insurance required to be maintained
by Landlord hereunder) and Tenant has elected (in
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its sole discretion) not to contribute funds toward uninsured costs to repair
the destruction in excess of such amount. If either Landlord or Tenant terminate
this Lease as provided above, then (1) Landlord has no obligation to restore the
Premises, (2) each party shall retain their respective insurance proceeds
relating to such destruction, and (3) this Lease terminates as of thirty (30)
days after the notice of termination from the terminating party to the other
party. If Landlord restores the Premises as provided above, then Tenant waives
the provisions of California Civil Code Sections 1932(2) and 1933(4) or any
successor statute with respect to any destruction of the Premises.
18. Condemnation. If during the Term there is any taking of all or
any part of the Premises or any interest in this Lease by the exercise of any
governmental power, whether by legal proceedings or otherwise, by any entity or
individual having the power of condemnation (any of the preceding a
"Condemnor"), or a voluntary sale or transfer by Landlord to any Condemnor,
either under threat of condemnation or while legal proceedings for condemnation
are pending (any of the preceding, a "Condemnation"), then this paragraph
applies. A temporary Condemnation of all or any part of the Premises for less
than one hundred eighty (180) days does not constitute a Condemnation under this
paragraph, but the Basic Monthly Rent is abated as to the portion of the
Premises affected during the temporary Condemnation. If the Condemnation is of
the entire Premises, then this Lease terminates on the date the Condemnor takes
possession of the Premises (the "Date of Condemnation"). If the Condemnation is
of some, but not all, of the Premises, then this Lease remains in effect, except
that, if the remaining portion of the Premises is rendered unsuitable for
Tenant's continued use of the Premises, as reasonably determined by Tenant, then
Tenant may elect to terminate this Lease by so notifying Landlord in writing
(the "Termination Notice") within thirty (30) days after the date that the
nature and extent of the Condemnation have been determined. Such termination
becomes effective on the earlier of (i) the date that is thirty (30) days after
the Termination Notice, and (ii) the Date of Condemnation. If Tenant does not
give Landlord the Termination Notice within the thirty (30) day period, then all
obligations of Tenant under this Lease remain in effect, except that Basic
Monthly Rent will prospectively be reduced by the ratio of (a) the area of the
Premises taken to (b) the area of the Premises immediately before the Date of
Condemnation. Unless Tenant gives Landlord the Termination Notice within the
relevant thirty (30) day period, Tenant at its sole cost shall accomplish any
restoration required by Tenant to use the Premises. All compensation, sums, or
anything of value awarded, paid, or received on a total or partial Condemnation,
including any "bonus value" of the Lease (the "Award") belongs to and must be
paid to Landlord (except as provided below). Tenant has no right to any part of
the Award, and Tenant hereby assigns to Landlord all of Tenant's right, title,
and interest in and to any part of the Award, except that, notwithstanding
anything above to the contrary, Tenant may receive from the Award any sum paid
expressly to Tenant or Landlord from the Condemnor for Tenant's loss of or
damage to Tenant's Personal Property, for restoration of the Premises, for
relocation costs and any portion of the Award attributable to Tenant's good
will. Landlord and Tenant waive the provisions of any statute (including
California Code of Civil Procedure Section 1265.130 or any successor statute)
that allows Landlord or Tenant to petition the superior court (or any other
local court) to terminate this Lease in the event of a partial taking of the
Premises.
19. Assignment and Other Transfers. Without Landlord's prior
written consent, which may not unreasonably be withheld, conditioned or delayed,
none of the following may occur (or be permitted by Tenant to occur),
voluntarily, involuntarily, by operation of law, or otherwise (any of the
following, a "Transfer"): any assignment, sublease, disposition, sale,
concession, license, mortgage, encumbrance, hypothecation, pledge, collateral
assignment, or other transfer, by Tenant of this Lease, any interest in this
Lease, or all or any portion of the Premises. No Transfer releases or discharges
Tenant from any liability, whether past, present, or future, under this Lease
and Tenant continues to remain primarily liable under this Lease (and Tenant
must execute a guaranty or other instrument prescribed by Landlord to ensure
such continued liability). Tenant shall promptly reimburse Landlord for
Landlord's actual, documented and reasonable costs of reviewing, consenting to,
rejecting or consummating any proposed Transfer, including reasonable attorneys'
fees (which costs and attorney's fees shall not exceed, in the aggregate, One
Thousand Five Hundred Dollars ($1,500.00) in any one instance). Landlord shall
notify Tenant of Landlord's consent or reasonable disapproval of any such
Transfer within twenty (20) days after Landlord's receipt of the Transfer
notice. Landlord's failure to respond to any such Transfer notice within such
twenty (20) day period shall be deemed Landlord's approval of the Transfer.
Notwithstanding the provisions of this Article 19 to the contrary, Tenant may
assign this Lease or sublet the Premises or any portion thereof (herein, a
"Permitted Transfer"), without Landlord's consent, to any holding company,
corporation, association or entity which is or becomes a parent, subsidiary or
affiliate of Tenant or any entity that controls, is controlled by or is under
common control with Tenant, or to any entity resulting from a merger,
consolidation or reorganization of Tenant, or to any person or entity that
acquires all (or substantially all) of the stock or assets of Tenant's business
as a going concern (a "Permitted Transferee"), provided that: (a) in the case of
an assignment, the assignee assumes, in full, the obligations of Tenant, under
this Lease pursuant to a commercially reasonable assumption agreement, a fully
executed copy of which is delivered to Landlord within thirty (30) days
following the effective date of such assignment or subletting; (b) such
transferee has the financial capability to fulfill the obligation imposed by
the assignment or sublease; (c) Tenant remains fully liable under this Lease (if
the entity comprising Tenant exists after the Transfer) and executes a guaranty
of this Lease in form and substance satisfactory to Landlord; (d) the use of the
Premises is permitted under this Lease; and (e) such transaction is not entered
into as a subterfuge to avoid the restrictions and provisions of this Article
19. Landlord specifically acknowledges and agrees that as of the date of this
Lease, Tenant is a publicly held company whose stock is traded on a nationally
recognized exchange and that under no circumstances shall any transfer of such
stock over such exchange be deemed a Transfer for purposes of this Lease. Tenant
shall promptly pay to Landlord one-half of all rents and other consideration, of
whatever nature, payable by the Proposed Transferee (or receivable by Tenant)
pursuant to any Transfer, which exceeds (1) if a sublease of a portion of the
Premises, the portion of the Basic Monthly Rent that is allocable to the portion
of the Premises subleased (such allocation based on the area of the portion
subleased), or (2) if any other Transfer, the Basic Monthly Rent.
20. Access by Landlord. Landlord and any of Landlord's agents or
employees may enter the Premises at all reasonable times, during normal business
hours if feasible under the circumstances, and after reasonable prior written
notice, and only when accompanied by a representative of Tenant, if feasible
under the circumstances, (i) to
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determine whether the Premises are in good condition and whether Tenant is
complying with its obligations under this Lease, (ii) to do any necessary
maintenance or make any restoration to the Premises that Landlord has the right
or obligation to perform, (iii) to serve, post, or keep posted any notices
required or allowed under this Lease, (v) during the last nine (9) months of the
Term, to post "for sale" or "for rent" or "for lease" signs, (vi) during the
last nine (9) months of the Term, to show the Premises to brokers, agents,
prospective buyers, prospective tenants, or other persons interested in a
listing of, financing, purchasing, or occupying the Premises, and (vii) to shore
the foundations, footings, and walls of the Premises, and to erect scaffolding
and protective barricades around and about the Premises, but not so as to
prevent entry to the Premises, and to do any other act or thing necessary for
the safety or preservation of the Premises if any excavation or other
construction is undertaken or is about to be undertaken on any adjacent property
or nearby street. In the event of an emergency Landlord may enter the Premises
at any time, without prior notice to Tenant, but Landlord shall use its best
efforts to notify Tenant of its entry or anticipated entry as soon as possible.
Landlord's rights under this paragraph extend, with Landlord's consent, to the
owner of adjacent property on which excavation or construction is to take place
and the adjacent property owner's agents, employees, officers, and contractors.
Subject to rent abatement as expressly provided in Article 8 above and
Landlord's indemnification of Tenant pursuant to Article 21 below, Landlord will
not be liable for any inconvenience, disturbance, loss of business, nuisance, or
other damage arising out of any entry on the Premises as provided in this
Article 20 except damage resulting directly from the negligent acts of Landlord
or Landlord's Invitees; provided, however, that Landlord shall use commercially
reasonable efforts to minimize any interference with Tenant's Permitted Use of
the Premises during any actions/activities undertaken by Landlord pursuant to
this Article 20. Except as otherwise expressly provided in Article 8 above,
Tenant will not be entitled to any abatement or reduction of rent because of the
exercise by Landlord of any rights under this Article 20.
21. Indemnity and Exemption of Landlord from Liability. Tenant
shall defend, indemnify, and hold harmless Landlord against all Claims (as
defined below) and all costs, expenses, and attorneys' fees incurred in the
defense or handling of any such Claims or any action or proceeding brought on
any of such Claims. For purposes of this Lease, "Claims" means all liabilities,
damages, losses, costs, expenses, attorneys' fees, and claims (except to the
extent they result from Landlord's negligent acts or willful misconduct or
Landlord's breach of this Lease) arising from or which seek to impose liability
under or because of (i) Tenant's or Tenant's Invitees' use of the Premises, (ii)
the conduct of Tenant's business, (iii) any activity, work, or things done or
permitted by Tenant or any of Tenant's Invitees in or about the Premises or
elsewhere, (iv) any breach or default in the performance of any obligation to be
performed by Tenant under this Lease, (v) any negligence of Tenant or any of
Tenant's Invitees, or (vi) any event, act or omission arising on, out of or
around the Premises during the Term, except if resulting from Landlord's gross
negligence or willful misconduct. Except to the extent caused by Landlord's
grossly negligent acts or willful misconduct or Landlord's default under this
Lease, Tenant assumes all risk of, Tenant waives all claims against Landlord in
respect of, and Landlord is not liable for, any of the matters set forth above
in this Article 21 or any of the following: injury to Tenant's business, loss of
income from such business, or damage or injury to the goods, wares, merchandise,
or other property or the person of Tenant, Tenant's Invitees, or any other
persons in, on, or about the Premises, whether such damage, loss, or injury is
caused by or results from criminal acts, fire, steam, electricity, gas, water,
rain, the breakage, leakage, obstruction or other defects of pipes, sewer lines,
sprinklers, wires, appliances, plumbing, air-conditioning or lighting fixtures,
or any other cause, conditions arising about the Premises, or other sources or
places, and regardless of whether the cause of such damage, loss, or injury or
the means of repairing such damage, loss, or injury is inaccessible to Tenant.
"Claims" also includes those arising from or relating to the following occurring
after the Commencement Date: (i) any discharges, releases, or threatened
releases of noise, pollutants, contaminants, herbicides, pesticides,
insecticides, regulated substances, or hazardous or toxic wastes, substances, or
materials (any of the preceding a "Hazardous Material") into ambient air, water,
or land by Tenant or Tenant's Invitees, or otherwise from, on, under, or above
the Premises, (ii) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants, contaminants, or
hazardous, regulated, or toxic wastes, substances, or materials by Tenant or
Tenant's Invitees, or otherwise from, on, or under, the Premises, or (iii) a
violation of any environmental or regulation law pertaining to the Premises,
excluding violations pertaining to Hazardous Materials existing in, on or about
the Premises as of the Commencement Date (which shall be Landlord's
responsibility at Landlord's sole cost and expense as provided below).
Notwithstanding anything above to the contrary, Landlord shall indemnify,
defend, protect, and hold harmless Tenant, Tenant's Invitees and Tenant's
officers, directors and partners from any Claims incurred in connection with or
arising from (a) any cause in or about the Premises during the Term to the
extent compensated by Landlord's insurance policies carried pursuant to the
terms of this Lease, (b) any grossly negligent acts or omissions or willful
misconduct of any of Landlord in, on, or about the Premises either prior to,
during, or after the expiration of the Term, or (c) any Claims pertaining to the
Hazardous Materials existing in, on or about the Premises as of the Commencement
Date, (d) Landlord's negligent acts to the extent established by the applicable
court or arbitration panel, or (e) a breach or default in the performance of any
obligation to be performed by Landlord under this Lease. Landlord's and Tenant's
obligations under this Article 21 shall survive the expiration or sooner
termination of this Lease.
22. Hazardous Materials. Tenant will not, in any manner
whatsoever, be responsible for the investigation, removal, remediation or
abatement of any Hazardous Materials or violation of any applicable laws related
thereto to the extent that such Hazardous Materials existed in, on or about the
Premises before the Commencement Date and Landlord acknowledges and agrees that
Landlord shall be solely responsible, at Landlord's sole cost and expense, for
any such investigation, removal, remediation or abatement. Neither Tenant nor
any of Tenant's Invitees may use, manufacture, store, or dispose of any
Hazardous Materials anywhere within the Premises which are or could (a) be
detrimental to the Premises, human health, or the environment, except in
accordance with all applicable laws and Landlord's reasonable prophylactic
restrictions, or (b) adversely affect the value of the Premises. If the Premises
are contaminated by any Hazardous Material during the Term, then (1) Tenant
shall promptly notify Landlord in writing of such contamination, and (2)
Landlord may elect to either (A) demand that Tenant perform all remediation
required by Landlord (to Landlord's reasonable satisfaction and at Tenant's sole
cost, necessary to return the Premises to at least as good a condition as the
Premises are in as of the date of this Lease, which Tenant shall immediately do
upon receipt of notice from Landlord, or (B) proceed to cause
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such investigation, clean-up, and remediation work which Landlord deems
reasonably necessary or desirable to be undertaken, whereupon the entire cost
thereof (plus a supervisory fee equal to five percent (5%) of such cost) will be
payable by Tenant to Landlord within thirty (30) days after Landlord's written
demand as additional rent. If Tenant does not promptly commence and diligently
pursue such remediation, then Landlord may perform or cause to be performed such
remediation and Tenant shall, within thirty (30) days after Landlord's written
demand, pay the actual, documented and reasonable cost thereof. Tenant's and
Landlord's obligations and liability under this Article 22 shall survive the
termination of Tenant's tenancy and the Term of this Lease, except that nothing
contained in this Article 22 shall be deemed to impose liability on Tenant for
any problem arising during or after the Term of this Lease provided neither
Tenant nor Tenant's Invitees caused such problem during the Term of this Lease
23. Subordination and Attornment. This Lease and Tenant's rights
under this Lease are subject and subordinate to any mortgage, deed of trust,
ground lease, or underlying lease (and to all renewals, modifications,
consolidations, replacements, or extensions thereof), now or hereafter affecting
the Premises. The provisions of this paragraph are self operative, and no
further instrument of subordination is required. In confirmation of such
subordination, however, Tenant shall promptly execute and deliver any
instruments that Landlord, any Lender, or the lessor under any ground or
underlying lease, may request to evidence such subordination. Notwithstanding
the preceding provisions of this paragraph, if any ground lessor or Lender
elects to have this Lease prior to the lien of its ground lease, deed of trust,
or mortgage, and gives written notice thereof to Tenant, then this Lease is
deemed to be prior to the lien of such ground lease or mortgage and such ground
lease, deed of trust, or mortgage shall be deemed to be subordinate to this
Lease, and thereafter if such Lender or lessor succeeds to the rights of
Landlord under this Lease, whether by foreclosure, deed in lieu of foreclosure
or otherwise, then (i) such successor landlord will not be subject to any
offsets or defenses which Tenant might have against Landlord, (ii) such
successor landlord will not be bound by any prepayment by Tenant of more than
one month's installment of rent, (iii) such successor landlord will not be
subject to any liability or obligation of Landlord except those arising after
such succession, (iv) Tenant shall attorn to and recognize such successor
landlord as Tenant's landlord under this Lease, (v) Tenant shall promptly
execute and deliver any instruments that may be necessary to evidence such
attornment, and (vi) on such attornment, this Lease shall continue in effect as
a direct lease between such successor landlord and Tenant. At the request of
Landlord or any Lender, Tenant shall, within 14 days of request, execute any
commercially reasonable Subordination, Non-Disturbance, and Attornment
Agreements ("SNDA") in the applicable Lender's customary form. Notwithstanding
any contrary provision of this Article 23, a condition precedent to the
subordination of this Lease to any future mortgage, deed of trust, ground or
underlying lease is that Landlord shall obtain for the benefit of Tenant a
commercially reasonable SNDA from the mortgagee, beneficiary or lessor under
such future instrument, pursuant to which the mortgagee, beneficiary or lessor
will agree (i) not to disturb the possession of Tenant under the Lease upon any
foreclosure or exercise of power of sale under such mortgage or deed of trust or
termination of such ground or underlying lease, if Tenant is not in default
hereunder (beyond the expiration of any applicable notice and cure periods), and
(ii) will accept the attornment of Tenant thereafter as provided hereinbelow as
long as Tenant is not in default under this Lease (beyond the expiration of any
applicable notice and cure period).
24. Estoppel Certificates. Within 14 days after notice from
Landlord, Tenant shall execute and deliver to Landlord, in recordable form, a
certificate stating (i) that this Lease is unmodified and in full force and
effect, or in full force and effect as modified, and stating all modifications,
(ii) the then current Basic Monthly Rent, (iii) the dates to which Basic Monthly
Rent has been paid in advance, (iv) the amount of any security deposit, prepaid
rent or other payment constituting rent which has been paid (including Operating
Expenses), (v) whether or not Tenant or Landlord is in default under this Lease
and whether there currently exist any defenses or rights of offset under the
Lease, and (vi) such other matters as Landlord shall reasonably request.
Tenant's failure to deliver the certificate within the 14 day period shall be
conclusive upon Tenant for the benefit of Landlord, and any successor in
interest to Landlord, any Lender or proposed Lender, and any purchaser of the
Premises that, except as may be represented by Landlord, this Lease is
unmodified and in full force and effect, no rent has been paid more than 30 days
in advance, and neither Tenant nor Landlord is in default under this Lease.
25. Waiver. No delay or omission in the exercise of any right or
remedy of Landlord or Tenant in the event of any default by the other shall
impair such right or remedy or be construed as a waiver. The receipt and
acceptance by Landlord of delinquent rent does not constitute a waiver of any
default other than the particular rent payment accepted. Landlord's receipt and
acceptance from Tenant, on any date (the "Receipt Date"), of an amount less than
the amount due on such Receipt Date, or to become due at a later date but
applicable to a period before the Receipt Date, does not release Tenant of its
obligation (i) to pay the full amount due on such Receipt Date or (ii) to pay
when due the full amount to become due at a later date but applicable to a
period before such Receipt Date. No act or conduct of Landlord, including the
acceptance of the keys to the Premises, constitutes an acceptance by Landlord of
the surrender of the Premises by Tenant before the Expiration Date. Only a
written notice from Landlord to Tenant stating Landlord's election to terminate
Tenant's right to possession of the Premises constitutes acceptance of the
surrender of the Premises and accomplishes a termination of this Lease (except
as otherwise expressly provided in this Lease). Landlord's consent to or
approval of any act by Tenant requiring Landlord's consent or approval may not
be deemed to waive or render unnecessary Landlord's consent to or approval of
any other or subsequent act by Tenant. Any waiver by Landlord or Tenant of any
default must be in writing and does not constitute a waiver of any other default
concerning the same or any other provision of this Lease. Tenant waives any
rights granted to Tenant under California Code of Civil Procedure Section 1179,
California Civil Code Section 3275, and any successor statute(s). Tenant
represents and warrants that if Tenant breaches this Lease and, as a result,
this Lease is terminated, Tenant will not suffer any undue hardship as a result
of the termination and, during the Term, will make such alternative or other
contingency plans to provide for its vacation of the Premises and relocation in
the event of such termination. Tenant acknowledges that Tenant's waivers set
forth in this paragraph are a material part of the consideration for Landlord's
entering into this Lease and that Landlord would not have entered into this
Lease in the absence of such waivers.
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26. Brokers. Tenant and Landlord represents that no real estate
broker, agent, finder, or other person is responsible for bringing about or
negotiating this Lease except for Xxxxxxx Real Estate and Tenant and Landlord
have not dealt with any real estate broker, agent, finder, or other person,
relative to this Lease in any manner, other than Xxxxxxx Real Estate. Landlord
is solely responsible for compensating Xxxxxxx Real Estate on account of this
Lease in accordance with Landlord's separate written agreement with Xxxxxxx Real
Estate, if any. Tenant and Landlord shall defend, indemnify, and hold harmless
the other against all liabilities, damages, losses, costs, expenses, attorneys'
fees and claims arising from any claims that may be made against Landlord by any
real estate broker, agent, finder, or other person (other than Xxxxxxx Real
Estate), alleging to have acted on behalf of or to have dealt with Landlord or
Tenant, as the case may be.
27. Easements. Landlord may from time to time grant such
easements, rights and dedications, and cause the recordation of parcel maps,
easement and operating agreements, and restrictions affecting the Premises so
long as such actions do not increase Tenant's obligations hereunder or
unreasonably interfere with Tenant's use of and quiet enjoyment of, and
beneficial occupancy of, the Premises. Tenant shall, at Landlord's sole cost and
expense, promptly sign any commercially reasonable documents or instruments to
accomplish the foregoing upon request by Landlord.
28. Limitations on Landlord's Liability. Tenant agrees that the
liability of Landlord under this Lease (including any liability as a result of
any actual or alleged failure, breach or default hereunder by Landlord), shall
be limited solely to Landlord's interest in the Premises, including the rents,
issues and profits of Landlord therefrom as well as any insurance and
condemnation proceeds and no other assets of Landlord. Neither Landlord nor
Landlord's affiliates, members, managers, shareholders, officers, directors,
agents, or employees shall be personally liable for any liability with respect
to this Lease.
29. Sale or Transfer of Premises. If Landlord sells or transfers
any portion of the Premises, Landlord, on consummation of the sale or transfer
and the assumption, in writing, by the transferee of Landlord's obligations
hereunder, shall be released from any liability under this Lease. If any
security deposit or prepaid rent has been paid by Tenant, Landlord shall
transfer the security deposit or prepaid rent to Landlord's successor in
interest and on such transfer Landlord shall be discharged from any further
liability arising from the security deposit or prepaid rent.
30. Default by Landlord. Landlord shall be in default in the
performance of any obligation required to be performed by Landlord under this
Lease if (i) Landlord is obligated to make a payment of money to Tenant and
Landlord fails to make such payment within ten (10) days after written notice
from Tenant that the same was not paid when due, or (ii) such obligation is
other than the payment of money and Landlord has failed to perform such
obligation within thirty (30) days after the receipt of written notice from
Tenant specifying in detail Landlord's failure to perform; provided however,
that if the nature of Landlord's obligation is such that more than thirty (30)
days are required for its performance, then Landlord shall not be deemed in
default if it commences such performance within such thirty (30) day period and
thereafter diligently pursues the same to completion. If after such applicable
cure periods the default remains uncured, Tenant may exercise any of its rights
provided in law or at equity, including, but not limited to, termination of this
Lease.
31. No Merger. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation of this Lease, or a termination by Landlord,
shall not work a merger, and shall, at the option of Landlord, terminate any
existing subleases or may, at the option of Landlord, operate as an assignment
to Landlord of any such subleases.
32. Miscellaneous.
32.1. Governing Law. Venue and Jurisdiction. This Lease is
governed by and construed in accordance with the laws of the State of
California, irrespective of California's choice-of-law principles. All
actions and proceedings arising in connection with this Lease must be
tried and litigated exclusively in the State and Federal courts located
in the County of San Diego, State of California, which courts have
personal jurisdiction and venue over each of the parties to this Lease
for the purpose of adjudicating all matters arising out of or related
to this Lease. Each party authorizes and accepts service of process
sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of
notices set forth in this Lease.
32.2. Further Assurances. Each party to this Lease shall
execute and deliver all instruments and documents and take all actions
as may be reasonably required or appropriate to carry out the purposes
of this Lease.
32.3. Time of Essence. Time and strict and punctual
performance are of the essence with respect to each provision of this
Lease.
32.4. Attorney's Fees. The prevailing party(ies) in any
litigation, arbitration, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this
Lease may recover from the unsuccessful party(ies) all costs, expenses,
and actual attorney's fees (including expert witness and other
consultants' fees and costs) relating to or arising out of (a) the
Proceeding (whether or not the Proceeding proceeds to judgment), and
(b) any post-judgment or post-award proceeding including, without
limitation, one to enforce or collect any judgment or award resulting
from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred
costs, expenses, and actual attorney's fees.
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32.5. Modification. This Lease may be modified only by a
contract in writing executed by the party to this Lease against whom
enforcement of the modification is sought.
32.6. Prior Understandings. This Lease contains the entire
and final agreement of the parties to this Lease with respect to the
subject matter of this Lease, and supersede all negotiations,
stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede
or accompany the execution of this Lease.
32.7. Interpretation. Whenever the context so requires in
this Lease, all words used in the singular may include the plural (and
vice versa) and the word "person" includes a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate
or any other entity. The terms "includes" and "including" do not imply
any limitation. No remedy or election under this Lease is exclusive,
but rather, to the extent permitted by applicable law, each such remedy
and election is cumulative with all other remedies at law or in equity.
The paragraph headings in this Lease: (a) are included only for
convenience, (b) do not in any manner modify or limit any of the
provisions of this Lease, and (c) may not be used in the interpretation
of this Lease. All provisions, whether covenants or conditions, to be
performed or observed by Tenant shall be deemed to be both covenants
and conditions. The obligations of Tenant are the joint and several
obligations of each of them.
32.8. Partial Invalidity. Each provision of this Lease is
valid and enforceable to the fullest extent permitted by law. If any
provision of this Lease (or the application of such provision to any
person or circumstance) is or becomes invalid or unenforceable, the
remainder of this Lease, and the application of such provision to
persons or circumstances other than those as to which it is held
invalid or unenforceable, are not affected by such invalidity or
unenforceability.
32.9. Notices. Each notice and other communication required
or permitted to be given under this Lease ("Notice") must be in
writing. Notice is duly given to another party upon: (a) hand delivery
to the other party, (b) receipt by the other party when sent by
facsimile to the address and number for such party set forth in Article
2 (provided, however, that the Notice is not effective unless a
duplicate copy of the facsimile Notice is promptly given by one of the
other methods permitted under this paragraph), (c) three business days
after the Notice has been deposited with the United States postal
service as first class certified mail, return receipt requested,
postage prepaid, and addressed to the party as set forth in Article 2,
or (d) the next business day after the Notice has been deposited with a
reputable overnight delivery service, postage prepaid, addressed to the
party as set forth in Article 2 with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of
delivery from the delivery-service-provider. Each party shall make a
reasonable, good faith effort to ensure that it will accept or receive
Notices to it that are given in accordance with this Section 32.9. A
party may change its address for purposes of this paragraph by giving
the other party(ies) written notice of a new address in the manner set
forth above.
32.10. Drafting Ambiguities. Each party to this Lease and
its legal counsel have reviewed and revised this Lease. The rule of
construction that ambiguities are to be resolved against the drafting
party or in favor of the party receiving a particular benefit under an
agreement may not be employed in the interpretation of this Lease or
any amendment to this Lease.
32.11. Third Party Beneficiaries. Nothing in this Lease is
intended to confer any rights or remedies on any person or entity other
than the parties to this Lease and their respective successors-in-
interest and permitted assignees.
32.12. Consents and Approvals. Except as otherwise provided
in this Lease, any time the consent or approval of Landlord or Tenant
is required under this Lease (including any approval rights of Landlord
while acting as "Declarant" under any covenants, conditions or
restrictions recorded against the Premises to the extent such approval
pertains to rights granted to Tenant under this Lease), such consent or
approval shall not be unreasonably withheld, conditioned or delayed,
and whenever this Lease grants Landlord or Tenant the right to take
action, exercise discretion, establish rules and regulations or make an
allocation or other determination, Landlord and Tenant shall act
reasonably and in good faith.
32.13. Relationship of Parties. Nothing contained in this
Lease shall be deemed or construed by the parties hereto or by any
third party to create the relationship of principal and agent, lender
and borrower, partnership, joint venturer or any association between
Landlord and Tenant, it being expressly understood and agreed that
neither the method of computation of rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and
Tenant other than the relationship of landlord and tenant.
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32.14. Quiet Possession. Tenant shall have quiet possession
of the Premises for the entire Term hereof, subject to all of the
provisions of this Lease.
LANDLORD: 10996 TORREYANA ROAD, L.P.,
a California limited partnership
By: Torreyana Biotech Properties Corp.,
a California corporation, General
Partner
By: /s/ Xxxxxx Emri
---------------------------------
Xxxxxx Emri, President
TENANT: IDEC PHARMACEUTICALS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
SVP & CFO
By:
-------------------------------------
, its Secretary
----------------------
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EXHIBIT A
PREMISES
The land and improvements (including an approximately 82,890 gross-square-foot
building) and any appurtenant easements, parking areas, driveways, access areas
and other areas necessary for the beneficial occupancy of the Premises by Tenant
and located on the land in San Diego, California, described as follows:
Xxx 00 xx Xxxxxx Xxxxx, Xxxxxxx Xxxx Xxxx Xx. 0, in the City of San Diego,
County of San Diego, State of California, according to Map thereof No. 8434,
filed in the Office of the County Recorder of San Diego County, on December
10, 1976.
APN: 000-000-00
EXHIBIT A
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EXHIBITS B
ITEMS INCLUDED WITH PREMISES
INCLUDED ITEMS.
Built-in receptionist work station.
All office furniture, including desks, credenzas, work station chairs, file
cabinets, conference room chairs and tables, book shelves, and all other
miscellaneous office furniture (other than the excluded items listed below).
Outdoor tables and chairs.
Phone system including all phones.
Computer cabling and hub system.
Security system.
EXCLUDED ITEMS.
All office equipment, including computers, fax machines, copiers, printers,
computer room equipment (other than that which by its installation has become a
fixture therein), and all other miscellaneous office equipment.
Podium and easels.
Pictures, plants, and signage.
Hammers, drills and other tools used by maintenance staff.
EXHIBIT B
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