SHORELINE TECHNOLOGY PARK
MOUNTAIN VIEW, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE CORPORATION
("TENANT")
TABLE OF CONTENTS
I. BASIC LEASE INFORMATION.. . . . . . . . . . . . . . . . . . . . .1
II. LEASE GRANT.. . . . . . . . . . . . . . . . . . . . . . . . . . .4
III. POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
IV. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
V. COMPLIANCE WITH LAWS; USE.. . . . . . . . . . . . . . . . . . . .10
VI. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . .10
VII. SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
VIII. LEASEHOLD IMPROVEMENTS. . . . . . . . . . . . . . . . . . . . . .11
IX. REPAIRS, MAINTENANCE AND ALTERATIONS. . . . . . . . . . . . . . .11
X. USE OF UTILITY SERVICES BY TENANT.. . . . . . . . . . . . . . . .13
XI. ENTRY BY LANDLORD.. . . . . . . . . . . . . . . . . . . . . . . .13
XII. ASSIGNMENT AND SUBLETTING.. . . . . . . . . . . . . . . . . . . .13
XIII. LIENS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
XIV. INDEMNITY AND WAIVER OF CLAIMS. . . . . . . . . . . . . . . . . .15
XV. INSURANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . .16
XVI. SUBROGATION.. . . . . . . . . . . . . . . . . . . . . . . . . . .17
XVII. CASUALTY DAMAGE.. . . . . . . . . . . . . . . . . . . . . . . . .17
XVIII. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . .17
XIX. EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . . . . . . .18
XX. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
XXI. LIMITATION OF LIABILITY.. . . . . . . . . . . . . . . . . . . . .20
XXII. NO WAIVER.. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
XXIII. QUIET ENJOYMENT.. . . . . . . . . . . . . . . . . . . . . . . . .20
XXIV. RELOCATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
XXV. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . .20
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. . . . . . . . .20
XXVII. ATTORNEYS' FEES.. . . . . . . . . . . . . . . . . . . . . . . . .21
XXVIII. NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
XXIX. EXCEPTED RIGHTS.. . . . . . . . . . . . . . . . . . . . . . . . .21
XXX. SURRENDER OF PREMISES.. . . . . . . . . . . . . . . . . . . . . .22
XXXI. MISCELLANEOUS.. . . . . . . . . . . . . . . . . . . . . . . . . .22
XXXII. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . .24
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into
as of the 7th day of February, 2000, by and between EOP-SHORELINE
TECHNOLOGY PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord")
and INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Buildings" shall collectively mean the buildings in Mountain
View, California located at (i) 2021 Stierlin Court
("Building 2") and (ii) 0000 Xxxxxxxx Xxxxx ("Xxxxxxxx 0").
B. "Rentable Square Footage of the Buildings" shall collectively
be deemed to be 124,032 square feet which consists of
(i) 58,176 rentable square feet in Building 0 ("xxx "Xxxxxxxx
Xxxxxx Xxxxxxx xx Xxxxxxxx 0"); and (ii) 65,856 rentable
square feet in Building 1 (the "Rentable Square Footage of
Building 1").
C. "Premises" shall mean (i) for the period commencing on the
Premises 2 Commencement Date (as hereinafter defined) through
the day which is immediately prior to the Premises 1
Commencement Date (as hereinafter defined), the 58,176
rentable square feet in Building 2 ("Building 2 Premises") as
shown on EXHIBIT A-1 to this Lease, and (ii) for the period
commencing on the Premises 1 Commencement Date through the
Termination Date (as hereinafter defined), the Building 2
Premises plus the 65,856 rentable square feet in Building 1
("Building 1 Premises") as shown on EXHIBIT A-1 to this Lease.
The "Rentable Square Footage of the Premises" for the period
commencing on the Premises 2 Commencement Date through the day
which is immediately prior to the Premises 1 Commencement Date
is deemed to be the Rentable Square Footage of Building 2.
The "Rentable Square Footage of the Premises" for the period
commencing on the Premises 1 Commencement Date through the
Termination Date shall be 124,032 square feet (i.e.
collectively, the Rentable Square Footage of Building 2 and
the Rentable Square Footage of Building 1). Landlord and
Tenant stipulate and agree that the Rentable Square Footage of
the Buildings and the Rentable Square Footage of the Premises
are correct and shall not be remeasured.
D. "Base Rent":
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SCHEDULE OF BASE RENT FOR BUILDING 2
------------------------- --------------------------- ---------------------------- -----------------
ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
------------------------- --------------------------- ---------------------------- -----------------
5/1/00 - 4/30/01 $36.00 $2,094,336.00 $174,528.00
------------------------- --------------------------- ---------------------------- -----------------
5/1/01 - 4/30/02 $37.20 $2,164,147.20 $180,345.60
------------------------- --------------------------- ---------------------------- -----------------
5/1/02 - 4/30/03 $38.40 $2,233,958.40 $186,163.20
------------------------- --------------------------- ---------------------------- -----------------
5/1/03 - 4/30/04 $39.60 $2,303,769.60 $191,980.80
------------------------- --------------------------- ---------------------------- -----------------
5/1/04 - 4/30/05 $40.80 $2,373,580.80 $197,798.40
------------------------- --------------------------- ---------------------------- -----------------
5/1/05 - 4/30/06 $42.00 $2,443,392.00 $203,616.00
------------------------- --------------------------- ---------------------------- -----------------
5/1/06 - 4/30/07 $43.20 $2,513,203.20 $209,433.60
------------------------- --------------------------- ---------------------------- -----------------
5/1/07 - 4/30/08 $44.40 $2,583,014.40 $215,251.20
------------------------- --------------------------- ---------------------------- -----------------
5/1/08 - 4/30/09 $45.60 $2,652,825.60 $221,068.80
------------------------- --------------------------- ---------------------------- -----------------
5/1/09 - 4/30/10 $46.80 $2,722,636.80 $226,886.40
------------------------- --------------------------- ---------------------------- -----------------
5/1/10 - 4/30/11 $48.00 $2,792,448.00 $232,704.00
------------------------- --------------------------- ---------------------------- -----------------
1
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SCHEDULE OF BASE RENT FOR BUILDING 1
------------------------- --------------------------- ---------------------------- -----------------
ANNUAL RATE ANNUAL MONTHLY
PERIOD PER SQUARE FOOT BASE RENT BASE RENT
------------------------- --------------------------- ---------------------------- -----------------
5/1/01 - 4/30/02 $37.20 $2,449,843.20 $204,153.60
------------------------- --------------------------- ---------------------------- -----------------
5/1/02 - 4/30/03 $38.40 $2,528,870.40 $210,739.20
------------------------- --------------------------- ---------------------------- -----------------
5/1/03 - 4/30/04 $39.60 $2,607,897.60 $217,324.80
------------------------- --------------------------- ---------------------------- -----------------
5/1/04 - 4/30/05 $40.80 $2,686,924.80 $223,910.40
------------------------- --------------------------- ---------------------------- -----------------
5/1/05 - 4/30/06 $42.00 $2,765,952.00 $230,496.00
------------------------- --------------------------- ---------------------------- -----------------
5/1/06 - 4/30/07 $43.20 $2,844,979.20 $237,081.60
------------------------- --------------------------- ---------------------------- -----------------
5/1/07 - 4/30/08 $44.40 $2,924,006.40 $243,667.20
------------------------- --------------------------- ---------------------------- -----------------
5/1/08 - 4/30/09 $45.60 $3,003,033.60 $250,252.80
------------------------- --------------------------- ---------------------------- -----------------
5/1/09 - 4/30/10 $46.80 $3,082,060.80 $256,838.40
------------------------- --------------------------- ---------------------------- -----------------
5/1/10 - 4/30/11 $48.00 $3,161,088.00 $263,424.00
------------------------- --------------------------- ---------------------------- -----------------
Landlord and Tenant acknowledge that the schedule of Base Rent
described above is based on the assumption that the Building 2
Term (as hereinafter defined) will commence on May 1, 2000,
and that the Building 1 Term (as hereinafter defined) will
commence on May 1, 2001. If the Building 2 Term does not
commence on May 1, 2000, and/or if the Building 1 Term does
not commence on May 1, 2002, the beginning and ending dates
set forth in the above schedule with respect to the payment of
any installment(s) of Base Rent shall be appropriately
adjusted on a per diem basis and set forth in the Commencement
Letter to be prepared by Landlord. In the event that the Base
Rent rate adjusts (up or down) on any day other than the first
day of the month, Base Rent for the month on which such
adjustment occurs shall be determined based on the number of
days in such month for which each particular Base Rent rate is
applicable.
Notwithstanding the above schedules of Base Rent to the
contrary, as long as Tenant is not in default beyond any
applicable notice and cure periods, Tenant shall be entitled
to (i) an abatement of Base Rent in the amount of
(a) $5,817.60 per day for 60 consecutive days of the
Building 2 Term commencing on the Building 2 Commencement Date
(the "Building 2 Abatement Period") for a total amount of
$349,056.00 (the "Building 2 Abated Base Rent") and (b) an
abatement of $6,805.12 per day for 60 consecutive days of the
Building 1 Term commencing on the Building 1 Commencement Date
(the "Building 1 Abatement Period") for a total amount of
$408,307.20 (the "Building 1 Abated Base Rent") (the
Building 2 Abated Base Rent and the Building 1 Abated Base
Rent shall collectively be referred to herein as the "Abated
Base Rent"); and (ii) an abatement of 60 consecutive days of
Expenses and Taxes (as hereinafter defined) for Building 2
during the Building 2 Abatement Period (the "Building 2 Abated
Expenses and Taxes") and an abatement of 60 consecutive days
of Expenses and Taxes for Building 1 during the Building 1
Abatement Period (the "Building 1 Abated Expenses and Taxes")
(the Building 2 Abated Expenses and Taxes and the Building 1
Abated Expenses and Taxes are collectively referred to herein
as the "Abated Expenses and Taxes"). In the event of a
monetary or material non-monetary default by Tenant at any
time during the Term, an amount equal to the unamortized
portion of all Abated Base Rent and Abated Expenses and Taxes
which Tenant is entitled to hereunder (as amortized on a
straight-line basis over the initial Term of this Lease) shall
immediately become due and payable (the "Recoverable Abated
Rent"). The payment by Tenant of the Recoverable Abated Rent
in the event of a of a monetary or material non-monetary
default by Tenant shall not limit or affect any of Landlord's
other rights, pursuant to this Lease or at law or in equity.
During the Building 2 Abatement Period and the Building 1
Abatement Period, only Base Rent and Expenses and Taxes with
respect to Building 2 and Building 1, respectively, shall be
abated, and all Additional Rent and other costs and charges
specified in this Lease shall remain as due and payable
pursuant to the provisions of this Lease. In the event that
Tenant substantially completes the Initial Alterations (as
defined in EXHIBIT D of this Lease) for Building 2 prior to
the last day of the Building 2 Abatement Period, or in the
event Tenant substantially completes the Initial Alterations
for Building 1 prior to the last day of the Building 1
Abatement Period, Tenant shall commence paying Base Rent in
accordance with the above Base Rent schedules and Expenses and
Taxes in accordance with Article IV of this
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Lease for Building 2 or Building 1, as the case may be,
commencing with the day after the date the Initial
Alterations for Building 2 or Building 1, as the case may
be, are substantially completed. For purposes of this
paragraph, the applicable Initial Alterations for Building 2
or Building 1, as the case may be, shall be deemed
substantially completed on the date that, in Landlord's
reasonable judgment, all Initial Alterations have been
performed, other than any details of construction,
mechanical adjustment or any other similar matter, the
noncompletion of which does not materially interfere with
Tenant's use of Building 2 or Building 1, as the case may be.
E. "Tenant's Pro Rata Share": 100%.
F. "Term": The "Building 2 Term" shall commence on May 1, 2000
("Building 2 Commencement Date"), and unless terminated early
in accordance with this Lease, shall end on April 30, 2011
(the "Termination Date"). The "Building 1 Term" shall
commence on May 1, 2001 ("Building 1 Commencement Date"), and
unless terminated early in accordance with this Lease, shall
end on the Termination Date. The Building 2 Term and the
Building 1 Term are together referred to herein as the "Term".
Landlord and Tenant acknowledge that as of the date of this
Lease, it is currently anticipated that the Building 2
Commencement Date shall be May 1, 2000 and the Building 1
Commencement Date shall be May 1, 2001. In the event the
Building 2 Commencement Date is not May 1, 2000 or in the
event the Building 1 Commencement Date is not May 1, 2001,
Landlord and Tenant shall enter into a commencement letter in
the form attached as EXHIBIT C.
G. Tenant allowance(s): $5.00 per rentable square foot of the
Premises as more fully described on EXHIBIT D of this Lease.
H. "Security Deposit": $1,600,000.00. The Security Deposit shall
be in the form of an irrevocable letter of credit (the "Letter
of Credit"), as more fully described in Article VI of this
Lease.
I. "Guarantor(s)": None.
J. "Broker(s)": Cornish & Xxxxx Commercial/Oncor International
for the Landlord and Vertex Real Estate Group and BT
Commercial Real Estate for the Tenant.
K. "Permitted Use": Office, research and development,
manufacturing, storage and other legal uses as permitted by
local zoning laws applicable to the Premises and otherwise
permitted by the Governing Documents (as that term is defined
in Article XXXI.M. below).
L. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises. Prior to the Commencement Date,
notices shall be sent to Tenant at the following address:
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: __________________
Phone #: ______________________
Fax #: ________________________
With a copy to:
Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx Xxxx, Esq.
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If Tenant's attorney listed above fails to receive the copy of
the notice of a Tenant default, the validity of the notice
served on Tenant shall not be affected thereby.
Landlord: With a copy to:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C. Equity Office Properties
c/o Equity Office Properties Trust Two North Riverside Plaza
4 Palo Alto Square Suite 2200
0000 Xx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxx, Xxxxxxxxxx 00000-0000 Attention: Regional Counsel - Pacific
Attention: Building Manager Region
Rent (defined in Section IV.A) is payable to the order of
EQUITY OFFICE PROPERTIES at the following address: EOP
OPERATING LIMITED PARTNERSHIP, AS AGENT FOR EOP-SHORELINE
TECHNOLOGY PARK, DEPT. #8824, XXX XXXXXXX, XXXXXXXXXX
00000-0000.
M. "Business Day(s)" are Monday through Friday of each week,
exclusive of New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Holidays").
Landlord may designate additional Holidays, provided that the
additional Holidays are commonly recognized by other office
buildings in the area where the Buildings are located.
N. INTENTIONALY OMITTED.
O. "Law(s)" means all applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or governmental
entity.
P. "Property" means the Buildings and the parcel(s) of land
underneath and directly surrounding the Buildings. At
Landlord's option, the definition of "Property" may
subsequently be expanded to include the Buildings' parking
areas and other improvements serving the Buildings, if any,
and the parcel(s) of land on which they are located; provided
such additional areas will not then be included as part of the
"Common Areas" for purposes of determining Tenant's
obligations with respect to the payment of Expenses and Taxes
as provided in Article IV below.
Q. "Project" shall mean the development located on approximately
51.83 acres commonly described as Shoreline Technology Park,
which includes the Buildings and the Property, as well as the
other buildings and property as outlined on EXHIBIT A-2
attached hereto and incorporated herein.
R. "Rentable Square Footage of the Project" is deemed to be
726,508 rentable square feet.
S. "Allocable Share of the Buildings" means (i) for the period
commencing on the Premises 2 Commencement Date through the
date which is immediately prior to the Premises 1 Commencement
Date, 8.008%; and (ii) for the period commencing on the
Premises 1 Commencement Date through the end of the Term of
this Lease, 17.0724%.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any portions
of the Project that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, artificial lakes, walkways,
water amenities, landscaping, plaza, roads, driveways and recreation areas
(collectively, the "Common Areas"), including, but not limited to, that certain
recreational area which is maintained by Landlord in the location and
configuration shown on EXHIBIT A-3 attached hereto. Notwithstanding the
foregoing to the contrary, Tenant's right to use the Recreational Area shall be
subject to the right of the City of Mountain View ("City") to require that a
portion of the Recreational Area be paved and used for parking purposes at a
time to be determined at the discretion of the City. The area to be used for
parking purposes is indicated as "Potential Parking Area" on EXHIBIT A-3. If
the City requires
4
the parking, Tenant shall have the non-exclusive right to use the parking
spaces created thereby.
III. POSSESSION.
A. INTENTIONALLY OMITTED
B. Subject to Landlord's obligations under Section IX.B. and
Landlord's obligation to deliver the Premises to Tenant in
broom clean condition, the Premises are accepted by Tenant
in "as is" condition and configuration. By taking possession
of the Premises, Tenant agrees that the Premises are in good
order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the
condition of the Premises or the Buildings. Notwithstanding
anything to the contrary contained in the Lease, Landlord
shall not be obligated to tender possession of any portion
of the Premises or other space leased by Tenant from time to
time hereunder that, on the date possession is to be
delivered, such space is occupied by a tenant or other
occupant or that is subject to the rights of any other
tenant or occupant, nor shall Landlord have any other
obligations to Tenant under this Lease with respect to such
space until the date Landlord: (1) recaptures such space
from such existing tenant or occupant; and (2) regains the
legal right to possession thereof. This Lease shall not be
affected by any such failure to deliver possession and
Tenant shall have no claim for damages against Landlord as a
result thereof, all of which are hereby waived and released
by Tenant. If Landlord is delayed delivering possession of
any portion of the Premises or any other space due to the
holdover or unlawful possession of such space by any party,
Landlord shall use reasonable efforts to obtain possession
of the space. In such event, the Building 2 Commencement
Date and/or the Building 1 Commencement Date, as the case
may be, shall be postponed until the date Landlord delivers
possession of the applicable portion of the Premises to
Tenant free from occupancy by any party, and the Termination
Date, at the option of Landlord, may be postponed by an
equal number of days. Notwithstanding the foregoing, if the
Building 2 Commencement Date does not occur by October 1,
2000 (the "Building 2 Outside Completion Date"), or the
Building 1 Commencement Date does not occur by October 1,
2001 (the "Building 1 Outside Completion Date"), Tenant, as
its sole remedy, may terminate this Lease with respect to
both Building 2 and Building 1 by giving Landlord written
notice of termination on or before the earlier to occur of:
(i) 5 Business Days after the Building 2 Outside Completion
Date or the Building 1 Outside Completion Date, as the case
may be; and (ii) the Building 2 Commencement Date or the
Building 1 Commencement Date, as the case may be. In such
event, this Lease shall be deemed null and void and of no
further force and effect with respect to Building 2 and
Building 1, and Landlord shall promptly refund any prepaid
rent and Security Deposit previously advanced by Tenant
under this Lease with respect to Building 2 and Building 1
(subject to Landlord's right to apply all or a portion of
the Security Deposit as provided in Article VI below), and,
so long as Tenant has not previously defaulted under any of
its obligations under the Work Letter, the parties hereto
shall have no further responsibilities or obligations to
each other under this Lease (other than any obligations
which may have accrued prior to such early termination date
under this Lease) with respect to Building 2 and Building 1.
Landlord and Tenant acknowledge and agree that: (i) the
determination of the Building 2 Commencement Date and the
Building 1 Commencement Date shall take into consideration
the effect of any delays by Tenant; and (ii) the Building 2
Outside Completion Date and the Building 1 Outside
Completion Date shall be postponed by the number of days the
Building 2 Commencement Date or the Building 1 Commencement
Date, as applicable, is delayed due to events of Force
Majeure. Notwithstanding anything herein to the contrary,
if Landlord determines that it will be unable to cause the
Building 2 Commencement Date or the Building 1 Commencement
Date to occur by the Building 2 Outside Completion Date or
the Building 1 Outside Completion Date, as applicable,
Landlord shall have the right to provide Tenant with written
notice (the "Outside Extension Notice") of such inability,
which Outside Extension Notice shall set forth the date on
which Landlord reasonably believes that the Building 2
Commencement Date or the Building 1 Commencement Date, as
applicable, will occur. Upon receipt of the Outside
Extension Notice, Tenant shall have the right to terminate
this Lease with respect to Building 2 and Building 1 by
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providing written notice of termination to Landlord within 5
Business Days after the date of the Outside Extension
Notice. In the event that Tenant does not terminate this
Lease with respect to Building 2 and Building 1 within such
5 Business Day period, the Building 2 Outside Completion
Date or the Building 1 Outside Completion Date, as
applicable, shall automatically be amended to be the date
set forth in Landlord's Outside Extension Notice.
C. If Tenant takes possession of the Building 2 Premises before
the Building 2 Commencement Date, or if Tenant takes
possession of the Building 1 Premises before the Building 1
Commencement Date, such possession shall be subject to the
terms and conditions of this Lease and Tenant shall pay Rent
(defined in Section IV.A.) to Landlord for each day of
possession before the Building 2 Commencement Date and/or the
Building 1 Commencement Date, as the case may be. However,
except for the cost of services requested by Tenant (if any),
Tenant shall not be required to pay Rent for any days of
possession of the Building 2 Premises before the Building 2
Commencement Date and/or any days of possession of the
Building 1 Premises before the Building 1 Commencement Date,
as the case may be, during which Tenant, with the approval of
Landlord, is in possession of the applicable portion of the
Premises for the sole purpose of performing improvements or
installing improvements, fixtures, furniture, equipment or
other personal property.
IV. RENT.
A. PAYMENTS. As consideration for this Lease, Tenant shall pay
Landlord, without any setoff or deduction, the total amount of
Base Rent and Additional Rent due for the Term. "Additional
Rent" means all sums (exclusive of Base Rent) that Tenant is
required to pay Landlord hereunder. Additional Rent and Base
Rent are sometimes collectively referred to as "Rent". Base
Rent and recurring monthly charges of Additional Rent shall be
due and payable in advance on the first day of each calendar
month without notice or demand, provided that the installment
of Base Rent for the 3rd full calendar month of the Term shall
be payable upon the execution of this Lease by Tenant. All
other items of Rent shall be due and payable by Tenant on or
before 30 days after billing by Landlord. All payments of
Rent shall be by good and sufficient check or by other means
(such as automatic debit or electronic transfer) acceptable to
Landlord. If Tenant fails to pay any item or installment of
Rent when due, Tenant shall pay Landlord an administration fee
equal to 5% of the past due Rent, provided that Tenant shall
be entitled to a grace period of 5 days for the first 2 late
payments of Rent in a given calendar year. If the Term
commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a
calendar month, the monthly Base Rent and Tenant's Pro Rata
Share of Expenses (defined in Section IV.C.) and Taxes
(defined in Section IV.D.) for the month shall be prorated
based on the number of days in such calendar month.
Landlord's acceptance of less than the correct amount of Rent
shall be considered a payment on account of the earliest Rent
due. No endorsement or statement on a check or letter
accompanying a check or payment shall be considered an accord
and satisfaction, and either party may accept the check or
payment without prejudice to that party's right to recover the
balance or pursue other available remedies. Tenant's covenant
to pay Rent is independent of every other covenant in this
Lease.
B. PAYMENT OF TENANT'S PRO RATA SHARE OF EXPENSES AND TAXES.
Tenant shall pay Tenant's Pro Rata Share of the total amount
of Expenses (defined in Section IV.C.) and Taxes (defined in
Section IV.D) for each calendar year during the Term. Landlord
shall provide Tenant with a good faith estimate of the total
amount of Expenses and Taxes for each calendar year during the
Term. On or before the first day of each month, Tenant shall
pay to Landlord a monthly installment equal to one-twelfth of
Tenant's Pro Rata Share of Landlord's estimate of the total
amount of Expenses and Taxes. If Landlord determines that its
good faith estimate was incorrect by a material amount,
Landlord may provide Tenant with a revised estimate. After
its receipt of the revised estimate, Tenant's monthly payments
shall be based upon the revised estimate. If Landlord does
not provide Tenant with an estimate of the total amount of
Expenses and Taxes by January 1 of a calendar year, Tenant
shall continue to pay monthly
6
installments based on the previous year's estimate until
Landlord provides Tenant with the new estimate. Upon
delivery of the new estimate, an adjustment shall be made
for any month for which Tenant paid monthly installments
based on the previous year's estimate. Tenant shall pay
Landlord the amount of any underpayment within 30 days after
receipt of the new estimate. Any overpayment shall be
refunded to Tenant within 30 days or credited against the
next due future installment(s) of Additional Rent.
As soon as is practical following the end of each calendar
year, Landlord shall furnish Tenant with a statement of the
actual amount of Expenses and Taxes for the prior calendar
year and Tenant's Pro Rata Share of the actual amount of
Expenses and Taxes for the prior calendar year. If the
estimated amount of Expenses and Taxes for the prior calendar
year is more than the actual amount of Expenses and Taxes for
the prior calendar year, Landlord shall apply any overpayment
by Tenant against Additional Rent due or next becoming due,
provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant
after first deducting the amount of Rent due. If the
estimated amount of Expenses and Taxes for the prior calendar
year is less than the actual amount of Expenses and Taxes for
such prior year, Tenant shall pay Landlord, within 30 days
after its receipt of the statement of Expenses and Taxes, any
underpayment for the prior calendar year. Any overpayment or
underpayment of Taxes relating to the year in which this Lease
terminates shall be treated in a similar manner. The
provisions of this subsection shall survive the termination of
this Lease.
C. EXPENSES DEFINED. "Expenses" means the sum of (y) 100% of all
direct and indirect costs and expenses incurred in each
calendar year in connection with operating, maintaining,
repairing, managing and owning the Premises, the Building(s)
in which the Premises is located and the Property, and (z) the
Allocable Share of the Building(s) of the direct and indirect
costs of operating and maintaining the Common Areas of the
Project (including, but not limited to, the parking
structure(s) or parking lot(s) predominantly serving the
Building(s) in which the Premises are located, unless the same
are included by Landlord as part of the "Property"), the
Allocable Share of the Building(s) of all costs, fees,
expenses or other amounts payable by Landlord to the
Association (as defined in Article XXXI.M. below), if any, and
the Allocable Share of the Building(s) of all fees payable to
the company or the Association, if applicable, managing the
parking areas within the Project, including, without
limitation, the following:
1. Labor costs, including, wages, salaries, social security
and employment taxes, medical and other types of
insurance, uniforms, training, and retirement and pension
plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services,
legal fees not attributable to leasing or collection
activity, and other administrative costs. Landlord, by
itself or through an affiliate, shall have the right to
directly perform or provide any services under this Lease
(including management services), provided that the cost
of any such services shall not exceed the cost that would
have been incurred had Landlord entered into an
arms-length contract for such services with an
unaffiliated entity of comparable skill and experience.
3. The cost of services, including amounts paid to service
providers and the rental and purchase cost of parts,
supplies, tools and equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended
coverage, earthquake, general liability, rental loss,
elevator, boiler and other insurance customarily carried
from time to time by owners of comparable buildings.
5. Electrical Costs (defined below) and charges for water,
gas, steam and sewer applicable to the Common Areas.
"Electrical Costs" means: (a) charges paid by Landlord
for electricity; (b) costs incurred in connection with an
energy management program for the Common Areas
7
of the Project; and (c) if and to the extent permitted
by Law, a fee for the services provided by Landlord in
connection with the selection of utility companies and
the negotiation and administration of contracts for
electricity, provided that such fee shall not exceed
50% of any savings obtained by Landlord.
6. The amortized cost of capital improvements (as
distinguished from replacement parts or components
installed in the ordinary course of business) made to the
Property and the Common Areas which are: (a) performed
primarily to reduce operating expense costs or otherwise
improve the operating efficiency of the Property and the
Common Areas; or (b) required to comply with any Laws
that are enacted, or first interpreted to apply to the
Property and the Common Areas, after the date of this
Lease. The cost of capital improvements shall be
amortized by Landlord over the lesser of the Payback
Period (defined below) or 10 years. The amortized cost
of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance
the cost of the capital improvement. "Payback Period"
means the reasonably estimated period of time that it
takes for the cost savings resulting from a capital
improvement to equal the total cost of the capital
improvement.
If Landlord incurs Expenses for the Project together with one
or more other buildings or properties, whether pursuant to a
reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses shall be equitably
prorated and apportioned between the Project and the other
buildings or properties. Expenses shall not include: the cost
of capital improvements (except as set forth above);
depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of
mortgage or ground leases and other non-operating debts of
Landlord; the cost of repairs or other work to the extent
Landlord is reimbursed by insurance or condemnation proceeds;
costs in connection with leasing space in the Buildings or
other buildings in the Project, including brokerage
commissions; lease concessions, including rental abatements
and construction allowances, granted to specific tenants;
costs incurred in connection with the sale, financing or
refinancing of the Buildings; fines, interest and penalties
incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses or otherwise in connection with
operation of the Buildings or the Project; organizational
expenses associated with the creation and operation of the
entity which constitutes Landlord; or any penalties or damages
that Landlord pays to Tenant under this Lease or to other
tenants in the Buildings under their respective leases.
D. TAXES DEFINED. "Taxes" shall mean: (1) all real estate taxes
and other assessments on the Buildings and/or Property,
including, but not limited to, assessments for special
improvement districts and building improvement districts,
taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and
assessments and the Buildings' and the Property's share of any
real estate taxes and assessments under any reciprocal
easement agreement, common area agreement or similar agreement
as to the Property or the Buildings; (2) all personal property
taxes for property that is owned by Landlord and used in
connection with the operation, maintenance and repair of the
Property and the Buildings; (3) all costs and fees incurred in
connection with seeking reductions in any tax liabilities
described in (1) and (2), including, without limitation, any
costs incurred by Landlord for compliance, review and appeal
of tax liabilities; and (4) the Allocable Share of the
Building(s) of (i) all real estate taxes and other assessments
of the Common Areas of the Project, including but not limited
to assessments for special improvement districts and building
improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any
such taxes and assessments and any real estate taxes and
assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Common Areas,
(ii) all personal property taxes for property that is owned by
Landlord and used in connection with the operation,
maintenance and repair of the Common Areas, and (iii) all
costs and fees incurred in connection with seeking reductions
in any tax liabilities described in (i) and (ii) above,
including, without limitation, any costs
8
incurred by Landlord for compliance, review and appeal of
tax liabilities. Without limitation, Taxes shall not include
any income, capital levy, franchise, capital stock, gift,
estate or inheritance tax, or tax on Landlord's income from
all sources. However, Tenant shall pay and be liable for all
rental, sales and use taxes, if any, imposed upon or
measured by Rent under applicable Law. If an assessment is
payable in installments, Taxes for the year shall include
the amount of the installment and any interest due and
payable during that year. For all other real estate taxes,
Taxes for that year shall, at Landlord's election, include
either the amount accrued, assessed or otherwise imposed for
the year or the amount due and payable for that year,
provided that Landlord's election shall be applied
consistently throughout the Term. If a change in Taxes is
obtained for any year of the Term, then Taxes for that year
will be retroactively adjusted and Landlord shall provide
Tenant with a credit, if any, based on the adjustment.
Tenant shall be responsible for, and shall pay prior to
delinquency, taxes or governmental service fees, possessory
interest taxes, fees or charges in lieu of any such taxes,
capital levies, or other charges imposed upon, levied with
respect to, or assessed against, its personal property, and
its interest pursuant to this Lease. To the extent that any
such taxes are not separately assessed or billed to Tenant,
Tenant shall pay the amount thereof as invoiced to Tenant by
Landlord prior to the delinquency of such taxes. In the event
that the tenant improvements in the Buildings which correspond
to the Initial Alterations, as defined in this Lease, are
assessed and taxed separately by the applicable taxing
authority, then Tenant shall be liable and shall pay that
portion of the Taxes applicable to the value of the Initial
Alterations in the Premises based on the value attributed
thereto by the applicable taxing authority to either (a) the
applicable taxing authority prior to the delinquency of such
taxes in the event Tenant is billed directly by such taxing
authority, or (b) the Landlord within 30 days after written
demand, in the event Landlord is billed directly by the
applicable taxing authority.
E. AUDIT RIGHTS. Tenant may, within 90 days after receiving
Landlord's statement of Expenses, give Landlord written notice
("Review Notice") that Tenant intends to review Landlord's
records of the Expenses for that calendar year. Within a
reasonable time after receipt of the Review Notice, Landlord
shall make all pertinent records available for inspection that
are reasonably necessary for Tenant to conduct its review. If
any records are maintained at a location other than the office
of the Project, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and
shipping the records. If Tenant retains an agent to review
Landlord's records, the agent must be with a licensed CPA
firm. Tenant shall be solely responsible for all costs,
expenses and fees incurred for the audit. Within 60 days
after the records are made available to Tenant, Tenant shall
have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to
Landlord's statement of Expenses for that year. If Tenant
fails to give Landlord an Objection Notice within the 60 day
period or fails to provide Landlord with a Review Notice
within the 90 day period described above, Tenant shall be
deemed to have approved Landlord's statement of Expenses and
shall be barred from raising any claims regarding the Expenses
for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in
good faith to resolve any issues raised in Tenant's Objection
Notice. If Expenses for the calendar year are less than
reported, Landlord shall provide Tenant with a credit against
the next installment of Rent in the amount of the overpayment
by Tenant. Likewise, if Expenses for the calendar year are
greater than reported, Tenant shall pay Landlord the amount of
any underpayment within 30 days. The records obtained by
Tenant shall be treated as confidential. In addition, if
Expenses for the Building for the year in question were less
than stated by more than 10%, Landlord, within 30 days after
its receipt of paid invoices therefor from Tenant, shall
reimburse Tenant for any reasonable amounts paid by Tenant to
third parties in connection with such review by Tenant. In no
event shall Tenant be permitted to examine Landlord's records
or to dispute any statement of Expenses unless Tenant has paid
and continues to pay all Rent when due.
9
V. COMPLIANCE WITH LAWS; USE.
The Premises shall be used only for the Permitted Use and for no other
use whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Project or interferes with the operation of the Buildings or the Project.
Tenant shall comply with all Laws, including the Americans with Disabilities
Act, regarding the operation of Tenant's business and the use, condition,
configuration and occupancy of the Premises. Tenant, within 10 days after
receipt, shall provide Landlord with copies of any notices it receives regarding
a violation or alleged violation of any Laws relating to its use of the
Premises. Tenant shall comply with the rules and regulations of the Project
attached as EXHIBIT B and such other reasonable, nondiscriminatory rules and
regulations adopted by Landlord from time to time. Tenant shall also cause its
agents, contractors, subcontractors, employees, customers, and subtenants to
comply with all rules and regulations. Landlord shall not knowingly
discriminate against Tenant in Landlord's enforcement of the rules and
regulations. In the event of a conflict between any rules and regulations
enacted after the date hereof and the Lease, this Lease shall control.
VI. SECURITY DEPOSIT.
The Security Deposit shall be in the form of 2 irrevocable letters of
credit (the "Letters of Credit") which shall: (a) be in the amounts of
$1,000,000.00 and $600,000.00, respectively; (b) be issued on the form attached
hereto as EXHIBIT G; (c) name Landlord as its beneficiary; (d) be drawn on an
FDIC insured financial institution reasonably satisfactory to Landlord; and
(e) be annually renewable so as to expire no earlier than 60 days after the
Termination Date of this Lease. The Security Deposit shall be delivered to
Landlord in the form of 2 Letters of Credit, the first of which shall be in the
amount of $1,000,000.00 and shall be delivered to Landlord upon the execution of
this Lease by Tenant, and the second of which shall be in the amount of
$600,000.00 and shall be delivered to Landlord on the Building 1 Commencement
Date. The Security Deposit shall be held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a
measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant on the later to occur of (1) 45 days after the
date Tenant surrenders possession of the Premises to Landlord in accordance with
this Lease; or (2) 45 days after the Termination Date. If Landlord transfers
its interest in the Premises, Landlord may assign the Security Deposit to the
transferee and, following the assignment, Landlord shall have no further
liability for the return of the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts.
VII. SERVICES.
A. Tenant will be responsible, at its sole cost and expense, for
the furnishing of all services and utilities to the Premises,
including, but not limited to, heating, ventilation and air-
conditioning, electricity, water, light, power, trash pick-up,
sewer charges, telephone, janitorial and interior building
security services and all other utility services supplied to
the Premises, and all taxes and surcharges thereon. Landlord
agrees to maintain and repair the Property as described in
Article IX.B.
B. Any interruption or termination of services due to the
application of Laws, the failure of any equipment, the
performance of repairs, improvements or alterations, or the
occurrence of any other event (a "Service Failure") shall not
render Landlord liable to Tenant, constitute a constructive
eviction of Tenant, give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or
agreement. Furthermore, in no event shall Landlord be liable
to Tenant for any loss or damage, including the theft of
Tenant's Property (defined in Article XV), arising out of or
in connection with the failure of any security services,
personnel or equipment.
10
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold
Improvements") shall be owned by Landlord and shall remain upon the Premises
without compensation to Tenant. Leasehold Improvements shall not include
Tenant's trade fixtures or any of the items listed on EXHIBIT H, which items
shall at all times be owned by Tenant. Leasehold Improvements shall not include
Tenant's trade fixtures or any of the items listed on EXHIBIT H, which items
shall at all times be owned by Tenant. However, Landlord, by written notice to
Tenant within 30 days prior to the Termination Date, may require Tenant to
remove, at Tenant's expense: (1) Cable (defined in Section IX.A) installed by
or for the exclusive benefit of Tenant and located in the Premises or other
portions of the Project; and (2) any Leasehold Improvements that are performed
by or for the benefit of Tenant and, in Landlord's reasonable judgment, are of a
nature that would require removal and repair costs that are materially in excess
of the removal and repair costs associated with standard improvements to
buildings of this kind (collectively referred to as "Required Removables").
Without limitation, it is agreed that Required Removables include internal
stairways, raised floors, personal baths and showers, vaults, rolling file
systems and structural alterations and modifications of any type. The Required
Removables designated by Landlord shall be removed by Tenant before the
Termination Date, provided that upon prior written notice to Landlord, Tenant
may remain in the Premises for up to 15 days after the Termination Date for the
sole purpose of removing the Required Removables. Tenant's possession of the
Premises shall be subject to all of the terms and conditions of this Lease,
including the obligation to pay Rent on a per diem basis at the rate in effect
for the last month of the Term. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to remove any
Required Removables or perform related repairs in a timely manner, Landlord, at
Tenant's expense, may remove and dispose of the Required Removables and perform
the required repairs. Tenant, within 30 days after receipt of an invoice, shall
reimburse Landlord for the reasonable costs incurred by Landlord.
Notwithstanding the foregoing, Tenant, at the time it requests approval for a
proposed Alteration (defined in Section IX.C) or the Initial Alterations
(defined in EXHIBIT D), may request in writing that Landlord advise Tenant
whether the Alteration or the Initial Alterations, or any portion of the
Alteration or the Initial Alterations, will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration or the Initial
Alterations, if any, will be considered to be Required Removables.
IX. REPAIRS, MAINTENANCE AND ALTERATIONS.
A. TENANT'S REPAIR AND MAINTENANCE OBLIGATIONS. Tenant shall, at
its sole cost and expense, promptly perform all maintenance
and repairs to the Premises that are not Landlord's express
responsibility under this Lease, and shall keep the Premises
(interior and exterior) in good condition and repair
(including the replacement of any applicable improvements and
appurtenances when necessary), reasonable wear and tear
excepted. Tenant's repair and replacement obligations include,
without limitation, repairs to and replacements of: (1) floor
covering; (2) interior partitions; (3) doors; (4) walls and
wall coverings; (5) electronic, phone and data cabling and
related equipment (collectively, "Cable") that is installed by
or for the exclusive benefit of Tenant and located in the
Premises or other portions of the Project; (6) supplemental
air conditioning units, private showers and kitchens,
including hot water heaters, and similar facilities;
(7) mechanical (including HVAC), plumbing fixtures, sewer
connections (within the Buildings), wiring, electrical,
lighting, and fire, life safety equipment and systems serving
the Buildings and the Premises; (8) windows, glass and plate
glass; (9) ceilings; (10) roof membrane, roof screens and roof
screen penetrators; (11) skylights; (12) fixtures and
equipment; and (13) Alterations performed by contractors
retained by Tenant, including related HVAC balancing. All
work shall be performed in accordance with the rules and
procedures described in Section IX.C. below. In addition,
Tenant shall, at its sole cost and expense, provide janitorial
service to the Premises in a manner consistent with other
similar projects in the Mountain View, California area. The
janitorial service to be provided by Tenant shall include, but
not be limited to, the obligation to clean the exterior
windows (no more frequently than two (2) times per year) and
to keep the interior of the Premises such as the windows,
floors, walls, doors, showcases and fixtures clean and neat in
appearance and to remove all trash and debris which may be
found in or around the Premises. In addition, Tenant shall
keep and maintain the Premises in accordance with (i) the
Institute of Laboratory Animal Resources "Guide for the Care
and Use of Laboratory
11
Animals", (ii) the Animal Welfare Act (7 U.S.C. 2131 et.
seq.), and (iii) all other applicable Federal, State and
local laws, guidelines and policies relating to the
operation and maintenance of biomedical laboratory
facilities (collectively, the "Lab Standards"). Tenant
shall also enter into and keep and maintain in effect,
service contracts reasonably acceptable to Landlord with
contractors reasonably acceptable to Landlord for the
maintenance of those systems servicing the Buildings as
Landlord may reasonably designate, including, without
limitation, the HVAC and life safety systems of the
Buildings. In addition, Tenant shall perform infrared
testing of the electrical systems in the Buildings on a
commercially reasonable, regular basis to ensure that such
electrical systems are maintained in the manner required
herein. Without limiting the foregoing, Tenant shall, at
Tenant's sole cost and expense, (a) immediately replace all
broken glass in the Premises with glass equal to or in
excess of the specification and quality of the original
glass; and (b) repair any damage caused by Tenant, Tenant's
agents, employees, invitees, visitors, subtenants or
contractors. If Tenant fails to make any required repairs
to the Premises within 15 days after notice from Landlord
(although notice shall not be required if there is an
emergency), Landlord may make the repairs and Tenant shall
pay the reasonable cost of the repairs to Landlord within 30
days after receipt of an invoice, together with an
administrative charge in an amount equal to 10% of the cost
of the work performed. In addition, in the event Tenant
fails to make any required repairs or provide the required
janitorial services to the Premises and such failure
continues beyond the applicable cure period provided in
Article XIX.B. below, such failure shall constitute a
default under this Lease. Tenant shall maintain written
records of maintenance and repairs, as required by Law, and
shall use certified technicians to perform any such
maintenance and repairs, as so required.
B. LANDLORD'S REPAIR OBLIGATIONS. Landlord shall keep and
maintain in good repair and working order and make repairs to
and perform maintenance upon: (1) structural elements of the
Buildings, including Building foundations; (2) Common Areas
(including utility lines which run through the Common Areas);
and (3) the roof of the Buildings (other than the roof
membrane, roof screens and roof screen penetrators). Landlord
shall promptly make repairs (considering the nature and
urgency of the repair) for which Landlord is responsible.
C. ALTERATIONS. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the
Premises or other portions of the Buildings or the Project
(collectively referred to as "Alterations") without first
obtaining the written consent of Landlord in each instance,
which consent shall not be unreasonably withheld or delayed.
However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a
"Cosmetic Alteration"): (1) is not visible from the exterior
of the Premises or Buildings; (2) will not materially or
adversely affect the systems or structure of the Buildings;
and (3) cost less than $50,000.00 individually or $150,000.00
in the aggregate during any one year of the Term. However,
even though consent is not required, the performance of
Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work,
Tenant shall furnish Landlord with plans and specifications
reasonably acceptable to Landlord; names of contractors
reasonably acceptable to Landlord (provided that Landlord may
designate specific contractors with respect to building
systems); copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's
insurance in amounts reasonably required by Landlord; and any
security for performance that is reasonably required by
Landlord. Material changes to the plans and specifications
must also be submitted to Landlord for its approval.
Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to
the quality designated by Landlord as the minimum standard for
the Buildings and the Project. To the extent reasonably
necessary to avoid disruption to the occupants of the
Buildings and the Project and to ensure that any work
performed at the Buildings is performed in a good and
workmanlike manner in accordance with all applicable Laws and
the terms of this Lease, Landlord may designate reasonable
rules, regulations and procedures for the performance of work
in the Buildings and the Project and Landlord shall have the
right to designate the time when Alterations may be performed.
Tenant shall reimburse Landlord within 30 days after receipt
of an invoice for sums paid by Landlord for third party
examination of Tenant's
12
plans for non-Cosmetic Alterations. In addition, within 30
days after receipt of an invoice from Landlord, Tenant shall
pay Landlord a fee for Landlord's oversight and coordination
of any non-Cosmetic Alterations equal to 5% of the cost of
the non-Cosmetic Alterations. Upon completion, Tenant shall
furnish "as-built" plans (except for Cosmetic Alterations),
completion affidavits, full and final waivers of lien in
recordable form, and receipted bills covering all labor and
materials. Tenant shall assure that the Alterations comply
with all insurance requirements and Laws. Landlord's
approval of an Alteration shall not be a representation by
Landlord that the Alteration complies with applicable Laws
or will be adequate for Tenant's use.
X. USE OF UTILITY SERVICES BY TENANT.
A. Electricity, gas, water and other utility services used by
Tenant in the Premises shall be paid for by Tenant by separate
charge billed by the applicable utility company and payable
directly by Tenant. Electrical service to the Common Areas
may be furnished by one or more companies providing electrical
generation, transmission and distribution services, and the
cost of electricity may consist of several different
components or separate charges for such services, such as
generation, distribution and stranded cost charges. Landlord
shall have the exclusive right to select any company providing
electrical service to the Common Areas, to aggregate the
electrical service for the Common Areas of the Project with
other buildings, to purchase electricity through a broker
and/or buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive
a fee (if permitted by Law) for the selection of utility
companies and the negotiation and administration of contracts
for electricity, provided that the amount of such fee shall
not exceed 50% of any savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, or overall load, the Buildings'
electrical capacity (as reasonably determined by Landlord).
If Tenant requests permission to consume excess electrical
service, Landlord may refuse to consent or may condition
consent upon conditions that Landlord reasonably elects
(including, without limitation, the installation of utility
service upgrades, meters, submeters, air handlers or cooling
units), and the additional usage (to the extent permitted by
Law), installation and maintenance costs shall be paid by
Tenant. Landlord's consent to any such request shall not be
unreasonably withheld, conditioned or delayed. Landlord shall
have the right to separately meter electrical usage for the
Premises and to measure electrical usage by survey or other
commonly accepted methods.
XI. ENTRY BY LANDLORD.
Subject to Tenant's reasonable security and operating procedures,
Landlord, its agents, contractors and representatives may enter the Premises to
inspect or show the Premises, to clean and make repairs, alterations or
additions to the Premises, and to conduct or facilitate repairs, alterations or
additions to any portion of the Buildings or the Project, including other
tenants' premises. Except in emergencies or to provide regularly scheduled
services, Landlord shall provide Tenant with reasonable prior notice of entry
into the Premises, which may be given orally. If reasonably necessary for the
protection and safety of Tenant and its employees, Landlord shall have the right
to temporarily close all or a portion of the Premises to perform repairs,
alterations and additions. However, except in emergencies, Landlord will not
close the Premises if the work can reasonably be completed on weekends and after
the hours of 8:00 A.M. to 5:00 P.M. on Business Days. Entry by Landlord shall
not constitute constructive eviction or entitle Tenant to an abatement or
reduction of Rent.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in
Section XII.E. below), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any
third party to use any portion of the Premises (collectively
or individually, a "Transfer") without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld, delayed or conditioned, subject to Landlord's
termination rights under Section XII.B below. Without
limitation, it is agreed that Landlord's consent shall not be
considered unreasonably withheld if:
13
(1) the proposed transferee's financial condition does not
meet the criteria Landlord uses to select Project tenants
having similar leasehold obligations; (2) the proposed
transferee's business is not suitable for the Building(s) or
the Project considering the business of the other tenants
and the Project's prestige, or would result in a violation
of another tenant's rights; (3) the proposed transferee is a
governmental agency or occupant of the Project; (4) Tenant
is in default after the expiration of the notice and cure
periods in this Lease; or (5) any portion of the
Building(s), Project or Premises would likely become subject
to additional or different Laws as a consequence of the
proposed Transfer. Notwithstanding the foregoing, Landlord
will not withhold its consent solely because the proposed
subtenant or assignee is an occupant of the Project if
Landlord does not have space available for lease in the
Project that is comparable to the space Tenant desires to
sublet or assign. For purposes hereof, Landlord shall be
deemed to have comparable space if it has space available on
any floor of any Building of the Project that is
approximately the same size as the space Tenant desires to
sublet or assign within 6 months of the proposed
commencement of the proposed sublease or assignment, and
such comparable space is configured and improved in such a
manner that the space which Tenant desires to sublease or
assign and the Landlord's comparable space can be utilized
for substantially similar uses (e.g. science labs). Tenant
shall not be entitled to receive monetary damages based upon
a claim that Landlord unreasonably withheld its consent to a
proposed Transfer and Tenant's sole remedy shall be an
action to enforce any such provision through specific
performance or declaratory judgment. Any attempted Transfer
in violation of this Article shall, at Landlord's option, be
void. Consent by Landlord to one or more Transfer(s) shall
not operate as a waiver of Landlord's rights to approve any
subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any
obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer,
Tenant shall provide Landlord with financial statements for
the proposed transferee, a complete copy of the proposed
assignment, sublease and other contractual documents and such
other information as Landlord may reasonably request.
Landlord shall, by written notice to Tenant within 20 Business
Days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the
execution of a consent agreement in a form reasonably
designated by Landlord or reasonably refuse to consent to the
Transfer in writing; or (2) in the event of (i) a sublease of
any portion of the Premises which would (a) result in 50% or
more of the Premises in the aggregate being subject to
sublease(s), or (b) be for more than 50% of the then remaining
Term, or (ii) an assignment of this Lease, exercise its right
to terminate this Lease with respect to the portion of the
Premises that Tenant is proposing to assign or sublet. Any
such termination shall be effective on the proposed effective
date of the Transfer for which Tenant requested consent.
Tenant shall pay Landlord a review fee of $750.00 for
Landlord's review of any Permitted Transfer or requested
Transfer, provided if Landlord's actual reasonable costs and
expenses (including reasonable attorney's fees) exceed
$750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee,
up to a maximum of $1,500.00.
C. Tenant shall pay Landlord 50% of all rent and other
consideration which Tenant receives as a result of a Transfer
that is in excess of the Rent payable to Landlord for the
portion of the Premises and Term covered by the Transfer.
Tenant shall pay Landlord for Landlord's share of any excess
within 30 days after Tenant's receipt of such excess
consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer (other than Landlord's review
fee), including brokerage fees, legal fees, construction costs
and the unamortized cost of all Tenant improvements paid for
by Tenant in connection with the Transfer. If Tenant is in
Monetary Default (defined in Section XIX.A. below), Landlord
may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against
Rent in the amount of any payments received (less Landlord's
share of any excess).
D. Except as provided below with respect to a Permitted Transfer,
if Tenant is a corporation, limited liability company,
partnership, or similar entity, and if the
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entity which owns or controls a majority of the voting
shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or
reorganization), such change of ownership or control shall
constitute a Transfer provided, however, that none of the
following shall constitute a Transfer, or be considered in
determining whether or not a change of control has occurred:
(i) any transfer of stock in a corporation that is the
Tenant if the stock of such corporation is publicly held and
traded through a recognized security exchange; and (ii) if
Tenant is a corporation, any initial public offering of such
stock in connection with the listing of such stock on a
recognized security exchange. Additionally, the foregoing
change of control provisions shall not apply if at least 80%
of its voting stock is owned by another entity, the voting
stock of which is listed on a recognized security exchange.
Notwithstanding the foregoing to the contrary, any change in
control resulting from the addition of additional equity
investors shall not require Landlord's prior consent,
provided (a) Landlord shall be notified of such change in
control within 30 days following the effective date of such
change in control, and (b) the management and operations of
Tenant do not materially change as a result of such change
in control.
E. Notwithstanding anything to the contrary contained herein or
in Section XII.D., Tenant may assign its entire interest under
this Lease or sublet the Premises to a wholly owned
corporation, partnership or other legal entity or affiliate,
subsidiary or parent of Tenant or to any successor to Tenant
by purchase, merger, consolidation or reorganization
(hereinafter, collectively, referred to as "Permitted
Transfer") without the consent of Landlord, provided:
(i) Tenant is not in default under this Lease; (ii) if such
proposed transferee is a successor to Tenant by purchase,
merger, consolidation or reorganization, the continuing or
surviving entity shall own all or substantially all of the
assets of Tenant and shall have a net worth which is at least
equal to the greater of Tenant's net worth at the date of this
Lease or Tenant's net worth at the date of the Transfer;
(iii) such proposed transferee operates the business in the
Premises for the Permitted Use and no other purpose; and
(iv) in no event shall any Permitted Transfer release or
relieve Tenant from any of its obligations under this Lease.
Tenant shall give Landlord written notice at least 10 Business
Days prior to the effective date of such Permitted Transfer.
As used herein: (a) "parent" shall mean a company which owns
a majority of Tenant's voting equity; (b) "subsidiary" shall
mean an entity wholly owned by Tenant or at least 51% of whose
voting equity is owned by Tenant; and (c) "affiliate" shall
mean an entity controlled, controlling or under common control
with Tenant. Notwithstanding the foregoing, sale of the shares
of equity of any affiliate or subsidiary to which this Lease
has been assigned or transferred other than to another parent,
subsidiary or affiliate of the original Tenant named hereunder
shall be deemed to be an assignment requiring the consent of
Landlord hereunder.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon
the Project, Property, Premises or Tenant's leasehold interest in connection
with any work or service done or purportedly done by or for benefit of
Tenant. If a lien is so placed, Tenant shall, within 10 days of notice from
Landlord of the filing of the lien, fully discharge the lien by settling the
claim which resulted in the lien or by bonding or insuring over the lien in
the manner prescribed by the applicable lien Law. If Tenant fails to
discharge the lien, then, in addition to any other right or remedy of
Landlord, Landlord may bond or insure over the lien or otherwise discharge
the lien. Tenant shall reimburse Landlord for any amount paid by Landlord to
bond or insure over the lien or discharge the lien, including, without
limitation, reasonable attorneys' fees (if and to the extent permitted by
Law) within 30 days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties
(defined below), Tenant shall indemnify, defend and hold
Landlord, its trustees, members, principals, beneficiaries,
partners, officers, directors, employees, Mortgagee(s)
(defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
15
to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Landlord or any of the
Landlord Related Parties and arising out of or in connection
with any damage or injury occurring in the Premises or any
acts or omissions (including violations of Law) of Tenant, the
Tenant Related Parties (defined below) or any of Tenant's
transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees and agents ("Tenant Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Tenant or any of the Tenant
Related Parties and arising out of or in connection with the
acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable
for, and Tenant waives, all claims for loss or damage to
Tenant's business or loss, theft or damage to Tenant's
Property or the property of any person claiming by, through or
under Tenant resulting from: (1) wind or weather; (2) the
failure of any sprinkler, heating or air-conditioning
equipment, any electric wiring or any gas, water or steam
pipes; (3) the backing up of any sewer pipe or downspout;
(4) the bursting, leaking or running of any tank, water
closet, drain or other pipe; (5) water, snow or ice upon or
coming through the roof, skylight, stairs, doorways, windows,
walks or any other place upon or near the Buildings or the
Project; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Notwithstanding
the foregoing, except as provided in Article XVI to the
contrary, Tenant shall not be required to waive any claims
against Landlord (other than for loss or damage to Tenant's
business) where such loss or damage is due to Landlord's
negligence. Nothing herein shall be construed as to diminish
the repair and maintenance obligations of Landlord contained
elsewhere in this Lease. Tenant shall insure itself against
such losses under Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $3,000,000.00; (2) All Risk
Property/Business Interruption Insurance, written at replacement cost value and
with a replacement cost endorsement covering all of Tenant's trade fixtures,
equipment, furniture and other personal property within the Premises ("Tenant's
Property"); (3) Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be required by applicable
statute; and (4) Employers Liability Coverage of at least $1,000,000.00 per
occurrence. Any company writing any of Tenant's Insurance shall have an A.M.
Best rating of not less than A-VIII. All Commercial General Liability Insurance
policies shall name Tenant as a named insured and Landlord (or any successor),
Equity Office Properties Trust, a Maryland real estate investment trust, EOP
Operating Limited Partnership, a Delaware limited partnership, and their
respective members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and other designees of Landlord as the interest of such
designees shall appear, as additional insureds. All policies of Tenant's
Insurance shall contain endorsements that the insurer(s) shall give Landlord and
its designees at least 30 days' advance written notice of any reduction in
coverage, cancellation, termination or lapse of insurance. Tenant shall provide
Landlord with a certificate of insurance evidencing Tenant's Insurance prior to
the earlier to occur of the Commencement Date or the date Tenant is provided
with possession of the Premises for any reason, and upon renewals at least 15
days prior to the expiration of the insurance coverage. Landlord shall maintain
standard so called All Risk property insurance on the Buildings in an amount
equal to 90% of the replacement cost thereof at the time in question, as
reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's' insurance shall not limit such party's
liability under this Lease.
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XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim, action or causes of action against the
other and their respective trustees, principals, beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Project,
the Buildings, the Premises, any additions or improvements to the Project,
Buildings or Premises, or any contents thereof, including all rights of
recovery, claims, actions or causes of action arising out of the negligence of
Landlord or any Landlord Related Parties or the negligence of Tenant or any
Tenant Related Parties, which loss or damage is (or would have been, had the
insurance required by this Lease been carried) covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing.
During any period of time that all or a material portion of
the Premises is rendered untenantable as a result of a fire or
other casualty, the Rent shall xxxxx for the portion of the
Premises that is untenantable and not used by Tenant.
Landlord shall have the right to terminate this Lease if:
(1) one or both of the Buildings or the Project shall be
damaged so that, in Landlord's reasonable judgment,
substantial alteration or reconstruction of one or both of the
Buildings or the Project shall be required (whether or not the
Premises has been damaged); (2) Landlord is not permitted by
Law to rebuild one or both of the Buildings or the Project in
substantially the same form as existed before the fire or
casualty; (3) the Premises have been materially damaged and
there is less than 2 years of the Term remaining on the date
of the casualty; (4) any Mortgagee requires that the insurance
proceeds be applied to the payment of the mortgage debt; or
(5) a material uninsured loss to one or both of the Buildings
or the Project occurs. Landlord may exercise its right to
terminate this Lease by notifying Tenant in writing within 90
days after the date of the casualty. If Landlord does not
terminate this Lease, Landlord shall commence and proceed with
reasonable diligence to repair and restore the Building(s) and
the Leasehold Improvements (excluding any Alterations that
were performed by Tenant in violation of this Lease).
However, in no event shall Landlord be required to spend more
than the insurance proceeds received by Landlord. Landlord
shall not be liable for any loss or damage to Tenant's
Property or to the business of Tenant resulting in any way
from the fire or other casualty or from the repair and
restoration of the damage. Landlord and Tenant hereby waive
the provisions of any Law relating to the matters addressed in
this Article, and agree that their respective rights for
damage to or destruction of the Premises shall be those
specifically provided in this Lease.
B. If all or any portion of the Premises shall be made
untenantable by fire or other casualty, Landlord shall, with
reasonable promptness, cause an architect or general
contractor selected by Landlord to provide Landlord and Tenant
with a written estimate of the amount of time required to
substantially complete the repair and restoration of the
Premises and make the Premises tenantable again, using
standard working methods ("Completion Estimate"). If the
Completion Estimate indicates that the Premises cannot be made
tenantable within 270 days from the date the repair and
restoration is started, then regardless of anything in
Section XVII.A above to the contrary, either party shall have
the right to terminate this Lease by giving written notice to
the other of such election within 10 days after receipt of the
Completion Estimate. Tenant, however, shall not have the
right to terminate this Lease if the fire or casualty was
caused by the negligence or intentional misconduct of Tenant,
Tenant Related Parties or any of Tenant's transferees,
contractors or licensees.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material
part of the Premises shall be taken or condemned for any public or quasi-public
use under Law, by eminent domain or private purchase in lieu thereof (a
"Taking"). Landlord shall also have the right to terminate this Lease if there
is a Taking of any portion of one or both of the Buildings, the Property or the
17
Project which would leave the remainder of one or both of the Buildings or the
Project unsuitable for use as an office building or an office park, as the case
may be, in a manner comparable to the use of the Buildings and/or the Project
prior to the Taking. In order to exercise its right to terminate the Lease,
Landlord or Tenant, as the case may be, must provide written notice of
termination to the other within 45 days after the terminating party first
receives notice of the Taking. Any such termination shall be effective as of
the date the physical taking of the Premises or the portion of the Project,
Buildings or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Buildings, the Rentable Square Footage of the Premises,
the Rentable Square Footage of the Project and Tenant's Pro Rata Share shall, if
applicable, be appropriately adjusted. In addition, Rent for any portion of the
Premises taken or condemned shall be abated during the unexpired Term of this
Lease effective when the physical taking of the portion of the Premises occurs.
All compensation awarded for a Taking, or sale proceeds, shall be the property
of Landlord, any right to receive compensation or proceeds being expressly
waived by Tenant. However, Tenant may file a separate claim at its sole cost
and expense for Tenant's Property and Tenant's reasonable relocation expenses,
provided the filing of the claim does not diminish the award which would
otherwise be receivable by Landlord.
XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the
Rent, if the failure continues for 3 days after written notice
to Tenant ("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, if the
failure is not cured within 30 days after written notice to
Tenant. However, if Tenant's failure to comply cannot
reasonably be cured within 30 days, Tenant shall be allowed
additional time as is reasonably necessary to cure the failure
so long as: (1) Tenant commences to cure the failure within
30 days, and (2) Tenant diligently pursues a course of action
that will cure the failure and bring Tenant back into
compliance with the Lease. However, if Tenant's failure to
comply creates a hazardous condition, the failure must be
cured immediately upon notice to Tenant. In addition, if
Landlord, in good faith, provides Tenant with notice of
Tenant's failure to comply with any particular term, provision
or covenant of the Lease on 3 occasions during any 12 month
period, Tenant's subsequent violation of such term, provision
or covenant shall, at Landlord's option, be an incurable event
of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts
when due.
D. The leasehold estate is taken by process or operation of Law.
XX. REMEDIES.
A. Upon the occurrence of any event or events of default under
this Lease, whether enumerated in Article XIX or not, Landlord
shall have the option to pursue any one or more of the
following remedies without any notice (except as expressly
prescribed herein) or demand whatsoever (and without limiting
the generality of the foregoing, Tenant hereby specifically
waives notice and demand for payment of Rent or other
obligations and waives any and all other notices or demand
requirements imposed by applicable Law):
1. Terminate this Lease and Tenant's right to possession of
the Premises and recover from Tenant an award of damages
equal to the sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent
which had been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by
which the unpaid Rent which would have been earned
after termination until
18
the time of award exceeds the amount of such Rent
loss that Tenant affirmatively proves could have
been reasonably avoided;
(c) The Worth at the Time of Award of the amount by
which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of such
Rent loss that Tenant affirmatively proves could be
reasonably avoided;
(d) Any other amount necessary to compensate Landlord
for all the detriment either proximately caused by
Tenant's failure to perform Tenant's obligations
under this Lease or which in the ordinary course of
things would be likely to result therefrom; and
(e) All such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time
under applicable law.
The "Worth at the Time of Award" of the amounts referred
to in parts (a) and (b) above, shall be computed by
allowing interest at the lesser of a per annum rate equal
to: (i) the greatest per annum rate of interest permitted
from time to time under applicable law, or (ii) the Prime
Rate plus five percent (5%). For purposes hereof, the
"Prime Rate" shall be the per annum interest rate
publicly announced as its prime or base rate by a
federally insured bank selected by Landlord in the State
of California. The "Worth at the Time of Award" of the
amount referred to in part (c), above, shall be computed
by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of
award plus one percent (1%);
2. Employ the remedy described in California Civil Code
Section 1951.4 (Landlord may continue this Lease in
effect after Tenant's breach and abandonment and recover
Rent as it becomes due, if Tenant has the right to sublet
or assign, subject only to reasonable limitations); or
3. Notwithstanding Landlord's exercise of the remedy
described in California Civil Code Section 1951.4 in
respect of an event or events of default, at such time
thereafter as Landlord may elect in writing, to terminate
this Lease and Tenant's right to possession of the
Premises and recover an award of damages as provided
above in Paragraph XX.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent. No waiver by Landlord of
any breach hereof shall be effective unless such waiver is in
writing and signed by Landlord.
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION
3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c)
AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY
AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN
EFFECT DURING THE LEASE TERM PROVIDING THAT TENANT SHALL HAVE
ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING
ITS TERMINATION BY REASON OF TENANT'S BREACH. TENANT ALSO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING BASED UPON A BREACH
OF THIS LEASE.
D. No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing by agreement,
applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable Law, to injunctive relief, or
to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to
any other remedy allowed to Landlord at law or in equity.
19
Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of such
default.
E. This Article XX shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable Law, and the
unenforceability of any portion thereof shall not thereby
render unenforceable any other portion.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROJECT. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROJECT FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROJECT, BUILDING OR PREMISES, NOTICE AND
REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys
to the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Buildings, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
INTENTIONALLY OMITTED.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease and Tenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 140% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Buildings,
20
the Property or the Project, and to renewals, modifications, refinancings and
extensions thereof (collectively referred to as a "Mortgage"). The party
having the benefit of a Mortgage shall be referred to as a "Mortgagee". This
clause shall be self-operative, but upon request from a Mortgagee, Tenant
shall execute a commercially reasonable subordination agreement in favor of
the Mortgagee. In lieu of having the Mortgage be superior to this Lease, a
Mortgagee shall have the right at any time to subordinate its Mortgage to
this Lease. If requested by a successor-in-interest to all or a part of
Landlord's interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Landlord and Tenant shall each, within 10 days after
receipt of a written request from the other, execute and deliver an estoppel
certificate to those parties as are reasonably requested by the other
(including a Mortgagee or prospective purchaser). The estoppel certificate
shall include a statement certifying that this Lease is unmodified (except as
identified in the estoppel certificate) and in full force and effect,
describing the dates to which Rent and other charges have been paid,
representing that, to such party's actual knowledge, there is no default (or
stating the nature of the alleged default) and indicating other matters with
respect to the Lease that may reasonably be requested. Notwithstanding the
foregoing, upon written request by Tenant, Landlord will use reasonable
efforts to obtain a non-disturbance, subordination and attornment agreement
from Landlord's then current Mortgagee on such Mortgagee's then current
standard form of agreement. "Reasonable efforts" of Landlord shall not
require Landlord to incur any cost, expense or liability to obtain such
agreement, it being agreed that Tenant shall be responsible for any fee or
review costs charged by the Mortgagee. Upon request of Landlord, Tenant will
execute the Mortgagee's commercially reasonable form of non-disturbance,
subordination and attornment agreement and return the same to Landlord for
execution by the Mortgagee. Landlord's failure to obtain a non-disturbance,
subordination and attornment agreement for Tenant shall have no effect on the
rights, obligations and liabilities of Landlord and Tenant or be considered
to be a default by Landlord hereunder.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of
or to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery or the date on which delivery is refused,
or, if Tenant has vacated the Premises or the other Notice Address of Tenant
without providing a new Notice Address, three (3) days after notice is deposited
in the U.S. mail or with a courier service in the manner described above.
Either party may, at any time, change its Notice Address by giving the other
party written notice of the new address in the manner described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about
the Buildings or the Project. Subject to Tenant's reasonable security and
operating procedures and the provisions of Article XI of this Lease, Landlord
excepts and reserves to itself the use of: (1) roofs, (2) telephone and
electrical closets, (3) equipment rooms, Building risers or similar areas,
(4) rights to the land and improvements below the floor of the Premises, (5)
the improvements and air rights above the Premises and the Project, (6) the
improvements and air rights outside the demising walls of the Premises, and
(7) the areas within the Premises used for the installation of utility lines
and other installations serving occupants of the Buildings and/or the
Project. Notwithstanding the foregoing to the contrary, and subject to the
terms of Article IX above, Tenant shall have the right to access the areas
specified in subclauses (1), (2), (3) and (7) above. Landlord has the right
to change the name or address of the Buildings and/or the Project. Landlord
also has the right to make such other changes to the Project, Property and
Buildings as Landlord deems appropriate, provided the changes do not
materially affect
21
Tenant's ability to use the Premises for the Permitted Use or increase any
Rent payable by Tenant (except to the extent provided and permitted pursuant
to Article IV above). Landlord shall also have the right (but not the
obligation) to temporarily close the Buildings and/or the Project if Landlord
reasonably determines that there is an imminent danger of significant damage
to the Buildings or the Project or of personal injury to Landlord's employees
or the occupants of the Buildings and/or the Project. The circumstances
under which Landlord may temporarily close the Buildings and/or the Project
shall include, without limitation, electrical interruptions, hurricanes and
civil disturbances. A closure of the Buildings and/or the Project under such
circumstances shall not constitute a constructive eviction nor entitle Tenant
to an abatement or reduction of Rent.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property (defined in
Article XV) from the Premises, and quit and surrender the Premises to Landlord,
broom clean, and in good order, condition and repair, ordinary wear and tear
excepted. Tenant shall also be required to remove the Required Removables in
accordance with Article VIII. If Tenant fails to remove any of Tenant's
Property within 2 days after the termination of this Lease or of Tenant's right
to possession, Landlord, at Tenant's sole cost and expense, shall be entitled
(but not obligated) to remove and store Tenant's Property. Landlord shall not
be responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred for Tenant's Property. In addition, if Tenant fails to remove Tenant's
Property from the Premises or storage, as the case may be, within 30 days after
written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately
vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall
be interpreted, construed and enforced in accordance with the
Laws of the State of California and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of
such state. If any term or provision of this Lease shall to
any extent be invalid or unenforceable, the remainder of this
Lease shall not be affected, and each provision of this Lease
shall be valid and enforced to the fullest extent permitted by
Law. The headings and titles to the Articles and Sections of
this Lease are for convenience only and shall have no effect
on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in
any proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of
days that the performance is actually delayed due to strikes,
acts of God, shortages of labor or materials, war, civil
disturbances and other causes beyond the reasonable control of
the performing party ("Force Majeure"). However, events of
Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right
by either party.
E. Landlord shall have the right to transfer and assign, in whole
or in part, all of its rights and obligations under this Lease
and in the Project, Buildings and/or Property referred to
herein, and upon such transfer Landlord shall be released from
any further obligations hereunder, and Tenant agrees to look
solely to the successor in interest of Landlord for the
performance of such obligations. Notwithstanding the
foregoing, unless such liability is assumed in writing by its
successor in interest hereunder, Landlord shall remain liable
after its period of ownership with respect to any sums due in
connection with a breach or default that arose during such
period of ownership.
22
F. Tenant represents that it has dealt directly with and only
with the Broker as a broker in connection with this Lease.
Tenant shall indemnify and hold Landlord and the Landlord
Related Parties harmless from all claims of any other brokers
claiming to have represented Tenant in connection with this
Lease. Landlord agrees to indemnify and hold Tenant and the
Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this
Lease. Landlord agrees to pay a brokerage commission to
Broker in accordance with the terms of a separate written
commission agreement to be entered into by and between
Landlord and Broker, provided that in no event shall Landlord
be obligated to pay a commission to Broker in connection with
any extension of the Term or in connection with any additional
space that is leased by Tenant pursuant to the terms of this
Lease.
G. Tenant covenants, warrants and represents that: (1) each
individual executing, attesting and/or delivering this Lease
on behalf of Tenant is authorized to do so on behalf of
Tenant; (2) this Lease is binding upon Tenant; and (3) Tenant
is duly organized and legally existing in the state of its
organization and is qualified to do business in the State of
California. Landlord covenants, warrants and represents that
(1) each individual executing, attesting and/or delivering
this Lease on behalf of Landlord is authorized to do so on
behalf of Landlord; (2) this Lease is binding upon Landlord;
and (3) Landlord is duly organized and legally existing in the
state of its organization and is qualified to do business in
the State of California. If there is more than one Tenant, or
if Tenant is comprised of more than one party or entity, the
obligations imposed upon Tenant shall be joint and several
obligations of all the parties and entities. Notices,
payments and agreements given or made by, with or to any one
person or entity shall be deemed to have been given or made
by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of
any expansion, renewal or extension rights granted to Tenant.
This Lease shall create only the relationship of landlord and
tenant between the parties, and not a partnership, joint
venture or any other relationship. This Lease and the
covenants and conditions in this Lease shall inure only to the
benefit of and be binding only upon Landlord and Tenant and
their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or
otherwise, shall not relieve either party of any obligations
which accrued prior to or which may continue to accrue after
the expiration or early termination of this Lease. Without
limiting the scope of the prior sentence, it is agreed that
Tenant's obligations under Articles VIII, XIV, XX, XXV and
XXX, and any accrued obligations under Article IV shall
survive the expiration or early termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery of it does not
constitute an offer to Tenant or an option. This Lease shall
not be effective against any party hereto until an original
copy of this Lease has been signed by such party.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is
relying upon any warranty, statement or representation not
contained in this Lease. This Lease may be modified only by a
written agreement signed by Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord
with a current financial statement and such other information
as Landlord may reasonably request in order to create a
"business profile" of Tenant and determine Tenant's ability to
fulfill its obligations under this Lease. Landlord, however,
shall not require Tenant to provide such information unless
Landlord is requested to produce the information in connection
with a proposed financing or sale of the Building(s) and/or
the Project. Upon written request by Tenant, Landlord shall
enter into a commercially reasonable confidentiality agreement
covering any confidential information that is disclosed by
Tenant.
M. This Lease shall be subject to the terms and conditions of
(a) Declaration Of Covenants, Conditions And Restrictions Of
Shoreline Technology Park ("Declaration") imposing certain
covenants, conditions and restrictions on the use
23
and management of Shoreline Technology Park, (b) the Bylaws
("Bylaws") of Shoreline Park Association ("Association"), a
California nonprofit mutual benefit corporation charged with
the responsibility of managing Shoreline Technology Park in
accordance with the Declaration, Articles Of Incorporation of
the Association ("Articles") and the Bylaws, and (c) the rules
("Rules") adopted from time to time by the Association in
accordance with the Declaration providing for restrictions on
the use of Shoreline Technology Park. The Declaration,
Bylaws, Articles and Rules are collectively referred to herein
as the "Governing Documents". Any failure to comply with the
Governing Documents shall be a default under the terms of this
Lease.
N. Except with regard to requests for consent or approval that
require Landlord to make a determination of the aesthetics of
certain signage, alterations or other things that would be
visible from outside the Premises or Buildings or to assume
certain risks, including, without limitation, the risk that a
certain alteration, addition and/or improvement could
adversely affect the mechanical systems or structure of the
Buildings or require excess removal costs, Landlord and Tenant
agree to act reasonably in granting approval or disapproval of
any requests by the other for consent or approval.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: EXHIBIT A-1 (Outline and Location of Premises),
EXHIBIT A-2 (Outline and Location of Project), EXHIBIT A-3 (Outline and Location
of Recreational Area), EXHIBIT B (Rules and Regulations), EXHIBIT C
(Commencement Letter), EXHIBIT D (Work Letter Agreement), EXHIBIT E (Additional
Provisions), EXHIBIT F (Parking Agreement), EXHIBIT G (Form of Letter of Credit)
and EXHIBIT H (Tenant's Trade Fixtures and Equipment).
24
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------
Title: Senior Vice President
--------------------------------
TENANT:
INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------
Title: President and CEO
-----------------------------
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: V.P. Corp. Strategy & Finance
-----------------------------
25
EXHIBIT "A"
Date:
To: Silicon Valley Bank
0000 Xxxxxx Xxxxx Re: Standby Letter of Credit
Xxxxx Xxxxx, XX 00000 No. SVBF00IS2056 Issued By
Attn: International Division. Silicon Valley Bank, Santa Xxxxx
Standby Letters of Credit L/C Amount:
Gentlemen:
For value received, the undersigned Beneficiary hereby irrevocably transfers to:
(Name of Transferee)
(Address)
All rights of the undersigned Beneficiary to draw under the above letter of
credit up to its available amount as shown above as of the date of this
transfer.
By this transfer, all rights of the undersigned Beneficiary in such letter of
credit are transferred to the Transferee. Transferee shall have the sole right
as Beneficiary thereof, including sole rights relating to any amendments,
whether increases or extensions or other amendments, and whether now existing or
hereafter made. All amendments are to be advised direct to the Transferee
without necessity of any consent of or notice to the undersigned Beneficiary.
The original of such letter of credit is returned herewith, and we ask you to
endorse the transfer on the reverse thereof, and forward it directly to the
Transferee with your customary Notice of Transfer.
Sincerely,
-----------------------
(Beneficiary's Name)
-----------------------
Signature of Beneficiary
-----------------------
(Name of Bank)
-----------------------
Authorized Signature
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2056
Date: February 1, 2000
Beneficiary:
EOP-Shoreline Technology Park, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
As "Landlord"
Applicant:
IntraBiotics Pharmaceuticals, Inc.
0000 Xxxxx Xxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
As "Tenant"
Amount: US$1,000,000.00 (One Million and No/100 U.S. Dollars)
Expiration Date: May 1, 2001
Location: At our counters in Santa Clara, California
Dear Sir/Madam:
We hereby establish our irrevocable standby letter of credit No. SVB00IS2056 in
your favor available by your drafts drawn on us at sight and accompanied by the
following documents:
1. The original of this letter of credit and all amendment(s), if any.
2. A dated certification signed by an authorized officer of the beneficiary,
followed by its designated title, stating the following:
(A) "This draw in the amount of U.S. $___________ (amount in words) under
your irrevocable letter of credit number: SVB00IS2056 represents funds
due and owing to us as a result of the Applicant's failure to comply
with one or more of the terms of that certain lease by and between
EOP-Shoreline Technology Park, L.L.C., as Landlord, and IntraBiotics
Pharmaceuticals, Inc., as Tenant."
Partial draws are allowed. This letter of credit must accompany any drawings
hereunder for endorsement of the drawing amount and will be returned to the
beneficiary unless it is fully utilized.
This letter of credit shall be automatically extended for an additional period
of one year, without amendment, from the present or each future expiration date
but in any event not beyond June 30, 2011 which shall be the final expiration
date of this letter of credit, unless, at least sixty (60) days prior to the
then current expiration date we notify you by registered mail/overnight courier
service at the above address, with a copy of such notice to: Equity Office
Properties Trust, 2
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2056
Date: February 1, 0000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Senior Vice
President, Treasurer. That this letter of credit will not be extended beyond
the current expiration date. Upon receipt of such notice you may draw your
sight draft drawn on us for the available amount under this standby letter of
credit accompanied by your dated statement signed by one of your authorized
officers, followed by their designated title, certifying the following: "We
are in receipt of your notice that you have elected not to renew your
irrevocable standby letter of credit No.: SVB00IS2056 and Applicant has
failed to provide us with an acceptable substitute irrevocable letter of
credit in accordance with the terms of the above referenced lease."
This letter of credit may only be transferred in its entirety by the issuing
bank upon our receipt of the attached "Exhibit A" duly completed and executed
by the Beneficiary and accompanied by the original letter of credit and all
amendment(s), if any, together with the payment of our transfer fee of 1/4 of
1% of the transfer amount (minimum USD250.00).
Draft(s) and documents must indicate the number and date of this letter of
credit.
Documents must be forwarded to us by overnight delivery service to: Silicon
Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000, Attn: International
Division.
We hereby agree with the drawers, endorsers and bonafide holders that the drafts
drawn under and in accordance with the terms and conditions of this letter of
credit shall be duly honored upon presentation to the drawee, if negotiated on
or before the expiration date of this credit. We further acknowledge and agree
that upon receipt of the documentation required herein, we will honor your draws
against this irrevocable standby letter of credit without inquiry into the
accuracy of Beneficiary's signed statement and regardless of whether Applicant
disputes the content of such statement.
This letter of credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500.
-------------------------- --------------------------
Authorized Signature Authorized Signature
EXHIBIT A-1
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated as of
February 7, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
[MAP]
EXHIBIT A
Page 1
EXHIBIT A-2
OUTLINE AND LOCATION OF PROJECT
This Exhibit is attached to and made a part of the Lease dated as of
February 7, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
[MAP]
EXHIBIT A
Page 2
EXHIBIT A-3
OUTLINE AND LOCATION OF RECREATIONAL AREA
This Exhibit is attached to and made a part of the Lease dated as of
February 7, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
[MAP]
EXHIBIT A
Page 3
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, and the Property. Capitalized terms have the same
meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or
thrown in those areas. At no time shall Tenant permit Tenant's
employees to loiter in Common Areas or elsewhere about the Buildings,
Property or Project except in connection with such employees'
legitimate use of the Common Areas, Buildings, Property and Project
pursuant to the terms of this Lease.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or placed in the fixtures or
appliances. Damage resulting to fixtures or appliances by Tenant, its
agents, employees or invitees, shall be paid for by Tenant, and
Landlord shall not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Buildings or Project, except
those of such color, size, style and in such places as are first
approved in writing by Landlord. All tenant identification and suite
numbers at the entrance to the Premises shall be installed by
Landlord, at Tenant's cost and expense, using the standard graphics
for the Building.
4. Tenant shall not place any lock(s) on any door in the Premises,
Buildings or Project without Landlord's prior written consent (which
consent shall not be unreasonably withheld) and Landlord shall have
the right to retain at all times and to use keys to all locks within
and into the Premises. All keys shall be returned to Landlord at the
expiration or early termination of this Lease.
5. Movement in or out of the Buildings and/or the Project of furniture or
equipment, or, in the event more than one tenant occupies the
Buildings (other than pursuant to a sublease), dispatch or receipt by
Tenant of merchandise or materials requiring the use of elevators,
stairways, lobby areas or loading dock areas, shall be restricted to
hours designated by Landlord. In such event, Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the
activity. If approved by Landlord, the activity shall be under the
reasonable supervision of Landlord and performed in the manner
reasonably required by Landlord. Tenant shall assume all risk for
damage to articles moved and injury to any persons resulting from the
activity. If equipment, property, or personnel of Landlord or of any
other party is damaged or injured as a result of or in connection with
the activity, Tenant shall be solely liable for any resulting damage
or loss.
6. Landlord shall have the right to approve the weight, size, or location
of heavy equipment or articles in and about the Premises, which
consent shall not be unreasonably withheld, delayed or conditioned.
Damage to the Building(s) and/or the Project by the installation,
maintenance, operation, existence or removal of Tenant's Property
shall be repaired at Tenant's sole expense.
7. Corridor doors, when not in use, shall be kept closed.
8. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building(s) and/or the Project, or
otherwise interfere in any way with other tenants or persons having
business in the Project; (2) solicit business or distribute, or cause
to be distributed, in any portion of the Building(s) and/or the
Project, handbills, promotional materials or other advertising; or
(3) conduct or permit other activities in the Buildings and/or the
Project, that might, in Landlord's sole opinion, constitute a
nuisance.
9. No aquariums shall be brought into the Buildings and/or the Project,
or kept in or about the Premises.
10. No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Buildings, Project or about
the Property, except for commercially
EXHIBIT B
Page 1
reasonable quantities of cleaning supplies and office supplies and
substances utilized by Tenant in connection with its business and
operation in the Premises, provided that Tenant keeps, maintains,
stores, removes and disposes of such materials in accordance with
applicable Laws and any manufacturers' instructions and provided
further that Landlord has first reviewed and approved (in the
exercise of its reasonable discretion) in writing the quantities
and types of substances to be utilized by Tenant. Notwithstanding
the foregoing, Tenant shall not, without Landlord's prior written
consent, spill, remove, release or dispose of, within or about the
Premises or any other portion of the Property or Project, any
asbestos-containing materials or any solid, liquid or gaseous
material now or subsequently considered toxic or hazardous under
the provisions of 42 U.S.C. Section 9601 et seq. or any other
applicable environmental Law which may now or later be in effect.
Tenant shall comply with all Laws pertaining to and governing the
use of the materials described in this Paragraph 10 by Tenant, and
shall remain solely liable for the costs of abatement and removal.
11. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises, the Buildings or the Project. Tenant
shall not use, or permit any part of the Premises to be used, for
lodging, sleeping or for any illegal purpose.
12. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other
tenant's or occupant's business or with the rights and privileges of
any person lawfully in the Buildings or the Project ("Labor
Disruption"). Tenant shall take the actions necessary to resolve the
Labor Disruption, and shall have pickets removed and, at the request
of Landlord, immediately terminate any work in the Premises that gave
rise to the Labor Disruption, until Landlord gives its written consent
for the work to resume. Tenant shall have no claim for damages
against Landlord or any of the Landlord Related Parties, nor shall the
Commencement Date of the Term be extended as a result of the above
actions.
13. Tenant shall not install, operate or maintain in the Premises or in
any other area of the Buildings or the Project, electrical equipment
that would overload the electrical system beyond its capacity for
proper, efficient and safe operation as determined solely by Landlord.
Except as otherwise permitted or provided by Article VII and
Article X.B. of this Lease, Tenant shall not furnish cooling or
heating to the Premises, including, without limitation, the use of
electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to
service the Buildings and/or the Project.
14. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices
and machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's
employees and invitees.
15. Landlord may from time to time adopt systems and procedures for the
security and safety of the Buildings, the Project and their occupants,
entry, use and contents. Tenant, its agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable systems
and procedures.
16. Landlord shall have the right to prohibit the use of the name of the
Buildings and/or the Project or any other publicity by Tenant that in
Landlord's sole opinion may impair the reputation of the Buildings
and/or the Project or their desirability. Upon written notice from
Landlord, Tenant shall refrain from and discontinue such publicity
immediately.
17. Tenant shall not canvass, solicit or peddle in or about the Buildings,
the Property or the Project.
18. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless the
Common Areas have been declared a designated smoking area by Landlord,
nor shall the above parties allow smoke from the Premises to emanate
into the Common Areas or any other part of the Buildings or the
Project. Landlord shall have the right to designate the Buildings
(including the Premises) and/or the Project as a non-smoking building
or area.
EXHIBIT B
Page 2
19. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Buildings and the Project present a uniform exterior appearance.
Tenant shall ensure, to the extent reasonably practicable, that window
coverings are closed on windows in the Premises while they are exposed
to the direct rays of the sun.
20. Deliveries to and from the Premises shall be made only at the times,
in the areas and through the entrances and exits reasonably designated
by Landlord. Tenant shall not make deliveries to or from the Premises
in a manner that might interfere with the use by any other tenant of
its premises or of the Common Areas, any pedestrian use, or any use
which is inconsistent with good business practice.
EXHIBIT B
Page 3
EXHIBIT C
COMMENCEMENT LETTER
(EXAMPLE)
Date ______________________
Tenant ______________________
Address ______________________
______________________
______________________
Re: Commencement Letter with respect to that certain Lease dated as of
___________, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, as Landlord, and
INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE CORPORATION, as Tenant,
for 124,032 rentable square feet in the Buildings located at 0000
Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
Dear __________________:
In accordance with the terms and conditions of the above referenced
Lease, Tenant accepts possession of the Premises and agrees:
1. The Building ___ Commencement Date is
________________________;
2. The Termination Date of the Lease is
____________________________.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
Sincerely,
___________________________________
Property Manager
Agreed and Accepted:
Tenant:______________________
By: ______________________
Name: ______________________
Title: ______________________
Date: ______________________
EXHIBIT C
Page 1
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated as of
February 7, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, following the delivery of the Premises by Landlord and
the full and final execution and delivery of this Lease and
all prepaid rental and security deposits required hereunder,
shall have the right to perform alterations and improvements
in the Premises (the "Initial Alterations"). Notwithstanding
the foregoing, Tenant and its contractors shall not have the
right to perform Initial Alterations in the Premises unless
and until Tenant has complied with all of the terms and
conditions of Article IX.C. of this Lease, including, without
limitation, approval by Landlord of the final plans for the
Initial Alterations and the contractors to be retained by
Tenant to perform such Initial Alterations. Tenant shall be
responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law,
functionality of design, the structural integrity of the
design, the configuration of the premises and the placement of
Tenant's furniture, appliances and equipment), and Landlord's
approval of Tenant's plans shall in no event relieve Tenant of
the responsibility for such design. Tenant may choose the
general contractor that shall perform the Initial Alterations
in the Premises, subject to Landlord's approval. Landlord's
approval of the contractors to perform the Initial Alterations
shall not be unreasonably withheld. The parties agree that
Landlord's approval of the general contractor to perform the
Initial Alterations shall not be considered to be unreasonably
withheld if any such general contractor (i) does not have
trade references reasonably acceptable to Landlord, (ii) does
not maintain insurance as required pursuant to the terms of
this Lease, (iii) does not have the ability to be bonded for
the work in an amount of no less than $1,000,000.00, (iv) does
not provide current financial statements reasonably acceptable
to Landlord, or (v) is not licensed as a contractor in the
state/municipality in which the Premises is located. Tenant
acknowledges the foregoing is not intended to be an exclusive
list of the reasons why Landlord may reasonably withhold its
consent to a general contractor.
B. Provided Tenant is not in default, Landlord agrees to
contribute the sum of $290,880.00 (the "Building 2 Allowance")
and $329,280.00 (the "Building 1 Allowance") (collectively,
the "Allowance") toward the cost of performing the Initial
Alterations in preparation of Tenant's occupancy of the
Premises. The Allowance may only be used for the cost of
preparing design and construction documents and mechanical and
electrical plans for the Initial Alterations and for hard
costs (including, without limitation, payments to contractors,
subcontractors, suppliers and consultants) in connection with
the Initial Alterations. The Allowance shall be paid to
Tenant or, at Landlord's option, to the order of the general
contractor that performs the Initial Alterations, in periodic
disbursements within 30 days after receipt of the following
documentation: (i) an application for payment and sworn
statement of contractor substantially in the form of AIA
Document G-702 covering all work for which disbursement is to
be made to a date specified therein; (ii) a certification from
an AIA architect substantially in the form of the Architect's
Certificate for Payment which is located on AIA Document G702,
Application and Certificate of Payment; (iii) Contractor's,
subcontractor's and material supplier's waivers of liens which
shall cover all Initial Alterations for which disbursement is
being requested and all other statements and forms required
for compliance with the mechanics' lien laws of the State of
California, together with all such invoices, contracts, or
other supporting data as Landlord or Landlord's Mortgagee may
reasonably require; (iv) a cost breakdown for each trade or
subcontractor performing the Initial Alterations; (v) plans
and specifications for the Initial Alterations, together with
a certificate from an AIA architect that such plans and
specifications comply in all material respects with all laws
affecting the Building,
EXHIBIT D
Page 1
Property and Premises; (vi) copies of all construction
contracts for the Initial Alterations, together with copies
of all change orders, if any; and (vii) a request to
disburse from Tenant containing an approval by Tenant of the
work done and a good faith estimate of the cost to complete
the Initial Alterations. Upon completion of the Initial
Alterations with respect to Building 2 or Building 1, as the
case may be, and prior to final disbursement of the Building
2 Allowance or the Building 1 Allowance, as the case may be,
Tenant shall furnish Landlord with the following with
respect to Building 2 or Building 1, as the case may be: (1)
general contractor and architect's completion affidavits,
(2) full and final waivers of lien, (3) receipted bills
covering all labor and materials expended and used, (4)
as-built plans of the Initial Alterations, and (5) the
certification of Tenant and its architect that the Initial
Alterations have been installed in a good and workmanlike
manner in accordance with the approved plans, and in
accordance with applicable laws, codes and ordinances. In
no event shall Landlord be required to disburse the
Allowance more than one time per month. If the cost of the
Initial Alterations for Building 2 or Building 1, as the
case may be, exceeds the Building 2 Allowance or the
Building 1 Allowance, respectively, Tenant shall be entitled
to the Building 2 Allowance or the Building 1 Allowance, as
the case may be, in accordance with the terms hereof, but
each individual disbursement of the Building 2 Allowance or
the Building 1 Allowance, as the case may be, shall be
disbursed in the proportion that the Building 2 Allowance or
the Building 1 Allowance, as the case may be, bears to the
total cost for the Initial Alterations for Building 2 or
Building 1, as the case may be. Notwithstanding anything
herein to the contrary, Landlord shall not be obligated to
disburse any portion of the Allowance during the continuance
of an uncured default under the Lease, and Landlord's
obligation to disburse shall only resume when and if such
default is cured.
C. In no event shall the Allowance be used for the purchase of
equipment, furniture or other items of personal property of
Tenant. In the event Tenant does not use the Building 2
Allowance by December 31, 2000, or in the event Tenant does
not use the entire Building 1 Allowance by December 31, 2001,
any unused amount shall accrue to the sole benefit of
Landlord, it being understood that Tenant shall not be
entitled to any credit, abatement or other concession in
connection therewith. Tenant shall be responsible for all
applicable state sales or use taxes, if any, payable in
connection with the Initial Alterations and/or Allowance.
D. Tenant agrees to accept the Premises in its "as-is" condition
and configuration, it being agreed that Landlord shall not be
required to perform any work or, except as provided above with
respect to the Allowance, incur any costs in connection with
the construction or demolition of any improvements in the
Premises.
E. This EXHIBIT D shall not be deemed applicable to any
additional space added to the original Premises at any time or
from time to time, whether by any options under the Lease or
otherwise, or to any portion of the original Premises or any
additions to the Premises in the event of a renewal or
extension of the original Term of this Lease, whether by any
options under the Lease or otherwise, unless expressly so
provided in the Lease or any amendment or supplement to the
Lease.
EXHIBIT D
Page 2
Landlord and Tenant have executed this Exhibit as of the day and year
first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
-----------------------------
TENANT:
INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: President and CEO
------------------------------
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: V.P., Corp. Strategy & Finance
------------------------------
EXHIBIT D
Page 3
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated as of
February 7, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
I. RENEWAL OPTION.
A. Tenant shall have the right to extend the Term (the "Renewal
Option") for the entire Premises only for one additional
period of 5 years commencing on the day following the
Termination Date of the initial Term and ending on the 5th
anniversary of the Termination Date (the "Renewal Term"), if:
1. Landlord receives notice of exercise of the Renewal
Option ("Initial Renewal Notice") not less than 18 full
calendar months prior to the expiration of the initial
Term and not more than 24 full calendar months prior to
the expiration of the initial Term; and
2. Tenant is not in default under the Lease beyond any
applicable cure periods at the time that Tenant delivers
its Initial Renewal Notice or at the time Tenant delivers
its Binding Notice (as hereinafter defined); and
3. No part of the Premises is sublet (other than pursuant to
a Permitted Transfer) at the time that Tenant delivers
its Initial Renewal Notice or at the time Tenant delivers
its Binding Notice; and
4. The Lease has not been assigned (other than pursuant to a
Permitted Transfer) prior to the date that Tenant
delivers its Initial Renewal Notice or prior to the date
Tenant delivers its Binding Notice.
B. The initial Base Rent rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing
Market (hereinafter defined) rate per rentable square foot for
the Premises.
C. Tenant shall pay Additional Rent (i.e. Expenses and Taxes) for
the Premises during the Renewal Term in accordance with
Article IV of the Lease.
D. Within 30 days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base
Rent rate for the Premises for the Renewal Term. Tenant,
within 15 days after the date on which Landlord advises Tenant
of the applicable Base Rent rate for the Renewal Term, shall
either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its option, or
(ii) if Tenant disagrees with Landlord's determination,
provide Landlord with written notice of rejection (the
"Rejection Notice"). If Tenant fails to provide Landlord with
either a Binding Notice or Rejection Notice within such 15 day
period, Tenant's Renewal Option shall be null and void and of
no further force and effect. If Tenant provides Landlord with
a Binding Notice, Landlord and Tenant shall enter into the
Renewal Amendment upon the terms and conditions set forth
herein. If Tenant provides Landlord with a Rejection Notice,
Landlord and Tenant shall work together in good faith to agree
upon the Prevailing Market Base Rent rate for the Premises
during the Renewal Term. Upon agreement Tenant shall provide
Landlord with Binding Notice and Landlord and Tenant shall
enter into the Renewal Amendment in accordance with the terms
and conditions hereof. Notwithstanding the foregoing, if
Landlord and Tenant are unable to agree upon the Prevailing
Market Base Rent rate for the Premises within 30 days after
the date on which Tenant provides Landlord with a Rejection
Notice, Tenant may elect to either rescind its intention to
renew, or subject the process to binding arbitration.
Tenant's election to cause the disagreement to be resolved by
arbitration shall be deemed to be its Binding Notice. If
Tenant fails to require arbitration by notice (the
"Arbitration Notice") within 3 days of the expiration of the
EXHIBIT E
Page 1
30 day period set forth above, Tenant's right to extend the
Lease shall be null and void and of no further force and
effect.
If Tenant provides Landlord with an Arbitration Notice,
Landlord and Tenant, within 10 days after the date of the
Arbitration Notice, shall each simultaneously submit to the
other, in a sealed envelope, its good faith estimate of the
Prevailing Market rate (collectively referred to as the
"Estimates"). If the higher of such Estimates is not more
than 105% of the lower of such Estimates, then Prevailing
Market rate shall be the average of the two Estimates. If the
Prevailing Market rate is not resolved by the exchange of
Estimates, Landlord and Tenant, within 7 days after the
exchange of Estimates, shall each select an appraiser to
determine which of the two Estimates most closely reflects the
Prevailing Market rate for the Premises during the Renewal
Term. Each appraiser so selected shall be certified as an MAI
appraiser or as an ASA appraiser and shall have had at least 5
years experience within the previous 10 years as a real estate
appraiser working in the Mountain View, California area, with
working knowledge of current rental rates and practices. For
purposes of this Lease, an "MAI" appraiser means an individual
who holds an MAI designation conferred by, and is an
independent member of, the American Institute of Real Estate
Appraisers (or its successor organization, or in the event
there is no successor organization, the organization and
designation most similar), and an "ASA" appraiser means an
individual who holds the Senior Member designation conferred
by, and is an independent member of, the American Society of
Appraisers (or its successor organization, or, in the event
there is no successor organization, the organization and
designation most similar). Upon selection, Landlord's and
Tenant's appraisers shall work together in good faith to agree
upon which of the two Estimates most closely reflects the
Prevailing Market rate for the Premises during the Renewal
Term. The Estimate chosen by such appraisers shall be binding
on both Landlord and Tenant as the Base Rent rate for the
Premises during the Rnewal Term. If either Landlord or Tenant
fails to appoint an appraiser within the seven day period
referred to above, the appraiser appointed by the other party
shall be the sole appraiser for the purposes hereof. If the
two appraisers cannot agree upon which of the two Estimates
most closely reflects the Prevailing Market within the 20 days
after their appointment, then, within 10 days after the
expiration of such 20 day period, the 2 appraisers shall
select a third appraiser meeting the aforementioned criteria.
Once the third appraiser has been selected as provided for
above, then, as soon thereafter as practicable but in any case
within 14 days, the third appraiser shall make his
determination of which of the two Estimates most closely
reflects the Prevailing Market rate and such Estimate shall be
binding on both Landlord and Tenant as the Base Rent rate for
the Premises during the Renewal Term. If the third appraiser
believes that expert advice would materially assist him, he
may retain one or more qualified persons, to provide such
expert advice. The parties shall share equally in the costs
of the third appraiser and of any experts retained by the
third appraiser. Any fees of any appraiser, counsel or
experts engaged directly by Landlord or Tenant, however, shall
be borne by the party retaining such appraiser, counsel or
expert. In the event that the Prevailing Market rate has not
been determined by the commencement date of the Renewal Term,
Tenant shall pay Base Rent upon the terms and conditions in
effect for initial Term until such time as the Prevailing
Market rate has been determined. Upon such determination, the
Base Rent for the Premises during the Renewal Term shall be
retroactively adjusted to the commencement of the Renewal
Term. If such adjustment results in an underpayment of Base
Rent by Tenant, Tenant shall pay Landlord the amount of such
underpayment within 30 days after the determination thereof.
If such adjustment results in an overpayment of Base Rent by
Tenant, Landlord shall credt such overpayment against the next
installment of Base Rent due under the Lease and, to the
extent necessary, any subsequent installments until the entire
amount of such overpayment has been credited against Base
Rent.
E. If Tenant is entitled to and properly exercises its Renewal
Option, Landlord shall prepare an amendment (the "Renewal
Amendment") to reflect changes in the Base Rent, Term,
Termination Date and other appropriate terms. The Renewal
Amendment shall be:
EXHIBIT E
Page 2
1. sent to Tenant within a reasonable time after receipt of
the Binding Notice; and
2. executed by Tenant and returned to Landlord in accordance
with Paragraph A.5. above.
An otherwise valid exercise of the Renewal Option shall, at
Landlord's option, be fully effective whether or not the
Renewal Amendment is executed.
F. For purpose hereof, "Prevailing Market" shall mean the annual
rental rate per rentable square foot under renewal leases and
amendments entered into on or about the date on which the
Prevailing Market is being determined hereunder for space
comparable to the Premises in the Project. The determination
of Prevailing Market shall take into account any material
economic differences between the terms of this Lease and any
comparison lease, such as rent abatements, construction costs
and other concessions and the manner, if any, in which the
Landlord under any such lease is reimbursed for operating
expenses and taxes. The determination of Prevailing Market
shall also take into consideration any reasonably anticipated
changes in the Prevailing Market rate from the time such
Prevailing Market rate is being determined and the time such
Prevailing Market rate will become effective under this Lease.
G. Landlord and Tenant acknowledge and agree that Tenant's
Renewal Option is personal to Tenant only and in no event
shall Tenant's Renewal Option be assignable or transferable,
except in connection with a Permitted Transfer.
II. CONTINGENCY. This Lease specifically is contingent upon the
modification of that certain lease dated April 18, 1985 (the "Prior
Tenant Lease"), by and between Landlord (as successor by merger to
Beacon Properties, L.P., the successor in interest to Sparks
Properties, Inc.), and Silicon Graphics, Inc., a California
corporation ("Prior Tenant") relating to the Premises. Landlord
currently is negotiating the terms of an agreement with Prior Tenant
to terminate or modify the Prior Tenant Lease (the "Prior Tenant
Modification Agreement") with respect to the Premises. If Landlord
fails to enter into the Prior Tenant Modification Agreement with Prior
Tenant in form and substance satisfactory to Landlord on or before the
later of (i) February 12, 2000, or (ii) 5 days following the date this
Lease, executed by Tenant, together with all prepaid rental and
security deposits required hereunder, is delivered to Landlord, then
Landlord may terminate this Lease by providing written notice thereof
to Tenant.
III. HAZARDOUS MATERIALS. Landlord shall indemnify, defend, protect, save,
hold harmless, and reimburse Tenant, its partners, officers, directors
and employees for, from and against any and all costs, losses,
liabilities, damages, assessments, lawsuits, deficiencies, demands,
claims and expenses incurred in connection with, arising out of,
resulting from or incident to, the production, use, generation,
storage, treatment, disposal, discharge, release or other handling or
disposition of any Hazardous Materials (defined below) on or about the
Project by Landlord, its officers, employees, agents (in their
capacity as agents) and/or independent contractors (in their capacity
as independent contractors), including, without limitation, the
effects of handling of any Hazardous Materials on any person or
property within or outside the boundaries of the Project; but
excluding from the foregoing indemnity, Tenant's negligence or the
handling by Tenant during Tenant's occupancy of the Premises of any
Permitted Materials (as hereinafter defined) and/or Hazardous
Materials on or about the Project at levels which pose a risk to
persons located on or about the Project, and which prompt the
initiation of a removal, response, remedial or other action by a
governmental agency or authority possessing and exercising
jurisdiction over the Project. For purposes hereof "Hazardous
Materials" shall mean any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or any related materials or
substances, including, without limitation, any substance defined as or
included in the definition of "hazardous substances" under any
applicable federal, state or local law, regulation or ordinance
(collectively, "Hazardous Materials"). Tenant shall indemnify,
defend, protect, save, hold harmless, and reimburse Landlord, its
partners, officers, directors and employees for, from and against any
and all costs, losses, liabilities, damages, assessments, lawsuits,
deficiencies, demands, claims and expenses incurred in connection
with, arising out of, resulting from or incident to, the production,
use, generation, storage, treatment, disposal, discharge, release or
other handling or disposition of any Hazardous Materials
EXHIBIT E
Page 3
on or about the Project by Tenant, its officers, employees, agents
and/or independent contractors, including, without limitation, the
effects of such handling of any Hazardous Materials on any person
or property within or outside the boundaries of the Project; but
excluding from the foregoing indemnity, Landlord's negligence or
the handling by Landlord of any Permitted Materials and/or
Hazardous Materials on or about the Project at levels which pose a
risk to persons located on or about the Project, and which prompt
the initiation of a removal, response, remedial or other action by
a governmental agency or authority possessing and exercising
jurisdiction over the Project. Notwithstanding the provisions of
this section, Tenant and Landlord shall have the right to use,
generate and store on the Premises and the Building, and transport
to and from the premises and the Building, those Hazardous
Materials which are generally used in the ordinary course in first
class office buildings (collectively, "Permitted Materials");
provided, however, that Tenant's use, generation, storage and
transport thereof is in compliance with all applicable federal,
state and local laws, regulations andordinances and any
manufacturers' instructions.
IV. PERMITTED USE.
A. Landlord acknowledges that as part of Tenant's operations in
the Premises, Tenant shall perform certain medical research
work on the following types of animals: mice, rats, rabbits,
guinea pigs and hamsters (the "Permitted Animals"). Tenant
shall not perform any research work on any animals (or parts
thereof) other than the Permitted Animals, and Tenant shall
not permit any animals in the Premises other than the
Permitted Animals. Tenant shall at all times keep and
maintain the Permitted Animals utilized by Tenant in
accordance with the Lab Standards (as defined in Article IX.A.
of the Lease). All animals brought into the Project shall be
transported in accordance with such rules and regulations as
Landlord shall reasonably designate. All animals kept in the
Premises shall be caged or restrained at all times. In no
event shall Tenant use or occupy the Premises in a manner that
would be inconsistent with the character and dignity of the
Building or the Project and Landlord may require Tenant to
immediately cease any business, procedures, activities or
other use which is causing disturbance of, or interference
with Landlord's operation and management of the Project or the
use and occupancy thereof by any tenant therein.
B. Without limiting the limitations imposed by the Permitted Use
clause, Tenant shall not use or permit the Premises to be used
for any purpose that would allow animal, medical or medicinal
odors, fumes or noises to emanate from the Premises. In the
event such odors, fumes or noises do emanate from the
Premises, Tenant, at its sole cost and expense, shall be
responsible for taking whatever steps are necessary in
accordance with all applicable Laws and the terms of this
Lease in order to either eliminate such odors, fumes or noises
or to keep such odors, fumes or noises from emanating from the
Buildings in a manner approved by Landlord. Such steps may
include the installation of an exhaust system or sound
proofing in accordance with plans and specifications approved
by Landlord. If Landlord and Tenant are unable to reach an
agreement on the course of action Tenant will take to correct
the odor or noise problem, as the case may be, within 10 days
after the date Landlord first contacts Tenant to inform Tenant
of the odor or noise problem, Landlord (in its sole
discretion) shall determine the course of action Tenant shall
take to correct the odor or noise problem. Such work to
correct the odor or noise problem shall be completed by Tenant
within 30 days of the date a determination is made by either
Landlord or Landlord and Tenant (as applicable) as to the
scope of work Tenant shall perform.
C. Tenant agrees to be solely responsible for the disposal of all
medical, infectious and hazardous waste (including without
limitation, all needles, syringes, bloodbags, bandages and
vials) and all animal bodies or parts that are generated in
the Tenant's Premises and to indemnify and hold Landlord
harmless from and against all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses which
may be imposed upon, incurred by, or asserted against Landlord
in connection with the generation and existence of such
medical, infectious and/or hazardous waste (including without
limitation, all needles, syringes, bloodbags, bandages and
vials) and all animal bodies or parts and the removal thereof
from the Premises. Tenant agrees to comply with all Laws,
ordinances,
EXHIBIT E
Page 4
orders, rules, and regulations of any governmental
or regulatory agency with respect to the generation,
existence, removal, storage and disposal of any such medical,
infectious and/or hazardous waste (including without
limitation, all needles, syringes, bloodbags, bandages and
vials) and all animal bodies and parts.
D. Tenant agrees to contract with a licensed and insured medical
waste disposal vendor acceptable to Landlord for the lawful
disposal of all medical, infectious and hazardous waste
(including without limitation, all needles, syringes, blood
bags, bandages and vials) and all animal bodies and parts that
are generated in Tenant's Premises, and to provide a copy of
such contract to Landlord. If vendors are changed, Tenant
agrees to notify Landlord of such change prior to the
effective date thereof and to provide the appropriate
documentation to Landlord. In no event shall any medical,
infectious and/or hazardous waste be placed or stored outside
of the Premises, it being agreed that all such materials shall
be kept in the Premises until picked up by the approved
medical waste disposal vendor.
E. Tenant, at Tenant's sole cost and expense, shall obtain and
maintain throughout the Term any licenses, permits or zoning
approvals required by any governmental body for the conduct of
Tenant's business and medical uses with the Premises.
F. In the event Tenant's activities in the Project results in any
disturbance, disruption of or interference with the business
of the Project, including, but not limited to, demonstrations,
pickets, boycotts and/or confrontations or disputes on or
about the Project opposing or supporting Tenant's activities
(a "Use Dispute"), then Tenant shall take all actions
necessary to resolve the Use Dispute and to have the
demonstrators, picketers or other individuals engaged in the
Use Dispute removed from the Project in an expeditious manner.
Tenant shall have no claim for damages against Landlord or any
of the Landlord Related Parties, as a result of the above
actions.
V. SECURITY SYSTEM. Tenant shall have the right to install a separate
security system for the Premises ("Security System") provided that any
such Security System shall be subject to Landlord's prior review and
approval of the plans and specifications for such Security System.
Tenant shall keep and maintain the Security System in good working
order, condition and repair throughout the Term of this Lease. The
installation, maintenance, use and operation of the Security System
shall comply with all applicable governmental laws, rules, regulations
and ordinances and the terms of the Lease. Tenant shall provide
Landlord with key cards or access codes, as applicable to permit
Landlord access to the Premises at all times. Tenant acknowledges and
agrees that the Tenant's use of the Security System and the
installation, operation, maintenance and use thereof shall be at
Tenant's sole risk and Landlord shall have no liability whatsoever in
connection therewith. Tenant hereby waives any and all claims against
Landlord for any damages arising from Tenant's exercise of its rights
under this Section. Furthermore, Tenant agrees to indemnify, defend
and hold Landlord harmless from and against any and all damages,
losses, claims, liabilities, costs and expenses (including, but not
limited to, reasonable attorneys' and other professional fees),
actions or causes of action, or judgments arising in any manner from
Tenant's installation, operation, use and maintenance of the Security
System. At the expiration or earlier termination of the Lease, Tenant
shall, at Landlord's option, remove the Security System from the
Premises and restore the Premises to the condition which existed prior
to the installation of the Security System.
EXHIBIT E
Page 5
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as
of the day and year first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust,
a Maryland real estate investment trust, its
managing general partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------
Title: Senior Vice President
--------------------------------
TENANT:
INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: President and CEO
-------------------------------
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: V.P. Corp. Strategy and Finance
-------------------------------
EXHIBIT E
Page 6
EXHIBIT F
PARKING AGREEMENT
This Exhibit is attached to and made a part of the Lease dated as of
February 7, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
1. Effective as of the Building 2 Commencement Date, Landlord hereby
grants to Tenant and persons designated by Tenant a license to use 215
non-priority parking spaces in the parking areas ("Parking Facility")
servicing the Buildings. Effective as of the Building 1 Commencement
Date, Landlord hereby grants to Tenant and persons designated by
Tenant a license to use an additional 244 non-priority parking spaces
in the Parking Facility, so that effective as of the Building 1
Commencement Date, Tenant and persons designated by Tenant shall have
a license to use a total of 459 non-priority parking spaces (the
"Parking Spaces") in the Parking Facility, and shall continue until
the earlier to occur of the Termination Date under the Lease, the
sooner termination of the Lease, or Tenant's abandonment of the
Premises thereunder. Tenant may, from time to time request additional
parking spaces, and if Landlord shall provide the same, such parking
spaces shall be provided and used on a month-to-month basis, and
otherwise on the foregoing terms and provisions, and at such
prevailing monthly parking charges as shall be established from time
to time.
2. Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all
federal, state, county and municipal governmental bodies or their
subdivisions respecting the use of the Parking Facility. Landlord
reserves the right to adopt, modify and enforce reasonable rules
("Rules") governing the use of the Parking Facility from time to time
including any key-card, sticker or other identification or entrance
system and hours of operation. The rules set forth herein are
currently in effect. Landlord may refuse to permit any person who
violates such rules to park in the Parking Facility, and any violation
of the rules shall subject the car to removal from the Parking
Facility.
3. Unless specified to the contrary above, the parking spaces hereunder
shall be provided on a non-designated "first-come, first-served"
basis. Tenant acknowledges that Landlord has no liability for claims
arising through acts or omissions of any Operator (as hereinafter
defined) of the Parking Facility, if any. Landlord shall have no
liability whatsoever for any damage to items located in the Parking
Facility, nor for any personal injuries or death arising out of any
matter relating to the Parking Facility, and in all events, Tenant
agrees to look first to its insurance carrier and to require that
Tenant's employees look first to their respective insurance carriers
for payment of any losses sustained in connection with any use of the
Parking Facility. Tenant hereby waives on behalf of its insurance
carriers all rights of subrogation against Landlord or Landlord's
agents. Landlord reserves the right to assign specific parking
spaces, and to reserve parking spaces for visitors, small cars,
handicapped persons and for other tenants, guests of tenants or other
parties, which assignment and reservation or spaces may be relocated
as determined by Landlord from time to time, and Tenant and persons
designated by Tenant hereunder shall not park in any location
designated for such assigned or reserved parking spaces. Tenant
acknowledges that the Parking Facility may be closed entirely or in
part in order to make repairs or perform maintenance services, or to
alter, modify, re-stripe or renovate the Parking Facility, or if
required by casualty, strike, condemnation, act of God, governmental
law or requirement or other reason beyond the operator's reasonable
control.
4. If Tenant shall default under this Parking Agreement, the Landlord or
the Operator, as the case may be, shall have the right to remove from
the Parking Facility any vehicles hereunder which shall have been
involved or shall have been owned or driven by parties involved in
causing such default, without liability therefor whatsoever. In
addition, if Tenant shall default under this Parking Agreement,
Landlord shall have the right to cancel this Parking Agreement on 10
days' written notice, unless within such 10 day period, Tenant cures
such default. If Tenant defaults with respect to the same term or
condition under this Parking Agreement more than 3 times during any 12
month period, and Landlord notifies Tenant thereof promptly after each
such default, the next default of such term or condition during the
succeeding 12 month period, shall, at Landlord's election, constitute
an
EXHIBIT F
Page 1
incurable default. Such cancellation right shall be cumulative and
in addition to any other rights or remedies available to Landlord at
law or equity, or provided under the Lease (all of which rights and
remedies under the Lease are hereby incorporated herein, as though
fully set forth). Any default by Tenant under the Lease shall be a
default under this Parking Agreement, and any default under this
Parking Agreement shall be a default under the Lease.
RULES
(i) Tenant shall have access to the Parking Facility on a 24 hour
basis, 7 days a week. Tenant shall not store or permit its
employees to store any automobiles in the Parking Facility
without the prior written consent of the Landlord. Except for
emergency repairs, Tenant and its employees shall not perform
any work on any automobiles while located in the Parking
Facility, or on the Property. If it is necessary for Tenant
or its employees to leave an automobile in the Parking
Facility overnight, Tenant shall provide the Landlord with
prior notice thereof designating the license plate number and
model of such automobile.
(ii) Cars must be parked entirely within the stall lines painted on
the floor, and only small cars may be parked in areas reserved
for small cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Parking spaces reserved for handicapped persons must be used
only by vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated
for parking, including without limitation:
(a) Areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by the Landlord or the
Operator, as the case may be, shall remain the property of the
Landlord or the Operator. Such device must be displayed as
requested and may not be mutilated in any manner. The serial
number of the parking identification device may not be
obliterated. Parking passes and devices are not transferable
and any pass or device in the possession of an unauthorized
holder will be void.
(viii) Parking Facility managers or attendants are not authorized to
make or allow any exceptions to these Rules.
(ix) Every xxxxxx is required to park and lock his/her own car.
(x) Loss or theft of parking pass, identification, key cards or
other such devices must be reported to Landlord and to the
Parking Facility manager immediately. Any parking devices
reported lost or stolen found on any authorized car will be
confiscated and the illegal holder will be subject to
prosecution. Lost or stolen passes and devices found by
Tenant or its employees must be reported to the office of the
garage immediately.
(xi) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited. Parking spaces may
be used only for parking automobiles, vans, light trucks and
sport utility vehicles.
(xii) By signing this Parking Agreement, Tenant agrees to acquaint
all persons to whom Tenant assigns a parking pass with these
Rules.
EXHIBIT F
Page 2
5. Landlord may elect to provide parking cards or keys to control access
to the Parking Facility or surface parking areas, if any. In such
event, Landlord shall provide Tenant with one card or key for each
parking space that Tenant is entitled to hereunder, provided that
Landlord shall have the right to require Tenant or its employees to
place a deposit on such access cards or keys and to pay a fee for any
lost or damaged cards or keys.
6. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Parking Facility
("Operator"). In such event, Tenant upon request of Landlord, shall
enter into a parking agreement with the Operator and pay the Operator
the monthly charge established hereunder, and Landlord shall have no
liability for claims arising through acts or omissions of the Operator
unless caused by Landlord's negligence or willful misconduct. It is
understood and agreed that the identity of the Operator may change
from time to time during the Term. In connection therewith, any
parking lease or agreement entered into between Tenant and an Operator
shall be freely assignable by such Operator or any successors thereto.
7. NO LIABILITY. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST
EXTENT PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY
LOSS OR DAMAGE TO TENANT OR TENANT'S PROPERTY (INCLUDING, WITHOUT
LIMITATIONS, ANY LOSS OR DAMAGE TO TENANT'S AUTOMOBILE OR THE CONTENTS
THEREOF DUE TO THEFT, VANDALISM OR ACCIDENT) ARISING FROM OR RELATED
TO TENANT'S USE OF THE PARKING FACILITY OR EXERCISE OF ANY RIGHTS
UNDER THIS PARKING AGREEMENT, EXCEPT TO THE EXTENT SUCH LOSS OR DAMAGE
RESULTS FROM LANDLORD'S ACTIVE NEGLIGENCE, NEGLIGENT OMISSION OR
WILLFUL MISCONDUCT.
8. Release of Liability. Without limiting the provisions of Paragraph 8
above, Tenant hereby voluntarily releases, discharges, waives and
relinquishes any and all actions or causes of action for personal
injury or property damage occurring to Tenant arising as a result of
parking in the Parking Facility, or any activities incidental thereto,
wherever or however the same may occur, and further agrees that Tenant
will not prosecute any claim for personal injury or property damage
against Landlord or any of its officers, agents, servants or employees
for any said causes of action except to the extent caused by
Landlord's negligence or willful misconduct.
9. The provisions of Article XXI of the Lease are hereby incorporated by
reference as if fully recited.
Tenant acknowledges that Tenant has read the provisions of this
Parking Agreement, has been fully and completely advised of the potential
dangers incidental to parking in the Parking Facility and is fully aware of the
legal consequences of signing this instrument.
EXHIBIT F
Page 3
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit as
of the day and year first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole member
By: Equity Office Properties
Trust, a Maryland real estate investment
trust, its managing general partner
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
--------------------------
Title: Senior Vice President
--------------------------
TENANT:
INTRABIOTICS PHARMACEUTICALS, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------
Title: President and CEO
-----------------------------
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: V.P. Corp. Strategy & Finance
-----------------------------
EXHIBIT F
Page 4
EXHIBIT G
FORM OF LETTER OF CREDIT
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 2000, by and between EOP-SHORELINE TECHNOLOGY PARK, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and INTRABIOTICS
PHARMACEUTICALS, INC., A DELAWARE CORPORATION ("Tenant") for space in the
Buildings located at 0000 Xxxxxxxx Xxxxx and 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx.
________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date: _____________
Expiration Date: ____________
Applicant:__________________
BENEFICIARY
EOP-Shoreline Technology Park, L.L.C., a Delaware limited liability company
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the amount of One
Million Six Hundred Thousand and 00/100 U.S. Dollars ($1,600,000.00) available
for payment at sight by your draft drawn on us when accompanied by the following
documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its
officers reading: "This draw in the amount of ______________________
U.S. Dollars ($____________) under your Irrevocable Standby Letter of
Credit No. ____________________ represents funds due and owing to us
as a result of the Applicant's failure to comply with one or more of
the terms of that certain lease by and between ______________________,
as landlord, and _____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least sixty (60) days prior to such expiration date or applicable anniversary
thereof, we notify you in writing by certified mail, return receipt requested,
that we elect not to so renew this Irrevocable Standby Letter of Credit. A copy
of any such notice shall also be sent to: Equity Office Properties Trust, 0
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Senior Vice
President-Treasurer. In addition to the foregoing, we understand and agree that
you shall be entitled to draw upon this Irrevocable Standby Letter of Credit in
accordance with 1 and 2 above in the event that we elect not to renew this
Irrevocable Standby Letter of Credit and, in addition, you provide us with a
dated statement proportedly signed by one of Beneficiary's officers stating that
the Applicant has failed to provide you with an acceptable substitute
irrevocable standby letter of credit in accordance with the terms of the above
referenced lease. We further acknowledge and agree that: (a) upon receipt of
the documentation required herein, we will honor your draws against this
Irrevocable Standby Letter of Credit without inquiry into the accuracy of
Beneficiary's signed statement and regardless of whether Applicant disputes the
content of such statement; (b) this Irrevocable Standby Letter of Credit shall
permit partial draws and, in the event you elect to draw upon less than the full
stated amount hereof, the stated amount of this Irrevocable Standby Letter of
Credit shall be automatically reduced by the amount of such partial draw; and
(c) you shall be entitled to assign your interest in this Irrevocable Standby
Letter of Credit from time to time without our approval
EXHIBIT G
Page 1
and without charge. In the event of an assignment, we reserve the right to
require reasonable evidence of such assignment as a condition to any draw
hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 revision) ICC Publication No.
500.
We hereby engage with you to honor drafts and documents drawn under
and in compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby
Letter of Credit must be addressed to our office located at
______________________________________________ to the attention of
__________________________________.
Very truly yours,
______________________
[name]
______________________
[title]
______________________
EXHIBIT G
Page 2
EXHIBIT H
TENANT'S TRADE FIXTURES AND EQUIPMENT
Items belonging to tenant not deemed real property including but not limited to:
1. Water dionization/purification systems
2. Facility vacuum system
3. Facility clean dry air system
4. Telecommunications systems
5. Computer network systems
6. Waste neutralization and monitoring systems
7. Trash compactor system
8. Satellite signal receivers/transmitters
9. Compressed gas distribution system
10. Audio-visual equipment
11. Electronic security and monitoring systems
12. Back-up and emergency electrical power equipment
13. Laboratory casework including fume hoods
14. Moveable benches and tables
15. Office furniture and equipment
16. Bicycle lockers
17. Laboratory equipment including autoclaves, glass washers, ice
makers, cage washers, dryers, animal cages, environmental
xxxxxxxx
18. Kitchen equipment including dishwashers, disposals,
refrigerators, freezers, ice makers, cooking equipment
19. Fermentation system equipment
EXHIBIT H
Page 3
