<\/p>\n Month 01 – Month 12 $31,648.00 $4.000
\n Month 13 – Month 24 $33,230.40 $4.200
\n Month 25 – Month 36 $34,891.92 $4.410
\n Month 37 – Month 48 $36,636.52 $4.631
\n Month 49 – Month 60 $38,468.34 $4.862
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
(9) RENT ADJUSTMENT DEPOSIT (initial monthly rate, until further notice):
\n $3,481.28 (initial monthly installment due upon Tenant’s execution)<\/p>\n
(10) RENTABLE AREA OF THE PREMISES: 7,912 square feet<\/p>\n
1<\/p>\n
(11) RENTABLE AREA OF THE BUILDING 32,400 square feet<\/p>\n
(12) RENTABLE AREA OF THE PHASE: 235,620 square feet<\/p>\n
(13) RENTABLE AREA OF THE PROJECT: 537,444 square feet<\/p>\n
(14) SECURITY DEPOSIT: Two Hundred and Thirty Thousand Eight Hundred Ten
\n Dollars ($230,810.00) due upon Tenant’s execution, subject to the terms of
\n Article Five<\/p>\n
(15) SUITE NUMBER &\/OR ADDRESS OF PREMISES: 200 Saginaw Drive
\n Redwood City, California 94063<\/p>\n
(16) TENANT’S SHARE:<\/p>\n
Tenant’s Building Share: 24.42%
\n Tenant’s Phase Share: 03.36%
\n Tenant’s Project Share: 01.47%<\/p>\n
(17) TENANT’S USE OF PREMISES: General office use, biotechnology research and
\n development.<\/p>\n
(18) PARKING SPACES: twenty-five (25)<\/p>\n
(19) BROKERS:<\/p>\n
Landlord’s Broker: Cornish & Carey<\/p>\n
Tenant’s Broker: CRESA Partners<\/p>\n
1.02 ENUMERATION OF EXHIBITS & RIDER(S)<\/p>\n
The Exhibits and Rider(s) set forth below and attached to this Lease are
\nincorporated in this Lease by this reference:<\/p>\n
EXHIBIT A Plan of Premises
\n———
\nEXHIBIT B Workletter Agreement (intentionally omitted)
\n———
\nEXHIBIT C Site Plan of Project
\n———
\nEXHIBIT D Permitted Hazardous Materials
\n———
\nEXHIBIT E Hazardous Materials Plans
\n——— <\/p>\n
RIDER 1 Commencement Date Agreement
\n——-
\nRIDER 2 Additional Provisions
\n——- <\/p>\n
1.03 DEFINITIONS<\/p>\n
For purposes hereof, the following terms shall have the following meanings:<\/p>\n
ADJUSTMENT YEAR: The applicable calendar year or any portion thereof after the
\nCommencement Date of this Lease for which a Rent Adjustment computation is being
\nmade.<\/p>\n
AFFILIATE: Any Person (as defined below) which is currently owned or controlled
\nby, owns or controls, or is under common ownership or control with Tenant. For
\npurposes of this definition, the word “control,” as used above means, with
\nrespect to a Person that is a corporation, the right to exercise, directly or
\nindirectly, more than sixty percent (60%) of the voting rights attributable to
\nthe shares of the controlled corporation and, with respect to a Person that is
\nnot a corporation, the possession, directly or indirectly, of the power at all
\ntimes to direct or cause the direction of the management and policies of the
\ncontrolled Person. The word Person means an individual, partnership, trust,
\ncorporation, firm or other entity.<\/p>\n
BUILDING: The building in which the Premises is located, at the address and
\nBuilding number specified in Section 1.01(1).<\/p>\n
BUILDING OPERATING EXPENSES: Those Operating Expenses described in Section
\n4.01.<\/p>\n
COMMENCEMENT DATE: The date specified in Section 1.01(6) as the Projected
\nCommencement Date, unless changed by operation of Article Two or Rider 2.<\/p>\n
COMMON AREAS: All areas of the Project made available by Landlord from time to
\ntime for the general common use or benefit of the tenants of the Building or
\nProject, and their employees and invitees, or the public, as such areas
\ncurrently exist and as they may be changed from time to time.<\/p>\n
DECORATION: Tenant Alterations which do not require a building permit and which
\ndo not affect the facade or roof of the Building, or involve any of the
\nstructural elements of the Building, or involve any of the Building’s <\/p>\n
2<\/p>\n
systems, including its electrical, mechanical, plumbing, security, heating,
\nventilating, air-conditioning, communication, and fire and life safety systems.<\/p>\n
DEFAULT RATE: Two (2) percentage points above the rate then most recently
\nannounced by Bank of America N.T.& S.A. at its San Francisco main office as its
\ncorporate base lending rate, from time to time announced, but in no event higher
\nthan the maximum rate permitted by Law.<\/p>\n
ENVIRONMENTAL LAWS: All Laws governing the use, storage, disposal or generation
\nof any Hazardous Material or pertaining to environmental conditions on, under or
\nabout the Premises or any part of the Project, including the Comprehensive
\nEnvironmental Response Compensation and Liability Act of 1980, as amended (42
\nU.S.C. Section 9601 et seq.), and the Resource Conservation and Recovery Act of
\n — —
\n1976, as amended (42 U.S.C. Section 6901 et seq.).
\n — — <\/p>\n
EXPIRATION DATE: The date specified in Section 1.01(7) unless changed by
\noperation of Article Two.<\/p>\n
FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion,
\nstrike or labor troubles, or any cause whatsoever beyond the reasonable control
\nof Landlord, including water shortages, energy shortages or governmental
\npreemption in connection with an act of God, a national emergency, or by reason
\nof Law, or by reason of the conditions of supply and demand which have been or
\nare affected by act of God, war or other emergency.<\/p>\n
HAZARDOUS MATERIAL: Such substances, material and wastes which are or become
\nregulated under any Environmental Law; or which are classified as hazardous or
\ntoxic or medical waste or biohazardous waste under any Environmental Law; and
\nexplosives, firearms and ammunition, flammable material, radioactive material,
\nasbestos, polychlorinated biphenyls and petroleum and its byproducts.<\/p>\n
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the
\nProperty, the property manager and the leasing manager for the Property and
\ntheir respective directors, officers, agents and employees.<\/p>\n
LAND: The parcel(s) of real estate on which the Building and Project are
\nlocated.<\/p>\n
LANDLORD WORK: The construction or installation of improvements to be furnished
\nby Landlord, if any, specifically described in Rider 2 attached hereto.<\/p>\n
LAWS OR LAW: All laws, ordinances, rules, regulations, other requirements,
\norders, rulings or decisions adopted or made by any governmental body, agency,
\ndepartment or judicial authority having jurisdiction over the Property, the
\nPremises or Tenant’s activities at the Premises and any covenants, conditions or
\nrestrictions of record which affect the Property.<\/p>\n
LEASE: This instrument and all exhibits and riders attached hereto, as may be
\namended from time to time.<\/p>\n
LEASE YEAR: The twelve month period beginning on the first day of the first
\nmonth following the Commencement Date (unless the Commencement Date is the first
\nday of a calendar month in which case beginning on the Commencement Date), and
\neach subsequent twelve month, or shorter, period until the Expiration Date.<\/p>\n
MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).<\/p>\n
MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument
\nencumbering the Property.<\/p>\n
NATIONAL HOLIDAYS: New Year’s Day, Memorial Day, Independence Day, Labor Day,
\nThanksgiving Day and Christmas Day and other holidays recognized by the Landlord
\nand the janitorial and other unions servicing the Building in accordance with
\ntheir contracts.<\/p>\n
OPERATING EXPENSES: All Taxes, costs, expenses and disbursements of every kind
\nand nature which Landlord shall pay or become obligated to pay in connection
\nwith the ownership, management, operation, maintenance, replacement and repair
\nof the Property (including the amortized portion of any capital expenditure or
\nimprovement, together with interest thereon, expenses of changing utility
\nservice providers, and any dues, assessments and other expenses pursuant to any
\ncovenants, conditions and restrictions, or any reciprocal easements, or any
\nowner’s association now or hereafter affecting the Project). Operating Expenses
\nshall be allocated among the categories of Project Operating Expenses, Building
\nOperating Expenses or Phase Operating Expenses as provided in Article Four. If
\nany Operating Expense, though paid in one year, relates to more than one
\ncalendar year, at the option of Landlord such expense may be proportionately
\nallocated among such related calendar years. Operating Expenses shall include
\nthe following, by way of illustration only and not limitation: (1) all Taxes;
\n(2) all insurance premiums and other costs (including deductibles), including
\nthe cost of rental insurance; (3) all license, permit and inspection fees; (4)
\nall costs of utilities, fuels and related services, including water, sewer,
\nlight, telephone, power and steam connection, service and related charges; (5)
\nall costs to repair, maintain and operate heating, ventilating and air
\nconditioning systems, including preventive maintenance; (6) all janitorial,
\nlandscaping and security services; (7) all wages, salaries, payroll taxes,
\nfringe benefits and other labor costs, including the cost of <\/p>\n
3<\/p>\n
workers’ compensation and disability insurance; (8) all costs of operation,
\nmaintenance and repair of all parking facilities and other common areas; (9) all
\nsupplies, materials, equipment and tools; (10) dues, assessments and other
\nexpenses pursuant to any covenants, conditions and restrictions, or any
\nreciprocal easements, or any owner’s association now or hereafter affecting the
\nProject; (11) modifications to the Building or the Project occasioned by Laws
\nnow or hereafter in effect; (12) the total charges of any independent
\ncontractors employed in the care, operation, maintenance, repair, leasing and
\ncleaning of the Project, including landscaping, roof maintenance, and repair,
\nmaintenance and monitoring of life-safety systems, plumbing systems, electrical
\nwiring and Project signage; (13) the cost of accounting services necessary to
\ncompute the rents and charges payable by tenants at the Project; (14) exterior
\nwindow and exterior wall cleaning and painting; (15) managerial and
\nadministrative expenses; (16) all costs in connection with the exercise facility
\nat the Project; (17) all costs and expenses related to Landlord’s retention of
\nconsultants in connection with the routine review, inspection, testing,
\nmonitoring, analysis and control of Hazardous Materials, and retention of
\nconsultants in connection with the clean-up of Hazardous Materials (to the
\nextent not recoverable from a particular tenant of the Project), and all costs
\nand expenses related to the implementation of recommendations made by such
\nconsultants concerning the use, generation, storage, manufacture, production,
\nstorage, release, discharge, disposal or clean-up of Hazardous Materials on,
\nunder or about the Premises or the Project (to the extent not recoverable from a
\nparticular tenant of the Project); but Operating Costs shall not include the
\ncosts and expenses, including those of retention of consultants and
\nimplementation of such consultant’s recommendations, to the extent incurred
\nspecifically to clean-up or remove Hazardous Materials present on, under or
\nabout the Premises or the Project prior to delivery to Tenant of possession of
\nthe Premises; (18) all capital improvements made for the purpose of reducing or
\ncontrolling other Operating Expenses, and all other capital expenditures, but
\nonly as amortized over the useful life of the applicable item(s), together with
\ninterest thereon; (19) all property management costs and fees, including all
\ncosts in connection with the Project property management office; and (20) all
\nfees or other charges incurred in conjunction with voluntary or involuntary
\nmembership in any energy conservation, air quality, environmental, traffic
\nmanagement or similar organizations. Operating Expenses shall not include: (a)
\ncosts of alterations of space to be occupied by new or existing tenants of the
\nProject; (b) depreciation charges; (c) interest and principal payments on loans
\n(except for loans for capital improvements which Landlord is allowed to include
\nin Operating Expenses as provided above); (d) ground rental payments; (e) real
\nestate brokerage and leasing commissions; (f) advertising and marketing
\nexpenses; (g) costs of Landlord reimbursed by insurance proceeds; (h) expenses
\nincurred in negotiating leases of other tenants in the Project or enforcing
\nlease obligations of other tenants in the Project; and (i) Landlord’s or
\nLandlord’s property manager’s corporate general overhead or corporate general
\nadministrative expenses.<\/p>\n
PHASE: Phase means any individual Phase of the Project, as more particularly
\ndescribed in the definition of Project.<\/p>\n
PHASE OPERATING EXPENSES: Those Operating Expenses described in Section 4.01.<\/p>\n
PREMISES: The space located in the Building at the Suite Number listed in
\nSection 1.01(15) and depicted on Exhibit A attached hereto.
\n ——— <\/p>\n
PROJECT or PROPERTY: As of the date hereof, the Project is known as Seaport
\nCentre and consists of those buildings (including the Building) whose general
\nlocation is shown on the Site Plan of the Project attached as Exhibit C, located
\n ———
\nin Redwood City, California, associated vehicular and parking areas, landscaping
\nand improvements, together with the Land, any associated interests in real
\nproperty, and the personal property, fixtures, machinery, equipment, systems and
\napparatus located in or used in conjunction with any of the foregoing. The
\nProject may also be referred to as the Property. As of the date hereof, the
\nProject is divided into Phase I and Phase II, which are generally designated on
\nExhibit C, each of which may individually be referred to as a Phase. Landlord
\n———
\nreserves the right from time to time to add or remove buildings, areas and
\nimprovements to or from a Phase or the Project, or to add or remove a Phase to
\nor from the Project. In the event of any such addition or removal which affects
\nRentable Area of the Project or a Phase, Landlord shall make a corresponding
\nrecalculation and adjustment of any affected Rentable Area and Tenant’s Share.<\/p>\n
PROJECT OPERATING EXPENSES: Those Operating Expenses described in Section 4.01.<\/p>\n
REAL PROPERTY: The Property excluding any personal property.<\/p>\n
RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent Adjustment
\nDeposits, and all other charges, payments, late fees or other amounts required
\nto be paid by Tenant under this Lease.<\/p>\n
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses.
\nThe Rent Adjustments shall be determined and paid as provided in Article Four.<\/p>\n
RENT ADJUSTMENT DEPOSIT: An amount equal to Landlord’s estimate of the Rent
\nAdjustment attributable to each month of the applicable Adjustment Year. On or
\nbefore the Commencement Date and the beginning of each subsequent Adjustment
\nYear or with Landlord’s Statement (defined in Article Four), Landlord may
\nestimate and notify Tenant in writing of its estimate of Operating Expenses,
\nincluding Project Operating Expenses, Building Operating Expenses and Phase
\nOperating Expenses, and Tenant’s Share of each, for the applicable Adjustment
\nYear. The Rent Adjustment Deposit applicable for the calendar year in which the
\nCommencement Date occurs shall be the amount, if any, specified in Section
\n1.01(9). Nothing <\/p>\n
4<\/p>\n
contained herein shall be construed to limit the right of Landlord from time to
\ntime during any calendar year to revise its estimates of Operating Expenses and
\nto notify Tenant in writing thereof and of revision by prospective adjustments
\nin Tenant’s Rent Adjustment Deposit payable over the remainder of such year. The
\nlast estimate by Landlord shall remain in effect as the applicable Rent
\nAdjustment Deposit unless and until Landlord notifies Tenant in writing of a
\nchange.<\/p>\n
RENTABLE AREA OF THE BUILDING: The amount of square footage set forth in
\nSection 1.01(11)<\/p>\n
RENTABLE AREA OF THE PHASE: The amount of square footage set forth in Section
\n1.01(12)<\/p>\n
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in
\nSection 1.01(10).<\/p>\n
RENTABLE AREA OF THE PROJECT: The amount of square footage set forth in Section
\n1.01(13), which represents the sum of the rentable area of all space intended
\nfor occupancy in the Project.<\/p>\n
SECURITY DEPOSIT: The funds specified in Section 1.01(14), if any, deposited by
\nTenant with Landlord as security for Tenant’s performance of its obligations
\nunder this Lease.<\/p>\n
SUBSTANTIALLY COMPLETE: The completion of the Landlord Work or Tenant Work, as
\nthe case may be, except for minor insubstantial details of construction,
\ndecoration or mechanical adjustments which remain to be done.<\/p>\n
TAXES: All federal, state and local governmental taxes, assessments (including
\nassessment bonds) and charges of every kind or nature, whether general,
\nspecial, ordinary or extraordinary, which Landlord shall pay or become obligated
\nto pay because of or in connection with the ownership, leasing, management,
\ncontrol or operation of the Property or any of its components (including any
\npersonal property used in connection therewith), which may also include any
\nrental or similar taxes levied in lieu of or in addition to general real and\/or
\npersonal property taxes. For purposes hereof, Taxes for any year shall be Taxes
\nwhich are assessed for any period of such year, whether or not such Taxes are
\nbilled and payable in a subsequent calendar year. There shall be included in
\nTaxes for any year the amount of all fees, costs and expenses (including
\nreasonable attorneys’ fees) paid by Landlord during such year in seeking or
\nobtaining any refund or reduction of Taxes. Taxes for any year shall be reduced
\nby the net amount of any tax refund received by Landlord attributable to such
\nyear. If a special assessment payable in installments is levied against any
\npart of the Property, Taxes for any year shall include only the installment of
\nsuch assessment and any interest payable or paid during such year. Taxes shall
\nnot include any federal or state inheritance, general income, gift or estate
\ntaxes, except that if a change occurs in the method of taxation resulting in
\nwhole or in part in the substitution of any such taxes, or any other assessment,
\nfor any Taxes as above defined, such substituted taxes or assessments shall be
\nincluded in the Taxes.<\/p>\n
TENANT ADDITIONS: Collectively, Landlord Work, Tenant Work and Tenant
\nAlterations.<\/p>\n
TENANT ALTERATIONS: Any alterations, improvements, additions, installations or
\nconstruction in or to the Premises or any Real Property systems serving the
\nPremises done or caused to be done by Tenant after the date hereof, whether
\nprior to or after the Commencement Date (including Tenant Work, but excluding
\nLandlord Work).<\/p>\n
TENANT DELAY: Any event or occurrence which delays the completion of the
\nLandlord Work which is caused by or is described as follows:<\/p>\n
(i) special work, changes, alterations or additions requested or made by
\n Tenant in the design or finish in any part of the Premises after approval
\n of the plans and specifications (as described in the Rider 2);<\/p>\n
(ii) Tenant’s delay in submitting plans, supplying information, approving
\n plans, specifications or estimates, giving authorizations or otherwise;<\/p>\n
(iii) failure to approve and pay for such work as Landlord undertakes to
\n complete at Tenant’s expense;<\/p>\n
(iv) the performance or completion by Tenant or any person engaged by
\n Tenant of any work in or about the Premises; or<\/p>\n
(v) failure to perform or comply with any obligation or condition binding
\n upon Tenant pursuant to Rider 2, including the failure to approve and pay
\n for such Landlord Work or other items if and to the extent Rider 2 provides
\n they are to be approved or paid by Tenant.<\/p>\n
TENANT WORK: All work installed or furnished to the Premises by Tenant in
\nconnection with Tenant’s initial occupancy pursuant to Rider 2.<\/p>\n
TENANT’S BUILDING SHARE: The share as specified in Section 1.01(16) and Section
\n4.01.<\/p>\n
TENANT’S PHASE: The Phase in which the Premises is located, as indicated in
\nSection 1.01(1).<\/p>\n
5<\/p>\n
TENANT’S PHASE SHARE: The share as specified in Section 1.01(16) and Section
\n4.01.<\/p>\n
TENANT’S PROJECT SHARE: The share as specified in Section 1.01(16) and Section
\n4.01.<\/p>\n
TENANT’S SHARE: Shall mean collectively, Tenant’s respective shares of the
\nrespective categories of Operating Expenses, as provided in Section 1.01(16) and
\nSection 4.01.<\/p>\n
TERM: The term of this Lease commencing on the Commencement Date and expiring
\non the Expiration Date.<\/p>\n
TERMINATION DATE: The Expiration Date or such earlier date as this Lease
\nterminates or Tenant’s right to possession of the Premises terminates.<\/p>\n
WORKLETTER: (intentionally omitted)<\/p>\n
ARTICLE TWO
\n PREMISES, TERM, FAILURE TO GIVE POSSESSION, COMMON AREAS AND PARKING<\/p>\n
2.01 LEASE OF PREMISES<\/p>\n
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
\nPremises for the Term and upon the terms, covenants and conditions provided in
\nthis Lease.<\/p>\n
2.02 TERM<\/p>\n
The Commencement Date shall be the date determined pursuant to Rider 2.<\/p>\n
2.03 FAILURE TO GIVE POSSESSION<\/p>\n
(intentionally omitted; see Rider 2)<\/p>\n
2.04 AREA OF PREMISES<\/p>\n
Landlord and Tenant agree that for all purposes of this Lease the Rentable Area
\nof the Premises, the Rentable Area of the Building, the Rentable Area of the
\nPhase and the Rentable Area of the Project as set forth in Article One are
\ncontrolling, and are not subject to revision after the date of this Lease,
\nexcept as otherwise provided herein.<\/p>\n
2.05 CONDITION OF PREMISES<\/p>\n
(intentionally omitted; see Rider 2)<\/p>\n
2.06 COMMON AREAS & PARKING<\/p>\n
(a) Right to Use Common Areas. Tenant shall have the non-exclusive right,
\n ————————-
\nin common with others, to the use of any common entrances, ramps, drives and
\nsimilar access and serviceways and other Common Areas in the Project. The
\nrights of Tenant hereunder in and to the Common Areas shall at all times be
\nsubject to the rights of Landlord and other tenants and owners in the Project
\nwho use the same in common with Tenant, and it shall be the duty of Tenant to
\nkeep all the Common Areas free and clear of any obstructions created or
\npermitted by Tenant or resulting from Tenant’s operations. Tenant shall not use
\nthe Common Areas or common facilities of the Building or the Project, including
\nthe Building’s electrical room, parking lot or trash enclosures, for storage
\npurposes. Nothing herein shall affect the right of Landlord at any time to
\nremove any persons not authorized to use the Common Areas or common facilities
\nfrom such areas or facilities or to prevent their use by unauthorized persons.<\/p>\n
(b) Changes in Common Areas. Landlord reserves the right, at any time and
\n ———————–
\nfrom time to time to (i) make alterations in or additions to the Common Areas or
\ncommon facilities of the Project, including constructing new buildings or
\nchanging the location, size, shape or number of the driveways, entrances,
\nparking spaces, parking areas, loading and unloading areas, landscape areas and
\nwalkways, (ii) designate property to be included in or eliminate property from
\nthe Common Areas or common facilities of the Project, (iii) close temporarily
\nany of the Common Areas or common facilities of the Project for maintenance
\npurposes, and (4) use the Common Areas and common facilities of the Project
\nwhile engaged in making alterations in or additions and repairs to the Project;
\nprovided, however, that reasonable access to the Premises and parking at or near
\nthe Project remains available.<\/p>\n
(c) Parking. During the Term, Tenant shall have the right to use the
\n ——-
\nnumber of Parking Spaces specified in Section 1.01(18) for parking on an
\nunassigned basis on that portion of the Project designated by Landlord from time
\nto time for parking. Tenant acknowledges and agrees that the parking spaces in
\nthe Project’s parking facility may include a mixture of spaces for compact
\nvehicles as well as full-size passenger automobiles, and that Tenant shall not
\nuse parking spaces for vehicles larger than the striped size of the parking
\nspaces. Tenant shall not park any vehicles at the Project overnight. Tenant
\nshall comply with any <\/p>\n
6<\/p>\n
and all parking rules and regulations if and as from time to time established by
\nLandlord. Tenant shall not allow any vehicles using Tenant’s parking privileges
\nto be parked, loaded or unloaded except in accordance with this Section,
\nincluding in the areas and in the manner designated by Landlord for such
\nactivities. If any vehicle is using the parking or loading areas contrary to any
\nprovision of this Section, Landlord shall have the right, in addition to all
\nother rights and remedies of Landlord under this Lease, to remove or tow away
\nthe vehicle without prior notice to Tenant, and the cost thereof shall be paid
\nto Landlord within ten (10) days after notice from Landlord to Tenant.<\/p>\n
ARTICLE THREE
\n RENT<\/p>\n
Tenant agrees to pay to Landlord at the first office specified in Section
\n1.01(2), or to such other persons, or at such other places designated by
\nLandlord, without any prior demand therefor in immediately available funds and
\nwithout any deduction or offset whatsoever, Rent, including Monthly Base Rent
\nand Rent Adjustments in accordance with Article Four, during the Term. Monthly
\nBase Rent shall be paid monthly in advance on the first day of each month of the
\nTerm, except that the first installment of Monthly Base Rent shall be paid by
\nTenant to Landlord concurrently with execution of this Lease. Monthly Base Rent
\nshall be prorated for partial months within the Term. Unpaid Rent shall bear
\ninterest at the Default Rate from the date due until paid. Tenant’s covenant to
\npay Rent shall be independent of every other covenant in this Lease.<\/p>\n
ARTICLE FOUR
\n OPERATING EXPENSES, RENT ADJUSTMENTS AND PAYMENTS<\/p>\n
4.01 TENANT’S SHARE OF OPERATING EXPENSES<\/p>\n
Tenant shall pay Tenant’s Share of Operating Expenses in the respective shares
\nof the respective categories of Operating Expenses as set forth below.<\/p>\n
(a) Tenant’s Project Share of Project Operating Expenses, which is
\n the percentage obtained by dividing the rentable square footage of the
\n Premises for the building(s) in which the Premises is located by the
\n rentable square footage of the Project and as of the date hereof equals the
\n percentage set forth in Section 1.01(16);<\/p>\n
(b) Tenant’s Building Share of Building Operating Expenses, which is
\n the percentage obtained by dividing the rentable square footage of the
\n Premises respectively for each building in which the Premises is located by
\n the total rentable square footage of such building and as of the date
\n hereof equals the percentage set forth in Section 1.01(16);<\/p>\n
(c) Tenant’s Phase Share of Phase Operating Expenses, which is the
\n percentage obtained by dividing the aggregate rentable square footage of
\n the Premises located in Tenant’s Phase by the total rentable square footage
\n of Tenant’s Phase and as of the date hereof equals the percentage set forth
\n in Section 1.01(16);<\/p>\n
(d) Project Operating Expenses shall mean all Operating Expenses that
\n are not included as Phase Operating Expenses (defined below) and that are
\n not either Building Operating Expenses or operating expenses directly and
\n separately identifiable to the operation, maintenance or repair of any
\n other building located in the Project, but Project Operating Expenses
\n includes operating expenses allocable to any areas of the Building or any
\n other building during such time as such areas are made available by
\n Landlord for the general common use or benefit of all tenants of the
\n Project, and their employees and invitees, or the public, as such areas
\n currently exist and as they may be changed from time to time;<\/p>\n
(e) Building Operating Expenses shall mean Operating Expenses that
\n are directly and separately identifiable to each building and only such
\n building(s) in which the Premises or part thereof is located. Building(s)
\n in which the Premises or any part thereof are not located shall not be
\n included in determining Building Operating Expenses;<\/p>\n
(f) Phase Operating Expenses shall mean Operating Expenses that
\n Landlord may allocate to a Phase as directly and separately identifiable to
\n all buildings located in the Phase (including but not limited to the
\n Building) and may include Project Operating Expenses that are separately
\n identifiable to a Phase;<\/p>\n
(g) Landlord shall have the right to allocate a particular item or
\n portion of Operating Expenses as any one of Project Operating Expenses,
\n Building Operating Expenses or Phase Operating Expenses; however, in no
\n event shall any portion of Building Operating Expenses, Project Operating
\n Expenses or Phase Operating Expenses be assessed or counted against Tenant
\n more than once; and.<\/p>\n
(h) Notwithstanding anything to the contrary contained in this
\n Section 4.01, as to each specific category of Operating Expense which one
\n or more tenants of the Building either pays directly to third parties or
\n specifically reimburses to Landlord (for example, separately contracted
\n janitorial services or property taxes directly reimbursed to Landlord),
\n then, on a category by category<\/p>\n
7<\/p>\n
basis, the amount of Operating Expenses for the affected period shall be
\n adjusted as follows: (1) all such tenant payments with respect to such
\n category of expense and all of Landlord’s costs reimbursed thereby shall be
\n excluded from Operating Expenses and Tenant’s Building Share, Tenant’s
\n Phase Share or Tenant’s Project Share, as the case may be, for such
\n category of Operating Expense shall be adjusted by excluding the square
\n footage of all such tenants, and (2) if Tenant pays or directly reimburses
\n Landlord for such category of Operating Expense, such category of Operating
\n Expense shall be excluded from the determination of Operating Expenses for
\n the purposes of this Lease.<\/p>\n
4.02 RENT ADJUSTMENTS<\/p>\n
Tenant shall pay to Landlord Rent Adjustments with respect to each Adjustment
\nYear as follows:<\/p>\n
(a) The Rent Adjustment Deposit representing Tenant’s Share of
\n Landlord’s estimate of Operating Expenses, as described in Section 4.01,
\n for the applicable Adjustment Year (or portion thereof) monthly during the
\n Term with the payment of Monthly Base Rent, except the first installment
\n which shall be paid by Tenant to Landlord concurrently with execution of
\n this Lease; and<\/p>\n
(b) Any Rent Adjustments due in excess of the Rent Adjustment
\n Deposits in accordance with Section 4.02.<\/p>\n
4.03 STATEMENT OF LANDLORD<\/p>\n
Within one hundred twenty (120) days after the end of each calendar year or as
\nsoon thereafter as reasonably possible, Landlord will furnish Tenant a statement
\n(“Landlord’s Statement”) showing the following:<\/p>\n
(a) Operating Expenses for the last Adjustment Year showing in
\n reasonable detail the actual Operating Expenses categorized among Project
\n Operating Expenses, Building Operating Expenses and Phase Operating
\n Expenses for such period and Tenant’s Share of each as described in Section
\n 4.01 above;<\/p>\n
(b) The amount of Rent Adjustments due Landlord for the last
\n Adjustment Year, less credit for Rent Adjustment Deposits paid, if any; and<\/p>\n
(c) Any change in the Rent Adjustment Deposit due monthly in the
\n current Adjustment Year, including the amount or revised amount due for
\n months preceding any such change pursuant to Landlord’s Statement.<\/p>\n
Tenant shall pay to Landlord within thirty (30) days after receipt of such
\nstatement any amounts for Rent Adjustments then due in accordance with
\nLandlord’s Statement. Any amounts due from Landlord to Tenant pursuant to this
\nSection shall be credited to the Rent Adjustment Deposit next coming due, or
\nrefunded to Tenant if the Term has already expired provided Tenant is not in
\ndefault hereunder. No interest or penalties shall accrue on any amounts which
\nLandlord is obligated to credit or refund to Tenant by reason of this Section
\n4.02. Landlord’s failure to deliver Landlord’s Statement or to compute the
\namount of the Rent Adjustments shall not constitute a waiver by Landlord of its
\nright to deliver such items nor constitute a waiver or release of Tenant’s
\nobligations to pay such amounts. The Rent Adjustment Deposit shall be credited
\nagainst Rent Adjustments due for the applicable Adjustment Year. During the
\nlast complete calendar year or during any partial calendar year in which the
\nLease terminates, Landlord may include in the Rent Adjustment Deposit its
\nestimate of Rent Adjustments which may not be finally determined until after the
\ntermination of this Lease. Tenant’s obligation to pay Rent Adjustments survives
\nthe expiration or termination of the Lease. Notwithstanding the foregoing, in
\nno event shall the sum of Monthly Base Rent and the Rent Adjustments be less
\nthan the Monthly Base Rent payable.<\/p>\n
4.04 BOOKS AND RECORDS<\/p>\n
Landlord shall maintain books and records showing Operating Expenses and Taxes
\nin accordance with sound accounting and management practices, consistently
\napplied. The Tenant or its representative shall have the right, for a period of
\nninety (90) days following the date upon which Landlord’s Statement is delivered
\nto Tenant, to examine the Landlord’s books and records with respect to the items
\nin the foregoing statement of Operating Expenses and Taxes during normal
\nbusiness hours, upon written notice, delivered at least three (3) business days
\nin advance. If Tenant does not object in writing to Landlord’s Statement within
\nninety (90) days of Tenant’s receipt thereof, specifying the nature of the item
\nin dispute and the reasons therefor, then Landlord’s Statement shall be
\nconsidered final and accepted by Tenant. Any amount due to the Landlord as
\nshown on Landlord’s Statement, whether or not disputed by Tenant as provided
\nherein shall be paid by Tenant when due as provided above, without prejudice to
\nany such written exception.<\/p>\n
4.05 TENANT OR LEASE SPECIFIC TAXES<\/p>\n
In addition to Monthly Base Rent, Rent Adjustments, Rent Adjustment Deposits and
\nother charges to be paid by Tenant, Tenant shall pay to Landlord, upon demand,
\nany and all taxes payable by Landlord (other than federal or state inheritance,
\ngeneral income, gift or estate taxes) whether or not now customary or within the
\ncontemplation of the parties hereto: (a) upon, allocable to, or measured by the
\nRent payable hereunder, <\/p>\n
8<\/p>\n
including any gross receipts tax or excise tax levied by any governmental or
\ntaxing body with respect to the receipt of such rent; or (b) upon or with
\nrespect to the possession, leasing, operation, management, maintenance,
\nalteration, repair, use or occupancy by Tenant of the Premises or any portion
\nthereof; or (c) upon the measured value of Tenant’s personal property or trade
\nfixtures located in the Premises or in any storeroom or any other place in the
\nPremises or the Property, or the areas used in connection with the operation of
\nthe Property, it being the intention of Landlord and Tenant that, to the extent
\npossible, Tenant shall cause such taxes on personal property or trade fixtures
\nto be billed to and paid directly by Tenant; (d) resulting from Landlord Work,
\nTenant Work or Tenant Alterations to the Premises, whether title thereto is in
\nLandlord or Tenant; or (e) upon this transaction. Taxes paid by Tenant pursuant
\nto this Section 4.05 shall not be included in any computation of Taxes as part
\nof Operating Expenses.<\/p>\n
ARTICLE FIVE
\n SECURITY DEPOSIT<\/p>\n
Tenant concurrently with the execution of this Lease shall pay to Landlord in
\nimmediately available funds the Security Deposit. The Security Deposit may be
\napplied by Landlord to cure, in whole or part, any default of Tenant under this
\nLease, and upon notice by Landlord of such application, Tenant shall replenish
\nthe Security Deposit in full by paying to Landlord within ten (10) days of
\ndemand the amount so applied. Landlord’s application of the Security Deposit
\nshall not constitute a waiver of Tenant’s default to the extent that the
\nSecurity Deposit does not fully compensate Landlord for all losses, damages,
\ncosts and expenses incurred by Landlord in connection with such default and
\nshall not prejudice any other rights or remedies available to Landlord under
\nthis Lease or by Law. Landlord shall not pay any interest on the Security
\nDeposit. Landlord shall not be required to keep the Security Deposit separate
\nfrom its general accounts. The Security Deposit shall not be deemed an advance
\npayment of Rent, nor a measure of damages for any default by Tenant under this
\nLease, nor shall it be a bar or defense of any action which Landlord may at any
\ntime commence against Tenant. In the absence of evidence satisfactory to
\nLandlord of an assignment of the right to receive the Security Deposit or the
\nremaining balance thereof, Landlord may return the Security Deposit to the
\noriginal Tenant, regardless of one or more assignments of this Lease. Upon the
\ntransfer of Landlord’s interest under this Lease, Landlord’s obligation to
\nTenant with respect to the Security Deposit shall terminate upon transfer to the
\ntransferee of the Security Deposit, or any balance thereof and the assumption by
\nthe transferee of Landlord’s obligations with respect thereto. If Tenant shall
\nfully and faithfully comply with all the terms, provisions, covenants, and
\nconditions of this Lease, the Security Deposit, or any balance thereof, shall be
\nreturned to Tenant within thirty (30) days after Landlord recovers possession of
\nthe Premises. Tenant hereby waives any and all rights of Tenant under the
\nprovisions of Section 1950.7 of the California Civil Code or other Law regarding
\nsecurity deposits.<\/p>\n
ARTICLE SIX
\n UTILITIES & SERVICES<\/p>\n
6.01 LANDLORD’S GENERAL SERVICES<\/p>\n
Landlord shall provide maintenance and services as provided in Article Eight.<\/p>\n
6.02 TENANT TO OBTAIN & PAY DIRECTLY<\/p>\n
(a) Tenant shall be responsible for and shall pay promptly all charges for
\ngas, electricity, sewer, heat, light, power, telephone, refuse pickup (to be
\nperformed on a regularly scheduled basis so that accumulated refuse does not
\nexceed the capacity of Tenant’s refuse bins), janitorial service and all other
\nutilities, materials and services furnished directly to or used by Tenant in, on
\nor about the Premises, together with all taxes thereon. Tenant shall contract
\ndirectly with the providing companies for such utilities and services.<\/p>\n
(b) Notwithstanding any provision of the Lease to the contrary, without, in
\neach instance, the prior written consent of Landlord which response for such
\nconsent shall not be unreasonably delayed, as more particularly provided in
\nArticle Nine, Tenant shall not: (i) make any alterations or additions to the
\nelectric or gas equipment or systems or other Building systems. If Landlord
\ndoes not consent to such request, Landlord shall indicate the reasons therefor.
\nTenant’s use of electric current shall at no time exceed the capacity of the
\nwiring, feeders and risers providing electric current to the Premises or the
\nBuilding. The consent of Landlord to the installation of electric equipment
\nshall not relieve Tenant from the obligation to limit usage of electricity to no
\nmore than such capacity.<\/p>\n
6.03 TELEPHONE SERVICES<\/p>\n
All telegraph, telephone, and communication connections which Tenant may desire
\noutside the Premises shall be subject to Landlord’s prior written approval, in
\nLandlord’s sole discretion, and the location of all wires and the work in
\nconnection therewith shall be performed by contractors approved by Landlord and
\nshall be subject to the direction of Landlord, except that such approval is not
\nrequired as to Tenant’s cabling from the Premises in a route designated by
\nLandlord to any telephone cabinet or panel provided for Tenant’s connection to
\nthe telephone cable serving the Building, so long as Tenant’s equipment does not
\nrequire connections different than or additional to those to the telephone
\ncabinet or panel provided. As to any such connections or work outside the
\nPremises requiring Landlord’s approval, Landlord reserves the right to designate
\nand control the entity or entities providing telephone or other communication
\ncable installation, <\/p>\n
9<\/p>\n
removal, repair and maintenance outside the Premises and to restrict and control
\naccess to telephone cabinets or panels. In the event Landlord designates a
\nparticular vendor or vendors to provide such cable installation, removal, repair
\nand maintenance for the Building, Tenant agrees to abide by and participate in
\nsuch program. Tenant shall be responsible for and shall pay all costs incurred
\nin connection with the installation of telephone cables and communication wiring
\nin the Premises, including any hook-up, access and maintenance fees related to
\nthe installation of such wires and cables in the Premises and the commencement
\nof service therein, and the maintenance thereafter of such wire and cables; and
\nthere shall be included in Operating Expenses for the Building all installation,
\nremoval, hook-up or maintenance costs incurred by Landlord in connection with
\ntelephone cables and communication wiring serving the Building which are not
\nallocable to any individual users of such service but are allocable to the
\nBuilding generally. If Tenant fails to maintain all telephone cables and
\ncommunication wiring in the Premises and such failure affects or interferes with
\nthe operation or maintenance of any other telephone cables or communication
\nwiring serving the Building, Landlord or any vendor hired by Landlord may enter
\ninto and upon the Premises forthwith and perform such repairs, restorations or
\nalterations as Landlord deems necessary in order to eliminate any such
\ninterference (and Landlord may recover from Tenant all of Landlord’s costs in
\nconnection therewith). No later than the Termination Date, Tenant agrees to
\nremove all telephone cables and communication wiring installed by Tenant for and
\nduring Tenant’s occupancy, which Landlord shall request Tenant to remove. Tenant
\nagrees that neither Landlord nor any of its agents or employees shall be liable
\nto Tenant, or any of Tenant’s employees, agents, customers or invitees or anyone
\nclaiming through, by or under Tenant, for any damages, injuries, losses,
\nexpenses, claims or causes of action because of any interruption, diminution,
\ndelay or discontinuance at any time for any reason in the furnishing of any
\ntelephone or other communication service to the Premises and the Building.<\/p>\n
6.04 FAILURE OR INTERRUPTION OF UTILITY OR SERVICE<\/p>\n
To the extent that any equipment or machinery furnished or maintained by
\nLandlord outside the Premises is used in the delivery of utilities directly
\nobtained by Tenant pursuant to Section 6.02 and breaks down or ceases to
\nfunction properly, Landlord shall use reasonable diligence to repair same
\npromptly. In the event of any failure, stoppage or interruption of, or change
\nin, any utilities or services supplied by Landlord which are not directly
\nobtained by Tenant, Landlord shall use reasonable diligence to have service
\npromptly resumed. In either event covered by the preceding two sentences, if
\nthe cause of any such failure, stoppage or interruption of, or change in,
\nutilities or services is within the control of a public utility, other public or
\nquasi-public entity, or utility provider outside Landlord’s control,
\nnotification to such utility or entity of such failure, stoppage or interruption
\nand request to remedy the same shall constitute “reasonable diligence” by
\nLandlord to have service promptly resumed. Notwithstanding any other provision
\nof this Section to the contrary, in the event of any failure, stoppage or
\ninterruption of, or change in, any utility or other service furnished to the
\nPremises or the Project resulting from any cause, including changes in service
\nprovider or Landlord’s compliance with any voluntary or similar governmental or
\nbusiness guidelines now or hereafter published or any requirements now or
\nhereafter established by any governmental agency, board or bureau having
\njurisdiction over the operation of the Property: (a) Landlord shall not be
\nliable for, and Tenant shall not be entitled to, any abatement or reduction of
\nRent; (b) no such failure, stoppage, or interruption of any such utility or
\nservice shall constitute an eviction of Tenant or relieve Tenant of the
\nobligation to perform any covenant or agreement of this Lease to be performed by
\nTenant; (c) Landlord shall not be in breach of this Lease nor be liable to
\nTenant for damages or otherwise.<\/p>\n
6.05 CHOICE OF SERVICE PROVIDER<\/p>\n
Tenant acknowledges that Landlord may, at Landlord’s sole option, to the extent
\npermitted by applicable law, elect to change, from time to time, the company or
\ncompanies which provide services (including electrical service, gas service,
\nwater, telephone and technical services) to the Property, the Premises and\/or
\nits occupants. Notwithstanding anything to the contrary set forth in this
\nLease, Tenant acknowledges that Landlord has not and does not make any
\nrepresentations or warranties concerning the identity or identities of the
\ncompany or companies which provide services to the Property and the Premises or
\nits occupants and Tenant acknowledges that the choice of service providers and
\nmatters concerning the engagement and termination thereof shall be solely that
\nof Landlord. The foregoing provision is not intended to modify, amend, change or
\notherwise derogate any provision of this Lease concerning the nature or type of
\nservice to be provided or any specific information concerning the amount thereof
\nto be provided. Tenant agrees to cooperate with Landlord and each of its service
\nproviders in connection with any change in service or provider.<\/p>\n
6.06 SIGNAGE<\/p>\n
Tenant shall not install any signage within the Project, the Building or the
\nPremises without obtaining the prior written approval of Landlord, and Tenant
\nshall be responsible for the installation and maintenance of any such signage
\ninstalled by Tenant. Any such signage shall comply with Landlord’s current
\nProject signage criteria and all Laws.<\/p>\n
10<\/p>\n
ARTICLE SEVEN
\n POSSESSION, USE AND CONDITION OF PREMISES<\/p>\n
7.01 POSSESSION AND USE OF PREMISES<\/p>\n
(a) Tenant shall occupy and use the Premises only for the uses specified in
\nSection 1.01(17) to conduct Tenant’s business. Tenant shall not occupy or use
\nthe Premises (or permit the use or occupancy of the Premises) for any purpose or
\nin any manner which: (1) is unlawful or in violation of any Law or Environmental
\nLaw; (2) may be dangerous to persons or property or which may increase the cost
\nof, or invalidate, any policy of insurance carried on the Building or covering
\nits operations; (3) is contrary to or prohibited by the terms and conditions of
\nthis Lease or the rules and regulations as provided in Article Eighteen; (4)
\ncontrary to or prohibited by the articles, bylaws or rules of any owner’s
\nassociation affecting the Project; (5) is improper, immoral, or objectionable;
\n(6) would obstruct or interfere with the rights of other tenants or occupants of
\nthe Building or the Project, or injure or annoy them, or would tend to create or
\ncontinue a nuisance; or (7) would constitute any waste in or upon the Premises
\nor Project.<\/p>\n
(b) Landlord and Tenant acknowledge that the Americans With Disabilities
\nAct of 1990 (42 U.S.C. (S)12101 et seq.) and regulations and guidelines
\npromulgated thereunder, as all of the same may be amended and supplemented from
\ntime to time (collectively referred to herein as the “ADA”) establish
\nrequirements for business operations, accessibility and barrier removal, and
\nthat such requirements may or may not apply to the Premises, the Building and
\nthe Project depending on, among other things: (1) whether Tenant’s business is
\ndeemed a “public accommodation” or “commercial facility”, (2) whether such
\nrequirements are “readily achievable”, and (3) whether a given alteration
\naffects a “primary function area” or triggers “path of travel” requirements.
\nThe parties hereby agree that: (a) Landlord shall be responsible for ADA Title
\nIII compliance in the Common Areas, except as provided below, (b) Tenant shall
\nbe responsible for ADA Title III compliance in the Premises, including any
\nleasehold improvements or other work to be performed in the Premises under or in
\nconnection with this Lease, (c) Landlord may perform, or require that Tenant
\nperform, and Tenant shall be responsible for the cost of, ADA Title III “path of
\ntravel” requirements triggered by Tenant Additions in the Premises, and (d)
\nLandlord may perform, or require Tenant to perform, and Tenant shall be
\nresponsible for the cost of, ADA Title III compliance in the Common Areas
\nnecessitated by the Building being deemed to be a “public accommodation” instead
\nof a “commercial facility” as a result of Tenant’s use of the Premises. Tenant
\nshall be solely responsible for requirements under Title I of the ADA relating
\nto Tenant’s employees.<\/p>\n
(c) Landlord and Tenant agree to cooperate and use commercially reasonable
\nefforts to participate in traffic management programs generally applicable to
\nbusinesses located in or about the area and Tenant shall encourage and support
\nvan and car pooling by, and staggered and flexible working hours for, its office
\nworkers and service employees to the extent reasonably permitted by the
\nrequirements of Tenant’s business. Neither this Section or any other provision
\nof this Lease is intended to or shall create any rights or benefits in any other
\nperson, firm, company, governmental entity or the public.<\/p>\n
(d) Tenant agrees to cooperate with Landlord and to comply with any and all
\nguidelines or controls concerning energy management imposed upon Landlord by
\nfederal or state governmental organizations or by any energy conservation
\nassociation to which Landlord is a party or which is applicable to the Building.<\/p>\n
7.02 HAZARDOUS MATERIAL<\/p>\n
(a) Tenant shall not use, generate, manufacture, produce, store, release,
\ndischarge, or dispose of, on, under or about the Premises or any part of the
\nProject, or transport to or from the Premises or any part of the Project, any
\nHazardous Material or allow its employees, agents, contractors, licensees,
\ninvitees or any other person or entity to do so. Notwithstanding the foregoing,
\nTenant shall be permitted to use and store in, and transport to and from, the
\nPremises the Hazardous Material identified on Exhibit D hereto and by this
\n ———
\nreference incorporated herein (“Permitted Hazardous Material”) so long as: (a)
\neach item of the Permitted Hazardous Material is used or stored in, or
\ntransported to and from, the Premises only to the extent necessary for Tenant’s
\noperation of its business at the Premises; (b) at no time shall any Permitted
\nHazardous Material be in use or storage at the Premises in excess of the
\nquantity specified therefor in Exhibit D; and (c) the conditions set forth in
\n ———
\nthis Section 7.02 are strictly complied with. The right to use and store in, and
\ntransport to and from, the Premises the Permitted Hazardous Material is personal
\nto Maxygen, Inc. and may not be assigned or otherwise transferred by Maxygen,
\nInc., without the prior written consent of Landlord, which consent may be
\nwithheld in Landlord’s sole discretion. Any consent by Landlord pursuant to
\nArticle Ten of this Lease to an assignment, transfer, subletting, mortgage,
\npledge, hypothecation or encumbrance of this Lease, and any interest therein or
\nright or privilege appurtenant thereto, shall not constitute consent by Landlord
\nto the use or storage at, or transportation to, the Premises of any Hazardous
\nMaterial (including a Permitted Hazardous Material) by any such assignee,
\nsublessee or transferee unless Landlord expressly agrees otherwise in writing.
\nAny consent by Landlord to the use or storage at, or transportation to or from
\nthe Premises, of any Hazardous Material (including a Permitted Hazardous
\nMaterial) by an assignee, sublessee or transferee of Tenant shall not constitute
\na waiver of Landlord’s right to refuse such consent as to any subsequent
\nassignee or transferee.<\/p>\n
11<\/p>\n
(b) Tenant shall comply with and shall cause Tenant’s employees, agents,
\ncontractors, licensees, invitees or any other person or entity for whom Tenant
\nis responsible (collectively, “Tenant’s Agents”) to comply with, and shall keep
\nand maintain the Premises and cause Tenant’s Agents to keep and maintain the
\nPremises, in compliance with all Environmental Laws. Neither Tenant nor Tenant’s
\nAgents shall violate, or cause or permit the Premises to be in violation of, any
\nEnvironmental Laws.<\/p>\n
Tenant shall, at its own expense prior to Tenant’s use and occupancy,
\nprocure, maintain in effect and comply with all conditions of any and all
\npermits, licenses and other governmental and regulatory approvals required for
\nTenant’s use of the Premises. Tenant shall cause any and all Hazardous Material
\nremoved from the Premises to be removed and transported solely by duly licensed
\nhandlers to duly licensed facilities for final disposal of such materials and
\nwastes. Tenant acknowledges that the sewer piping at the Project is made of ABS
\nplastic. Accordingly, without Landlord’s prior written consent, which may be
\ngiven or withheld in Landlord’s sole discretion, only ordinary domestic sewage
\nis permitted to be put into the drains at the Premises. UNDER NO CIRCUMSTANCES
\nSHALL TENANT EVER DEPOSIT ANY ESTERS OR KETONES (USUALLY FOUND IN SOLVENTS TO
\nCLEAN UP PETROLEUM PRODUCTS) IN THE DRAINS AT THE PREMISES. If Tenant desires to
\nput any substances other than ordinary domestic sewage into the drains, it shall
\nfirst submit to Landlord a complete description of each such substance,
\nincluding its chemical composition, and a sample of such substance suitable for
\nlaboratory testing. Landlord shall promptly determine whether or not the
\nsubstance can be deposited into the drains and its determination shall be
\nabsolutely binding on Tenant. Upon demand, Tenant shall reimburse Landlord for
\nexpenses incurred by Landlord in making such determination. If any substances
\nnot so approved hereunder are deposited in the drains in Tenant’s Premises,
\nTenant shall be liable to Landlord for all damages resulting therefrom,
\nincluding, but not limited to, all costs and expenses incurred by Landlord in
\nrepairing or replacing the piping so damaged.<\/p>\n
Tenant agrees to provide Landlord with: (1) a copy of any hazardous
\nmaterial management plan or similar document required by any federal, state or
\nlocal governmental or regulatory authority to be submitted by Tenant; (2) copies
\nof all permits, licenses and other governmental and regulatory approvals with
\nrespect to the use of Hazardous Material; (3) copies of hazardous waste
\nmanifests reflecting the legal and proper disposal of all Hazardous Material
\nremoved from the Premises; and (4) copies of all reports, studies and written
\nresults of tests or inspections concerning the Premises or any part of the
\nProject with respect to Hazardous Material, including the “Plans” hereinafter
\ndefined (collectively “Documents”). Tenant shall deliver all Documents to
\nLandlord promptly following the earlier of (i) Tenant’s submission of such
\nDocuments to the requesting governmental agency, or (ii) Tenant’s receipt of
\nsuch Documents (Tenant hereby agreeing that it shall exercise diligent efforts
\nto expeditiously obtain copies of any such Documents known by Tenant to exist).<\/p>\n
(c) Upon commencing any activity involving Hazardous Material on the
\nPremises, and continuing thereafter throughout the term of this Lease, Tenant
\nshall initiate and maintain the systems set forth in the following
\n(collectively, “Plans”) in order to ensure the routine monitoring of the levels
\nof Hazardous Material which may be present on, under or about the Premises or
\nany part of the Project or properties adjoining or in the vicinity of the
\nProject as the result of the activities of Tenant or Tenant’s Agents and to
\nensure continued compliance with the procedures and regulations concerning the
\nhandling, storage, use and disposal of Hazardous Material: (1) each permit,
\nlicense or other governmental or regulatory approval with respect to the use of
\nHazardous Material, (2) each Hazardous Material management plan or similar
\ndocument required by any federal, state, or local governmental or regulatory
\nentity, (3) each plan for handling and disposing of Hazardous Material necessary
\nto comply with Environmental Laws prepared by or on behalf of Tenant or Tenant’s
\nAgents (whether or not required to be submitted to a governmental agency).
\nCopies of the foregoing described Plans are listed on Exhibit E hereto and
\n ———
\nattached to this Lease as Exhibits E-1 through E-____.
\n ———— <\/p>\n
(d) Not less often than once each calendar year during the term of this
\nLease, Tenant shall provide Landlord with a written report which shall set forth
\nthe results of the monitoring of Hazardous Material during the previous calendar
\nyear. Landlord may elect (but shall not be obligated) to retain an independent
\nconsultant experienced in the use and management of Hazardous Material for the
\npurpose of reviewing any information received by Landlord in connection with
\nHazardous Material. Pursuant to such review, Landlord’s consultant may make
\nrecommendations in connection with Tenant’s control of Hazardous Material on the
\nPremises, and Tenant shall implement, at Tenant’s sole cost, the recommendations
\nof Landlord’s consultant. Landlord’s failure to appoint any consultant shall
\nnot relieve Tenant of any of Tenant’s obligations under this Lease relating to
\nHazardous Material nor constitute a waiver of Landlord’s rights under this
\nLease. In the event that Landlord’s consultant discovers that Tenant’s
\nprocedures constitute or will result in a non-deminimis violation of the
\nprovisions of this Section, Tenant shall promptly cure such violation and, as
\nnecessary, modify its procedures, at its sole cost and expense, to the
\nreasonable satisfaction of Landlord’s consultant.<\/p>\n
(e) Landlord may install permanent or other testing wells or devices at or
\nabout the Premises or any part of the Project, and may cause the ground water to
\nbe tested to detect the presence of Hazardous Material at least once every
\ntwelve (12) months during the term of this Lease by the use of such wells or
\ndevices as are then customarily used for such purposes. If Tenant so requests in
\nwriting, Landlord shall supply Tenant with a copy of any such test results. The
\ncosts of any such tests, and the installation, maintenance, repair, removal,
\nclosure and replacement of such wells or devices shall be included in Operating
\nExpenses pursuant to this Lease; provided, however, such costs shall be borne
\nsolely by Tenant if <\/p>\n
12<\/p>\n
the same are incurred by Landlord based upon Landlord’s reasonable belief, at
\nthe time such testing is initiated, that Tenant is in breach of its obligations
\nunder this Section 7.02 or if, following the initiation of such testing, the
\npresence of Hazardous Material is detected and Tenant or Tenant’s Agents are
\nresponsible therefor. Tenant’s obligations under this Section 7.02(e)shall
\nsurvive the expiration or earlier termination of this Lease.<\/p>\n
(f) Landlord and its representative shall have the right, at the following
\ntimes, to enter the Premises and to: (i) conduct any testing, monitoring and
\nanalysis for Hazardous Material; (ii) review any documents, materials,
\ninventory, financial data or notices or correspondence to or from private
\nparties or governmental or regulatory authorities in connection therewith; and
\n(iii) review all storage, use, transportation and disposal facilities and
\nprocedures associated with the storage, use, transportation and disposal of
\nHazardous Material (collectively, “Inspection”):<\/p>\n
(1) Once every six (6) months for the first twelve (12) months after
\nthe later of the date Tenant introduces Hazardous Material to the Premises
\npursuant to this Section 7.02 or notifies Landlord of such use, and once every
\ntwelve (12) months thereafter throughout the term of this Lease. Tenant agrees
\nto notify Landlord at least five (5) business days prior to the use or storage
\nin, or transportation to, the Premises of Hazardous Material; and<\/p>\n
(2) At any time during the term of this Lease if, in Landlord’s
\nreasonable judgment, Tenant is breaching its obligation under this Section 7.02
\nor is not in compliance with any other provision of this Lease.<\/p>\n
All costs and expenses incurred by Landlord in connection with any
\nInspection pursuant to this Section 7.02(f) shall, subject to Section 7.02(n)
\nbelow, become due and payable by Tenant as additional Rent, upon presentation by
\nLandlord of an invoice therefor.<\/p>\n
(g) Tenant shall give prompt written notice to Landlord of:<\/p>\n
(1) any proceeding or inquiry by, notice from, or order of any
\ngovernmental authority (including the California State Department of Health
\nServices) with respect to the presence of any Hazardous Material on, under or
\nabout the Premises or any part of the Project or the migration thereof from or
\nto other property;<\/p>\n
(2) all claims made or threatened by any third party against Tenant,
\nthe Premises or any part of the Project relating to any loss or injury resulting
\nfrom any Hazardous Material; and<\/p>\n
(3) any spill, release, discharge or nonroutine disposal of Hazardous
\nMaterial that occurs with respect to the Premises or operations at the Premises
\nby Tenant or Tenant’s Agents;<\/p>\n
(4) all matters of which Tenant is required to give notice pursuant
\nto Sections 25249.5 et seq. and 25359.7 of the California Health and Safety
\n — —
\nCode; and<\/p>\n
(5) Tenant’s discovery of any occurrence or condition on, under or
\nabout the Premises or any part of the Project or any real property adjoining or
\nin the vicinity of the Premises or the Project that could cause the Premises or
\nany part of the Project to be subject to any restrictions on the ownership,
\noccupancy, transferability or use of the Premises or any part of the Project
\nunder any Environmental Laws, including without limitation, Tenant’s discovery
\nof any occurrence or condition on any real property adjoining or in the vicinity
\nof the Premises or the Project that could cause the Premises or any part of the
\nProject to be classified as “border zone property” under the provisions of
\nCalifornia Health and Safety Code Sections 25220 et seq. or any regulation
\n — —
\nadopted in accordance therewith, or to be otherwise subject to any restrictions
\non the ownership, occupancy, transferability or use of the Premises or any part
\nof the Project under any Environmental Laws.<\/p>\n
(h) Landlord shall have the right to join and participate in, as a party
\nif it so elects, any legal proceedings or actions affecting the Premises or any
\npart of the Project initiated in connection with any Environmental Laws and have
\nits attorneys’ fees in connection therewith paid by Tenant. In addition, Tenant
\nshall not take any remedial action in response to the presence of any Hazardous
\nMaterial in, under, or about the Premises or the Project (except in the case
\nwhere loss of life or substantial property damage is imminent or immediate
\naction is required by any governmental entity, in which event Tenant shall take
\nimmediate remedial action), nor enter into any settlement agreement, consent
\ndecree or other compromise in respect to any claims relating to any Hazardous
\nMaterial in any way connected with the Premises or the Project, without first
\nnotifying Landlord of Tenant’s intention to do so and affording Landlord ample
\nopportunity to appear, intervene or otherwise appropriately assert and protect
\nLandlord’s interest with respect thereto.<\/p>\n
(i) To the extent permitted by law, Tenant hereby indemnifies and agrees
\nto protect, defend and hold the Indemnitees harmless against any actions,
\nclaims, demands, liability, costs and expenses, including attorneys’ fees and
\ncosts, arising from the use, generation, manufacture, production, storage,
\nrelease, threatened release, discharge, disposal, transportation to or from, or
\npresence of any Hazardous Material on, under or about the Premises or any part
\nof the Project caused by Tenant or by Tenant’s Agents (collectively a “Release”)
\nincluding, without limitation: (1) all foreseeable consequential damages,
\nincluding loss of rental income and diminution in property value; (2) the costs
\nof any investigation, monitoring, removal, restoration, abatement, repair,
\ncleanup, detoxification or other ameliorative work of any kind or nature<\/p>\n
13<\/p>\n
(collectively “Remedial Work”) and the preparation and implementation of any
\nclosure, remedial or other required plans; (3) any injury to or death of persons
\nor damage to or destruction of property; and (4) any failure of Tenant or
\nTenant’s Agents to observe the covenants of this Section 7.02. For purposes of
\nthis Section 7.02(i), any acts or omissions of Tenant’s Agents (whether or not
\nthey are negligent, intentional, willful or unlawful) shall be strictly
\nattributable to Tenant. In case of any action of proceeding brought against the
\nIndemnitees by reason of any such claim, upon notice from Landlord, Tenant
\ncovenants to defend such action or proceeding by counsel chosen by Landlord, in
\nLandlord’s sole discretion. Landlord reserves the right to settle, compromise
\nor dispose of any and all actions, claims and demands related to the foregoing
\nindemnity. Tenant’s obligations under this Section 7.02(i) shall survive the
\nexpiration or earlier termination of this Lease. The foregoing indemnity shall
\nnot operate to relieve Landlord of any liability Landlord has under
\nEnvironmental Laws to the extent Hazardous Materials are present on, under or
\nabout the Premises or the Project prior to delivery to Tenant of possession of
\nthe Premises.<\/p>\n
In no event shall Landlord be responsible to Tenant for the presence
\nof Hazardous Material in, on or about the Premises or the Project to the extent
\ncaused or contributed to by any third party.<\/p>\n
(j) Within forty-five (45) days following the end of Tenant’s fiscal year,
\nTenant shall provide Landlord with financial statements prepared in accordance
\nwith generally accepted accounting principles consistently applied and certified
\nas true and correct by Tenant’s independent certified public accountant setting
\nforth Tenant’s performance for the applicable fiscal year. So long as Tenant is
\nnot a publically traded company, the preceding sentence shall not apply, but
\nTenant shall make available to Landlord, at mutually convenient times, at
\nLandlord’s request, from time to time, financial statements prepared in
\naccordance with generally accepted accounting principles consistently applied
\nand certified as true and correct by Tenant’s independent certified public
\naccountant setting forth Tenant’s performance for the applicable fiscal year,
\nfor inspection and review by Landlord at the Premises. As of the execution of
\nthis Lease, Tenant’s fiscal year ends December 31. Tenant shall provide
\nLandlord with prompt written notice of any change in Tenant’s fiscal year. If at
\nany time it reasonably appears to Landlord that Tenant is not maintaining
\nsufficient insurance or is not otherwise financially capable of fulfilling its
\nobligations under this Section 7.02, whether or not such obligations have
\naccrued, become liquidated, conditional or contingent, Tenant shall procure and
\nthereafter maintain in full force and effect such insurance or other form of
\nfinancial assurance, with or from companies or persons and in forms reasonably
\nacceptable to Landlord, as Landlord may from time to time request.<\/p>\n
(k) Upon any Release, Tenant shall, subject to Section 7.02(h), promptly
\nnotify Landlord of the Release and shall, at its sole expense and immediately
\nafter demand by Landlord, commence to perform and thereafter diligently
\nprosecute to completion such Remedial Work as is necessary to restore the
\nPremises, Project or any other property affected by the Release to the condition
\nexisting prior to the use of any Hazardous Material by Tenant and\/or Tenant’s
\nAgents. All such Remedial Work shall be performed: (1) in conformance with the
\nrequirements of all applicable Environmental Laws; (2) by one or more
\ncontractors, approved in advance in writing by Landlord; and (3) under the
\nsupervision of a consulting engineer approved in advance in writing by Landlord.
\nAll costs and expenses of such Remedial Work shall be paid by Tenant including
\nthe charges of such contractor(s) and\/or the consulting engineer and Landlord’s
\nreasonable attorneys’ fees and costs incurred in connection with the monitoring
\nor review of such Remedial Work. In the event Tenant shall fail to timely
\ncommence, or cause to be commenced, or fail to diligently prosecute to
\ncompletion, such Remedial Work, Landlord may, but shall not be required to,
\ncause such Remedial Work to be performed and all costs and expenses thereof, or
\nincurred in connection therewith, shall become immediately due and payable by
\nTenant. Tenant’s obligations under this Section 7.02(k) shall survive the
\nexpiration or sooner termination of this Lease.<\/p>\n
(l) Hazardous Material shall include by way of illustration, and without
\nlimiting the generality of the definition of Hazardous Material in Section 1.03,
\nthe following: (i) those substances included within the definitions of
\n“hazardous substances,” “hazardous materials,” “toxic substances” or “solid
\nwaste” under all present and future federal, state and local laws (whether under
\ncommon law, statute, rule, regulation or otherwise) relating to the protection
\nof human health or the environment, including California Senate Bill 245
\n(Statutes of 1987, Chapter 1302), the Safe Drinking Water and Toxic Enforcement
\nAct of 1986 (commonly known as Proposition 65) and the Comprehensive
\nEnvironmental Response, Compensation and Liability Act of 1980, as amended, 42
\nU.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act of 1976,
\n — —
\n42 U.S.C. Section 6901 et seq., and the Hazardous Materials Transportation Act,
\n — —
\n49 U.S.C. Sections 1801, et seq., all as heretofore and hereafter amended, or in
\n — —
\nany regulations promulgated pursuant to said laws; (ii) those substances defined
\nas “hazardous wastes” in Section 25117 of the California Health & Safety Code or
\nas “hazardous substances” in Section 25316 of the California Health & Safety
\nCode, or in any regulations promulgated pursuant to said laws; (iii) those
\nsubstances listed in the United States Department of Transportation Table (49
\nCFR 172.101 and amendments thereto) or designated by the Environmental
\nProtection Agency (or any successor agency) as hazardous substances (see, e.g.,
\n — —-
\n40 CFR Part 302 and amendments thereto); (iv) such other substances, materials
\nand wastes which are or become regulated under applicable local, state or
\nfederal law or by the United States government or which are or become classified
\nas hazardous or toxic under federal, state or local laws or regulations,
\nincluding California Health & Safety Code, Division 20, and Title 26 of the
\nCalifornia Code of Regulations; and (v) any material, waste or substance which
\ncontains petroleum, asbestos or polychlorinated biphenyls, is designated as a
\n“hazardous substance” pursuant to Section 311 of the Clean Water Act of 1977, 33
\nU.S.C. Sections 1251, et seq. (33 U.S.C. (S) 1321), is listed pursuant to
\n ——
\nSection 307 of the Clean Water Act of 1977 (33 U.S.C. (S) 1317), or contains any
\nflammable, explosive or radioactive material.<\/p>\n
14<\/p>\n
(m) In addition to Tenant’s obligations pursuant to Article Twelve of this
\nLease, Tenant shall, on the expiration or sooner termination of this Lease,
\nsurrender the Premises to Landlord free of Hazardous Material for which Tenant
\nis responsible hereunder. If Tenant fails to so surrender the Premises and the
\nProject, the provisions of Section 7.02(i) shall apply. Landlord shall have the
\nright, but not the obligation, to appoint a consultant, at Tenant’s expense, to
\nconduct an investigation to determine whether any Hazardous Material are located
\nin or about the Premises or the Project, and to determine the corrective
\nmeasures required to remove such Hazardous Material. Tenant, at its expense,
\nshall comply with all recommendations of the consultant. A failure by Landlord
\nto appoint such a consultant shall in no way relieve Tenant of any of Tenant’s
\nobligations set forth in this Lease relating to Hazardous Material, nor
\nconstitute a waiver of Landlord’s rights under this Lease. Tenant’s obligations
\nunder this Section 7.02(m) shall survive the expiration or earlier termination
\nof this Lease.<\/p>\n
(n) Except as otherwise provided in Section 7.02(d) (concerning the
\nimplementation of consultant recommendations) and Section 7.02(k) (concerning
\nthe monitoring and review of Remedial Work), all costs incurred by Landlord in
\nretaining a consultant for any purpose contained in this Section 7.02 shall be
\nincluded in Operating Expenses under this Lease unless Landlord retains a
\nconsultant pursuant to this Section 7.02, and such consultant reasonably
\ndetermines after appropriate review of information and\/or inspection that Tenant
\nis breaching its obligations under this Lease to comply with this Section 7.02,
\nin which event all costs and expenses incurred by Landlord in connection with
\nany such review, inspection, and\/or implementation of recommendations pursuant
\nto this Section 7.02 shall become due and payable by Tenant as additional Rent,
\nupon presentation by Landlord of an invoice therefor.<\/p>\n
(o) Upon any violation of any of the foregoing covenants, Landlord shall be
\nentitled to exercise all remedies available to a landlord against a defaulting
\ntenant, including but not limited to those set forth in Article Eleven of this
\nLease. No action by Landlord hereunder shall impair the obligations of Tenant
\npursuant to Section 7.02.<\/p>\n
7.03 LANDLORD ACCESS TO PREMISES; APPROVALS<\/p>\n
(a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts,
\nwiring and conduits in and through the Premises, so long as Tenant’s use, layout
\nor design of the Premises is not materially affected or altered. Landlord or
\nLandlord’s agents shall have the right to enter upon the Premises in the event
\nof an emergency, or, upon twenty-four (24) hours prior notice to Tenant, to
\ninspect the Premises, to perform janitorial and other services (if any), to
\nconduct safety and other testing in the Premises and to make such repairs,
\nalterations, improvements or additions to the Premises or the Building or other
\nparts of the Property as Landlord may deem necessary or desirable (including all
\nalterations, improvements and additions in connection with a change in service
\nprovider or providers). Janitorial and cleaning services (if any) shall be
\nperformed after normal business hours. Any entry or work by Landlord may be
\nduring normal business hours and Landlord may use reasonable efforts to ensure
\nthat any entry or work shall not materially interfere with Tenant’s occupancy of
\nthe Premises.<\/p>\n
(b) If Tenant shall not be personally present to permit an entry into the
\nPremises when for any reason an entry therein shall be necessary or permissible,
\nLandlord (or Landlord’s agents), after attempting to notify Tenant (unless
\nLandlord believes an emergency situation exists), may enter the Premises without
\nrendering Landlord or its agents liable therefor, and without relieving Tenant
\nof any obligations under this Lease.<\/p>\n
(c) Upon twenty-four (24) hours notice to Tenant (or such shorter notice as
\nmay be reasonable in an emergency), Landlord may enter the Premises for the
\npurpose of conducting such inspections, tests and studies as Landlord may deem
\ndesirable or necessary to confirm Tenant’s compliance with all Laws and
\nEnvironmental Laws or for other purposes necessary in Landlord’s reasonable
\njudgment to ensure the sound condition of the Property and the systems serving
\nthe Property. Landlord’s rights under this Section 7.02(c) are for Landlord’s
\nown protection only, and Landlord has not, and shall not be deemed to have
\nassumed, any responsibility to Tenant or any other party as a result of the
\nexercise or non-exercise of such rights, for compliance with Laws or
\nEnvironmental Laws or for the accuracy or sufficiency of any item or the quality
\nor suitability of any item for its intended use.<\/p>\n
(d) Landlord may do any of the foregoing, or undertake any of the
\ninspection or work described in the preceding paragraphs without such action
\nconstituting an actual or constructive eviction of Tenant, in whole or in part,
\nor giving rise to an abatement of Rent by reason of loss or interruption of
\nbusiness of the Tenant, or otherwise.<\/p>\n
(e) The review, approval or consent of Landlord with respect to any item
\nrequired or permitted under this Lease is for Landlord’s own protection only,
\nand Landlord has not, and shall not be deemed to have assumed, any
\nresponsibility to Tenant or any other party, as a result of the exercise or non-
\nexercise of such rights, for compliance with Laws or Environmental Laws or for
\nthe accuracy or sufficiency of any item or the quality or suitability of any
\nitem for its intended use.<\/p>\n
7.04 QUIET ENJOYMENT<\/p>\n
Landlord covenants, in lieu of any implied covenant of quiet possession or quiet
\nenjoyment, that so long as Tenant is in compliance with the covenants and
\nconditions set forth in this Lease, Tenant shall have the right<\/p>\n
15<\/p>\n
to quiet enjoyment of the Premises without hindrance or interference from
\nLandlord or those claiming through Landlord, and subject to the covenants and
\nconditions set forth in the Lease and to the rights of any Mortgagee or ground
\nlessor.<\/p>\n
ARTICLE EIGHT
\n MAINTENANCE<\/p>\n
8.01 LANDLORD’S MAINTENANCE<\/p>\n
Subject to Article Fourteen and Section 8.02, Landlord shall maintain the
\nstructural portions of the Building, the roof, exterior walls and exterior
\ndoors, foundation, and underslab standard sewer system of the Building in good,
\nclean and safe condition, and shall use reasonable efforts, through Landlord’s
\nprogram of regularly scheduled preventive maintenance, to keep the Building’s
\nstandard heating, ventilation and air conditioning (“HVAC”) equipment in
\nreasonably good order and condition. Notwithstanding the foregoing, Landlord
\nshall have no responsibility to repair the Building’s standard heating,
\nventilation and air conditioning equipment, and all such repairs shall be
\nperformed by Tenant pursuant to the terms of Section 8.02. Landlord shall also
\n(a) maintain the landscaping, parking facilities and other Common Areas of the
\nProject, and (b) wash the outside of exterior windows at intervals reasonably
\ndetermined by Landlord. Except as provided in Article Fourteen and Article
\nFifteen, there shall be no abatement of rent, no allowance to Tenant for
\ndiminution of rental value and no liability of Landlord by reason of
\ninconvenience, annoyance or any injury to or interference with Tenant’s business
\narising from the making of or the failure to make any repairs, alterations or
\nimprovements in or to any portion of the Project or in or to any fixtures,
\nappurtenances or equipment therein. Tenant waives the right to make repairs at
\nLandlord’s expense under any law, statute or ordinance now or hereafter in
\neffect.<\/p>\n
8.02 TENANT’S MAINTENANCE<\/p>\n
Subject to the provisions of Article Fourteen, Tenant shall, at Tenant’s sole
\ncost and expense, make all repairs to the Premises and fixtures therein which
\nLandlord is not required to make pursuant to Section 8.01, including repairs to
\nthe interior walls, ceilings and windows of the Premises, the interior doors,
\nTenant’s signage, and the electrical, life-safety, plumbing and heating,
\nventilation and air conditioning systems located within or serving the Premises
\nand shall maintain the Premises, the fixtures and utilities systems therein, and
\nthe area immediately surrounding the Premises (including all garbage
\nenclosures), in a good, clean and safe condition. Tenant shall deliver to
\nLandlord a copy of any maintenance contract entered into by Tenant with respect
\nto the Premises. Tenant shall also, at Tenant’s expense, keep any non-standard
\nheating, ventilating and air conditioning equipment and other non-standard
\nequipment in the Building in good condition and repair, using contractors
\napproved in advance, in writing, by Landlord. Notwithstanding Section 8.01
\nabove, but subject to the waivers set forth in Section 16.04, Tenant will pay
\nfor any repairs to the Building or the Project which are caused by any
\nnegligence or carelessness, or by any willful and wrongful act, of Tenant or its
\nassignees, subtenants or employees, or of the respective agents of any of the
\nforegoing persons, or of any other persons permitted in the Building or
\nelsewhere in the Project by Tenant or any of them. Tenant will maintain the
\nPremises, and will leave the Premises upon termination of this Lease, in a safe,
\nclean, neat and sanitary condition.<\/p>\n
ARTICLE NINE
\n ALTERATIONS AND IMPROVEMENTS<\/p>\n
9.01 TENANT ALTERATIONS<\/p>\n
(a) The following provisions shall apply to the completion of any Tenant
\nAlterations:<\/p>\n
(1) Tenant shall not, except as provided herein, without the prior
\n written consent of Landlord, which consent shall not be unreasonably
\n withheld, make or cause to be made any Tenant Alterations in or to the
\n Premises or any Property systems serving the Premises. Prior to making any
\n Tenant Alterations, Tenant shall give Landlord ten (10) days prior written
\n notice (or such earlier notice as would be necessary pursuant to applicable
\n Law) to permit Landlord sufficient time to post appropriate notices of non-
\n responsibility. Subject to all other requirements of this Article Nine,
\n Tenant may undertake Decoration work without Landlord’s prior written
\n consent. Tenant shall furnish Landlord with the names and addresses of all
\n contractors and subcontractors and copies of all contracts. All Tenant
\n Alterations shall be completed at such time and in such manner as Landlord
\n may from time to time designate, and only by contractors or mechanics
\n approved by Landlord, which approval shall not be unreasonably withheld,
\n provided, however, that Landlord may, in its sole discretion, specify the
\n engineers and contractors to perform all work relating to the Building’s
\n systems (including the mechanical, heating, plumbing, security,
\n ventilating, air-conditioning, electrical, communication and the fire and
\n life safety systems in the Building). The contractors, mechanics and
\n engineers who may be used are further limited to those whose work will not
\n cause or threaten to cause disharmony or interference with Landlord or
\n other tenants in the Building and their respective agents and contractors
\n performing work in or about the Building. Landlord may further condition
\n its consent upon Tenant furnishing to Landlord and Landlord approving prior
\n to the commencement of any work or delivery of materials to the Premises
\n related to the Tenant Alterations such of the following as specified by
\n Landlord: architectural plans and specifications, opinions from Landlord’s
\n engineers stating that the Tenant Alterations will not in any way adversely
\n affect the<\/p>\n
16<\/p>\n
Building’s systems, necessary permits and licenses, certificates of
\n insurance, and such other documents in such form reasonably requested by
\n Landlord. Upon completion of the Tenant Alterations, Tenant shall deliver
\n to Landlord two (2) sets of as-built mylar and digitized plans and
\n specifications for the Tenant Alterations.<\/p>\n
(2) Tenant shall pay the cost of all Tenant Alterations and the cost
\n of decorating the Premises and any work to the Property occasioned thereby.
\n In connection with completion of any Tenant Alterations, Tenant shall pay
\n Landlord hoisting charges at Landlord’s then standard rate. Upon
\n completion of Tenant Alterations, Tenant shall furnish Landlord with
\n contractors’ affidavits and full and final waivers of lien and receipted
\n bills covering all labor and materials expended and used in connection
\n therewith and such other documentation reasonably requested by Landlord or
\n Mortgagee.<\/p>\n
(3) Tenant agrees to complete all Tenant Alterations (i) in accordance
\n with all Laws, Environmental Laws, all requirements of applicable insurance
\n companies and in accordance with Landlord’s standard construction rules and
\n regulations, and (ii) in a good and workmanlike manner with the use of good
\n grades of materials. Tenant shall notify Landlord immediately if Tenant
\n receives any notice of violation of any Law in connection with completion
\n of any Tenant Alterations and shall immediately take such steps as are
\n necessary to remedy such violation. In no event shall such supervision or
\n right to supervise by Landlord nor shall any approvals given by Landlord
\n under this Lease constitute any warranty by Landlord to Tenant of the
\n adequacy of the design, workmanship or quality of such work or materials
\n for Tenant’s intended use or of compliance with the requirements of Section
\n 9.01(a)(3)(i) and (ii) above or impose any liability upon Landlord in
\n connection with the performance of such work.<\/p>\n
(b) All Tenant Additions to the Premises whether installed by Landlord or
\nTenant, shall without compensation or credit to Tenant, become part of the
\nPremises and the property of Landlord at the time of their installation and
\nshall remain in the Premises, unless pursuant to Article Twelve, Tenant may
\nremove them or is required to remove them at Landlord’s request.<\/p>\n
9.02 LIENS<\/p>\n
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or
\nsupplier or any other lien to be filed against the Building, the Land, the
\nPremises, or any other part of the Property arising out of work performed, or
\nalleged to have been performed by, or at the direction of, or on behalf of
\nTenant. If any such lien or claim for lien is filed, Tenant shall within ten
\n(10) days of receiving notice of such lien or claim (a) have such lien or claim
\nfor lien released of record or (b) deliver to Landlord a bond in form, content,
\namount, and issued by surety, satisfactory to Landlord, indemnifying,
\nprotecting, defending and holding harmless the Indemnitees against all costs and
\nliabilities resulting from such lien or claim for lien and the foreclosure or
\nattempted foreclosure thereof. If Tenant fails to take any of the above
\nactions, Landlord, in addition to its rights and remedies under Article Eleven,
\nwithout investigating the validity of such lien or claim for lien, may pay or
\ndischarge the same and Tenant shall, as payment of additional Rent hereunder,
\nreimburse Landlord upon demand for the amount so paid by Landlord, including
\nLandlord’s expenses and attorneys’ fees.<\/p>\n
ARTICLE TEN
\n ASSIGNMENT AND SUBLETTING<\/p>\n
10.01 ASSIGNMENT AND SUBLETTING<\/p>\n
(a) Without the prior written consent of Landlord, which may be withheld
\nin Landlord’s sole discretion, Tenant may not sublease, assign, mortgage,
\npledge, hypothecate or otherwise transfer or permit the transfer of this Lease
\nor the encumbering of Tenant’s interest therein in whole or in part, by
\noperation of Law or otherwise or permit the use or occupancy of the Premises, or
\nany part thereof, by anyone other than Tenant, provided, however, if Landlord
\nchooses not to recapture the space proposed to be subleased or assigned as
\nprovided in Section 10.02, Landlord shall not unreasonably withhold its consent
\nto a subletting or assignment under this Section 10.01. Tenant agrees that the
\nprovisions governing sublease and assignment set forth in this Article Ten shall
\nbe deemed to be reasonable. If Tenant desires to enter into any sublease of the
\nPremises or assignment of this Lease, Tenant shall deliver written notice
\nthereof to Landlord (“Tenant’s Notice”), together with the identity of the
\nproposed subtenant or assignee and the proposed principal terms thereof and
\nfinancial and other information sufficient for Landlord to make an informed
\njudgment with respect to such proposed subtenant or assignee at least thirty
\n(30) days prior to the commencement date of the term of the proposed sublease or
\nassignment. If Tenant proposes to sublease less than all of the Rentable Area of
\nthe Premises, the space proposed to be sublet and the space retained by Tenant
\nmust each be a marketable unit as reasonably determined by Landlord and
\notherwise in compliance with all Laws. Landlord shall notify Tenant in writing
\nof its approval or disapproval of the proposed sublease or assignment or its
\ndecision to exercise its rights under Section 10.02 within fifteen (15) days
\nafter receipt of Tenant’s Notice (and all required information). In no event may
\nTenant sublease any portion of the Premises or assign the Lease to any other
\ntenant of the Project. Tenant shall submit for Landlord’s approval (which
\napproval shall not be unreasonably withheld) any advertising which Tenant or its
\nagents intend to use with respect to the space proposed to be sublet.<\/p>\n
17<\/p>\n
(b) With respect to Landlord’s consent to an assignment or sublease,
\nLandlord may take into consideration any factors which Landlord may deem
\nrelevant, and the reasons for which Landlord’s denial shall be deemed to be
\nreasonable shall include, without limitation, the following:<\/p>\n
(i) the business reputation or creditworthiness of any proposed subtenant
\n or assignee is not acceptable to Landlord; or<\/p>\n
(ii) in Landlord’s reasonable judgment the proposed assignee or subtenant
\n would diminish the value or reputation of the Building or Landlord; or<\/p>\n
(iii) any proposed assignee’s or subtenant’s use of the Premises would
\n violate Section 7.01 of the Lease or would violate the provisions of any
\n other leases of tenants in the Project;<\/p>\n
(iv) the proposed assignee or subtenant is either a governmental agency, a
\n school or similar operation, or a medical related practice; or<\/p>\n
(v) the proposed subtenant or assignee is a bona fide prospective tenant of
\n Landlord in the Project as demonstrated by a written proposal dated within
\n ninety (90) days prior to the date of Tenant’s request; or<\/p>\n
(vi) the proposed subtenant or assignee would materially increase the
\n estimated pedestrian and vehicular traffic to and from the Premises and the
\n Building.<\/p>\n
In no event shall Landlord be obligated to consider a consent to any proposed
\nassignment of the Lease which would assign less than the entire Premises. In
\nthe event Landlord wrongfully withholds its consent to any proposed sublease of
\nthe Premises or assignment of the Lease, Tenant’s sole and exclusive remedy
\ntherefor shall be to seek specific performance of Landlord’s obligations to
\nconsent to such sublease or assignment.<\/p>\n
(c) Any sublease or assignment shall be expressly subject to the terms and
\nconditions of this Lease. Any subtenant or assignee shall execute such
\ndocuments as Landlord may reasonably require to evidence such subtenant or
\nassignee’s assumption of the obligations and liabilities of Tenant under this
\nLease. Tenant shall deliver to Landlord a copy of all agreements executed by
\nTenant and the proposed subtenant and assignee with respect to the Premises.
\nLandlord’s approval of a sublease, assignment, hypothecation, transfer or third
\nparty use or occupancy shall not constitute a waiver of Tenant’s obligation to
\nobtain Landlord’s consent to further assignments or subleases, hypothecations,
\ntransfers or third party use or occupancy.<\/p>\n
(d) For purposes of this Article Ten, an assignment shall be deemed to
\ninclude a change in the majority control of Tenant, resulting from any transfer,
\nsale or assignment of shares of stock of Tenant occurring by operation of Law or
\notherwise if Tenant is a corporation whose shares of stock are not traded
\npublicly. If Tenant is a partnership, any change in the partners of Tenant
\nshall be deemed to be an assignment.<\/p>\n
10.02 RECAPTURE<\/p>\n
Landlord shall have the option to exclude from the Premises covered by this
\nLease (“recapture”), the space proposed to be sublet or subject to the
\nassignment, effective as of the proposed commencement date of such sublease or
\nassignment. If Landlord elects to recapture, Tenant shall surrender possession
\nof the space proposed to be subleased or subject to the assignment to Landlord
\non the effective date of recapture of such space from the Premises, such date
\nbeing the Termination Date for such space. Effective as of the date of
\nrecapture of any portion of the Premises pursuant to this section, the Monthly
\nBase Rent, Rentable Area of the Premises and Tenant’s Share shall be adjusted
\naccordingly.<\/p>\n
10.03 EXCESS RENT<\/p>\n
Tenant shall pay Landlord on the first day of each month during the term of the
\nsublease or assignment, one hundred percent (100%) of the amount by which the
\nsum of all rent and other consideration (direct or indirect) due from the
\nsubtenant or assignee for such month exceeds: (i) that portion of the Monthly
\nBase Rent and Rent Adjustments due under this Lease for said month which is
\nallocable to the space sublet or assigned; and (ii) the following costs and
\nexpenses for the subletting or assignment of such space: (1) brokerage
\ncommissions and attorneys’ fees and expenses, (2) the actual costs paid in
\nmaking any improvements or substitutions in the Premises required by any
\nsublease or assignment; and (3) “free rent” periods, costs of any inducements or
\nconcessions given to subtenant or assignee, moving costs, and other amounts in
\nrespect of such subtenant’s or assignee’s other leases or occupancy
\narrangements. All such costs and expenses shall be amortized over the term of
\nthe sublease or assignment pursuant to sound accounting principles.<\/p>\n
10.04 TENANT LIABILITY<\/p>\n
In the event of any sublease or assignment, whether or not with Landlord’s
\nconsent, Tenant shall not be released or discharged from any liability, whether
\npast, present or future, under this Lease, including any <\/p>\n
18<\/p>\n
liability arising from the exercise of any renewal or expansion option, to the
\nextent such exercise is expressly permitted by Landlord. Tenant’s liability
\nshall remain primary, and in the event of default by any subtenant, assignee or
\nsuccessor of Tenant in performance or observance of any of the covenants or
\nconditions of this Lease, Landlord may proceed directly against Tenant without
\nthe necessity of exhausting remedies against said subtenant, assignee or
\nsuccessor. After any assignment, Landlord may consent to subsequent assignments
\nor subletting of this Lease, or amendments or modifications of this Lease with
\nassignees of Tenant, without notifying Tenant, or any successor of Tenant, and
\nwithout obtaining its or their consent thereto, and such action shall not
\nrelieve Tenant or any successor of Tenant of liability under this Lease. If
\nLandlord grants consent to such sublease or assignment, Tenant shall pay all
\nreasonable attorneys’ fees and expenses incurred by Landlord with respect to
\nsuch assignment or sublease. In addition, if Tenant has any options to extend
\nthe term of this Lease or to add other space to the Premises, such options shall
\nnot be available to any subtenant or assignee, directly or indirectly without
\nLandlord’s express written consent, which may be withheld in Landlord’s sole
\ndiscretion.<\/p>\n
10.05 ASSUMPTION AND ATTORNMENT<\/p>\n
If Tenant shall assign this Lease as permitted herein, the assignee shall
\nexpressly assume all of the obligations of Tenant hereunder in a written
\ninstrument satisfactory to Landlord and furnished to Landlord not later than
\nfifteen (15) days prior to the effective date of the assignment. If Tenant
\nshall sublease the Premises as permitted herein, Tenant shall, at Landlord’s
\noption, within fifteen (15) days following any request by Landlord, obtain and
\nfurnish to Landlord the written agreement of such subtenant to the effect that
\nthe subtenant will attorn to Landlord and will pay all subrent directly to
\nLandlord.<\/p>\n
10.06 TRANSFER TO TENANT AFFILIATE<\/p>\n
Anything in this Section to the contrary notwithstanding, Tenant may assign this
\nLease or sublet all or a portion of the Premises to any entity which controls,
\nis controlled by or is under common control with Maxygen, Inc. (each a “Tenant
\nAffiliate”), without the prior consent of Landlord, and Landlord shall have no
\nright to recapture the Premises subject to such sublease or assignment;
\nprovided, however, that in order for any such assignment or sublease to be
\neffective, Landlord shall be given prior written notice of same and any such
\nassignment or sublease shall comply with the requirements set forth in Section
\n10.05, and shall be in effect only so long as such entity controls, is
\ncontrolled by or is under common control with Maxygen, Inc. In addition, no
\nsuch assignment or sublease shall relieve Tenant of any obligation to be
\nperformed by Tenant under this Lease, whether occurring before or after any such
\nassignment or sublease. For purposes of this Section, the term “control” means
\n(i) the beneficial ownership, directly or indirectly, of not less than fifty-one
\npercent (51%) of the voting common stock or equity interests of the controlled
\nentity and (ii) the controlling entity manages, directly or indirectly, the
\ncontrolled entity.<\/p>\n
ARTICLE ELEVEN
\n DEFAULT AND REMEDIES<\/p>\n
11.01 EVENTS OF DEFAULT<\/p>\n
The occurrence or existence of any one or more of the following shall constitute
\na “Default” by Tenant under this Lease:<\/p>\n
(i) Tenant fails to pay any installment or other payment of Rent
\n including Rent Adjustment Deposits or Rent Adjustments within three (3)
\n days after the date when due;<\/p>\n
(ii) Tenant fails to observe or perform any of the other covenants,
\n conditions or provisions of this Lease or the Workletter and fails to cure
\n such default within fifteen (15) days after written notice thereof to
\n Tenant, unless the default involves a hazardous condition, which shall be
\n cured forthwith or unless the failure to perform is a Default for which
\n this Lease specifies there is no cure or grace period;<\/p>\n
(iii) the interest of Tenant in this Lease is levied upon under
\n execution or other legal process;<\/p>\n
(iv) a petition is filed by or against Tenant to declare Tenant
\n bankrupt or seeking a plan of reorganization or arrangement under any
\n Chapter of the Bankruptcy Act, or any amendment, replacement or
\n substitution therefor, or to delay payment of, reduce or modify Tenant’s
\n debts, which in the case of an involuntary action is not discharged within
\n thirty (30) days;<\/p>\n
(v) Tenant is declared insolvent by Law or any assignment of Tenant’s
\n property is made for the benefit of creditors;<\/p>\n
(vi) a receiver is appointed for Tenant or Tenant’s property, which
\n appointment is not discharged within thirty (30) days;<\/p>\n
(vii) any action taken by or against Tenant to reorganize or modify
\n Tenant’s capital structure in a materially adverse way which in the case of
\n an involuntary action is not discharged within thirty (30) days;<\/p>\n
19<\/p>\n
(viii) upon the dissolution of Tenant; or<\/p>\n
(ix) upon the third occurrence within any Lease Year that Tenant
\n fails to pay Rent when due or has breached a particular covenant of this
\n Lease (whether or not such failure or breach is thereafter cured within any
\n stated cure or grace period or statutory period).<\/p>\n
11.02 LANDLORD’S REMEDIES<\/p>\n
(a) A Default shall constitute a breach of the Lease for which Landlord
\nshall have the rights and remedies set forth in this Section 11.02 and all other
\nrights and remedies set forth in this Lease or now or hereafter allowed by Law,
\nwhether legal or equitable, and all rights and remedies of Landlord shall be
\ncumulative and none shall exclude any other right or remedy.<\/p>\n
(b) With respect to a Default, at any time Landlord may terminate Tenant’s
\nright to possession by written notice to Tenant stating such election. Any
\nwritten notice required pursuant to Section 11.01 shall constitute notice of
\nunlawful detainer pursuant to California Code of Civil Procedure Section 1161
\nif, at Landlord’s sole discretion, it states Landlord’s election that Tenant’s
\nright to possession is terminated after expiration of any period required by Law
\nor any longer period required by Section 11.01. Upon the expiration of the
\nperiod stated in Landlord’s written notice of termination (and unless such
\nnotice provides an option to cure within such period and Tenant cures the
\nDefault within such period), Tenant’s right to possession shall terminate and
\nthis Lease shall terminate, and Tenant shall remain liable as hereinafter
\nprovided. Upon such termination in writing of Tenant’s right to possession,
\nLandlord shall have the right, subject to applicable Law, to re-enter the
\nPremises and dispossess Tenant and the legal representatives of Tenant and all
\nother occupants of the Premises by unlawful detainer or other summary
\nproceedings, or otherwise as permitted by Law, regain possession of the Premises
\nand remove their property (including their trade fixtures, personal property and
\nthose Tenant Additions which Tenant is required or permitted to remove under
\nArticle Twelve), but Landlord shall not be obligated to effect such removal, and
\nsuch property may, at Landlord’s option, be stored elsewhere, sold or otherwise
\ndealt with as permitted by Law, at the risk of, expense of and for the account
\nof Tenant, and the proceeds of any sale shall be applied pursuant to Law.
\nLandlord shall in no event be responsible for the value, preservation or
\nsafekeeping of any such property. Tenant hereby waives all claims for damages
\nthat may be caused by Landlord’s removing or storing Tenant’s personal property
\npursuant to this Section or Section 12.01, and Tenant hereby indemnifies, and
\nagrees to defend, protect and hold harmless, the Indemnitees from any and all
\nloss, claims, demands, actions, expenses, liability and cost (including
\nattorneys’ fees and expenses) arising out of or in any way related to such
\nremoval or storage. Upon such written termination of Tenant’s right to
\npossession and this Lease, Landlord shall have the right to recover damages for
\nTenant’s Default as provided herein or by Law, including the following damages
\nprovided by California Civil Code Section 1951.2:<\/p>\n
(1) the worth at the time of award of the unpaid Rent which had been
\n earned at the time of termination;<\/p>\n
(2) the worth at the time of award of the amount by which the unpaid
\n Rent which would have been earned after termination until the time of award
\n exceeds the amount of such Rent loss that Tenant proves could reasonably
\n have been avoided;<\/p>\n
(3) the worth at the time of award of the amount by which the unpaid
\n Rent for the balance of the term of this Lease after the time of award
\n exceeds the amount of such Rent loss that Tenant proves could be reasonably
\n avoided; and<\/p>\n
(4) any other amount necessary to compensate Landlord for all the
\n detriment proximately caused by Tenant’s failure to perform its obligations
\n under this Lease or which in the ordinary course of things would be likely
\n to result therefrom. The word “rent” as used in this Section 11.02 shall
\n have the same meaning as the defined term Rent in this Lease. The “worth
\n at the time of award” of the amount referred to in clauses (1) and (2)
\n above is computed by allowing interest at the Default Rate. The worth at
\n the time of award of the amount referred to in clause (3) above is computed
\n by discounting such amount at the discount rate of the Federal Reserve Bank
\n of San Francisco at the time of award plus one percent (1%). For the
\n purpose of determining unpaid Rent under clause (3) above, the monthly Rent
\n reserved in this Lease shall be deemed to be the sum of the Monthly Base
\n Rent, and monthly Storage Space Rent, if any, and the amounts last payable
\n by Tenant as Rent Adjustments for the calendar year in which Landlord
\n terminated this Lease as provided hereinabove.<\/p>\n
(c) Even if Tenant is in Default and\/or has abandoned the Premises, this
\nLease shall continue in effect for so long as Landlord does not terminate
\nTenant’s right to possession by written notice as provided in Section 11.02(b)
\nabove, and Landlord may enforce all its rights and remedies under this Lease,
\nincluding the right to recover Rent as it becomes due under this Lease. In such
\nevent, Landlord shall have all of the rights and remedies of a landlord under
\nCalifornia Civil Code Section 1951.4 (lessor may continue Lease in effect after
\nTenant’s Default and abandonment and recover Rent as it becomes due, if Tenant
\nhas the right to sublet or assign, subject only to reasonable limitations), or
\nany successor statute. During such time as Tenant is in Default, if Landlord
\nhas not terminated this Lease by written notice and if Tenant requests
\nLandlord’s consent to an assignment of this Lease or a sublease of the Premises,
\nsubject to Landlord’s option to recapture pursuant to Section 10.02, Landlord
\nshall not unreasonably withhold its consent to such<\/p>\n
20<\/p>\n
assignment or sublease. Tenant acknowledges and agrees that the provisions of
\nArticle Ten shall be deemed to constitute reasonable limitations of Tenant’s
\nright to assign or sublet. Tenant acknowledges and agrees that in the absence of
\nwritten notice pursuant to Section 11.02(b) above terminating Tenant’s right to
\npossession, no other act of Landlord shall constitute a termination of Tenant’s
\nright to possession or an acceptance of Tenant’s surrender of the Premises,
\nincluding acts of maintenance or preservation or efforts to relet the Premises
\nor the appointment of a receiver upon initiative of Landlord to protect
\nLandlord’s interest under this Lease or the withholding of consent to a
\nsubletting or assignment, or terminating a subletting or assignment, if in
\naccordance with other provisions of this Lease.<\/p>\n
(d) In the event that Landlord seeks an injunction with respect to a breach
\nor threatened breach by Tenant of any of the covenants, conditions or provisions
\nof this Lease, Tenant agrees to pay the premium for any bond required in
\nconnection with such injunction.<\/p>\n
(e) Tenant hereby waives any and all rights to relief from forfeiture,
\nredemption or reinstatement granted by Law (including California Civil Code of
\nProcedure Sections 1174 and 1179) in the event of Tenant being evicted or
\ndispossessed for any cause or in the event of Landlord obtaining possession of
\nthe Premises by reason of Tenant’s Default or otherwise;<\/p>\n
(f) Notwithstanding any other provision of this Lease, a notice to Tenant
\ngiven under this Article and Article Twenty-four of this Lease or given pursuant
\nto California Code of Civil Procedure Section 1161, and any notice served by
\nmail shall be deemed served, and the requisite waiting period deemed to begin
\nunder said Code of Civil Procedure Section upon mailing, without any additional
\nwaiting requirement under Code of Civil Procedure Section 1011 et seq. or by
\nother Law. For purposes of Code of Civil Procedure Section 1162, Tenant’s
\n“place of residence”, “usual place of business”, “the property” and “the place
\nwhere the property is situated” shall mean and be the Premises, whether or not
\nTenant has vacated same at the time of service.<\/p>\n
(g) The voluntary or other surrender or termination of this Lease, or a
\nmutual termination or cancellation thereof, shall not work a merger and shall
\nterminate all or any existing assignments, subleases, subtenancies or
\noccupancies permitted by Tenant, except if and as otherwise specified in writing
\nby Landlord.<\/p>\n
(h) No delay or omission in the exercise of any right or remedy of Landlord
\nupon any default by Tenant, and no exercise by Landlord of its rights pursuant
\nto Section 26.15 to perform any duty which Tenant fails timely to perform, shall
\nimpair any right or remedy or be construed as a waiver. No provision of this
\nLease shall be deemed waived by Landlord unless such waiver is in a writing
\nsigned by Landlord. The waiver by Landlord of any breach of any provision of
\nthis Lease shall not be deemed a waiver of any subsequent breach of the same or
\nany other provision of this Lease.<\/p>\n
11.03 ATTORNEY’S FEES<\/p>\n
In the event any party brings any suit or other proceeding with respect to the
\nsubject matter or enforcement of this Lease, the prevailing party (as determined
\nby the court, agency or other authority before which such suit or proceeding is
\ncommenced) shall, in addition to such other relief as may be awarded, be
\nentitled to recover attorneys’ fees, expenses and costs of investigation as
\nactually incurred, including court costs, expert witness fees, costs and
\nexpenses of investigation, and all attorneys’ fees, costs and expenses in any
\nsuch suit or proceeding (including in any action or participation in or in
\nconnection with any case or proceeding under the Bankruptcy Code, 11 United
\nStates Code Sections 101 et seq., or any successor statutes, in establishing or
\n ——
\nenforcing the right to indemnification, in appellate proceedings, or in
\nconnection with the enforcement or collection of any judgment obtained in any
\nsuch suit or proceeding).<\/p>\n
11.04 BANKRUPTCY<\/p>\n
The following provisions shall apply in the event of the bankruptcy or
\ninsolvency of Tenant:<\/p>\n
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy
\nCode where the trustee of Tenant elects to assume this Lease for the purposes of
\nassigning it, such election or assignment, may only be made upon compliance with
\nthe provisions of (b) and (c) below, which conditions Landlord and Tenant
\nacknowledge to be commercially reasonable. In the event the trustee elects to
\nreject this Lease then Landlord shall immediately be entitled to possession of
\nthe Premises without further obligation to Tenant or the trustee.<\/p>\n
(b) Any election to assume this Lease under Chapter 11 or 13 of the
\nBankruptcy Code by Tenant as debtor-in-possession or by Tenant’s trustee (the
\n“Electing Party”) must provide for:<\/p>\n
The Electing Party to cure or provide to Landlord adequate assurance that
\n it will cure all monetary defaults under this Lease within fifteen (15)
\n days from the date of assumption and it will cure all nonmonetary defaults
\n under this Lease within thirty (30) days from the date of assumption.
\n Landlord and Tenant acknowledge such condition to be commercially
\n reasonable.<\/p>\n
(c) If the Electing Party has assumed this Lease or elects to assign
\nTenant’s interest under this Lease to any other person, such interest may be
\nassigned only if the intended assignee has provided<\/p>\n
21<\/p>\n
adequate assurance of future performance (as herein defined), of all of the
\nobligations imposed on Tenant under this Lease.<\/p>\n
For the purposes hereof, “adequate assurance of future performance” means
\n that Landlord has ascertained that each of the following conditions has
\n been satisfied:<\/p>\n
(i) The assignee has submitted a current financial statement,
\n certified by its chief financial officer, which shows a net worth and
\n working capital in amounts sufficient to assure the future performance by
\n the assignee of Tenant’s obligations under this Lease; and<\/p>\n
(ii) Landlord has obtained consents or waivers from any third parties
\n which may be required under a lease, mortgage, financing arrangement, or
\n other agreement by which Landlord is bound, to enable Landlord to permit
\n such assignment.<\/p>\n
(d) Landlord’s acceptance of rent or any other payment from any trustee,
\nreceiver, assignee, person, or other entity will not be deemed to have waived,
\nor waive, the requirement of Landlord’s consent, Landlord’s right to terminate
\nthis Lease for any transfer of Tenant’s interest under this Lease without such
\nconsent, or Landlord’s claim for any amount of Rent due from Tenant.<\/p>\n
11.05 LANDLORD’S DEFAULT<\/p>\n
Landlord shall be in default hereunder in the event Landlord has not begun and
\npursued with reasonable diligence the cure of any failure of Landlord to meet
\nits obligations hereunder within thirty (30) days after the receipt by Landlord
\nof written notice from Tenant of the alleged failure to perform. In no event
\nshall Tenant have the right to terminate or rescind this Lease as a result of
\nLandlord’s default as to any covenant or agreement contained in this Lease.
\nTenant hereby waives such remedies of termination and rescission and hereby
\nagrees that Tenant’s remedies for default hereunder and for breach of any
\npromise or inducement shall be limited to a suit for damages and\/or injunction.
\nIn addition, Tenant hereby covenants that, prior to the exercise of any such
\nremedies, it will give Mortgagee notice and a reasonable time to cure any
\ndefault by Landlord.<\/p>\n
ARTICLE TWELVE
\n SURRENDER OF PREMISES<\/p>\n
12.01 IN GENERAL<\/p>\n
Upon the Termination Date, Tenant shall surrender and vacate the Premises
\nimmediately and deliver possession thereof to Landlord in (i) a clean, good and
\ntenantable condition, ordinary wear and tear, and damage caused by casualty
\n(subject to the terms of Article 14) or by Landlord excepted, and (ii) full
\ncompliance with law, including without limitation, Tenant’s having delivered to
\nLandlord a Business Closure Report issued by the County of San Mateo Department
\nof Environmental Health, and a Radioactive Material License Termination issued
\nby the appropriate governmental authority. Tenant shall deliver to Landlord all
\nkeys to the Premises. Tenant shall remove from the Premises all movable
\npersonal property of Tenant and Tenant’s trade fixtures (including without
\nlimitation, any autoclaves, hoods, animal facility, cold rooms, and generators,
\nthe costs of which were not paid for by any portion of Landlord’s Maximum
\nContribution), including, subject to Section 6.04, cabling for any of the
\nforegoing. Tenant shall be entitled to remove such Tenant Additions which at
\nthe time of their installation Landlord and Tenant agreed may be removed by
\nTenant. Tenant shall also remove such other Tenant Additions as required by
\nLandlord, including any Tenant Additions containing Hazardous Materials. Tenant
\nimmediately shall repair all damage resulting from removal of any of Tenant’s
\nproperty, furnishings or Tenant Additions, shall close all floor, ceiling and
\nroof openings and shall restore the Premises to a tenantable condition as
\nreasonably determined by Landlord. If any of the Tenant Additions which were
\ninstalled by Tenant involved the lowering of ceilings, raising of floors or the
\ninstallation of specialized wall or floor coverings or lights, then Tenant shall
\nalso be obligated to return such surfaces to their condition prior to the
\ncommencement of this Lease. In the event possession of the Premises is not
\ndelivered to Landlord when required hereunder, or if Tenant shall fail to remove
\nthose items described above, Landlord may (but shall not be obligated to), at
\nTenant’s expense, remove any of such property and store, sell or otherwise deal
\nwith such property as provided in Section 11.02(b), including the waiver and
\nindemnity obligations provided in that Section, and undertake, at Tenant’s
\nexpense, such restoration work as Landlord deems necessary or advisable.<\/p>\n
12.02 LANDLORD’S RIGHTS<\/p>\n
All property which may be removed from the Premises by Landlord shall be
\nconclusively presumed to have been abandoned by Tenant and Landlord may deal
\nwith such property as provided in Section 11.02(b), including the waiver and
\nindemnity obligations provided in that Section. Tenant shall also reimburse
\nLandlord for all costs and expenses incurred by Landlord in removing any of
\nTenant Additions which Tenant was required to remove and in restoring the
\nPremises to the condition required by this Lease at the Termination Date.<\/p>\n
22<\/p>\n
ARTICLE THIRTEEN
\n HOLDING OVER<\/p>\n
Tenant shall pay Landlord the greater of (i) double the monthly Rent payable for
\nthe month immediately preceding the holding over (including increases for Rent
\nAdjustments which Landlord may reasonably estimate) or, (ii) double the fair
\nmarket rental value of the Premises as reasonably determined by Landlord for
\neach month or portion thereof that Tenant retains possession of the Premises, or
\nany portion thereof, after the Termination Date (without reduction for any
\npartial month that Tenant retains possession). Tenant shall also pay all
\ndamages sustained by Landlord by reason of such retention of possession. The
\nprovisions of this Article shall not constitute a waiver by Landlord of any re-
\nentry rights of Landlord and Tenant’s continued occupancy of the Premises shall
\nbe as a tenancy in sufferance.<\/p>\n
ARTICLE FOURTEEN
\n DAMAGE BY FIRE OR OTHER CASUALTY<\/p>\n
14.01 SUBSTANTIAL UNTENANTABILITY<\/p>\n
(a) If any fire or other casualty (whether insured or uninsured) renders
\nall or a substantial portion of the Premises or the Building untenantable,
\nLandlord shall, with reasonable promptness after the occurrence of such damage,
\nestimate the length of time that will be required to substantially complete the
\nrepair and restoration and shall by notice advise Tenant of such estimate
\n(“Landlord’s Notice”). If Landlord estimates that the amount of time required
\nto substantially complete such repair and restoration will exceed one hundred
\neighty (180) days from the date such damage occurred, then Landlord, or Tenant
\nif all or a substantial portion of the Premises is rendered untenantable, shall
\nhave the right to terminate this Lease as of the date of such damage upon giving
\nwritten notice to the other at any time within twenty (20) days after delivery
\nof Landlord’s Notice, provided that if Landlord so chooses, Landlord’s Notice
\nmay also constitute such notice of termination.<\/p>\n
(b) In the event that the Building is damaged or destroyed to the extent of
\nmore than twenty-five percent (25%) of its replacement cost or to any extent if
\nno insurance proceeds or insufficient insurance proceeds are receivable by
\nLandlord, or if the buildings at the Project shall be damaged to the extent of
\nfifty percent (50%) or more of the replacement value or to any extent if no
\ninsurance proceeds or insufficient insurance proceeds are receivable by
\nLandlord, and regardless of whether or not the Premises be damaged, Landlord may
\nelect by written notice to Tenant given within thirty (30) days after the
\noccurrence of the casualty to terminate this Lease in lieu of so restoring the
\nPremises, in which event this Lease shall terminate as of the date specified in
\nLandlord’s notice, which date shall be no later than sixty (60) days following
\nthe date of Landlord’s notice.<\/p>\n
(c) Unless this Lease is terminated as provided in the preceding
\nSubsections 14.01 (a) and (b), Landlord shall proceed with reasonable promptness
\nto repair and restore the Premises to its condition as existed prior to such
\ncasualty, subject to reasonable delays for insurance adjustments and Force
\nMajeure delays, and also subject to zoning Laws and building codes then in
\neffect. Landlord shall have no liability to Tenant, and Tenant shall not be
\nentitled to terminate this Lease if such repairs and restoration are not in fact
\ncompleted within the time period estimated by Landlord so long as Landlord shall
\nproceed with reasonable diligence to complete such repairs and restoration.<\/p>\n
(d) Tenant acknowledges that Landlord shall be entitled to the full
\nproceeds of any insurance coverage, whether carried by Landlord or Tenant, for
\ndamages to the Premises, except for those proceeds of Tenant’s insurance of its
\nown personal property and equipment which would be removable by Tenant at the
\nTermination Date. All such insurance proceeds shall be payable to Landlord
\nwhether or not the Premises are to be repaired and restored, provided, however,
\nif this Lease is not terminated and the parties proceed to repair and restore
\nTenant Additions at Tenant’s cost, to the extent Landlord received proceeds of
\nTenant’s insurance covering Tenant Additions, such proceeds shall be applied to
\nreimburse Tenant for its cost of repairing and restoring Tenant Additions.<\/p>\n
(e) Notwithstanding anything in this Article Fourteen to the contrary: (i)
\nLandlord shall have no duty pursuant to this Section to repair or restore any
\nportion of any Tenant Additions or to expend for any repair or restoration of
\nthe Premises or Building amounts in excess of insurance proceeds paid to
\nLandlord and available for repair or restoration; and (ii) Tenant shall not have
\nthe right to terminate this Lease pursuant to this Section if any damage or
\ndestruction was caused by the act or neglect of Tenant, its agent or employees.
\nWhether or not the Lease is terminated pursuant to this Article Fourteen, in no
\nevent shall Tenant be entitled to any compensation or damages for loss of the
\nuse of the whole or any part of the Premises or for any inconvenience or
\nannoyance occasioned by any such damage, destruction, rebuilding or restoration
\nof the Premises or the Building or access thereto.<\/p>\n
(f) Any repair or restoration of the Premises performed by Tenant shall be
\nin accordance with the provisions of Article Nine hereof.<\/p>\n
14.02 INSUBSTANTIAL UNTENANTABILITY<\/p>\n
Unless this Lease is terminated as provided in the preceding Subsections 14.01
\n(a) and (b), then Landlord shall proceed to repair and restore the Building or
\nthe Premises other than Tenant Additions, with reasonable<\/p>\n
23<\/p>\n
promptness, unless such damage is to the Premises and occurs during the last six
\n(6) months of the Term, in which event either Tenant or Landlord shall have the
\nright to terminate this Lease as of the date of such casualty by giving written
\nnotice thereof to the other within twenty (20) days after the date of such
\ncasualty. Notwithstanding the foregoing, Landlord’s obligation to repair shall
\nbe limited in accordance with the provisions of Section 14.01 above.<\/p>\n
14.03 RENT ABATEMENT<\/p>\n
Except for the negligence or willful act of Tenant or its agents, employees,
\ncontractors or invitees, if all or any part of the Premises are rendered
\nuntenantable by fire or other casualty and this Lease is not terminated, Monthly
\nBase Rent and Rent Adjustments shall abate for that part of the Premises which
\nis untenantable on a per diem basis from the date of the casualty until Landlord
\nhas Substantially Completed the repair and restoration work in the Premises
\nwhich it is required to perform, provided, that as a result of such casualty,
\nTenant does not occupy the portion of the Premises which is untenantable during
\nsuch period.<\/p>\n
14.04 WAIVER OF STATUTORY REMEDIES<\/p>\n
The provisions of this Lease, including this Article Fourteen, constitute an
\nexpress agreement between Landlord and Tenant with respect to any and all damage
\nto, or destruction of, the Premises or the Property or any part of either, and
\nany Law, including Sections 1932(2), 1933(4), 1941 and 1942 of the California
\nCivil Code, with respect to any rights or obligations concerning damage or
\ndestruction shall have no application to this Lease or to any damage to or
\ndestruction of all or any part of the Premises or the Property or any part of
\neither, and are hereby waived.<\/p>\n
ARTICLE FIFTEEN
\n EMINENT DOMAIN<\/p>\n
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART<\/p>\n
In the event the whole or any substantial part of the Building or of the
\nPremises is taken or condemned by any competent authority for any public use or
\npurpose (including a deed given in lieu of condemnation) and is thereby rendered
\nuntenantable, this Lease shall terminate as of the date title vests in such
\nauthority or any earlier date on which possession is required to be surrendered
\nto such authority, and Monthly Base Rent and Rent Adjustments shall be
\napportioned as of the Termination Date. Further, if at least twenty-five
\npercent (25%) of the rentable area of the Project is taken or condemned by any
\ncompetent authority for any public use or purpose (including a deed given in
\nlieu of condemnation), and regardless of whether or not the Premises be so taken
\nor condemned, Landlord may elect by written notice to Tenant to terminate this
\nLease as of the date title vests in such authority or any earlier date on which
\npossession is required to be surrendered to such authority, and Monthly Base
\nRent and Rent Adjustments shall be apportioned as of the Termination Date.
\nLandlord may, without any obligation to Tenant, agree to sell or convey to the
\ntaking authority the Premises, the Building, Tenant’s Phase, the Project or any
\nportion thereof sought by the taking authority, free from this Lease and the
\nright of Tenant hereunder, without first requiring that any action or proceeding
\nbe instituted or, if instituted, pursued to a judgment. Notwithstanding
\nanything to the contrary herein set forth, in the event the taking of the
\nBuilding or Premises is temporary (for less than the remaining term of the
\nLease), Landlord may elect either (i) to terminate this Lease or (ii) permit
\nTenant to receive the entire award attributable to the Premises in which case
\nTenant shall continue to pay Rent and this Lease shall not terminate.<\/p>\n
15.02 TAKING OF PART<\/p>\n
In the event a part of the Building or the Premises is taken or condemned by any
\ncompetent authority (or a deed is delivered in lieu of condemnation) and this
\nLease is not terminated, the Lease shall be amended to reduce or increase, as
\nthe case may be, the Monthly Base Rent and Tenant’s Share to reflect the
\nRentable Area of the Premises or Building, as the case may be, remaining after
\nany such taking or condemnation. Landlord, upon receipt and to the extent of
\nthe award in condemnation (or proceeds of sale) shall make necessary repairs and
\nrestorations to the Premises (exclusive of Tenant Additions) and to the Building
\nto the extent necessary to constitute the portion of the Building not so taken
\nor condemned as a complete architectural and economically efficient unit.
\nNotwithstanding the foregoing, if as a result of any taking, or a governmental
\norder that the grade of any street or alley adjacent to the Building is to be
\nchanged and such taking or change of grade makes it necessary or desirable to
\nsubstantially remodel or restore the Building or prevents the economical
\noperation of the Building, Landlord shall have the right to terminate this Lease
\nupon ninety (90) days prior written notice to Tenant.<\/p>\n
15.03 COMPENSATION<\/p>\n
Landlord shall be entitled to receive the entire award (or sale proceeds) from
\nany such taking, condemnation or sale without any payment to Tenant, and Tenant
\nhereby assigns to Landlord Tenant’s interest, if any, in such award; provided,
\nhowever, Tenant shall have the right separately to pursue against the condemning
\nauthority a separate award in respect of the loss, if any, to Tenant Additions
\npaid for by Tenant without any credit or allowance from Landlord, for fixtures
\nor personal property of Tenant, or for relocation or business interruption
\nexpenses, so long as there is no diminution of Landlord’s award as a result.<\/p>\n
24<\/p>\n
ARTICLE SIXTEEN
\n INSURANCE<\/p>\n
16.01 TENANT’S INSURANCE<\/p>\n
Tenant, at Tenant’s expense, agrees to maintain in force, with a company or
\ncompanies acceptable to Landlord, during the Term: (a) Commercial General
\nLiability Insurance on a primary basis and without any right of contribution
\nfrom any insurance carried by Landlord covering the Premises on an occurrence
\nbasis against all claims for personal injury, bodily injury, death and property
\ndamage, including contractual liability covering the indemnification provisions
\nin this Lease. Such insurance shall be for such limits that are reasonably
\nrequired by Landlord from time to time but not less than a combined single limit
\nof Five Million and No\/100 Dollars ($5,000,000.00); (b) Workers’ Compensation
\nand Employers’ Liability Insurance to the extent required by and in accordance
\nwith the Laws of the State of California; (c) “All Risks” property insurance in
\nan amount adequate to cover the full replacement cost of all Tenant Additions to
\nthe Premises, equipment, installations, fixtures and contents of the Premises in
\nthe event of loss; (d) In the event a motor vehicle is to be used by Tenant in
\nconnection with its business operation from the Premises, Comprehensive
\nAutomobile Liability Insurance coverage with limits of not less than Three
\nMillion and No\/100 Dollars ($3,000,000.00) combined single limit coverage
\nagainst bodily injury liability and property damage liability arising out of the
\nuse by or on behalf of Tenant, its agents and employees in connection with this
\nLease, of any owned, non-owned or hired motor vehicles; and (e) such other
\ninsurance or coverages as Landlord reasonably requires.<\/p>\n
16.02 FORM OF POLICIES<\/p>\n
Each policy referred to in 16.01 shall satisfy the following requirements. Each
\npolicy shall (i) name Landlord and the Indemnitees as additional insureds
\n(except Workers’ Compensation and Employers’ Liability Insurance), (ii) be
\nissued by one or more responsible insurance companies licensed to do business in
\nthe State of California reasonably satisfactory to Landlord, (iii) where
\napplicable, provide for deductible amounts satisfactory to Landlord and not
\npermit co-insurance, (iv) shall provide that such insurance may not be canceled
\nor amended without thirty (30) days’ prior written notice to the Landlord, and
\n(v) each policy of “All-Risks” property insurance shall provide that the policy
\nshall not be invalidated should the insured waive in writing prior to a loss,
\nany or all rights of recovery against any other party for losses covered by such
\npolicies. Tenant shall deliver to Landlord, certificates of insurance and at
\nLandlord’s request, copies of all policies and renewals thereof to be maintained
\nby Tenant hereunder, not less than ten (10) days prior to the Commencement Date
\nand not less than ten (10) days prior to the expiration date of each policy.<\/p>\n
16.03 LANDLORD’S INSURANCE<\/p>\n
Landlord agrees to purchase and keep in full force and effect during the Term
\nhereof, including any extensions or renewals thereof, insurance under policies
\nissued by insurers of recognized responsibility, qualified to do business in the
\nState of California on the Building in amounts not less than the greater of
\neighty (80%) percent of the then full replacement cost (without depreciation) of
\nthe Building (above foundations and excluding Tenant Additions to the Premises)
\nor an amount sufficient to prevent Landlord from becoming a co-insurer under the
\nterms of the applicable policies, against fire and such other risks as may be
\nincluded in standard forms of all risk coverage insurance reasonably available
\nfrom time to time. Landlord agrees to maintain in force during the Term,
\nCommercial General Liability Insurance covering the Building on an occurrence
\nbasis against all claims for personal injury, bodily injury, death and property
\ndamage. Such insurance shall be for a combined single limit of Five Million and
\nNo\/100 Dollars ($5,000,000.00). Neither Landlord’s obligation to carry such
\ninsurance nor the carrying of such insurance shall be deemed to be an indemnity
\nby Landlord with respect to any claim, liability, loss, cost or expense due, in
\nwhole or in part, to Tenant’s negligent acts or omissions or willful misconduct.
\nWithout obligation to do so, Landlord may, in its sole discretion from time to
\ntime, carry insurance in amounts greater and\/or for coverage additional to the
\ncoverage and amounts set forth above.<\/p>\n
16.04 WAIVER OF SUBROGATION<\/p>\n
(a) Landlord agrees that, if obtainable at no, or minimal, additional cost,
\nand so long as the same is permitted under the laws of the State of California,
\nit will include in its “All Risks” policies appropriate clauses pursuant to
\nwhich the insurance companies (i) waive all right of subrogation against Tenant
\nwith respect to losses payable under such policies and\/or (ii) agree that such
\npolicies shall not be invalidated should the insured waive in writing prior to a
\nloss any or all right of recovery against any party for losses covered by such
\npolicies.<\/p>\n
(b) Tenant agrees to include, if obtainable at no, or minimal, additional
\ncost, and so long as the same is permitted under the laws of the State of
\nCalifornia, in its “All Risks” insurance policy or policies on Tenant Additions
\nto the Premises, whether or not removable, and on Tenant’s furniture,
\nfurnishings, fixtures and other property removable by Tenant under the
\nprovisions of this Lease appropriate clauses pursuant to which the insurance
\ncompany or companies (i) waive the right of subrogation against Landlord and\/or
\nany tenant of space in the Building with respect to losses payable under such
\npolicy or policies and\/or (ii) agree that such policy or policies shall not be
\ninvalidated should the insured waive in writing prior to a loss any or all right
\nof recovery against any party for losses covered by such policy or policies. If
\nTenant is unable to obtain in such policy or policies either of the clauses
\ndescribed in the preceding sentence, Tenant shall, if legally possible and
\nwithout necessitating a change in insurance carriers, have Landlord named in
\nsuch policy or<\/p>\n
25<\/p>\n
policies as an additional insured. If Landlord shall be named as an additional
\ninsured in accordance with the foregoing, Landlord agrees to endorse promptly to
\nthe order of Tenant, without recourse, any check, draft, or order for the
\npayment of money representing the proceeds of any such policy or representing
\nany other payment growing out of or connected with said policies, and Landlord
\ndoes hereby irrevocably waive any and all rights in and to such proceeds and
\npayments.<\/p>\n
(c) Provided that Landlord’s right of full recovery under its policy or
\npolicies aforesaid is not adversely affected or prejudiced thereby, Landlord
\nhereby waives any and all right of recovery which it might otherwise have
\nagainst Tenant, its servants, agents and employees, for loss or damage occurring
\nto the Real Property and the fixtures, appurtenances and equipment therein, to
\nthe extent the same is covered by Landlord’s insurance, notwithstanding that
\nsuch loss or damage may result from the negligence or fault of Tenant, its
\nservants, agents or employees. Provided that Tenant’s right of full recovery
\nunder its aforesaid policy or policies is not adversely affected or prejudiced
\nthereby, Tenant hereby waives any and all right of recovery which it might
\notherwise have against Landlord, its servants, and employees and against every
\nother tenant in the Real Property who shall have executed a similar waiver as
\nset forth in this Section 16.04 (c) for loss or damage to Tenant Additions,
\nwhether or not removable, and to Tenant’s furniture, furnishings, fixtures and
\nother property removable by Tenant under the provisions hereof to the extent the
\nsame is covered or coverable by Tenant’s insurance required under this Lease,
\nnotwithstanding that such loss or damage may result from the negligence or fault
\nof Landlord, its servants, agents or employees, or such other tenant and the
\nservants, agents or employees thereof.<\/p>\n
(d) Landlord and Tenant hereby agree to advise the other promptly if the
\nclauses to be included in their respective insurance policies pursuant to
\nsubparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore
\nprovided and thereafter to furnish the other with a certificate of insurance or
\ncopy of such policies showing the naming of the other as an additional insured,
\nas aforesaid. Landlord and Tenant hereby also agree to notify the other
\npromptly of any cancellation or change of the terms of any such policy which
\nwould affect such clauses or naming. All such policies which name both Landlord
\nand Tenant as additional insureds shall, to the extent obtainable, contain
\nagreements by the insurers to the effect that no act or omission of any
\nadditional insured will invalidate the policy as to the other additional
\ninsureds.<\/p>\n
16.05 NOTICE OF CASUALTY<\/p>\n
Tenant shall give Landlord notice in case of a fire or accident in the Premises
\npromptly after Tenant is aware of such event.<\/p>\n
ARTICLE SEVENTEEN
\n WAIVER OF CLAIMS AND INDEMNITY<\/p>\n
17.01 WAIVER OF CLAIMS<\/p>\n
To the extent permitted by Law, Tenant releases the Indemnitees from, and waives
\nall claims for, damage to person or property sustained by the Tenant or any
\noccupant of the Premises or the Property resulting directly or indirectly from
\nany existing or future condition, defect, matter or thing in and about the
\nPremises or the Property or any part of either or any equipment or appurtenance
\ntherein, or resulting from any accident in or about the Premises or the
\nProperty, or resulting directly or indirectly from any act or neglect of any
\ntenant or occupant of the Property or of any other person, including Landlord’s
\nagents and servants, except to the extent caused by the willful and wrongful act
\nof any of the Indemnitees. To the extent permitted by Law, Tenant hereby waives
\nany consequential damages or claims for inconvenience or loss of business,
\nrents, or profits as a result of such injury or damage, whether or not caused by
\nthe willful and wrongful act of any of the Indemnitees. If any such damage,
\nwhether to the Premises or the Property or any part of either, or whether to
\nLandlord or to other tenants in the Property, results from any act or neglect of
\nTenant, its employees, servants, agents, contractors, invitees or customers,
\nTenant shall be liable therefor and Landlord may, at Landlord’s option, repair
\nsuch damage and Tenant shall, upon demand by Landlord, as payment of additional
\nRent hereunder, reimburse Landlord within ten (10) days of demand for the total
\ncost of such repairs, in excess of amounts, if any, paid to Landlord under
\ninsurance covering such damages. Tenant shall not be liable for any such damage
\ncaused by its acts or neglect if Landlord or a tenant has recovered the full
\namount of the damage from proceeds of insurance policies and the insurance
\ncompany has waived its right of subrogation against Tenant.<\/p>\n
17.02 INDEMNITY BY TENANT<\/p>\n
To the extent permitted by Law, Tenant hereby indemnifies, and agrees to
\nprotect, defend and hold the Indemnitees harmless, against any and all actions,
\nclaims, demands, liability, costs and expenses, including attorneys’ fees and
\nexpenses for the defense thereof, arising from Tenant’s occupancy of the
\nPremises, from the undertaking of any Tenant Additions or repairs to the
\nPremises, from the conduct of Tenant’s business on the Premises, or from any
\nbreach or default on the part of Tenant in the performance of any covenant or
\nagreement on the part of Tenant to be performed pursuant to the terms of this
\nLease, or from any willful act or negligence of Tenant, its agents, contractors,
\nservants, employees, customers or invitees, in or about the Premises or the
\nProperty or any part of either. In case of any action or proceeding brought
\nagainst the Indemnitees by reason of any such claim, upon notice from Landlord,
\nTenant covenants to defend such action or proceeding by counsel chosen by
\nLandlord, in Landlord’s sole discretion. Landlord reserves the right to settle,
\ncompromise or dispose of any and all actions, claims and demands related to the
\nforegoing <\/p>\n
26<\/p>\n
indemnity. The foregoing indemnity shall not operate to relieve Indemnitees of
\nliability to the extent such liability is caused by the active negligence, and
\nwillful and wrongful act of Indemnitees. Further, the foregoing indemnity is
\nsubject to and shall not diminish any waivers in effect in accordance with
\nSection 16.04 by Landlord or its insurers to the extent of amounts, if any, paid
\nto Landlord under its “All-Risks” property insurance.<\/p>\n
ARTICLE EIGHTEEN
\n RULES AND REGULATIONS<\/p>\n
18.01 RULES<\/p>\n
Tenant agrees for itself and for its subtenants, employees, agents, and invitees
\nto comply with all rules and regulations for use of the Premises, the Building,
\nthe Phase and the Project imposed by Landlord, as the same may be revised from
\ntime to time, including the following: (a) Tenant shall comply with all of the
\nrequirements of Landlord’s emergency response plan, as the same may be amended
\nfrom time to time; and (b) Tenant shall not place any furniture, furnishings,
\nfixtures or equipment in the Premises in a manner so as to obstruct the windows
\nof the Premises to cause the Building, in Landlord’s good faith determination,
\nto appear unsightly from the exterior. Such rules and regulations are and shall
\nbe imposed for the cleanliness, good appearance, proper maintenance, good order
\nand reasonable use of the Premises, the Building, the Phase and the Project and
\nas may be necessary for the enjoyment of the Building and the Project by all
\ntenants and their clients, customers, and employees.<\/p>\n
18.02 ENFORCEMENT<\/p>\n
Nothing in this Lease shall be construed to impose upon the Landlord any duty or
\nobligation to enforce the rules and regulations as set forth above or as
\nhereafter adopted, or the terms, covenants or conditions of any other lease as
\nagainst any other tenant, and the Landlord shall not be liable to the Tenant for
\nviolation of the same by any other tenant, its servants, employees, agents,
\nvisitors or licensees. Landlord shall use reasonable efforts to enforce the
\nrules and regulations of the Building in a uniform and non-discriminatory
\nmanner.<\/p>\n
ARTICLE NINETEEN
\n LANDLORD’S RESERVED RIGHTS<\/p>\n
Landlord shall have the following rights exercisable without notice to Tenant
\nand without liability to Tenant for damage or injury to persons, property or
\nbusiness and without being deemed an eviction or disturbance of Tenant’s use or
\npossession of the Premises or giving rise to any claim for offset or abatement
\nof Rent: (1) to change the Building’s name or street address upon thirty (30)
\ndays’ prior written notice to Tenant; (2) to install, affix and maintain all
\nsigns on the exterior and\/or interior of the Building; (3) to designate and\/or
\napprove prior to installation, all types of signs, window shades, blinds,
\ndrapes, awnings or other similar items, and all internal lighting that may be
\nvisible from the exterior of the Premises; (4) upon twenty-four (24) hours
\nnotice to Tenant, to display the Premises to prospective purchasers at
\nreasonable hours at any time during the Term and to prospective tenants at
\nreasonable hours during the last twelve (12) months of the Term; (5) to grant to
\nany party the exclusive right to conduct any business or render any service in
\nor to the Building, provided such exclusive right shall not operate to prohibit
\nTenant from using the Premises for the purpose permitted hereunder; (6) to
\nchange the arrangement and\/or location of entrances or passageways, doors and
\ndoorways, corridors, elevators, stairs, washrooms or public portions of the
\nBuilding, and to close entrances, doors, corridors, elevators or other
\nfacilities, provided that such action shall not materially and adversely
\ninterfere with Tenant’s access to the Premises or the Building; (7) to have
\naccess for Landlord and other tenants of the Building to any mail chutes and
\nboxes located in or on the Premises as required by any applicable rules of the
\nUnited States Post Office; and (8) to close the Building after Standard
\nOperating Hours, except that Tenant and its employees and invitees shall be
\nentitled to admission at all times, under such regulations as Landlord
\nprescribes for security purposes.<\/p>\n
ARTICLE TWENTY
\n ESTOPPEL CERTIFICATE<\/p>\n
20.01 IN GENERAL<\/p>\n
Within fifteen (15) days after request therefor by Landlord, Mortgagee or any
\nprospective mortgagee or owner, Tenant agrees as directed in such request to
\nexecute an Estoppel Certificate in recordable form, binding upon Tenant,
\ncertifying (i) that this Lease is unmodified and in full force and effect (or if
\nthere have been modifications, a description of such modifications and that this
\nLease as modified is in full force and effect); (ii) the dates to which Rent has
\nbeen paid; (iii) that Tenant is in the possession of the Premises if that is the
\ncase; (iv) that Landlord is not in default under this Lease, or, if Tenant
\nbelieves Landlord is in default, the nature thereof in detail; (v) that Tenant
\nhas no offsets or defenses to the performance of its obligations under this
\nLease (or if Tenant believes there are any offsets or defenses, a full and
\ncomplete explanation thereof); (vi) that the Premises have been completed in
\naccordance with the terms and provisions hereof, that Tenant has accepted the
\nPremises and the condition thereof and of all improvements thereto and has no
\nclaims against Landlord or any other party with respect thereto; (vii) that if
\nan assignment of rents or leases has been served upon the Tenant by a Mortgagee,
\nTenant will acknowledge receipt thereof and agree to be <\/p>\n
27<\/p>\n
bound by the provisions thereof; (viii) that Tenant will give to the Mortgagee
\ncopies of all notices required or permitted to be given by Tenant to Landlord;
\nand (ix) to any other information reasonably requested.<\/p>\n
20.02 ENFORCEMENT<\/p>\n
In the event that Tenant fails to deliver an Estoppel Certificate, then such
\nfailure shall be a Default for which there shall be no cure or grace period. In
\naddition to any other remedy available to Landlord, Landlord may impose a charge
\nequal to $500.00 for each day that Tenant fails to deliver an Estoppel
\nCertificate.<\/p>\n
ARTICLE TWENTY-ONE
\n RELOCATION OF TENANT<\/p>\n
Intentionally Deleted<\/p>\n
ARTICLE TWENTY-TWO
\n REAL ESTATE BROKERS<\/p>\n
Tenant represents that, except for the broker(s) listed in Section 1.01(19),
\nTenant has not dealt with any real estate broker, sales person, or finder in
\nconnection with this Lease, and no such person initiated or participated in the
\nnegotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
\nagrees to indemnify, protect, defend and hold Landlord and the Indemnitees,
\nharmless from and against any and all liabilities and claims for commissions and
\nfees arising out of a breach of the foregoing representation. Landlord agrees
\nto pay any commission to which Landlord’s Broker listed in Section 1.01(19) is
\nentitled in connection with this Lease pursuant to Landlord’s written agreement
\nwith such broker. Landlord and Tenant agree that any commission payable to
\nTenant’s Broker shall be paid by Tenant except to the extent Tenant’s Broker and
\nLandlord’s Broker have entered into a separate agreement between themselves to
\nshare the commission paid to Landlord’s Broker by Landlord.<\/p>\n
ARTICLE TWENTY-THREE
\n MORTGAGEE PROTECTION<\/p>\n
23.01 SUBORDINATION AND ATTORNMENT<\/p>\n
(a) This Lease is and shall be expressly subject and subordinate at all
\ntimes to (i) any ground or underlying lease of the Real Property, now or
\nhereafter existing, and all amendments, extensions, renewals and modifications
\nto any such lease, and (ii) the lien of any mortgage or trust deed now or
\nhereafter encumbering fee title to the Real Property and\/or the leasehold estate
\nunder any such lease, and all amendments, extensions, renewals, replacements and
\nmodifications of such mortgage or trust deed and\/or the obligation secured
\nthereby, unless such ground lease or ground lessor, or mortgage, trust deed or
\nMortgagee, expressly provides or elects that the Lease shall be superior to such
\nlease or mortgage or trust deed. If any such mortgage or trust deed is
\nforeclosed (including any sale of the Real Property pursuant to a power of
\nsale), or if any such lease is terminated, upon request of the Mortgagee or
\nground lessor, as the case may be, Tenant shall attorn to the purchaser at the
\nforeclosure sale or to the ground lessor under such lease, as the case may be,
\nprovided, however, that such purchaser or ground lessor shall not be (i) bound
\nby any payment of Rent for more than one month in advance except payments in the
\nnature of security for the performance by Tenant of its obligations under this
\nLease; (ii) subject to any offset, defense or damages arising out of a default
\nof any obligations of any preceding Landlord; or (iii) bound by any amendment or
\nmodification of this Lease made without the written consent of the Mortgagee or
\nground lessor; or (iv) liable for any security deposits not actually received in
\ncash by such purchaser or ground lessor. This subordination shall be self-
\noperative and no further certificate or instrument of subordination need be
\nrequired by any such Mortgagee or ground lessor. In confirmation of such
\nsubordination, however, Tenant shall execute promptly any reasonable certificate
\nor instrument that Landlord, Mortgagee or ground lessor may request. Upon
\nrequest by such successor in interest, Tenant shall execute and deliver
\nreasonable instruments confirming the attornment provided for herein.<\/p>\n
(b) Notwithstanding any provision of the Lease to the contrary, provided
\nthat: (i) Tenant has executed and delivered a subordination, non-disturbance and
\nattornment agreement substantially in the form of Exhibit F hereto, with such
\n ———
\nchanges thereto as any mortgagee, trustee, beneficiary or holder of other
\nsecurity interest (“Mortgagee”) may reasonably require (“Non-disturbance
\nAgreement”) and complies with the provisions thereof, and (ii) Tenant is not in
\ndefault under this Lease, no foreclosure, sale pursuant to power of sale or
\nconveyance by deed in lieu of foreclosure shall affect Tenant’s rights under
\nthis Lease, except to the extent provided by such Non-Disturbance Agreement. If
\nTenant fails to execute and deliver any Non-disturbance Agreement within fifteen
\n(15) days of a request therefor from Landlord, Tenant hereby constitutes
\nLandlord as Tenant’s attorney-in-fact to execute and deliver such instrument.
\nLandlord’s inability to obtain the signature of any Mortgagee on any such Non-
\ndisturbance Agreement shall not constitute a default by Landlord under this
\nLease, but so long as default by Tenant under this Lease is not the reason for
\nLandlord’s inability to obtain such signature, any such lessor or Mortgagee
\nshall be deemed to have elected that this Lease be superior to the lease,
\nmortgage or deed of trust in question, and Tenant shall, at the request of such
\nlessor, mortgagee or beneficiary (or purchaser at any sale pursuant to the
\nmortgage or deed of trust), attorn to any such party or enter into a new lease
\nwith such party (as Landlord) for the balance of the Term then remaining
\nhereunder upon the same terms and conditions as those herein.<\/p>\n
28<\/p>\n
23.02 MORTGAGEE PROTECTION<\/p>\n
Tenant agrees to give any Mortgagee or ground lessor, by registered or certified
\nmail, a copy of any notice of default served upon the Landlord by Tenant,
\nprovided that prior to such notice Tenant has received notice (by way of service
\non Tenant of a copy of an assignment of rents and leases, or otherwise) of the
\naddress of such Mortgagee or ground lessor. Tenant further agrees that if
\nLandlord shall have failed to cure such default within the time provided for in
\nthis Lease, then the Mortgagee or ground lessor shall have an additional thirty
\n(30) days after receipt of notice thereof within which to cure such default or
\nif such default cannot be cured within that time, then such additional notice
\ntime as may be necessary, if, within such thirty (30) days, any Mortgagee or
\nground lessor has commenced and is diligently pursuing the remedies necessary to
\ncure such default (including commencement of foreclosure proceedings or other
\nproceedings to acquire possession of the Real Property, if necessary to effect
\nsuch cure). Such period of time shall be extended by any period within which
\nsuch Mortgagee or ground lessor is prevented from commencing or pursuing such
\nforeclosure proceedings or other proceedings to acquire possession of the Real
\nProperty by reason of Landlord’s bankruptcy. Until the time allowed as
\naforesaid for Mortgagee or ground lessor to cure such defaults has expired
\nwithout cure, Tenant shall have no right to, and shall not, terminate this Lease
\non account of default. This Lease may not be modified or amended so as to
\nreduce the Rent or shorten the Term, or so as to adversely affect in any other
\nrespect to any material extent the rights of the Landlord, nor shall this Lease
\nbe canceled or surrendered, without the prior written consent, in each instance,
\nof the ground lessor or the Mortgagee.<\/p>\n
ARTICLE TWENTY-FOUR
\n NOTICES<\/p>\n
(a) All notices, demands or requests provided for or permitted to be given
\npursuant to this Lease must be in writing and shall be personally delivered,
\nsent by Federal Express or other reputable overnight courier service, or mailed
\nby first class, registered or certified United States mail, return receipt
\nrequested, postage prepaid.<\/p>\n
(b) All notices, demands or requests to be sent pursuant to this Lease
\nshall be deemed to have been properly given or served by delivering or sending
\nthe same in accordance with this Section, addressed to the parties hereto at
\ntheir respective addresses listed in Sections 1.01(2) and (3).<\/p>\n
(c) Notices, demands or requests sent by mail or overnight courier service
\nas described above shall be effective upon deposit in the mail or with such
\ncourier service. However, the time period in which a response to any such
\nnotice, demand or request must be given shall commence to run from (i) in the
\ncase of delivery by mail, the date of receipt on the return receipt of the
\nnotice, demand or request by the addressee thereof, or (ii) in the case of
\ndelivery by Federal Express or other overnight courier service, the date of
\nacceptance of delivery by an employee, officer, director or partner of Landlord
\nor Tenant. Rejection or other refusal to accept or the inability to deliver
\nbecause of changed address of which no notice was given, as indicated by advice
\nfrom Federal Express or other overnight courier service or by mail return
\nreceipt, shall be deemed to be receipt of notice, demand or request sent.
\nNotices may also be served by personal service upon any officer, director or
\npartner of Landlord or Tenant, and shall be effective upon such service.<\/p>\n
(d) By giving to the other party at least thirty (30) days written notice
\nthereof, either party shall have the right from time to time during the term of
\nthis Lease to change their respective addresses for notices, statements, demands
\nand requests, provided such new address shall be within the United States of
\nAmerica.<\/p>\n
ARTICLE TWENTY-FIVE
\n EXERCISE FACILITY<\/p>\n
Tenant agrees to inform all employees of Tenant of the following: (i) the
\nexercise facility is available for the use of the employees of tenants of the
\nProject only and for no other person; (ii) use of the facility is at the risk of
\nTenant or Tenant’s employees, and all users must sign a release; (iii) the
\nfacility is unsupervised; and (iv) users of the facility must report any needed
\nequipment maintenance or any unsafe conditions to the Landlord immediately.
\nLandlord may discontinue providing such facility at Landlord’s sole option at
\nany time without incurring any liability. As a condition to the use of the
\nexercise facility, Tenant and each of Tenant’s employees that uses the exercise
\nfacility shall first sign a written release in form and substance acceptable to
\nLandlord. Landlord may change the rules and\/or hours of the exercise facility
\nat any time, and Landlord reserves the right to deny access to the exercise
\nfacility to anyone due to misuse of the facility or noncompliance with rules and
\nregulations of the facility. To the extent permitted by Law, Tenant hereby
\nindemnifies, and agrees to protect, defend and hold the Indemnitees harmless,
\nagainst any and all actions, claims, demands, liability, costs and expenses,
\nincluding attorneys’ fees and expenses for the defense thereof, arising from use
\nof the exercise facility in the Project by Tenant, Tenant’s employees or
\ninvitees. In case of any action or proceeding brought against the Indemnitees
\nby reason of any such claim, upon notice from Landlord, Tenant covenants to
\ndefend such action or proceeding by counsel chosen by Landlord, in Landlord’s
\nsole discretion. Landlord reserves the right to settle, compromise or dispose
\nof any and all actions, claims and demands related to the foregoing indemnity.<\/p>\n
29<\/p>\n
ARTICLE TWENTY-SIX
\n MISCELLANEOUS<\/p>\n
26.01 LATE CHARGES<\/p>\n
(a) All payments required hereunder (other than the Monthly Base Rent, Rent
\nAdjustments, and Rent Adjustment Deposits, which shall be due as hereinbefore
\nprovided) to Landlord shall be paid within ten (10) days after Landlord’s demand
\ntherefor. All such amounts (including Monthly Base Rent, Rent Adjustments, and
\nRent Adjustment Deposits) not paid when due shall bear interest from the date
\ndue until the date paid at the Default Rate in effect on the date such payment
\nwas due.<\/p>\n
(b) In the event Tenant is more than five (5) days late in paying any
\ninstallment of Rent due under this Lease, Tenant shall pay Landlord a late
\ncharge equal to five percent (5%) of the delinquent installment of Rent. The
\nparties agree that (i) such delinquency will cause Landlord to incur costs and
\nexpenses not contemplated herein, the exact amount of which will be difficult to
\ncalculate, including the cost and expense that will be incurred by Landlord in
\nprocessing each delinquent payment of rent by Tenant, and (ii) the amount of
\nsuch late charge represents a reasonable estimate of such costs and expenses and
\nthat such late charge shall be paid to Landlord for each delinquent payment in
\naddition to all Rent otherwise due hereunder. The parties further agree that
\nthe payment of late charges and the payment of interest provided for in
\nsubparagraph (a) above are distinct and separate from one another in that the
\npayment of interest is to compensate Landlord for its inability to use the money
\nimproperly withheld by Tenant, while the payment of late charges is to
\ncompensate Landlord for its additional administrative expenses in handling and
\nprocessing delinquent payments.<\/p>\n
(c) Payment of interest at the Default Rate and\/or of late charges shall
\nnot excuse or cure any default by Tenant under this Lease, nor shall the
\nforegoing provisions of this Article or any such payments prevent Landlord from
\nexercising any right or remedy available to Landlord upon Tenant’s failure to
\npay Rent when due, including the right to terminate this Lease.<\/p>\n
26.02 NO JURY TRIAL; VENUE; JURISDICTION<\/p>\n
Each party hereto (which includes any assignee, successor, heir or personal
\nrepresentative of a party) shall not seek a jury trial, hereby waives trial by
\njury, and hereby further waives any objection to venue in the County in which
\nthe Project is located, and agrees and consents to personal jurisdiction of the
\ncourts of the State of California, in any action or proceeding or counterclaim
\nbrought by any party hereto against the other on any matter whatsoever arising
\nout of or in any way connected with this Lease, the relationship of Landlord and
\nTenant, Tenant’s use or occupancy of the Premises, or any claim of injury or
\ndamage, or the enforcement of any remedy under any statute, emergency or
\notherwise, whether any of the foregoing is based on this Lease or on tort law.
\nNo party will seek to consolidate any such action in which a jury has been
\nwaived with any other action in which a jury trial cannot or has not been
\nwaived. It is the intention of the parties that these provisions shall be
\nsubject to no exceptions. By execution of this Lease the parties agree that
\nthis provision may be filed by any party hereto with the clerk or judge before
\nwhom any action is instituted, which filing shall constitute the written consent
\nto a waiver of jury trial pursuant to and in accordance with Section 631 of the
\nCalifornia Code of Civil Procedure. No party has in any way agreed with or
\nrepresented to any other party that the provisions of this Section will not be
\nfully enforced in all instances. The provisions of this Section shall survive
\nthe expiration or earlier termination of this Lease.<\/p>\n
26.03 DEFAULT UNDER OTHER LEASE<\/p>\n
It shall be a Default under this Lease if Tenant or any Affiliate holding any
\nother lease with Landlord for premises in the Building defaults under such lease
\nand as a result thereof such lease is terminated or terminable.<\/p>\n
26.04 OPTION<\/p>\n
This Lease shall not become effective as a lease or otherwise until executed and
\ndelivered by both Landlord and Tenant. The submission of the Lease to Tenant
\ndoes not constitute a reservation of or option for the Premises, but when
\nexecuted by Tenant and delivered to Landlord, the Lease shall constitute an
\nirrevocable offer by Tenant in effect for fifteen (15) days to lease the
\nPremises on the terms and conditions herein contained.<\/p>\n
26.05 TENANT AUTHORITY<\/p>\n
Tenant represents and warrants to Landlord that it has full authority and power
\nto enter into and perform its obligations under this Lease, that the person
\nexecuting this Lease is fully empowered to do so, and that no consent or
\nauthorization is necessary from any third party. Landlord may request that
\nTenant provide Landlord evidence of Tenant’s authority.<\/p>\n
26.06 ENTIRE AGREEMENT<\/p>\n
This Lease, the Exhibits and Rider 2 attached hereto contain the entire
\nagreement between Landlord and Tenant concerning the Premises and there are no
\nother agreements, either oral or written, and no other <\/p>\n
30<\/p>\n
representations or statements, either oral or written, on which Tenant has
\nrelied. This Lease shall not be modified except by a writing executed by
\nLandlord and Tenant.<\/p>\n
26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE<\/p>\n
If Mortgagee of Landlord requires a modification of this Lease which shall not
\nresult in any increased cost or expense to Tenant or in any other substantial
\nand adverse change in the rights and obligations of Tenant hereunder, then
\nTenant agrees that the Lease may be so modified.<\/p>\n
26.08 EXCULPATION<\/p>\n
Tenant agrees, on its behalf and on behalf of its successors and assigns, that
\nany liability or obligation under this Lease shall only be enforced against
\nLandlord’s equity interest in the Property up to a maximum of Five Million
\nDollars ($5,000,000.00) and in no event against any other assets of the
\nLandlord, or Landlord’s officers or directors or partners, and that any
\nliability of Landlord with respect to this Lease shall be so limited and Tenant
\nshall not be entitled to any judgment in excess of such amount.<\/p>\n
26.09 ACCORD AND SATISFACTION<\/p>\n
No payment by Tenant or receipt by Landlord of a lesser amount than any
\ninstallment or payment of Rent due shall be deemed to be other than on account
\nof the amount due, and no endorsement or statement on any check or any letter
\naccompanying any check or payment of Rent shall be deemed an accord and
\nsatisfaction, and Landlord may accept such check or payment without prejudice to
\nLandlord’s right to recover the balance of such installment or payment of Rent
\nor pursue any other remedies available to Landlord. No receipt of money by
\nLandlord from Tenant after the termination of this Lease or Tenant’s right of
\npossession of the Premises shall reinstate, continue or extend the Term.
\nReceipt or acceptance of payment from anyone other than Tenant, including an
\nassignee of Tenant, is not a waiver of any breach of Article Ten, and Landlord
\nmay accept such payment on account of the amount due without prejudice to
\nLandlord’s right to pursue any remedies available to Landlord.<\/p>\n
26.10 LANDLORD’S OBLIGATIONS ON SALE OF BUILDING<\/p>\n
In the event of any sale or other transfer of the Building, Landlord shall be
\nentirely freed and relieved of all agreements and obligations of Landlord
\nhereunder accruing or to be performed after the date of such sale or transfer,
\nand any remaining liability of Landlord with respect to this Lease shall be
\nlimited to the dollar amount specified in Section 26.08 and Tenant shall not be
\nentitled to any judgment in excess of such amount.<\/p>\n
26.11 BINDING EFFECT<\/p>\n
Subject to the provisions of Article Ten, this Lease shall be binding upon and
\ninure to the benefit of Landlord and Tenant and their respective heirs, legal
\nrepresentatives, successors and permitted assigns.<\/p>\n
26.12 CAPTIONS<\/p>\n
The Article and Section captions in this Lease are inserted only as a matter of
\nconvenience and in no way define, limit, construe, or describe the scope or
\nintent of such Articles and Sections.<\/p>\n
26.13 TIME; APPLICABLE LAW; CONSTRUCTION<\/p>\n
Time is of the essence of this Lease and each and all of its provisions. This
\nLease shall be construed in accordance with the Laws of the State of California.
\nIf more than one person signs this Lease as Tenant, the obligations hereunder
\nimposed shall be joint and several. If any term, covenant or condition of this
\nLease or the application thereof to any person or circumstance shall, to any
\nextent, be invalid or unenforceable, the remainder of this Lease, or the
\napplication of such term, covenant or condition to persons or circumstances
\nother than those as to which it is held invalid or unenforceable, shall not be
\naffected thereby and each item, covenant or condition of this Lease shall be
\nvalid and be enforced to the fullest extent permitted by Law. Wherever the term
\n“including” or “includes” is used in this Lease, it shall have the same meaning
\nas if followed by the phrase “but not limited to”. The language in all parts of
\nthis Lease shall be construed according to its normal and usual meaning and not
\nstrictly for or against either Landlord or Tenant.<\/p>\n
26.14 ABANDONMENT<\/p>\n
In the event Tenant vacates or abandons the Premises but is otherwise in
\ncompliance with all the terms, covenants and conditions of this Lease, Landlord
\nshall (i) have the right to enter into the Premises in order to show the space
\nto prospective tenants, (ii) have the right to reduce the services provided to
\nTenant pursuant to the terms of this Lease to such levels as Landlord reasonably
\ndetermines to be adequate services for an unoccupied premises and (iii) during
\nthe last six (6) months of the Term, have the right to prepare the Premises for
\noccupancy by another tenant upon the end of the Term. Tenant expressly
\nacknowledges that in the absence of written notice pursuant to Section 11.02(b)
\nor pursuant to California Civil Code Section 1951.3 terminating Tenant’s right
\nto possession, none of the foregoing acts of Landlord or any other act of
\nLandlord shall constitute a termination of Tenant’s right to possession or an
\nacceptance of Tenant’s surrender of the Premises, and the Lease shall continue
\nin effect.<\/p>\n
31<\/p>\n
26.15 LANDLORD’S RIGHT TO PERFORM TENANT’S DUTIES<\/p>\n
If Tenant fails timely to perform any of its duties under this Lease, Landlord
\nshall have the right (but not the obligation), to perform such duty on behalf
\nand at the expense of Tenant without prior notice to Tenant, and all sums
\nexpended or expenses incurred by Landlord in performing such duty shall be
\ndeemed to be additional Rent under this Lease and shall be due and payable upon
\ndemand by Landlord.<\/p>\n
26.16 SECURITY SYSTEM<\/p>\n
Landlord shall not be obligated to provide or maintain any security patrol or
\nsecurity system. Landlord shall not be responsible for the quality of any such
\npatrol or system which may be provided hereunder or for damage or injury to
\nTenant, its employees, invitees or others due to the failure, action or inaction
\nof such patrol or system.<\/p>\n
26.17 NO LIGHT, AIR OR VIEW EASEMENTS<\/p>\n
Any diminution or shutting off of light, air or view by any structure which may
\nbe erected on lands of or adjacent to the Project shall in no way affect this
\nLease or impose any liability on Landlord.<\/p>\n
26.18 RECORDATION<\/p>\n
Neither this Lease, nor any notice nor memorandum regarding the terms hereof,
\nshall be recorded by Tenant. Any such unauthorized recording shall be a Default
\nfor which there shall be no cure or grace period. Tenant agrees to execute and
\nacknowledge, at the request of Landlord, a memorandum of this Lease, in
\nrecordable form.<\/p>\n
26.19 SURVIVAL<\/p>\n
The waivers of the right of jury trial, the other waivers of claims or rights,
\nthe releases and the obligations of Tenant under this Lease to indemnify,
\nprotect, defend and hold harmless Landlord and\/or Indemnitees shall survive the
\nexpiration or termination of this Lease, and so shall all other obligations or
\nagreements which by their terms survive expiration or termination of the Lease.<\/p>\n
26.20 RIDERS<\/p>\n
All Riders attached hereto and executed both by Landlord and Tenant shall be
\ndeemed to be a part hereof and hereby incorporated herein.<\/p>\n
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
\nSection 1.01(4) hereof.<\/p>\n
TENANT: LANDLORD:
\n—— ——– <\/p>\n
Maxygen, Inc. Metropolitan Life Insurance Company,
\na Delaware corporation a New York corporation<\/p>\n
By \/s\/ B.S. Gill By \/s\/ Donald Devine
\n ————————- —————————-<\/p>\n
B.S. Gill Donald Devine
\n ————————– —————————
\n Print name Print name<\/p>\n
Its Senior Vice President Its Vice President
\n ————————- —————————-
\n(Chairman of Board, President
\n or Vice President)<\/p>\n
By \/s\/ Michael Rabson
\n ————————– <\/p>\n
Michael Rabson
\n ————————–
\n Print name<\/p>\n
Its Assistant Secretary
\n ————————–
\n(Secretary, Assistant Secretary,
\nCFO or Assistant Treasurer)<\/p>\n
32<\/p>\n
EXHIBIT A
\n PLAN OF PREMISES<\/p>\n
[graphic representation of the floor plan of the building, showing two square
\nboxes (one larger and one smaller) abutting each other as the general footprint
\nof the floor. The larger box is cross-hatched to show that it is not part of
\nthe area being rented. One-half of the smaller box is also cross-hatched to
\nshow that it is not part of the area being rented. The remaining one-half box
\nis subdivided to show the locations of walls and doors within the area to be
\nrented.]<\/p>\n
33<\/p>\n
EXHIBIT B
\n WORKLETTER AGREEMENT
\n (intentionally omitted)<\/p>\n
34<\/p>\n
EXHIBIT C
\n SITE PLAN OF PROJECT<\/p>\n
[graphic representation of the area in which the rented premises is located.
\nThe graphic shows a square area subdivided by named streets and rectangular
\nboxes representing the buildings located in the area. Each building is labeled
\nand identified by address and total square footage in a graphic chart in the
\nupper left corner of the map. Parking spaces are also graphically represented
\naround each building.]<\/p>\n
35<\/p>\n
EXHIBIT D
\n PERMITTED HAZARDOUS MATERIAL<\/p>\n
Permitted Hazardous Material includes insignificant amounts of substances
\ntypically found or used in general office applications so long as (i) such
\nsubstances are maintained only in such quantities as are reasonably necessary
\nfor Tenant’s operations in the Premises, (ii) such substances are used strictly
\nin accordance with the manufacturers’ instructions therefor and all applicable
\nlaws, (iii) such substances are not disposed of in or about the Building or the
\nProject in a manner which would constitute a release or discharge thereof, and
\n(iv) all such substances are removed from the Building and the Project by Tenant
\nupon the expiration or earlier termination of this Lease.<\/p>\n
36<\/p>\n
EXHIBIT E
\n HAZARDOUS MATERIAL PLANS<\/p>\n
TO BE LISTED AND ATTACHED BY TENANT PURSUANT TO SECTION 7.02(c) OF THIS LEASE.<\/p>\n
EXHIBIT F
\n FORM OF SUBORDINATION, NONDISTURBANCE & ATTORNMENT AGREEMENT<\/p>\n
RECORDING REQUESTED
\nBY AND WHEN
\nRECORDED RETURN TO:<\/p>\n
____________________, Esq.
\n____________________
\n____________________
\n____________________<\/p>\n
SUBORDINATION,
\n NONDISTURBANCE
\n AND ATTORNMENT AGREEMENT<\/p>\n
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
\n RESULTS IN YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT
\n TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER
\n SECURITY INSTRUMENT.<\/p>\n
DEFINED TERMS
\n================================================================================
\nExecution Date:
\n——————————————————————————–
\nBeneficiary & Address:<\/p>\n
Attn.:
\nwith a copy to:<\/p>\n
——————————————————————————–
\nTenant & Address:<\/p>\n
——————————————————————————–
\nLandlord & Address:<\/p>\n
——————————————————————————–
\nLoan: A first mortgage loan in the original principal amount of $
\nfrom Beneficiary to Landlord.<\/p>\n
——————————————————————————–
\nNote: A Promissory Note executed by Landlord in favor of Beneficiary in the
\namount of the Loan dated as of<\/p>\n
——————————————————————————–
\nDeed of Trust: A Deed of Trust, Security Agreement and Fixture Filing dated as
\nof executed by Landlord, to as Trustee, for the benefit of Beneficiary
\nsecuring repayment of the Note to be recorded in the records of the County in
\nwhich the Property is located.<\/p>\n
——————————————————————————–
\nLease and Lease Date: The lease entered into by Landlord and Tenant dated as of
\n covering the Premises.
\n[Add amendments]
\n——————————————————————————–
\nProperty: [Property Name]
\n [Street Address 1]
\n [City, State, Zip]<\/p>\n
The Property is more particularly described on Exhibit A.
\n ———
\n================================================================================<\/p>\n
Exhibit F – Page 1<\/p>\n
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (the
\n“Agreement”) is made by and among Tenant, Landlord, and Beneficiary and affects
\nthe Property described in Exhibit A. Certain terms used in this Agreement are
\n ———
\ndefined in the Defined Terms. This Agreement is entered into as of the Execution
\nDate with reference to the following facts:<\/p>\n
A. Landlord and Tenant have entered into the Lease covering certain
\nspace in the improvements located in and upon the Property (the “Premises”).<\/p>\n
B. Beneficiary has made or is making the Loan to Landlord evidenced
\nby the Note. The Note is secured, among other documents, by the Deed of Trust.<\/p>\n
C. Landlord, Tenant and Beneficiary all wish to subordinate the
\nLease to the lien of the Deed of Trust.<\/p>\n
D. Tenant has requested that Beneficiary agree not to disturb
\nTenant’s rights in the Premises pursuant to the Lease in the event Beneficiary
\nforecloses the Deed of Trust, or acquires the Property pursuant to the trustee’s
\npower of sale contained in the Deed of Trust or receives a transfer of the
\nProperty by a conveyance in lieu of foreclosure of the Property (collectively, a
\n“Foreclosure Sale”) but only if Tenant is not then in default under the Lease
\nand Tenant attorns to Beneficiary or a third party purchaser at the Foreclosure
\nSale (a “Foreclosure Purchaser”).<\/p>\n
NOW THEREFORE, in consideration of the premises and the mutual
\ncovenants contained herein, the parties agree as follows:<\/p>\n
1. Subordination. The Lease and the leasehold estate created by the
\n ————-
\nLease and all of Tenant’s rights under the Lease are and shall remain
\nsubordinate to the Deed of Trust and the lien of the Deed of Trust, to all
\nrights of Beneficiary under the Deed of Trust and to all renewals, amendments,
\nmodifications and extensions of the Deed of Trust.<\/p>\n
2. Acknowledgments by Tenant. Tenant agrees that: (a) Tenant has
\n ————————-
\nnotice that the Lease and the rent and all other sums due under the Lease have
\nbeen or are to be assigned to Beneficiary as security for the Loan. In the event
\nthat Beneficiary notifies Tenant of a default under the Deed of Trust and
\nrequests Tenant to pay its rent and all other sums due under the Lease to
\nBeneficiary, Tenant shall pay such sums directly to Beneficiary or as
\nBeneficiary may otherwise request. (b) Tenant shall send a copy of any notice or
\nstatement under the Lease to Beneficiary at the same time Tenant sends such
\nnotice or statement to Landlord. (c) This Agreement satisfies any condition or
\nrequirement in the Lease relating to the granting of a nondisturbance agreement.<\/p>\n
3. Foreclosure and Sale. In the event of a Foreclosure Sale,
\n ——————– <\/p>\n
(a) So long as Tenant complies with this Agreement and is not in
\n default under any of the provisions of the Lease, the Lease shall continue
\n in full force and effect as a direct lease between Beneficiary and Tenant,
\n and Beneficiary will not disturb the possession of Tenant, subject to this
\n Agreement. Tenant agrees to attorn to and accept Beneficiary as landlord
\n under the Lease and to be bound by and perform all of the obligations
\n imposed by the Lease. Upon Beneficiary’s acquisition of title to the
\n Property, Beneficiary will perform all of the obligations imposed on the
\n Landlord by the Lease except as set forth in this Agreement; provided,
\n however, that Beneficiary shall not be: (i) liable for any act or omission
\n of a prior landlord (including Landlord); or (ii) subject to any offsets or
\n defenses that Tenant might have against any prior landlord (including
\n Landlord); or (iii) bound by any rent or additional rent which Tenant might
\n have paid in advance to any prior landlord (including Landlord) for a
\n period in excess of one month or by any security deposit, cleaning deposit
\n or other sum that Tenant may have paid in advance to any prior landlord
\n (including Landlord); or (iv) bound by any amendment, modification,
\n assignment or termination of the Lease made without the written consent of
\n Beneficiary; (v) obligated or liable with respect to any representations,
\n warranties or indemnities contained in the Lease; or (vi) liable to Tenant
\n or any other party for any conflict between the provisions of the Lease and
\n the provisions of any other lease affecting the Property which is not
\n entered into by Beneficiary.<\/p>\n
(b) Upon the written request of Beneficiary after a Foreclosure
\n Sale, the parties shall execute a lease of the Premises upon the same
\n provisions as contained in the Lease between Landlord and Tenant, except as
\n set forth in this Agreement, for the unexpired term of the Lease.<\/p>\n
4. Subordination and Release of Purchase Options. Tenant represents
\n ———————————————
\nthat it has no right or option of any nature to purchase the Property or any
\nportion of the Property or any interest in the Borrower. To the extent Tenant
\nhas or acquires any such right or option, these rights or options are
\nacknowledged to be subject and subordinate to the Mortgage and are waived and
\nreleased as to Beneficiary and any Foreclosure Purchaser.<\/p>\n
5. Acknowledgment by Landlord. In the event of a default under the
\n ————————–
\nDeed of Trust, at the election of Beneficiary, Tenant shall and is directed to
\npay all rent and all other sums due under the Lease to Beneficiary.<\/p>\n
Exhibit F – Page 2<\/p>\n
6. Construction of Improvements. Beneficiary shall not have any
\n —————————-
\nobligation or incur any liability with respect to the completion of the
\nimprovements in which the Premises are located at the commencement of the term
\nof the Lease.<\/p>\n
7. Notice. All notices under this Agreement shall be deemed to have
\n ——
\nbeen properly given if delivered by overnight courier service or mailed by
\nUnited States certified mail, with return receipt requested, postage prepaid to
\nthe party receiving the notice at its address set forth in the Defined Terms (or
\nat such other address as shall be given in writing by such party to the other
\nparties) and shall be deemed complete upon receipt or refusal of delivery.<\/p>\n
8. Miscellaneous. Beneficiary shall not be subject to any provision
\n ————-
\nof the Lease that is inconsistent with this Agreement. Nothing contained in this
\nAgreement shall be construed to derogate from or in any way impair or affect the
\nlien or the provisions of the Deed of Trust. This Agreement shall be governed by
\nand construed in accordance with the laws of the State of in which the Property
\nis located.<\/p>\n
9. Liability and Successors and Assigns. In the event that
\n ————————————
\nBeneficiary acquires title to the Premises or the Property, Beneficiary shall
\nhave no obligation nor incur any liability beyond Beneficiary’s then equity
\ninterest in the building in which the Premises is located up to a maximum of
\nFive Million Dollars ($5,000,000), and Tenant shall look solely to such equity
\ninterest (as limited) for the payment and performance of any obligations imposed
\nupon Beneficiary under this Agreement or under the Lease. This Agreement shall
\nrun with the land and shall inure to the benefit of the parties and, their
\nrespective successors and permitted assigns including a Foreclosure Purchaser.
\nIf a Foreclosure Purchaser acquires the Property or if Beneficiary assigns or
\ntransfers its interest in the Note and Deed of Trust or the Property, all
\nobligations and liabilities of Beneficiary under this Agreement shall terminate
\nand be the responsibility of the Foreclosure Purchaser or other party to whom
\nBeneficiary’s interest is assigned or transferred. The interest of Tenant under
\nthis Agreement may not be assigned or transferred except in connection with an
\nassignment of its interest in the Lease which has been consented to by
\nBeneficiary.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Subordination,
\nNondisturbance and Attornment Agreement as of the Execution Date.<\/p>\n
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT CONTAINS
\n PROVISIONS WHICH ALLOW THE PERSON OBLIGATED ON THE LEASE TO OBTAIN A
\n LOAN, A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN
\n IMPROVEMENT OF THE PROPERTY.<\/p>\n
IT IS RECOMMENDED THAT THE PARTIES CONSULT WITH THEIR ATTORNEYS PRIOR TO THE
\nEXECUTION OF THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT.<\/p>\n
BENEFICIARY: __________________________________,
\n a _________________________________<\/p>\n
By ________________________________
\n Its _______________________________<\/p>\n
TENANT: __________________________________,
\n a _________________________________<\/p>\n
By ________________________________
\n Its _______________________________<\/p>\n
LANDLORD: __________________________________,
\n a _________________________________<\/p>\n
By ________________________________
\n Its _______________________________<\/p>\n
Exhibit F – Page 3<\/p>\n
EXHIBIT A OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT<\/p>\n
PROPERTY DESCRIPTION<\/p>\n
Exhibit F – Page 4<\/p>\n
State of _____________<\/p>\n
County of ____________<\/p>\n
On ______________, 199_ before me, ____________________, personally appeared
\n___________________, personally known to me (or proved to me on the basis of
\nsatisfactory evidence) to be the person whose name is subscribed to the within
\ninstrument and acknowledged to me that he\/she executed the same in his\/her
\nauthorized capacity, and that by his\/her signature on the instrument the person,
\nor the entity upon behalf of which the person acted, executed the instrument.<\/p>\n
WITNESS my hand and official seal.<\/p>\n
Signature ________________________________ (Seal)<\/p>\n
***************************************************<\/p>\n
State of _____________<\/p>\n
County of ____________<\/p>\n
On ______________, 199_ before me, ____________________, personally appeared
\n___________________, personally known to me (or proved to me on the basis of
\nsatisfactory evidence) to be the person whose name is subscribed to the within
\ninstrument and acknowledged to me that he\/she executed the same in his\/her
\nauthorized capacity, and that by his\/her signature on the instrument the person,
\nor the entity upon behalf of which the person acted, executed the instrument.<\/p>\n
WITNESS my hand and official seal.<\/p>\n
Signature ________________________________ (Seal)<\/p>\n
***************************************************<\/p>\n
State of _____________<\/p>\n
County of ____________<\/p>\n
On ______________, 199_ before me, ____________________, personally appeared
\n___________________, personally known to me (or proved to me on the basis of
\nsatisfactory evidence) to be the person whose name is subscribed to the within
\ninstrument and acknowledged to me that he\/she executed the same in his\/her
\nauthorized capacity, and that by his\/her signature on the instrument the person,
\nor the entity upon behalf of which the person acted, executed the instrument.<\/p>\n
WITNESS my hand and official seal.<\/p>\n
Signature ________________________________ (Seal)<\/p>\n
Exhibit F – Page 5<\/p>\n
RIDER 1
\n COMMENCEMENT DATE AGREEMENT<\/p>\n
Metropolitan Life Insurance Company, a New York corporation (“Landlord”), and
\nMaxygen, Inc., a Delaware corporation (“Tenant”), have entered into a certain
\nLease dated as of April 21, 2000 (the “Lease”).<\/p>\n
WHEREAS, Landlord and Tenant wish to confirm and memorialize the Commencement
\nDate and Expiration Date of the Lease as provided for in Rider 2 of the Lease;<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
\ncontained herein and in the Lease, Landlord and Tenant agree as follows:<\/p>\n
1. Unless otherwise defined herein, all capitalized terms shall have the
\nsame meaning ascribed to them in the Lease.<\/p>\n
2. The Commencement Date (as defined in the Lease) of the Lease is
\n________________________.<\/p>\n
3. The Expiration Date (as defined in the Lease) of the Lease is
\n__________________________.<\/p>\n
4. Tenant hereby confirms the following:<\/p>\n
(a) That it has accepted possession of the premises pursuant to the
\n terms of the Lease;<\/p>\n
(b) That the Landlord Work, if any, is Substantially Complete; and<\/p>\n
(c) That the Lease is in full force and effect.<\/p>\n
5. Except as expressly modified hereby, all terms and provisions of the
\nLease are hereby ratified and confirmed and shall remain in full force and
\neffect and binding on the parties hereto.<\/p>\n
6. The Lease and this Commencement Date Agreement contain all of the
\nterms, covenants, conditions and agreements between the Landlord and the Tenant
\nrelating to the subject matter herein. No prior other agreements or
\nunderstandings pertaining to such matters are valid or of any force and effect.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this Commencement
\nDate Agreement and such execution and delivery have been duly authorized.<\/p>\n
TENANT: LANDLORD:
\n—— ——– <\/p>\n
Maxygen, Inc., Metropolitan Life Insurance Company,
\na Delaware corporation a New York corporation<\/p>\n
By ________________________________ By ________________________________<\/p>\n
________________________________ __________________________________
\n Print name Print name
\nIts _________________________________ Its _________________________________
\n(Chairman of Board, President or
\nVice President)<\/p>\n
By ________________________________<\/p>\n
_________________________________
\n Print name
\nIts __________________________________
\n(Secretary, Assistant Secretary, CFO
\n or Assistant Treasurer)<\/p>\n
Exhibit F – Page 6<\/p>\n
RIDER 2
\n ADDITIONAL PROVISIONS<\/p>\n
This Rider 2 (“Rider”) is attached to and a part of a certain Lease dated
\nas of April 21, 2000 executed concurrently herewith by Metropolitan Life
\nInsurance Company, a New York corporation, as Landlord, and Maxygen, Inc., a
\nDelaware corporation (for purposes of this Rider, “Maxygen” or “Tenant”), as
\nTenant, for the Premises as described therein (the “Lease”).<\/p>\n
SECTION 1. DEFINED TERMS; FORCE AND EFFECT<\/p>\n
Capitalized terms used in this Rider shall have the same meanings set forth in
\nthe Lease except as otherwise specified herein and except for terms capitalized
\nin the ordinary course of punctuation. This Rider forms a part of the Lease.
\nWithout limiting the generality of the foregoing, any default by any party
\nhereunder shall have the same force and effect as a default under the Lease.
\nShould any inconsistency arise between this Rider and any other provision of the
\nLease as to the specific matters which are the subject of this Rider, the terms
\nand conditions of this Rider shall control.<\/p>\n
SECTION 2. PREMISES LEASED “AS-IS”; DELIVERY; COMMENCEMENT DATE; AND
\n CONSTRUCTION<\/p>\n
2.1. AS-IS; Delivery; Commencement Date. Notwithstanding any provision of
\n ———————————-
\nthe Lease to the contrary:<\/p>\n
(a) AS-IS. Tenant acknowledges and agrees that (i) Tenant has been
\n —–
\nafforded ample opportunity to inspect the Premises, the Building and the
\nProject, and has investigated their condition to the extent Tenant desires to do
\nso; (ii) Tenant hereby agrees that this Lease is of the Premises in its “AS IS”
\ncondition; (iii) no representation regarding the condition of the Premises or
\nthe Building or the Project has been made by or on behalf of Landlord; (iv)
\nLandlord has no obligation to remodel or to make any repairs, alterations or
\nimprovements to the Premises, Building or the Project in connection with
\nTenant’s initial occupancy or provide Tenant any allowance for any work by
\nTenant; and (v) there is no Workletter for this Lease.<\/p>\n
(b) Delivery & Commencement Date. Possession will be adequately
\n —————————-
\ntendered to Tenant by Landlord either delivering the keys (or other means of
\naccess) to Tenant or Tenant’s Broker, or by Landlord giving written notice that
\nthe keys (or other means of access) to the Premises are available for Tenant or
\nits representative to pick up at the office of Landlord or of the Seaport Centre
\nProperty Manager. In the event Landlord determines that Landlord may be able to
\ntender possession of the Premises to Tenant prior to the Projected Commencement
\nDate, Landlord may, but shall not be obligated to, offer to tender possession to
\nTenant prior to the Projected Commencement Date. If such early tender is
\noffered by Landlord, Tenant shall have the option to accept the early tender
\n(and Tenant shall notify Landlord in writing of Tenant’s exercise of such option
\nno later than two (2) business days after Landlord offers such early tender),
\nand in such event shall take possession of the Premises no later than two (2)
\nbusiness days after such tender is offered and in no event later than the
\nProjected Commencement Date. The Commencement Date shall be the earlier of (i)
\nthe date of Tenant’s acceptance of early tender as described above, or (ii) the
\nProjected Commencement Date, and thereupon Tenant’s possession of the space
\nshall be subject to all of the terms, covenants and conditions of this Lease,
\nincluding the payment of Rent (including Monthly Base Rent and all other rent
\npayable under the Lease).<\/p>\n
(c) Delay in Delivery. If Landlord does not obtain and tender
\n —————–
\npossession of the Premises by the Projected Commencement Date by reason of the
\nfollowing: (i) the holding over or retention of possession of any tenant,
\ntenants or occupants or (ii) for any other reason, then Landlord shall not be
\nsubject to any liability for the failure to give possession on said date. Under
\nsuch circumstances the Commencement Date shall be delayed by a number of days
\nequal to the days of delay in Landlord’s delivery of possession to Tenant. No
\nsuch failure to give possession shall affect the validity of this Lease or the
\nobligations of the Tenant hereunder. Within thirty (30) days following the
\noccurrence of the Commencement Date, Landlord and Tenant shall enter into an
\nagreement (which is attached to this Lease as Rider 1) confirming the
\n ——-
\nCommencement Date and the Expiration Date. If Tenant fails to enter into such
\nagreement, then the Commencement Date and the Expiration Date shall be the dates
\ndesignated by Landlord in such agreement.<\/p>\n
2.2. Tenant Work Generally. Landlord and Tenant acknowledge and agree that
\n ———————
\nnotwithstanding any provisions of the Lease to the contrary: (a) Tenant may
\ndesire to do certain remodeling, repair, improvement or alteration in connection
\nwith its initial occupancy, which for purposes of this Lease is referred to as
\nthe Tenant Work; (b) all Tenant Work, if any, shall be done as Tenant
\nAlterations within the meaning of Article Nine of the Lease, subject to and in
\ncompliance with all conditions and provisions of the Lease applicable to Tenant
\nAlterations, except as otherwise expressly provided in this Rider; (c) without
\nlimiting the generality of any provisions of Article Nine, Tenant’s selection of
\nTenant’s space planner and\/or architect and Tenant’s selection of contractor(s)
\nshall be subject to Landlord’s prior written approval, which shall not
\nunreasonably be withheld; (d) Tenant shall not be required to obtain a
\ncompletion and lien indemnity bond for it; (e) such work, including all design,
\nplan review, obtaining all approvals and permits, and construction shall be at
\nTenant’s sole cost and expense, including delivery to Landlord of plans and
\nspecifications of such<\/p>\n
Rider 2 – Page 1 of 1 <\/p>\n
Tenant Work (including 3 sets of as-built plans and specifications upon
\ncompletion) to the extent such work is more than recarpeting and\/or repainting,
\nand (f) Tenant shall pay Landlord a fee for monitoring such design, construction
\nand work by Tenant which shall not exceed two percent of all “hard costs” of the
\nTenant Work.<\/p>\n
2.3. Design & Construction Responsibility for any Tenant Work. Tenant
\n ——————————————————–
\nshall be responsible for the suitability for the Tenant’s needs and business of
\nthe design and function of all Tenant Work and for its construction in
\ncompliance with all Law as applicable and as interpreted at the time of
\nconstruction of the Tenant Work, including all building codes and the ADA (as
\ndefined in the Lease). Tenant, through its architects and\/or space planners
\n(“Tenant’s Architect”), shall prepare all architectural plans and
\nspecifications, and engineering plans and specifications, for the real property
\nimprovements to be constructed by Tenant in the Premises in sufficient detail to
\nbe submitted for approval by Landlord to the extent required pursuant to Article
\nNine of the Lease and to be submitted by Tenant for governmental approvals and
\nbuilding permits and to serve as the detailed construction drawings and
\nspecifications for the contractor, and shall include, among other things, all
\npartitions, doors, heating, ventilating and air conditioning installation and
\ndistribution, ceiling systems, light fixtures, plumbing installations,
\nelectrical installations and outlets, telephone installations and outlets, any
\nother installations required by Tenant, fire and life-safety systems, wall
\nfinishes and floor coverings, whether to be newly installed or requiring changes
\nfrom the as-is condition of the Premises as of the date of execution of the
\nLease. Tenant shall be responsible for the oversight, supervision and
\nconstruction of all Tenant Work in compliance with this Lease, including
\ncompliance with all Law as applicable and as interpreted at the time of
\nconstruction, including all building codes and the ADA.<\/p>\n
SECTION 3 MONUMENT SIGNAGE<\/p>\n
3.1 Grant of Right. Notwithstanding any provision of Section 6.06 of the
\n ————–
\nLease to the contrary, so long as Tenant is in continuous operation at and
\noccupancy of at least fifty percent (50%) of the entire Premises, Tenant shall
\nhave the right, to place Tenant identification on one line of the existing,
\nexterior monument sign for the Building, subject to the terms and conditions of
\nthis Section (“Exterior Sign Right”).<\/p>\n
3.2 General Conditions & Requirements. The size, type, style, materials,
\n ———————————
\ncolor, method of installation and exact location of the sign, and the contractor
\nfor and all work in connection with the sign, contemplated by this Section shall
\n(i) be subject to Tenant’s compliance with all applicable laws, regulations and
\nordinances and with any covenants, conditions and restrictions of record which
\naffect the Property; (ii) be subject to Tenant’s compliance with all
\nrequirements of Landlord’s current Project signage criteria at the time of
\ninstallation; (iii) be consistent with the design of the Building and the
\nProject; (iv) be further subject to Landlord’s prior written consent. Tenant
\nshall, at its sole cost and expense, procure, install, maintain and remove such
\nsign.<\/p>\n
3.3 Removal & Restoration. Upon the expiration or termination of the
\n ———————
\nExterior Sign Right, but in no event later than the expiration of the Term or
\nearlier termination of the Lease, Tenant shall, at its sole cost and expense,
\nremove such sign and shall repair and restore the area in which the sign was
\nlocated to its condition prior to installation of such sign.<\/p>\n
3.4 Right Personal. The Exterior Sign Right under this Section is
\n ————–
\npersonal to Maxygen and may not be used by, and shall not be transferable or
\nassignable (voluntarily or involuntarily) to any person or entity other than an
\nassignee of the Lease which has satisfied the requirements of Article Ten of the
\nLease.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Rider 2 as of the
\ndate first set forth in the Lease.<\/p>\n
TENANT: LANDLORD:
\n—— ——– <\/p>\n
Maxygen, Inc., Metropolitan Life Insurance Company,
\na Delaware corporation a New York corporation<\/p>\n
By \/s\/ B.S. Gill By \/s\/ Donald K. Devine
\n ————————- ——————————<\/p>\n
B.S. Gill Donald K. Devine
\n ————————- ——————————
\n Print name Print name<\/p>\n
Its Senior Vice President Its Vice-President
\n ————————- —————————-
\n(Chairman of Board, President
\n or Vice President)<\/p>\n
By \/s\/ Michael Rabson
\n ————————– <\/p>\n
Michael Rabson
\n ————————–
\n Print name<\/p>\n
Its Assistant Secretary
\n ————————-
\n(Secretary, Assistant Secretary,
\nCFO or Assistant Treasurer)<\/p>\n
Rider 2 – Page 2 of 2<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8151,8205],"corporate_contracts_industries":[9445],"corporate_contracts_types":[9583,9579],"class_list":["post-41956","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-maxygen-inc","corporate_contracts_companies-metlife-inc","corporate_contracts_industries-insurance__life","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41956","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41956"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41956"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41956"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41956"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}