California-Dublin-4130 Dublin Boulevard Lease - Koll Dublin Corporate Center LP and SuperGen Inc.
OFFICE BUILDING LEASE
BETWEEN
KOLL DUBLIN CORPORATE CENTER, L.P.,
A DELAWARE LIMITED PARTNERSHIP
LANDLORD
AND
SUPERGEN, INC.,
A DELAWARE CORPORATION
TENANT
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TABLE OF CONTENTS
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1. BASIC LEASE TERMS......................................................................................1
2. PREMISES AND COMMON AREAS..............................................................................2
3. TERM...................................................................................................3
4. POSSESSION.............................................................................................3
5. RENT...................................................................................................3
6. OPERATING EXPENSES.....................................................................................4
7. [INTENTIONALLY DELETED]................................................................................5
8. USE....................................................................................................5
9. NOTICES................................................................................................6
10. BROKERS................................................................................................6
11. SURRENDER; HOLDING OVER................................................................................6
12. TAXES ON TENANT'S PROPERTY.............................................................................7
13. ALTERATIONS............................................................................................7
14. REPAIRS................................................................................................8
15. LIENS.................................................................................................10
16. ENTRY BY LANDLORD.....................................................................................10
17. UTILITIES AND SERVICES................................................................................10
18. ASSUMPTION OF RISK AND INDEMNIFICATION................................................................10
19. INSURANCE.............................................................................................11
20. DAMAGE OR DESTRUCTION.................................................................................13
21. EMINENT DOMAIN........................................................................................14
22. DEFAULTS AND REMEDIES.................................................................................15
23. LANDLORD'S DEFAULT....................................................................................16
24. ASSIGNMENT AND SUBLETTING.............................................................................16
25. SUBORDINATION.........................................................................................19
26. ESTOPPEL CERTIFICATE..................................................................................19
27. [INTENTIONALLY DELETED]...............................................................................19
28. RULES AND REGULATIONS.................................................................................19
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND
LESSORS...............................................................................................19
30. DEFINITION OF LANDLORD................................................................................20
31. WAIVER................................................................................................20
32. PARKING...............................................................................................20
33. FORCE MAJEURE.........................................................................................21
34. SIGNS.................................................................................................21
35. LIMITATION ON LIABILITY...............................................................................22
36. FINANCIAL STATEMENTS..................................................................................22
37. QUIET ENJOYMENT.......................................................................................22
38. MISCELLANEOUS.........................................................................................22
39. EXECUTION OF LEASE....................................................................................23
40. UNION LABOR...........................................................................................24
41. OPTION TERM...........................................................................................24
42. NON-DISTURBANCE AGREEMENT.............................................................................25
43. LETTERS OF CREDIT.....................................................................................25
44. RIGHT OF FIRST OFFER..................................................................................27
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(i)
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EXHIBITS: PAGE
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A-I Site Plan
A-II Outline of Floor Plan of Premises
B Rentable Square Feet
C Work Letter Agreement
D Notice of Lease Term Dates and Tenant's Percentage
E Definition of Operating Expenses
F Standards for Utilities and Services
G Estoppel Certificate
H Rules and Regulations
I Form of Letter of Credit A
J Form of Letter of Credit B
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(ii)
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OFFICE BUILDING LEASE
This OFFICE BUILDING LEASE ("Lease") is entered into as of June 23, 2000, by and
between KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited partnership
("Landlord"), and SUPERGEN, INC., a Delaware corporation ("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have
the following definitions and meanings:
(a) LANDLORD: KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited partnership
(b) LANDLORD'S ADDRESS (FOR NOTICES):
4125 Blackhawk Plaza Circle, Suite 200
Danville, CA 94506
Attention: Michael G. Parker
or such other place as Landlord may from time to time designate by notice to
Tenant.
(c) TENANT: SUPERGEN, INC., a Delaware corporation.
(d) TENANT'S ADDRESS (FOR NOTICES): Before the Commencement Date:
Two Annabel Lane, Suite 220
San Ramon, CA 94583
Attention: President
and after the Commencement Date, to the Premises, Attention: President, or such
other place as Tenant may from time to time designate by notice to Landlord.
(e) DEVELOPMENT: The parcel(s) of real property commonly known as the Koll
Dublin Corporate Center and located in the City of Dublin (the "City"), County
of Alameda (the "County"), State of California ("State"), as shown on the site
plan attached hereto as EXHIBIT "A-I".
(f) BUILDING: A four story office building located within the Development, which
Building contains approximately 138,136 Rentable Square Feet (subject to
adjustment as provided in EXHIBIT "B"), with the street address of 4130 Dublin
Boulevard, Dublin, California (Building 3).
(g) PREMISES: Those certain premises consisting of the north wing of the first
(1st) floor and the entire second (2nd) floor of the Building as generally shown
on the floor plan(s) attached hereto as EXHIBIT "A-II", which Premises contains
approximately 50,304 Rentable Square Feet and 47,097 Usable Square Feet (subject
to adjustment as provided in EXHIBIT "B" and EXHIBIT "D").
(h) TENANT'S PERCENTAGE: Tenant's percentage of the Building on a Rentable
Square Foot basis, which initially is 36.42%, subject to final determination as
provided in EXHIBIT "B" and EXHIBIT "D".
(i) TERM: Ten (10) Lease Years and -0- Months.
(j) ESTIMATED COMMENCEMENT DATE: November 20, 2000.
ESTIMATED EXPIRATION DATE: November 30, 2010.
(k) COMMENCEMENT DATE: The date on which the Term of this Lease will commence as
determined in accordance with the provisions of EXHIBIT "C" and as stated on
EXHIBIT "D".
(l) INITIAL MONTHLY BASE RENT: $ 2.75 per Rentable Square Foot, subject to
adjustment as provided in Subparagraph 1(m) below and as otherwise provided in
this Lease.
(m) ADJUSTMENT TO MONTHLY BASE RENT: Monthly Base Rent will be adjusted in
accordance with the following: On each anniversary of the Commencement Date, the
Monthly Base Rent shall be increased by four percent (4%) over the then current
Monthly Base Rent.
(n) OPERATING EXPENSE ALLOWANCE: Operating Expense Allowance means that portion
of Tenant's Percentage of Operating Expenses as described in Paragraph 6 below
which Landlord has included in Monthly Base Rent, which, for purposes of this
Lease, will be an amount equal to $7.65 per Rentable Square Foot per year.
(o) SECURITY DEPOSIT: $-0- (See Paragraph 43 below concerning Letters of
Credit.)
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(p) TENANT IMPROVEMENTS: All tenant improvements installed or to be installed by
Landlord or Tenant within the Premises to prepare the Premises for occupancy
pursuant to the terms of the Work Letter Agreement attached hereto as EXHIBIT
"C".
(q) TENANT IMPROVEMENT ALLOWANCE: $25.00 per Rentable Square Foot of the
Premises, to be applied as provided in the Work Letter Agreement attached hereto
as EXHIBIT "C".
(r) PERMITTED USE: General office space.
(s) INITIAL AFTER-HOURS CHARGE: $50.00 per zone per hour for after-hours HVAC
use. (Landlord represents to Tenant that Tenant will not be charged for any zone
that services any tenant space other than the Premises unless Tenant requests
after-hours HVAC for such zone.) For the purpose of after-hours HVAC use, the
Building is divided into the following four (4) zones: (i) the north half of the
1st and 2nd floors, (ii) the south half of the 1st and 2nd floors, (iii) the
north half of the 3rd and 4th floors and (iv) the south half of the 3rd and 4th
floors.
(t) PARKING: 201 unreserved employee parking spaces at no charge, subject to the
terms and conditions of Paragraph 32 below and the Rules and Regulations
regarding parking contained in EXHIBIT "H".
(u) BROKER(S): CB Richard Ellis (Landlord's broker) and Lee & Associates
(Tenant's broker).
(v) GUARANTOR(S): N/A
(w) INTEREST RATE: shall mean the greater of ten percent (10%) per annum or two
percent (2%) in excess of the prime lending or reference rate of Wells Fargo
Bank N.A. or any successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted to be charged by applicable law.
(x) EXHIBITS: A through J, inclusive, which Exhibits are attached to this Lease
and incorporated herein by this reference. As provided in Paragraph 3 below, a
completed version of EXHIBIT "D" will be delivered to Tenant after Landlord
delivers possession of the Premises to Tenant.
This Paragraph 1 represents a summary of the basic terms and definitions of this
Lease. In the event of any inconsistency between the terms contained in this
Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
2. PREMISES AND COMMON AREAS.
(a) PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as improved or to be improved with the Tenant Improvements
described in the Work Letter Agreement, a copy of which is attached hereto as
EXHIBIT "C".
(b) MUTUAL COVENANTS. Landlord and Tenant agree that the letting and hiring of
the Premises is upon and subject to the terms, covenants and conditions
contained in this Lease and each party covenants as a material part of the
consideration for this Lease to keep and perform their respective obligations
under this Lease.
(c) TENANT'S USE OF COMMON AREAS. During the Term of this Lease, Tenant shall
have the nonexclusive right to use in common with Landlord and all persons,
firms and corporations conducting business in the Development and their
respective customers, guests, licensees, invitees, subtenants, employees and
agents (collectively, "Development Occupants"), subject to the terms of this
Lease, the Rules and Regulations referenced in Paragraph 32 below and all
covenants, conditions and restrictions now or hereafter affecting the
Development, the following common areas of the Building and/or the Development
(collectively, the "Common Areas"):
(i) The Building's common entrances, hallways, lobbies, public restrooms on
multi-tenant floors, elevators, stairways and accessways, loading docks, ramps,
drives and platforms and any passageways and serviceways thereto, and the common
pipes, conduits, wires and appurtenant equipment within the Building which serve
the Premises (collectively, "Building Common Areas"); and
(ii) The parking facilities of the Development which serve the Building
(subject to the provisions of EXHIBIT "H"), loading and unloading areas, trash
areas, roadways, sidewalks, walkways, parkways, driveways, landscaped areas,
plaza areas, fountains and similar areas and facilities situated within the
Development and appurtenant to the Building which are not reserved for the
exclusive use of any Development Occupants (collectively, "Development Common
Areas").
(d) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and access to the
Premises and parking to be provided to Tenant under this Lease is not interfered
with in an unreasonable manner, Landlord reserves for itself and for all other
owner(s) and operator(s) of the Development Common Areas and the balance of the
Development, the right from time to time to: (i) install, use, maintain, repair,
replace and relocate pipes, ducts, conduits, wires and appurtenant meters and
equipment above the ceiling surfaces, below the floor surfaces, within the walls
and in the central core areas of the Building; (ii) make changes to the design
and layout of the Development, including, without limitation, changes to
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buildings, driveways, entrances, loading and unloading areas, direction of
traffic, landscaped areas and walkways, and, subject to the parking provisions
contained in Paragraph 32 and EXHIBIT "H", parking spaces and parking areas; and
(iii) use or close temporarily the Building Common Areas, the Development Common
Areas and/or other portions of the Development while engaged in making
improvements, repairs or alterations to the Building, the Development, or any
portion thereof.
3. TERM. The term of this Lease ("Term") will be for the period designated
in Subparagraph 1(i), commencing on the Commencement Date, and ending on the
last day of the month in which the expiration of such period occurs, including
any extensions of the Term pursuant to any provision of this Lease or written
agreement of the parties. Each consecutive twelve (12) month period of the Term
of this Lease, commencing on the Commencement Date, will be referred to herein
as a "Lease Year". Landlord's Notice of Lease Term Dates and Tenant's Percentage
("Notice"), in the form of EXHIBIT "D" attached hereto, will set forth the
Commencement Date, the date upon which the Term of this Lease shall end, the
Rentable Square Feet within the Premises and the Building, and Tenant's
Percentage and will be delivered to Tenant after Landlord delivers possession of
the Premises to Tenant. The Notice will be binding upon Tenant unless Tenant
objects to the Notice in writing within five (5) days of Tenant's receipt of the
Notice.
4. POSSESSION.
(a) DELIVERY OF POSSESSION. Landlord agrees to deliver possession of the
Premises to Tenant in accordance with the terms of the Work Letter Agreement
attached hereto as EXHIBIT "C". Notwithstanding the foregoing, Landlord will not
be obligated to deliver possession of the Premises to Tenant (but Tenant will be
liable for rent if Landlord can otherwise deliver the Premises to Tenant) until
Landlord has received from Tenant all of the following: (i) a copy of this Lease
fully executed by Tenant and the guaranty of Tenant's obligations under this
Lease, if any, executed by the Guarantor(s); (ii) the Security Deposit and the
first installment of Monthly Base Rent; (iii) executed copies of policies of
insurance or certificates thereof as required under Paragraph 19 of this Lease;
(iv) copies of all governmental permits and authorizations, if any, required in
connection with Tenant's operation of its business within the Premises; and (v)
if Tenant is a corporation or partnership, such evidence of due formation, valid
existence and authority as Landlord may reasonably require, which may include,
swithout limitation, a certificate of good standing, certificate of secretary,
articles of incorporation, statement of partnership, or other similar
documentation.
(b) CONDITION OF PREMISES. Prior to the Commencement Date and in accordance
with the Work Letter Agreement attached hereto as EXHIBIT "C", Landlord and
Tenant will jointly conduct a walk-through inspection of the Premises and
will jointly prepare a punch-list ("Punch-List") of items required to be
installed by Landlord under the Work Letter Agreement which require finishing
or correction. The Punch-List will not include any items of damage to the
Premises caused by Tenant's move-in or early entry, if permitted, which
damage will be corrected or repaired by Landlord, at Tenant's expense or, at
Landlord's election, by Tenant, at Tenant's expense. Other than the items
specified in the Punch-List, by taking possession of the Premises, Tenant
will be deemed to have accepted the Premises in its condition on the date of
delivery of possession and to have acknowledged that the Tenant Improvements
have been installed as required by the Work Letter Agreement and that there
are no additional items needing work or repair. Landlord will cause all items
in the Punch-List to be repaired or corrected within thirty (30) days
following the preparation of the Punch-List or as soon as practicable after
the preparation of the Punch-List. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with
respect to the Premises, the Building, the Development or any portions
thereof or with respect to the suitability of same for the conduct of
Tenant's business and Tenant further acknowledges that Landlord will have no
obligation to construct or complete any additional buildings or improvements
within the Development. Notwithstanding the foregoing, Landlord warrants to
Tenant that on the Commencement Date, the Premises and the Building
(including all structural, mechanical, electrical and systems, roof, common
areas and restrooms and the parking area for the Building, but excluding the
Tenant Improvements constructed by Tenant pursuant to the Work Letter
Agreement) shall be in good working condition and shall comply with all
applicable laws, requirements of building codes, California accessibility
codes and the Americans with Disabilities Act [42 U.S.C. Section 12101 et
seq.] (the "ADA") as in effect on the Commencement Date (the "Building
Warranty"). The Building Warranty shall not apply to any improvements or
alterations made by or at the request of Tenant, except as specifically set
forth in the Work Letter Agreement. If the Premises do not comply with the
Building Warranty, promptly after Landlord's receipt of written notice from
Tenant given within six (6) months after the Commencement Date specifying in
detail the nature and extent of such non-compliance, Landlord, at Landlord's
sole cost and expense, shall take such action as is reasonably necessary to
remedy such non-compliance.
5. RENT.
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on the
first day of each calendar month during the Term without prior notice or demand,
except that Tenant agrees to pay the Monthly Base Rent for the first month of
the Term directly to Landlord concurrently with Tenant's delivery of the
executed Lease to Landlord. If the Term of this Lease commences or ends on a day
other than the first day of a calendar month, then the rent for such period will
be prorated in the proportion that the number of days this Lease is in effect
during such period bears to the number of days in such month. All rent must be
paid to Landlord, without any deduction or offset, in lawful money of the United
States of America, at the address designated by Landlord or to such other person
or at such other place as Landlord may from time to time
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designate in writing. Monthly Base Rent will be adjusted during the Term of this
Lease as provided in Subparagraph l(m).
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance,
repairs and parking, will be considered additional rent for purposes of this
Lease, and the word "rent" as used in this Lease will include all such
additional rent unless the context specifically or clearly implies that only
Monthly Base Rent is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided in
Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. In addition to Monthly Base Rent, throughout the Term of
this Lease, Tenant agrees to pay Landlord as additional rent in accordance with
the terms of this Paragraph 6, Tenant's Percentage of Operating Expenses as
defined in EXHIBIT "E" attached hereto to the extent Tenant's Percentage of
Operating Expenses exceeds Tenant's Operating Expense Allowance.
(b) ESTIMATE STATEMENT. Prior to the Commencement Date and on or about March 1st
of each subsequent calendar year during the Term of this Lease, Landlord will
endeavor to deliver to Tenant a statement ("Estimate Statement") wherein
Landlord will estimate both the Operating Expenses and Tenant's Percentage of
Operating Expenses for the then current calendar year. If the estimate of
Tenant's Percentage of Operating Expenses in the Estimate Statement exceeds
Tenant's Operating Expense Allowance, Tenant agrees to pay Landlord, as
"Additional Rent", one-twelfth (1/12th) of such excess each month thereafter,
beginning with the next installment of rent due, until such time as Landlord
issues a revised Estimate Statement or the Estimate Statement for the succeeding
calendar year; except that, concurrently with the regular monthly rent payment
next due following the receipt of each such Estimate Statement, Tenant agrees to
pay Landlord an amount equal to one monthly installment of such excess (less any
applicable Operating Expenses already paid) multiplied by the number of months
from January, in the current calendar year, to the month of such rent payment
next due, all months inclusive. If at any time during the Term of this Lease,
but not more often than quarterly, Landlord reasonably determines that Tenant's
Percentage of Operating Expenses for the current calendar year will be greater
than the amount set forth in the then current Estimate Statement, Landlord may
issue a revised Estimate Statement and Tenant agrees to pay Landlord, within
thirty (30) days of receipt of the revised Estimate Statement, the difference
between the amount owed by Tenant under such revised Estimate Statement and the
amount owed by Tenant under the original Estimate Statement for the portion of
the then current calendar year which has expired. Thereafter Tenant agrees to
pay Tenant's Percentage of Operating Expenses based on such revised Estimate
Statement until Tenant receives the next calendar year's Estimate Statement or a
new revised Estimate Statement for the current calendar year. In the event
Tenant's Percentage of Operating Expenses for any calendar year is less than
Tenant's Operating Expense Allowance, Tenant will not be entitled to a credit
against any rent, additional rent or Tenant's Percentage of future Operating
Expenses payable hereunder.
(c) ACTUAL STATEMENT. By March 1st of each calendar year during the Term of this
Lease (commencing March 1 in the calendar year following the base year for
Operating Expenses, if applicable), Landlord will also endeavor to deliver to
Tenant a statement ("Actual Statement") which states the actual Operating
Expenses for the preceding calendar year. If the Actual Statement reveals that
Tenant's Percentage of the actual Operating Expenses is more than the total
Additional Rent paid by Tenant for Operating Expenses on account of the
preceding calendar year, Tenant agrees to pay Landlord the difference in a lump
sum within thirty (30) days of receipt of the Actual Statement. If the Actual
Statement reveals that Tenant's Percentage of the actual Operating Expenses is
less than the Additional Rent paid by Tenant for Operating Expenses on account
of the preceding calendar year, Landlord will credit any overpayment toward the
next monthly installment(s) of Tenant's Percentage of the Operating Expenses due
under this Lease (or in the event this Lease has terminated, Landlord shall
promptly reimburse Tenant in the amount such overpayment).
(d) MISCELLANEOUS. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Paragraph 6 will not constitute a
waiver of its right to require an increase in rent nor will it relieve Tenant of
its obligations pursuant to this Paragraph 6, except that Tenant will not be
obligated to make any payments based on such Estimate Statement or Actual
Statement until thirty (30) days after receipt of such Estimate Statement or
Actual Statement. Even though the Term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage of the
actual Operating Expenses for the year in which this Lease terminates, Tenant
agrees to promptly pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease shall
promptly be rebated by Landlord to Tenant. Such obligation accruing prior to the
expiration or earlier termination of this Lease will be a continuing one which
will survive the expiration or earlier termination of this Lease. Prior to the
expiration or sooner termination of the Lease Term and Landlord's acceptance of
Tenant's surrender of the Premises, Landlord will have the right to estimate the
actual Operating Expenses for the then current Lease Year and to collect from
Tenant prior to Tenant's surrender of the Premises, Tenant's Percentage of any
excess of such actual Operating Expenses over the estimated Operating Expenses
paid by Tenant in such Lease Year.
(e) TENANT'S REVIEW RIGHTS. Upon Tenant's written request given not more than
ninety (90) days after Tenant's receipt of an Actual Statement for a particular
calendar year, and provided that (i) Tenant is not
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then in default under this Lease beyond any applicable cure period and (ii)
Tenant has paid all amounts required to be paid under such Actual Statement,
then Tenant and its representatives shall have the right to review and/or audit
Landlord's books and records relating to the Operating Expenses reflected on
such Actual Statement, provided that any accounting firm engaged by Tenant to
perform such review and/or audit may not be retained on a contingency fee basis.
If as the result of such review and/or audit Tenant disputes the amount of
Operating Expenses for the calendar year under inspection, Landlord and Tenant
shall meet and attempt in good faith to resolve the dispute. If the parties are
unable to resolve the dispute within sixty (60) days after completion of such
review and/or audit, then Tenant shall have the right to submit the dispute to
arbitration, which right shall be exercised, if at all, by delivering a notice
of election to arbitrate to Landlord not later than the last day of said sixty
(60) day period. Landlord and Tenant shall agree, within fifteen (15) days after
Tenant's delivery of the arbitration election, to retain an arbitrator who shall
be an unaffiliated, reputable certified public accountant who is a member of a
reputable independent nationally or regionally recognized certified public
accounting firm, and who has had at least five (5) years of experience in
reviewing financial operating records of landlords of office buildings. The
arbitration shall be limited to the determination of the appropriate amount of
Operating Expenses, as relevant to the subject of the dispute, for the calendar
year under review. The decision of the arbitrator shall be delivered
simultaneously to Landlord and Tenant, and shall be final and binding upon
Landlord and Tenant. If the arbitrator determines that the amount of operating
expenses billed to Tenant was incorrect, the appropriate party shall pay to the
other party the deficiency or overpayment, as applicable, within thirty (30)
days following delivery of the arbitrator's decision, without interest. All
costs and expenses of the arbitration shall be paid by Tenant unless the final
determination in such arbitration is that Landlord overstated operating expenses
for the applicable calendar year by more than five percent (5%) of the
originally reported Operating Expenses, in which case Landlord shall pay all
costs and expenses of the arbitration. Tenant shall keep any information gained
from its review and/or audit of Landlord's books and records confidential and
shall not disclose such information to any other party, except as required by
law.
7. [INTENTIONALLY DELETED]
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the use or uses
set forth in Subparagraph 1(r) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Nothing in this Lease will be deemed to give Tenant any exclusive
right to such use in the Building or the Development.
(b) COMPLIANCE. At Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental licenses
and permits required for the proper and lawful conduct of Tenant's business from
the Premises, if any. Tenant agrees not to use, alter or occupy the Premises or
allow the Premises to be used, altered or occupied in violation of, and Tenant,
at its sole cost and expense, agrees to use and occupy the Premises and cause
the Premises to be used and occupied in compliance with: (i) any and all laws,
statutes, zoning restrictions, ordinances, rules, regulations, orders and
rulings now or hereafter in force and any requirements of any insurer, insurance
authority or duly constituted public authority having jurisdiction over the
Premises, the Building or the Development now or hereafter in force
(collectively, "Applicable Laws"), provided that Tenant shall not be required to
make any alterations to the Premises to comply with any applicable laws, except
to the extent required because of Tenant's specific use of the Premises (other
than general office use) or unless triggered by Tenant's alteration of the
Premises, (ii) the requirements of the Board of Fire Underwriters and any other
similar body, (iii) the Certificate of Occupancy issued for the Building, and
(iv) any recorded covenants, conditions and restrictions and similar regulatory
agreements, if any, which affect the use, occupation or alteration of the
Premises, the Building and/or the Development. Tenant agrees to comply with the
Rules and Regulations referenced in Paragraph 28 below. Tenant agrees not to do
or permit anything to be done in or about the Premises which will in any manner
obstruct or interfere with the rights of other tenants or occupants of the
Development, or injure or unreasonably annoy them, or use or allow the Premises
to be used for any unlawful or unreasonably objectionable purpose. Tenant agrees
not to cause, maintain or permit any nuisance or waste in, on, under or about
the Premises or elsewhere within the Development. Notwithstanding anything
contained in this Lease to the contrary, all transferable development rights
related in any way to that portion of the Development owned by Landlord are and
will remain vested in Landlord, and Tenant hereby waives any rights thereto.
(c) HAZARDOUS MATERIALS. Except for ordinary and general office supplies
typically used in the ordinary course of business within office buildings, such
as copier toner, liquid paper, glue, ink and common household cleaning materials
(some or all of which may constitute "Hazardous Materials" as defined in this
Lease), Tenant agrees not to cause or permit any Hazardous Materials to be
brought upon, stored, used, handled, generated, released or disposed of on, in,
under or about the Premises, the Building, the Common Areas or any other portion
of the Development by Tenant, its agents, employees, subtenants, assignees,
licensees, contractors or invitees (collectively, "Tenant's Parties"), without
the prior written consent of Landlord, which consent Landlord may withhold in
its sole and absolute discretion. Upon the expiration or earlier termination of
this Lease, Tenant agrees to promptly remove from the Premises, the Building and
the Development, at its sole cost and expense, any and all Hazardous Materials,
including any equipment or systems containing Hazardous Materials which are
installed, brought upon, stored, used, generated or released upon, in, under or
about the Premises, the Building and/or the Development or any portion thereof
by Tenant or any of Tenant's Parties. To the fullest extent permitted by law,
Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord
and Landlord's partners,
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officers, directors, employees, agents, successors and assigns (collectively,
"Landlord Indemnified Parties") from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including, without limitation, clean-up, removal,
remediation and restoration costs, sums paid in settlement of claims, attorneys'
fees, consultant fees and expert fees and court costs) which arise or result
from the presence of Hazardous Materials on, in, under or about the Premises,
the Building or any other portion of the Development and which are caused or
permitted by Tenant or any of Tenant's Parties. Tenant agrees to promptly notify
Landlord of any release of Hazardous Materials at the Premises, the Building or
any other portion of the Development which Tenant becomes aware of during the
Term of this Lease, whether caused by Tenant or any other persons or entities.
In the event of any release of Hazardous Materials caused or permitted by Tenant
or any of Tenant's Parties, Landlord shall have the right, but not the
obligation, to cause Tenant to immediately take all steps Landlord deems
necessary or appropriate to remediate such release and prevent any similar
future release to the satisfaction of Landlord and Landlord's mortgagee(s). As
used in this Lease, the term "Hazardous Materials" shall mean and include any
chemical, substance, material, controlled substance, object, condition, waste,
living organism or combination thereof, whether solid, semi-solid, liquid or
gaseous, which is or may be hazardous to human health or safety or to the
environment due to its radioactivity, ignitability, corrosivity, reactivity,
explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity,
infectiousness or other harmful or potentially harmful properties or effects,
including, without limitation, tobacco smoke, petroleum and petroleum products,
asbestos, radon, polychlorinated biphenyls (PCBs), refrigerants (including those
substances defined in the Environmental Protection Agency's "Refrigerant
Recycling Rule," as amended from time to time) and all of those chemicals,
substances, materials, controlled substances, objects, conditions, wastes,
living organisms or combinations thereof which are now or become in the future
listed, defined or regulated in any manner by any Environmental Law based upon,
directly or indirectly, such properties or effects. As used herein,
"Environmental Laws" means any and all federal, state or local environmental,
health and/or safety-related laws, regulations, standards, decisions of courts,
ordinances, rules, codes, orders, decrees, directives, guidelines, permits or
permit conditions, currently existing and as amended, enacted, issued or adopted
in the future which are or become applicable to Tenant, the Premises or the
Development. The provisions of this Subparagraph 8(c) shall survive the
expiration of earlier termination of this lease.
(d) To the current actual knowledge of Landlord, (a) no Hazardous Material is
present on the Development or the soil, surface water or groundwater thereof,
(b) no underground storage tanks are present on the Development, and (c) no
action, proceeding or claim is pending or threatened regarding the Development
concerning any Hazardous Material or pursuant to any environmental law. As used
herein, the "current actual knowledge of Landlord" shall mean the current actual
knowledge of Michael G. Parker. Tenant shall have the right to review all
environmental reports concerning the Development at Landlord's office at any
time during regular business hours upon reasonable prior notice.
9. NOTICES. Any notice required or permitted to be given hereunder must be
in writing and may be given by personal delivery (including delivery by
overnight courier or an express mailing service) or by mail, if sent by
registered or certified mail. Notices to Tenant shall be sufficient if delivered
to Tenant at the address designated in Subparagraph 1(d) and notices to Landlord
shall be sufficient if delivered to Landlord at the address designated in
Subparagraph 1(b). Either party may specify a different address for notice
purposes by written notice to the other, except that the Landlord may in any
event use the Premises as Tenant's address for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(u). Each party represents and warrants to the
other, that, to its knowledge, no other broker, agent or finder (a) negotiated
or was instrumental in negotiating or consummating this Lease on its behalf, and
(b) is or might be entitled to a commission or compensation in connection with
this Lease. Landlord and Tenant each agree to promptly indemnify, protect,
defend and hold harmless the other from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including attorneys' fees and court costs) resulting from
any breach by the indemnifying party of the foregoing representation, including,
without limitation, any claims that may be asserted by any broker, agent or
finder undisclosed by the indemnifying party. The foregoing mutual indemnity
shall survive the expiration or earlier termination of this Lease.
11. SURRENDER; HOLDING OVER.
(a) SURRENDER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at the
option of Landlord, operate as an assignment to Landlord of any or all subleases
or subtenancies. Upon the expiration or earlier termination of this Lease,
Tenant agrees to peaceably surrender the Premises to Landlord broom clean and in
a state of first-class order, repair and condition, ordinary wear and tear and
casualty damage (if this Lease is terminated as a result thereof pursuant to
Paragraph 20) excepted, with all of Tenant's personal property and Alterations
(as defined in Paragraph 13) removed from the Premises to the extent required
under Paragraph 13 and all damage caused by such removal repaired as required by
Paragraph 13. In addition, unless otherwise agreed to in writing by Landlord,
upon the expiration or earlier termination of this Lease, Tenant shall, at
Tenant's sole cost and expense, (i) remove all computer and telephone wiring and
cabling installed in the Premises by or for Tenant and (ii) repair any damage
caused by such removal. If any such wiring and/or cabling is not so removed
pursuant to this Subparagraph 11(a), then at Landlord's option, either such
wiring and/or cabling shall become the property of Landlord (without payment by
Landlord) or Landlord may remove such wiring and/or cabling at Tenant's expense
(without limiting Landlord's other remedies available under this Lease or
applicable law). Prior to the date Tenant is to actually surrender the
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Premises to Landlord, Tenant agrees to give Landlord reasonable prior notice of
the exact date Tenant will surrender the Premises so that Landlord and Tenant
can schedule a walk-through of the Premises to review the condition of the
Premises and identify the Alterations and personal property which are to remain
upon the Premises and which items Tenant is to remove pursuant to Paragraph 13,
as well as any repairs Tenant is to make upon surrender of the Premises. The
delivery of keys to any employee of Landlord or to Landlord's agent or any
employee thereof alone will not be sufficient to constitute a termination of
this Lease or a surrender of the Premises.
(b) HOLDING OVER. Tenant will not be permitted to hold over possession of the
Premises after the expiration or earlier termination of the Term without the
express written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion. If Tenant holds over after the expiration or
earlier termination of the Term, Landlord may, at its option, treat Tenant as a
tenant at sufferance only, and such continued occupancy by Tenant shall be
subject to all of the terms, covenants and conditions of this Lease, so far as
applicable, except that the Monthly Base Rent for any such holdover period shall
be equal to the greater of (i)(A) for the first fifteen (15) days of holdover,
the Monthly Base Rent in effect under this Lease immediately prior to such
holdover, and (B) thereafter, two hundred percent (200%) of the Monthly Base
Rent in effect under this Lease immediately prior to such holdover, or (ii) the
then currently scheduled rental rate for comparable space in the Building, in
either event prorated on a monthly basis. Acceptance by Landlord of rent after
such expiration or earlier termination will not result in a renewal of this
Lease. The foregoing provisions of this Paragraph 11 are in addition to and do
not affect Landlord's right of re-entry or any rights of Landlord under this
Lease or as otherwise provided by law. If Tenant fails to surrender the Premises
upon the expiration of this Lease in accordance with the terms of this Paragraph
11 despite demand to do so by Landlord, Tenant agrees to promptly indemnify,
protect, defend and hold Landlord harmless from all claims, damages, judgments,
suits, causes of action, losses, liabilities, penalties, fines, expenses and
costs (including attorneys' fees and costs), including, without limitation,
costs and expenses incurred by Landlord in returning the Premises to the
condition in which Tenant was to surrender it and claims made by any succeeding
tenant founded on or resulting from Tenant's failure to surrender the Premises.
The provisions of this Subparagraph 11(b) will survive the expiration or earlier
termination of this Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency,
all taxes and assessments (real and personal) levied against (a) any personal
property or trade fixtures placed by Tenant in or about the Premises (including
any increase in the assessed value of the Premises based upon the value of any
such personal property or trade fixtures); and (b) any Tenant Improvements or
Alterations in the Premises (whether installed and/or paid for by Landlord or
Tenant) to the extent such items are assessed at a valuation higher than the
valuation at which tenant improvements conforming to Landlord's building
standard tenant improvements are assessed. If any such taxes or assessments are
levied against Landlord or Landlord's property, Landlord may, after written
notice to Tenant (and under proper protest if requested by Tenant) pay such
taxes and assessments, in which event Tenant agrees to reimburse Landlord all
amounts paid by Landlord within ten (10) business days after demand by Landlord;
provided, however, Tenant, at its sole cost and expense, will have the right,
with Landlord's cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes and assessments so paid
under protest.
13. ALTERATIONS. After installation of the initial Tenant Improvements for
the Premises pursuant to EXHIBIT "C", Tenant may, at its sole cost and expense,
make alterations, additions, improvements and decorations (including, without
limitation, wall coverings, window coverings, floor coverings and other
finishes) to the Premises (collectively, "Alterations") subject to and upon the
following terms and conditions:
(a) PROHIBITED ALTERATIONS. Tenant may not make any Alterations which: (i)
affect any area outside the Premises; (ii) affect the Building's structure,
equipment, services or systems, or the proper functioning thereof, or Landlord's
access thereto; (iii) affect the outside appearance, character or use of the
Building or the Building Common Areas; (iv) in the reasonable opinion of
Landlord, lessen the value of the Building; (v) will violate or require a change
in any occupancy certificate applicable to the Premises; or (vi) will not comply
with Landlord's then current Building Standard Criteria, which Tenant may review
at the Project management office during its normal business hours.
(b) LANDLORD'S APPROVAL. Before proceeding with any Alterations which are not
prohibited in Subparagraph 13(a) above, Tenant must first obtain Landlord's
written approval of the plans, specifications and working drawings for such
Alterations, which approval Landlord will not unreasonably withhold or delay;
provided, however, Landlord's prior approval will not be required for any such
Alterations which are not prohibited by Subparagraph 13(a) above and which cost
less than Ten Thousand Dollars ($10,000) as long as (i) Tenant delivers to
Landlord notice and a copy of any final plans, specifications and working
drawings for any such Alterations at least ten (10) days prior to commencement
of the work thereof, and (ii) the other conditions of this Paragraph 13 are
satisfied, including, without limitation, conforming to Landlord's rules,
regulations and insurance requirements which govern contractors. Landlord's
approval of plans, specifications and/or working drawings for Alterations will
not create any responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with applicable permits, laws,
rules and regulations of governmental agencies or authorities. If specifically
requested by Tenant at the time Tenant requests Landlord's consent to the
initial Tenant Improvements and to any subsequent Alterations, Landlord shall
advise Tenant as to whether or not Tenant shall be obligated to remove such
initial Tenant Improvements and/or Alterations at the expiration or earlier
termination of the Term.
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(c) CONTRACTORS. Alterations may be made or installed only by contractors and
subcontractors which have been approved by Landlord, which approval Landlord
will not unreasonably withhold or delay; provided, however, Landlord reserves
the right to require that Landlord's contractor for the Building be given the
first opportunity to bid for any Alteration work. Before proceeding with any
Alterations, Tenant agrees to provide Landlord with ten (10) days prior written
notice and Tenant's contractors must obtain and maintain, on behalf of Tenant
and at Tenant's sole cost and expense: (i) all necessary governmental permits
and approvals for the commencement and completion of such Alterations; and (ii)
if requested by Landlord, a completion and lien indemnity bond, or other surety,
reasonably satisfactory to Landlord for any such Alterations in excess of One
Hundred Thousand Dollars ($100,000) per project. Throughout the performance of
any Alterations, Tenant agrees to obtain, or cause its contractors to obtain,
workers compensation insurance and general liability insurance in compliance
with the provisions of Paragraph 19 of this Lease.
(d) MANNER OF PERFORMANCE. All Alterations must be performed: (i) in accordance
with the approved plans, specifications and working drawings; (ii) in a
lien-free and first-class and workmanlike manner; (iii) in compliance with all
applicable permits, laws, statutes, ordinances, rules, regulations, orders and
rulings now or hereafter in effect and imposed by any governmental agencies and
authorities which assert jurisdiction; (iv) in such a manner so as not to
interfere with the occupancy of any other tenant in the Building, nor impose any
additional expense upon nor delay Landlord in the maintenance and operation of
the Building; and (v) at such times, in such manner, and subject to such rules
and regulations as Landlord may from time to time reasonably designate.
(e) OWNERSHIP. The Tenant Improvements, including, without limitation, all
affixed sinks, dishwashers, microwave ovens and other fixtures, to the extent
paid for with the Allowance (as defined in the Work Letter Agreement), will
become the property of Landlord immediately upon installation, and that portion
of the Tenant Improvements paid for by Tenant and all Alterations paid for by
Tenant will become the property of Landlord at the end of the Term. Landlord
acknowledges that Tenant shall be entitled to any tax depreciation benefits
accruing during the Term with respect to that portion of the Tenant Improvements
paid for by Tenant and all Alterations paid for by Tenant. All of the Tenant
Improvements and all Alterations will remain upon and be surrendered with the
Premises at the end of the Term of this Lease; provided, however, Landlord may,
by written notice delivered to Tenant concurrently with Landlord's approval of
the final working drawings for any Alterations, identify those Alterations which
Landlord will require Tenant to remove at the end of the Term of this Lease.
Landlord may also require Tenant to remove Alterations which Landlord did not
have the opportunity to approve as provided in this Paragraph 13. If Landlord
requires Tenant to remove any Alterations, Tenant, at its sole cost and expense,
agrees to remove the identified Alterations on or before the expiration or
earlier termination of this Lease and repair any damage to the Premises caused
by such removal (or, at Landlord's option, Tenant agrees to pay to Landlord all
of Landlord's costs of such removal and repair).
(f) PLAN REVIEW. Tenant agrees to pay Landlord, as additional rent, the
reasonable costs of professional services and costs for general conditions of
Landlord's third party consultants if utilized by Landlord (but not Landlord's
"in-house" personnel) for review of all plans, specifications and working
drawings for any Alterations, within ten (10) business days after Tenant's
receipt of invoices either from Landlord or such consultants.
(g) PERSONAL PROPERTY. All articles of personal property owned by Tenant or
installed by Tenant at its expense in the Premises (including Tenant's business
and trade fixtures, furniture, movable partitions and equipment [such as
telephones, copy machines, computer terminals, refrigerators and facsimile
machines]) will be and remain the property of Tenant, and must be removed by
Tenant from the Premises, at Tenant's sole cost and expense, on or before the
expiration or earlier termination of this Lease. Tenant agrees to repair any
damage caused by such removal at its cost on or before the expiration or earlier
termination of this Lease.
(h) REMOVAL OF ALTERATIONS. If Tenant fails to remove, within fifteen (15) days
after the expiration or earlier termination of this Lease, all of its personal
property, or any Alterations identified by Landlord for removal pursuant to
Subparagraph 13(e) above, Landlord may, at its option, treat such failure as a
hold-over pursuant to Subparagraph 11(b) above, and/or Landlord may (without
liability to Tenant for loss thereof) treat such personal property and/or
Alterations as abandoned and, at Tenant's sole cost and expense, and in addition
to Landlord's other rights and remedies under this Lease, at law or in equity:
(a) remove and store such items; and/or (b) upon ten (10) days prior notice to
Tenant, sell, discard or otherwise dispose of all or any such items at private
or public sale for such price as Landlord may obtain or by other commercially
reasonable means. Tenant shall be liable for all costs of disposition of
Tenant's abandoned property and Landlord shall have no liability to Tenant with
respect to any such abandoned property. Landlord agrees to apply the proceeds of
any sale of any such property to any amounts due to Landlord under this Lease
from Tenant (including Landlord's attorneys' fees and other costs incurred in
the removal, storage and/or sale of such items), with any remainder to be paid
to Tenant.
(i) UNION LABOR. Reference is hereby made to Paragraph 40 of this Lease, which
relates to Tenant's use of union labor.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to repair and maintain the
structural portions of the Building, the roof, exterior walls and the plumbing,
heating, ventilating, air conditioning, elevator and
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electrical systems installed or furnished by Landlord, unless such maintenance
and repairs are (i) attributable to items installed in Tenant's Premises which
are above standard interior improvements (such as, for example, custom lighting,
special HVAC and/or electrical panels or systems, kitchen or restroom facilities
and appliances constructed or installed within Tenant's Premises) or (ii) caused
in part or in whole by the act, neglect or omission of any duty by Tenant, its
agents, servants, employees or invitees, in which case Tenant will pay to
Landlord, as additional rent, the reasonable cost of such maintenance and
repairs. Landlord will not be liable for any failure to make any such repairs or
to perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Except as provided in Paragraph 20, Tenant will not be
entitled to any abatement of rent and Landlord will not have any liability by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building or the Premises or in or to fixtures, appurtenances and equipment
therein. Tenant waives the right to make repairs at Landlord's expense under any
law, statute, ordinance, rule, regulation, order or ruling (including, without
limitation, to the extent the Premises are located in California, the provisions
of California Civil Code Sections 1941 and 1942 and any successor statutes or
laws of a similar nature).
(b) TENANT'S OBLIGATIONS. Tenant agrees to keep, maintain and preserve the
Premises in first class condition and repair and, when and if needed, at
Tenant's sole cost and expense, to make all repairs to the Premises and every
part thereof. Any such maintenance and repairs will be performed by Landlord's
contractor, or at Landlord's option, by such contractor or contractors as Tenant
may choose from an approved list to be submitted by Landlord. Tenant agrees to
pay all costs and expenses incurred in such maintenance and repair within seven
(7) days after billing by Landlord or such contractor or contractors. Tenant
agrees to cause any mechanics' liens or other liens arising as a result of work
performed by Tenant or at Tenant's direction to be eliminated as provided in
Paragraph 15 below. Except as provided in Subparagraph 14(a) above, Landlord has
no obligation to alter, remodel, improve, repair, decorate or paint the Premises
or any part thereof.
(c) TENANT'S FAILURE TO REPAIR. If Tenant refuses or neglects to repair and
maintain the Premises properly as required hereunder to the reasonable
satisfaction of Landlord, Landlord, at any time following ten (10) days from the
date on which Landlord makes a written demand on Tenant to effect such repair
and maintenance, may enter upon the Premises and make such repairs and/or
maintenance, and upon completion thereof, Tenant agrees to pay to Landlord as
additional rent, Landlord's costs for making such repairs plus an amount not to
exceed ten percent (10%) of such costs for overhead, within ten (10) days of
receipt from Landlord of a written itemized bill therefor. Any amounts not
reimbursed by Tenant within such ten (10) day period will bear interest at the
Interest Rate until paid by Tenant.
(d) UNION LABOR. Reference is hereby made to Paragraph 40 of this Lease, which
relates to Tenant's use of union labor.
(e) TENANT'S SELF-HELP RIGHT. In the event Landlord fails to commence the repair
of the Premises as required by Subparagraph 14(a), which failure to commence the
repair(s) continues at the end of thirty (30) days following Landlord's receipt
of written notice from Tenant stating with particularity the nature of the
failure (a "Repair Action") (except in the event of an emergency, in which case
no prior notice from Tenant is required), then, provided Tenant has delivered an
additional five (5) business days' notice to Landlord specifying in 12 point
boldface type on page one of such letter the following, "YOUR FAILURE TO
COMMENCE THE CURE OF THE REPAIR ACTION SET FORTH IN THIS NOTICE WITHIN FIVE (5)
BUSINESS DAYS SHALL ENTITLE THE UNDERSIGNED TO REPAIR SUCH ITEM AT LANDLORD'S
EXPENSE WITHOUT FURTHER NOTICE," and Landlord has failed to commence the Repair
Action within such five (5) business day period, then Tenant may proceed with
taking such Repair Action (provided, however, that such additional five (5)
business day notice shall not be required in the event of an emergency situation
that poses an imminent and significant risk of injury to persons or material
damage to property). Notwithstanding the foregoing, (i) under no circumstances
shall Tenant be entitled to perform any repairs to the Building systems outside
the Premises, the roof or the Building structure, and (ii) unless the Repair
Action is necessary to address a situation that poses an imminent and
significant risk of injury to persons or material damage to property, Tenant may
not take such Repair Action if Landlord notifies Tenant within such five (5)
business day period that Landlord prohibits Tenant from taking such Repair
Action. If Landlord believes that Landlord is not required to take such Repair
Action, then Landlord shall so notify Tenant within such five (5) business day
period. In the event Tenant takes such Repair Action, Tenant shall use those
contractors used by Landlord in the construction of the Building for the
applicable required work unless such contractors are unwilling or unable to
perform, or timely perform, such work, in which event Tenant may utilize the
services of any other qualified, licensed and bondable contractor which normally
and regularly performs similar work on first-class office buildings. If Landlord
does not deliver a detailed written objection to Tenant within fifteen (15) days
after receipt of an invoice by Tenant of its costs of taking action which Tenant
claims should have been taken by Landlord (the "Tenant Invoice"), and if such
Tenant Invoice sets forth a reasonably particularized breakdown of its costs and
expenses in connection with taking such Repair Action, then Tenant shall be
entitled to reimbursement from Landlord for the amount set forth in such Tenant
Invoice. If, however, Landlord delivers to Tenant, within fifteen (15) days
after receipt of the Tenant Invoice, a written objection to the payment of such
Tenant Invoice, setting forth with reasonable particularity Landlord's reasons
for its claim that the charges are excessive (in which case Landlord shall pay
the amount it contends would not have been excessive), then Tenant shall not be
entitled to such reimbursement, but as Tenant's sole remedy, Tenant may proceed
to institute legal proceedings against Landlord to determine and collect the
amount, if any, of such reimbursement. Tenant shall comply with the other terms
and provisions of this
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Lease if Tenant takes the Repair Action, except that Tenant is not required to
obtain Landlord's consent for such repairs.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or
other liens to be filed against all or any part of the Development, the Building
or the Premises, nor against Tenant's leasehold interest in the Premises, by
reason of or in connection with any repairs, alterations, improvements or other
work contracted for or undertaken by Tenant or any other act or omission of
Tenant or Tenant's agents, employees, contractors, licensees or invitees. At
Landlord's request, Tenant agrees to provide Landlord with enforceable,
conditional and final lien releases (or other evidence reasonably requested by
Landlord to demonstrate protection from liens) from all persons furnishing labor
and/or materials at the Premises. Landlord will have the right at all reasonable
times to post on the Premises and record any notices of non-responsibility which
it deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sole cost, promptly cause such liens to be released of
record or bonded so that it no longer affects title to the Development, the
Building or the Premises. If Tenant fails to cause any such liens to be so
released or bonded within ten (10) days after filing thereof, such failure will
be deemed a material breach by Tenant under this Lease without the benefit of
any additional notice or cure period described in Paragraph 22 below, and
Landlord may, without waiving its rights and remedies based on such breach, and
without releasing Tenant from any of its obligations, cause such liens to be
released by any means it shall deem proper, including payment in satisfaction of
the claims giving rise to such liens. Tenant agrees to pay to Landlord within
ten (10) days after receipt of invoice from Landlord, any sum paid by Landlord
to remove such liens, together with interest at the Interest Rate from the date
of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all
times have the right to enter the Premises to inspect the same, to supply
janitorial service and any other service to be provided by Landlord to Tenant
hereunder, to show the Premises to prospective purchasers or tenants, to post
notices of nonresponsibility, and/or to repair the Premises as permitted or
required by this Lease. In exercising such entry rights, Landlord will endeavor
to minimize, as reasonably practicable, the interference with Tenant's business,
and will provide Tenant with reasonable advance notice of any such entry (except
in emergency situations). Landlord may, in order to carry out such purposes,
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed. Landlord will at all times have and
retain a key with which to unlock all doors in the Premises, excluding Tenant's
vaults and safes and excluding Tenant's clinical trial data room. Landlord will
have the right to use any and all means which Landlord may reasonably deem
proper to open said doors in an emergency in order to obtain entry to the
Premises. Any entry to the Premises obtained by Landlord by any of said means,
or otherwise, will not be construed or deemed to be a forcible or unlawful entry
into the Premises, or an eviction of Tenant from the Premises. Landlord will not
be liable to Tenant for any damages or losses for any entry by Landlord.
Notwithstanding the foregoing, any entry of the Premises by Landlord shall be
upon at least twenty-four (24) hours' prior notice (except in the event of an
emergency) and shall be subject to Tenant's reasonable security measures.
Landlord shall not show the Premises to prospective tenants except during the
last year of the Term.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease so long as the
Premises are occupied, Landlord agrees to furnish or cause to be furnished to
the Premises the utilities and services described in the Standards for Utilities
and Services attached hereto as EXHIBIT "F", subject to the conditions and in
accordance with the standards set forth therein. Landlord may require Tenant
from time to time to provide Landlord with a list of Tenant's employees and/or
agents which are authorized by Tenant to subscribe on behalf of Tenant for any
additional services which may be provided by Landlord. Any such additional
services will be provided to Tenant at Tenant's cost. Except to the extent of
the gross negligence or willful misconduct of Landlord or its agents or
contractors, Landlord will not be liable to Tenant for any failure to furnish
any of the foregoing utilities and services if such failure is caused by all or
any of the following: (i) accident, breakage or repairs; (ii) strikes, lockouts
or other labor disturbance or labor dispute of any character; (iii) governmental
regulation, moratorium or other governmental action or inaction; (iv) inability
despite the exercise of reasonable diligence to obtain electricity, water or
fuel; or (v) any other cause beyond Landlord's reasonable control. In addition,
in the event of any stoppage or interruption of services or utilities, Tenant
shall not be entitled to any abatement or reduction of rent (except as expressly
provided in Subparagraphs 20(f) or 21(b) if such failure results from a damage
or taking described therein), no eviction of Tenant will result from such
failure and Tenant will not be relieved from the performance of any covenant or
agreement in this Lease because of such failure. In the event of any failure,
stoppage or interruption thereof, Landlord agrees to diligently attempt to
resume service promptly. If Tenant requires or utilizes more water or electrical
power than set forth in EXHIBIT "F" as reasonably determined by Landlord,
Landlord may at its option require Tenant to pay, as additional rent, the cost,
as fairly determined by Landlord, incurred by such extraordinary usage and/or
Landlord may install separate meter(s) for the Premises, at Tenant's sole
expense, and Tenant agrees thereafter to pay all charges of the utility
providing service and Landlord will make an appropriate adjustment to Tenant's
Operating Expenses calculation to account for the fact Tenant is directly paying
such metered charges, provided Tenant will remain obligated to pay its
proportionate share of Operating Expenses subject to such adjustment.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) ASSUMPTION OF RISK. Tenant, as a material part of the consideration to
Landlord, hereby agrees that except to the extent of the gross negligence or
willful misconduct of Landlord or its agents or contractors, neither Landlord
nor any Landlord Indemnified Parties (as defined in Subparagraph 8(c) above)
will be
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liable to Tenant for, and Tenant expressly assumes the risk of and waives any
and all claims it may have against Landlord or any Landlord Indemnified Parties
with respect to, (i) any and all damage to property or injury to persons in,
upon or about the Premises, the Building or the Development resulting from any
act or omission (except for the grossly negligent or intentionally wrongful act
or omission) of Landlord, (ii) any such damage caused by other tenants or
persons in or about the Building or the Development, or caused by quasi-public
work, (iii) any damage to property entrusted to employees of the Building, (iv)
any loss of or damage to property by theft or otherwise, or (v) any injury or
damage to persons or property resulting from any casualty, explosion, falling
plaster or other masonry or glass, steam, gas, electricity, water or rain which
may leak from any part of the Building or any other portion of the Development
or from the pipes, appliances or plumbing works therein or from the roof, street
or subsurface or from any other place, or resulting from dampness.
Notwithstanding anything to the contrary contained in this Lease, neither
Landlord nor any Landlord Indemnified Parties will be liable for consequential
damages arising out of any loss of the use of the Premises or any equipment or
facilities therein by Tenant or any Tenant Parties or for interference with
light or other incorporeal hereditaments. Tenant agrees to give prompt notice to
Landlord in case of fire or accidents in the Premises or the Building, or of
defects therein or in the fixtures or equipment.
(b) INDEMNIFICATION. Except to the extent of the gross negligence or willful
misconduct of Landlord or its agents or contractors, Tenant will be liable for,
and agrees, to the maximum extent permissible under applicable law, to promptly
indemnify, protect, defend and hold harmless Landlord and all Landlord
Indemnified Parties, from and against, any and all claims, damages, judgments,
suits, causes of action, losses, liabilities, penalties, fines, expenses and
costs, including attorneys' fees and court costs (collectively, "Indemnified
Claims"), arising or resulting from (i) any act or omission of Tenant or any
Tenant Parties (as defined in Subparagraph 8(c) above); (ii) the use of the
Premises and Common Areas and conduct of Tenant's business by Tenant or any
Tenant Parties, or any other activity, work or thing done, permitted or suffered
by Tenant or any Tenant Parties, in or about the Premises, the Building or
elsewhere within the Development; and/or (iii) any default by Tenant of any
obligations on Tenant's part to be performed under the terms of this Lease. In
case any action or proceeding is brought against Landlord or any Landlord
Indemnified Parties by reason of any such Indemnified Claims, Tenant, upon
notice from Landlord, agrees to promptly defend the same at Tenant's sole cost
and expense by counsel approved in writing by Landlord, which approval Landlord
will not unreasonably withhold.
(c) SURVIVAL; NO RELEASE OF INSURERS. Tenant's indemnification obligations under
Subparagraph 18(b) will survive the expiration or earlier termination of this
Lease. Tenant's covenants, agreements and indemnification obligation in
Subparagraphs 18(a) and 18(b) above, are not intended to and will not relieve
any insurance carrier of its obligations under policies required to be carried
by Tenant pursuant to the provisions of this Lease.
19. INSURANCE.
(a) TENANT'S INSURANCE. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type in the
Premises pursuant to this Lease (which may be prior to the Commencement Date),
and continuing throughout the entire Term hereof and any other period of
occupancy, Tenant agrees to keep in full force and effect, at its sole cost and
expense, the following insurance:
(i) "All Risks - Special Form" property insurance including at least the
following perils: fire and extended coverage, smoke damage, vandalism, malicious
mischief, sprinkler leakage (including earthquake sprinkler leakage). Subject to
Subparagraph 19(f) below, this insurance policy must be upon all property owned
by Tenant, for which Tenant is legally liable, or which is installed at Tenant's
expense, and which is located in the Building including, without limitation, any
Alterations, and all furniture, fittings, installations, fixtures and any other
personal property of Tenant, in an amount not less than the full replacement
cost thereof. If there is a dispute as to full replacement cost, the decision of
Landlord or any mortgagee of Landlord will be presumptive.
(ii) One (1) year insurance coverage for business interruption and loss of
income and extra expense insuring the same perils described in Subparagraph
19(a)(i) above, in such amounts as will reimburse Tenant for any direct or
indirect loss of earnings attributable to any such perils including prevention
of access to the Premises, Tenant's parking areas or the Building as a result of
any such perils.
(iii) Commercial General Liability Insurance or Comprehensive General
Liability Insurance (on an occurrence form, except for products liability)
insuring bodily injury, personal injury and property damage including the
following divisions and extensions of coverage: Premises and Operations; Owners
and Contractors protective; blanket contractual liability (including coverage
for Tenant's indemnity obligations under this Lease); products and completed
operations; and host liquor liability (if Tenant serves alcohol on the
Premises). Such insurance must have the following minimum limits of liability:
bodily injury, personal injury and property damage - $2,000,000 each occurrence,
$5,000,000 in the aggregate, provided that if liability coverage is provided by
a Commercial General Liability policy the general aggregate limit shall apply
separately and in total to this location only (per location general aggregate),
and provided further, such minimum limits of liability may be adjusted from year
to year to reflect increases in coverages as recommended by Landlord's insurance
carrier as being prudent and commercially reasonable for tenants of first class
office buildings comparable to the Building, rounded to the nearest five hundred
thousand dollars.
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(iv) Comprehensive Automobile Liability insuring bodily injury and property
damage arising from all owned, non-owned and hired vehicles, if any, with
minimum limits of liability of $1,000,000 per accident.
(v) Worker's Compensation as required by the laws of the State.
(vi) Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts, and for insurance risks against which, a prudent tenant would protect
itself, but only to the extent coverage for such risks and amounts are available
in the insurance market at commercially acceptable rates. Landlord makes no
representation that the limits of liability required to be carried by Tenant
under the terms of this Lease are adequate to protect Tenant's interests and
Tenant should obtain such additional insurance or increased liability limits as
Tenant deems appropriate.
(b) SUPPLEMENTAL TENANT INSURANCE REQUIREMENTS.
(i) All policies must be in a form reasonably satisfactory to Landlord and
issued by an insurer admitted to do business in the State.
(ii) All policies must be issued by insurers with a policyholder rating of
"A" and a financial rating of "X" in the most recent version of Best's Key
Rating Guide.
(iii) All policies must contain a requirement to notify Landlord (and
Landlord's partners, members and property manager and any mortgagees or ground
lessors of Landlord who are named as additional insureds, if any) in writing not
less than thirty (30) days prior to any material change, reduction in coverage,
cancellation or other termination thereof. Tenant agrees to deliver to Landlord,
as soon as practicable after placing the required insurance, but in any event
within the time frame specified in Subparagraph 19(a) above, certificate(s) of
insurance and/or if required by Landlord, certified copies of each policy
evidencing the existence of such insurance and Tenant's compliance with the
provisions of this Paragraph 19. Tenant agrees to cause replacement policies or
certificates to be delivered to Landlord not less than thirty (30) days prior to
the expiration of any such policy or policies. If any such initial or
replacement policies or certificates are not furnished within the time(s)
specified herein, Tenant will be deemed to be in material default under this
Lease without the benefit of any additional notice or cure period provided in
Subparagraph 22(a)(iii) below, and Landlord will have the right, but not the
obligation, to procure such insurance as Landlord deems necessary to protect
Landlord's interests at Tenant's expense. If Landlord obtains any insurance that
is the responsibility of Tenant under this Paragraph 19, Landlord agrees to
deliver to Tenant a written statement setting forth the cost of any such
insurance and showing in reasonable detail the manner in which it has been
computed and Tenant agrees to promptly reimburse Landlord for such costs as
additional rent.
(iv) General Liability and Automobile Liability policies under Subparagraphs
19(a)(iii) and (iv) must name Landlord and Landlord's partners, members and
property manager (and at Landlord's request, Landlord's mortgagees and ground
lessors of which Tenant has been informed in writing) as additional insureds and
must also contain a provision that the insurance afforded by such policy is
primary insurance and any insurance carried by Landlord and Landlord's property
manager or Landlord's mortgagees or ground lessors, if any, will be excess over
and non-contributing with Tenant's insurance.
(c) TENANT'S USE. Tenant will not keep, use, sell or offer for sale in or upon
the Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building or the Development Common Areas. If
Tenant's occupancy or business in, or on, the Premises, whether or not Landlord
has consented to the same, results in any increase in premiums for the insurance
periodically carried by Landlord with respect to the Building or the Development
Common Areas or results in the need for Landlord to maintain special or
additional insurance, Tenant agrees to pay Landlord the cost of any such
increase in premiums or special or additional coverage as additional rent within
ten (10) days after being billed therefor by Landlord. In determining whether
increased premiums are a result of Tenant's use of the Premises, a schedule
issued by the organization computing the insurance rate on the Building, the
Development Common Areas or the Tenant Improvements showing the various
components of such rate, will be conclusive evidence of the several items and
charges which make up such rate. Tenant agrees to promptly comply with all
reasonable requirements of the insurance authority or any present or future
insurer relating to the Premises.
(d) CANCELLATION OF LANDLORD'S POLICIES. If any of Landlord's insurance policies
are cancelled or cancellation is threatened or the coverage reduced or
threatened to be reduced in any way because of the use of the Premises or any
part thereof by Tenant or any assignee or subtenant of Tenant or by anyone
Tenant permits on the Premises and, if Tenant fails to remedy the condition
giving rise to such cancellation, threatened cancellation, reduction of
coverage, threatened reduction of coverage, increase in premiums, or threatened
increase in premiums, within forty-eight (48) hours after notice thereof, Tenant
will be deemed to be in material default of this Lease and Landlord may, at its
option, either terminate this Lease or enter upon the Premises and attempt to
remedy such condition, and Tenant shall promptly pay Landlord the reasonable
costs of such remedy as additional rent. If Landlord is unable, or elects not to
remedy such condition, then Landlord will have all of the remedies provided for
in this Lease in the event of a default by Tenant.
(e) WAIVER OF SUBROGATION. Notwithstanding anything to the contrary set forth in
this Lease, the parties hereto release each other and their respective agents,
employees, successors and assigns from all
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liability for damage to any property that is actually covered by property
insurance in force or which would normally be covered by full replacement value
"All Risks - Special Form" property insurance without regard to the negligence
or willful misconduct of the entity so released. Landlord's and Tenant's
property insurance shall each contain a clause whereby the insurer waives all
rights of recovery by way of subrogation against the other party. Tenant shall
also obtain and furnish evidence to Landlord of the waiver by Tenant's worker's
compensation insurance carrier of all rights of recovery by way of subrogation
against Landlord.
(f) LANDLORD'S INSURANCE. Landlord shall maintain such insurance with respect to
the Building as may be required by the holder of the first priority deed of
trust or mortgage on the Building or, if there is no deed of trust or mortgage
on the Building, then such insurance as would reasonably be required by a lender
with a first priority deed of trust or mortgage on the Building. In addition,
Landlord shall maintain "All Risks - Special Form" property insurance on the
Tenant Improvements constructed pursuant to the Work Letter Agreement and all
Alterations of which Landlord has been given at least thirty (30) days' prior
notice in an amount not less than the full replacement cost thereof. If there is
a dispute as to full replacement cost, the decision of Landlord or any mortgagee
of Landlord will be presumptive.
20. DAMAGE OR DESTRUCTION.
(a) PARTIAL DESTRUCTION. If the Premises or the Building are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost of the Building, and Landlord's contractor reasonably estimates
in a writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred eighty (180) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration, then Landlord agrees to
commence and proceed diligently with the work of repair, reconstruction and
restoration (including the repair, reconstruction and restoration of the Tenant
Improvements) and this Lease will continue in full force and effect.
(b) SUBSTANTIAL DESTRUCTION. Any damage or destruction to the Premises or the
Building which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction, Landlord may elect to either (i) repair, reconstruct
and restore the portion of the Building or the Premises damaged by such
casualty, in which case this Lease will continue in full force and effect,
subject to Tenant's termination right contained in Subparagraph 20(d) below; or
(ii) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate.
(c) NOTICE. Under any of the conditions of Subparagraph 20(a) or (b) above,
Landlord agrees to give written notice to Tenant of its intention to repair or
terminate, as permitted in such paragraphs, within the earlier of sixty (60)
days after the occurrence of such casualty, or fifteen (15) days after
Landlord's receipt of the estimate from Landlord's contractor (the applicable
time period to be referred to herein as the "Notice Period"). In addition,
Landlord agrees to give written notice to Tenant, within ninety (90) days after
the occurrence of such casualty, as to whether or not Landlord reasonably
estimates that Tenant can be given reasonable use of and access to the Premises
within three hundred sixty-five (365) days after the date of such damage.
(d) TENANT'S TERMINATION RIGHTS. If Landlord elects to repair, reconstruct and
restore pursuant to Subparagraph 20(b)(i) hereinabove, and if Landlord's
contractor estimates that as a result of such damage, Tenant cannot be given
reasonable use of and access to the Premises within three hundred sixty-five
(365) days after the date of such damage, then Tenant may terminate this Lease
effective upon delivery of written notice to Landlord within ten (10) days after
Landlord delivers notice to Tenant of its election to so repair, reconstruct or
restore.
(e) TENANT'S ALTERATIONS; NOTICE OF CASUALTY. Tenant agrees to immediately
notify Landlord as to any Tenant Improvements installed by or at the cost of
Tenant and any Alterations for which Landlord's approval is not required so that
Landlord may increase the insurance covering the Tenant Improvements, as
appropriate. To the extent Tenant fails to so notify Landlord at least thirty
(30) days prior to the occurrence of any damage or other casualty to the Tenant
Improvements, Landlord shall have no obligation to restore such portion of the
Tenant Improvements. In the event of any damage or destruction of all or any
part of the Premises, Tenant agrees to immediately notify Landlord thereof.
(f) ABATEMENT OF RENT. In the event of any damage, repair, reconstruction and/or
restoration described in this Paragraph 20, rent will be abated or reduced, as
the case may be, from the date of such casualty, in proportion to the degree to
which Tenant's use of the Premises is impaired during such period of repair
until such use is restored. Except for abatement of rent as provided
hereinabove, Tenant will not be entitled to any compensation or damages for loss
of, or interference with, Tenant's business or use or access of all or any part
of the Premises or for lost profits or any other consequential damages of any
kind or nature, which result from any such damage, repair, reconstruction or
restoration.
(g) INABILITY TO COMPLETE. Notwithstanding anything to the contrary contained in
this Paragraph 20, (i) if Landlord is obligated or elects to repair, reconstruct
and/or restore the damaged portion of the Building or the Premises pursuant to
Subparagraph 20(a) or 20(b)(i) above, but is delayed from completing such
repair, reconstruction and/or restoration beyond the date which is sixty (60)
days after the date estimated by Landlord's contractor for completion thereof by
reason of any causes (other than delays caused by
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Tenant, its subtenants, employees, agents or contractors or delays which are
beyond the reasonable control of Landlord as described in Paragraph 33, provided
that such "force majeure" delays may not exceed ninety (90) days), then Tenant
may elect to terminate this Lease upon ten (10) days prior written notice given
to Landlord after the expiration of such sixty (60) day period; and (ii) if
Landlord is obligated or elects to repair, reconstruct and/or restore the
damaged portion of the Building or the Premises pursuant to Subparagraph 20(a)
or 20(b)(i) above, but is delayed from completing such repair, reconstruction
and/or restoration beyond the date which is ninety (90) days after the date
estimated by Landlord's contractor for completion thereof by reason of delays
which are beyond the reasonable control of Landlord as described in Paragraph
33, then Landlord may elect to terminate this Lease upon ten (10) days prior
written notice given to Tenant after the expiration of such ninety (90) day
period.
(h) DAMAGE NEAR END OF TERM. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises occurs during the last twelve
(12) months of the Term of this Lease (as the Term may have been extended in
accordance with Paragraph 41 below) where Landlord's contractor estimates in a
writing delivered to Landlord and Tenant that the repair, reconstruction or
restoration of such damage cannot be completed within sixty (60) days after the
date of such casualty. If either party desires to terminate this Lease under
this Subparagraph (h), it shall provide written notice to the other party of
such election within ten (10) days after receipt of Landlord's contractor's
repair estimates.
(i) WAIVER OF TERMINATION RIGHT. Landlord and Tenant agree that the foregoing
provisions of this Paragraph 20 are to govern their respective rights and
obligations in the event of any damage or destruction and supersede and are in
lieu of the provisions of any applicable law, statute, ordinance, rule,
regulation, order or ruling now or hereafter in force which provide remedies for
damage or destruction of leased premises (including, without limitation, to the
extent the Premises are located in California, the provisions of California
Civil Code Section 1932, Subsection 2, and Section 1933, Subsection 4 and any
successor statute or laws of a similar nature).
(j) TERMINATION. Upon any termination of this Lease under any of the provisions
of this Paragraph 20, the parties will be released without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have accrued and are unpaid as of the date of termination
and matters which are to survive any termination of this Lease as provided in
this Lease.
21. EMINENT DOMAIN.
(a) SUBSTANTIAL TAKING. If the whole of the Premises, or such part thereof as
shall substantially interfere with Tenant's use and occupancy of the Premises,
as contemplated by this Lease, is taken for any public or quasi-public purpose
by any lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party
will have the right to terminate this Lease effective as of the date possession
is required to be surrendered to such authority.
(b) PARTIAL TAKING; ABATEMENT OF RENT. In the event of a taking of a portion of
the Premises which does not substantially interfere with Tenant's use and
occupancy of the Premises, then, neither party will have the right to terminate
this Lease and Landlord will thereafter proceed to make a functional unit of the
remaining portion of the Premises (but only to the extent Landlord receives
proceeds therefor from the condemning authority), and rent will be abated with
respect to the part of the Premises which Tenant is deprived of on account of
such taking. Notwithstanding the immediately preceding sentence to the contrary,
if any part of the Building or the Development is taken (whether or not such
taking substantially interferes with Tenant's use of the Premises), Landlord may
terminate this Lease upon thirty (30) days prior written notice to Tenant if
Landlord also terminates the leases of the other tenants of the Building which
are leasing comparably sized space for comparable lease terms.
(c) CONDEMNATION AWARD. In connection with any taking of the Premises or the
Building, Landlord will be entitled to receive the entire amount of any award
which may be made or given in such taking or condemnation, without deduction or
apportionment for any estate or interest of Tenant, it being expressly
understood and agreed by Tenant that no portion of any such award will be
allowed or paid to Tenant for any so-called bonus or excess value of this Lease,
and such bonus or excess value will be the sole property of Landlord. Tenant
agrees not to assert any claim against Landlord or the taking authority for any
compensation because of such taking (including any claim for bonus or excess
value of this Lease); provided, however, if any portion of the Premises is
taken, Tenant will have the right to recover from the condemning authority (but
not from Landlord) any compensation as may be separately awarded or recoverable
by Tenant for the taking of Tenant's furniture, fixtures, equipment and other
personal property within the Premises, for Tenant's relocation expenses, for the
unamortized portions of any Tenant Improvements or Alterations paid for by
Tenant and for any loss of goodwill or other damage to Tenant's business by
reason of such taking.
(d) TEMPORARY TAKING. In the event of taking of the Premises or any part thereof
for temporary use, (i) this Lease will remain unaffected thereby and rent will
abate for the duration of the taking in proportion to the extent Tenant's use of
the Premises is interfered with, and (ii) Landlord will be entitled to receive
such portion or portions of any award made for such use provided that if such
taking remains in force at the expiration or earlier termination of this Lease,
Tenant will then pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations under Paragraph 11 with respect to surrender of
the Premises and upon such payment Tenant will be excused from such obligations.
For purpose of this Subparagraph 21(d), a temporary taking shall be defined as a
taking for a period of ninety (90) days or less.
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22. DEFAULTS AND REMEDIES.
(a) DEFAULTS. The occurrence of any one or more of the following events will be
deemed a default by Tenant:
(i) The abandonment of the Premises by Tenant, which for purposes of this
Lease means any absence by Tenant from the Premises for five (5) business days
or longer while in default of any other provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or additional rent or
any other payment required to be made by Tenant hereunder, as and when due,
where such failure continues for a period of five (5) business days after
written notice thereof from Landlord to Tenant; provided, however, that any such
notice delivered in accordance with California Code of Civil Procedure Sections
1161 and 1162 regarding unlawful detainer actions or any successor statute or
law of a similar nature shall be deemed to satisfy the notice requirement
thereunder.
(iii) The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Subparagraph 22(a)(i) or (ii) above, where
such failure continues (where no other period of time is expressly provided) for
a period of thirty (30) days after written notice thereof from Landlord to
Tenant. The provisions of any such notice will be in lieu of, and not in
addition to, any notice required under applicable law (including, without
limitation, to the extent the Premises are located in California, California
Code of Civil Procedure Section 1161 regarding unlawful detainer actions and any
successor statute or similar law). If the nature of Tenant's default is such
that more than thirty (30) days are reasonably required for its cure, then
Tenant will not be deemed to be in default if Tenant, with Landlord's
concurrence, commences such cure within such thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
(iv) (A) The making by Tenant of any general assignment for the benefit of
creditors; (B) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); (C) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or (D) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged within thirty (30) days.
(b) LANDLORD'S REMEDIES; TERMINATION. In the event of any default by Tenant, in
addition to any other remedies available to Landlord at law or in equity under
applicable law (including, without limitation, to the extent the Premises are
located in California, the remedies of Civil Code Section 1951.4 and any
successor statute or similar law, which provides that Landlord may continue this
Lease in effect following Tenant's breach and abandonment and collect rent as it
falls due, if Tenant has the right to sublet or assign, subject to reasonable
limitations), Landlord will have the immediate right and option to terminate
this Lease and all rights of Tenant hereunder. If Landlord elects to terminate
this Lease then, to the extent permitted under applicable law, Landlord may
recover from Tenant (i) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus (ii) the worth at the time
of award of the amount by which the unpaid rent which would have been earned
after termination until the time of award exceeds the amount of such rent loss
that Tenant proves could have been reasonably avoided; plus (iii) the worth at
the time of award of the amount by which the unpaid rent for the balance of the
Term after the time of award exceeds the amount of such rent loss that Tenant
proves could be reasonably avoided; plus (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which, in the ordinary course of
things, results therefrom including, but not limited to: attorneys' fees and
costs; brokers' commissions; the costs of refurbishment, alterations, renovation
and repair of the Premises, and removal (including the repair of any damage
caused by such removal) and storage (or disposal) of Tenant's personal property,
equipment, fixtures, Alterations, the Tenant Improvements and any other items
which Tenant is required under this Lease to remove but does not remove, as well
as the unamortized value of any free rent, reduced rent, free parking, reduced
rate parking and any Tenant Improvement Allowance or other costs or economic
concessions provided, paid, granted or incurred by Landlord pursuant to this
Lease. The unamortized value of such concessions shall be determined by taking
the total value of such concessions and multiplying such value by a fraction,
the numerator of which is the number of months of the Lease Term not yet elapsed
as of the date on which the Lease is terminated, and the denominator of which is
the total number of months of the Lease Term. As used in Subparagraphs 22(b)(i)
and (ii) above, the "worth at the time of award" is computed by allowing
interest at the Interest Rate. As used in Subparagraph 22(b)(iii) above, the
"worth at the time of award" is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
(c) LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any default by Tenant,
in addition to any other remedies available to Landlord under this Lease, at law
or in equity, Landlord will also have the right, with or without terminating
this Lease, to re-enter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse or
elsewhere and/or disposed of at the sole cost and expense of and for the account
of Tenant in accordance with the provisions of Subparagraph 13(h) of this Lease
or any other procedures permitted by applicable law. No re-entry or taking
possession of the Premises by Landlord pursuant to this
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Subparagraph 22(c) will be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
(d) LANDLORD'S REMEDIES; RE-LETTING. In the event of the vacation or abandonment
of the Premises by Tenant or in the event that Landlord elects to re-enter the
Premises or takes possession of the Premises pursuant to legal proceeding or
pursuant to any notice provided by law, then if Landlord does not elect to
terminate this Lease, Landlord may from time to time, without terminating this
Lease, either recover all rent as it becomes due or relet the Premises or any
part thereof on terms and conditions as Landlord in its sole and absolute
discretion may deem advisable with the right to make alterations and repairs to
the Premises in connection with such reletting. If Landlord elects to relet the
Premises, then rents received by Landlord from such reletting will be applied:
first, to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to the payment of any cost of such reletting; third,
to the payment of the cost of any alterations and repairs to the Premises
incurred in connection with such reletting; fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, will be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rents received from such reletting during
any month, which is applied to the payment of rent hereunder, be less than the
rent payable during that month by Tenant hereunder, then Tenant agrees to pay
such deficiency to Landlord immediately upon demand therefor by Landlord. Such
deficiency will be calculated and paid monthly.
(e) LANDLORD'S REMEDIES; PERFORMANCE FOR TENANT. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease are to be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant fails to pay any sum of money owed to any party other than Landlord,
for which it is liable under this Lease, or if Tenant fails to perform any other
act on its part to be performed hereunder, and such failure continues for ten
(10) days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from its obligations, but shall not be obligated to, make any
such payment or perform any such other act to be made or performed by Tenant.
Tenant agrees to reimburse Landlord upon demand for all sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the
Interest Rate, from the date of such payment by Landlord until reimbursed by
Tenant. This remedy shall be in addition to any other right or remedy of
Landlord set forth in this Paragraph 22.
(f) LATE PAYMENT. If Tenant fails to pay any installment of rent within five (5)
days of when due or if Tenant fails to make any other payment for which Tenant
is obligated under this Lease within five (5) days of when due, such late amount
will accrue interest at the Interest Rate and Tenant agrees to pay Landlord as
additional rent such interest on such amount from the date such amount becomes
due until such amount is paid. In addition, Tenant agrees to pay to Landlord
concurrently with such late payment amount, as additional rent, a late charge
equal to five percent (5%) of the amount due to compensate Landlord for the
extra costs Landlord will incur as a result of such late payment. The parties
agree that (i) it would be impractical and extremely difficult to fix the actual
damage Landlord will suffer in the event of Tenant's late payment, (ii) such
interest and late charge represents a fair and reasonable estimate of the
detriment that Landlord will suffer by reason of late payment by Tenant, and
(iii) the payment of interest and late charges are distinct and separate in that
the payment of interest is to compensate Landlord for the use of Landlord's
money by Tenant, while the payment of late charges is to compensate Landlord for
Landlord's processing, administrative and other costs incurred by Landlord as a
result of Tenant's delinquent payments. Acceptance of any such interest and late
charge will not constitute a waiver of the Tenant's default with respect to the
overdue amount, or prevent Landlord from exercising any of the other rights and
remedies available to Landlord. If Tenant incurs a late charge more than three
(3) times in any period of twelve (12) months during the Lease Term, then,
notwithstanding that Tenant cures the late payments for which such late charges
are imposed, Landlord will have the right to require Tenant thereafter to pay
all installments of Monthly Base Rent quarterly in advance throughout the
remainder of the Lease Term.
(g) RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of Landlord
contained in this Lease will be construed and held to be cumulative, and no one
of them will be exclusive of the other, and Landlord shall have the right to
pursue any one or all of such remedies or any other remedy or relief which may
be provided by law or in equity, whether or not stated in this Lease. Nothing in
this Paragraph 22 will be deemed to limit or otherwise affect Tenant's
indemnification of Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord will
not be deemed in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to completion. Upon
any default by Landlord, Tenant may exercise any of its rights provided at law
or in equity, subject to the limitations on liability set forth in Paragraph 35
of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTION ON TRANSFER. Except as expressly provided in this Paragraph 24,
Tenant will not, either voluntarily or by operation of law, assign or encumber
this Lease or any interest herein or sublet the
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Premises or any part thereof, or permit the use or occupancy of the Premises by
any party other than Tenant (any such assignment, encumbrance, sublease or the
like will sometimes be referred to as a "Transfer"), without the prior written
consent of Landlord, which consent Landlord will not unreasonably withhold.
(b) CORPORATE AND PARTNERSHIP TRANSFERS. For purposes of this Paragraph 24, if
Tenant is a corporation, partnership or other entity, any transfer, assignment,
encumbrance or hypothecation of the greater of at least twenty-five percent
(25%) of or a controlling interest in (individually or in the aggregate) any
stock or other ownership interest in such entity, and/or any transfer,
assignment, hypothecation or encumbrance of any controlling ownership or voting
interest in such entity, will be deemed a Transfer and will be subject to all of
the restrictions and provisions contained in this Paragraph 24. Notwithstanding
the foregoing, the immediately preceding sentence will not apply to any
transfers of stock of Tenant if Tenant is a publicly-held corporation and such
stock is transferred in accordance with the rules and regulations of a
recognized security exchange or over-the-counter market.
(c) PERMITTED CONTROLLED TRANSFERS. Notwithstanding the provisions of this
Paragraph 24 to the contrary, Tenant may assign this Lease or sublet the
Premises or any portion thereof ("Permitted Transfer"), without Landlord's
consent and without extending any assignment or sublease termination option or
excess rent provision to Landlord, to any parent, subsidiary or affiliate
corporation which controls, is controlled by or is under common control with
Tenant, or to any corporation resulting from a merger or consolidation with
Tenant, or to any person or entity which acquires all the assets of Tenant's
business as a going concern, provided that: (i) at least twenty (20) days prior
to such assignment or sublease, Tenant delivers to Landlord the financial
statements and other financial and background information of the assignee or
sublessee described in Subparagraph 24(d) below; (ii) if an assignment, the
assignee assumes, in full, the obligations of Tenant under this Lease (or if a
sublease, the sublessee of a portion of the Premises or Term assumes, in full,
the obligations of Tenant with respect to such portion); (iii) the financial net
worth of the assignee or sublessee as of the time of the proposed assignment or
sublease equals or exceeds that of Tenant as of the date of execution of this
Lease; (iv) Tenant remains fully liable under this Lease; and (v) the use of the
Premises under Paragraph 8 remains unchanged. Landlord hereby approves Abbott
Laboratories as a Permitted Transferee.
(d) TRANSFER NOTICE. If Tenant desires to effect a Transfer, then at least
thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name, address and business of the proposed
assignee, sublessee or other transferee (sometimes referred to hereinafter as
"Transferee"), reasonable information (including references) concerning the
character, ownership, and financial condition of the proposed Transferee, the
Transfer Date, any ownership or commercial relationship between Tenant and the
proposed Transferee, and the consideration and all other material terms and
conditions of the proposed Transfer, all in such detail as Landlord may
reasonably require. If Landlord reasonably requests additional detail, the
Transfer Notice will not be deemed to have been received until Landlord receives
such additional detail, and Landlord may withhold consent to any Transfer until
such information is provided to it.
(e) LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will elect to do
one of the following (i) consent to the proposed Transfer; (ii) refuse such
consent, which refusal shall be on reasonable grounds including, without
limitation, those set forth in Subparagraph 24(f) below; or (iii) terminate this
Lease as to all of the Premises (in the case of a proposed assignment) or as to
such portion of the Premises that is proposed to be sublet and recapture all or
such portion of the Premises for reletting by Landlord. Notwithstanding the
foregoing or anything to the contrary set forth elsewhere in this Paragraph 24,
Landlord shall not have the right to terminate this Lease in connection with the
sublease of less than one-half (1/2) of the Premises, for a term of less than
one-half (1/2) of the remaining Term.
(f) REASONABLE DISAPPROVAL. Landlord and Tenant hereby acknowledge that
Landlord's disapproval of any proposed Transfer pursuant to Subparagraph 24(e)
will be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i)
[INTENTIONALLY DELETED]; (ii) the proposed Transferee is a governmental entity;
(iii) the portion of the demised subleased Premises to be sublet is irregular in
shape with inadequate means of ingress and egress; (iv) the use of the Premises
by the Transferee (A) is not permitted by the use provisions in Paragraph 8
hereof, (B) violates any exclusive use granted by Landlord to another tenant in
the Development, or (C) otherwise poses a risk of increased liability to
Landlord; (v) the Transfer would likely result in a significant and
inappropriate increase in the use of the parking areas or Development Common
Areas by the Transferee's employees or visitors, and/or significantly increase
the demand upon utilities and services to be provided by Landlord to the
Premises; (vi) the Transferee does not have the financial capability to fulfill
the obligations imposed by the Transfer and this Lease; (vii) the Transferee is
not in Landlord's reasonable opinion consistent with Landlord's desired tenant
mix; or (viii) the Transferee poses a business or other economic risk which
Landlord deems unacceptable.
(g) ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, and, in the case
of an assignment, the delivery to Landlord of an agreement executed by the
Transferee in form and substance reasonably satisfactory to Landlord, whereby
the Transferee assumes and agrees to be bound by all of the terms and provisions
of this Lease and to perform all of the
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obligations of Tenant hereunder. As a condition for granting its consent to any
assignment or sublease, Landlord may require that upon the occurrence of a
monetary default or a material non-monetary default by Tenant under this Lease,
the assignee or sublessee thereafter remit directly to Landlord on a monthly
basis, all monies due to Tenant by said assignee or sublessee. As a condition to
Landlord's consent to any sublease, such sublease must provide that it is
subject and subordinate to this Lease and to all mortgages; that Landlord may
enforce the provisions of the sublease, including collection of rent; that in
the event of termination of this Lease for any reason, including without
limitation a voluntary surrender by Tenant, or in the event of any reentry or
repossession of the Premises by Landlord, Landlord may, at its option, either
(i) terminate the sublease, or (ii) take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, in which case such
sublessee will attorn to Landlord, but that nevertheless Landlord will not (1)
be liable for any previous act or omission of Tenant under such sublease, (2) be
subject to any defense or offset previously accrued in favor of the sublessee
against Tenant, or (3) be bound by any previous modification of any sublease
made without Landlord's written consent, or by any previous prepayment by
sublessee of more than one month's rent.
(h) EXCESS RENT. If Landlord consents to any assignment of this Lease, Tenant
agrees to pay to Landlord, as additional rent, fifty percent (50%) of all sums
and other consideration payable to and for the benefit of Tenant by the assignee
on account of the assignment of the leasehold interest, as and when such sums
and other consideration are due and payable by the assignee to or for the
benefit of Tenant (or, if Landlord so requires, and without any release of
Tenant's liability for the same, Tenant agrees to instruct the assignee to pay
such sums and other consideration directly to Landlord). If for any sublease,
Tenant receives rent or other consideration on account of the leasehold
interest, either initially or over the term of the sublease, in excess of the
rent fairly allocable to the portion of the Premises which is subleased based on
square footage, Tenant agrees to pay to Landlord as additional rent fifty
percent (50%) of the excess of each such payment of rent or other consideration
received by Tenant promptly after its receipt. In calculating excess rent or
other consideration which may be payable to Landlord under this paragraph,
Tenant will be entitled to deduct commercially reasonable third party brokerage
commissions and attorneys' fees and other amounts reasonably and actually
expended by Tenant in connection with such assignment or subletting if
acceptable written evidence of such expenditures is provided to Landlord.
(i) TERMINATION RIGHTS. If Tenant requests Landlord's consent to any assignment
of this Lease or any subletting of all or a portion of the Premises, Landlord
will have the right, as provided in Subparagraph 24(e), to terminate this Lease
as to all of the Premises (in the case of a proposed assignment) or as to such
portion of the Premises that is proposed to be sublet effective as of the date
Tenant proposes to assign this Lease or to sublet all or less than all of the
Premises. Notwithstanding the foregoing, in the event the sublease covers less
than one-half (1/2) of the Premises and is for a term of less than one-half
(1/2) of the remaining Term, then Landlord shall not have the right to recapture
the subleased premises or to terminate this Lease. Landlord's right to terminate
this Lease as to less than all of the Premises proposed to be sublet will not be
deemed waived as to any future additional subletting or assignment as a result
of Landlord's consent to a subletting of less than all of the Premises or
Landlord's failure to exercise its termination right with respect to any
subletting or assignment. Landlord will exercise such termination right, if at
all, by giving written notice to Tenant within thirty (30) days of receipt by
Landlord of the financial responsibility information required by this Paragraph
24. Tenant understands and acknowledges that the option, as provided in this
Paragraph 24, to terminate this Lease as to all of the Premises (in the case of
a proposed assignment) or as to such portion of the Premises that is proposed to
be sublet rather than approve the assignment of this Lease or the subletting of
all or a portion of the Premises, is a material inducement for Landlord's
agreeing to lease the Premises to Tenant upon the terms and conditions herein
set forth. In the event of any such termination with respect to less than all of
the Premises, fifty percent (50%) of the cost of segregating the recaptured
space from the balance of the Premises will be paid by Tenant, and Tenant's
future monetary obligations under this Lease will be reduced proportionately on
a square footage basis to correspond to the balance of the Premises which Tenant
continues to lease.
(j) NO RELEASE. No Transfer will release Tenant of Tenant's obligations under
this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. Landlord may
require that upon the occurrence of a monetary default or a material
non-monetary default by Tenant under this Lease, any Transferee thereafter remit
directly to Landlord on a monthly basis, all monies due Tenant by said
Transferee. However, the acceptance of rent by Landlord from any other person
will not be deemed to be a waiver by Landlord of any provision hereof. Consent
by Landlord to one Transfer will not be deemed consent to any subsequent
Transfer. In the event of default by any Transferee of Tenant or any successor
of Tenant in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such Transferee or successor. Landlord may consent to subsequent assignments of
this Lease or sublettings or amendments or modifications to this Lease with
assignees of Tenant, without notifying Tenant, or any successor of Tenant, and
without obtaining its or their consent thereto and any such actions will not
relieve Tenant of liability under this Lease.
(k) ADMINISTRATIVE AND ATTORNEYS' FEES. If Tenant effects a Transfer or requests
the consent of Landlord to any Transfer (whether or not such Transfer is
consummated), then, upon demand, Tenant agrees to pay Landlord a non-refundable
administrative fee of Two Hundred Fifty Dollars ($250.00), plus any reasonable
attorneys' and paralegal fees incurred by Landlord in connection with such
Transfer or request for consent (whether attributable to Landlord's in-house
attorneys or paralegals or otherwise) not to exceed One Hundred Dollars
($100.00) for each one thousand (1,000) rentable square feet of area
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contained within the Premises or portion thereof to be assigned or sublet.
Acceptance of the Two Hundred Fifty Dollar ($250.00) administrative fee and/or
reimbursement of Landlord's attorneys' and paralegal fees will in no event
obligate Landlord to consent to any proposed Transfer.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the Development, or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building; and (ii) the lien
of any mortgage or deed of trust which may now exist or hereafter be executed
for which the Building, the Development or any leases thereof, or Landlord's
interest and estate in any of said items, is specified as security; provided,
however, that the subordination of this Lease to any mortgage or deed of trust
or any ground or underlying lease is subject to Tenant's receipt of a
commercially reasonable non-disturbance agreement from the holder of such
mortgage or deed of trust or such ground or underlying lease. Notwithstanding
the foregoing, Landlord reserves the right to subordinate any such ground leases
or underlying leases or any such liens to this Lease. If any such ground lease
or underlying lease terminates for any reason or any such mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, at the election of Landlord's successor in interest, Tenant agrees to
attorn to and become the tenant of such successor in which event Tenant's right
to possession of the Premises will not be disturbed as long as Tenant is not in
default under this Lease. Tenant hereby waives its rights under any law which
gives or purports to give Tenant any right to terminate or otherwise adversely
affect this Lease and the obligations of Tenant hereunder in the event of any
such foreclosure proceeding or sale. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form reasonably required by
Landlord, any additional documents evidencing the priority or subordination of
this Lease and Tenant's attornment agreement with respect to any such ground
lease or underlying leases or the lien of any such mortgage or deed of trust. If
Tenant fails to sign and return any such documents within ten (10) days of
receipt, Tenant will be in default hereunder.
26. ESTOPPEL CERTIFICATE.
(a) TENANT'S OBLIGATIONS. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant agrees to execute and deliver
to Landlord a statement, in a form substantially similar to the form of EXHIBIT
"G" attached hereto or as may reasonably be required by Landlord's lender,
certifying: (i) the date of commencement of this Lease; (ii) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect, and stating the date
and nature of such modifications); (iii) the date to which the rent and other
sums payable under this Lease have been paid; (iv) that there are no current
defaults under this Lease by either Landlord or Tenant except as specified in
Tenant's statement; and (v) such other matters reasonably requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this
Paragraph 26 may be relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein.
(b) TENANT'S FAILURE TO DELIVER. Tenant's failure to deliver such statement
within such time will be conclusive upon Tenant (i) that this Lease is in full
force and effect, without modification except as may be represented by Landlord,
(ii) that there are no uncured defaults in Landlord's performance, and (iii)
that not more than one (1) month's rent has been paid in advance. Without
limiting the foregoing, if Tenant fails to deliver any such statement within
such ten (10) day period, Landlord may deliver to Tenant an additional request
for such statement and Tenant's failure to deliver such statement to Landlord
within ten (10) days after delivery of such additional request will constitute a
default under this Lease. Tenant agrees to indemnify and protect Landlord from
and against any and all claims, damages, losses, liabilities and expenses
(including attorneys' fees and costs) attributable to any failure by Tenant to
timely deliver any such estoppel certificate to Landlord as required by this
Paragraph 26.
27. [INTENTIONALLY DELETED].
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and comply
with the "Rules and Regulations," a copy of which is attached hereto and
incorporated herein by this reference as EXHIBIT "H", and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord will not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of the Building of
any of the Rules and Regulations.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS.
(a) MODIFICATIONS. If, in connection with Landlord's obtaining or entering into
any financing or ground lease for any portion of the Building or the
Development, the lender or ground lessor requests modifications to this Lease,
Tenant, within twenty (20) days after request therefor, agrees to execute an
amendment to this Lease incorporating such modifications, provided such
modifications are reasonable and do not increase the obligations of Tenant under
this Lease or adversely affect the leasehold estate created by this Lease.
(b) CURE RIGHTS. In the event of any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgage covering the Premises or ground lessor of Landlord of which
Tenant has received written notice and whose address has been furnished to
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Tenant, and Tenant agrees to offer such beneficiary, mortgagee or ground lessor
a reasonable opportunity to cure the default (including with respect to any such
beneficiary or mortgagee, time to obtain possession of the Premises, subject to
this Lease and Tenant's rights hereunder, by power of sale or a judicial
foreclosure, if such should prove necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease, so
far as covenants or obligations on the part of Landlord are concerned, means and
includes only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title (other
than a transfer for security purposes only), Landlord herein named (and in case
of any subsequent transfers or conveyances, the then grantor) will be
automatically relieved from and after the date of such transfer, assignment or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter accruing,
so long as the transferee assumes in writing all such covenants and obligations
of Landlord arising after the date of such transfer. Landlord and Landlord's
transferees and assignees have the absolute right to transfer all or any portion
of their respective title and interest in the Development, the Building, the
Premises and/or this Lease without the consent of Tenant, and such transfer or
subsequent transfer will not be deemed a violation on Landlord's part of any of
the terms and conditions of this Lease.
31. WAIVER. The waiver by either party of any breach of any term, covenant
or condition herein contained will not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition herein
contained, nor will any custom or practice which may develop between the parties
in the administration of the terms hereof be deemed a waiver of or in any way
affect the right of either party to insist upon performance in strict accordance
with said terms. The subsequent acceptance of rent or any other payment
hereunder by Landlord will not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No acceptance by Landlord of a lesser sum than the basic rent and
additional rent or other sum then due will be deemed to be other than on account
of the earliest installment of such rent or other amount due, nor will any
endorsement or statement on any check or any letter accompanying any check be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or other amount or pursue any other remedy provided in this Lease. The consent
or approval of Landlord to or of any act by Tenant requiring Landlord's consent
or approval will not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
32. PARKING.
(a) GRANT OF PARKING RIGHTS. So long as this Lease is in effect and provided
Tenant is not in default hereunder beyond any applicable notice and cure
periods, Landlord grants to Tenant and Tenant's Authorized Users (as defined
below) a license to use the number and type of parking spaces designated in
Subparagraph 1(t) subject to the terms and conditions of this Paragraph 32 and
the Rules and Regulations regarding parking contained in EXHIBIT "H" attached
hereto. During the Option Term, as consideration for the use of such parking
spaces, Tenant agrees to pay to Landlord or, at Landlord's election, directly to
Landlord's parking operator, as additional rent under this Lease, the standard
parking rate then in effect for such parking area(s), if any, with the rate
being established by Landlord in its discretion from time to time, but not to
exceed the prevailing market parking rate for a similar project in the
Tri-Valley Area for each such parking space; Tenant agrees that all parking
charges will be payable on a monthly basis concurrently with each monthly
payment of Monthly Base Rent.As used herein, the term "Authorized Users" shall
mean those persons who are authorized by Tenant to use Tenant's parking spaces
on a monthly basis.
(b) VISITOR PARKING. So long as this Lease is in effect, Tenant's visitors and
guests will be entitled to use those specific parking areas which are designated
for short term visitor parking and which are located within the surface parking
area(s), if any, and/or within the parking structure(s) which serve the
Building. During the Option Term, visitor parking will be made available at a
charge to Tenant's visitors and guests if there is any standard parking rate
then in effect for such parking area(s), with the rate being established by
Landlord in its discretion from time to time, but not to exceed the prevailing
market parking rate for a similar project in the Tri-Valley Area; Tenant, at its
sole cost and expense, may elect to validate such parking for its visitors and
guests. All such visitor parking will be on a non-exclusive, in common basis
with all other visitors and guests of the Development.
(c) USE OF PARKING SPACES. Tenant will not use or allow any of Tenant's
Authorized Users to use any parking spaces which have been specifically assigned
by Landlord to other tenants or occupants or for other uses such as visitor
parking or which have been designated by any governmental entity as being
restricted to certain uses.
(d) GENERAL PROVISIONS. Except as otherwise expressly set forth in Subparagraph
1(t), Landlord reserves the right to set and increase monthly fees and/or daily
and hourly rates for parking privileges from time to time during the Option
Term. Landlord may assign any unreserved and unassigned parking spaces and/or
make all or any portion of such spaces reserved, if Landlord reasonably
determines that it is necessary for orderly and efficient parking or for any
other reasonable reason. Failure to comply with any terms and conditions of this
Lease applicable to parking beyond any applicable notice and cure periods may be
treated by Landlord as a default under this Lease and, in addition to all other
remedies
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available to Landlord under the Lease, at law or in equity, Landlord may elect
to recapture such parking spaces for the balance of the Term of this Lease if
Tenant does not cure such failure within the applicable cure period set forth in
Paragraph 22 of this Lease. In such event, Tenant and Tenant's Authorized Users
will be deemed visitors for purposes of parking space use and will be entitled
to use only those parking areas specifically designated for visitor parking
subject to all provisions of this Lease applicable to such visitor parking use.
Except in connection with an assignment or sublease expressly permitted under
the terms of this Lease, Tenant's parking rights and privileges described herein
are personal to Tenant and may not be assigned or transferred, or otherwise
conveyed, without Landlord's prior written consent, which consent Landlord may
withhold in its sole and absolute discretion. In any event, under no
circumstances may Tenant's parking rights and privileges be transferred,
assigned or otherwise conveyed separate and apart from Tenant's interest in this
Lease.
(e) COOPERATION WITH TRAFFIC MITIGATION MEASURES. Tenant agrees to use its
reasonable, good faith efforts to cooperate in traffic mitigation programs which
may be undertaken by Landlord independently, or in cooperation with local
municipalities or governmental agencies or other property owners in the vicinity
of the Building. Such programs may include, but will not be limited to,
carpools, vanpools and other ridesharing programs, public and private transit,
flexible work hours, preferential assigned parking programs and programs to
coordinate tenants within the Development with existing or proposed traffic
mitigation programs.
(f) PARKING RULES AND REGULATIONS. Tenant and Tenant's Authorized Users shall
comply with all rules and regulations regarding parking set forth in EXHIBIT "H"
attached hereto and Tenant agrees to cause its employees, subtenants, assignees,
contractors, suppliers, customers and invitees to comply with such rules and
regulations. Landlord reserves the right from time to time to modify and/or
adopt such other reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems reasonably necessary for the operation of the
parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required under this Lease by reason of
strikes, lock-outs, labor troubles, inability to procure standard materials,
failure of power, restrictive governmental laws, regulations or orders or
governmental action or inaction (including failure, refusal or delay in issuing
permits, approvals and/or authorizations which is not the result of the action
or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this Paragraph 33 will
not operate to excuse Tenant from prompt payment of rent or any other payments
required under the provisions of this Lease.
34. SIGNS.
(a) PREMISES SIGNAGE. Landlord will designate the location on the Premises for
one Tenant identification sign. Tenant agrees to have Landlord install and
maintain Tenant's identification sign in such designated location in accordance
with this Paragraph 34 at Tenant's sole cost and expense. In addition, Tenant
shall have the right to a Building standard listing in the lobby directory for
the Building.
(b) BUILDING MONUMENT SIGNAGE. In addition to the identification sign referred
to in Paragraph 34(a) above, Tenant shall have the non-exclusive right to
include its name on the monument sign for the Building, provided that the size,
location, color, quality, graphics, materials, design, style and lighting of
Tenant's panel on the monument sign and Tenant's name thereon shall be as
determined by Landlord in its sole and absolute discretion.
(c) PROJECT MONUMENT SIGNAGE. During the first five (5) years of the Term or
such longer period as the initial tenant of the fourth floor of the Building
remains in occupancy of such floor under its lease with Landlord, and during any
period when Tenant is leasing the fourth floor of the Building pursuant to
Paragraph 44 below, Tenant shall have the non-exclusive right to include its
name on the two (2) monument signs for the Development, subject to Landlord's
obtaining all necessary governmental permits and approvals therefor and provided
that the size, location, color, quality, graphics, materials, design, style and
lighting of Tenant's panel on each of the foregoing monument signs and Tenant's
name thereon shall be as determined by Landlord in its sole and absolute
discretion. Landlord hereby advises Tenant that Tenant's name shall be located
on the third slot down from the top of each such sign.
(d) BUILDING PARAPET SIGNAGE. During any period when Tenant is leasing the
fourth floor of the Building pursuant to Paragraph 44 below, Tenant shall have
the exclusive right, at Tenant's sole cost and expense, to install and maintain
identification signage on the parapet of the Building in a location approved by
Landlord in its sole and absolute discretion.
(e) GENERAL. Except as otherwise provided in this Paragraph 34, Tenant has no
right to install Tenant identification signs in any other location in, on or
about the Premises or the Development and will not display or erect any other
signs, displays or other advertising materials that are visible from the
exterior of the Building or from within the Building in any interior or exterior
common areas. The size, design, color and other physical aspects of any and all
permitted sign(s) will be subject to (i) Landlord's written approval
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prior to installation, which approval may be withheld in Landlord's sole and
absolute discretion, (ii) any covenants, conditions or restrictions governing
the Premises, and (iii) any applicable municipal or governmental permits,
approvals, guidelines and restrictions (including, without limitation, any
guidelines issued or restrictions imposed by the City of Dublin or the East
Dublin Specific Plan). Tenant will be solely responsible for all costs for
installation, maintenance, repair and removal of any Tenant identification
sign(s). If Tenant fails to remove Tenant's sign(s) upon termination of this
Lease and repair any damage caused by such removal, Landlord may do so at
Tenant's sole cost and expense. Tenant agrees to reimburse Landlord for all
costs incurred by Landlord to effect any installation, maintenance or removal on
Tenant's account, which amount will be deemed additional rent, and may include,
without limitation, all sums disbursed, incurred or deposited by Landlord
including Landlord's costs, expenses and actual attorneys' fees with interest
thereon at the Interest Rate from the date of Landlord's demand until paid by
Tenant. Any sign rights granted to Tenant under this Lease are personal to
Tenant and may not be assigned, transferred or otherwise conveyed to any
assignee or subtenant of Tenant without Landlord's prior written consent, which
consent Landlord may withhold in its sole and absolute discretion; provided,
however, that Landlord may not unreasonably withhold its consent if the proposed
transferee is a Permitted Transferee. Landlord and Tenant hereby acknowledge
that Landlord's disapproval of any proposed assignment, transfer or other
conveyance of such sign rights to a Permitted Transferee will be deemed
reasonably withheld if based on any reasonable factor, including, without
limitation, the fact that such Permitted Transferee is a competitor of one or
more of the tenants in the Development or prospective tenants with whom Landlord
is in active discussions at the time of such proposed assignment, transfer or
other conveyance of such sign rights.
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant on behalf of itself and all successors and assigns of Tenant
covenants and agrees that, in the event of any actual or alleged failure, breach
or default hereunder by Landlord: (a) Tenant's recourse against Landlord for
monetary damages will be limited to Landlord's interest in the Building
including, subject to the prior rights of any Mortgagee, Landlord's interest in
the rents of the Building and any insurance proceeds payable to Landlord; (b)
Except as may be necessary to secure jurisdiction of the partnership or company,
no partner or member of Landlord shall be sued or named as a party in any suit
or action and no service of process shall be made against any partner or member
of Landlord; (c) No partner or member of Landlord shall be required to answer or
otherwise plead to any service of process; (d) No judgment will be taken against
any partner or member of Landlord and any judgment taken against any partner or
member of Landlord may be vacated and set aside at any time after the fact; (e)
No writ of execution will be levied against the assets of any partner or member
of Landlord; (f) The obligations under this Lease do not constitute personal
obligations of the individual members, partners, directors, officers or
shareholders of Landlord, and Tenant shall not seek recourse against the
individual members, partners, directors, officers or shareholders of Landlord or
any of their personal assets for satisfaction of any liability in respect to
this Lease; and (g) These covenants and agreements are enforceable both by
Landlord and also by any partner or member of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord
and at any time during the Term of this Lease (but not more than twice per
calendar year if Tenant is privately owned and not more than once per calendar
year if Tenant is a public company) upon twenty (20) days' prior written notice
from Landlord, Tenant agrees to provide Landlord with a current financial
statement for Tenant and any guarantors of Tenant and financial statements for
the two (2) years prior to the current financial statement year for Tenant and
any guarantors of Tenant. Such statements are to be prepared in accordance with
generally accepted accounting principles and, if such is the normal practice of
Tenant, audited by an independent certified public accountant. If Tenant is
privately owned, then Landlord agrees to hold all such financial statements
strictly confidential, provided that Landlord may disclose such financial
statements to its actual or prospective lenders, its actual or prospective
investors, its accountants, attorneys, loan brokers and real estate brokers.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon
Tenant paying the rent required under this Lease and paying all other charges
and performing all of the covenants and provisions on Tenant's part to be
observed and performed under this Lease, Tenant may peaceably and quietly have,
hold and enjoy the Premises in accordance with this Lease without hindrance or
molestation by Landlord or its employees or agents.
38. MISCELLANEOUS.
(a) CONFLICT OF LAWS. This Lease shall be governed by and construed solely
pursuant to the laws of the State, without giving effect to choice of law
principles thereunder.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all of
the covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
(c) PROFESSIONAL FEES AND COSTS. If either Landlord or Tenant should bring suit
against the other with respect to this Lease, then all costs and expenses,
including without limitation, actual professional fees and costs such as
appraisers', accountants' and attorneys' fees and costs, incurred by the party
which prevails in such action, whether by final judgment or out of court
settlement, shall be paid by the other party, which obligation on the part of
the other party shall be deemed to have accrued on the date of the commencement
of such action and shall be enforceable whether or not the action is prosecuted
to judgment. As used herein, attorneys' fees and costs shall include, without
limitation, attorneys' fees,
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costs and expenses incurred in connection with any (i) postjudgment motions;
(ii) contempt proceedings; (iii) garnishment, levy, and debtor and third party
examination; (iv) discovery; and (v) bankruptcy litigation.
(d) TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
(e) TIME. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
(f) PRIOR AGREEMENT; AMENDMENTS. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
(g) SEPARABILITY. The provisions of this Lease shall be considered separable
such that if any provision or part of this Lease is ever held to be invalid,
void or illegal under any law or ruling, all remaining provisions of this Lease
shall remain in full force and effect to the maximum extent permitted by law.
(h) RECORDING. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
(i) COUNTERPARTS. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the same
agreement.
(j) NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Development, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease, to its lenders, shareholders, financial consultants and prospective
investors, or when required by law to disclose (e.g., in connection with SEC
reporting requirements).
(k) NON-DISCRIMINATION. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
(l) APPROVALS. Except as otherwise provided in this Lease, whenever this Lease
requires an approval or consent by either Landlord or Tenant, such approval or
consent and any conditions imposed thereby shall be reasonable and shall not be
unreasonably withheld or delayed.
(m) REIMBURSABLE EXPENDITURES. Any expenditure by a party permitted or required
under this Lease, for which such party is entitled to demand and does demand
reimbursement from the other party, shall be substantiated by documentary
evidence available for inspection and review by the other party or its
representative during normal business hours.
39. EXECUTION OF LEASE.
(a) [INTENTIONALLY DELETED]
(b) TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this Lease as a
corporation or partnership, then Tenant and the persons executing this Lease on
behalf of Tenant represent and warrant that such entity is duly qualified and in
good standing to do business in California and that the individuals executing
this Lease on Tenant's behalf are duly authorized to execute and deliver this
Lease on its behalf, and in the case of a corporation, in accordance with a duly
adopted resolution of the board of directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, if requested by Landlord, and in
accordance with the by-laws of Tenant, and, in the case of a partnership, in
accordance with the partnership agreement and the most current amendments
thereto, if any, copies of which are to be delivered to Landlord on execution
hereof, if requested by Landlord, and that this Lease is binding upon Tenant in
accordance with its terms.
(c) EXAMINATION OF LEASE. Submission of this instrument by Landlord to Tenant
for examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
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40. UNION LABOR. Notwithstanding anything herein to the contrary, Tenant
covenants and agrees that all contractors and subcontractors at any tier
performing any construction, repair, refurbishment or restoration, including,
without limitation, tenant improvements, build-outs, alterations, additions,
improvements, renovations, repairs, remodeling, painting and installations of
fixtures, mechanical, electrical, plumbing, data, security, telecommunication,
low voltage or elevator equipment or systems or other equipment, or with respect
to any other construction work in, on, or to the Premises shall: (i) be bound by
and signatory to a collective bargaining agreement with a labor organization (a)
whose jurisdiction covers the type of work to be performed on the Premises, and
(b) who is affiliated with the Building and Construction Trades Department of
the AFL-CIO; and (ii) each such contractor or subcontractor shall observe area
standards for wages and other terms and conditions of employment, including
fringe benefits.
41. OPTION TERM.
(a) OPTION RIGHT. Landlord hereby grants the originally named Tenant herein (or
any assignee to which this Lease has been assigned pursuant to Paragraph 24(c)
above (a "Permitted Assignee")), one (1) option to extend the Term for a period
of five (5) years (the "Option Term"), which option shall be exercisable only by
written notice delivered by Tenant to Landlord as provided below, provided that,
as of the date of delivery of such notice, Tenant is not in default under this
Lease beyond any applicable cure period and Tenant has not previously been in
default under this Lease beyond any applicable cure period more than once in the
prior twenty-four (24) months. Upon the proper exercise of such option to
extend, and provided that, as of the end of the initial Term, Tenant is not in
default under this Lease beyond any applicable cure period and Tenant has not
previously been in default beyond any applicable cure period under this Lease
more than once in the prior twenty-four (24) months, the Term, as it applies to
the Premises, shall be extended for a period of five (5) years at the monthly
base rent and on the other terms set forth in Paragraph 41(b) below. The rights
contained in this Paragraph 41 shall be personal to Tenant or a Permitted
Assignee.
(b) OPTION RENT. The monthly base rent payable by Tenant during the Option Term
(the "Option Rent") shall be equal to rent at which tenants, as of the
commencement of the Option Term, will be leasing non-sublease space comparable
in size, location and quality to the Premises, for a comparable term, which
comparable space is located in other comparable office buildings in the Cities
of Dublin or Pleasanton, California; provided, however, that in no event will
Option Rent be less than the Monthly Base Rent payable by Tenant for the last
year of the initial term of this Lease. All other terms and conditions of this
Lease shall apply throughout the Option Term; however, any obligation of
Landlord to construct tenant improvements or provide an allowance (if
applicable) shall not apply during the Option Term and Tenant shall, in no
event, have the option to extend the Term beyond the Option Term described in
Paragraph 41(a) above.
(c) EXERCISE OF OPTION. The option contained in this Paragraph 41 shall be
exercised by Tenant, if at all, and only in the following manner: (i) Tenant
shall deliver written notice to Landlord not more than twenty-four (24) months
nor less than twelve (12) months prior to the expiration of the initial Term,
stating that Tenant is exercising its option; (ii) Landlord, after receipt of
Tenant's notice, shall deliver notice (the "Option Rent Notice") to Tenant not
less than seven (7) months prior to the expiration of the initial Term, setting
forth the Option Rent; and (iii) if Tenant wishes to object to the Option Rent,
Tenant shall, on or before the earlier of (A) the date occurring six (6) months
prior to the expiration of the initial Term and (B) the date occurring thirty
(30) days after Tenant's receipt of the Option Rent Notice deliver written
notice thereof to Landlord, in which case the parties shall follow the
procedure, and the Option Rent shall be determined, as set forth in Paragraph
41(d) below.
(d) DETERMINATION OF OPTION RENT. In the event Tenant timely and appropriately
objects to the Option Rent, Landlord and Tenant shall attempt to agree upon the
Option Rent using their best good-faith efforts. If Landlord and Tenant fail to
reach agreement within ten (10) days following Tenant's objection to the Option
Rent, (the "Outside Agreement Date"), then each party shall make a separate
determination of the Option Rent, as the case may be, within five (5) days, and
such determinations shall be submitted to arbitration in accordance with
Subparagraphs (i) through (vii) below.
(i) Landlord and Tenant shall each appoint one arbitrator who shall by
profession be a real estate broker who shall have been active over the five (5)
year period ending on the date of such appointment in the leasing of commercial
properties in the Dublin area. The determination of the arbitrators shall be
limited solely to the issue area of whether Landlord's or Tenant's submitted
Option Rent, is the closest to the actual Option Rent as determined by the
arbitrators, taking into account the requirements of Paragraph 41(b) above. Each
such arbitrator shall be appointed within fifteen (15) days after the applicable
Outside Agreement Date.
(ii) The two arbitrators so appointed shall within ten (10) days of the date
of the appointment of the last appointed arbitrator agree upon and appoint a
third arbitrator who shall be qualified under the same criteria set forth
hereinabove for qualification of the initial two arbitrators.
(iii) The three arbitrators shall within thirty (30) days of the appointment
of the third arbitrator reach a decision as to whether the parties shall use
Landlord's or Tenant's submitted Option Rent, and shall notify Landlord and
Tenant thereof.
(iv) The decision of the majority of the three arbitrators shall be binding
upon Landlord and Tenant.
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(v) If either Landlord or Tenant fails to appoint an arbitrator within
fifteen (15) days after the applicable Outside Agreement Date, the arbitrator
appointed by one of them shall reach a decision, notify Landlord and Tenant
thereof, and such arbitrator's decision shall be binding upon Landlord and
Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third
arbitrator, or both parties fail to appoint an arbitrator, then the appointment
of the third arbitrator or any arbitrator shall be dismissed and the matter to
be decided shall be forthwith submitted to arbitration under the provisions of
the American Arbitration Association, but subject to the instruction set forth
in this Paragraph 41(d).
(vii) The cost of arbitration shall be paid by the non-prevailing party.
42. NON-DISTURBANCE AGREEMENT. Landlord agrees to deliver to Tenant, within
ninety (90) days after the execution of this Lease by both parties, a
commercially reasonable non-disturbance agreement from the holder of the
existing deed of trust against the Building.
43. LETTERS OF CREDIT.
(a) GENERAL.
(i) Concurrently with Tenant's execution of this Lease, Tenant shall
deliver to Landlord, as collateral for the full and faithful performance by
Tenant of all of its obligations under this Lease and for all losses and damages
Landlord may suffer as a result of any default by Tenant under this Lease, two
(2) irrevocable and unconditional negotiable letters of credit (individually,
the "Letter of Credit" and collectively, the "Letters of Credit"), in the
respective forms attached hereto as EXHIBIT "I" and EXHIBIT "J" and containing
the terms required herein, payable in the County of Contra Costa, California,
running in favor of Landlord issued by a financial institution acceptable to
Landlord, in the respective amounts set forth below (each, the "Letter of Credit
Amount'). Each of the Letters of Credit shall be (i) payable at sight and
irrevocable and unconditional, (ii) maintained in effect, whether through
replacement, renewal or extension, for the period from the Commencement Date and
continuing until the date (the "LC Expiration Date") which is sixty (60) days
after the expiration of the Term, as the same may have been extended, and Tenant
shall deliver a new Letter of Credit or certificate of renewal or extension to
Landlord at least thirty (30) days prior to the expiration of the Letter of
Credit, without any action whatsoever on the part of Landlord, (iii) subject to
the Uniform Customs and Practices for Documentary Credits (1993-Rev)
International Chamber of Commerce Publication #500, (iv) fully assignable by
Landlord, and (v) permit partial draws. In addition to the foregoing, the form
and terms of each of the Letters of Credit (and the bank issuing the same) shall
be acceptable to Landlord, in Landlord's sole discretion, and shall provide,
among other things, in effect that: (A) Landlord shall have the right to draw
down an amount up to the face amount of the Letter of Credit upon the
presentation to the issuing bank of Landlord's written statement that a default
by Tenant has occurred and is continuing under the Lease beyond any applicable
notice and cure periods and that such amount is due to Landlord under the terms
and conditions of this Lease, it being understood that if Landlord is a limited
liability company, corporation, partnership or other entity, then such statement
shall be signed by a managing member (if a limited liability company), an
officer (if a corporation), a general partner (if a partnership), or any
authorized party (if another entity) and (B) the Letter of Credit will be
honored by the issuing bank without inquiry as to the accuracy thereof and
regardless of whether the Tenant disputes the content of such statement.
(ii) Each of the Letters of Credit shall also provide that Landlord may, at
any time and without notice to Tenant and without first obtaining Tenant's
consent thereto, transfer all or any portion of its interest in and to the
Letter of Credit to another party, as a part of the assignment by Landlord of
its rights and interests in and to this Lease, which assignment may be to a
lender in connection with a loan obtained by Landlord or may be to a transferee
of the Building. In the event of a transfer of Landlord's interest in the
Building, Landlord shall transfer the Letter of Credit, in whole or in part (or
cause a substitute letter of credit to be delivered, as applicable) to the
transferee and thereupon Landlord shall, without any further agreement between
the parties, be released by Tenant from all liability therefor, and it is agreed
that the provisions hereof shall apply to every transfer or assignment of the
whole or any portion of said Letter of Credit to a new landlord. In connection
with any such transfer of the Letter of Credit by Landlord, Tenant shall, at
Tenant's sole cost and expense, execute and submit to the bank such
applications, documents and instruments as may be necessary to effectuate such
transfer and, Tenant shall be responsible for paying the bank's transfer and
processing fees in connection therewith.
(iii) With respect to each of the Letters of Credit, if, as result of any
application or use by Landlord of all or any part of the Letter of Credit, the
amount of the Letter of Credit shall be less than the Letter of Credit Amount,
Tenant shall, within five (5) days thereafter, provide Landlord with additional
letter(s) of credit in an amount equal to the deficiency (or a replacement
letter of credit in the total Letter of Credit Amount), and any such additional
(or replacement) letter of credit shall comply with all of the provisions of
this Paragraph 43, and if Tenant fails to comply with the foregoing,
notwithstanding anything to the contrary contained in Paragraph 22 above, the
same shall constitute an incurable default by Tenant. Without limiting the
generality of the foregoing, if the Letter of Credit expires earlier than the LC
Expiration Date, Landlord will accept a renewal thereof or substitute letter of
credit (such renewal or substitute letter of credit to be in effect and
delivered to Landlord, as applicable, not later than thirty (30) days prior to
the expiration of the Letter of Credit), which shall be irrevocable and
automatically renewable as above provided through the LC Expiration Date upon
the same terms as the expiring Letter of Credit or such other terms as may be
acceptable to Landlord in its sole discretion. However, if the Letter of Credit
is not timely renewed or a substitute letter of credit is not timely received,
or if Tenant fails to maintain the Letter
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of Credit in the amount and in accordance with the terms set forth in this
Paragraph 43, Landlord shall have the right to present the Letter of Credit to
the bank in accordance with the terms of this Paragraph 43, and the entire sum
evidenced thereby shall be paid to and held by Landlord as collateral for
performance of all of Tenant's obligations under this Lease and for all losses
and damages Landlord may suffer as a result of any default by Tenant under this
Lease. Tenant may thereafter present Landlord with a replacement letter of
credit complying with the terms hereunder, and Landlord shall promptly
thereafter reimburse Tenant any such drawn amounts, except to the extent of
amounts applied by Landlord against Tenant's delinquent obligations under the
Lease and costs incurred by Landlord in connection with such draw under the
Letter of Credit. Landlord agrees to apply any amounts drawn under the Letters
of Credit only to cover Tenant's obligations under this Lease and any losses and
damages Landlord may suffer as a result of any default by Tenant under this
Lease. If any such drawn amounts remain after the expiration or earlier
termination of this Lease and provided that all of Tenant's obligations under
this Lease have been performed in full and Landlord has been compensated in full
for all losses and damages Landlord may have suffered as a result of any default
by Tenant under this Lease, then Landlord shall promptly deliver such remaining
amount to Tenant.
(iv) Tenant hereby acknowledges and agrees that Landlord is entering into
this Lease in material reliance upon the ability of Landlord to draw upon the
Letter of Credit upon the occurrence of any default on the part of Tenant under
this Lease beyond any applicable notice and cure periods. If there shall occur a
default under this Lease as set forth in Paragraph 22 beyond any applicable
notice and cure periods, Landlord may, but without obligation to do so, draw
upon the Letter of Credit, in part or in whole, to the extent necessary to cure
such default of Tenant and/or to compensate Landlord for any and all damages of
any kind or nature sustained or which may be sustained by Landlord resulting
from Tenant's default; provided, however, that if Tenant thereafter cures such
default so that with the Letter of Credit draw Landlord has received a double
payment for the same obligation, then Landlord agrees to return the excess
payment to Tenant. Tenant agrees not to interfere in any way with payment to
Landlord of the proceeds of the Letter of Credit, either prior to or following a
"draw" by Landlord of any portion of the Letter of Credit, regardless of whether
any dispute exists between Tenant and Landlord as to Landlord's right to draw
upon the Letter of Credit. No condition or term of this Lease shall be deemed to
render the Letter of Credit conditional to justify the issuer of the Letter of
Credit in failing to honor a drawing upon such Letter of Credit in a timely
manner.
(v) Landlord and Tenant acknowledge and agree that in no event or
circumstance shall the Letter of Credit or any renewal thereof or substitute
therefor be (i) deemed to be or treated as a "security deposit" within the
meaning of California Civil Code Section 1950.7, (ii) subject to the terms of
such Section 1950.7, or (iii) intended to serve as a "security deposit" within
the meaning of such Section 1950.7. The parties hereto (A) recite that the
Letter of Credit is not intended to serve as a security deposit and such Section
1950.7 and any and all other laws, rules and regulations applicable to security
deposits in the commercial context ("Security Deposit Laws") shall have no
applicability or relevancy thereto and (B) waive any and all rights, duties and
obligations either party may now or, in the future, will have relating to or
arising from the Security Deposit Laws.
(b) LETTER OF CREDIT A.
(i) The Letter of Credit in the form attached hereto as EXHIBIT "I" is
referred to herein as "Letter of Credit A." Letter of Credit A shall be in the
amount of Eight Hundred Thirty Thousand Dollars ($830,000.00).
(ii) Notwithstanding the foregoing, in the event that at any time during the
Term Tenant reports EBITDA (Earnings Before Interest, Taxes, Depreciation and
Amortization), determined in accordance with generally accepted accounting
principles, in excess of Five Million Dollars ($5,000,000.00) per quarter for
four (4) consecutive quarters, then Tenant shall have the right to have Letter
of Credit A terminated, provided that Tenant is not in default under this Lease
at the time of such termination.
(c) LETTER OF CREDIT B.
(i) The Letter of Credit in the form attached hereto as EXHIBIT "J" is
referred to herein as "Letter of Credit B." Letter of Credit B shall be in the
amount of One Million Nine Hundred Seventy-Five Thousand Dollars
($1,975,000.00).
(ii) Notwithstanding anything to the contrary set forth in this Paragraph
43, it is hereby agreed that the Letter of Credit Amount of Letter of Credit B
shall be reduced by Ninety-Eight Thousand Seven Hundred Fifty Dollars
($98,750.00) on each anniversary of the Commencement Date commencing on the
first anniversary thereof, provided that Tenant is not in default and has not
previously been in default under this Lease during the prior thirty-six (36)
months (or the elapsed portion of the Term, whichever is less) and Landlord has
not drawn down on any portion of the Letter of Credit prior to such reduction
date.
(iii) Notwithstanding anything to the contrary set forth in this Paragraph
43, it is hereby agreed that in addition to the foregoing reduction in the
Letter of Credit Amount of Letter of Credit B, the Letter of Credit Amount of
Letter of Credit B shall be reduced by fifty percent (50%) of the outstanding
balance of Letter of Credit B (by amendment to or replacement of Letter of
Credit B) effective on the anniversary of the Commencement Date that next
follows Tenant's achievement of the LC Milestones (as defined below), provided
that (A) Tenant achieves the LC Milestones and (B) Tenant is not in default and
has not previously been in default under this Lease during the prior thirty-six
(36) months and Landlord has not
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drawn down on any portion of the Letter of Credit prior to such reduction date.
Thereafter, the Letter of Credit Amount of Letter of Credit B shall be reduced
annually, commencing on the next anniversary of the Commencement Date following
the date on which the Letter of Credit Amount is reduced pursuant to this
Paragraph 43(c)(iii), on a straight-line basis over the remaining Term.
(iv) As used herein, the term "LC Milestones" shall mean the following
milestones: (A) the United States Food and Drug Administration (FDA) has
approved the new drug application (NDA) for Rubitecan, (B) Tenant has launched
the sale of Rubitecan in the United States, (C) acceptance of European NDA for
Rubitecan has occurred, (D) Tenant has had gross sales of at least One Hundred
Million Dollars ($100,000,000.00) cumulatively over four (4) consecutive
quarters, and (E) Tenant has had positive EBITDA (Earnings Before Interest,
Taxes, Depreciation and Amortization), determined in accordance with generally
accepted accounting principles, for three (3) consecutive quarters.
44. RIGHT OF FIRST OFFER. Landlord hereby grants the originally named
Tenant herein (or any Permitted Assignee), a right of first offer to lease the
fourth (4th) floor of the Building (the "Fourth Floor"), if the Fourth Floor
becomes available for lease (as provided below, as determined by Landlord)
during the Term or the Option Term, provided that Landlord approves Tenant's
financial condition at the time the Fourth Floor becomes available for lease,
which approval shall not be unreasonably withheld. For purposes hereof, the
Fourth Floor shall become available for lease following the expiration or
earlier termination of the initial tenant's lease therefor (including renewals
whether or not such renewal is pursuant to an express written provision in such
lease and regardless of whether any such renewal is consummated pursuant to a
new lease or lease amendment), and after the tenant thereunder has vacated such
space. Such right of first offer shall be exercisable only by written notice
delivered by Tenant to Landlord as provided below, provided that, as of the date
of delivery of such notice, Tenant is not in default under this Lease beyond any
applicable cure period and Tenant has not previously been in default under this
Lease beyond any applicable cure period more than once in the prior twenty-four
(24) months. The rights contained in this Paragraph 44 shall be personal to
Tenant or a Permitted Assignee.
(a) TERM OF FIRST OFFER. Landlord shall give Tenant written notice (the "First
Offer Notice") that the Fourth Floor will or has become available for lease by
Tenant as provided above. The First Offer Notice shall set forth the terms upon
which Landlord would lease the Fourth Floor to Tenant, including, without
limitation (i) the anticipated date upon which the Fourth Floor will be
available for lease by Tenant and the commencement date therefor, (ii) a
schedule of construction of tenant improvements for the Fourth Floor, if any,
(iii) the Monthly Base Rent payable for the Fourth Floor, (iv) any tenant
improvement allowance for such Fourth Floor, and (v) the term of the lease for
such space which shall in all events be coterminous with the Term for the
original Premises. All other terms and conditions of this Lease shall apply to
Tenant's lease of the Fourth Floor.
(b) PROCEDURE FOR ACCEPTANCE. On or before the date which is ten (10) business
days after Tenant's receipt of Landlord's First Offer Notice (the "Election
Date"), Tenant shall deliver written notice to Landlord ("Tenant's Election
Notice") pursuant to which Tenant shall have the right to elect either to: (i)
lease the entire Fourth Floor upon the terms set forth in the First Offer
Notice; or (ii) refuse to lease the Fourth Floor. If Tenant does not respond in
writing to Landlord's First Offer Notice by the Election Date, Tenant shall be
deemed to have elected not to lease the Fourth Floor. If Tenant elects or is
deemed to have elected not to lease the Fourth Floor, then Tenant's right of
first offer set forth in this Paragraph 44 shall terminate, and Landlord shall
thereafter have the right to lease all or any portion of the Fourth Floor to
anyone to whom Landlord desires on any terms Landlord desires (which lease is
referred to herein as a "Third-Party Fourth Floor Lease"). If the Fourth Floor
becomes available for lease during the Term or the Option Term following the
expiration or earlier termination of any Third-Party Fourth Floor Lease
(including renewals whether or not such renewal is pursuant to an express
written provision in such lease and regardless of whether any such renewal is
consummated pursuant to a new lease or lease amendment), and after the tenant
thereunder has vacated such space, then Tenant shall again have a right of first
offer to lease the Fourth Floor in accordance with the provisions of this
Paragraph 44.
(c) AMENDMENT TO LEASE. If Tenant leases the Fourth Floor pursuant to this
Paragraph 44, Landlord and Tenant shall promptly execute an amendment to this
Lease covering the Fourth Floor and the lease terms thereof. Notwithstanding
anything to the contrary contained herein, Tenant must elect to exercise its
right of first offer provided herein, if at all, with respect to the entire
Fourth Floor, and Tenant may not elect to lease only a portion thereof.
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IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
<TABLE>
<CAPTION>
TENANT: LANDLORD:
<S> <C>
SUPERGEN, INC., KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited
a Delaware corporation partnership
By: /s/ Ronald H. Spair By: KDC-DUBLIN, LLC, a Delaware limited liability
------------------------------------- company, its general partner
Print Name: Ronald H. Spair
------------------------
Print Title: CFO
------------------------
By: KDC-OC, LLC, a Delaware limited liability
company, its managing member
By: -------------------------------------
Print Name: ------------------------- By: Koll Development Company, LLC, a
Print Title: ------------------------ Delaware limited liability company,
its manager
By: /s/ Michael G. Parker
------------------------------------
Print Name: Michael G. Parker
---------------------------
Print Title: Senior VP, Partner
---------------------------
</TABLE>
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EXHIBIT "A-I"
SITE PLAN
[To be supplied]
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<PAGE>
EXHIBIT "A-II"
OUTLINE OF FLOOR
PLAN OF PREMISES
[To be supplied]
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<PAGE>
EXHIBIT "B"
RENTABLE SQUARE FEET AND USABLE SQUARE FEET
1. The term "Rentable Square Feet" as used in the Lease will be deemed to
include: (a) with respect to the Premises, the usable area of the Premises
determined in accordance with the Method for Measuring Floor Area in Office
Buildings, ANSI Z65.1-1996 (the "BOMA Standard"), plus a pro rata portion of the
main lobby area on the ground floor and all elevator machine rooms, electrical
and telephone equipment rooms and mail delivery facilities and other areas used
by all tenants of the Building, if any, plus (i) for single tenancy floors, all
the area covered by the elevator lobbies, corridors, special stairways,
restrooms, mechanical rooms, electrical rooms and telephone closets on such
floors, or (ii) for multiple tenancy floors, a pro-rata portion of all of the
area covered by the elevator lobbies, corridors, special stairways, restrooms,
mechanical rooms, electrical rooms and telephone closets on such floor; and (b)
with respect to the Building, the total rentable area for all floors in the
Building computed in accordance with the provisions of Subparagraph 1(a) above.
In calculating the "Rentable Square Feet" of the Premises or the Building, the
area contained within the exterior walls of the Building stairs, fire towers,
vertical ducts, elevator shafts, flues, vents, stacks and major pipe shafts will
be excluded.
2. The term "Usable Square Feet" as used in EXHIBIT "C" with respect to
the Premises, if applicable, will be deemed to include the usable area of the
Premises as determined in accordance with the BOMA Standard.
3. For purposes of establishing Tenant's Percentage, Tenant's Operating
Expense Allowance, the amount of the Tenant Improvement Allowance in EXHIBIT "C"
and Monthly Base Rent as shown in Paragraph 1 of the Lease, the number of
Rentable Square Feet of the Premises is deemed to be as set forth in
Subparagraph 1(g) of the Lease, and the number of Rentable Square Feet of the
Building is deemed to be as set forth in Subparagraph 1(f) of the Lease. From
time to time at Landlord's option, Landlord's architect may redetermine the
actual number of Rentable Square Feet of the Premises, and the Building, and the
actual number of Usable Square Feet of the Premises respectively, based upon the
criteria set forth in Paragraph 1 and Paragraph 2 above, which determination
will be conclusive, and thereupon Tenant's Percentage, Tenant's Operating
Expense Allowance, Monthly Base Rent and (if applicable) the Tenant Improvement
Allowance will be adjusted accordingly.
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EXHIBIT "C"
WORK LETTER AGREEMENT
[TENANT BUILD - ALLOWANCE]
This WORK LETTER AGREEMENT ("Work Letter Agreement") is entered into as of June
23, 2000 by and between KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited
partnership ("Landlord"), and SUPERGEN, INC., a Delaware corporation ("Tenant").
R E C I T A L S :
A. Concurrently with the execution of this Work Letter Agreement, Landlord
and Tenant have entered into a lease (the "Lease") covering certain premises
(the "Premises") more particularly described in EXHIBIT "A" attached to the
Lease. All terms not defined herein have the same meaning as set forth in the
Lease. To the extent applicable, the provisions of the Lease are incorporated
herein by this reference.
B. In order to induce Tenant to enter into the Lease and in consideration
of the mutual covenants hereinafter contained, Landlord and Tenant agree as
follows:
1. BASE BUILDING AND TENANT IMPROVEMENTS.
(a) BASE BUILDING SHELL. The base building shell constructed by Landlord,
as further described on the "as-built" plans prepared by Hoover Associates and
dated February 1999 (Bulletin #3), which have been submitted to Tenant for
Tenant's information, shall include the following:
(i) All core areas, elevator lobbies and restrooms on the first and second
floors of the Building or in the main lobby of the Building shall be complete.
(ii) The main HVAC loop for the first and second floors of the Building
shall be in place and ready to receive mixing boxes for zoning.
(iii) The main fire sprinkler risers and grid for the first and second floors
of the Building shall be in place, ready for drop down.
(iv) After Tenant's approval of the Final Plans (as defined below), all
perimeter walls of the Premises shall be sheet-rocked and ready for finish.
(v) The Tenant-side of the core partitions on the first and second floors
of the Building shall be fire taped.
(vi) The column furring at exterior columns in the Premises shall be finish
taped.
(vii) The second floor of the Building shall be covered with 3-1/4" concrete.
(viii) Electrical service shall be provided to closets on the first and second
floors of the Building.
(ix) The telephone sleeve shall be provided to closets on the first and
second floors of the Building.
(b) TENANT IMPROVEMENTS. As used in the Lease and this Work Letter
Agreement, the term "Tenant Improvements" or "Tenant Improvement Work" or
"Tenant's Work" means those items of general tenant improvement construction
shown on the Final Plans (described in Paragraph 4 below), more particularly
described in Paragraph 5 below.
2. [INTENTIONALLY DELETED]
3. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints the following
person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Work Letter Agreement: Jeffrey Logan.
Tenant hereby appoints the following person(s) as Tenant's representative
("Tenant's Representative") to act for Tenant in all matters covered by this
Work Letter Agreement: Joseph Iovino.
All communications with respect to the matters covered by this Work Letter
Agreement are to made to Landlord's Representative or Tenant's Representative,
as the case may be, in writing in compliance with the notice provisions of the
Lease. Either party may change its representative under this Work Letter
Agreement at any time by written notice to the other party in compliance with
the notice provisions of the Lease.
4. TENANT IMPROVEMENT PLANS.
(a) PREPARATION OF SPACE PLANS. Tenant shall cause its architect ("Tenant's
Architect") to promptly prepare preliminary space plans for the layout of
Premises ("Space Plans"). The Space Plans are to be sufficient to convey the
architectural design of the Premises and layout of the Tenant Improvements
therein and are to be submitted to Landlord for Landlord's approval. If Landlord
reasonably disapproves any aspect of the Space Plans, Landlord will advise
Tenant in writing of such disapproval and the reasons
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<PAGE>
therefor. Tenant will then submit to Landlord, for Landlord's approval, a
redesign of the Space Plans incorporating the revisions reasonably required by
Landlord.
(b) PREPARATION OF FINAL PLANS. Based on the approved Space Plans, Tenant's
Architect will prepare complete architectural plans, drawings and specifications
and complete engineered mechanical, structural and electrical working drawings
for all of the Tenant Improvements for the Premises (collectively, the "Final
Plans"). The Final Plans will show: (a) the subdivision (including partitions
and walls), layout, lighting, finish and decoration work (including carpeting
and other floor coverings) for the Premises; (b) all internal and external
communications and utility facilities which will require conduiting or other
improvements from the base Building shell work and/or within common areas; and
(c) all other specifications for the Tenant Improvements. The Final Plans will
be submitted to Landlord for approval to confirm that they are consistent with
the Space Plans, and Landlord shall notify Tenant of Landlord's approval or
disapproval thereof within ten (10) days after receipt. If Landlord reasonably
disapproves any aspect of the Final Plans based on any inconsistency with the
Space Plans, Landlord shall advise Tenant in writing of such disapproval and the
reasons therefor within such 10-day period. Tenant will then cause Tenant's
Architect to redesign the Final Plans incorporating the revisions reasonably
requested by Landlord and reasonably acceptable to Tenant so as to make the
Final Plans consistent with the Space Plans. Landlord agrees to be diligent in
reviewing and approving such modified Final Plans.
(c) REQUIREMENTS OF TENANT'S FINAL PLANS. Tenant's Final Plans will include
locations and complete dimensions, and the Tenant Improvements, as shown on the
Final Plans, will: (i) be compatible with the Building shell and with the
design, construction and equipment of the Building; (ii) if not comprised of the
Building standards set forth in the written description thereof (the
"Standards"), then compatible with and of at least equal quality as the
Standards and approved by Landlord; (iii) comply with all applicable laws,
ordinances, rules and regulations of all governmental authorities having
jurisdiction, and all applicable insurance regulations; (iv) not require
Building service beyond the level normally provided to other tenants in the
Building and will not overload the Building floors; and (v) be of a nature and
quality consistent with the overall objectives of Landlord for the Building, as
determined by Landlord in its reasonable but subjective discretion.
(d) SUBMITTAL OF FINAL PLANS. Once approved by Landlord and Tenant,
Tenant's Architect will submit the Final Plans to the appropriate governmental
agencies for plan checking and the issuance of a building permit. Tenant's
Architect, subject to Landlord's approval, will make any changes to the Final
Plans which are requested by the applicable governmental authorities to obtain
the building permit. After approval of the Final Plans no further changes may be
made without the prior written approval of both Landlord and Tenant, and then
only after agreement by Tenant to pay any excess costs resulting from the design
and/or construction of such changes. Tenant hereby acknowledges that any such
changes will be subject to the terms of Paragraph 10 below.
(e) CHANGES TO SHELL OF BUILDING. If the Final Plans or any amendment
thereof or supplement thereto shall require changes in the Building shell, the
increased cost of the Building shell work caused by such changes will be paid
for by Tenant or charged against the "Allowance" described in Paragraph 5 below.
(f) WORK COST ESTIMATE AND STATEMENT. Prior to the commencement of
construction of any of the Tenant Improvements shown on the Final Plans, Tenant
will obtain a written estimate of the cost to complete the Tenant Improvement
Work (the "Work Cost"), which written estimate will be based on the Final Plans
taking into account any modifications which may be required to reflect changes
in the Final Plans required by the City or County in which the Premises are
located (the "Work Cost Estimate"). Landlord and Tenant will either approve the
Work Cost Estimate or disapprove specific items in which event Tenant will cause
Tenant's Architect to revise the Final Plans to reflect deletions of and/or
substitutions for such disapproved items. Upon approval of the Work Cost
Estimate by Landlord and Tenant (such approved Work Cost Estimate to be
hereinafter known as the "Work Cost Statement"), Tenant shall cause its
contractor to commence the construction of the items included in the Work Cost
Statement pursuant to Paragraph 6 hereof. If the total costs reflected in the
Work Cost Statement exceed the Allowance described in Paragraph 5 below, Tenant
agrees to pay such excess on a pro rata basis concurrently with Landlord's
disbursement of the Allowance. Throughout the course of construction, any
differences between the estimated Work Cost in the Work Cost Statement and the
actual Work Cost will be reasonably determined by Landlord and Tenant and
appropriate adjustments and payments by Landlord or Tenant, as the case may be,
will be made promptly thereafter.
5. PAYMENT FOR THE TENANT IMPROVEMENTS.
(a) ALLOWANCE. Landlord hereby grants to Tenant a tenant improvement
allowance of $25.00 per Rentable Square Foot of the Premises (the "Allowance").
The Allowance is to be used only for:
(i) Payment of the cost of preparing the Space Plans and the Final Plans,
including mechanical, electrical, plumbing and structural drawings and of all
other aspects necessary to complete the Final Plans. The Allowance will not be
used for the payment of extraordinary design work not consistent with the scope
of the Standards (i.e., above-standard design work) or for payments to any other
consultants, designers or architects other than Landlord's architect and/or
Tenant's architect.
(ii) The payment of plan check, permit and license fees relating to
construction of the Tenant Improvements.
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<PAGE>
(iii) Construction of the Tenant Improvements, including, without limitation,
the following:
(aa) Installation within the Premises of all partitioning, doors, floor
coverings, ceilings, wall coverings and painting, millwork and similar items;
(bb) All electrical wiring, lighting fixtures, outlets and switches, and
other electrical work necessary for the Premises;
(cc) The furnishing and installation of all duct work, terminal boxes,
diffusers and accessories necessary for the heating, ventilation and air
conditioning systems within the Premises, including the cost of meter and key
control for after-hour air conditioning;
(dd) Any additional improvements to the Premises required for Tenant's use
of the Premises including, but not limited to, odor control, special heating,
ventilation and air conditioning, noise or vibration control or other special
systems or improvements;
(ee) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and accessories,
necessary for the Premises;
(ff) All plumbing, fixtures, pipes and accessories necessary for the
Premises;
(gg) Testing and inspection costs; and
(hh) Fees for the contractor including, but not limited to, fees and costs
attributable to general conditions associated with the construction of the
Tenant Improvements.
Notwithstanding the foregoing, the Work Cost shall not include (and Tenant shall
have no responsibility for and the Allowance shall not be used for) the
following: (a) costs for improvements which are not shown on or described in the
Final Plans or modifications thereof pursuant to Paragraph 4(d) above; (b) costs
incurred to remove Hazardous Materials from the Premises or the surrounding area
(subject to the provisions of Subparagraph 8(c) of the Lease); (c) interest and
other costs of financing construction costs payable by Landlord; (d) costs
recoverable by Landlord upon account of warranties and insurance; (e) penalties
and late charges attributable to Landlord's wrongful failure to pay construction
costs in breach of its obligations under Paragraph 5(g) below; and (f) costs to
bring the Building shell into compliance with applicable laws and restrictions,
including, without limitation, the Americans with Disabilities Act and
environmental laws, except as otherwise provided in Paragraph 4(e) above and
except as otherwise required by Tenant's specific use and/or design of the
Premises.
(b) EXCESS COSTS. The cost of each item referenced in Paragraph 5(a) above
shall be charged against the Allowance. If the Work Cost exceeds the Allowance,
Tenant shall be solely responsible for such excess. In no event will the
Allowance be used to pay for Tenant's furniture, artifacts, equipment, telephone
systems or any other item of personal property which is not affixed to the
Premises.
(c) CHANGES. If, after the Final Plans have been prepared and the Work Cost
Statement has been established, Tenant requires any changes or substitutions to
the Final Plans, any additional costs related thereto which cause the aggregate
cost of the Tenant Improvements to exceed the Allowance shall be paid by Tenant
as provided above. Any changes to the Final Plans will be approved by Landlord
and Tenant in the manner set forth in Paragraph 4 above and will, if necessary,
require the Work Cost Statement to be revised and agreed upon between Landlord
and Tenant in the manner set forth in Subparagraph 4(f) above. Landlord will
have the right to decline Tenant's request for a change to the Final Plans if
such changes are inconsistent with the provisions of Paragraph 4 above.
(d) GOVERNMENTAL COST INCREASES. If increases in the cost of the Tenant
Improvements as set forth in the Work Cost Statement are due to requirements of
any governmental agency, Tenant shall be solely responsible for the amount of
such increase including fees for the contractor; provided, however, that
Landlord will first apply toward any such increase any remaining balance of the
Allowance.
(e) UNUSED ALLOWANCE AMOUNTS. Any unused portion of the Allowance upon
completion of the Tenant Improvements will not be refunded to Tenant or be
available to Tenant as a credit against any obligations of Tenant under the
Lease.
(f) UTILITY REBATES AND CREDITS. Landlord shall be entitled to receive,
retain and/or use, as applicable, all rebates and credits provided by any and
all utility companies in connection with the Tenant Improvements.
(g) DISBURSEMENT OF CONSTRUCTION ALLOWANCE. Provided Tenant is not in
default under the Lease or this Work Letter Agreement, Landlord shall disburse
the Allowance to Tenant to reimburse Tenant for the actual construction costs
which Tenant incurs in connection with the construction of the Tenant
Improvements in accordance with the following:
(i) Tenant shall cause its contractor to deliver to Landlord, by the fifth
(5th) day of each month (the "Current Month"), an application for payment in the
form of a typed, itemized, reasonably detailed statement (the "Statement"). The
Statement shall be applicable to the period commencing on the first (1st) day of
the month preceding the Current Month and ending on the last day of such month
(the
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"Payment Request Period"). Delivered with the Statement shall be (a) evidence of
the absence of liens which are the subject of the Statement as reasonably
required by Landlord (including conditional lien releases applicable to all work
performed during the Payment Request Period and unconditional lien releases
applicable to all work performed prior to the Payment Request Period), and (b)
invoices, receipts and bills evidencing the costs which are the subject of the
Statement (collectively, the "Supporting Items"). The Statement shall constitute
a representation by Tenant that the work identified therein as having been
performed has been approved by Tenant and performed in a good and workmanlike
manner and in accordance with the requirements of the Lease and this Work Letter
Agreement.
(ii) Landlord will review the Statement for each Payment Request Period and
will, within thirty (30) days after receipt of said Statement and the Supporting
Items, pay to Tenant, who shall pay to Tenant's contractor, ninety percent (90%)
of the amount Landlord reasonably approves; in the event Landlord does not
approve a Statement for reasons related to defective or unsatisfactory work,
Landlord will only be obligated to pay ninety percent (90%) of the portion it
approves. Within fifteen (15) days after receipt of a Statement, Landlord shall
notify Tenant in writing of the reason for withholding any portion of the amount
set forth in such Statement. Any single payment, or series of payments, by
Landlord in excess of said ninety percent (90%) sum shall not constitute a
waiver of Landlord's right to pay only ninety percent (90%) in the future.
Except for sums withheld for defective or unsatisfactory work that is later
remedied to Landlord's reasonable satisfaction, no portion of the sums retained
by Landlord pursuant to this subparagraph shall be payable until the final
payment by Landlord is made pursuant to this Work Letter Agreement.
(iii) Final payment, including the retainer, shall be due and payable
thirty-five (35) days after recordation of a valid Notice of Completion with
respect to the Tenant Improvement Work, provided Tenant's contractor has timely
delivered to Landlord the last Statement and Supporting Items.
(iv) Each Statement shall only include amounts for work authorized under
this Work Letter Agreement and actually performed.
(v) Notwithstanding anything to the contrary set forth above, Landlord
shall not be required to make final payment until (a) Tenant's contractor has
certified to Landlord that the Tenant Improvements have been substantially
completed in accordance with the Final Plans, (b) Tenant has delivered to
Landlord one (1) set of reproducible "as-built" plans for the Tenant
Improvements as prepared by Tenant's Architect, and (c) Tenant has accepted
possession of the Premises and opened for business therein in accordance with
the Lease.
(h) BOOKS AND RECORDS. Tenant shall cause its contractor to maintain
complete and accurate books and records in accordance with generally accepted
accounting principles of these expenditures for at least two (2) years. Tenant
shall cause its contractor to make available to Landlord within five (5)
business days following Landlord's notice requiring the audit, all books and
records maintained by Tenant's contractor pertaining to the construction and
completion of the Tenant Improvements. In addition to all other remedies which
Landlord may have pursuant to the Lease, Landlord may recover from Tenant the
reasonable cost of its audit if the audit discloses that Tenant's contractor
falsely reported to Landlord expenditures which were not in fact made or falsely
reported a material amount of any expenditure or the aggregate expenditures.
6. CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall enter into a
construction contract (the "Construction Contract") with a contractor reasonably
acceptable to Landlord, on a form and in substance reasonably acceptable to
Landlord and Tenant, for the installation of the Tenant Improvements in
accordance with the Final Plans. Tenant shall supervise the completion of such
work and shall use diligent efforts to secure completion of the Tenant
Improvements in a good and workmanlike manner in accordance with the Final Plans
and the Construction Contract. Landlord shall have the right to approve all
change order requests; provided Landlord responds to a change order request
within three (3) business of request. Tenant agrees to use diligent efforts to
cause construction of the Tenant Improvements to commence promptly following the
issuance of a building permit for the Tenant Improvements.
7. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, consistent with its
obligation to other tenants in the Building, if appropriate and necessary, make
the freight/construction elevator reasonably available to Tenant in connection
with initial decorating, furnishing and moving into the Premises. Tenant agrees
to pay for any after-hours staffing of the freight/construction elevator, if
needed.
8. COMMENCEMENT DATE AND SUBSTANTIAL COMPLETION.
(a) COMMENCEMENT DATE. The Term of the Lease will commence on the date (the
"Commencement Date") which is the earlier of: (i) the date Tenant moves into the
Premises to commence operation of its business in all or any portion of the
Premises; (ii) the date the Tenant Improvements have been "substantially
completed" (as defined below); or (iii) November 20, 2000.
(b) SUBSTANTIAL COMPLETION; PUNCH-LIST. For purposes of Subparagraph
8(a)(ii) above, the Tenant Improvements will be deemed to be "substantially
completed" when Tenant's contractor certifies in writing to Landlord and Tenant
that (a) all of the Tenant Improvement Work required to be performed by Tenant
under this Work Letter Agreement, other than decoration and minor "punch-list"
type items and adjustments which do not materially interfere with Tenant's
access to or use of the Premises, has been
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completed; and (b) Tenant has obtained a temporary certificate of occupancy or
other required equivalent approval from the local governmental authority
permitting occupancy of the Premises. Within ten (10) days after receipt of such
certificate from Tenant's contractor, Tenant and Landlord will conduct a
walk-through inspection of the Premises to prepare a written punch-list
specifying those decoration and other punch-list items which require completion,
which items Tenant will cause its contractor to diligently complete thereafter.
(c) DELIVERY OF POSSESSION. Landlord agrees to use its commercially
reasonable efforts to deliver possession of the Premises to Tenant on or before
November 20, 2000 (the "Scheduled Turnover Date"). Tenant agrees that if
Landlord is unable to deliver possession of the Premises to Tenant on or prior
to the Scheduled Turnover Date, the Lease will not be void or voidable, nor will
Landlord be liable to Tenant for any loss or damage resulting therefrom so long
as Landlord has used and continues to use commercially reasonable efforts to
deliver possession of the Premises to Tenant. In addition, Landlord agrees to
use commercially reasonable efforts to obtain a temporary certificate of
occupancy for the Building on or before November 20, 2000.
9. UNION LABOR. Reference is hereby made to Paragraph 40 of the Lease
which requires the use of union labor, which provision in hereby deemed
incorporated herein in its entirety.
10. MISCELLANEOUS CONSTRUCTION COVENANTS.
(a) NO LIENS. At no time shall Tenant do or permit anything to be done whereby
the Tenant Improvements or the Premises may be subjected to any mechanic's,
materialmen's or other liens or encumbrances arising out of the construction of
the Tenant Improvements, and if any mechanic or materialmen liens are filed
against the Tenant Improvements or the Premises as a result of or in connection
with the construction of the Tenant Improvements, Tenant shall immediately cause
such liens to be removed of record by either paying off the lien or procuring
and recording a release bond in accordance with California Civil Code Section
3143 and Section 3171. If Tenant fails to remove such lien, and such failure
continues for ten (10) days after written demand by Landlord to do so, Landlord
shall have the right, but not the obligation, in addition to all other rights
and remedies available to Landlord under the Lease and this Work Letter
Agreement, to procure and cause to be recorded a statutory lien release bond and
to deduct from the Allowance all costs incurred in procuring such bond. Landlord
shall have the right at any time and from time to time to post and maintain on
the Premises such notices as may be necessary to protect the Tenant Improvements
and the Premises and Landlord from mechanic's liens, materialmen's liens or
liens of a similar nature. Tenant shall give notice to Landlord not later than
ten (10) days prior to the commencement of any work of any nature contemplated
by the Lease.
(b) DILIGENT CONSTRUCTION. Tenant will promptly, diligently and continuously
pursue construction of the Tenant Improvements to successful completion in full
compliance with the Final Plans, the Construction Contract, and this Work Letter
Agreement. Landlord and Tenant shall cooperate with one another during the
performance of Tenant's Work to effectuate such work in a timely and compatible
manner.
(c) COMPLIANCE WITH LAWS. Tenant will construct the Tenant Improvements in a
safe and lawful manner. Tenant shall, at its sole cost and expense, subject to
proper application of the Allowance as provided herein, comply with all
applicable laws and all regulations and requirements of, and all licenses and
permits issued by, all municipal or other governmental bodies with jurisdiction.
Copies of all filed documents and all permits and licenses shall be provided to
Landlord. Any portion of the Tenant Improvements which is not acceptable to any
applicable governmental body, agency or department, or not reasonably
satisfactory to Landlord in accordance with the Final Plans, shall be promptly
repaired or replaced by Tenant at Tenant's expense. Notwithstanding any failure
by Landlord to object to any such Tenant Improvements, Landlord shall have no
responsibility therefor. Tenant shall notify Landlord in writing not less than
ten (10) days prior to the commencement of the construction of any portion of
the Tenant Improvements as to name, telephone number and responsible party for
each and every contractor and/or subcontractor who is about to commence work at
the Premises.
(d) INDEMNIFICATION. Tenant hereby indemnifies and agrees to defend and hold
Landlord and the Premises harmless from and against any and all suits, claims,
actions, losses, costs or expenses (including, without limitation, claims for
workers' compensation) of any nature whatsoever, together with reasonable
attorneys' fees for counsel of Landlord's choice, arising out of or in
connection with the Tenant Improvements or the performance of Tenant's Work
(including, but not limited to, claims for breach of warranty, personal injury
or property damage), except for claims arising out of any breach by Landlord of
its obligations under this Work Letter Agreement or any negligent act or
omission of Landlord or its agents or employees.
(e) INSURANCE. Construction of the Tenant Improvements shall not proceed without
Tenant causing its contractor to first acquire workers' compensation and
comprehensive general public liability insurance and property damage insurance
as well as "All Risks - Special Form" builders' risk insurance, with minimum
coverage of $2,000,000 or such other amount as may be approved by Landlord in
writing and issued by an insurance company reasonably satisfactory to Landlord.
Not less than ten (10) days before commencing the construction of the Tenant
Improvements, certificates of such insurance shall be furnished to Landlord or,
if requested, the original policies thereof shall be submitted for Landlord's
approval. All such policies shall provide that thirty (30) days prior notice
must be given to Landlord before modification, termination or cancellation. All
insurance policies maintained pursuant to this Work Letter
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<PAGE>
Agreement shall name Landlord and any lender with an interest in the Premises as
additional insureds and comply with all of the applicable terms and provisions
of the Lease relating to insurance.
(f) CONSTRUCTION DEFECTS. Landlord shall have no responsibility for the Tenant
Improvements and Tenant will remedy, at Tenant's own expense, and be responsible
for any and all defects in the Tenant Improvements that may appear during or
after the completion thereof whether the same shall affect the Tenant
Improvements in particular or any parts of the Premises in general. Tenant shall
reimburse Landlord for any costs or expenses incurred by Landlord during the
Term of the Lease by reason of any defect in any portion of the Tenant
Improvements constructed by Tenant or the contractor or subcontractors, or by
reason of inadequate cleanup following completion of the Tenant Improvements.
(g) COORDINATION OF LABOR. All of Tenant's contractors, subcontractors,
employees, servants and agents must work in harmony with and shall not interfere
with any labor employed by Landlord, or Landlord's contractors or by any other
tenant or its contractors with respect to the any portion of the Project.
(h) WORK IN ADJACENT AREAS. Any work to be performed in areas adjacent to the
Premises shall be performed only after obtaining Landlord's express written
permission and shall be done only if an agent or employee of Landlord is
present, provided that such presence is reasonably necessary; Tenant will
reimburse Landlord for the expense of any such employee or agent.
(i) SYSTEMS. Tenant agrees to be entirely responsible for the balancing of all
heating, ventilating or air conditioning in the Premises and/or the balancing
and maintenance of all independent heating, ventilating or air conditioning in
the Premises and/or the maintenance of the electrical or plumbing work installed
by Tenant or its contractor and/or the maintenance of lighting fixtures,
partitions, doors, hardware or any other installations made by Tenant or its
contractor. Tenant shall cause its contractor to subcontract with the engineers
and subcontractors specified by Landlord, if available to perform their
respective trades within Tenant's time frame, with respect to the engineering
and installation of the fire and life safety system, and the design of the
mechanical and electrical systems.
(j) COORDINATION WITH LEASE. Nothing herein contained shall be construed as (i)
constituting Tenant as Landlord's agent for any purpose whatsoever, or (ii) a
waiver by Landlord of any of the terms or provisions of the Lease. Any default
by Tenant or Landlord with respect to any portion of this Work Letter Agreement
shall be deemed a breach of the Lease for which the non-defaulting party shall
have all the rights and remedies as in the case of a breach of said Lease.
(k) APPROVAL OF PLANS. Landlord will not check Tenant drawings for building code
compliance. Approval of the Final Plans by Landlord is not a representation that
the drawings are in compliance with the requirements of governing authorities,
and it shall be Tenant's responsibility to meet and comply with all Federal,
state, and local code requirements. Approval of the Final Plans does not
constitute assumption of responsibility by Landlord or its architect for their
accuracy, sufficiency or efficiency, and Tenant shall be totally responsible for
such matters.
(l) TENANT'S DELIVERIES. Tenant shall deliver to Landlord, at least three (3)
business days prior to the commencement of construction of Tenant's Work, the
following information:
(i) The names and addresses of the general, mechanical and electrical
contractors Tenant intends to engage in the performance of Tenant's Work;
(ii) The date on which Tenant's Work will commence, together with the
estimated dates of completion of Tenant's construction and fixturing work, and
the date on which Tenant expects to be ready to open for business in the
Building;
(iii) A copy of the fully executed Construction Contract; and
(iv) An itemized statement of estimated construction costs, including
architectural, engineering and contractors' fees.
(m) QUALIFICATION OF CONTRACTORS. All contractors engaged by Tenant shall be
bondable, licensed contractors, possessing good labor relations, capable of
performing quality workmanship and working in harmony with Landlord' s general
contractor and other contractors on the job.
(n) WARRANTIES. Tenant shall cause its contractor to provide warranties for not
less than one (1) year against defects in workmanship, materials and equipment,
which warranties shall run to the benefit of Landlord or shall be assignable to
Landlord.
(o) AS-BUILT DRAWINGS. Tenant shall cause "As-Built Drawings" (excluding
furniture, fixtures and equipment) to be delivered to Landlord by the date set
forth in Paragraph 5(c) above. In the event these drawings are not received by
such date, Landlord may, at its election, cause said drawings to be obtained and
Tenant shall pay to Landlord, as additional rent, the cost of producing these
drawings.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this Work
Letter Agreement to be duly executed by their duly authorized representatives as
of the date of the Lease.
TENANT: LANDLORD:
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<TABLE>
<S> <C>
SUPERGEN, INC., KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited
a Delaware corporation partnership
By: --------------------------------------- By: KDC-DUBLIN, LLC, a Delaware limited liability
Print Name: --------------------------- company, its general partner
Print Title: --------------------------
By: KDC-OC, LLC, a Delaware limited liability
company, its managing member
By: ---------------------------------------
Print Name: --------------------------- By: Koll Development Company, LLC, a
Print Title: -------------------------- Delaware limited liability company,
its manager
By: ----------------------------------------
Print Name: ----------------------------
Print Title: ---------------------------
</TABLE>
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EXHIBIT "D"
NOTICE OF LEASE TERM DATES
AND TENANT'S PERCENTAGE
To: -------------------------------------
-----------------------------------------
-----------------------------------------
Date: -----------------------------------
Re: Lease dated June 23, 2000 (the "Lease"), between KOLL DUBLIN CORPORATE
CENTER, L.P., a Delaware limited partnership, Landlord, and SUPERGEN,
INC., a Delaware corporation, Tenant, concerning a portion of the 1st
Floor and the entire 2nd Floor of the Building located at 4130 Dublin
Boulevard, Dublin, California (the "Premises").
To Whom It May Concern:
In accordance with the subject Lease, we wish to advise and/or confirm as
follows:
1. That the Premises have been accepted by the Tenant as being
substantially complete in accordance with the subject Lease and that there is no
deficiency in construction except as may be indicated on the "Punch-List"
prepared by Landlord and Tenant, a copy of which is attached hereto.
2. That the Tenant has possession of the subject Premises and acknowledges
that under the provisions of the Lease the Commencement Date is
____________________________, and the Term of the Lease will expire on
____________________________________.
3. That in accordance with the Lease, rent commenced to accrue on
___________________________.
4. If the Commencement Date of the Lease is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each billing
thereafter will be for the full amount of the monthly installment as provided
for in the Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the Term of the Lease. Your rent checks should be made payable to
________________________________ at ________________________________.
6. The number of Rentable Square Feet within the Premises is _______
square feet as determined by Landlord's architect in accordance with the
terms of the Lease.
7. The number of Rentable Square Feet within the Building is _______
square feet as determined by Landlord's architect in accordance with the
terms of the Lease.
8. Tenant's Percentage, as adjusted based upon the number of Rentable
Square Feet within the Premises, is _____%.
<TABLE>
<CAPTION>
LANDLORD:
<S><C>
KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited
partnership
By: KDC-DUBLIN, LLC, a Delaware limited liability
company, its general partner
By: KDC-OC, LLC, a Delaware limited liability
company, its managing member
By: Koll Development Company, LLC, a
Delaware limited liability company, its
manager
By: ------------------------------------
Print Name: ------------------------
Print Title: -----------------------
</TABLE>
SAMPLE ONLY
[NOT FOR EXECUTION]
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EXHIBIT "E"
DEFINITION OF OPERATING EXPENSES
1. ITEMS INCLUDED IN OPERATING EXPENSES. The term "Operating Expenses" as
used in the Lease to which this EXHIBIT "E" is attached means: without
duplication, all costs and expenses of operation and maintenance of the Building
and the Common Areas (as such terms are defined in the Lease), as determined by
standard accounting practices, calculated assuming the Building is ninety-five
percent (95%) occupied, including the following costs by way of illustration but
not limitation, but excluding those items specifically set forth in Paragraph 3
below:
(a) Real Property Taxes and Assessments (as defined in Paragraph 2 below)
and any taxes or assessments imposed in lieu thereof;
(b) any and all assessments imposed with respect to, or allocated to, the
Building pursuant to any covenants, conditions and restrictions affecting the
Development, the Common Areas or the Building;
(c) water and sewer charges and the costs of electricity, heating,
ventilating, air conditioning and other utilities (provided that if any of such
utilities provided to the Premises are separately metered, then such separately
metered utilities serving the Premises and the same utilities serving the other
leased premises in the Building shall not be included in Operating Expenses, but
all such utilities provided to the Common Areas shall continue to be included in
Operating Expenses);
(d) utilities surcharges and any other costs, levies or assessments
resulting from statutes or regulations promulgated by any government or
quasi-government authority in connection with the use, occupancy or alteration
of the Building or the Premises or the parking facilities serving the Building
or the Premises;
(e) costs of insurance obtained by Landlord;
(f) waste disposal and janitorial services;
(g) labor;
(h) costs incurred in the management of the Building, including, without
limitation: (i) supplies, (ii) wages and salaries (and payroll taxes and similar
governmental charges related thereto) of employees used in the management,
operation and maintenance of the Building, (iii) Building management office
rental, supplies, equipment and related operating expenses, and (iv) a
reasonable and competitive management/administrative fee determined as a
percentage of the annual gross revenues of the Building exclusive of the
proceeds of financing or a sale of the Building and a reasonable and competitive
administrative fee for the management of the Development Common Area determined
as a percentage of Development Common Area Operating Expenses;
(i) supplies, materials, equipment and tools including rental of personal
property used for maintenance;
(j) repair and maintenance of the elevators and the structural portions of
the Building, including the plumbing, heating, ventilating, air-conditioning and
electrical systems installed or furnished by Landlord;
(k) maintenance, costs and upkeep of all parking and Development Common
Areas;
(l) depreciation on a straight line basis and rental of personal property
used in maintenance;
(m) amortization on a straight line basis over the useful life [together
with interest at the Interest Rate on the unamortized balance] of all
capitalized expenditures which are: (i) reasonably intended to produce a
reduction in operating charges or energy consumption; or (ii) required under any
governmental law or regulation that was not applicable to the Building at the
time it was originally constructed; or (iii) for replacement of any Building
equipment needed to operate the Building at the same quality levels as prior to
the replacement;
(n) costs and expenses of gardening and landscaping;
(o) maintenance of signs (other than signs of tenants of the Building);
(p) personal property taxes levied on or attributable to personal property
used in connection with the Building or the Common Areas;
(q) reasonable accounting, audit, verification, legal and other consulting
fees; and
(r) costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, lighting, cleaning, refuse removal, security and similar items,
excluding reserves.
When calculating Operating Expenses for purposes of establishing Tenant's
Operating Expense Allowance, Operating Expenses shall not include Real Property
Taxes and Assessments attributable to special assessments, charges, costs, or
fees or due to modifications or changes in governmental laws or
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regulations including, but not limited to, the institution of a split tax roll,
and shall exclude market-wide labor-rate increases due to extraordinary
circumstances including, but not limited to, boycotts and strikes and utility
increases due to extraordinary circumstances including, but not limited to,
conservation surcharges, boycotts, embargoes or other shortages.
2. REAL PROPERTY TAXES AND ASSESSMENTS. The term "Real Property Taxes and
Assessments", as used in this EXHIBIT "E", means: any form of assessment,
license fee, license tax, business license fee, commercial rental tax, levy,
charge, improvement bond, tax or similar imposition imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
or special assessment district thereof, as against any legal or equitable
interest of Landlord in the Premises, Building, Common Areas or the Development
(as such terms are defined in the Lease), adjusted to reflect an assumption that
the Building is fully assessed for real property tax purposes as a completed
building ready for occupancy, including the following by way of illustration but
not limitation:
(a) any tax on Landlord's "right" to rent or "right" to other income from
the Premises or as against Landlord's business of leasing the Premises;
(b) any assessment, tax, fee, levy or charge in substitution, partially or
totally, of any assessment, tax, fee, levy or charge previously included within
the definition of real property tax, it being acknowledged by Tenant and
Landlord that Proposition 13 was adopted by the voters of the State of
California in the June, 1978 election and that assessments, taxes, fees, levies
and charges may be imposed by governmental agencies for such services as fire
protection, street, sidewalk and road maintenance, refuse removal and for other
governmental services formerly provided without charge to property owners or
occupants. It is the intention of Tenant and Landlord that all such new and
increased assessments, taxes, fees, levies and charges be included within the
definition of "real property taxes" for the purposes of this Lease;
(c) any assessment, tax, fee, levy or charge allocable to or measured by
the area of the Premises or other premises in the Building or the rent payable
by Tenant hereunder or other tenants of the Building, including, without
limitation, any gross receipts tax or excise tax levied by state, city or
federal government, or any political subdivision thereof, with respect to the
receipt of such rent, or upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof but not on Landlord's other
operations;
(d) any assessment, tax, fee, levy or charge upon this transaction or any
document to which Tenant is a party, creating or transferring an interest or an
estate in the Premises; and/or
(e) any assessment, tax, fee, levy or charge by any governmental agency
related to any transportation plan, fund or system (including assessment
districts) instituted within the geographic area of which the Building is a
part.
3. ITEMS EXCLUDED FROM OPERATING EXPENSES. Notwithstanding the provisions
of Paragraphs 1 and 2 above to the contrary, "Operating Expenses" will not
include:
(a) Landlord's federal or state income, franchise, inheritance or estate
taxes;
(b) any ground lease rental;
(c) costs incurred by Landlord for the repair of damage to the Building to
the extent that Landlord is reimbursed by insurance or condemnation proceeds or
by tenants, warrantors or other third persons;
(d) depreciation, amortization and interest payments, except as
specifically provided herein, and except on materials, tools, supplies and
vendor-type equipment purchased by Landlord to enable Landlord to supply
services Landlord might otherwise contract for with a third party, where such
depreciation, amortization and interest payments would otherwise have been
included in the charge for such third party's services, all as determined in
accordance with standard accounting practices;
(e) brokerage commissions, finders' fees, attorneys' fees, space planning
costs and other costs incurred by Landlord in leasing or attempting to lease
space in the Building;
(f) costs of a capital nature, including, without limitation, capital
improvements, capital replacements, capital repairs, capital equipment and
capital tools, all as determined in accordance with standard accounting
practices; provided, however, the capital expenditures set forth in Subparagraph
1(m) above will in any event be included in the definition of Operating
Expenses;
(g) interest, principal, points and fees on debt or amortization on any
mortgage, deed of trust or other debt encumbering the Building or the
Development;
(h) costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements for tenants in the Building
(including the original Tenant Improvements for the Premises), or incurred in
renovating or otherwise improving, decorating, painting or redecorating space
for tenants or other occupants of the Building, including space planning and
interior design costs and fees;
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<PAGE>
(i) attorneys' fees and other costs and expenses incurred in connection
with negotiations or disputes with present or prospective tenants or other
occupants of the Building; provided, however, that Operating Expenses will
include those attorneys' fees and other costs and expenses incurred in
connection with negotiations, disputes or claims relating to items of Operating
Expenses, enforcement of rules and regulations of the Building, and such other
matters relating to the maintenance of standards required of Landlord under the
Lease; provided, however, that to the extent that Landlord has a contractual or
legal right to collect such costs and expenses from a particular tenant or
occupant of the Building, Landlord agrees to make commercially reasonable
efforts to collect such costs and expenses from such tenant or occupant and to
include such costs and expenses in Operating Expenses only to the extent that
Landlord's efforts are unsuccessful;
(j) except for the administrative/management fees described in Subparagraph
1(h) above, costs of Landlord's general corporate overhead;
(k) all items and services for which Tenant or any other tenant in the
Building reimburses Landlord (other than through operating expense pass-through
provisions);
(l) electric power costs for which any tenant directly contracts with the
local public service company;
(m) costs arising from Landlord's charitable or political contributions;
(n) costs occasioned by the exercise of the power of eminent domain;
(o) costs to correct any construction defect in the base building shell of
the Building;
(p) insurance deductibles to the extent that they exceed Fifty Thousand
Dollars ($50,000) for any single event;
(q) costs to repair, maintain or replace the structural portions of the
Building; and
(r) costs incurred in connection with the presence of any Hazardous
Material in, on, under or about the Development to the extent existing as of the
Commencement Date or for which Tenant or any other tenant in the Development is
responsible under its respective lease.
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EXHIBIT "F"
STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
Subject to the terms and conditions of the Lease and provided Tenant remains in
occupancy of the Premises, Landlord will provide or make available the following
utilities and services:
1. Provide non-attended automatic elevator facilities Monday through
Friday, except holidays, from 7 a.m. to 6 p.m., and have one elevator available
for Tenant's use at all other times.
2. On Monday through Friday, except holidays, from 7 a.m. to 6 p.m. and
on Saturday from 9 a.m. to 12 Noon (and other times for a reasonable
additional charge to be fixed by Landlord), ventilate the Premises and
furnish air conditioning or heating on such days and hours, when in the
reasonable judgment of Landlord it may be required for the comfortable
occupancy of the Premises. Landlord's after-hours charge for HVAC as of the
date of the Lease is set forth in Subparagraph 1(s) of the Lease. Such charge
is subject to change at any time and from time to time by Landlord. The air
conditioning system achieves maximum cooling when the window coverings are
extended to the full length of the window opening and adjusted to a 45DEG.
angle upwards. Landlord will not be responsible for room temperatures if
Tenant does not keep all window coverings in the Premises extended to the
full length of the window opening and adjusted to a 45DEG. angle upwards
whenever the system is in operation. Tenant agrees to cooperate fully at all
times with Landlord, and to abide by all reasonable regulations and
requirements which Landlord may prescribe for the proper function and
protection of said air conditioning system. Tenant agrees not to connect any
apparatus, device, conduit or pipe to the chilled and hot water air
conditioning supply lines of the Building. Tenant further agrees that neither
Tenant nor its servants, employees, agents, visitors, licensees or
contractors shall at any time enter the mechanical installations or
facilities of the Building or the Development or adjust, tamper with, touch
or otherwise in any manner affect said installations or facilities. The cost
of maintenance and service calls to adjust and regulate the air conditioning
system will be charged to Tenant if the need for maintenance work results
from either Tenant's adjustment of room thermostats or Tenant's failure to
comply with its obligations under this Exhibit, including keeping window
coverings extended to the full length of the window opening and adjusted to a
45DEG. angle upwards. Such work will be charged at hourly rates equal to
then-current journeyman's wages for air conditioning mechanics.
3. Landlord will make available to the Premises, 24 hours per day, seven
days a week, electric current as required by the Building standard office
lighting and fractional horsepower office business machines including copiers,
personal computers and word processing equipment in an amount not to exceed six
(6) watts per square foot per normal business day (excluding ceiling lights and
HVAC). If Landlord reasonably determines that Tenant is using electricity in
excess of Tenant's pro rata share to be supplied by Landlord pursuant to the
foregoing sentence, Landlord may require Tenant to pay an increased share of the
electricity costs, as equitably determined by Landlord, or to install, at
Tenant's sole cost and expense, a separate meter for the electricity supplied to
the Premises. If a separate meter is not installed at Tenant's cost, such excess
cost will be established by an estimate agreed upon by Landlord and Tenant, and
if the parties fail to agree, such cost will be established by an independent
licensed engineer selected in Landlord's reasonable discretion, whose fee shall
be shared equally by Landlord and Tenant. Tenant agrees not to use any apparatus
or device in, upon or about the Premises (other than standard office business
machines, personal computers and word processing equipment) which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Tenant further agrees not to connect any apparatus or device with
wires, conduits or pipes, or other means by which such services are supplied,
for the purpose of using additional or unusual amounts of such services without
the written consent of Landlord. Should Tenant use the same to excess, the
refusal on the part of Tenant to pay upon demand of Landlord the amount
established by Landlord for such excess charge will constitute a breach of the
obligation to pay rent under this Lease and will entitle Landlord to the rights
therein granted for such breach. Tenant's use of electric current will never
exceed the capacity of the feeders to the Building, or the risers or wiring
installation and Tenants will not install or use or permit the installation or
use of any computer or electronic data processing equipment in the Premises
(except standard office business machines, servers, personal computers and word
processing equipment) without the prior written consent of Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purpose in
addition to ordinary drinking and lavatory purposes, of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant agrees
to pay Landlord for the cost of the meter and the cost of the installation
thereof and throughout the duration of Tenant's occupancy Tenant will keep said
meter and installation equipment in good working order and repair at Tenant's
own cost and expense, in default of which Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof from Tenant.
Tenant agrees to pay for water consumed, as shown on such meter, as and when
bills are rendered, and on default in making such payment, Landlord may pay such
charges and collect the same from Tenant. Any such costs or expenses incurred,
or payments made by Landlord for any of the reasons or purposes hereinabove
stated will be deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
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5. Landlord will provide janitor service to the Premises, provided the
same are used exclusively as offices, and are kept reasonably in order by
Tenant, and unless otherwise agreed to by Landlord and Tenant no one other than
persons approved by Landlord shall be permitted to enter the Premises for such
purposes. If the Premises are not used exclusively as offices, they will be kept
clean and in order by Tenant, at Tenant's expense, and to the satisfaction of
Landlord, and by persons approved by Landlord. Tenant agrees to pay to Landlord
the cost of removal of any of Tenant's refuse and rubbish to the extent that the
same exceeds the refuse and rubbish usually attendant upon the use of the
Premises as offices.
6. Landlord reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electrical systems, when necessary, by reason
of accident or emergency or for repairs, alterations or improvements, when in
the judgment of Landlord such actions are desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
Landlord will have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning or electric service, when
prevented from so doing by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules, orders, ordinances, directions,
regulations or by reason of the requirements of any federal, state, county or
municipal authority or failure of gas, oil or other suitable fuel supply or
inability by exercise of reasonable diligence to obtain gas, oil or other
suitable fuel supply. It is expressly understood and agreed that any covenants
on Landlord's part to furnish any services pursuant to any of the terms,
covenants, conditions, provisions or agreements of this Lease, or to perform any
act or thing for the benefit of Tenant, will not be deemed breached if Landlord
is unable to furnish or perform the same by virtue of a strike or labor trouble
or any other cause whatsoever beyond Landlord's control.
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<PAGE>
EXHIBIT "G"
ESTOPPEL CERTIFICATE
The undersigned, SUPERGEN, INC., a Delaware corporation ("Tenant"), hereby
certifies to KOLL DUBLIN CORPORATE CENTER, L.P., a Delaware limited partnership
("Landlord"), as follows:
1. Attached hereto is a true, correct and complete copy of that certain
lease dated June 23, 2000, between Landlord and Tenant (the "Lease"), regarding
the premises located at 4130 Dublin Boulevard, Dublin, California (the
"Premises"). The Lease is now in full force and effect and has not been amended,
modified or supplemented, except as set forth in Paragraph 4 below.
2. The Term of the Lease commenced on ______________, 20__.
3. The Term of the Lease will expire on _______________, 20__.
4. The Lease has: (Initial one)
( ) not been amended, modified, supplemented, extended,
----------------- renewed or assigned.
( ) been amended, modified, supplemented, extended,
----------------- renewed or assigned by the following described terms
or agreements, copies of which are attached hereto:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the Lease
will be assigned to _________________________________________ ("Assignee") and
that Assignee shall not be bound by any modification, adjustment, revision or
cancellation of the Lease or amendments thereto unless written consent of
ASSIGNEE is obtained, and that until further notice, payments under the Lease
may continue as heretofore.
7. The amount of Monthly Base Rent is $ ______________________________.
8. The amount of Security Deposit (if any) is __________________________.
No other security deposits have been made except as follows: __________________
______________________________________________________________________________.
9. Tenant is paying the full lease rental which has been paid in full as
of the date hereof. No rent or other charges under the Lease have been paid for
more than thirty (30) days in advance of its due date except as follows: ______
______________________________________________________________________________.
10. All work required to be performed by Landlord under the Lease has been
completed except as follows: __________________________________________________.
11. There are no defaults on the part of Tenant under the Lease, nor to
Tenant's current actual knowledge are there any defaults on the part of Landlord
under the Lease, except as follows: ___________________________________________.
12. Neither Tenant nor, to Tenant's current actual knowledge, Landlord has
any defense as to its obligations under the Lease and claims no set-off or
counterclaim against the other party except as follows: _______________________
___________________________________________________________________.
13. Tenant has no right to any concession (rental or otherwise) or similar
compensation in connection with renting the space it occupies other than as
provided in the Lease except as follows: _____________________________________
_____________________________________________________________________________.
14. All provisions of the Lease and the amendments thereto (if any)
referred to above are hereby ratified.
The foregoing certification is made with the knowledge that __________________
________________ is relying upon the representations herein made in funding a
loan to Landlord in purchasing the Premises.
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<PAGE>
IN WITNESS WHEREOF, this certificate has been duly executed and delivered by the
authorized officers of the undersigned as of _______________________, 20 _____.
TENANT:
SUPERGEN, INC.,
a Delaware corporation
By: ----------------------------------
Print Name: ----------------------
Print Title: ---------------------
By: ----------------------------------
Print Name: ----------------------
Print Title: ---------------------
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<PAGE>
EXHIBIT "H"
RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS. The following rules and regulations
govern the use of the Building and the Development Common Areas. Tenant will be
bound by such rules and regulations and agrees to cause Tenant's Authorized
Users, its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to observe the same.
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice may be installed or displayed on any part of the outside or inside of the
Building or the Development without the prior written consent of Landlord.
Landlord will have the right to remove, at Tenant's expense and without notice,
any sign installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls are to be printed, painted, affixed or inscribed at
the expense of Tenant and under the direction of Landlord by a person or company
designated or approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which is
visible from the exterior of the Premises, Tenant will immediately discontinue
such use. Tenant agrees not to place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises
including from within any interior common areas.
3. Tenant will not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Development. The halls,
passages, exits, entrances, elevators and stairways are not open to the general
public, but are open, subject to reasonable regulations, to Tenant's business
invitees. Landlord will in all cases retain the right to control and prevent
access thereto of all persons whose presence in the reasonable judgment of
Landlord would be prejudicial to the safety, character, reputation and interest
of the Development and its tenants, provided that nothing herein contained will
be construed to prevent such access to persons with whom any tenant normally
deals in the ordinary course of its business, unless such persons are engaged in
illegal or unlawful activities. No tenant and no employee or invitee of any
tenant will go upon the roof of the Building.
4. Landlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, distribution of handbills or any other written
material, peddling, sales and displays of products, goods and wares in all
portions of the Development except as may be expressly permitted under the
Lease. Landlord reserves the right to restrict and regulate the use of the
common areas of the Development and Building by invitees of tenants providing
services to tenants on a periodic or daily basis including food and beverage
vendors. Such restrictions may include limitations on time, place, manner and
duration of access to a tenant's premises for such purposes. Without limiting
the foregoing, Landlord may require that such parties use service elevators,
halls, passageways and stairways for such purposes to preserve access within the
Building for tenants and the general public.
5. Landlord reserves the right to require tenants to periodically provide
Landlord with a written list of any and all business invitees which periodically
or regularly provide goods and services to such tenants at the premises.
Landlord reserves the right to preclude all vendors from entering or conducting
business within the Building and the Development if such vendors are not listed
on a tenant's list of requested vendors.
6. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 7 a.m. the following business day, or such other hours as
may be established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Building or has a pass or is properly identified. Tenant will be
responsible for all persons for whom it requests passes and will be liable to
Landlord for all acts of such persons. Landlord will not be liable for damages
for any error with regard to the admission to or exclusion from the Building of
any person. Landlord reserves the right to prevent access to the Building in
case of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
7. The directory of the Building or the Development will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom.
8. All cleaning and janitorial services for the Development and the
Premises will be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord will be employed by Tenant or permitted to enter the Development for
the purpose of cleaning the same. Tenant will not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
9. Landlord will furnish Tenant, free of charge, with two keys to each
entry door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install any new additional lock or bolt on any door
of the Premises; provided, however, Tenant shall be entitled to install special
locks for its clinical trial data room. Tenant, upon the termination of its
tenancy, will deliver to Landlord the keys to all doors which have been
furnished to Tenant, and in the event of loss of any keys so furnished, will pay
Landlord therefor.
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<PAGE>
10. If Tenant requires telegraphic, telephonic, burglar alarm, satellite
dishes, antennae or similar services, it will first obtain Landlord's approval,
and comply with, Landlord's reasonable rules and requirements applicable to such
services, which may include separate licensing by, and fees paid to, Landlord.
11. Freight elevator(s) will be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord, in its discretion,
deems appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in the
elevators except between such hours and in such elevators as may be designated
by Landlord. Tenant's initial move in and subsequent deliveries of bulky items,
such as furniture, safes and similar items will, unless otherwise agreed in
writing by Landlord, be made during the hours of 6:00 p.m. to 6:00 a.m. or on
Saturday or Sunday. Deliveries during normal office hours shall be limited to
normal office supplies and other small items. No deliveries will be made which
impede or interfere with other tenants or the operation of the Building.
12. Tenant will not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord will have the right to reasonably prescribe
the weight, size and position of all safes, heavy equipment, files, materials,
furniture or other property brought into the Building. Heavy objects will, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight, which platforms will
be provided at Tenant's expense. Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
objectionable to any tenants in the Building or Landlord, are to be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devises sufficient to eliminate noise or vibration. Tenant will be responsible
for all structural engineering required to determine structural load, as well as
the expense thereof. The persons employed to move such equipment in or out of
the Building must be reasonably acceptable to Landlord. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the Building by maintaining or moving such
equipment or other property will be repaired at the expense of Tenant.
13. Tenant will not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant will not
use or permit to be used in the Premises any foul or noxious gas or substance,
or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors or vibrations, nor will Tenant bring into or keep in or about the Premises
any birds or animals.
14. Tenant will not use any method of heating or air conditioning other
than that supplied by Landlord without Landlord's prior written consent.
15. Tenant will not waste electricity, water or air conditioning and agrees
to cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice, and
will refrain from attempting to adjust controls. Tenant will keep corridor doors
closed, and shall keep all window coverings pulled down.
16. Landlord reserves the right, exercisable with reasonable notice and
without liability to Tenant, to change the name and street address of the
Building. Without the prior written consent of Landlord, which Landlord may deny
with or without cause, Tenant will not use the name, photograph or likeness of
the Building or the Development in connection with or in promoting or
advertising the business of Tenant except as Tenant's address.
17. Tenant will close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and lighting or gas before
Tenant and its employees leave the Premises. Tenant will be responsible for any
damage or injuries sustained by other tenants or occupants of the Building or by
Landlord for noncompliance with this rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus will
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein. The expense
of any breakage, stoppage or damage resulting from any violation of this rule
will be borne by the tenant who, or whose employees or invitees, break this
rule. Cleaning of equipment of any type is prohibited. Shaving is prohibited.
19. Tenant will not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant will not use the Premises for any
business or activity other than that specifically provided for in this Lease.
Tenant will not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auction upon the Premises without first having obtained
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion.
20. Tenant will not install any radio or television antenna, loudspeaker,
satellite dishes or other devices on the roof(s) or exterior walls of the
Building or the Development. Tenant will not interfere with radio or television
broadcasting or reception from or in the Development or elsewhere.
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<PAGE>
21. Except for the ordinary hanging of pictures and wall decorations,
Tenant will not mark, drive nails, screw or drill into the partitions, woodwork
or plaster or in any way deface the Premises or any part thereof, except in
accordance with the provisions of the Lease pertaining to alterations. Landlord
reserves the right to direct electricians as to where and how telephone and
telegraph wires are to be introduced to the Premises. Tenant will not cut or
bore holes for wires. Tenant will not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
22. [INTENTIONALLY DELETED]
23. Landlord reserves the right to exclude or expel from the Development
any person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
24. Tenant will store all its trash and garbage within its Premises or in
other facilities provided by Landlord. Tenant will not place in any trash box or
receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
is to be made in accordance with directions issued from time to time by
Landlord.
25. The Premises will not be used for lodging or for the storage of
merchandise held for sale to the general public, or for lodging or for
manufacturing of any kind, nor shall the Premises be used for any improper,
immoral or objectionable purpose. No cooking will be done or permitted on the
Premises without Landlord's consent, except the use by Tenant of Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages shall be permitted, and the use of a microwave oven for employees use
will be permitted, provided that such equipment and use is in accordance with
all applicable federal, state, county and city laws, codes, ordinances, rules
and regulations.
26. Neither Tenant nor any of its employees, agents, customers and invitees
may use in any space or in the public halls of the Building or the Development
any hand truck except those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant will not bring
any other vehicles of any kind into the Building.
27. Tenant agrees to comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
29. To the extent Landlord reasonably deems it necessary to exercise
exclusive control over any portions of the Common Areas for the mutual benefit
of the tenants in the Building or the Development, Landlord may do so subject to
reasonable, non-discriminatory additional rules and regulations.
30. Landlord may prohibit smoking in the Building and may require Tenant
and any of its employees, agents, clients, customers, invitees and guests who
desire to smoke, to smoke within designated smoking areas within the
Development.
31. Tenant's requirements will be attended to only upon appropriate
application to Landlord's asset management office for the Development by an
authorized individual of Tenant. Employees of Landlord will not perform any work
or do anything outside of their regular duties unless under special instructions
from Landlord, and no employee of Landlord will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
32. These Rules and Regulations are in addition to, and will not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Landlord may waive any one or
more of these Rules and Regulations for the benefit of Tenant or any other
tenant, but no such waiver by Landlord will be construed as a waiver of such
Rules and Regulations in favor of Tenant or any other tenant, nor prevent
Landlord from thereafter enforcing any such Rules and Regulations against any or
all of the tenants of the Development.
33. Landlord reserves the right to make such other and reasonable and
non-discriminatory Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and cleanliness of the
Development and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations herein above stated and any additional
reasonable and non-discriminatory rules and regulations which are adopted.
Tenant is responsible for the observance of all of the foregoing rules by
Tenant's employees, agents, clients, customers, invitees and guests.
B. PARKING RULES AND REGULATIONS. The following rules and regulations
govern the use of the parking facilities which serve the Building. Tenant will
be bound by such rules and regulations and agrees to cause its employees,
subtenants, assignees, contractors, suppliers, customers and invitees to observe
the same:
1. Tenant will not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, subtenants, customers or invitees to
be loaded, unloaded or parked in areas other than those designated by Landlord
for such activities. No vehicles are to be left in the parking areas overnight
and
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<PAGE>
no vehicles are to be parked in the parking areas other than normally sized
passenger automobiles, motorcycles and pick-up trucks. No extended term storage
of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a single
parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per
hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in
aisles or on ramps; (c) where "no parking" signs are posted; (d) in
cross-hatched areas; and (e) in such other areas as may be designated from time
to time by Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord, to
tow any vehicle if such vehicle's audio theft alarm system remains engaged for
an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at such
car owner's expense. Tenant agrees to use its best efforts to acquaint its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
with these parking provisions, rules and regulations.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Parking identification
devices, if utilized by Landlord, must be displayed as requested and may not be
mutilated in any manner. The serial number of the parking identification device
may not be obliterated. Parking identification devices, if any, are not
transferable and any device in the possession of an unauthorized holder will be
void. Landlord reserves the right to refuse the sale of monthly stickers or
other parking identification devices to Tenant or any of its agents, employees
or representatives who willfully refuse to comply with these rules and
regulations and all unposted city, state or federal ordinances, laws or
agreements.
10. Loss or theft of parking identification devices or access cards must be
reported to the management office in the Development immediately, and a lost or
stolen report must be filed by the Tenant or user of such parking identification
device or access card at the time. Landlord has the right to exclude any vehicle
from the parking facilities that does not have a parking identification device
or valid access card. Any parking identification device or access card which is
reported lost or stolen and which is subsequently found in the possession of an
unauthorized person will be confiscated and the illegal holder will be subject
to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord must be
reported, itemized in writing and delivered to the management office located
within the Development within ten (10) business days after any claimed damage or
loss occurs. Any claim not so made is waived. Landlord is not responsible for
damage by water or fire, or for the acts or omissions of others, or for articles
left in vehicles. In any event, the total liability of Landlord, if any, is
limited to Two Hundred Fifty Dollars ($250.00) for all damages or loss to any
car. Landlord is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to
make or allow any exceptions to these rules and regulations, without the express
written consent of Landlord. Any exceptions to these rules and regulations made
by the parking operators, managers or attendants without the express written
consent of Landlord will not be deemed to have been approved by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord, to
tow any vehicles which are used or parked in violation of these rules and
regulations.
14. Landlord reserves the right from time to time to modify and/or adopt
such other reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems reasonably necessary for the operation of the
parking facilities.
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<PAGE>
EXHIBIT "I"
FORM OF LETTER OF CREDIT A
--------------------------
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-----------------------------
Contact Phones: _____________
IRREVOCABLE LETTER OF CREDIT
<TABLE>
<S> <C>
________, 2000 Our irrevocable standby Letter of Credit:
No. __________________________________
Beneficiary:
Applicant:
KOLL DUBLIN CORPORATE CENTER, L.P. SUPERGEN, INC.,
4125 Blackhawk Plaza Circle, Suite 200 a Delaware corporation
Danville, CA 94506
Attention: Michael G. Parker Amount: Exactly USD $830,000.00
(Eight Hundred Thirty Thousand and 00/100 Dollars)
Date of Expiration: ___________
</TABLE>
We (the "Bank") hereby issue our irrevocable standby Letter of Credit
No. ______________ in Beneficiary's favor for the account of the
above-referenced Applicant, in the aggregate amount of exactly USD $830,000.00.
This Letter of Credit is available with us at our above office by
presentation of your draft drawn on us at sight bearing the clause: "Drawn under
No. ______________ [INSERT NAME OF BANK] Letter of Credit No. ______________"
and accompanied by the following:
1. Beneficiary's signed certification purportedly signed by an
authorized officer or agent stating one of the following:
(A) "A default by the tenant has occurred and continues
to exist beyond any applicable notice and cure periods under that certain lease
agreement dated June 23, 2000 for premises known as a portion of the first floor
and the entire second floor of the building located at 4130 Dublin Boulevard,
Dublin, California (the "Lease"), and such amount is due to the Beneficiary as
landlord under the terms and conditions of the Lease"; or
(B) "The Bank has notified us that this Letter of Credit
will not be extended beyond the current expiration date of this Letter of
Credit, or this Letter of Credit is to expire based on the final expiration date
set forth herein, and Applicant has not delivered to Beneficiary at least thirty
(30) days prior to the current expiration of this Letter of Credit a replacement
Letter of Credit satisfactory to Beneficiary."
2. The original of this Letter of Credit.
Special conditions:
Partial draws under this Letter of Credit are permitted.
This Letter of Credit shall be automatically extended for an additional
period of one (1) year, without amendment, from the present or each future
expiration, unless, at least thirty (30) days prior to the then current
expiration date we notify you by registered mail/overnight courier service at
the above address that this Letter of Credit will not be extended beyond the
current expiration date. Notwithstanding anything to the contrary contained
herein, this Letter of Credit shall expire permanently without renewal on
[JANUARY 31, 2011], which shall be the final expiration date of this Letter of
Credit.
We hereby agree with you that all drafts drawn under and in compliance
with the terms of this Letter of Credit will be duly honored upon presentation
to us of the documents described in Paragraph 1 above on or before the
expiration date of this Letter of Credit, without inquiry as to the accuracy
thereof and regardless of whether Applicant disputes the content of any such
documents or certifications.
This Letter of Credit is transferable and any such transfer may be
effected by us, provided that you deliver to us your written request for
transfer in form and substance reasonably satisfactory to us. Beneficiary may,
at any time and without notice to Applicant and without first obtaining
Applicant's consent thereto, transfer all or any portion of Beneficiary's
interest in and to the Letter of Credit to another party, person or entity as a
part of the assignment by Beneficiary of Beneficiary's rights and interests in
and to the Lease. The original of this Letter of Credit together with any
amendments thereto must accompany any such transfer request.
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<PAGE>
Except so far as otherwise expressly stated, this documentary credit is
subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber Of Commerce Publication No. 500.
----------------------------------
By: _____________________________
Authorized signature
Please direct any correspondence including drawing or inquiry quoting our
reference number to the above referenced address.
This document consists of two pages.
-1-
<PAGE>
EXHIBIT "J"
FORM OF LETTER OF CREDIT B
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-----------------------------
-----------------------------
-----------------------------
Contact Phones: _____________
IRREVOCABLE LETTER OF CREDIT
<TABLE>
<S> <C>
__________, 2000 Our irrevocable standby Letter of Credit:
No. _____________________________
Beneficiary:
Applicant:
KOLL DUBLIN CORPORATE CENTER, L.P. SUPERGEN, INC.,
4125 Blackhawk Plaza Circle, Suite 200 a Delaware corporation
Danville, CA 94506
Attention: Michael G. Parker Amount: Exactly USD $1,975,000.00
(One Million Nine Hundred Seventy-Five Thousand and
00/100 Dollars)
Date of Expiration: ________________
</TABLE>
We (the "Bank") hereby issue our irrevocable standby Letter of Credit
No. ______________ in Beneficiary's favor for the account of the
above-referenced Applicant, in the aggregate amount of exactly USD
$1,975,000.00.
This Letter of Credit is available with us at our above office by
presentation of your draft drawn on us at sight bearing the clause: "Drawn under
No. ______________ [INSERT NAME OF BANK] Letter of Credit No. ______________"
and accompanied by the following:
1. Beneficiary's signed certification purportedly signed by an
authorized officer or agent stating one of the following:
(A) "A default by the tenant has occurred and continues
to exist beyond any applicable notice and cure periods under that certain lease
agreement dated June 23, 2000 for premises known as a portion of the first floor
and the entire second floor of the building located at 4130 Dublin Boulevard,
Dublin, California (the "Lease"), and such amount is due to the Beneficiary as
landlord under the terms and conditions of the Lease"; or
(B) "The Bank has notified us that this Letter of Credit
will not be extended beyond the current expiration date of this Letter of
Credit, or this Letter of Credit is to expire based on the final expiration date
set forth herein, and Applicant has not delivered to Beneficiary at least thirty
(30) days prior to the current expiration of this Letter of Credit a replacement
Letter of Credit satisfactory to Beneficiary."
2. The original of this Letter of Credit.
Special conditions:
Partial draws under this Letter of Credit are permitted.
This Letter of Credit shall be automatically extended for an additional
period of one (1) year, without amendment, from the present or each future
expiration date, unless, at least thirty (30) days prior to the then current
expiration date we notify you by registered mail/overnight courier service at
the above address that this Letter of Credit will not be extended beyond the
current expiration date. Notwithstanding anything to the contrary contained
herein, this Letter of Credit shall expire permanently without renewal on
[JANUARY 31, 2011], which shall be the final expiration date of this Letter of
Credit.
We hereby agree with you that all drafts drawn under and in compliance
with the terms of this Letter of Credit will be duly honored upon presentation
to us of the documents described in Paragraph 1 above on or before the
expiration date of this Letter of Credit, without inquiry as to the accuracy
thereof and regardless of whether Applicant disputes the content of any such
documents or certifications.
This Letter of Credit is transferable and any such transfer may be
effected by us, provided that you deliver to us your written request for
transfer in form and substance reasonably satisfactory to us. Beneficiary may,
at any time and without notice to Applicant and without first obtaining
Applicant's consent thereto, transfer all or any portion of Beneficiary's
interest in and to the Letter of Credit to another party, person or entity as a
part of the assignment by Beneficiary of Beneficiary's rights and interests in
and to the Lease. The original of this Letter of Credit together with any
amendments thereto must accompany any such transfer request.
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<PAGE>
Except so far as otherwise expressly stated, this documentary credit is
subject to Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber Of Commerce Publication No. 500.
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By: _____________________________________
Authorized signature
Please direct any correspondence including drawing or inquiry quoting our
reference number to the above referenced address.
This document consists of two pages.
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