California-South San Francisco-347/349 Oyster Point Boulevard Lease - Oyster Point Tech Center LLC and VaxGen Inc.
BASIC LEASE INFORMATION
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LEASE DATE: October 26, 1998
TENANT: VAXGEN, INC.
TENANT'S ADDRESS: Until the Term Commencement Date:
501 Forbes Boulevard
South San Francisco, CA 94080
Phone: (650) 225-7000
Fax: (650) 225-7057
After the Term Commencement Date:
347 Oyster Point Blvd., Suite 102
South San Francisco, CA 94080
LANDLORD: Oyster Point Tech Center LLC, a Delaware Limited
Liability Company
LANDLORD'S ADDRESS: c/o Trammell Crow NW, Inc.
1241 East Hillsdale Blvd., Ste. 200
Foster City, CA 94404
Phone: (650) 578-8100
Fax: (650) 345-2506
PROJECT: A two (2) building project totaling
approximately 104,780 square feet to be
constructed on approximately 5.52 acres of
land to be known as 347 and 349 Oyster Point
Blvd., South San Francisco, California 94080
which legal description is contained herein
in Exhibit A-1.
BUILDING: That approximately 39,780 square foot two
story building to be constructed as part of
the Project and to be known as 347 Oyster
Point Boulevard, South San Francisco,
California 94808, as approximately depicted
on the site plan attached as Exhibit A-2.
PREMISES: Approximately 9,651 square feet of the Building to be
known as 347 Oyster Point Boulevard, Suite
102, South San Francisco, California 94080
as shown herein Exhibit A-3.
PERMITTED USE: Office, laboratory, research and development facility
with wet chemistry and biology labs, clean rooms and
storage and use of Disclosed Hazardous Materials and use
of laboratory animals but only in the ordinary course of
Tenant's business (subject to the approval of the City
of South San Francisco and all other necessary
government agencies). The term "Disclosed Hazardous
Materials" as used in this Lease shall mean only those
chemical and biological materials and substances of the
types and quantities described in the inventory listing
that was delivered by Tenant to Landlord on or prior to
the date of execution of this Lease, a copy of which is
attached to this Lease as Exhibit F, and those other
materials and substances of which Tenant shall have
notified Landlord in writing and of which Landlord shall
have approved in writing from time to time pursuant to
this Lease.
PARKING DENSITY: 3 non-designated spaces per 1000 square foot of rentable area.
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TERM COMMENCEMENT DATE: December 31, 1998
LENGTH OF TERM: Sixty-two (62) months
RENT:
Base Rent Months of Term Rent Per Square Foot Monthly Rent
-------------- -------------------- ------------
Month 1-2 -0-
Months 3-14 $1.50 psf per month $14,476.50
Months 15-26 $1.55 psf per month $14,959.00
Months 27-38 $1.60 psf per month $15,442.00
Month 39-50 $1.65 psf per month $15,924.00
Month 51-62 $1.70 psf per month $16,507.00
Estimated First Year Basic
Operating Cost $.30 psf per month, estimated at $2,895.00/mo.
SECURITY DEPOSIT: $17,371.50 plus secured first lien on Tenant's fixtures
and improvements
TENANT'S PROPORTIONATE
SHARE: Subject to change, but based on the rentable square feet
of the Premises divided by the total rentable square
feet of the Building and the Project, respectively,
estimated as follows:
Of Building: 23.85%
Of Project 9.21%
BROKER: Dean Givas
Trammell Crow NW, Inc.
1241 East Hillsdale Blvd., Suite 200
Foster City, CA 94404
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The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Defined terms in the Lease shall have the meanings ascribed to them
in the Basic Lease Information unless otherwise stated. Each reference in this
Lease to any of the Basic Lease Information shall mean the respective
information above and shall be construed to incorporate all of the terms
provided under the particular Lease paragraph pertaining to such information. In
the event of any conflict between the Basic Lease Information and the Lease, the
latter shall control. The term "days" as used in this Lease means "calendar
days" unless the specific term "business days" is used.
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Exhibit 10.19
LEASE
THIS LEASE is made as of this 26 day of October, 1998, by and between Oyster
Point Tech Center LLC, a Delaware limited liability company (hereinafter called
"Landlord") and VaxGen, Inc., a Delaware corporation (hereinafter called
"Tenant").
PREMISES 1. Landlord hereby leases to Tenant, and Tenant leases
from Landlord, the Premises, for the Term, at the
rental, and upon all of the terms and conditions set
forth in this Lease. The Premises is part of the
rentable area of 347 Oyster Point Boulevard (sometimes
referred to herein as the "Building") and is depicted
on Exhibit A-3. The Premises comprises 23.85% percent
of the rentable area of the Building. The Building is
part of the Project. The Building is outlined in yellow
on Exhibit A-2. Landlord shall, at its sole cost and
expense, construct the Building shell, parking lot,
exterior common areas, and landscaping approximately in
the manner depicted on Exhibit C hereto ("Initial
Project Specifications"). The Initial Project
Specifications shall include, without limitation, the
Building shell, roof, all exterior windows and doors,
fire sprinklers at the roof line, utilities, services
to the Building exterior, and Building Core as defined
in Exhibit B-1. Tenant shall perform Tenant's Work (as
defined in Exhibit B-1 hereto) for the Premises in the
manner described in Exhibit B-1 hereto.
TERM 2. The Term of this Lease ("Term") shall commence on
December 31, 1998 ("Term Commencement Date") and
continue in full force and effect for the number of
months specified as the Length of Term in the Basic
Lease Information or until this Lease is terminated as
otherwise provided herein. If the Term Commencement
Date is a date other than the first day of the calendar
month, the Term shall be the number of months of the
Length of Term in addition to the remainder of the
calendar month following the Term Commencement Date.
Within ten (10) days after requested by Landlord or
Tenant, Landlord and Tenant shall execute an amendment
to this Lease stating and confirming the Term
Commencement Date and Tenant's acceptance of the
Premises.
POSSESSION 3. Landlord shall deliver, and Tenant shall accept
delivery of, and take immediate possession of the
Premises on the Term Commencement Date. Landlord shall
have no liability to Tenant if the Term Commencement
Date is delayed by ninety (90) days or less, or to the
extent that any delay is the result of Force Majeure,
as defined in Paragraph 34. If Landlord is delayed by
more than ninety (90) days for reason other than Force
Majeure, Tenant's sole right and remedy shall be to
terminate this Lease. Landlord shall permit Tenant, or
Tenant's agents, to enter the Premises prior to the
Term Commencement Date ("Early Possession") for the
purpose of installing Tenant's equipment and fixtures
provided that such installation shall not interfere
with performance of Landlord's Work, as defined herein.
The term "Fixture" or "Trade Fixture" shall be defined
as anything attached in any manner to Landlord's
property. All portable, unattached items are Tenant's
property. Tenant and Landlord agree that Tenant does
not own any Trade Fixtures in the Premises except those
items listed in Exhibit B-3 or otherwise agreed to in a
separate writing between Landlord and Tenant. Landlord
owns all remaining Trade Fixtures. If Landlord permits
such Early Possession, from and after the date on which
Tenant or its agent first enters the Premises therefor,
all of the terms and conditions of this Lease
(including, but not limited to, insurance and indemnity
provisions) shall be applicable to Tenant's occupancy
save and except for the requirement to pay Base Rent
and Base Operating Costs.
USE 4. A. GENERAL. Tenant shall use the Premises for the
Permitted Use and for no other use or purpose. Tenant
shall control Tenant's employees, agents, customers,
visitors, invitees, licensees, contractors, assignees
and subtenants (collectively, "Tenant's Parties") in
such a manner that Tenant and Tenant's Parties
cumulatively do not exceed the Parking Density at any
time. Tenant and Tenant's Parties shall have the
nonexclusive right to use, in common with other parties
occupying the Building or the Project, the parking
areas and driveways of the Project, and other common
areas subject to such rules and regulations not in
conflict with
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this Lease as Landlord may from time to time prescribe.
B. LIMITATIONS. Tenant shall not permit any odors, smoke,
dust, gas, substances, noise or vibrations to emanate from
the Premises, nor take any action which would constitute a
nuisance or would disturb, obstruct or endanger any other
tenants of the Building or the Project or interfere with
their use of their respective premises. Storage outside the
Premises of materials, vehicles or any other items is
prohibited, with the exception of outside storage in areas
designated and approved in advance and in writing by
Landlord. Tenant may be required to provide screening for
such outside storage, at the discretion of Landlord. Tenant
shall not use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause or maintain or permit any nuisance in, on
or about the Premises or the Project. Tenant shall not
commit or suffer the commission of any waste in, on or about
the Premises or the Project. Tenant shall not allow any sale
by auction upon the Premises or the Project, or place any
loads upon the floors, walls or ceilings which endanger the
structure, or place any harmful liquids in the drainage
system of the Building or the Project. No waste, materials
or refuse shall be dumped upon or permitted to remain
outside the Premises except in trash containers placed
inside exterior enclosure designated for that purpose by
Landlord. Landlord shall not be responsible to Tenant for
the noncompliance by any other tenant or occupant of the
Building or the Project with any of the above-referenced
rules or any other terms or provisions of such tenant's or
occupant's lease or other contract. Landlord agrees not to
materially discriminate in the enforcement of any of the
above-referenced rules against Tenant only and not against
other tenants or occupants of the Project.
C. COMPLIANCE WITH REGULATIONS. By entering the Premises,
Tenant accepts the Premises in the condition existing as of
the date of such entry, subject to all existing or future
applicable municipal, state and federal and other
governmental statutes, regulations, laws and ordinances,
including zoning ordinances and regulations governing and
relating to the use, occupancy and possession of the
Premises and the use, storage, generation and disposal of
Hazardous Materials (hereinafter defined) in, on or under
the Premises (collectively "Regulations"). Except for
matters which occurred prior to the Term Commencement Date
and were not caused directly or indirectly by Tenant or by
any of the Tenant's Parties, Tenant shall, at Tenant's sole
expense, strictly comply with all Regulations now in force
or which may be hereafter in force relating to the Premises
and the use of the Premises and/or the use, storage,
generation of Hazardous Materials in, on and under the
Premises. Tenant shall at its sole cost and expense obtain
any and all licenses or permits necessary for Tenant's use
of the Premises. Tenant shall promptly comply with the
requirements of any board of fire underwriters or other
similar body now or hereafter constituted. Tenant shall not
do or permit anything to be done in, on, or about the
Premises or bring or keep anything which will in any way
increase the rate of any insurance paid for by Landlord upon
the Premises, the Building or the Project, or upon any
contents therein or cause a cancellation of said insurance
or otherwise affect said insurance in any manner without the
written consent of Landlord, which consent shall not be
unreasonably withheld, if reasonably related to the conduct
of Tenant's business within the Premises. In the event of
such written consent by Landlord, Tenant shall pay for any
increase in the rate of any insurance paid for by Landlord
as set forth above. Tenant shall indemnify, defend, protect
and hold Landlord harmless from and against any loss, cost,
expense, damage, attorneys' fees or liability arising out of
the failure of Tenant to comply with any Regulation or
comply with the requirements set forth herein. Nothing in
this section shall be construed to require Tenant to make
any structural alterations or modifications to the building
systems servicing the Premises, the Building, or the
Project, except to the extent such modification is required
as the consequence of Tenant's specific use of the Premises.
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D. HAZARDOUS MATERIALS. Tenant shall not cause, or allow any
of Tenant's Parties to cause, any Hazardous Materials to be
generated, stored, used, treated, removed, transported,
handled and disposed of on or about the Premises, the
Building or the Project without Landlord's prior written
approval, provided that, Tenant shall be permitted to use
the Disclosed Hazardous Materials in the ordinary course of
its business subject to the conditions and requirements of
this Lease. Landlord's conditional authorization of the
Disclosed Hazardous Materials shall be strictly limited to
the types of quantities described in Exhibit F, and shall
not be construed as an authorization for Tenant to generate,
store, use, treat, remove, transport, handle or dispose of
any additional quantities of Disclosed Hazardous Materials
or any other Hazardous Materials in, on, about or under the
Premises, Building or the Project. Tenant acknowledges that
any change in the types or quantities or Disclosed Hazardous
Materials described in Exhibit F, or any change in the means
and methods of generating, storing, treating, removing,
transporting, handling or disposing of such Disclosed
Hazardous Materials, shall require the prior written
approval of Landlord in each instance. Tenant represents and
warrants to Landlord that (a) prior to its use of Hazardous
Materials on the Premises, it will have received or obtained
issuance of, and will maintain in effect, all permits,
approvals, licenses, or other authorizations necessary for
Tenant's activities with respect to the Disclosed Hazardous
Materials, and (b) Tenant has not been cited, fined, or
otherwise found to be in violation of any governmental
requirement or fire, safety and insurance requirements or
regulations applicable to any Disclosed Hazardous Materials,
and (b) Tenant has not been cited, fined, or otherwise found
to be in violation of any governmental requirement or fire,
safety and insurance requirements or regulations applicable
to any Disclosed Hazardous Materials or any other Hazardous
Materials in any other leased premises. At least once during
each twelve (12) month of the Lease Term, Tenant shall
provide Landlord with an inventory list describing the
minimum and maximum quantities of each of the Disclosed
Hazardous Materials generated, stored, used, treated,
removed, transported, handled and disposed of on or about
the Premises, the Building or the Project the succeeding
twelve (12) months, and a copy of its Hazardous Materials
Management Plan ("HMMP") in the form submitted by Tenant to
the fire department. Tenant agrees to notify Landlord
immediately if Tenant receives notification or otherwise
becomes aware of: (a) any threatened or actual release,
spill or discharge of any other any Disclosed Hazardous
Materials in, on, about or under the Premises, the Building
or the Project, or (b) any threatened or actual lien,
action, or proceeding or notice that any Disclosed Hazardous
Materials or any other Hazardous Materials is not being
generated, stored, used, treated, removed, transported,
placed, manufactured, handled, or disposed of in strict
compliance with any and all governmental requirements and
regulations or applicable fire, safety or insurance
requirements and regulations. If Tenant or any of Tenant's
Parties is partially or wholly responsible or potentially
responsible for such condition, situation, lien, action or
notice, Tenant's notice to Landlord shall include a
statement as to the actions Tenant proposes to take in
response to such condition, situation, lien, action or
notice. As used in this Lease, "Hazardous Materials" shall
include, but not be limited to, hazardous, toxic and
radioactive materials and those substances defined as
"hazardous substances," "hazardous materials," "hazardous
wastes," "toxic substances," or other similar designations
in any federal, state, or local law, regulation, or
ordinance. Landlord shall have the right at all reasonable
times to inspect the Premises and to conduct tests and
investigations to determine whether Tenant is in compliance
with the foregoing provisions. The costs of all such
inspections, tests and investigations shall be borne by
Tenant provided that so long as Tenant is not in Default
hereunder Tenant shall not be responsible for the cost of
more than one (1) inspection per calendar year and Tenant's
liability for the cost of each such inspection shall not
exceed $5,000 per inspection. Tenant shall indemnify, defend
(by counsel selected by Landlord and approved by Tenant,
which approval shall not be unreasonably withheld), protect
and hold Landlord harmless from and against all liabilities,
losses, actually incurred costs and expenses, demands,
causes of action, claims or judgments directly or indirectly
arising out of the use, generation, storage or disposal of
Hazardous Materials by Tenant or any of Tenant's Parties,
which indemnity shall include, without limitation,
reasonable attorneys' and consultants' fees, the cost of any
required or necessary repair, cleanup or
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detoxification, and the preparation of any closure or other
required plans, whether such action is required or necessary
prior to or following the termination of this Lease. Neither
the written consent by Landlord to the use, generation,
storage or disposal of Hazardous Materials nor the strict
compliance by Tenant with all laws pertaining to Hazardous
Materials shall excuse Tenant from Tenant's obligation of
indemnification pursuant to this Paragraph 4.D. Tenant's
obligations pursuant to the foregoing indemnity shall
survive the termination of this Lease.
RULES AND
REGULATIONS 5. Tenant shall faithfully observe and comply with any rules
and regulations not in conflict with this Lease Landlord may
from time to time prescribe in writing for the purpose of
maintaining the proper care, cleanliness, safety, traffic
flow and general order of the Premises, the Building, or the
Project. Tenant shall cause Tenant's Parties to comply with
all such rules and regulations. Landlord shall not be
responsible to Tenant for the non-compliance by any other
tenant or occupant of the Building or the Project with any
of the rules and regulations.
RENT 6. A. BASE RENT. Base Rent for the Premises shall be calculated
on the basis of the rentable square feet of the Premises at
the rates specified in the Base Lease Information. Rentable
square feet shall include a load factor for core areas of
the Building as determined by Landlord's architect. Tenant's
obligation to pay Base Rent for the Premises shall commence
on the Term Commencement Date. Upon completion of Landlord's
Work, Landlord's architect shall certify to Landlord the
rentable square feet of the Premises, measured from the
outside of exterior walls, but including areas below the
"dripline" in the exterior entrances, to the midpoint of any
interior demising walls plus Tenant's proportionate share of
Building Core areas which include lobby areas, utility
rooms, mechanical shafts, elevator shafts, stairs in lobby,
etc. The calculation of the rentable square feet of the
Premises shall not include the stairs located within the
Premises which serve the second floor unit but shall include
an allocation for the exit corridor from the point of
Tenant's access to the corridor to the exterior exit. The
allocation to Tenant for the exit corridor shall be based on
the square footage of Tenant's interior Premises (excluding
core areas) divided by the square footage of interior
premises for all tenants having access to the corridor.
Landlord's architect shall also certify the rentable square
feet of the Building and the Project. Landlord's architect's
certification of rentable square feet for the Premises, the
Building and the Project shall be binding upon both Landlord
and Tenant for all purposes under this Lease. Landlord and
Tenant currently estimate that the rentable square feet of
the Premises and the Base Rent for the Premises will be as
stated in the Base Rent shall be determined and, if
requested by Landlord or Tenant, Landlord and Tenant shall
enter into an amendment of this Lease which states the
actual Base Rent as so determined. Upon determination of the
actual Base Rent for the Premises, Landlord and Tenant shall
adjust, if necessary, the Base Rent deposited by Tenant for
the first full month of the Term as provided in Paragraph
6.B. below, and Tenant's share of Operating costs, as
defined in Paragraph 7A. theretofore paid.
B. PAYMENTS. Tenant shall pay to Landlord, without demand
throughout the Term, Base Rent as specified in the Basic
Lease Information and finally determined as provided in
Paragraph 6.A., payable in monthly installments in advance
on or before the first day of each calendar month, in lawful
money of the United States, without deduction or offset
whatsoever, at the address specified in the Basic Lease
Information or to such other place as Landlord may from time
to time designate in writing. Base Rent and Estimated Basic
Operating Costs as defined in Paragraph 7.A. for the first
full month of the Term (based upon the estimated rentable
area as hereinabove provided) shall be paid by Tenant upon
Tenant's execution of this Lease. If the obligation for
payment of Base Rent commences on other than the first day
of month, then Base Rent (calculated at the rate applicable
to the second full month of the Term) for the partial month
shall be prorated on the basis of the actual number of days
in the month.
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C. ADDITIONAL RENT. All monies other than Base Rent required
to be paid by Tenant hereunder, including, but not limited
to, the interest and late charges described in Paragraph
26.D., any monies spent by Landlord pursuant to Paragraph
29., and Tenant's Proportionate Share of Basic Operating
Costs, as specified in Paragraph 7. of this Lease, shall be
considered additional rent ("Additional Rent"). "Rent" shall
mean Base Rent and Additional Rent.
BASIC 7. A. Basic Operating Cost. In addition to the Base Rent
OPERATING COST required to be paid hereunder, Tenant shall pay as
Additional Rent, Basic Operating Costs in the manner set
forth below. The Basic Operating Costs shall be calculated
on the basis of Landlord's architect's certification of the
rentable square feet of the Premises, the building and the
Project. The certification by Landlord's architect of the
rentable square feet of the Premises, the Building and the
Project shall be conclusive and binding upon both Landlord
and Tenant for all purposes of this Lease. Tenant's
obligation to pay Basic Operating Costs with respect to the
Premises, the Building and the Project shall commence on
March 1, 1999. Landlord shall account for each item of Basic
Operating Costs attributable to the Premises, the Building
and the Project, as determined by Landlord in Landlord's
sole discretion, and unless provided to the contrary in this
Lease, Tenant shall pay the Basic Operating Costs, as set
forth in the Basic Lease Information. "Basic Operating
Costs" shall mean all expenses and costs of every kind and
nature which Landlord shall pay or become obligated to pay
because of or in connection with the management,
maintenance, preservation and operation of the Building and
the Project (determined in accordance with generally
accepted accounting principles, consistently applied)
including but not limited to the following:
(1) TAXES. All real property taxes, possessory interest
taxes, business or license taxes or fees, service payments
in lieu of such taxes or fees, annual or periodic license or
use fees, excises, transit charges, housing fund
assessments, open space charges, assessments, levies, fees
or charges general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind (including fees
"in-lieu" of any such tax or assessment) which are assessed,
levied, charged, confirmed, or imposed by any public
authority upon the Project, its operations or the Rent (or
any portion or component thereof) (all of the foregoing
being hereinafter collectively referred to as "real property
taxes"), or any tax imposed in substitution, partially or
totally, of any tax previously included within the
definition of real property taxes, or any additional tax the
nature of which was previously included within the
definition of real property taxes, except (a) inheritance or
estate taxes imposed upon or assessed against the Project,
or any part thereof or interest therein, and (b) taxes
computed upon the basis of net income of Landlord or the
owner of any interest therein, except as otherwise provided
in the following sentence. Basic Operating Costs shall also
include any taxes, assessments, or any other fees imposed by
any public authority upon or measured by the monthly rental
or other charges payable hereunder, including, without
limitation, any gross income tax or excise tax levied by the
local governmental authority in which the Project is
located, the federal government, or any other governmental
body with respect to receipt of such rental, or upon, with
respect to or by reason of the development, possession,
leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any
portion thereof, or upon this transaction or any document to
which Tenant is a party creating or transferring an interest
or an estate in the Premises. In the event that it shall not
be lawful for Tenant to reimburse Landlord for all or any
part of such taxes, the Base Rent payable to Landlord under
this Lease shall be revised to net to landlord the same net
rental after imposition of any such taxes on Landlord as
would have been payable to Landlord prior to the payment of
any such taxes. If Landlord at any time during the Term of
this Lease or within two (2) years after termination of this
Lease shall receive a refund of real property taxes
applicable to a period within the Term of this Lease for
which Tenant has paid real property taxes hereunder,
Landlord shall refund to Tenant Tenant's proportionate share
of said refund if Tenant is not then in Default or was not
in Default at the termination of the Lease, as the case may
be. If Tenant timely pays real property taxes to Landlord,
Landlord alone shall be responsible for any fines,
penalties, interest and other charges that result from
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any late payment of taxes by Landlord.
(2) INSURANCE. All insurance premiums and costs, including
but not limited to, any deductible amounts, premiums and
costs of insurance incurred by Landlord, as more fully set
forth in Paragraph 8.A. herein.
(3) REPAIRS AND IMPROVEMENTS. The cost of all repairs,
replacements and general maintenance for the Premises, the
Building and the Project (except for those repairs expressly
made the financial responsibility of Landlord pursuant to
the terms of this Lease, repairs to the extent paid for by
proceeds of insurance or by Tenant or other third parties,
and alterations attributable solely to tenants of the
Project other than Tenant). Tenant shall not be responsible
for the cost of repairs to tenant-occupied buildings which
are part of the Project other than the Building. Such
repairs, replacements, and general maintenance shall include
the cost of any capital improvements made to or capital
assets acquired for the Project, the Building, or the
Premises after the Term Commencement Date that are intended
by Landlord to reduce any other Basic Operating Cost, are
reasonably necessary for the health and safety of the
occupants of the Project, or are made to the Building by
Landlord after the date of this Lease are required under any
governmental law or regulation, such costs or allocable
portions thereof to be amortized over the useful life of the
improvement, as determined by the Landlord, together with
interest on the unamortized balance at the "prime rate"
charged at the time such improvements or capital assets are
constructed or acquired by Wells Fargo Bank, N.A. (San
Francisco) plus two (2) percentage points, but in no event
more than the maximum rate permitted by law.
(4) SERVICES. To the extent such expenses are not the
obligation of Tenant under the provisions of this Lease, all
expenses relating to maintenance, janitorial and service
agreements and services, and costs of supplies and equipment
used in operating and maintaining the Premises, the Building
and the Project and the equipment therein and the adjacent
sidewalks, driveways, parking and service areas, including,
without limitation, alarm service, window cleaning, elevator
maintenance, the Building exterior maintenance and Project
landscaping.
(5) UTILITIES. To the extent such expenses are not the
obligation of Tenant under other provisions of this Lease,
the cost of all utilities which benefit all or a portion of
the Premises, the Building or the Project.
(6) MANAGEMENT FEE. A management and accounting cost
recovery fee equal to three (3%) percent of the sum of Base
Rent and Basic Operating Cost.
(7) LEGAL AND ACCOUNTING. Legal and accounting expenses
relating to the Project other than legal expenses related to
negotiating leases with tenants and/or prospective tenants
in the Project, and any costs or expenses otherwise
reimbursable to Landlord, including, without limitation, any
costs or expenses reimbursed by policies of insurance
carried by Landlord or required to be carried by Landlord
under this Lease, and any cost or expenses reimbursable by
any tenant within the Building and/or the Project pursuant
to such tenant's lease in the Project. Accounting expense
shall be limited to preparation of annual reconciliation of
estimated and actual Operating Costs.
In the event that the Building is not fully occupied during
any fiscal year of the Term as determined by Landlord, an
adjustment shall be made in computing the Basic Operating
Costs for such year so that Tenant pays an equitable portion
of all variable items of Basic Operating Costs, as
reasonably determined by Landlord; provided, however, that
in no event shall Landlord be entitled to collect in excess
of one hundred (100%) percent of the total Basic Operating
Costs from all of the tenants in the Building including
Tenant.
Basic Operating Costs shall not include specific costs
incurred for the account of, separately
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billed to and paid by specific tenants. Notwithstanding
anything herein to the contrary, in any instance wherein
Landlord, in Landlord's sole discretion, deems Tenant to be
responsible for any amounts greater than Tenant's
Proportionate Share, Landlord shall have the right to
allocate costs in any manner Landlord reasonably deems
appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COSTS. "Estimated
Basic Operating Costs" for any particular year shall mean
Landlord's estimate of the Basic Operating Cost for such
fiscal year made prior to commencement of such fiscal year
as hereinafter provided. Landlord shall have the right from
time to time to revise its fiscal year and interim
accounting periods so long as the periods as so revised are
reconciled with prior periods in accordance with generally
accepted accounting principles applied in a consistent
manner. During the last month of each fiscal year during the
Term, or as soon thereafter as practicable, Landlord shall
give Tenant written notice of the Estimated Basic Operating
Costs for the ensuing fiscal year. Tenant shall pay Tenant's
Proportionate Share of the Estimated Basic Operating Cost
with installments of Base Rent for the fiscal year to which
the Estimated Basic Operating Cost applies in monthly
installments on the first day of each calendar month during
such year, in advance. If at any time during the course of
the fiscal year, Landlord determines that Basic Operating
Cost is projected to vary from the then Estimated Basic
Operating Cost by more than ten (10%) percent, Landlord may,
by written notice to Tenant, revise the Estimated Basic
Operating cost for the balance of such fiscal year, and
Tenant's monthly installments for the remainder of such year
shall be adjusted so that by the end of such fiscal year
Tenant has paid to Landlord Tenant's Proportionate Share of
the revised Estimated Basic Operating Cost for such year.
Upon execution of this Lease, Tenant shall pay to Landlord
the Estimated Basic Operating Cost for such year. Upon
execution of this Lease, Tenant shall pay to Landlord the
Estimated Basic Operating Cost for the Premises (calculated
on the estimated rentable square feet) for the first full
month of the Term. Upon final determination of the rentable
square feet, Landlord and Tenant shall adjust such estimated
payment.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT. "Basic
Operating Cost Adjustment" shall mean the difference between
Estimated Basic Operating Cost and Basic Operating Cost for
any fiscal year determined as hereinafter provided. Within
one hundred twenty (120) days after the end of each fiscal
year, as determined by Landlord, or as soon thereafter as
practicable, Landlord shall deliver to Tenant a statement of
Basic Operating Cost for the fiscal year just ended,
accompanied by a computation of Basic Operating Cost
Adjustment. If such statement shows that Tenant's payment
based upon Estimated Basic Operating Cost is less than
Tenant's Proportionate Share of Basic Operating Cost, then
Tenant shall pay to Landlord the difference within twenty
(20) days after receipt of such statement. If such statement
shows that Tenant's payments of Estimated Basic Operating
Cost exceed Tenant's Proportionate Share of Basic Operating
Cost, then (provided that Tenant is not in Default under
this Lease) Landlord shall credit the difference against the
Estimated Basic Operating Cost payment next due. If this
Lease has been terminated or the Term hereof has expired
prior to the date of such statement, then the Basic
Operating Cost Adjustment shall be paid by the appropriate
party within twenty (20) days after the date of delivery of
the statement and this obligation shall survive termination
of the Lease. Should this Lease commence or terminate at any
time other than the first day of the fiscal year, Tenant's
Proportionate Share of the Basic Operating Cost adjustment
shall be prorated by reference to the exact number of
calendar days during such fiscal year that this Lease is in
effect.
D. NET LEASE. This shall be a net Lease and Base Rent shall
be paid to Landlord absolutely net of all costs and
expenses, except as specifically provided to the contrary in
this Lease. The provisions for payment of Basic Operating
Cost and the Basic Operating Cost Adjustment are intended to
pass on to Tenant and reimburse Landlord for all costs and
expenses of the nature described in Paragraph 7.A. incurred
in connection with the management, maintenance, preservation
and operation of the Building or the Project and such
additional facilities now and in subsequent years as may be
determined by Landlord to
<PAGE> 10
be necessary to the Building or the Project.
E. TENANT AUDIT. In the event that Tenant shall dispute the
amount set forth in any statement provided by Landlord under
Paragraph 7.B. or 7.C. above, Tenant shall have the right,
not later than sixty (60) days following the receipt of such
statement and upon the condition that Tenant shall have paid
Landlord the full amount that has been invoiced, to cause
Landlord's books and records with respect to Basic Operating
Cost for such fiscal year to be audited by certified public
accountants selected by Tenant and subject to Landlord's
reasonable right of approval. The Basic Operating Cost
Adjustment shall be appropriately adjusted on the basis of
such audit and the appropriate party shall pay to the other
all amounts found by such audit to be owing within thirty
(30) days. If such audit discloses a liability for a refund
in excess of five (5%) percent of Tenant's Proportionate
Share of the Basic Operating Cost Adjustment previously
reported, the cost of such audit shall be borne by Landlord;
otherwise the cost of such audit shall be paid by Tenant. If
Tenant shall not request an audit in accordance with the
provisions of this Paragraph 7.E. within sixty (60) days
after receipt of Landlord's statement provided pursuant to
Paragraph 7.B. or 7.C., such statement shall be final an
binding for all purposes hereof.
INSURANCE AND 8. A. Landlord's Insurance. Landlord agrees to maintain
INDEMNIFICATION insurance insuring the Building against fire, lightning,
vandalism and malicious mischief (including, if Landlord
elects, "All Risk" coverage, earthquake, and/or flood
insurance), in an amount of not less than one hundred (100%)
percent of the current replacement cost thereof, except
where commercially unreasonable, with deductibles and the
form and endorsements of such coverage as selected by
Landlord. Such insurance may also include, at Landlord's
option, insurance against loss of Base Rent and Additional
Rent, in an amount equal to the amount of Base Rent and
Additional Rent payable by Tenant for a period of at least
twelve (12) months commencing on the date of loss. Such
insurance shall be for the sole benefit of Landlord and
under Landlord's sole control. Landlord shall not be
obligated to insure any furniture, equipment, machinery,
goods or supplies which Tenant may keep or maintain in the
Premises, or any leasehold improvements, additions or
alterations within the Premises. Landlord may also carry
such other insurance as Landlord may deem prudent or
advisable, including, without limitation, liability
insurance in such amounts and on such terms as Landlord
shall determine.
B. TENANT'S INSURANCE.
(1) PROPERTY INSURANCE. Tenant shall procure at Tenant's
sole cost and expense and keep in effect from the date of
this Lease and at all times until the end of the Term,
insurance on all personal property, Fixtures and all
improvements made by or for Tenant to the Premises, insuring
such property for the full replacement value of such
property, exclusive of reasonable deductibles.
(2) LIABILITY INSURANCE. Tenant shall procure at Tenant's
sole cost and expense and keep in effect from the date of
this Lease and at all times until the end of the Term either
Comprehensive General Liability insurance or Commercial
General Liability insurance applying to the use and
occupancy of the Premises and the Building, and any part of
either, and any areas adjacent thereto, and the business
operated by Tenant, or by any other occupant on the
Premises. Such insurance shall include Broad Form
Contractual Liability insurance coverage insuring all of
Tenant's indemnity obligations under this Lease. Such
coverage shall have a minimum combined single limit of
liability of at least two million dollars ($2,000,000.00),
and a general aggregate limit of five million dollars
($5,000,000.00). All such policies shall be written to apply
to all bodily injury, property damage or loss, personal
injury and other covered loss, however occasioned, occurring
during the policy term, shall be endorsed to add Landlord,
Riggs Bank N.A., as trustee of Multi-Employer Trust, the
Multi-Employer Trust, Kennedy Associates Real Estate
Counsel, Inc., and the officers, agents and employees of
each of the foregoing entities, and any party of which
Tenant has been
<PAGE> 11
notified holding an interest to which this Lease may be
subordinated as an additional insured, and shall provide
that such coverage shall be primary as it pertains to the
Premises and that any insurance maintained by Landlord
pertaining to the Premises shall be excess insurance only.
Such coverage shall also contain endorsements: (i) deleting
any employee exclusion on personal injury coverage; (ii)
including employees as additional insureds; (iii) deleting
any liquor liability exclusion; and (iv) providing for
coverage of employer's automobile non-ownership liability.
All such insurance shall provide for severability of
interests; shall provide that an act or omission of one of
the named insureds shall not reduce or avoid coverage to the
other named insureds; and shall afford coverage for all
claims based on acts, omissions, injury and damage, which
claims occurred or arose (or the onset of which occurred or
arose) in whole or in part during the policy period. Said
coverage shall be written on an "occurrence" basis, if
available. If an "occurrence" basis form is not available,
Tenant must purchase "tail" coverage for the most number of
years available, and tenant must also purchase "tail"
coverage if the retroactive date of an "occurrence" basis
form is changed so as to leave a gap in coverage for
occurrences that might have occurred in prior years. If a
"claims made" policy is ever used, the policy must be
endorsed so that Landlord is given the right to purchase
"tail" coverage should Tenant for any reason not do so or if
the policy is to be cancelled for nonpayment of premium.
(3) GENERAL INSURANCE REQUIREMENTS. All coverages described
in this Paragraph 8.B. shall be endorsed to provide Landlord
with thirty (30) days' notice of cancellation or change in
terms. If at any time during the Term the amount or coverage
of insurance which Tenant is required to carry under this
Paragraph 8.B. is, in Landlord's reasonable judgment,
materially less than the amount or type of insurance
coverage typically carried by owners or tenants of
properties located in the general area in which the Premises
are located which are similar to and operated for similar
purposes as the Premises, Landlord shall have the right to
require Tenant to increase the amount or change the types of
insurance coverage required under this Paragraph 8.B. All
insurance policies required to be carried under this Lease
shall be written by companies rated A or better in "Best's
Insurance Guide" and authorized to do business in
California. Any deductible amounts under any insurance
policies required hereunder shall be subject to Landlord's
prior written approval. In any event deductible amounts
shall not exceed five thousand dollars ($5,000.00). Tenant
shall deliver to Landlord on or before the Term Commencement
Date, and thereafter at least thirty (30) days before the
expiration dates of the expiring policies, certified copies
of Tenant's insurance policies, or a certificate evidencing
the same issued by the insurer thereunder, showing that all
premiums have been paid for the full policy period; and, in
the event Tenant shall fail to procure such insurance, or to
deliver such policies or certificates, Landlord may, at
Landlord's option and in addition to Landlord's other
remedies in the event of a Default by Tenant hereunder,
procure the same for the account of Tenant, and the cost
thereof shall be paid to Landlord as Additional Rent.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant
for any loss or damage to person or property caused by
theft, fire, acts of God, acts of a public enemy, riot,
strike, insurrection, war, court order, requisition or order
of governmental body or authority or for any damage or
inconvenience which may arise through repair or alteration
of any part of the Building or the Project or failure to
make any such repair, except as expressly otherwise provided
in Paragraph 10. Tenant shall indemnify, defend by counsel
reasonably acceptable to Landlord, protect and hold Landlord
harmless from and against any and all liabilities, losses,
costs, damages, injuries or expenses, including reasonable
attorneys' fees and court costs, arising out of or related
to: (1) claims of injury to or death of persons or damage to
property occurring or resulting directly or indirectly from
the use or occupancy of the Premises, or from activities of
Tenant or Tenant's Parties (2) claims for work or labor
performed, or for materials or supplies furnished to or at
the request of Tenant in connection with performance of any
work done for the account of Tenant within the Premises or
Project; and (3) claims arising from any breach or Default
on the part of Tenant in the performance of any covenant
contained in this Lease. The foregoing indemnity shall not
be applicable to claims arising from the gross negligence or
willful misconduct of Landlord and Landlord shall indemnify
<PAGE> 12
Tenant for any loss incurred by Tenant as a direct
consequence of any such gross negligence or willful
misconduct of Landlord. The provisions of this Paragraph
shall survive the expiration or termination of this Lease
with respect to any claims or liability occurring prior to
such expiration or termination.
WAIVER OF 9. To the extent permitted by law and without affecting the
SUBROGATION coverage provided by insurance to be maintained hereunder,
Landlord and Tenant each waive any right to recover against
the other for: (a) damages for injury to or death of
persons; (b) damages to property; (c) damages to the
Premises or any part thereof, and (d) claims arising by
reason of the foregoing due to hazards covered by insurance
to the extent of proceeds recovered therefrom. This
provision is intended to waive fully, and for benefit of
each party, any rights and/or claims which might give rise
to a right of subrogation in favor of any insurance carrier.
The coverage obtained by each party pursuant to this Lease
shall include, without limitation, a waiver of subrogation
by the carrier which conforms to the provisions of this
Paragraph.
LANDLORD'S 10. Landlord shall at Landlord's expense maintain the structural
REPAIRS soundness of the structural beams of the roof, the
foundations and exterior walls of the Building in good
repair, reasonable wear and tear excepted; provided that,
Landlord shall not be responsible for the cost of any
repairs resulting from damage, destruction or deterioration
which is caused by Tenant or Tenant's Parties. The term
"exterior walls" as used herein shall not include windows,
glass or plate glass, doors, special store fronts or office
entries. Landlord shall perform on behalf of Tenant and
other tenants of the Project, as an item of Basic Operating
Cost, the exterior maintenance of the Building, the Project,
and public and common areas of the Project, including but
not limited to the roof, pest extermination, the landscaped
areas, parking areas, driveways, the truck staging areas,
fire sprinkler systems, sanitary and storm sewer lines,
utility services, electric and telephone equipment servicing
the Building(s), exterior lighting, and anything which
affects the operation and exterior appearance of the
Project, which determination shall be at Landlord's sole
discretion. Except for the expenses directly involving the
items specifically described in the first sentence of this
Paragraph 10., Tenant shall reimburse Landlord for all such
costs in accordance with Paragraph 7. Any damage caused by
or repairs necessitated by any act of Tenant or Tenant's
Parties may be repaired by Landlord at Landlord's option and
at Tenant's expense. Tenant shall immediately give Landlord
written notice of any defect or need of repairs after which
Landlord shall have a reasonable opportunity to repair same.
Landlord's liability with respect to any defects, repairs,
or maintenance for which Landlord is responsible under any
of the provisions of this Lease shall be limited to the cost
of such repairs or maintenance. Except in case of emergency,
Landlord shall provide Tenant with reasonable notice before
entering the Premises to conduct repairs.
TENANT'S 11. Tenant shall at Tenant's expense throughout the Term of this
REPAIRS Lease maintain all parts of the Premises in a good, clean
and secure condition and promptly make all necessary repairs
and replacements, including but not limited to all windows,
glass, doors, walls and wall finishes, floor covering,
heating, ventilating and air conditioning systems, truck
doors, dock bumpers, dock plates and levelers, plumbing work
and Fixtures, roof (exclusive of structural beams),
downspouts, electrical and lighting systems, and fire
sprinklers. Tenant shall at Tenant's expense also perform
regular removal of trash and debris. If required by the
railroad company, Tenant agrees to sign a joint maintenance
agreement governing the use of the rail spur, if any. Tenant
shall, at Tenant's own expense, enter into a regularly
scheduled preventive maintenance/service contract with a
maintenance contractor for servicing all hot water, heating
and air conditioning systems and equipment within or serving
the Premises. The maintenance contractor and the contract
must be approved by Landlord. The service contract must
include all services suggested by the equipment manufacturer
within the operation/ maintenance manual and must become
effective and a copy thereof delivered to Landlord within
thirty (30) days after the Term Commencement Date. Tenant
shall not damage any demising wall or disturb the integrity
and support provided by any demising wall and shall, at its
sole expense, immediately repair any damage to any demising
wall caused
<PAGE> 13
by Tenant or Tenant's Parties. To the extent permitted by
applicable contracts or law, Landlord shall make available
to Tenant the benefits of any contractor warranties
applicable to items for which Tenant has repair, maintenance
or replacement responsibility hereunder, provided, however,
that Landlord shall not be obligated to incur any cost or
liability in so doing.
ALTERATIONS 12. Tenant shall not make, or allow to be made, any Alterations
or physical additions in, about or to the Premises without
obtaining the prior written consent of Landlord, except as
stated below, which consent shall not be unreasonably
withheld with respect to proposed alterations and additions
which: (a) comply with all applicable laws, ordinances,
rules and regulations; (b) are in Landlord's opinion
compatible with the Project and its mechanical, plumbing,
electrical, heating/ventilation/air conditioning systems,
(c) are constructed utilizing Union Labor as set forth in
Section 2.4. of Exhibit B-1; (d) will not interfere with the
use and occupancy of any other portion of the Building or
the Project by any other tenant or its invitees; (e) are
performed promptly and in a workman like manner; (f) the
Project remains lien free as a result of the construction;
and (g) are constructed using all new materials. The term
"Alteration" as used herein is defined as alterations,
additions, substitutions, installations, changes and
improvements, but excludes minor decorations. So long as
Tenant is not in Default under this Lease, Tenant shall have
the right to make up to fifteen thousand dollars ($15,000)
worth of Alterations to the Premises per year, which would
otherwise be permissible under the Lease and which do not
involve demolition or effect the structural parts or
exterior of the Building, without obtaining the prior
written consent of Landlord. Prior to commencing any
construction, Tenant shall nevertheless submit to Landlord
copies of its plans and specification, and Tenant's work
shall be performed pursuant to the other requirements of
this section. Specifically, but without limiting the
generality of the foregoing, Landlord shall have the right
of written consent for all plans and specifications for the
proposed Alterations or additions, construction means and
methods, all appropriate permits and licenses, any
contractor or subcontractor to be employed on the work of
Alteration or additions, and the time for performance of
such work. Tenant shall also supply to Landlord any
documents and information reasonably requested by Landlord
in connection with Landlord's consideration of a request for
approval hereunder. Tenant shall reimburse Landlord for all
costs which Landlord may incur in connection with granting
approval to Tenant for any such Alterations and additions,
including any costs or expenses which Landlord may incur in
electing to have outside architects and engineers review
said plans and specifications. All such Alterations,
physical additions or improvements shall remain the property
of Tenant until termination of this Lease, at which time
they shall be and become the property of Landlord if
Landlord so elects; provided, however, that Landlord may, at
Landlord's option, require that Tenant, at Tenant's expense,
remove any or all Alterations, additions, improvements and
partitions made by Tenant and restore the Premises by the
termination of this Lease, whether by lapse of time, or
otherwise, to their condition existing prior to the
construction of any such alterations, additions, partitions
or leasehold improvements, except for initial Tenant
Improvements made pursuant to Exhibit B-1. All such removals
and restoration shall be accomplished in a good and
workmanlike manner so as not to cause any damage to the
Premises or Project whatsoever. If Tenant fails to so remove
such alterations, additions, improvements and partitions or
Tenant's Trade Fixtures or furniture, Landlord may keep and
use them or remove any of them and cause them to be stored
or sold in accordance with applicable law, at Tenant's sole
expense. In addition to and wholly apart from Tenant's
obligation to pay Tenant's Proportionate Share or Basic
Operating Cost, Tenant shall be responsible for and shall
pay prior to delinquency any taxes or governmental service
fees, possessory interest taxes, fees or charges in lieu of
any such taxes, capital levies, or other charges imposed
upon, levied with respect to or assessed against its
personal property, on the value of the alterations,
additions or improvements within the Premises, and on
Tenant's interest pursuant to this Lease. To the extent that
any such taxes are not separately assessed or billed to
Tenant, Tenant shall pay the amount thereof as invoiced to
Tenant by Landlord.
<PAGE> 14
SIGNS 13. Subject to the provisions of this Section, Tenant may, at
Tenant's cost , erect a sign on the Premises. All signs,
notices, graphics and advertising balloons of every kind or
character, visible in or from public view or corridors, the
common areas or the exterior of the Premises, shall be
subject to Landlord's prior written approval. Landlord shall
provide, at Landlord's cost, monument signage on Oyster
Point Boulevard which identifies Tenant's business. Tenant
shall not place or maintain any banners whatsoever or any
window decor in or on any exterior window or window fronting
upon any common areas or service area or upon any truck
doors or man doors without Landlord's prior written
approval. Any installation of signs or graphics on or about
the Premises and Project shall be subject to any applicable
governmental laws, CC&Rs, ordinances, regulations and to any
other reasonable requirements imposed by Landlord. Tenant
shall remove all such signs and graphics prior to the
termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury or
defacement of the Premises, the Building or the Project and
any other improvements contained therein, and Tenant shall
repair any injury or defacement, including without
limitation, discoloration caused by such installation or
removal.
INSPECTION/ 14. After reasonable notice, except in emergencies where no such
POSTING NOTICES notice shall be required, Landlord, and Landlord's agents
and representatives, shall have the right to enter the
Premises to inspect the same, to clean, to perform such work
as may be permitted or required hereunder, to make repairs
or alterations to the Premises or Project or to other tenant
spaces therein, to deal with emergencies, to post such
notices as may be permitted or required by law to prevent
the perfection of liens against Landlord's interest in the
Project or to exhibit the Premises to prospective tenants,
purchasers, encumbrances or others, or for any other purpose
as Landlord may deem necessary or desirable; provided,
however, that Landlord shall use reasonable efforts not to
unreasonably interfere with Tenant's business operations.
Provided that Tenant is not in Default hereunder, Landlord
shall not advertise or show the Premises to prospective
successor tenants except during the last twelve (12) months
of the Lease term. Tenant shall not be entitled to any
abatement of Rent by reason of the exercise of any such
right of entry. At any time within six (6) months prior to
the end of the Term, Landlord shall have the right to erect
on the Premises and/or Project a suitable sign indicating
that the Premises are available for lease, but agrees not to
attach such sign directly to the Building. Tenant shall give
written notice to Landlord at least thirty (30) days prior
to vacating the Premises and shall meet with Landlord for a
joint inspection of the Premises at the time of vacating. In
the event of Tenant's failure to give such notice or
participate in such joint inspection, Landlord's inspection
at or after Tenant's vacating the Premises shall
conclusively be deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
UTILITIES 15. Tenant shall pay directly for all water, gas, heat, air
conditioning, light, power, telephone, sewer, sprinkler
charges and other utilities and services used on or from the
Premises, together with any taxes, penalties, surcharges or
the like pertaining thereto, and maintenance charges for
utilities and shall furnish all electric light bulbs,
ballasts and tubes. If any such services are not separately
metered to Tenant, Tenant shall pay a reasonable proportion,
as determined by Landlord, of all charges jointly serving
other premises. Landlord shall not be liable for any damages
directly or indirectly resulting from nor shall the Rent or
any monies owed Landlord under this Lease herein reserved be
abated by reason of: (a) the installation, use or
interruption of use of any equipment used in connection with
the furnishing of any such utilities or services; (b) the
failure to furnish or delay in furnishing any such utilities
or services when such failure or delay is caused by acts of
God or the elements, labor disturbances of any character, or
any other accidents or other conditions beyond the
reasonable control of Landlord; or (c) the limitation,
curtailment, rationing or restriction on use of water,
electricity, gas or any other form of energy or any other
service or utility whatsoever serving the Premises or
Project. Landlord shall be entitled to cooperate voluntarily
and in a reasonable manner with the efforts of national,
state or local governmental agencies or utility suppliers in
reducing energy or other resource consumption. The
obligation to make services available hereunder shall be
subject to the limitations of any such voluntary, reasonable
program.
<PAGE> 15
SUBORDINATION 16. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and subordinate
at all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the
Premises and/or the land upon which the Premises and Project
are situated, or both; and (b) any mortgage or deed of trust
which may now exist or be placed upon said Project, land,
ground leases or underlying leases, or Landlord's interest
or estate in any of said items which is specified as
security. At the request of Tenant, Landlord will endeavor
to obtain from the secured party under any mortgage or deed
of trust which is senior to this Lease, a nondisturbance
agreement upon such lender's customary form therefor.
Notwithstanding the foregoing, Landlord shall have the right
to subordinate or cause to be subordinated any such ground
leases or underlying leases or any such lines to this Lease.
In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust
is foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such
successor in interest. Within ten (10) days after request by
Landlord, Tenant shall execute and deliver any additional
documents evidencing Tenant's attornment or the
subordination of this Lease with respect to any such ground
leases or underlying leases or any such mortgage or deed of
trust, in the form requested by landlord or by any ground
landlord, mortgagee, or beneficiary under a deed of trust.
FINANCIAL 17. At the request of Landlord, Tenant shall provide to Landlord
STATEMENTS Tenant's current financial statement or other information
discussing financial worth of Tenant within thirty (30) days
after the date of Landlord's request, which Landlord shall
use solely for purposes of this Lease and in connection with
the ownership, management and disposition of the Project.
ESTOPPEL 18. Tenant agrees from time to time, within ten (10) business
CERTIFICATE days after request of Landlord, to deliver to Landlord, or
Landlord's designee, an estoppel certificate per Exhibit D
or in an alternate form that the requesting party may
require stating that this Lease is in full force and effect,
the date to which Rent has been paid, the unexpired portion
of this Lease, and such other matters pertaining to this
Lease as may be reasonably requested by Landlord. Landlord
and Tenant intend that any statement delivered pursuant to
this Paragraph may be relied upon by any mortgagee,
beneficiary, purchaser or prospective purchaser of the
Project or any interest therein. The parties agree that
Tenant's obligation to furnish such estoppel certificates in
a timely fashion is a material inducement for Landlord's
execution of the Lease, and shall be an Event of Default if
Tenant fails to fully comply. Tenant acknowledges that
failure to provide the Estoppel Certificate to Landlord or
Landlord's designee within the time provided above may cause
Landlord to incur substantial damages. Tenant hereby agrees
to indemnify Landlord for any liabilities, losses, costs,
damages (including, without limitation, compensatory,
incidental and consequential damages), injuries or expenses
arising from the failure of Tenant to deliver the Estoppel
certificate in the manner provided in this Paragraph within
twenty (20) business days after requested by Landlord. In
addition to any other remedies Landlord may have at law and
equity, Landlord shall be entitled to specific performance
of this Paragraph. The provisions of this Paragraph shall
survive the expiration or termination of this Lease with
respect to any claims or liability occurring prior to such
expiration or termination.
SECURITY 19. Tenant agrees to deposit with Landlord upon execution of
DEPOSIT this Lease, a Security Deposit as stated in the
Basic Lease Information, which sum shall be held by
Landlord, without obligation for interest, as security for
the performance of Tenant's covenants and obligations under
this Lease. The Security Deposit is not an advance rental
deposit or a measure of damages incurred by Landlord in case
of Tenant's Default. Landlord is not required to keep all or
any part of the Security Deposit separate from its general
accounts. Upon the occurrence of any Event of Default by
Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein or provided by law, use
such fund to the extent necessary to make good any arrears
of Rent or other payments due to Landlord hereunder, and any
other damage, injury, expense or liability caused by such
Event of Default, and
<PAGE> 16
Tenant shall pay to Landlord, on demand, the amount so
applied in order to restore the Security Deposit to its
original amount. Although the Security Deposit shall be
deemed the property of Landlord, any remaining balance of
such deposit shall be returned by Landlord to Tenant at such
time after termination of this Lease that all of Tenant's
obligation under this Lease have been fulfilled. Landlord
may use and commingle the Security Deposit with other funds
of Landlord. Tenant agrees, represents and warrants that all
of Tenant's Work will be free and clear of all liens and
encumbrances of any kind as and when installed, and shall
immediately become subject to Landlord's first lien security
interest in such work. As additional security, Tenant agrees
to execute and deliver to Landlord a Uniform Commercial Code
Financing Statement and Security Agreement on all Trade
Fixtures and improvements otherwise made pursuant to
Tenant's Work as set forth in Exhibit B in a form reasonably
satisfactory to the Landlord.
TENANT'S 20. The liability of Landlord to Tenant for any default by
REMEDIES Landlord under the terms of this Lease are not personal
obligations of the Landlord or other trustees, advisors,
partners, directors, officers and shareholders of Landlord,
and Tenant agrees to look solely to Landlord's interest in
the Project (including net revenues generated by the
Project) together with proceeds of sale, insurance proceeds,
and any award or settlement in eminent domain for the
recovery of any amount from Landlord, and shall not look to
other assets of Landlord nor seek recourse against the
assets of the Landlord or other trustees, advisors,
partners, directors, officers and shareholders of Landlord.
ASSIGNMENT AND 21. A. GENERAL. Tenant shall not assign this Lease or sublet the
SUBLETTING Premises or any part thereof without Landlord's
prior written approval. If Tenant desires to assign this
Lease, it must present the Landlord with an ERISA
Certificate in compliance with the provisions of Paragraph
37. of this Lease signed by the potential assignee,
demonstrate that the potential assignee has adequate credit,
demonstrate to the Landlord's satisfaction that the
potential assignee's proposed use of the Premises is
compatible with the Project and complies with all applicable
laws, ordinances, rules and regulations. If Tenant desires
to assign this Lease or sublet any or all of the Premises,
Tenant shall give Landlord written notice sixty (60) days
prior to the anticipated effective date of the assignment or
sublease. Landlord shall then have a period of fifteen (15)
days following receipt of such notice to notify Tenant in
writing whether Landlord elects to permit Tenant to assign
this Lease or sublet such space, subject, however, to
Landlord's prior written approval of the proposed assignee
or subtenant and of any related documents or agreements
associated with the assignment or sublease. Landlord's
consent to a proposed assignment of sublet shall not be
unreasonably withheld. Without limiting the other instances
in which it may be reasonable for Landlord to withhold
Landlord's consent to an assignment or subletting, Landlord
and Tenant acknowledge that it shall be reasonable for
Landlord to withhold Landlord's consent in the following
instances: The use of the Premises by such proposed assignee
or subtenant would not be a permitted use or would increase
the Parking Density of the Project; the proposed assignee or
subtenant is not of sound financial condition, as reasonably
determined by Landlord after receipt of the proposed
assignee's financial statements in form satisfactory to
Landlord; the proposed assignee or subtenant is a
governmental agency; the proposed assignee or subtenant does
not have a good reputation as a tenant of property; the
proposed assignee or subtenant is a person with whom
Landlord is negotiating to lease space in the Project; the
assignment of subletting would entail any alterations which
would lessen the value of the leasehold improvements in the
Premises; or if Tenant is in Default of any obligation of
Tenant under this Lease, or Tenant has defaulted under this
Lease on three (3) or more occasions during any twelve (12)
months preceding the date that Tenant shall request consent.
Failure by Landlord to approve a proposed assignee or
subtenant shall not cause a termination of this Lease.
Notwithstanding anything to the contrary in this Paragraph
21., Tenant shall have the right to assign the Premises to
any entity without first obtaining consent of Landlord
resulting from a merger or consolidation with Tenant, a
public offering and sale of some or all of Tenant's stock, a
transfer of shares of Tenant's stock on the public stock
exchange, or a transfer of the Lease in connection with the
sale of all or substantially all of Tenant's assets;
<PAGE> 17
provided that: (a) Tenant shall not be in Default of any of
its obligations under this Lease and shall not have
previously defaulted under this Lease on three (3) or more
occasions during any twelve (12) month period preceding the
date of such transaction, (b) Tenant shall give Landlord at
least sixty (60) days prior written notice of any such
proposed transaction, (c) the entity which results from the
merger, consolidation or other transaction of Tenant shall
have a net equity of at least Ten Million Dollars
($10,000,000) which has been demonstrated in appropriate
documentation delivered to Landlord prior to the occurrence
of such transaction, and (d) such entities shall execute an
ERISA Certificate as set forth in Paragraph 37. The right to
assign and/or sublet the Premises is personal to the Tenant
and shall not inure to the benefit of any assignee,
subtenant or successor of Tenant.
B. BONUS RENT. Any Rent or other consideration realized by
Tenant under any approved sublease or assignment in excess
of the Rent payable hereunder, after deducting on an
amortized basis Tenant's actual payment of a reasonable
brokerage commission, reasonable attorneys' fees, reasonable
marketing expenses related to the subletting, reasonable
costs of Tenant's improvements to the subleased or assigned
premises for the subtenant's use, and the unamortized
portion of Tenant's Work, as defined in Exhibit B-1,
attributed to the subleased or assigned premises in excess
of the Tenant Improvement Allowance, as defined in Exhibit
B-1, shall be divided and paid, fifty (50%) percent to
Tenant, fifty (50%) percent to Landlord. The deduction for
the unamortized portion of Tenant's Work shall be based on a
7 1/2 year amortization period at a rate of eleven percent
(11%) per annum. All other reasonable costs shall be fully
amortized over the term of the sublease at a rate of eleven
percent (11%) per annum.
C. CORPORATION. If Tenant is a corporation, a transfer of
corporate shares by sale, assignment, bequest, inheritance,
operation of law or other disposition (including such a
transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings), so as to
result in a change in the present control of such
corporation or any of its parent corporations by the person
or persons owning a majority of said corporate shares, shall
constitute an assignment for purposes of this Lease.
D. PARTNERSHIP. If Tenant is a partnership, joint venture or
other incorporated business form, a transfer of the interest
of persons, firms or entities responsible for managerial
control of Tenant by sale, assignment, bequest, inheritance,
operation of law or other disposition, so as to result in a
change in the present control of said entity and/or a change
in the identity of the persons responsible for the general
credit obligations of said entity shall constitute an
assignment for all purposes of this Lease.
E. LIABILITY. No assignment or subletting by Tenant shall
relieve Tenant of any obligation under this Lease. Any
assignment or subletting which conflicts with the provisions
hereof shall be void.
F. OPTIONS. Tenant must be in possession of the entire
Premises in order to exercise its options to renew and/or
expand, and/or expend under this Lease.
AUTHORITY 22. Landlord represents and warrants that it has full right and
OF PARTIES authority to enter into this Lease and to perform all of
Landlord's obligations hereunder. Tenant represents and
warrants that it has full right and authority to enter into
this Lease and to perform all of Tenant's obligations
hereunder.
<PAGE> 18
CONDEMNATION 23. A. CONDEMNATION RESULTING IN TERMINATION. If the whole or
any substantial part of the Premises, the Building, and/or
the Project of which the Premises are a part should be taken
or condemned for any public use under governmental law,
ordinance or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, and the taking would
prevent or materially interfere with the Permitted Use of
the Premises, this Lease shall terminate and the Rent shall
abated during the unexpired portion of this Lease, effective
when the physical taking of said Premises shall have
occurred.
B. CONDEMNATION NOT RESULTING IN TERMINATION. If a portion
of the Project of which the Premises are a part should be
taken or condemned for any public use under any governmental
law, ordinance, or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided in Paragraph 23.A.
above, this Lease shall not terminate, but the Rent payable
hereunder during the unexpired portion of the Lease shall be
reduced, beginning on the date when the physical taking
shall have occurred, to such amount as may be fair and
reasonable under all of the circumstances.
C. AWARD. Landlord shall be entitled to any and all payment,
income, rent, award, or any interest therein whatsoever
which may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord
or otherwise for the value of any unexpired portion of this
Lease. Notwithstanding the foregoing, any compensation
specifically awarded Tenant for loss of business, Tenant's
personal property, moving costs or loss of goodwill, shall
be and remain the property of Tenant and Tenant shall have
the right to make any claim for the value of its interest in
the Property, including, without limitation, the unamortized
value of Tenant Improvements paid for by Tenant, as set
forth in Exhibit B-1, including those items set forth in
Exhibit B-3.
CASUALTY 24. A. GENERAL. If the Premises or the Building should be
DAMAGE damaged or destroyed by fire, tornado, earthquake or other
casualty, Tenant shall give immediate written notice thereof
to Landlord. Within thirty (30) days after Landlord's
receipt of such notice, Landlord shall notify Tenant whether
in Landlord's reasonable opinion such repairs can reasonably
be made either: (1) within ninety (90) days; (2) in more
than ninety (90) days but in less than one hundred eight
(180) days; or (3) in more than one hundred eight (180) days
from the date of such notice. Landlord's determination shall
be binding on Tenant.
B. LESS THAN 90 DAYS. If the Premises or the Building should
be damaged by fire, tornado, earthquake or other casualty
but only to such extent that rebuilding or repairs can in
Landlord's estimation be reasonably completed within ninety
(90) days after the date of such damage, this Lease shall
not terminate, and provided that insurance proceeds are
available to fully repair the damage, Landlord shall proceed
to rebuild and repair the Premises in the manner determined
by Landlord, except that Landlord shall not be required to
rebuild, repair or replace any part of the partitions.
Fixtures, additions and other leasehold improvements which
may have been placed in, on or about the Premises. If the
Premises are untenantable in whole or in part following such
damage, the Rent payable hereunder during the period in
which they are untenantable shall be abated proportionately,
but only to the extent the Premises are unfit for occupancy.
C. GREATER THAN 90 DAYS. If the Premises or the Building
should be damaged by fire, tornado, earthquake or other
casualty but only to such extent that rebuilding or repairs
can in Landlord's estimation be reasonably completed in more
than ninety (90) days but in less than one hundred eighty
(180) days, then Landlord shall have the option of either:
(1) terminating the Lease effective upon the date of the
occurrence of such damage, in which event the Rent shall be
abated during the unexpired portion of the Lease; or (2)
electing to rebuild or repair the Premises to substantially
the condition in which they existed prior to such damage,
provided that insurance proceeds are available, to fully
repair the damage, except that Landlord shall not be
required to rebuild, repair or replace any part of the
partitions, Fixtures, additions and other improvements which
may have been placed in, on or about the Premises.
<PAGE> 19
If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the
period in which they are untenantable shall be abated
proportionately, but only to the extent the Premises are
unfit for occupancy. In the event that Landlord should fail
to complete such repairs and rebuilding within one hundred
eight days (180) days after the date upon which Landlord is
notified by Tenant of such damage, such period of time to be
extended for delays caused by the fault or neglect of Tenant
or because of acts of God, acts of public agencies, labor
disputes, strikes, fires, freight embargoes, rainy or stormy
weather, inability to obtain materials, supplies or fuels,
or delays of the contractors or subcontractors or any other
causes or contingencies beyond the reasonable control of
Landlord, Tenant may at Tenant's option within ten (10) days
after the expiration of such one hundred eighty (180) day
period (as such may be extended), terminate this Lease by
delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights hereunder
shall cease and terminate thirty (30) days after Landlord's
receipt of such termination notice.
D. GREATER THAN 180 DAYS. If the Premises or the Building
should be so damaged by fire, tornado, earthquake or other
casualty that rebuilding or repairs cannot in Landlord's
reasonable estimation be completed within one hundred eighty
(180) days after such damage, this Lease shall terminate and
the Rent shall be abated during the unexpired portion of
this Lease, effective upon the date of the occurrence of
such damage.
E. TENANT'S FAULT. If the Premises or any other portion of
the Building is damaged by fire or other casualty resulting
from the fault, negligence, or breach of this Lease by
Tenant or any of Tenant's Parties, Base Rent and Additional
Rent shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost
and expense is not covered by insurance proceeds.
F. UNINSURED CASUALTY. Notwithstanding anything herein to
the contrary, in the event that the Premises or the Building
is damaged or destroyed and are not fully covered by the
insurance proceeds received by Landlord or in the event that
the holder of any indebtedness secured by a mortgage or deed
of trust covering the Premises requires that the insurance
proceeds be applied to such indebtedness, then in either
case Landlord shall have the right to terminate this Lease
by delivering written notice of termination to Tenant within
thirty (30) days after the date of notice to Landlord that
said damage or destruction is not fully covered by insurance
or such requirement is made by any such holder, as the case
may be, whereupon all rights and obligations hereunder shall
cease and terminate.
G. WAIVER. Except as otherwise provided in this Paragraph
24., Tenant hereby waives the provisions of Sections
1932(a), 1933(4), 1941 and 1942 of the Civil Code of
California.
HOLDING OVER 25. If Tenant shall retain possession of the Premises or any
portion thereof without Landlord's consent following the
expiration of the Lease or sooner termination for any
reason, then Tenant shall pay to Landlord for each day of
such retention one hundred and fifty (150%) percent of the
amount of the daily rental as of the last month prior to the
date of expiration or termination. Tenant shall also
indemnify, defend, protect and hold Landlord harmless from
any loss, liability or cost, including reasonable attorneys'
fees, resulting from delay by Tenant in surrendering the
Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Acceptance of
Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease, and nothing
contained in this Paragraph 25. shall waive Landlord's right
of reentry or any other right. Unless Landlord consents in
writing to Tenant's holding over, Tenant shall be only a
Tenant at sufferance, whether or not Landlord accepts any
Rent from Tenant while Tenant is holding over without
Landlord's written consent. Additionally, in the event that
upon termination of the Lease, Tenant has not fulfilled its
obligation with respect to repairs and cleanup of the
Premises or any other Tenant obligations as set forth in
this Lease, then Landlord shall have the right to perform
any such obligations as it deems necessary at Tenant's sole
cost and expense, and any time required by Landlord to
complete such obligations shall be considered a period of
<PAGE> 20
holding over and the terms of this Paragraph 25. shall
apply.
DEFAULT 26. A. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an event of default ("Event of Default" or
"Default") on the part of Tenant:
(1) ABANDONMENT. Abandonment of the Premises for a
continuous period in excess of thirty (30) business days
will not be an Event of Default so long as Tenant timely
performs all other monetary and non-monetary obligations
under this Lease and keeps the Premises locked and secured.
Tenant waives any right to notice Tenant may have under
Section 1951.3 of the Civil Code of the State of California,
the terms of this Paragraph 26.A. being deemed such notice
to Tenant as required by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment of
Rent or any other amount due and payable hereunder within
five (5) days following the date when said payment is due.
(3) OTHER OBLIGATIONS. Failure to perform any obligation,
agreement or covenant under this Lease other than those
matters specified in subparagraphs (1) and (2) of this
Paragraph 26.A., such failure continuing for fifteen (15)
days after written notice of such failure. In the event
Tenant has commenced to cure the failure of performance
within the fifteen (15) day period, but has not completed
the cure despite diligent attempts to do so, Tenant shall
have an additional period not to exceed thirty (30)
additional days after such fifteen (15) day period to
complete such cure so long as Tenant continues to diligently
pursue the cure to completion during such additional thirty
(30) day period.
(4) GENERAL ASSIGNMENT. A general assignment by Tenant for
the benefit of creditors.
(5) BANKRUPTCY. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary
petition by Tenant's creditors, which involuntary petition
remains undischarged for a period of sixty (60) days. In the
event that under applicable law the trustee in bankruptcy or
Tenant has the right to affirm this Lease and continue to
perform the obligations of Tenant hereunder, such trustee or
Tenant shall, in such time period as may be permitted by the
bankruptcy court having jurisdiction, cure all Defaults of
Tenant hereunder outstanding as of the date of the
affirmance of this Lease and provide to Landlord such
adequate assurances as may be necessary to ensure Landlord
of the continued performance of Tenant's obligations under
this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take
possession of substantially all of Tenant's assets or the
Premises, if such appointment remains undismissed or
undischarged for a period of sixty (60) days after the order
therefor.
(7) ATTACHMENT. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or
the Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of sixty (60) days
after the levy thereof.
(8) DELAYS. Any delay in the construction of Landlord's Work
caused by Tenant or Tenant's Work as provided in Exhibit
B-1.
B. REMEDIES UPON DEFAULT.
(1) TERMINATION. In the event of the occurrence of any Event
of Default, Landlord shall have the right to give a written
termination notice to Tenant, and on the date specified in
such notice, Tenant's right to possession shall terminate,
and this Lease shall terminate unless on or before such date
all arrears of rental and all other sums payable by Tenant
under this Lease and all reasonable costs and expenses
incurred by or on behalf of Landlord hereunder shall have
been paid by Tenant and all other Events of Default of this
Lease by Tenant at the
<PAGE> 21
time existing shall have been fully remedied to the
satisfaction of Landlord. At any time after such
termination, Landlord may recover possession of the Premises
or any part thereof and expel and remove therefrom Tenant
and any other person occupying the same, by any lawful
means, and again repossess and enjoy the Premises without
prejudice to any of the remedies that Landlord may have
under this Lease, or at law or equity by reason of Tenant's
Default or of such termination.
(2) CONTINUATION AFTER DEFAULT. Even though an Event of
Default may have occurred, this Lease shall continue in
effect for so long as Landlord does not terminate Tenant's
right to possession under Paragraph 26.B.(1) hereof, and
Landlord may enforce all of Landlord's rights and remedies
under this Lease, including without limitation, the right to
recover Rent as it becomes due, and Landlord, without
terminating this Lease, may exercise all of the rights and
remedies of a landlord under Section 1951.4 of the Civil
Code of the State of California or any successor code
section. Acts of maintenance, preservation or efforts to
lease the Premises or the appointment of a receiver upon
application of Landlord to protect Landlord's interest under
this Lease shall not constitute an election to terminate
Tenant's right to possession.
C. DAMAGES AFTER DEFAULT. Should Landlord terminate this
Lease pursuant to the provisions of Paragraph 26.B.(1)
hereof, Landlord shall have the rights and remedies of a
Landlord provided by Section 1951.2 of the Civil Code of the
State of California, or successor code sections. Upon such
termination, in addition to any other rights and remedies to
which Landlord may be entitled under applicable law,
Landlord shall be entitled to recover from Tenant: (1) the
worth at the time of award of the unpaid Rent and other
amounts which had been earned at the time of termination,
(2) 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 the Tenant proves could be reasonably
avoided; (3) 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 the
Tenant proves could be reasonably avoided; and (4) any other
amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease or which, in the
ordinary course of things, would be likely to result
therefrom. The "worth at the time of award" of the amounts
referred to in (1) and (2), above shall be computed at the
lesser of the "prime rate," as announced from time to time
by Wells Fargo, N.A. (San Francisco) plus five (5)
percentage points, or the maximum interest rate allowed by
law ("Applicable Interest Rate"). The "worth at the time of
award" of the amount referred to in (3) above shall be
computed by discounting such amount at the Federal Discount
Rate of the Federal Reserve Bank of San Francisco at the
time of the award plus one (1%) percent. If this Lease
provides for any periods during the Term during which Tenant
is not required to pay Base Rent or if Tenant otherwise
receives a Rent concession, then upon the occurrence of an
Event of Default, Tenant shall owe to Landlord the full
amount of such Base Rent or value of such Rent concession,
plus interest at the applicable Interest Rate, calculated
from the date that such Base Rent or Rent concession would
have been payable.
D. LATE CHARGE. If any installment of Rent is not paid
within five (5) business days from the date when due, such
amount shall bear interest at the Applicable Interest Rate
from the date on which said payment shall be due until the
date on which Landlord shall receive said payment. In
addition, Tenant shall pay Landlord a late charge equal to
five (5%) percent of the delinquency, to compensate Landlord
for the loss of the use of the amount not paid and the
administrative costs caused by the delinquency, the parties
agreeing that Landlord's damage by virtue of such
delinquencies would be difficult to compute and the amount
stated herein represents a reasonable estimate hereof. This
provision shall not relieve Tenant of Tenant's obligation to
pay Rent at the time and in the manner herein specified.
E. REMEDIES CUMULATIVE. All rights, privileges and elections
or remedies of the parties are
<PAGE> 22
cumulative and not alternative, to the extent permitted by
law and except as otherwise provided herein.
LIENS 27. Tenant shall keep the Premises free from liens arising out
of or related to work performed, materials or supplies
furnished or obligations incurred by Tenant or in connection
with work made, suffered or done by or on behalf of Tenant
in or on the Premises or Project. In the event that Tenant
shall not, within ten (10) business days following the
imposition of any such lien, cause the same to be released
of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to
cause the same to be released by such means as Landlord
shall deem proper, including payment of the claim giving
rise to such lien. All sums paid by Landlord on behalf of
Tenant and all expenses incurred by Landlord in connection
therefor shall be payable to landlord by Tenant on demand
with interest at the Applicable Interest Rate. Landlord
shall have the right at all times to post and keep posted on
the Premises any notices permitted or required by law, or
which Landlord shall deem proper, for the protection of
Landlord, the Premises, the Project and any other party
having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not less
than five (5) business days prior written notice of the
commencement of any work in the Premises or Project which
could lawfully give rise to a claim for mechanics' or
materialmen's liens.
TRANSFERS BY 28. In the event of a sale or conveyance by Landlord of the
LANDLORD Building or the Project or a foreclosure by any creditor of
Landlord, the same shall operate to release Landlord from
any liability upon any of the covenants or conditions,
express or implied, herein contained in favor of Tenant, to
the extent required to be performed after the passing of
title to Landlord's successor-in-interest. In such event,
Tenant agrees to look solely to the responsibility of the
successor-in-interest of Landlord under this Lease with
respect to the performance of the covenants and duties of
"Landlord" to be performed after the passing of title to
Landlord's successor-in-interest. This Lease shall not be
affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee. Landlord's successor(s)-in-interest
shall not have liability to Tenant with respect to the
failure to perform all of the obligations of "Landlord", to
the extent required to be performed prior to the date such
successor(s)-in-interest became the owner of the Building.
RIGHT OF 29. All covenants and agreements to be performed by Tenant under
LANDLORD TO any of the terms of this Lease shall be performed by Tenant
PERFORM TENANT'S at Tenant's sole cost and expense and without any abatement
COVENANTS of Rent. If Tenant shall fail to pay any sum of money, other
than Base Rent and Basic Operating cost, required to be paid
by Tenant hereunder or shall fail to perform any other act
on Tenant's part to be performed hereunder, and such failure
shall continue for five 95) days after notice thereof by
Landlord, Landlord may, but shall not be obligated to do so,
and without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such act on
Tenant's part to be made or performed. All sums, so paid by
Landlord and all necessary incidental costs together with
interest thereon at the Applicable Interest Rate from the
date of such payment by Landlord shall be payable to
Landlord on demand, and Tenant covenants to pay such sums,
and Landlord shall have, in addition to any other right or
remedy of Landlord, the same right and remedies in the event
of the non-payment thereof by Tenant as in the case of
Default by Tenant in the payment of Base Rent and Basic
Operating Cost.
WAIVER 30. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such
waiver shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition
contained herein. The acceptance of Rent by Landlord shall
not constitute a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to
decrease the right of Landlord to insist thereafter upon
strict
<PAGE> 23
performance by Tenant. Waiver by Landlord of any term,
covenant or condition contained in this Lease may only be
made by a written document signed by Landlord.
NOTICES 31. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other
requirements with reference to sending, mailing or delivery
of any notice or the making of any payment by Landlord or
Tenant to the other shall be deemed to be complied with when
and if the following steps are taken:
A. RENT. All Rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at
the address set forth in the Basic Lease Information, or at
such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's
obligation to pay Rent and any other amounts to Landlord
under the terms of this Lease shall not be deemed satisfied
until such Rent and other amounts have been actually
received by Landlord.
B. OTHER. All notices, demands, consents and approvals which
may or are required to be given by either party to the other
hereunder shall be in writing and either personally
delivered, sent by commercial overnight courier, sent by
facsimile, or mailed, certified or registered, postage
prepaid, and addressed to the party to be notified at the
address for such party as specified in the Basic Lease
Information and, in the case of Tenant, at the Premises or
to such other place as the party to be notified may from
time to time designate by at least fifteen (15) days notice
to the notifying party. Notices shall be deemed served upon
receipt or refusal to accept delivery. Tenant appoints as
its agent to receive the service of all default notices and
notice of commencement of unlawful detainer proceedings the
person in charge of or apparently in charge of occupying the
Premises at the time.
ATTORNEYS' 32. In the event that Landlord places the enforcement of this
FEES Lease, or any part thereof, or the collection of any Rent
due, or to become due hereunder, or recovery of possession
of the Premises in the hands of an attorney, Tenant shall
pay to Landlord, upon demand, Landlord's reasonable
attorneys' fees and court costs. In any action which
Landlord or Tenant brings to enforce its respective rights
hereunder, the unsuccessful party shall pay all costs
incurred by the prevailing party including reasonable
attorneys' fees, to be fixed by the court, and said costs
and attorneys' fees shall be a part of the judgment in said
action.
SUCCESSORS 33. This lease shall be binding upon and inure to the benefit of
AND ASSIGNS Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors, and
to the extent assignment is approved by Landlord hereunder,
Tenant's assigns.
FORCE MAJEURE 34. In the event that Landlord shall be delayed, hindered in or
prevented from the performance of any act or obligation
required under this Lease by reason of acts of God, strikes,
lockouts, labor troubles or disputes, inability to procure
or shortage of materials or labor, failure of power or
utilities, delay in transportation, fire, vandalism,
accident, flood, severe weather, other casualty,
governmental requirements (including mandated changes in the
plans and specifications of Landlord's Work resulting from
changes in pertinent governmental requirements or
interpretations thereof), riot, insurrection, civil
commotion, sabotage, explosion, war, natural or local
emergency, acts or omissions of others, including Tenant, or
other reasons of a similar or dissimilar nature not solely
the fault of, or under the exclusive control of, Landlord
(individually and collectively, "Force Majeure"), then
performance of such act or obligation shall be excused for
the period of the delay and the period for the performance
of any such act or obligations shall be extended for the
period equivalent to the period of such delay.
BROKERAGE 35. Landlord shall pay a brokerage commission to Broker in
COMMISSION accordance with a separate agreement between Landlord and
Broker. Tenant warrants to Landlord that Tenant's sole
contact with Landlord or with the Premises in connection
with this transaction has been directly with Landlord and
Broker, and that no other broker or finder can properly
claim a right
<PAGE> 24
to a commission or a finder's fee based upon contacts
between the claimant and Tenant with respect to Landlord or
the Premises. Tenant shall indemnify, defend by counsel
acceptable to Landlord, protect and hold Landlord harmless
from and against any loss, cost or expense, including, but
not limited to, attorneys' fees and costs, resulting from
any claim for a fee or commission by any broker or finder in
connection with the Premises and this Lease other than
Broker.
MISCELLANEOUS 36. A. GENERAL. The terms "Tenant and/or Landlord" or any
pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their respective
successors, executors, administrators and permitted assigns,
according to the context thereof.
B. TIME. Time is of the essence regarding this Lease and all
of its provisions.
C. CHOICE OF LAW. This Lease shall in all respects be
governed by the laws of the State of California.
D. ENTIRE AGREEMENT. This Lease, together with its exhibits,
contains all the agreements of the parties hereto and
supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease
and its exhibits.
E. MODIFICATION. This Lease may not be modified except by a
written instrument signed by the parties hereto.
F. SEVERABILITY. If, for any reason whatsoever, any of the
provisions hereof shall be unenforceable or ineffective, all
of the other provision shall be and remain in full force and
effect.
G. RECORDATION. Tenant shall not record this Lease or a
short form memorandum hereof.
H. EXAMINATION OF LEASE. Submission of this Lease to Tenant
does not constitute an option or offer to lease and this
Lease is not effective otherwise until execution and
delivery by both Landlord and Tenant.
I. ACCORD AND SATISFACTION. No payment by Tenant of a lesser
amount than the Rent nor any endorsement on any check or
letter accompanying any check or payment of Rent shall be
deemed an accord and satisfaction of full payment of Rent,
and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of such Rent or to
pursue other remedies.
J. EASEMENTS. Landlord may grant easements on the Project and
dedicate for public use portions of the Project without
Tenant's consent; provided that no such grant or dedication
shall substantially interfere with Tenant's use of the
Premises. Upon Landlord's demand, Tenant shall execute,
acknowledge and deliver to Landlord documents, instruments,
maps and plats necessary to effectuate Tenant's covenants
hereunder.
K. DRAFTING AND DETERMINATION PRESUMPTION. The parties
acknowledge that this Lease has been agreed to by both the
parties, that both Landlord and Tenant have consulted with
attorneys with respect to the terms of this Lease and that
no presumption shall be created against Landlord because
Landlord drafted this Lease. Except as otherwise
specifically set forth in this Lease, with respect to any
consent, determination or estimation of Landlord required in
this Lease or requested of Landlord, Landlord's consent,
determination or estimation shall be made in Landlord's good
faith opinion, whether objectively reasonable or
unreasonable.
<PAGE> 25
L. EXHIBITS. Exhibits A through F attached hereto are hereby
incorporated herein by this reference.
M. NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or
shutting off of light, air or view by any structure which
may be erected on lands adjacent to or in the vicinity of
the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. NO THIRD PARTY BENEFIT. This Lease is a contract between
Landlord and Tenant and nothing herein is intended to create
any third party benefit.
O. WAIVER OF JURY TRIAL. IF ANY ACTION OR PROCEEDING BETWEEN
LANDLORD AND TENANT TO ENFORCE THE PROVISIONS OF THIS LEASE
(INCLUDING AN ACTION OR PROCEEDING BETWEEN LANDLORD AND THE
TRUSTEE OR DEBTOR IN POSSESSION WHILE TENANT IS A DEBTOR IN
A PROCEEDING UNDER ANY BANKRUPTCY LAW) PROCEEDS TO TRIAL,
LANDLORD AND TENANT HEREBY WAIVE THERI RESPECTIVE RIGHTS TO
A JURY IN SUCH TRIAL. Landlord and Tenant agree that this
Paragraph constitutes a written consent to waiver of trial
by jury within the meaning of California Code of Civil
Procedure Section 631(a)(2), and Tenant does hereby
authorize and empower Landlord to file this Paragraph and or
this Lease, as required, with the clerk or judge of any
court of competent jurisdiction as a written consent to
waiver of jury trial.
P. COVENANT OF QUIET ENJOYMENT. So long as Tenant is not in
Default under this Lease, Tenant has the right to occupy and
enjoy the Premises during the Term of this Lease in peace
and without disturbance from Landlord or any other party
subject to Landlord's supervision or control.
ADDITIONAL 37. A. ERISA REPRESENTATIONS. Tenant represents to Landlord that
PROVISIONS with the exception of this Lease, neither the Tenant nor any
affiliate of the Tenant is a tenant under a lease or any
other tenancy arrangement (1) with (a) Riggs & Company, a
division of Riggs Bank N.A.., a trustee of the
Multi-Employer Trust; (b) Riggs Bank N.A., a trustee of the
Multi-Employer Property Trust; (c) the Multi-Employer
Property Trust; (d) the National Bank of Washington
Multi-Employer Property Trust, the previous name of the
Multi-Employer Property Trust; (e) The Riggs National Bank
of Washington, D.C., as trustee of the Multi-Employer
Property Trust; (f) the Harman International Business Campus
Joint Venture; (g) the Corporate Drive Corporation as
trustee of the Corporate Drive Nominee Realty Trust; (h)
Goldbelt Place Joint Venture; (i) Arboretum Lakes-1, L.L.C.,
a Delaware limited liability company; (j) Village Green of
Rochester Hills Associates L.L.C., a Michigan limited
liability company; (k) Pine Street Development, L.L.C., a
Washington limited liability company; (l) MEPT Realty LLC, a
New York limited liability company; (m) MEPT, L.L.C., a
Delaware limited liability company; (n) Cabrillo Properties
LLC, a Delaware limited liability company; (o) Valencia
L.L.C., a Delaware limited liability company; or (p) Mission
Trails L.L.C., a Delaware limited liability company; or (2)
involving any property in which any one or more of the
entities named in clauses (1)(a) through (p) are known by
the Tenant to have an ownership interest.
B. ANTI-DISCRIMINATION. There shall be no discrimination
against or segregation of any person or group of persons, on
account of race, color, creed, religious, sex, marital
status, national origin, or ancestry, in the leasing,
subleasing, transferring, use, occupancy, tenure or
enjoyment of the Premises, nor shall the Landlord or Tenant
or any person claiming under or through the Landlord or
Tenant, establish or permit any such practice or practices
of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants,
sublessees, subtenants, or vendees in the Premises.
C. RIGHT OF FIRST OFFER. Provided that at the time of
Tenant's exercise there is no Default and no act or omission
of Tenant that would become a Default with the passage of
time or the giving of notice, Tenant shall have a one-time
right of first offer ("Right of First Offer") to lease
either or both of the other tenant spaces in the Building
comprised of approximately
<PAGE> 26
19,752 and 9,991 square feet, respectively. Right of First
Offer shall be on the terms and conditions set forth in this
section. Landlord shall provide Tenant with written notice
("First-Offer Notice") when Landlord determines at
Landlord's sole discretion that either of the spaces will
become available for lease to third parties ("Third
Parties"). Third Parties is defined as parties other than
the existing tenant. Provided that Tenant is not in Default
as of the time of exercise of the Right of First Offer, and
provided that as of such date there is no act or omission of
Tenant that would become a Default with the passage of time
or the giving of notice, if Tenant wishes to exercise its
Right of First Offer, Tenant shall within ten (10) business
days after delivery of the First-Offer Notice to Tenant,
deliver written notice to Landlord of its intention to
exercise its Right of First Offer on all of the space
offered in the First-Offer Notice. Tenant may not lease less
than all of the space so offered. If Tenant does not
exercise its Right of First Offer and elect to lease the
space so offered within the prescribed response period, the
Right of First Offer shall terminate as to such space and
the Landlord shall be free to lease the space to anyone on
any terms at any time during the Lease Term, without any
obligation to provide Tenant with a further right to lease
that space.
If Tenant timely and validly exercises the Right of First
Offer, Tenant and Landlord shall negotiate in good faith the
terms of the lease on the offered space. If Landlord and
Tenant cannot agree as to the terms of the lease within
twenty (20) days of Tenant's written notice exercising its
right of First Offer, Landlord shall be free to lease the
space or any portion thereof to anyone on any terms it deems
acceptable.
D. OPTION TO EXTEND TERM. Provided that Tenant is not in
Default as of the time of exercise of this option and the
commencement date of the First Option Period, and provided
that as of such date there is no act or omission of Tenant
that would become a Default with the passage of time or the
giving of notice, Tenant shall have an option ("First
Extension Option") to extend the Term of the Lease for the
Premises in "as is" condition at the expiration of the
original Lease Term for a period ending on September 30,
2005 ("First Option Period"). All of the terms and
conditions of this Lease except for Base Rent and the
provisions of this Paragraph shall be applicable to the
First Option Period. Provided that Tenant is not in Default
as of the time of exercise of this option and the
commencement date of the Section Option Period, that as of
said date there is no act or omission of Tenant that would
become a Default with the passage of time or the giving of
notice, and that Tenant has duly exercised the First
Extension Option, Tenant shall have a second option ("Second
Extension Option") to extend the Term of the Lease for the
Premises in "as is" condition at the expiration of the First
Option Period for a period ending on the last day of the
120th full calendar month following the original Term
Commencement Date ("Second Option Period"). All of the terms
and conditions of this Lease except for Base Rent and the
provisions of this Paragraph shall be applicable to the
Second Option Period.
The Base Rent for the Premises under each option shall be
the then current market rent for comparable facilities in
the proximate South San Francisco market area. The
definition of comparable facilities shall incorporate the
parking amenities of the Premises, and the Building's
location, age, quality, amenities, identity, exterior
appearance, interior improvements, and type of construction,
excluding laboratory and manufacturing improvements paid for
by Tenant.
Tenant shall give Landlord written notice of its intent to
exercise its option at least twelve (12) but nor more than
eighteen (18) months prior to the expiration of the then
current Term for the Premises. Within fifteen (15) days
after Tenant exercises its option to extend, Landlord shall
provide Tenant with the Base Rent, as determined by
Landlord, for the Option Period. The parties are obligated
to negotiate in good faith to agree on the Base Rent. If the
parties have not mutually agreed on the Base Rent within
thirty (30) days from notification by Landlord to Tenant of
Landlord's determination of Base Rent, each party hereto
shall appoint one representative who shall be a licensed
real estate broker experienced in the leasing of comparable
facilities in the County of San Mateo to act as an
arbitrator. The two (2)
<PAGE> 27
arbitrators so appointed shall determine the Base Rent for
the relevant Option Period. The determination of said Base
Rent shall be made by said two (2) arbitrators within sixty
(60) days from notification by Landlord to Tenant of
Landlord's determination of Base Rent and they shall submit
said determination in writing and signed by said arbitrators
in duplicate. One of the written notifications shall be
delivered to Landlord and the other to Tenant.
In the event the two (2) arbitrators of the parties hereto
cannot agree on the Base Rent for the Premises herein, said
two (2) arbitrators shall appoint a third arbitrator who
shall be a licensed real estate broker experienced in the
leasing of comparable facilities in the County of San Mateo,
to act as an arbitrator. The Base Rent for the relevant
Option Period shall be independently determined by the third
of said arbitrators, which said determination shall be made
within ninety (90) days from notification by Landlord to
Tenant of Landlord's determination of Base Rent. The role of
the third arbitrator shall then be to immediately select
from the proposed resolution of arbitrators #1 and #2 the
one that most closely approximates the third arbitrator's
determination of Base Rent. The third arbitrator shall have
no right to adopt a compromise or middle ground or any
modification of either of the two final proposed
resolutions. The resolution that the third arbitrator
chooses as most closely approximating his determination of
the Base Rent shall constitute the decision of all
arbitrators and shall be final and binding upon the parties.
The parties hereto shall pay the charges of the arbitrator
appointed by it and any expenses incurred by such
arbitrator. The charges and expenses of the third
arbitrator, as provided herein, shall be paid by the parties
hereto in equal shares.
In the event either arbitrator #1 or arbitrator #2 fails to
present a Base Rent figure within the thirty (30) day
period, the Base Rent presented by the other arbitrator
shall be considered final and binding on both parties.
Notwithstanding anything to the contrary herein contained,
Tenant's right to extend the term by exercise of the
foregoing Option shall be conditioned upon the following:
(i) at the time of the exercise of the Option, and at the
time of the commencement of the extended term, Tenant shall
be in possession of and occupying the Premises for the
conduct of its business therein and the same shall not be
occupied by any assignee, subtenant or licensee, and (ii)
the notice of exercise shall constitute a representation and
promise by Tenant to Landlord effective as of the date of
the exercise and as of the date of commencement of the
extended term, that Tenant shall not assign the lease in
whole or in part, or sublet all of any portion of the
Premises, the election to extend the term being for purposes
of utilizing the Premises for Tenant's purposes in the
conduct of Tenant's business therein.
E. NOTICE TO LENDER OF DEFAULT. In the event that a notice
of default ("Notice of Default") is served on Landlord,
Tenant shall provide a copy of such Notice of Default to all
lenders of whom Tenant has been notified for whose benefit a
Deed of Trust then encumbers the Project (a "Beneficiary").
F. LENDER'S TIME TO CURE. In the event that Tenant is served
with a Notice of Default and Landlord fails to cure such
default within the time provided in this Lease, Beneficiary
shall have an additional thirty (30) days within which to
cure the default, commencing with its receipt of the Notice
of Default, or if such default cannot be cured within that
time, then such additional time as may be necessary to
effect such cure if within such thirty (30) days the
Beneficiary has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not
limited to, commencement of foreclosure proceedings, if
necessary to effect such cure).
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
"Landlord"
<PAGE> 28
OYSTER POINT TECH CENTER LLC, a Delaware Limited
Liability Company
By: RIGGS & COMPANY, a division of Riggs Bank
N.A., its sole member
Riggs Bank N.A. as Trustee for the
Multi-Employer Property Trust
By: /s/ MARY ANNE MARTIN
---------------------------------------------
Its: Managing Director
---------------------------------------------
"Tenant"
VAXGEN, INC., a Delaware corporation
By: /s/ ROBERT NOWINSKI
---------------------------------------------
Its: Chairman
---------------------------------------------
By:
----------------------------------------------
Its:
----------------------------------------------
<PAGE> 29
EXHIBIT A-1
LEGAL DESCRIPTION OF PROJECT
PARCEL I:
BEGINNING at granite monument set 10 chains South of the corner common to
Sections 14-15-22 and 13 in Township 3 South of Range 5 West, Mount Diablo Base
and Meridian; running thence along the line dividing said Sections 22 and 23,
North 460.02 feet to the Southwesterly corner of tide Lot No. 8; thence along
the Southerly line of said tide Lot 8, as same is described in Deed from Morgan
Oyster Company, to Bay Counties Land Company, dated March 25, 1909 and recorded
in Book 163 of Deeds at page 44; Records of San Mateo County, South 81 degrees
45' East 339.24 feet; North 64 degrees 45' East 214.80 feet to a point; thence
leaving said Southerly line South 508.85 feet; thence South 88 degrees 27' 14"
West 229.94 feet; thence North 89 degrees 59' West 300.16 feet; thence North
12.0 feet to the point of beginning.
PARCEL II:
A non-exclusive easement for storm drainage purposes in on and over the
following described property:
That portion of the Easterly 12.50 feet of the Westerly 62.50 feet of Parcel "B"
as described in the Lot Line Adjustment recorded September 1, 1992 under
Document Number 92141612 in the Records of San Mateo County, also being the
Westerly 12.50 feet of Parcel 1 as shown on the Map of Oyster Point Business
Park (recorded April 12, 1982 in Book 52 of Parcel Maps at page 58 in the
Records of San Mateo County that lies Southerly of the line shown as "N 81
degrees 45' 55" W 339.24" on said Parcel Map (52 PM 58).
The easement is appurtenant to Parcel I above and was created by Easement for
Storm Drainage dated July 31, 1997, by and between Shelton Properties Inc., a
Hawaii corporation and TC Northern California, Inc., a Delaware corporation,
recorded August 1, 1997, Document No. 97093545, San Mateo County Records.
PARCEL III:
A non-exclusive easement for grading and lateral support for the intended
purpose and Grantee may import, deposit grade, compact, and maintain soil and
fill on the easement area, in on and over the following described property.
A portion of Parcel "B" as described in the Lot Line Adjustment recorded under
Series Number 92141612 in the Official Records of said County, described as
follows:
Beginning at the Southwesterly corner of Parcel "B" thence North 81 degrees 45'
55" West along said line 44.44 feet to the actual point of beginning and through
the following numbered courses:
1) South 81 degrees 45' 55" East along the Southerly line of Parcel "B" 345.32
feet
2) North 64 degrees 44' 05" East along the Southerly line of Parcel "B" 220.36
feet
3) North 30 degrees 04' 12" West 10.04 feet
4) South 64 degrees 44' 05" West 216.51 feet
5) North 81 degrees 45' 55" West along said line 330.51 feet
6) South 57 degrees 57' 36" West 15.47 feet to the point of beginning.
PARCEL IV:
A non-exclusive easement for grading and lateral support for the intended
purpose and Grantee may, import, deposit grade, compact and maintain soil and
file on the easement area, in, on and over the following described property:
A portion of the lands described in the Lot Line Adjustment recorded under
Serial Number 92141612 in the Official Records of said County, described as
follows:
<PAGE> 30
Beginning at the Southeasterly corner of Parcel A of said Lot Line Adjustment.
This also being the Southeasterly corner of Parcel 4 of the Map recorded in
Volume 23 of Parcel Maps at page 27 in the records of said County; thence North
00 degrees 00' 55" West along the Westerly line of Parcel A 48.00 feet to the
actual point of beginning and through the following numbered courses:
1) North 10 degrees 07' 28" West 131.03 feet
2) North 05 degrees 00' 57" West 80.31 feet
3) North 02 degrees 52' 40" West 40.05 feet
4) North 04 degrees 50' 57" East 141.51 feet to a curve to the right with a
radius of 30.00 feet
5) Along said curve through a central of 53 degrees 06' 39" an arc distance of
27.81 feet to the Southerly line of Parcel B.
6) South 81 degrees 45' 55" East along said line 6.08 feet to the Easterly line
of Parcel A 7) South 00 degrees 00' 55" East along said line 412.02 feet to
the point of beginning.
A.P. No 015-190-020 JPN 015 019 190 02 A
R/W 015 019 190 03
R/W 015 001 010 20.02
<PAGE> 31
EXHIBIT A-2
Site Plan
<PAGE> 32
EXHIBIT A-3
Stacking Plan
(First Floor)
<PAGE> 33
EXHIBIT B-1
INITIAL IMPROVEMENTS OF PREMISES
1. LANDLORD'S WORK
1.1 Landlord's work ("Landlord's Work") shall be defined as the
construction of the Building shell more particularly described in Exhibit C and
Building Core improvements as defined below, including soft costs associated
with Landlord's Work. Such soft costs shall include, but are not limited to
architecture, engineering, consultants, shell building permits and impact fees,
utility fees, loan fees, construction interest, transaction fees, and
development fees. The scope of the shell construction shall include: The
Building shell, roof, all exterior windows and doors, fire sprinklers at the
roof line, utilities and services to the Building's exterior, the parking lot,
exterior common areas, and landscaping. The scope of the Building Core
Improvements shall include: lobbies, restrooms, locker areas with showers,
janitorial room, elevator, elevator equipment room, roof screen and stair
assemblies.
1.2 Landlord's Work shall be completed through Landlord's general
contractor, South Bay Construction, in compliance with all applicable codes and
regulations.
1.3 In addition to Tenant Improvement Allowance described in
Paragraph 2.1 below, Landlord, at Landlord's sole cost and expense, shall pay
for all costs involved in Landlord's Work described in paragraph 1.1.
1.4 Changes requested by Tenant to the Building shell and/or Core
Improvements shall be at Tenant's sole cost and expense.
2. TENANT'S WORK
2.1 All interior improvements, including installation of Trade
Fixtures (except those items set forth in Exhibit B-3) and furnishings
(collectively referred to herein at "Tenant's Work"), shall be constructed by
Tenant at its sole cost and expense. All of the plans and specifications for
Tenant's Work shall be approved by Landlord in advance of commencing any
construction. Such approval by Landlord shall not be unreasonably withheld.
Tenant shall invest a minimum of fifty dollars ($50.00) per rentable square
foot, in excess of the Tenant Improvement Allowance supplied by Landlord,
excluding soft costs ("Soft Costs"), as defined below. Tenant shall, on or
before the Term Commencement Date, provide Landlord with an accounting,
certified by an officer of Tenant, itemizing all amounts expended by Tenant in
excess of the Tenant Improvement Allowance to improve the Premises. If the
Amount expended by Tenant is less than fifty dollars ($50.00) per rentable
square foot of the Building, Tenant shall, together with the accounting, deliver
to Landlord an unconditional irrevocable letter of credit in an amount equal to
the difference between the amount expended by Tenant and fifty dollars ($50.00)
per rentable square foot of the Building. At any time prior to the thirty-sixth
month of the Lease Term (but in no event more frequently than monthly) Tenant
may provide Landlord with an amended accounting, as above, showing additional
amounts expended by Tenant to improve the Premises since the last date shown on
the immediately preceding accounting. If the total amount expended by Tenant is
less than fifty dollars ($50.00) per rentable square foot of the Building, the
amount of the letter of credit may be reduced to a sum equal to the difference
between the amount expended by Tenant and fifty dollars ($50.00) per rentable
square foot of the Building. On or before the last day of the thirty-sixth month
of the Lease Term, Tenant shall provide an amended accounting as above showing
in addition any amounts expended by Tenant to improve the Premises since the
last date shown on Tenant's most recent accounting. If the total amount expended
by Tenant is less than fifty dollars ($50.00) per rentable square foot, Landlord
shall be immediately entitled to draw down from the letter of credit an amount
equal to the difference between the amount expended by Tenant and fifty dollars
($50.00) per rentable square foot. Upon such draw the requirement that this
letter of credit be maintained shall terminate. The letter of credit shall (a)
designate Landlord or its assignees as beneficiary, (b) be issued by a financial
institution approved by Landlord, (c) be in form satisfactory to Landlord, and
(d) be for a term of thirty-eight months. Landlord shall not be required to
deliver any certifications or documentation of any kind to the issuer in order
to make a draw, other than Landlord's written demand. The issuer shall not be
required to conduct any inquiry or investigation before paying Landlord the
requested amount of the draw. Landlord may assign, transfer or pledge the letter
of credit to any lender or purchaser in connection with any financing or sale of
the Premises. Landlord shall provide to Tenant a Tenant Improvement Allowance of
up to a maximum of twenty-four dollars ($24.00) per rentable
<PAGE> 34
square foot on the Premises ("Tenant Improvement Allowance") including Soft
Costs associated with Tenant's Work. Soft Costs shall include, but are not
limited to architecture, engineering, consultants, shell building permits and
impact fees, utility fees, loan fees, transaction fees, and Landlord's
construction management fee. Tenant shall promptly pay when due all costs for
Tenant's Work. Landlord shall reimburse Tenant a portion of such costs not to
exceed in the aggregate the amount of the Tenant Improvement Allowance. Tenant
shall, not more frequently than monthly after commencement of the construction
of Tenant's Work, submit to landlord requests for reimbursement of amounts
expended by Tenant for Tenant's Work. Each request shall be certified by an
officer of Tenant and shall include, without limitation, (i) copies of all
invoices paid by Tenant for which reimbursement is sought (ii) proof of payment
of each invoice (iii) a fully executed unconditional lien release from each
payee, and (iv) such additional information as Landlord may reasonably request.
After Landlord has received and approved each request as provided herein,
Landlord shall process the approved request for payment by its lender and upon
disbursement by Landlord's Lender reimburse Tenant promptly for one-half of all
amounts shown in the request as expenditures for costs to which the Tenant
Improvement Allowance applies, as hereinbelow provided up to the maximum amount
set forth above.
2.2 Tenant's Improvement Allowance (twenty-four dollars ($24.00)
per rentable square foot on the Premises) shall be applied to, but not limited
to the following costs:
(i) Costs paid to general contractors and subcontractors for
labor, material, permits, bonds and the like relating to
the Premises.
(ii) Construction management fee to Landlord in the amount of
two percent (2%) of the Tenant Improvement Allowance;
(iii) Cost of labor, material and overhead for change orders
approved by landlord in accordance with this Exhibit B-1
and minor field changes;
(iv) Architectural, engineering and other design fees;
(v) Plans, drawings and printing costs;
(vi) Insurance premiums;
(vii) Cost of any reasonably required reports, surveys or
studies;
(viii) The cost of utility connections, installation of utility
facilities and meters and user installation or hook-up
fees;
(ix) All governmental fees and development impact fees,
including fees for permits, charges and costs of obtaining
governmental approvals;
(x) Recording costs and filing fees; and
2.3 Tenant shall contract with an architect approved by Landlord
for Tenant's Work (such approval shall not be unreasonably withheld by Landlord)
to furnish architectural plans and specifications ("Tenant's Plans and
Specifications") required for the construction of Tenant's Work. Tenant's Plans
and Specifications shall also be based on the Interior Improvement
Specifications attached hereto as Exhibit B-2.
2.4 Tenant shall contract with a general contractor approved by
Landlord for completion of Tenant's Work. Tenant's suppliers, contractors,
workmen and mechanics shall be subject to approval by Landlord, which shall not
be unreasonably withheld or delayed, prior to the commencement of work and shall
be subject to Landlord's administrative control while performing their work.
Landlord shall coordinate with Tenant's representative the scheduling of
Tenant's Work. Prior to commencement of Landlord's Work, Tenant shall notify
Landlord with respect to any special scheduling requirements of Tenant in
connection with the installation of Tenant's Work. If at any time any supplier,
contractor, workman or mechanic performing Tenant's Work hinders or delays any
other work in the Building or performs any work which may or does impair the
quality, integrity or performance of any portion of the Building, Tenant shall
take all
<PAGE> 35
steps necessary to bring an end to the delay or hindrance, and the contractor in
question shall not recommence Tenant's Work until reasonable steps have been
taken to avoid further delay or hindrance. In performing Tenant's Work, Tenant
shall be required to employ contractors (and subcontractors) which (a) are
parties to, and bound by, a collective bargaining agreement with a labor
organization affiliated with the Building and Construction Trades Council of the
AFL-CIO and (b) employ only members of such labor organizations to perform work
within their respective jurisdictions), with the exception of labor hired for
network cabling for personal and mainframe computer systems and related items.
Tenant shall reimburse Landlord for any repairs or corrections of Landlord's
Work or of Tenant's Work or of any portion of the Building caused by or
resulting from the work of any supplier, contractor, workman or mechanic with
whom Tenant contracts. Landlord shall provide access to Tenant's suppliers,
contractors, workmen and mechanics so as to achieve timely completion and
occupancy of the Premises.
2.5 Unless the Lease has been terminated pursuant to Paragraph 26
of the Lease, upon the termination or expiration of the Lease, as such term may
be extended, Tenant shall have the right to remove items listed in Exhibit B-3
which have been installed and paid for by Tenant. Tenant shall repair any damage
to the Premises resulting from such removal, patch and repair the walls, floor
and ceiling and return the Premises in clean condition.
3. COMPLETION DATES
3.1 Tenant shall notify Landlord in advance of the approximate
date on which Tenant's Work will be substantially completed and will notify
Landlord when Tenant's Work is in fact substantially competed ("Substantial
Completion"). If any dispute shall arise as to whether the Premises are
substantially completed and ready for Tenant's occupancy, a certificate
furnished by an independent architect mutually agreed to by Landlord and Tenant
certifying the date of Substantial Completion shall be conclusive. The following
shall constitute tenant delays ("Tenant Delays") under the Lease:
(a) Tenant's failure to furnish complete and timely
instruction or approvals;
(b) Tenant's failure to submit conceptual plans for
Tenant's Work to Landlord within thirty (30) days from execution of Lease;
(c) Tenant's failure to submit preliminary Plans and
Specifications for Tenant's Work for approval by Landlord within thirty (30)
days from execution of Lease;
(d) Tenant's failure to enter into contract with
Landlord's general contractor for construction of Tenant's Work within
forty-five (45) days of execution of Lease;
(e) Tenant's failure to substantially complete
construction of Tenant's Work as evidenced by a Temporary Certificate of
Occupancy by March 31, 1999; and
(f) Tenant's failure to deliver a Certificate of
Occupancy to Landlord within thirty (30) days after Substantial Completion of
Tenant's Work.
Tenant Delays resulting in postponement of the Term Commencement Date shall
cause Tenant to be charged rent under the terms of the Lease for each day of
such delay. All time periods indicated above shall be computed on a calendar
basis with no allowance for holidays, weekends or other customs.
3.3 Except as otherwise provided in the Lease, failure of
Landlord to deliver possession of the Premises within the time and in the
condition provided for in the Lease will not give rise to any claim for damages
by Tenant against Landlord or Landlord's general contractor. If Landlord fails
to deliver the Premises in the condition as provided for under this Lease,
Landlord shall promptly correct any such deficiencies, excluding any immaterial
deficiencies which do not prevent Tenant from using the Premises for their
intended use. If Landlord fails to correct such deficiencies within a reasonable
time, Tenant may pursue its legal remedies against Landlord.
<PAGE> 36
EXHIBIT B-2
INTERIOR IMPROVEMENT SPECIFICATIONS
NOTE: Not all specified items listed herein refer to this project.
1. WALLS
A. All walls receive paint to be properly prepared. Texture to be
medium spray finish with 1 coat of latex paint to cover. Paint
to be Pittsburg Doric white.
B. Demising walls, between tenant spaces to roof height shall be
metal studs with 5/8" gypsum board both sides. Fire tape finish.
U.O.N. See T.I. drawings for size, gauge and spacing.
C. Restroom studs with 5/8" gypsum board to 6" above adjacent
ceiling U.O.N. with friction fit sound batt insulation. Wainscot
at wet walls to be +4' - 0' high with ceramic tile. Texture to
be smooth finish with semi-gloss latex paint U.O.N.
D. Interior Office Walls. Metal studs with 5/8" gypsum board on both
sides to underside of ceiling, U.O.N. Perimeter office walls
between office and warehouse areas to 6" above ceiling, U.O.N.
per Title 24 energy calculation requirements.
E. Other. As may be directed by code or tenant purposes for fire
protection, sound or energy insulation, demountability and
aesthetics.
F. See tenant improvements drawings for specifications on size,
gauge and spacing of studs.
2. CEILING
A. General, Finished ceiling height to be 10'.
B. Restrooms. Finished ceiling height to be 9' with metal joist with
5/8" gypsum board. Texture to be smooth finish with semi-gloss
latex paint with friction fit sound batt insulation. See tenant
improvement drawings for specifications on size, gauge and
spacing of joists.
C. Office. 2' x 4' T-bar suspended ceiling system with 2' x 4'
Second Look II acoustical ceiling tile by Armstrong or approved
equal.
D. Other. As may be directed by tenant or as may otherwise be
required by tenant or codes. See tenant improvement drawings.
3. FLOOR COVERING
A. Carpet - 30 oz. Cut pile nylon Design Weave "Westbridge"/26 oz.
Loop Design Weave "Caravan" or equivalent without pad. Carpet to
be glued down installation. Color to be selected by Tenant.
B. V.C.T. Armstrong "Standard Excelon" - 1/8" gauge: 12" x 12" or
approved equal.
C. Sheet vinyl Congoleum "Forever" or approved equal.
D. Base. 2-1/2" covered based at carpet and resilient floors.
E. Ceramic tile at toilet rooms with 6" ceramic tile base.
F. Sealed Concrete. Sealed with a clear acrylic sealer.
<PAGE> 37
4. DOORS
A. Interior. SP Particleboard Core Oak 3'-0" x 9'-0", Rotary Swan
Red Oak Veneer door by Weyerhauser or equal. 20 minute rated at
one hour fire walls. In laboratory and laboratory support
spaces, hollow metal doors.
5. FRAMES (DOORS & WINDOWS)
A. Timely Standard prefinished steel door and sidelight frame in
standard white. "Timely II" at rated walls.
B. Other. As may be directed by code.
6. HARDWARE
A. Latch set and lockset - Schlage D Series in brushed stainless
steel with H.C. Levon lever.
B. Butts - 2 pair per door finished to match.
7. RESTROOM ACCESSORIES
A. Water closet, white American Standard flush valve #2221.18 with
Olsonite #95 seat and Sloan Ryal #110.3 flush valve. H.C. stalls
to have white #9468.018 water closet with Sloan Royal #115.3
flush valve.
B. Urinal, white American Standard "Washbrook" #6501.010 with Sloan
Royal #186 flush valve.
C. Lavatory, American Standard with faucet #0355.07 and drain
#2103.786.
D. Recessed towel dispenser/waste receptacle, Bobrick #B3944.
E. Surface mounted seat cover dispense, Bobrick.
F. Surface mounted toilet tissue dispenser, Bobrick #B2740.
G. Hook, Bobrick #B682.
H. Grab bars, Bobrick #B6806, 36" and 42".
I. Toilet partitions, Bobrick 1080 series, plastic laminate, or
equivalent. Baked enamel floor-braced with coat hook/bumper.
J. Urival partitions, Bobrick 1085 "Duraline" series, or equivalent.
K. Recessed toilet room accessories, Bobrick B301, B3570 and B35704,
or equivalent.
8. HVAC
Gas-fired roof-mounted VAV system for cooling, heating and ventilation.
Designed and installed in accordance with the California Energy Act -
Title 24.
1. All cuts in roof to be properly sealed, flashed and hot
mopped.
9. ELECTRICAL
A. Designed and installed in accordance with the California Energy
Act - Title 24.
<PAGE> 38
B. Power distributed as required by tenant for warehouse, assembly
and manufacturing equipment, appliance operation and special
office machinery shall be ceiling hung U.O.N.
C. Warehouse/Manufacturing/Assembly Lighting. High Bay THS 150-watt
high pressure sodium light fixtures by Lithonia or equal in areas
with open ceiling. U.O.N. See tenant improvement drawings. T-bar
dropped ceilings 2' x 4' recessed mounted fluorescent fixtures
with light levels ranging from 15-75 foot candles as specified by
Owner. Fixtures same as for office lighting following.
D. Office lighting is 2' x 4' recessed mounted fluorescent ceiling
fixtures, Lithonia 2PM4G B3 40 18LS 120 or equal, approved by
Owner, with parabolic lens.
E. Downlights. Halo #117-1CT-331-P Coilex Baffle 7" O.D. trim.
F. Wallwashers. Halo #1176-T-425P Coilex Baffle with scoop trim 7"
O.D.
G. Track Lights. Halo 120v single circuit power trac with Coilex
Continental lampholdes #L733P.1.
H. Wall-mounted fixture at restroom. Lithonia Wallens #W240-120A.
I. Other lighting as required by tenant or code.
J. Provide plates for all power outlets. Provide pull wires at all
telephone and cable (C.R.T.) pull locations as indicated on plan.
K. Illuminated exit signs as required by tenant or code.
L. Emergency lighting as required by code.
10. FINISHES/SPECIALTIES
A. Special office wall or floor finishes. See tenant improvement
drawings or specifications.
B. Lunch room, conference room, coffee or wet bar cabinetry and
plumbing. See tenant improvement drawings.
<PAGE> 39
EXHIBIT B-3
MOVEABLE EQUIPMENT AND TRADE FIXTURES
Moveable Equipment & Trade Fixtures includes:
Lab Benches and Counters
Fume Hoods
Cold Rooms
<PAGE> 40
EXHIBIT C
INITIAL PROJECT SPECIFICATION
GENERAL DESCRIPTION
o Two story concrete tilt-up building.
o Clear heights of 13'8" on the top floor and 24'2-1/2" and 19'2-1/2" on the
bottom floor (349 and 347 Oyster Point respectively).
o Bay spacing of 33'-4" and 34' x 60' on the top floor and 33'-4" and 34' x
30' on the bottom (349 and 347 Oyster Point respectively).
BUILDING STRUCTURE
o All foundations to include footings, foundation walls or other building
foundation components required to support the entire building structure.
o Columns shall be steel box or pipe columns.
o All columns, beams, joists, purlins, headers, or other framing members to
support the roof, roofing membrane and stair openings.
o Five inch (5") thick concrete slab on grade with #3 reinforcing bars at 18"
on center each way or welded wire mesh and any other reinforcing or
structural connections that may be necessary or required.
o Two and a half (2-1/2") thick concrete slab over metal deck supported by
structural metal beams and columns.
o Exterior walls that enclose the perimeter of the building with steel
reinforcing and structural connections that may be necessary or required.
o All exterior glass and glazing with pained aluminum frames. Glass to be
tinted as appropriate to the aesthetic design of the building. All exterior
doors, door closer and locking devices necessary for proper functioning.
o Hybrid Volcraft panel roof system to support roofing membrane.
o Four (4) play built-up roofing (including a base sheet, two plays and a cap
sheet) and all flashings by Owens-Corning, Johns Manville, or equal.
o Painting of all concrete walls with Tex-Coat or Kel-Tex textural paint. All
caulking of exterior concrete joint in preparation for painting.
o The foundation and structural framing should be designed to support a
minimum live load of 100 pounds per square foot in all areas.
o The floor-to-floor height of the building shall allow a minimum of 10'0"
interior drop ceiling height.
o Roof hatch and ladder within each building.
PLUMBING
o Underground sanitary sewer laterals connected to the city sewer main the
street and piped into the building and under the concrete slab on grade for
the length of the building. Sewer lines to consist of a six inch (6"
sanitary sewer line
<PAGE> 41
and a six inch (6") biowaste sewer line. Sanitary sewer line under the slabs
will be in a close proximity to the building restroom locations.
o Domestic water mains connected to the city water main in the street and
stubbed to the building. Water main to the building shall be two inches (2")
in size with a three inch (3") supply line.
o Roof drain leaders piped and connected to the site storm drainage systems or
asphalt paved area.
o Gas lines connected from the city public utility mains and gas meters
adjacent to, and in close proximity to the building. Meters supplied by
utility company.
ELECTRICAL
o All primary electrical service to the building that is complete including
underground conduit and wire feeders from transformers pads into the
building's main switchgear electrical room. The electrical characteristics
of the secondary side of transformers shall be 277/480 volt, 3 Phase and the
rate capacity of the transformers shall be 2,000 amps for each building.
o Underground pull section, meter, and panel(s), for site lighting and
landscaping.
o Underground conduit from the street to the building for telephone trunk line
service by Pacific Telephone Conduit to the building shall not be less than
4".
o An electrically operated landscape irrigation controller that is a complete
and functioning system.
o Underground conduit from the building to the main fire protection system,
shut off valve (PIV) for installation for security alarm wiring.
o All parking lot and landscaping lighting to include fixtures, underground
conduit, wire, distribution panel and controller. All exterior lighting
shall be a complete and functioning system.
FIRE PROTECTION
o A complete and fully functional overhead system distributed throughout the
building with a density of .2/3000 on the top floors and .4/2000 and
.495/2000 on the bottom floors (349 and 347 Oyster Point respectively).
o System shall include all sprinkler heads that may be required by building
codes above the ceiling, when ceilings are installed.
LOADING
o Two (2) grade level 12' x 14' roll-up doors plus at least one (1) 12' x 10'
location for future grade level opening per building.
SITEWORK
o All work outside the building perimeter walls shall be considered site work
for the building shell and shall include grading, asphalt concrete, paving,
landscaping (hard and soft), landscape and irrigation, storm drainage,
utility service laterals, curbs, butters, sidewalks, specialty paving (if
required), retaining walls, fencing and gates, trash enclosures, planters,
sign monuments, parking lot and landscape lighting and other exterior
lighting per code.
o Paving sections for automobile and truck access shall be according to the
Geological Soils Report.
o All parking lot striping to include handicap signage and spaces.
<PAGE> 42
o Underground site storm drainage system shall be connected to the city storm
system main.
EXCLUSIONS
The following items are not included in the building shell:
o Electrical panels and distribution.
o Security system.
<PAGE> 43
EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
TO: Oyster Point Tech Center LLC
c/o Trammell Crow NW, Inc.
1241 East Hillsdale Blvd., Ste. 200
Foster City, CA 94404
THIS IS TO CERTIFY:
1. That the undersigned is the Tenant under that certain lease dated
_____________________, and, if applicable, amended on ___________________, by
and between ______________________________ ("Landlord"), and the undersigned
("Tenant") covering those certain premises located as shown on the drawing made
part of the Lease (the "Premises").
2. That said Lease is in full force and effect and, except as noted in
Paragraph 1. Above, has not been modified, changed, altered or amended in any
respect, and is the only lease or agreement between the Tenant and the Landlord
affecting the Premises.
3. To the best of Tenant's knowledge, the information set forth below is
true and correct:
<TABLE>
<S> <C>
(a) Square footage of the Premises: _____________________________________
(b) Annual rent as of the Commencement of Lease: $_______________________
(c) Current annual rent (if different than at commencement): $___________
(d) Commencement date of Lease: _________________________________________
(e) Lease termination date: _____________________________________________
(f) Rent paid to and including: _________________________________________
(g) Security deposit: $__________________________________________________
(h) Prepaid rent for an in amount of: $__________________________________
(i) Free rent period: ___________________________________________________
(j) Amount of current monthly escrow payment obligations with respect to
taxes, insurance, and Common Area Maintenance charges under the Lease:
Taxes: $___________________________
Insurance: $___________________________
Common Area Maintenance Charges: $___________________________
(k) Dates through which Tenant has paid monthly escrow
payments and Common Area Maintenance charges:
Escrow Payment for Taxes: ___________________________
Escrow Payment for Insurance: ___________________________
Common Area Maintenance Charges: ___________________________
</TABLE>
4. Delete if Tenant has not occupied the Premises: Tenant now occupies
the Premises, accepts the Premises in their current condition subject only to
those punch list items listed in Exhibit A, if any, and is not aware of any
defect in the Premises except as described in Exhibit A, if any.
5. Delete if Tenant has occupied the Premises: Tenant does not occupy the
Premises. The status of the plans and specifications for and the construction of
Tenant Improvements is described in Exhibit A. Tenant is familiar with the
Tenant Improvement work done to date and is now aware of any defect in such
work, except as described in Exhibit A.
<PAGE> 44
6. No rent has been paid in the current month other than as disclosed in
Paragraph 3. No free rent or other concessions, benefits, or inducements other
than as specified in the Lease have been granted to Tenant or undertaken by the
Landlord.
7. Tenant has not been granted any renewal, expansion, purchase options
or any rights of first refusal, except as disclosed in writing in the Lease.
8. Neither Tenant nor to the best of Tenant's knowledge, Landlord is in
breach of the Lease and there has not occurred any event, act, omission or
condition which by notice or lapse of time or both or otherwise, will result in
any breach by Tenant or to the best of Tenant's knowledge, by Landlord. As of
the date hereof and except as set forth in the Lease, the undersigned is
entitled to no credit, offset or deduction in rent. Tenant knows of no
liabilities or obligations of Landlord which have accrued but are unsatisfied
under the Lease as of the date of this Certificate.
9. To the best of Tenant's knowledge, there are no actions, whether
voluntary or otherwise, pending against the undersigned under the bankruptcy
laws or other laws for the relief of debtors of the United States or any state
thereof.
10. With the exception of this Lease and except as otherwise disclosed
in writing to Landlord, neither the Tenant nor any affiliate of the Tenant is a
tenant under a lease or any other tenancy arrangement (i) with (a) ________; (b)
__________; (c) __________; or (ii) involving any property in which the entities
named in clauses (____), (_____) or (______) are known by the Tenant to have an
ownership interest.
DATED this ___________ day of _____________, 19___.
TENANT:
VAXGEN, INC., a Delaware Corporation
By: ________________________________
Name: ______________________________
Its: _______________________________
(Tenant to attach Exhibit A to Tenant Estoppel Certificate, List of Defects, if
necessary.)
<PAGE> 45
EXHIBIT E
RULES AND REGULATIONS
FOR TENANT'S CONTRACTOR(S)
1. Tenant's contractor will be responsible for making arrangements with
Landlord as to time for the use of building and equipment such as elevators
and loading areas. The delivery of materials, equipment and supplies to the
Building or Premises must be coordinated with Landlord at least two 92)
business days prior to delivery. The Building debris box is not to be used
for waste produced by Tenant's contractor.
2. Tenant's contractor shall not interfere with the Landlord's contractor and
sub-trades in any way and will cooperate fully with same.
3. All Tenant's contractor's waste and debris must be removed from the Premises
and Building regularly and promptly. All combustible waste and debris must
be stored in a covered, fire-proof container prior to removal.
4. Tenant's contractor and sub-trades shall take all precautions to ensure the
security and the site condition of the Premises and Building in which the
work is being performed, including their own tools, equipment and materials,
and are responsible for any damage caused by employees and sub-trades to any
part of the Building or Premises.
5. Tenant's contractor shall remove and properly replace underfloor duct access
coverings as required for Tenant's trades and services. Any damage to
underfloor duct access coverings shall be repaired or replaced by Tenant's
contractor to the satisfaction of Landlord.
6. Tenant's contractor must provide their own fire protection equipment, have
same on premises at all times and conform to any requirements of Landlord or
Landlord's contractor regarding fire protection.
7. Tenant's contractor shall carry out all work in compliance with all Federal,
State, county and city Building Codes and applicable Acts. Ordinances and
Statutes.
8. Tenant's contractor shall provide all their own protective devices and
coverings, so as to protect the Building finishes provided by Landlord in
the Building.
9. No attachments to or use of window frames and mullions, ceiling systems,
glass, ceiling frame or building frame, will be permitted without the
expressed written consent of Landlord.
10. All Tenant's contractors, employees and trades must be confined to the area
in which work is being performed.
11. Tenant or Tenant's contractor shall carry builder's risk insurance with
limits of not less than the amount requested by Landlord, insurance covering
loss or damage to the work during the course of construction; worker's
compensation/employer's liability insurance covering all employees of
contractor and subcontractor. All such policies shall name Landlord and
Tenant as additional insureds. A certificate of insurance must be provided
to Landlord prior to commencement of work.
12. Any construction, alteration, maintenance, repair, replacement, removal or
decoration undertaken by Tenant's contractor shall be carried out in a good,
workmanlike, and prompt manner, shall comply with applicable statutes, laws,
ordinances, regulations, rules orders and requirements of the authorities
having jurisdiction thereof, and shall be subject to supervision by Landlord
or its employees, agents, or contractors. All construction shall be
performed in a timely manner without delays or interruptions.
13. Tenant's contractors shall not use excessive quantities of electricity or
water and shall not shut off any water, electricity, sprinkler systems or
other services without first obtaining Landlord's express authorization.
<PAGE> 46
EXHIBIT F
DISCLOSED HAZARDOUS MATERIALS LIST
Preliminary Estimate of Maximum Amounts of Hazardous Chemicals and Biohazards
<TABLE>
<CAPTION>
Organics
<S> <C>
Chloroform 10 gal
Ethanol 40 gal
Methanol 10 gal
Isopropyl alcohol 10 gal
Butanol 0.5 gal
Phenol 10 gal
DMSO 4 gal
Glutaraldeheyde 0.5 gal
Formaldehyde 2 gal
Formamide 2 gal
Mercaptoethanol 1 gal
Paraformaldehyde 1 gal
Toluene 1 gal
Acids
Acetic acid 10 gal
Nitric acid 4 gal
Hydrochoric acid 4 gal
Sulfuric acid 4 gal
Trichloroacetic acid 1 gal
Formic acid 4 gal
Chlorox 20 gal
Bases
Ammonium hydroxide 4 gal
Sodium hydroxide 10 gal
Miscellaneous chemicals
Acrylamide 6 kg
CO2 Gas 12 tanks
CO2 Solid 100 lbs
Film developing chemicals 60 gal (fully diluted)
Ethidium bromide 50 g
Propidium iodide 10 g
Methotrexate 2 g
Sodium azide 200 g
Thimerisol 50 g
Guanidine thiocyanate 500 g
Radiochemicals (maximum weekly consumption)
125 NaI 40 mCi
35S-labeled amino acids and nucleotides 40 mCi
3H Tritium 10 mCi
32P 40 mCi
14C 10 mCi
Biologic Hazards
E. coli 40 L
HIV1 3 L
</TABLE>
<PAGE> 47
<TABLE>
<S> <C>
SIV/SHIV 1L
Human blood/serum/plasma 600L
Rodent blood/serum/plasma 100 L
Nonhuman primateblood serum/plasma 10L
</TABLE>