to the extent that such capital improvements reduce or approximate Operating Expenses by replacing, rather than necessitating repair to, improvements deemed by Landlord prudent to replace. The monthly amortization of any given capital improvement shall be the sum of the (i) quotient obtained by dividing the cost of the capital improvement by Landlord's estimate of the number of months of useful life of such improvement plus (ii) an amount equal to the cost of the capital improvement times 1/12 of the lesser of 12% or the maximum annual interest rate permitted by law.
(ix) Maintenance of the Building including, but not limited to, painting, caulking and repair and replacement of Building components, including, but not limited to, roof, elevators and fire detection and sprinkler systems.
(xi) If Tenant fails to maintain the Premises, any expense incurred by Landlord for such maintenance, after Landlord has notified Tenant by telephone of Tenant’s failure to maintain the Premises.
(b) Tenant's Share of Operating Expenses that are not specifically attributed to the Premises or Building ("Common Area Operating Expenses") shall be that percentage shown in Paragraph 1.5(a). Tenant's Share of Operating Expenses that are attributable to the Building ("Building Operating Expenses") shall be that percentage shown in Paragraph 1.5(b). Landlord in its good faith sole discretion shall determine which Operating Expenses are Common Area Operating Expenses, Building Operating Expenses or expenses to be entirely borne by Tenant.
(c) The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(a) shall not be deemed to impose any obligation upon Landlord to either have said improvements or facilities or to provide those services, except as required by Paragraph 7.2.
(d) Tenant shall pay monthly in advance on the same day as the Base Rent is due Tenant's Share of estimated Operating Expenses in the amount set forth in Paragraph 1.6. Landlord shall deliver to Tenant within 90 days after the expiration of each calendar year a reasonably detailed statement (“Operating Expense Statement”) showing Tenant's Share of the actual Operating Expenses incurred during the preceding year. If Tenant's estimated payments under this Paragraph 4(d) during the preceding year exceed Tenant's Share as indicated on the Operating Expense Statement, Landlord shall pay to Tenant the amount of such excess within thirty (30) days after delivery to Tenant of the Statement. If Tenant's estimated payments under this Paragraph 4.2(d) during said preceding year were less than Tenant's Share as indicated on the Operating Expense Statement, Tenant shall pay to Landlord the amount of the deficiency within thirty (30) days after delivery by Landlord to Tenant of the Statement. At any time Landlord may adjust the amount of the estimated Tenant's Share of Operating Expenses to reflect Landlord's estimate of such expenses for the year. Within 30 days after receipt of any Operating Expense Statement, Tenant may notify Landlord of its request for an audit of Landlord’s Operating Expenses. If Tenant fails to make such written request within such thirty (30) day period, Tenant shall have waived its right to audit Landlord’s Operating Expenses for the subject calendar year. If Tenant so notifies Landlord, then no sooner than thirty (30) days after Landlord’s receipt of such notice, Tenant shall be entitled to have an independent certified public accountant (“CPA”) acceptable to both Landlord and Tenant audit the relevant books and records for the subject calendar year relating to such Statement during regular business hours at a location to be designated by Landlord; provided, however, that if Landlord provides Tenant with an amended Operating Expense Statement (“Amended Statement”) prior to commencement of Tenant’s audit, that Amended Statement shall be the Statement to which Tenant’s audit figures are compared for purposes of determining whether Landlord has overstated Operating Expenses and if so by how much. If Landlord and Tenant are unable to agree on the CPA to conduct the audit, then Landlord shall designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct the audit. The audit shall be limited to the determination of the amount of Operating Expenses for the subject calendar year. If the audit discloses that the amount of Operating Expenses billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Expenses for the subject calendar year by more than ten percent (10%), in which case Landlord shall pay the costs of such audit. Tenant shall keep any information gained from such audit confidential and shall not disclose it to any other party (including without limitation any other tenants of the Corporate Center) except in connection with litigation between Landlord and Tenant or in response to a valid subpoena, in which case any disclosure shall be in connection with such litigation or subpoena and then only to the party rightfully demanding such disclosure. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, all disputed Operating Expenses.
(a) Tenant’s EBITDA (Earnings Before Interest, Taxes, Depreciation, Amortization and Non-Cash Items) coverage of fixed charges for the four (4) quarters preceding the requested reduction has been equal to or greater than 1.5x, and EBITDA for the year is greater than prior year;
(b) Tenant’s Tangible Net Worth is greater than in the year prior to its request; and
(c) Tenant has a minimum of Two Hundred Million Dollars ($200,000,000) in cash or cash equivalents in any year in which it makes a “Reduction Request.”
If any Reduction Request is granted and Tenant thereafter for any period during the Term or any extended Term fails to meet the Reduction Criteria, Tenant shall immediately without demand from Landlord reinstate the Letter of Credit in its full original amount of $3,000,000.Landlord shall, at the expiration or earlier termination of the term hereof and after Tenant has vacated the Premises, return to Tenant that portion of the Security Deposit still held by Landlord and not used or applied by Landlord. No part of the Security Deposit shall be considered to be held in trust, to bear interest, or to be prepayment for any monies to be paid by Tenant under this Lease.
6. Use.
6.1 Permitted Use. Tenant shall use and occupy the Premises only for the Permitted Use set forth in Paragraph 1.8. Tenant shall not commit any nuisance, permit the emission of any objectionable noise or odor, suffer any waste, make any use of the Premises which is contrary to any law or ordinance or which will invalidate or increase the premiums for any of Landlord's insurance. Tenant shall not service, maintain or repair vehicles on the Premises, Building or Common Areas. Tenant shall not store foods, pallets, drums or any other materials outside the Premises. Tenant shall not interfere with or disturb the quiet enjoyment of any other tenant of the Corporate Center at any time during Tenant’s occupancy of the Premises or use of the Building or Corporate Center. Tenant shall keep Premises, the interior and exterior of the Building, and the Corporate Center free of storage and debris during Tenant’s occupancy of the Premises or use of the Building or Corporate Center.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, chemical, material or waste whose presence, nature, quantity and/or intensity of existence, use, manufacture, disposal, transportation, spill, release or effect, either by itself or in combination with other materials on or expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment, or the Premises; (ii) regulated or monitored by any governmental authority; or (iii) a basis for liability or potential liability of Landlord to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substance shall include, but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any products or by-products thereof. Tenant shall not engage in any activity in or about the Premises which constitutes a Reportable Use (as hereinafter defined) of any Hazardous Substances without the express prior written consent of Landlord and compliance in a timely manner (at Tenant's sole cost and expense) with all Applicable Requirements (as defined in Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and (iii) the presence in, on or about the Premises of a Hazardous Substance with respect to which any Applicable Requirements require that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Tenant may, without Landlord's prior consent, but upon written notice to Landlord and in compliance with all Applicable Requirements, use any ordinary and customary materials reasonably required to be used by Tenant in the normal course of the Permitted Use, so long as such use is not a Reportable Use and does not expose the Premises, or neighboring properties to any meaningful risk of contamination or damage or expose Landlord to any liability therefor. In addition, Landlord may (but without any obligation to do so) condition its consent to any Reportable Use of any Hazardous Substance by Tenant upon Tenant's giving Landlord such additional assurances as Landlord, in its reasonable discretion, deems necessary to protect itself, the public, the Premises and the environment against damage, contamination or injury and/or liability therefor, including but not limited to the installation (and, at Landlord's option, removal on or before Lease expiration or earlier termination) of reasonably necessary protective modifications to the Premises (such as concrete encasements) and/or the deposit of an additional Security Deposit.
(b) Duty to Inform . If Tenant or Landlord knows, discovers or has cause to believe, that a Hazardous Substance is located in, under or about the Premises or the Building, or that a Reportable Use of any Hazardous Substance has occurred, is occurring, or will occur, that party shall immediately give to the other party written notice thereof, together with a copy of any statement, report, notice, registration, application, permit, business plan, license, claim, action, or proceeding given to, or received from, any governmental authority or private party concerning the presence, spill, release, discharge of, or exposure to, such Hazardous Substance. Neither Tenant nor Landlord shall cause or permit any Hazardous Substance to be spilled or released in, on, under or about the Premises (including, without limitation, through the plumbing or sanitary sewer system).
(c) Tenant’s Indemnification. Tenant shall indemnify, protect, defend and hold Landlord, Landlord's affiliates, Lenders, and the officers, directors, shareholders, partners, employees, managers, independent contractors, attorneys and agents of the foregoing ("Landlord Entities") and the Premises, harmless from and against any and all damages, liabilities, judgments, costs, claims, liens, expenses, penalties, loss of permits and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Tenant or by any of Tenant's employees, agents, contractors or invitees. Tenant's obligations under this Paragraph 6.2(c) shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Tenant and its employees, agents, contractors and invitees, and the cost of investigation (including consultants' and attorneys' fees and testing), removal, remediation, restoration and/or abatement thereof, or of any contamination therein involved. Tenant's obligations under this Paragraph 6.2(c) shall survive the expiration or earlier termination of this Lease.
(d) Landlord’s Indemnification. Landlord shall indemnify, protect, defend and hold Tenant, its officers, directors, shareholders, partners, employees, managers, independent contractors, attorneys, agents, and permitted assignees and successors of the foregoing (“Tenant Affiliates”) and the Premises, harmless from and against any and all damages, liabilities, judgments, costs, claims, liens, expenses, penalties, loss of permits and attorneys' and consultants' fees (“Damages”) arising out of or involving any Hazardous Substance actually known to the Landlord to have existed at the Premises prior to Tenant’s occupancy of the Premises (“Preexisting Contamination”), and shall hold harmless Tenant and Tenant Affiliates from any and all Damages arising out of or involving any Hazardous Substance actually existing at the Premises prior to Tenant’s occupancy of the Premises. Landlord's obligations under this Paragraph 6.2(d) shall include, but not be limited to, the effects of any Preexisting Contamination or injury to person, property or the environment, and the cost of investigation (including consultants' and attorneys' fees and testing), removal, remediation, restoration and/or abatement thereof, of any such Pre-existing Contamination, except as set forth in Paragraph 6.4. Landlord's obligations under this Paragraph 6.2(d) shall survive the expiration or earlier termination of this Lease.
6.3 Tenant's Compliance with Requirements. Tenant shall, at Tenant's sole cost and expense, fully, diligently and in a timely manner, comply with all "Applicable Requirements," which term is used in this Lease to mean all laws, rules, regulations, ordinances, directives, covenants, easements and restrictions of record, permits, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Landlord's engineers and/or consultants, relating in any manner to the Premises (including but not limited to matters pertaining to (i) industrial hygiene, (ii) environmental conditions on, in, under or about the Premises, including soil and groundwater conditions, and (iii) the use, generation, manufacture, production, installation, maintenance, removal, transportation, storage, spill or release of any Hazardous Substance), now in effect or which may hereafter come into effect. Tenant shall, within ten (10) days after receipt of Landlord's written request, provide Landlord with copies of all documents and information evidencing Tenant's compliance with any Applicable Requirements and shall immediately upon receipt, notify Landlord in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving failure by Tenant or the Premises to comply with any Applicable Requirements. Tenant’s compliance obligations shall also include all alterations and improvements required, requested or deemed reasonably necessary by any governmental or quasi-governmental entity for the Premises to be in compliance with the Americans with Disabilities Act of 1990, (Pub. L. No. 101-336, 104 Stat. 327), as amended, Title 24 of the California Administrative Code, including without limitation any and all of its access, and labor, energy and economy, requirements, and any and all rules, regulations and requirements promulgated thereunder or under any similar laws, ordinances, rules, regulations or orders, all of which shall be made by Tenant at its sole cost and expense at any time such alterations or improvements are required, requested or deemed necessary, including but not limited to in connection with the Work (defined in Exhibit E).
6.4 Inspection; Compliance with Law . In addition to Landlord's environmental monitoring and insurance program, the cost of which is included in Operating Expenses, Landlord and the holders of any mortgages, deeds of trust or ground leases on the Premises ("Lenders") shall have the right to enter the Premises at any time in the case of an emergency, and otherwise at reasonable times after telephone notice, for the purpose of inspecting the condition of the Premises and for verifying compliance by Tenant with this Lease and all Applicable Requirements. Landlord shall be entitled to employ experts and/or consultants in connection therewith to advise Landlord with respect to Tenant's installation, operation, use, monitoring, maintenance, or removal of any Hazardous Substance on or from the Premises. The cost and expenses of any such inspections shall be paid by the party requesting same unless a violation of Applicable Requirements exists, is imminent, or is discovered during such inspection, or the inspection is requested or ordered by a governmental authority. In such case, Tenant shall upon request reimburse Landlord or Landlord's Lender, as the case may be, for the costs and expenses of such inspections.
6.5 Tenant Move-in Questionnaire . Prior to executing this Lease, Tenant has completed, executed and delivered to Landlord Tenant's Move-in and Lease Renewal Environmental Questionnaire (the “Tenant Move-in Questionnaire”), a copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Tenant Move-in Questionnaire is true and correct and accurately describes the use(s) of Hazardous Substances which will be made and/or used on the Premises by Tenant. Tenant may amend the Tenant Move-in Questionaire, but such amendment shall not alter or amend Tenant’s obligations and responsibilities pursuant to Section 6 of the Lease.
7. Maintenance, Repairs, Trade Fixtures and Alterations.
7.1 Tenant's Obligations. Subject to the provisions of Paragraph 7.2 (Landlord's Obligations), Paragraph 9 (Damage or Destruction) and Paragraph 14 (Condemnation), Tenant shall, at Tenant's sole cost and expense and at all times, keep the Premises and every part thereof in good order, condition and repair (whether or not such portion of the Premises requiring repair, or the means of repairing the same, are reasonable or readily accessible to Tenant and whether or not the need for such repairs occurs as a result of Tenant's use, any prior use, the elements or the age of such portion of the Premises) including, without limiting the generality of the foregoing, all equipment or facilities specifically serving the Premises, such as plumbing, heating, air conditioning, ventilating (“HVAC”) on a quarterly schedule (i.e. no less than four (4) times per calendar year), electrical, lighting facilities, boilers, fired or unfired pressure vessels, fire hose connectors if within the Premises, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, skylights, draft curtains, columns and dock doors related equipment (including but not limited to dock levelers, bumpers, lights and adjacent dock wells), but excluding any items which are the responsibility of Landlord pursuant to Paragraph 7.2 below. Tenant's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair. Tenant shall provide Landlord with written notice of quarterly service of all HVAC systems servicing the Premises.
7.2 Landlord's Obligations. Subject to the provisions of Paragraph 6 (Use), Paragraph 7.1 (Tenant's Obligations), Paragraph 9 (Damage or Destruction) and Paragraph 14 (Condemnation), Landlord at its expense and not subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the foundations and exterior walls of the Building and utility systems outside the Building. Landlord, subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the air conditioning systems servicing the Premises, Building roof and Common Areas.
7.3 Alteration; Condition of Premises . Tenant shall not make nor cause to be made any alterations, installations in, on, under or about the Premises without Landlord’s prior written consent, except as specifically set forth in Exhibit E, Tenant Improvements, except for nonstructural alterations of a cosmetic nature only and in an amount not to exceed fifty thousand dollars ($50,000), and then only with thirty (30) days’ prior written notice to Landlord. Tenant represents that it shall accept the Premises in “as is” condition as of the Commencement Date or date of early occupancy, if any, broom-clean but otherwise without representation or warranty as to its condition.
7.4 Surrender/Restoration. Upon the termination of this Lease, Tenant shall surrender the Premises by the end of the last day of the Lease term or any earlier termination date in its original condition (as when Tenant took possession of the Premises), clean and free of debris and in good operating order, condition and state of repair ordinary wear and tear excepted. Without limiting the generality of the above, Tenant shall remove all personal property, trade fixtures, unless Landlord requests, in writing, that Tenant not remove some or all of such fixtures (other than trade fixtures), additions or improvements installed by or on behalf of Tenant or situated in or about the Premises and floor bolts, patch all floors and cause all lights to be in good operating condition. By the date which is twenty (20) days prior to such termination of this Lease, Landlord shall notify Tenant in writing of those fixtures (other than trade fixtures), alterations, additions and other improvements which Landlord shall require Tenant not to remove from the Premises. Tenant shall repair any damage caused by the installation or removal of such signs, trade fixtures, furniture, furnishings, fixtures, additions and improvements which are to be removed from the Premises by Tenant hereunder. If Landlord fails to so notify Tenant at least twenty (20) days prior to such termination of this Lease, then Tenant shall remove all tenant signage, alterations, furniture, furnishings, trade fixtures, additions and other improvements (other than the Tenant Improvements) installed in or about the Premises by, or on behalf of Tenant. Tenant shall ensure that the removal of such items and the repair of the Premises will be completed prior to such termination of this Lease. Notwithstanding the foregoing, Tenant may remove from the Premises upon termination of this Lease the laboratory equipment specifically listed in Exhibit E.
8. Insurance; Indemnity.
8.1 Payment of Premiums. The cost of the premiums for the insurance policies maintained by Landlord under this Paragraph 8 shall be a Common Area Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for policy periods commencing prior to, or extending beyond, the term of this Lease shall be prorated to coincide with the corresponding Commencement Date of Expiration Date.
8.2 Tenant's Insurance.
(i) At its sole cost and expense, Tenant shall maintain in full force and effect during the Term of the lease the following insurance coverages insuring against claims which may arise from or in connection with the Tenant's operation and use of the leased premises.
(a) Commercial General Liability with minimum limits of $1,000,000 per occurrence; $3,000,000 general aggregate for bodily injury, personal injury and property damage. If required by Landlord, liquor liability coverage will be included.
(b) Workers' Compensation insurance with statutory limits and Employers Liability with a $1,000,000 per accident limit for bodily injury or disease.
(c) Automobile Liability covering all owned, non-owned and hired vehicles with a $1,000,000 per accident limit for bodily injury and property damage.
(d) Property insurance against all risks of loss to any tenant improvements or betterments and business personal property on a full replacement cost basis with no coinsurance penalty provision; and Business Interruption Insurance with a limit of liability representing loss of at least approximately six months of income.
(ii) Tenant shall deliver to AMB or Landlord’s property management company certificates of all insurance reflecting evidence of required coverages prior to initial occupancy; and annually thereafter.
(iii) If, in the opinion of Landlord's insurance advisor, the amount of scope of such coverage is deemed inadequate at any time during the Term, then within thirty (30) days after Tenant’s receipt of written notice of the opinion of Landlord’s insurance advisor Tenant shall increase such coverage to such reasonable amounts or scope as Landlord's advisor deems adequate.
(iv) All insurance required under Paragraph 8.2 (i) shall be primary and non-contributory (ii) shall provide for severability of interests, (iii) shall be issued by insurers, licensed to do business in the state in which the Premises are located and which are rated A:VII or better by Best's Key Rating Guide, (iv) shall be endorsed to include Landlord and such other persons or entities as Landlord may from time to time designate, as additional insureds (Commercial General Liability only), and (v) shall be endorsed to provide at least 30-days prior notification of cancellation or material change in coverage to said additional insureds.
8.3 Landlord's Insurance. Landlord shall maintain "all risks" coverage as broad as the current ISO Special Form policy, providing fire and extended coverage, and which may, in Landlord’s sole discretion, include earthquake and flood, covering the buildings within the Property for a minimum of eighty percent (80%) of their value excluding tenant improvements, Commercial General Liability insurance, and such other insurance in such amounts and covering such other liability or hazards as deemed appropriate by Landlord. The amount and scope of coverage of Landlord's insurance shall be determined by Landlord from time to time in its sole good faith discretion and shall be subject to such deductible amounts as Landlord may elect. Landlord shall have the right to reduce any insurance or coverage, provided, however that casualty insurance shall not be less than the eighty percent (80%) specified above. Premiums for any such insurance shall be a Common Area Operating Expense.
8.4 Waiver of Subrogation. To the extent permitted by law and without affecting the coverage provided by insurance required to be maintained hereunder, Landlord and Tenant each waive any right to recover against the other on account of any and all claims Landlord or Tenant may have against the other with respect to property insurance actually carried, or required to be carried hereunder, to the extent of the proceeds realized from such insurance coverage.
8.5 Indemnity.
(a) Tenant shall protect, indemnify and hold Landlord and Landlord Entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited to property of any Landlord Entity) or death or injury to any person occurring in or about the Premises, the Building or the Corporate Center to the extent that such injury or damage shall be caused by or arise from any actual or alleged act, neglect, fault or omission by or of Tenant and its officers, directors, shareholders, agents, servants, employees, invitees, customers, contractors or visitors (“Tenant Entities”), and including without limitation any damage, death or injury caused or contributed to by any animals or organisms (including without limitation viruses, bacterium and cancers) present at the Premises, in the Building or at the Corporate Center by reason of or in connection with Tenant’s Use or Occupancy of the Premises, Building or Corporate Center, including without limitation any such animals or organisms permitted at the Premises, Building or Corporate Center by Landlord or by any governmental organization having jurisdiction, and;
(ii) the conduct or management of any work or anything whatsoever done by Tenant or Tenant Entities in, on or about the Premises, Building or Corporate Center, or from transactions of Tenant or Tenant Entities concerning the Premises, Building or Corporate Center;
(iii) Tenant's failure, or the failure of any Tenant Entity, to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Premises, Building or Corporate Center, or its occupancy; or
(iv) any breach or default of the part of Tenant or any Tenant Entity in the performance of any covenant or agreement on the part of the Tenant to be performed pursuant to this Lease.
(b) Landlord shall protect, indemnify and hold Tenant harmless from and against any and all loss, claims, liability or costs (including court costs and reasonable attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited to property of any Tenant Entity) or death or injury to any person occurring outside the Premises, and in, on or about the Building or the Corporate Center to the extent that such injury or damage is caused by or arises from the gross negligence or willful misconduct of Landlord or Landlord Entities;
(ii) the grossly negligent or willful misconduct or mismanagement of any work or anything whatsoever done by Landlord outside the Premises and in, on or about the Building or Corporate Center, or from transactions of Landlord concerning the Building or Corporate Center; or
(iii) Landlord’s failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Building or Corporate Center, or its occupancy, where Landlord’s compliance is required under the Lease.
The provisions of this Paragraph 8.5 shall survive the termination of this Lease with respect to any claims or liability accruing prior to such termination.
8.6 Exemption of Landlord from Liability. Except to the extent caused by the gross negligence or willful misconduct of Landlord, neither Landlord nor Landlord Entities shall be liable for and Tenant waives any claims against Landlord and Landlord Entities for injury or damage to the person or the property of Tenant, Tenant's employees, contractors, invitees, customers or any other person in or about the Premises, Building or Corporate Center from any cause whatsoever, including, but not limited to, damage or injury which is caused by or results from (i) fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or (ii) from the condition of the Premises, other portions of the Building or Corporate Center. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant of Landlord nor from the failure by Landlord to enforce the provisions of any other lease in the Corporate Center. Notwithstanding Landlord's negligence or breach of this Lease, neither Landlord nor Landlord Entities shall under any circumstances be liable for injury to Tenant's business, for any loss of income or profit therefrom or any indirect, consequential or punitive damages.
9. Damage or Destruction.
9.1 Termination Right. Tenant shall give Landlord immediate written notice of any damage to the Premises. Subject to the provisions of Paragraph 9.2, if the Premises or the Building shall be damaged to such an extent that there is substantial interference for a period exceeding ninety (90) consecutive days with the conduct by Tenant of its business at the Premises, Tenant, at any time prior to commencement of repair of the Premises and following 10 days written notice to Landlord, may terminate this Lease effective 30 days after delivery of such notice to Landlord. Such termination shall not excuse the performance by Tenant of those covenants which under the terms hereof survive termination. Rent shall be abated in proportion to the degree of interference during the period that there is such substantial interference with the conduct of Tenant's business at the Premises. Abatement of rent and Tenant's right of termination pursuant to this provision shall be Tenant's sole remedy for failure of Landlord to keep in good order, condition and repair the foundations and exterior walls of the Building, Building roof, utility systems outside the Building, the Common Areas and HVAC.
9.2 Damage Caused by Tenant. Tenant's termination rights under Paragraph 9.1 shall not apply if the damage to the Premises or Building is the result of any act or omission of Tenant or of any Tenant Entities ("Tenant Acts"). Any damage resulting from a Tenant Act shall be promptly repaired by Tenant. Landlord at its option may at Tenant's expense repair any damage caused by Tenant Acts. Tenant shall continue to pay all rent and other sums due hereunder and shall be liable to Landlord for all damages that Landlord may sustain resulting from a Tenant Act.
10. Real Property Taxes.
10.1 Payment of Real Property Taxes. Landlord shall pay the Real Property Taxes due and payable during the term of this Lease and, except as otherwise provided in Paragraph 10.3, any such amounts shall be included in the calculation of Operating Expenses in accordance with the provisions of Paragraph 4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real Property Taxes" is any form of tax or assessment, general, special, ordinary or extraordinary, imposed or levied upon (a) the Building, the Corporate Center, or the Real Property (b) any interest of Landlord in the Building, the Corporate Center, or the Real Property (c) Landlord's right to rent or other income from the Building Corporate Center, and Real Property (d) Landlord as a result of any transfer of all or any part of its interest in the Building, Corporate Center, or Real Property and/or (e) Landlord's business of leasing the Premises. Real Property Taxes include without limitation (i) any license fee, commercial rental tax, excise tax, improvement bond or bonds, levy or tax; (ii) any tax or charge which replaces or is in addition to any of such above-described "Real Property Taxes" and (iii) any fees, expenses or costs (including attorney's fees, expert fees and the like) incurred by Landlord in protesting or contesting any assessments levied or any tax rate. The term "Real Property Taxes" shall also include any increase resulting from a change in the ownership of the Corporate Center or Building, or the improvements thereon, the execution of this Lease or any modification, amendment or transfer thereof. Real Property Taxes for tax years commencing prior to, or extending beyond, the term of this Lease shall be prorated to coincide with the corresponding Commencement Date or Expiration Date.
10.3 Joint Assessment. If the Building is not separately assessed, Real Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed.
10.4 Tenant's Property Taxes. Tenant shall pay prior to delinquency all taxes assessed against and levied upon Tenant's improvements, fixtures, furnishings, equipment, including without limitation all taxes assessed in connection with the Work (defined in Exhibit E, attached), and all taxes assessed against the personal property of Tenant contained in the Premises or stored within the Corporate Center and all costs associated with the Tenant Improvement shall be paid solely by Tenant. In connection with the Work, within ten (10) days following Landlord’s written request therefor, Tenant shall present to Landlord true and correct copies of all contracts, receipts, and other verifications of all costs and expenses associated with the Work.
10.5 Additional Improvements. Operating Expenses shall not include Real Property Taxes attributable to improvements placed upon the Corporate Center by other tenants or by Landlord for the exclusive enjoyment of such other tenants. Tenant shall, however, pay to Landlord at the time Operating Expenses are payable under Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed by reason of improvements placed upon the Premises or in the Corporate Center or on the Real Property by Tenant or at tenant’s request.
11. Utilities. Tenant shall pay directly for all utilities and services supplied to the Premises, including but not limited to electricity, telephone, security, gas and cleaning of the Premises, together with any taxes thereon, all of which shall be transferred into Tenant’s name immediately upon Tenant’s occupancy of the Premises, whether such occupancy is upon the Commencement Date or pursuant to Early Occupancy as allowed by Addendum Two.
12. Assignment and Subletting.
12.1 Landlord's Consent Required.
(a) Tenant shall not assign, transfer, mortgage or otherwise transfer or encumber (collectively, "assign") or sublet all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent which consent shall not be unreasonably withheld, except in connection with Tenant’s financing of improvements or equipment, and then still subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed. Relevant criteria in determining reasonability of consent include, but are not limited to, credit history of a proposed assignee or sublessee, references from prior landlords, any change or intensification of use of the Premises or the Common Areas and any limitations imposed by the Internal Revenue Code and the Regulations promulgated thereunder relating to Real Estate Investment Trusts. Assignment or sublet shall not release Tenant from its obligations hereunder. Tenant shall not (i) sublet or assign or enter into other arrangements such that the amounts to be paid by the sublessee or assignee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of the sublessee or assignee; (ii) sublet the Premises or assign this Lease to any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the "Code"); or (iii) sublet the Premises or assign this Lease in any other manner which could cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease to fail to qualify as "rents from real property" within the meaning of Section 856(d) of the Code, or which could cause any other income received by Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Paragraph 12.1 shall apply to any further subleasing by any subtenant.
(a) Neither a change in control of Tenant nor the trading in Tenant’s securities shall constitute an assignment requiring Landlord’s consent whether or not the transfer is (i) to a successor corporation into which or with which Tenant is merged or consolidated, (ii) to a wholly-owned subsidiary of Tenant, or (iii) to a corporation into which Tenant shall sell all or substantially all of its assets, so long as any such change in control or trading does not change the Use of the Premises. In addition, the public trading of stock in Tenant shall not be deemed an assignment or transfer requiring Landlord’s consent. Each and every change in control or trading as set forth in this Paragraph 12.1(b) shall be referred to as a “Permitted Transfer". No Permitted Transfer shall result in impairment in any manner of Landlord’s rights and remedies with respect to the Security Deposit, and upon and after any and all Permitted Transfers.
Tenant shall continue to be bound by all of the terms and conditions of the Lease including those set forth in Paragraph 1.7, Security Deposit.
12.3 Excess Consideration . In the event of any assignment or sublease, Landlord shall receive as additional rent hereunder sixty-five percent (65%) of Tenant’s “Excess Consideration” derived from such assignment or sublease. If Tenant shall elect to assign or sublet, Tenant shall use reasonable and good faith efforts to secure consideration from any such assignee or subtenant which would be generally equivalent to then-current market rent, but in no event shall Tenant’s monetary obligations to Landlord, as set forth in this Lease, be reduced. In the event of a sublease, “Excess Consideration” shall mean all rent, additional rent or other consideration actually received by Tenant from such subtenant and/or actually paid by such subtenant on behalf of Tenant in connection with the subletting in excess of the rent, additional rent and other sums payable by Tenant under this Lease during the term of the sublease on a per square foot basis if less than all of the Premises is subleased, less brokerage commissions, if any, reasonably incurred by Tenant to procure the sublease, and the cost of any alterations made by Tenant specifically for the benefit of such subtenant. In the event of an assignment, “Excess Consideration” shall mean key money, bonus money or other consideration paid by the assignee to Tenant in connection with such assignment, and any payment in excess of fair market value for services rendered by Tenant to assignee or for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to assignee in connection with such assignment, less brokerage commissions, if any, reasonably incurred by Tenant to procure the assignment, and the cost of any alterations made by Tenant specifically for the benefit of such assignee. If part of the Excess Consideration shall be payable by the assignee or subtenant other than in case, then Landlord’s share of such non-cash consideration shall be in such form as is reasonably satisfactory to Landlord.
13. Default; Remedies.
13.1 Default. The occurrence of any one of the following events shall constitute an event of default on the part of Tenant ("Default"):
(a) The abandonment of the Premises by Tenant;
(b) Failure to pay any installment of Base Rent, Additional Rent or any other monies due and payable hereunder, said failure continuing for a period of 3 days after the same is due;
(c) A general assignment by Tenant or any guarantor for the benefit of creditors;
(d) The filing of a voluntary petition in bankruptcy by Tenant or any guarantor, the filing of a voluntary petition for an arrangement, the filing of a petition, voluntary or involuntary, for reorganization, or the filing of an involuntary petition by Tenant's creditors or guarantors;
(e) Receivership, attachment, of other judicial seizure of the Premises or all or substantially all of Tenant's assets on the Premises;
(f) Failure of Tenant to maintain insurance as required by Paragraph 8.2;
(g) Any breach by Tenant of its covenants under Paragraph 6.2;
(h) Failure in the performance of any of Tenant's covenants, agreements or obligations hereunder (except those failures specified as events of Default in other Paragraphs of this Paragraph 13.1 which shall be governed by such other Paragraphs), which failure continues for 15 days after written notice thereof from Landlord to Tenant provided that, if Tenant has exercised reasonable diligence to cure such failure and such failure cannot be cured within such 15 day period despite reasonable diligence, Tenant shall not be in default under this subparagraph unless Tenant fails thereafter diligently and continuously to prosecute the cure to completion;
(i) Any transfer of a substantial portion of the assets of Tenant, or any incurrence of a material obligation by Tenant, unless such transfer or obligation is undertaken or incurred in the ordinary course of Tenants business or in good faith for equivalent consideration, or with Landlord's consent; and
(j) The actual or attempted revocation or repudiation of any letter of credit securing Tenant’s obligations hereunder.
13.2 Remedies. In the event of any Default by Tenant, Landlord shall have the remedies set forth in the Addendum attached hereto entitled "Landlord's Remedies in Event of Tenant Default".
13.3 Late Charges . Tenant hereby acknowledges that late payment by Tenant to Landlord of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, if any installment of rent or other sum due from Tenant shall not be received by Landlord or Landlord's designee within 5 days after such amount shall be due, then, without any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge equal to three percent (3%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's Default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of exercise of said power (all of which are herein called "condemnation"), this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the floor area of the Premises, or more than 25% of the portion of the Common Areas designated for Tenant's parking, is taken by condemnation, Tenant may, at Tenant's option, to be exercised in writing within thirty (30) days after Landlord shall have given Tenant written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Tenant does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent and Additional Rent shall be reduced in the same proportion as the rentable floor area of the Premises taken bears to the total rentable floor area of the Premises. No reduction of Base Rent shall occur if the condemnation does not apply to any portion of the Premises. Any award for the taking of all or any part of the Premises under the power of eminent domain or any payment made under threat of the exercise of such power shall be the property of Landlord, provided, however, that Tenant shall be entitled to any compensation, separately awarded to Tenant for Tenant's relocation expenses and/or loss of Tenants trade fixtures. In the event that this Lease is not terminated by reason of such condemnation, Landlord shall to the extent of its net severance damages in the condemnation matter, repair any damage to the Premises caused by such condemnation authority.
15. Estoppel Certificate and Financial Statements.
15.1 Estoppel Certificate . Each party (herein referred to as "Responding Party") shall within 10 days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party, to the extent it can truthfully do so, an estoppel certificate in the form attached hereto, plus such additional information, confirmation a/or statements as be reasonably requested by the Requesting Party.
15.2 Financial Statement. If Landlord desires to finance, refinance, or sell the Building, the Corporate Center, the Real Property, or any part thereof, Tenant and all Guarantors shall deliver to any potential lender or purchaser designated by Landlord such financial statements of Tenant and such Guarantors as may be reasonably required by such lender or purchaser, including but not limited to Tenant's financial statements for the past 3 years. All such financial statements shall be received by Landlord and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
16. Additional Covenants and Provisions .
16.1 Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall not affect the validity of any other provision hereof.
16.2 Interest on Past-Due Obligations. Any monetary payment due Landlord hereunder not received by Landlord within 10 days following the date on which it was due shall bear interest from the date due at 12% per annum, but not exceeding the maximum rate allowed by law in addition to the late charge provided for in Paragraph 13.3.
16.3 Time of Essence . Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.
16.4 Landlord Liability . Tenant, its successors and assigns, shall not assert nor seek to enforce any claim for breach of this Lease against any of Landlord's assets other than Landlord's interest in the Corporate Center. Tenant agrees to look solely to such interest for the satisfaction of any liability or claim against Landlord under this Lease. In no event whatsoever shall Landlord (which term shall include, without limitation, all Landlord Entities and any general or limited partner, trustee, beneficiary, officer, director, or stockholder of Landlord and of all Landlord Entities) ever be personally liable for any such liability. In addition, Tenant hereby waives the provisions and protections of California Civil Code Sections 1932(2), 1933(4), 1941, 1941.1, 1941.3, 1941.4, 1942 and 1945. Landlord shall remain creditworthy for the duration of the Lease.
16.5 No Prior or Other Agreements. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and supersedes all oral, written prior or contemporaneous agreements or understandings.
16.6 Notice Requirements. All notices required or permitted by this Lease shall be in writing and may be delivered in person (by hand or by messenger or courier service) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission during normal business hours, and shall be deemed sufficiently given if served in a manner specified in the Paragraph 16.6. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notice purposes. Either Party may by written notice to the other specify a different address for notice purposes, except that upon Tenant's taking possessing of the Premises, the Premises shall constitute Tenant's address for the purpose of mailing or delivering notices to Tenant. A copy of all notices required or permitted to be given to Landlord hereunder shall be concurrently transmitted to such party or parties at such addresses as Landlord may from time to time hereafter designate by written notice to Tenant.
16.7 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail, the notice shall be deemed given 48 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the United States Postal Service or courier. If any notice is transmitted by facsimile transmission or similar means, the same shall be deemed served or delivered upon telephone or facsimile confirmation of receipt of the transmission thereof, provided a copy is also delivered via hand or overnight delivery or certified mail. If notice is received on a Saturday or a Sunday or a legal holiday, it shall be deemed received on the next business day.
16.8 Waivers. No waiver by any party of a Default by the other party shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default by that other party of the same or any other term, covenant or condition hereof.
16.9 Holdover . Tenant has no right to retain possession of the Premises or any part thereof beyond the expiration or earlier termination of this Lease. If Tenant holds over with the consent of Landlord: (i) the Base Rent payable shall be increased to 175% of the Base Rent applicable during the month immediately preceding such expiration or earlier termination; (ii) Tenant's right to possession shall terminate on 30 days notice from Landlord and (iii) all other terms and conditions of this Lease shall continue to apply. Nothing contained herein shall be construed as a consent by Landlord to any holding over by Tenant. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all claims, demands, actions, losses, damages, obligations, costs and expenses, including, without limitation, attorneys' fees incurred or suffered by Landlord or any Landlord Entities by reason of Tenant's failure to surrender the Premises on the expiration or earlier termination of this Lease in accordance with the provisions of this Lease.
16.10 Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies in law or in equity.
16.11 Binding Effect: Choice of Law . This Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in San Francisco or Alameda County, California.
16.12 Landlord. The covenants and obligations contained in this Lease on the part of Landlord are binding on Landlord, its successors and assigns, only during and in respect of their respective period of ownership of such interest in the Corporate Center. In the event of any transfer or transfers of such title to the Corporate Center, Landlord (and in case of any subsequent transfers or conveyances, the then grantor) shall be concurrently freed and relieved from and after the date of such transfer or conveyance, without any further instrument or agreement, of all liability with respect to the performance of any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed.
16.13 Attorneys' Fees and Other Costs. If any Party brings an action or proceeding to enforce the terms hereof or declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding shall be entitled to reasonable attorneys' fees. The term "Prevailing Party" shall include, without limitation, a Party who substantially obtains or defeats the relief sought. Landlord shall be entitled to attorneys' fees, costs and expenses incurred in preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting breach. Tenant shall reimburse Landlord on demand for all reasonable legal, engineering and other professional services expenses incurred by Landlord in connection with all requests by Tenant for consent or approval hereunder, except for Landlord’s requests for Tenant’s execution of Estoppel Certificates.
16.14 Landlord's Access; Showing Premises; Repairs. Landlord and Landlord's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times upon reasonable notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises or to the Building, as Landlord may reasonably deem necessary. Landlord may at any time place on or about the Premises or Building any ordinary "For Sale" signs and Landlord may at any time during the last 180 days of the term hereof place on or about the Premises any ordinary "For Lease" signs. All such activities of Landlord shall be without abatement of rent or liability to Tenant.
16.15 Signs. Tenant shall not place any signs at or upon the exterior of the Premises or the Building, except that Tenant may, with Landlord's prior written consent and in Landlord’s discretion, install (but not on the roof) such signs as are reasonably required to advertise Tenant's own business so long as such signs are in a location designated by Landlord and comply with sign ordinances and the signage criteria established for the Corporate Center by Landlord.
16.16 Termination: Merger. Unless specifically stated otherwise in writing by Landlord, the voluntary or other surrender of this Lease by Tenant, the mutual termination or cancellation hereof, or a termination hereof by Landlord for Default by Tenant, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, Landlord shall, in the event of any such surrender, termination or cancellation, have the option to continue any one or all of any existing subtenancies, by delivery of written notice to the holder of any such lesser interest that Landlord elects to have such interest continue. Landlord's failure within thirty (30) days following any such event to make such a written election shall constitute Landlord's election to have such event constitute the termination of such interest.
16.17 Quiet Possession . Upon payment by Tenant of Base Rent, Additional Rent and all other Rent for the Premises and the performance of all of the covenants, conditions and provisions on Tenant's part to be observed and performed under this Lease, Tenant shall have quiet possession (“Quiet Possession”) of the Premises for the entire term hereof subject to all of the provisions of this Lease.
16.18 Subordination; Attornment; Non-Disturbance.
(a) Sub ordination. This Lease shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or mortgage (collectively, "Mortgage") now or hereafter placed by Landlord upon the Real Property, to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. Tenant agrees that any person holding any Mortgage shall have no duty, liability or obligation to perform any of the obligations of Landlord under this Lease for as long as such person does not become an owner of, or entitled to control of, the Property or the Corporate Center through foreclosure of such Mortgage. In the event of Landlord's default with respect to any such obligation, Tenant will give any Lender, whose name and address have previously in writing been furnished Tenant, notice of a default by Landlord. Tenant may not exercise any remedies for default by Landlord unless and until Landlord and the Lender shall have received written notice of such default and a reasonable time (not less than sixty (60) days) shall thereafter have elapsed without the default having been cured. If any Lender shall elect to have this Lease superior to the lien of its Mortgage and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such Mortgage. The provisions of a Mortgage relating to the disposition of condemnation and insurance proceeds shall prevail over any contrary provisions contained in this Lease.
(b) Attornment. Subject to the non-disturbance provisions of subparagraph C of this Paragraph 16.18, Tenant agrees to attorn to a Lender or any other party who acquires ownership of the Premises by reason of a foreclosure of a Mortgage. In the event of such foreclosure, such new owner shall not: (i) be liable for any act or omission of any prior landlord or with respect to events occurring prior to acquisition of ownership, (ii) be subject to any offsets or defenses which Tenant might have against any prior Landlord, or (iii) be liable for security deposits or be bound by prepayment of more than one month's rent, except as agreed to between such new owner and Tenant.
(c) Non - -Disturbance. With respect to any Mortgage entered into by Landlord after the execution of this Lease, Tenant's subordination of this Lease shall be subject to receiving assurance (a "non-disturbance agreement") from the Mortgage holder that Tenant's possession and this Lease will not be disturbed so long as Tenant is not in Default and attorns to the record owner of the Premises.
(d) Self-Executing. The agreements contained in this Paragraph 16.18 shall be effective without the execution of any further documents; provided, however, that upon written request from Landlord or a Lender in connection with a sale, financing or refinancing of Premises, Tenant and Landlord shall execute such further writings as may be reasonably required to separately document any such subordination or non-subordination, attornment and/or non-disturbance agreement as is provided for herein, as long as Tenant’s obligations hereunder are not expanded. Subject to the provisions of Section 16.18, Landlord is hereby irrevocably vested with full power to subordinate this Lease to a Mortgage.
16.19 Rules and Regulations . Tenant agrees that it will abide by, and to cause its employees, suppliers, shippers, customers, tenants, contractors and invitees to abode by all the rules and regulations attached hereto as Exhibit C ("Rules and Regulations") which Landlord may change from time to time for the management, safety, care,
and cleanliness of the Common Areas, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Corporate Center and their invitees. Landlord shall not be responsible to Tenant for the non-compliance with said Rules and Regulations by other tenants of the Corporate Center.
16.20 Security Measures . Tenant acknowledges that the rental payable to Landlord hereunder does not include the cost of guard service or other security measures. Landlord has no obligations to provide same. Tenant assumes all responsibility for the protection of the Premises, Tenant, Tenant Entities, and each of their agents and invitees, and their property, from the acts of third parties.
16.21 Reservations . Landlord reserves the right to grant such easements that Landlord deems necessary and to cause the recordation of parcel maps, so long as such easements and maps do not reasonably interfere with the use of the Premises by Tenant. Tenant agrees to sign any documents reasonable requested by Landlord to effectuate any such easements or maps.
16.22 Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.
16.23 Offer. Preparation of this Lease by either Landlord or Tenant or Landlord's agent or Tenant's agent and submission of same to Tenant or Landlord shall not be deemed an offer to lease. This Lease is not intended to be binding until executed and delivered by all Parties hereto.
16.24 Amendments. This Lease may be modified only in writing, signed by the parties in interest at the time of the modification.
16.25 Multiple Parties . Except as otherwise expressly provided herein, if more than one person or entity is named herein as Tenant, the obligations of such persons shall be the joint and several responsibility of all persons or entities named herein as such Tenant.
16.26 Authority. Each person signing on behalf of Landlord or Tenant warrants and represents that she or is authorized to execute and deliver this Lease and to make it a binding obligation of Landlord or Tenant.
The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.
| Landlord: | Tenant: |
| AMB PROPERTY, L.P., | ABGENIX, INC., a Delaware corporation |
| a Delaware limited partnership | |
By: AMB Property Corporation,
a Maryland corporation, its general partner
| | By: | /s/ John L. Rossi
| By: | /s/ Kurt Leutzinger
|
| | | |
| | | John L. Rossi | | |
| | | | | |
| | Its: | Senior Vice President | Its: | Chief Financial Officer
|
| Executed at: |
| Executed at: |
|
| on: |
| on: |
|
| | | | | | | | |
| Landlord's Address: | Billing Address: |
| Pier 1, Bay 1 | |
San Francisco, CA 94111
|
|
|
|
| |
|
Property Management Address:
|
|
| 385 Oyster Point Blvd., Suite 9B | |
| South San Francisco, CA 94080 | Phone:__________________________________ |
| Tel: 650 873-1729 | |
| | Legal Notice Address:
|
| | Kurt Leutzinger, Esquire
|
| | Abgenix, Inc.
|
| | 6701 Kaiser Drive
|
| | Fremont, CA 94555
|
| | Phone:__________________________________
|
| | Fax:____________________________________
|
| | Peter T. Healy, Esquire
|
| | O’Melveney & Meyers
|
| | Embarcadero Center West
|
| | 275 Battery Street
|
| | San Francisco, CA 94111
|
| | Phone:__________________________________
|
| | Fax:____________________________________ |
Exhibit A
Diagram of Premises
| Initial ____________ |
| ____________ |
