EXHIBIT 99.1
INDUSTRIAL BUILDING LEASE
3294 WEST BAYSHORE, PALO ALTO, CALIFORNIA
TABLE OF CONTENTS
PARTIES............................................................. 1
PREMISES............................................................ 1
TERM................................................................ 1
RENEWAL............................................................. 2
HOLDOVER............................................................ 2
RENT................................................................ 2
LATE CHARGES........................................................ 3
SECURITY DEPOSIT.................................................... 4
USE OF PREMISES..................................................... 4
COMPLIANCE WITH LAW................................................. 45
ALTERATIONS AND ADDITIONS........................................... 5
LIENS............................................................... 6
REPAIRS AND MAINTENANCE............................................. 6
ASSIGNMENT AND SUBLETTING........................................... 7
HOLD HARMLESS....................................................... 9
RELEASE FROM LIABILITY/WAIVER OF SUBROGATION........................ 11
INSURANCE........................................................... 112
SERVICES AND UTILITIES.............................................. 12
PERSONAL PROPERTY TAXES............................................. 13
RULES AND REGULATIONS............................................... 13
ENTRY BY LANDLORD................................................... 13
DESTRUCTION/RECONSTRUCTION.......................................... 13
DEFAULT............................................................. 15
REMEDIES............................................................ 16
EMINENT DOMAIN...................................................... 17
ESTOPPEL CERTIFICATE................................................ 17
SUBORDINATION/NONDISTURBANCE ....................................... 17
PARKING............................................................. 18
AUTHORITY........................................................... 18
GENERAL PROVISIONS.................................................. 19
BROKERS............................................................. 21
NONRECOURSE OBLIGATIONS............................................. 21
LIST OF EXHIBITS.................................................... 22
INDUSTRIAL BUILDING LEASE
PARTIES
1. THIS LEASE, dated for reference purposes only, September 30, 2004, is
made by and between West Bayshore Associates, a general partnership, Sigrid S.
Banks, Frank Lee Crist, Jr., Allen W. Koering and George O. McKee (herein
collectively "Landlord") and Connetics Corporation, a Delaware Corporation
(herein "Tenant").
PREMISES
2. Landlord leases to Tenant and Tenant hires from Landlord for the term,
at the rental and upon the conditions in this Industrial Building Lease (herein
"Lease") a portion of the real property commonly known as 3294 West Bayshore
Avenue, Palo Alto, Santa Clara County, California as shown on Exhibit A,
attached hereto, and incorporated herein by this reference. The Premises
consists of Thirteen Thousand Four Hundred Sixty Four (13,464) rentable square
feet in the building which contains approximately Forty Two Thousand Four
Hundred Thirty Two (42,432) rentable square feet. Landlord reserves the right of
access to and the use of the roof, exterior walls, stairways, utility closets
and other common areas above and beneath the Premises together with the right
from time to time to install, maintain, use, repair and repair pipes ducts
conduits and wires leading through the Premises in locations which will not
materially interfere with Tenant's use thereof or access thereto and which serve
other parts of the building and/or other tenants therein. It is further
understood and agreed that the area set forth in this Paragraph 2 is approximate
only and that neither party shall have a claim against the other for any
variance between the actual area and that set forth above.
TERM
3. (a) The term of the Lease shall be a period of three (3) months,
commencing on October 1, 2004, and expiring (unless sooner terminated as
provided herein) at midnight on the 31st day of December, 2004, herein called
the "lease term" or "term".
(b) Notwithstanding said commencement date, if for any reason
Landlord cannot deliver possession of the Premises to Tenant on said date,
Landlord shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease or the obligations of Tenant hereunder or
extend the term hereof, but in such case Tenant shall not be obligated to pay
rent until possession is tendered to Tenant; provided however, that if Landlord
shall not have delivered possession of the Premises by November 1, 2004, Tenant
may, at Tenant's option, by written notice to Landlord within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder.
(c) If Landlord permits Tenant to occupy the Premises or a portion
thereof prior to the commencement date of the term for the purpose of installing
Tenant's improvements, fixtures, furniture and equipment, such occupancy shall
be subject to all the provisions of this Lease. Said early possession shall not
advance the commencement or termination dates set forth above. No Base Rent
shall be due from Tenant, however, commencing on the date of Tenant's
construction of its tenant improvements, Tenant shall pay to Landlord the
additional rents referred to in Paragraph 6(b), below.
(d) Tenant shall give Landlord ten (10) days prior
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written notice of Tenant's intention to take possession of the Premises and
Tenant shall deliver to Landlord the insurance certificates required by
Paragraph 17 hereof prior to taking possession of the Premises.
RENEWAL
4. (a) In the event Tenant shall not then be in material default
hereunder and shall have made or reasonably cured all previous rental payments
in a timely manner (no more than one payment being delinquent), Tenant shall
have the right, not earlier than two (2) months prior to the date of expiration
of the term of this Lease and not later than one (1) month prior to the day of
the expiration of the term of this Lease, to renew the term of this Lease for a
further term of one (1) monthor more months, at Tenant's election, from the date
of expiration of the term of this Lease.
(b) Such election shall be made by Tenant by serving upon Landlord a
notice in writing to the effect that Tenant elects to renew and extend the term
of this Lease for such extended term.
(c) In the event Tenant shall elect to renew this Lease and shall
serve notice of such election, this Lease shall be extended for one (1) or more
additional monthmonths, as Tenant may elect, from the date of expiration of the
term of this Lease.
(d) The base rental and all other terms and conditions of the
original lease agreement shall apply to the extended term.
(e) Notwithstanding the above, in no event may Tenant extend the
term of this Lease beyond March 31, 2005.
HOLDOVER
5. (a) Holding over after the expiration of the term of this Lease, or
any oral extension thereof, with the consent of Landlord, shall be a tenancy
from month to month, and the rentals and additional rentals upon the covenants,
conditions, limitations, and agreements are subject to the exceptions and
reservations contained in this Lease. The rental rate is to be the same rate
last charged hereunder.
(b) If Tenant remains in possession without Landlord's consent after
termination of the Lease, by lapse of time or otherwise, Tenant shall pay
Landlord for each day of such retention one-twentieth (1/20th) of the amount of
the monthly rental for the last month prior to such termination and Tenant shall
also pay all costs, expenses and damages sustained by Landlord by reason of such
retention, including, without limitation, claims made by a succeeding tenant
resulting from Tenant's failure to surrender the Premises.
RENT
6. (a) Tenant agrees to pay Landlord as Base Rent for the Premises
during the term of this Lease, the following sums per month:
Months Base Rent/Month
------ ---------------
01-03 $ 13,394.00
The Base Rent in the amount of $13,394.00 for the first month of this lease
shall be payable on execution of this lease. All other rents shall be payable in
advance and due on the first day of each and every month of the term of this
Lease.
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Rent for any period which is for less than one (1) month shall be a
prorated portion of the monthly installment stated herein, based upon a thirty
(30) day month. Said rental shall be paid, without prior notice or demand and
without deduction or offset, except as otherwise provided herein, in lawful
money of the United States of America to The Cortana Corporation, Trustee, at
800 El Camino Real, Suite 175, Menlo Park, California 94025 or at such other
place as Landlord may from time to time designate in writing.
(b) As additional rent, Tenant shall pay to Landlord its prorata
share of real property taxes and assessments (general and special), in lieu real
property taxes, rent taxes, gross receipt taxes (whether assessed against
Landlord or assessed against Tenant and collected by Landlord, or both)
attributable to the Premises. Such taxes shall be further pro-rated if the
commencement and termination dates of this Lease do not correspond to the tax
year.
As additional rent, Tenant shall pay to Landlord its prorata
share of the cost of the insurance policy or policies referred to in Paragraph
17(b) attributable to the Premises, further pro-rated if the commencement and
termination dates of this Lease do not correspond to the periods covered by such
policy or policies.
The above additional rents shall be due and payable fifteen
(15) business days after Landlord has furnished Tenant with a photocopy of the
tax bill or premium notice, as the case may be, but in no event earlier than
fifteen (15) calendar days prior to delinquency. Landlord will furnish Tenant
such photocopies promptly upon receipt of the tax bill or premium notice, as the
case may be. Any sums not paid on or before such due date shall bear interest as
the highest rate allowed by law or the penalties that are imposed by the taxing
authorities for delinquent payments, whichever is greater. Additionally, if
Tenant fails to pay such additional rent on or before the due dates described
above, Landlord reserves the right to require Tenant to pay the delinquent
payment and future payments of these additional rents by cashier's checks or
other certified funds.
As further additional rent Tenant shall pay to Landlord a
management fee equal to two percent (2%) of the Base Rent on a monthly basis
with the monthly Base Rent and reimburse Landlord for its prorata share of the
cost of maintenance of the landscaping on a monthly basis. Other maintenance
provided for the Premises by Landlord, including, but not limited to, the
parking lot sweeping and maintenance shall be billed to Tenant on a monthly
basis as such expenses are incurred by Landlord and Tenant shall pay such
additional rent to Landlord with its Base Rent. For purposes of this Lease, it
is agreed that Tenant's prorata share of taxes, insurance, and maintenance
expenses is 31.73%.
LATE CHARGES
7. Tenant agrees that all Minimum Base Rent not received by Landlord
within five (5) calendar days of the due date shall be considered delinquent and
agrees to pay a late charge equal to ten percent (10%) of the delinquent payment
within five (5) business days after receipt of written notice of non receipt of
payment. Rent mailed and bearing a U. S. Postal Service postmark of the third
(3rd) of a month shall not be considered delinquent no matter when received.
Additionally, any delinquent payments not paid within thirty (30) days of the
original due date shall bear interest at the lower of the maximum rate then
allowed by law or two points over the reference rate (prime rate) charged by the
San Francisco Main Branch of the Bank of America.
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SECURITY DEPOSIT
8. (a) Tenant shall deposit with Landlord the total sum of Thirteen
Thousand Four Hundred Ninety Four and 00/100 Dollars ($13,494.00) on execution
of this Lease. Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all of the terms, covenants, and conditions of this
Lease. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of rent,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this security deposit for the payment of any rent or any other sum in
default, or for the payment of any reasonable amount which Landlord may spend or
become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
tenant's default. If any portion of said deposit is so used or applied, Tenant
shall, within five (5) days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the security deposit to its original
amount and Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep this security deposit separate from its
general funds, and Tenant shall not be entitled to any interest on said deposit.
(b) If Landlord's interest in this Lease is terminated, Landlord
shall transfer said deposit to Landlord's successor in interest and Landlord's
successor agrees to be bound by the terms of this Lease.
(c) Landlord will return any unused portion of the security deposit
to Tenant within fifteen (15) calendar days of the expiration of the term of
this Lease, as the same may have been extended, or earlier termination of this
Lease.
USE OF PREMISES
9. (a) Tenant shall use the Premises for general office, storage and
distribution, marketing and other legally and related uses and shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord.
(b) Tenant shall not knowingly do or permit anything to be done in
or about the Premises nor bring or keep anything therein which will:
(i) increase the existing rate of or affect any fire or other
insurance upon the building or any of its contents unless Tenant agrees to pay
such increased rate, or
(ii) cause cancellation of any insurance policy covering said
building or any part thereof or any of its contents.
Tenant shall not knowingly use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not knowingly commit or suffer to be committed any waste in or upon the
Premises. Tenant shall not place any loads upon the floors, walls, or roof which
endanger the structure or place any harmful liquids or other toxic waste in the
drainage system of the Premises or in any other place in on or about the
Premises. No materials, supplies, equipment, finished products or semi-finished
products, raw materials or articles of any nature shall be stored upon or
permitted to remain on any portion of the Premises outside of the building,
except as approved by the City of Palo Alto.
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COMPLIANCE WITH LAW
10. Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances, and governmental rules, regulations
or requirements, pertaining to the specific use of the Premises by Tenant,
including, but not limited to, those relating to the protection of the
environment and storage and disposal of toxic materials, now in force or which
may hereafter be in force except that Tenant shall not be required to make
structural changes unrelated to or affected by Tenant's improvements or acts. In
the event any alterations made by Tenant, when combined with alterations made by
others in the building in which the Premises are located, triggers a requirement
to upgrade the building to comply with new flood control ordinances and codes,
Tenant shall be responsible for the costs of such upgrades in the same
proportion as the value of Tenant's permits bears to the total value of all
permits issued by the City of Palo Alto for all the alterations which trigger
the requirement. Except as set forth herein, Landlord shall be responsible for
all costs and expenses necessary to comply with all laws, statutes, ordinances,
and governmental rules, regulations or requirements where the need for such
compliance was not caused by Tenant's use of the Premises or Tenant's acts in
connection with the Premises. Notwithstanding the above, Landlord shall not be
responsible for any costs or expenses necessary to comply with the Americans
with Disabilities Act other than as the same relates to the restrooms, parking
lot, landscaping areas, walkways, driveways, sidewalks, and other areas outside
of the building in which the Premises are located. Except as set forth above,
Tenant shall be responsible for compliance with the Americans with Disabilities
Act. Tenant shall also comply with the requirements of any board of fire
insurance underwriters or other similar bodies now or hereafter constituted
relating to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not required or affected by Tenant's improvements
or acts. The judgment of any court of competent jurisdiction or the admission of
Tenant in any action against Tenant, whether Landlord be a party thereto or not,
that Tenant has violated any law, statute, ordinance or governmental rule,
regulation or requirement, shall be conclusive of that fact as between the
Landlord and Tenant.
ALTERATIONS AND ADDITIONS
11. (a) Tenant shall not make or allow any alterations, additions or
improvements of or to the Premises without Landlord's prior written consent,
which consent shall not unreasonably be withheld. Landlord's consent shall not
be required for any non structural tenant improvements costing less than Ten
Thousand Dollars ($10,000.00). Any such alterations, additions or improvements,
including, but not limited to, wall covering, paneling and built-in cabinet
work, but excepting movable furniture, and trade fixtures, shall become a part
of the realty, shall belong to Landlord and shall be surrendered with the
Premises at expiration or termination of the Lease. If Landlord consents to any
such alterations, additions or improvements by Tenant, they shall be made by
Tenant at Tenant's sole cost and expense, and any contractor or person selected
by Tenant to perform the work shall first be approved of, in writing, by
Landlord, which approval shall not be unreasonably withheld. Landlord further
reserves the right to require all plans for structural improvements and
alterations to be reasonably approved by its structural engineer. No such work
shall be allowed to commence until three (3) days have elapsed from the
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date of Landlord's consent. Thirty (30) days prior to the termination of this
Lease, Tenant shall provide to Landlord a complete and accurate set of "As
Built" tenant improvement drawings showing any alterations and additions made by
Tenant, including, but not limited to floor plan drawings, HVAC drawings,
electrical drawings, sprinkler system drawings, and plumbing system drawings.
Upon expiration, or sooner termination, of the term hereof, Tenant shall, upon
written demand by Landlord given at least fifteen (15) days prior to the end of
the term, promptly remove any alterations, additions or improvements made by
Tenant and designated by Landlord to be removed at the time Landlord gave its
written consent to the installation of such alterations, additions or
improvements. If no such consent was required, Landlord shall have the right to
direct Tenant to remove same provided Landlord gives written notice to Tenant
within the above the above time period. Such removal and repair of any damage to
the Premises caused by such removal shall be at Tenant's sole cost and expense.
(b) Tenant shall not place, or permit to be placed, upon the
Premises, any signs, advertisements or notices without the written consent of
Landlord first had and obtained unless such signs, advertisements or notices are
required by law. Tenant shall also not place or permit to be placed in, upon, or
about the Premises any signs not approved by the City of Palo Alto or other
governing authority where such approval is required.
LIENS
12. Tenant shall keep the Premises and the property in which the Premises
are situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. In the event a mechanic's lien is
recorded against the Premises and is not removed within ten (10) business days
after Landlord gives written notice to Tenant to cause the removal of same,
Landlord may require Tenant to provide Landlord, at Tenant's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half
(1-1/2) times the estimated cost of any improvements, additions, or alterations
by Tenant, to insure Landlord against liability for mechanic's and materialmen's
liens and to insure completion of the work if the estimated cost exceeds Twenty
Five Thousand Dollars ($25,000.00). Landlord shall also have the right to post
and maintain on the Premises such notices of nonresponsibility as may be
required by law to protect Landlord's rights herein.
REPAIRS AND MAINTENANCE
13. (a) Except as set forth herein, Tenant agrees to accept the Premises
in an "As Is" condition. During the Term of this Lease Tenant shall at Tenant's
sole cost and expense, keep the Premises and every part thereof in good
condition and repair, unless caused by a casualty required to be insured
pursuant to Paragraph 17 hereof or by any inherent defects. Notwithstanding the
above, Landlord shall repair and maintain the roof covering and bill Tenant its
prorata share of such maintenance costs. Further notwithstanding the above,
Tenant's obligation to repair the HVAC system shall be limited to Twenty Five
Hundred Dollars ($2,500) per year per unit. Landlord shall be responsible for
any excess costs of repairs or maintenance of an HVAC unit or may elect to
replace it. Tenant further agrees to maintain the Premises and make minor
repairs thereto in conformance with any reasonable requirements of any
institutional lender of Landlord. Should Tenant at any time during the term of
this Lease or any renewal or extension of the term fail to maintain the Premises
or make any repairs or replacements as required herein after reasonable written
notice to Tenant, Landlord may, at its option, enter the Premises and perform
such maintenance or make such repairs or replacements for the account of Tenant.
Any
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sums expended by Landlord in so doing, together with interest thereon at the
highest rate allowed by law from the date expended by Landlord until the date
repaid by Tenant, shall be due and payable by Tenant to Landlord within fifteen
(15) business days after demand of Landlord. Tenant shall upon the expiration or
sooner termination of this Lease surrender the Premises to the Landlord in good
condition, damage from causes beyond the reasonable control of the Tenant and
normal wear and tear excepted. Unless specifically provided in an addendum to
this Lease, Landlord shall have no obligation to alter, remodel, improve,
repair, decorate or paint the Premises or any part thereof and the parties
hereto affirm that Landlord has made no representations to Tenant respecting the
condition of the Premises or the building in which the Premises are located
except as specifically herein set forth. Landlord shall construct a demising
wall separating the Premises from the remainder of the building in which the
Premises are located at Landlord's sole cost and expense.
(b) As set forth in Paragraph 6(b), Landlord shall cause the
landscaping to be maintained and Tenant shall reimburse Landlord for its prorata
share as provided therein. Additionally, notwithstanding the above provisions of
Paragraph 13(a), Landlord shall maintain the structural integrity of the
building, including, without limitation, the foundation, exterior walls, and
roof (except as provided in Paragraph 13(a)) in which the Premises are located,
unless such maintenance and repairs are caused in part or in whole by the act,
neglect, fault or omission of any duty by the Tenant, its agents, servants,
employees or invitees, in which case Tenant shall pay to Landlord the reasonable
cost of such maintenance and repairs. Tenant shall give Landlord written notice
of any required repairs or maintenance. Landlord shall not be liable for any
failure to repair or to perform any maintenance unless such failure shall
persist for an unreasonable time after written notice. Except as provided in
Paragraph 22 hereof, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
arising from the making of any repairs, alterations or improvements to any
portion of the building or the Premises or to fixtures, appurtenances and
equipment therein. Tenant waives the right to make repairs at Landlord's expense
or terminate this Lease under any law, statute or ordinance now or hereafter in
effect for Landlord's failure to maintain the Premises, provided Landlord
commences or arranges for commencement of the required repairs or maintenance
within five (5) business days of receipt of Tenant's written notice; provided,
however, that Tenant may make emergency repairs if necessary to prevent a
disruption in Tenant's business or imminent danger to its employees and
property. In no event shall Tenant's costs of such repairs or maintenance be
deducted or offset from any amounts due from Tenant to Landlord unless Landlord
fails to make such repairs for an unreasonable period of time following written
notice. Landlord shall reimburse Tenant for the reasonable costs of such repairs
or maintenance within fifteen (15) days after receipt of copies of invoices for
same.
ASSIGNMENT AND SUBLETTING
14. (a) Tenant shall not, voluntarily or by operation of law, assign, or
transfer Tenant's interest under this Lease or in the Premises nor sublease all
or any part of the Premises or allow any other person or entity (except Tenant's
employees, agents and invitees) to occupy or use all or any part of the Premises
without the prior written consent of Landlord. Landlord's consent shall not be
unreasonably withheld or delayed. Without in any way limiting Landlord's right
to refuse to give consent under this Paragraph 14, Landlord's refusal to give
consent shall not be deemed unreasonably
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withheld if:
(i) The character, reputation and financial responsibility of
the proposed new Tenant is not reasonably satisfactory in Landlord's
judgment. In connection with any such assignment Tenant shall deliver to
Landlord certified financial statements of Tenant and the new proposed
tenant showing their then financial condition as required hereunder.
(ii) The character and reputation of the proposed sub-tenant
is not reasonably satisfactory in Landlord's judgment.
(iii) The proposed new tenant or sub-tenant fails to agree in
writing to assume and be bound by all the terms and provisions of this
Lease.
(b) Additionally, as a condition to Landlord's consent to an
assignment or subletting it is hereby agreed that there shall be paid to
Landlord the following: To the extent any rental or other payments under such
sublease or assignment exceed the base rental payments payable under the terms
of this Lease, after Tenant has recovered any assignment or subleasing
commissions, and other costs of assigning or subleasing, and tenant improvement
costs related to such assignment or subletting, 100% of such excess shall be
paid to Landlord as such rental or other rental payments under such sublease or
assignment become due and payable under the terms of the assignment or
subletting.
(c) If Tenant hereunder is a corporation or at any time becomes a
corporation which, under the then current laws of the State of California, is
not deemed a public corporation, or is an unincorporated association or
partnership, the transfer, or assignment directly or indirectly of any stock or
interest in such corporation, association or partnership in the aggregate in
excess of forty-nine percent (49%) during the term hereof shall be deemed an
assignment within the meaning and provisions of Paragraph 14. Tenant shall
immediately report in writing any such transfer or assignment of any stock or
interest to Landlord.
(d) In the event Tenant proposes to transfer, assign, or sublet any
of Tenant's interests herein or enter into any license or concession agreement
or effectuate any change of ownership, Tenant shall thirty (30) days prior to
the proposed transaction supply to Landlord the following in writing:
(i) The name and address of the proposed assignee, transferee,
or sub-lessee.
(ii) All details as to the proposed assignment, subletting or
change of ownership including without limitation all of the terms and
conditions thereof including all sums or considerations to be paid.
(iii) A financial statement certified by an officer dated
within thirty (30) days of the date of notification of the proposed
transferee, assignee, sub-lessee, or the person or persons or entities
which will be involved in the proposed or change of ownership.
(iv) Within ten (10) days of any assignment or sub-lease
Tenant shall deliver to Landlord true, correct and complete copies of all
agreements, assignments, subleases and material documents pertaining
thereto, including any sales agreements.
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Anything contained in this Paragraph 14 to the contrary
notwithstanding, no transfer, assignment, sub-letting of any of Tenant's
interests herein shall be effective unless all of the above provisions are
complied with within the time limits provided.
(e) Notwithstanding any other provision contained in this Lease, in
the event Tenant desires to assign this Lease or sublet the Premises, Landlord
shall have the right, exercisable in Landlord's sole discretion by written
notice to Tenant within fifteen (15) after receipt of Tenant's written notice
and the information described in subparagraph 14(d) above, to terminate this
Lease as of the date Tenant proposes to have its assignment or subletting be
effective and enter into a new lease with a third party, including, but not
limited to, Tenant's proposed assignee or sub-lessee, without any liability to
Tenant. On such termination, this Lease shall be null and void as of the
termination date set forth in Landlord's notice or as of the date Tenant
actually surrenders possession of the Premises to Landlord, whichever is later;
provided however, each party shall be liable to the other for any liabilities
accrued up to the later of the above dates. Landlord acknowledges that Tenant
may not occupy the entire Premises at the inception of this Lease and therefore
agrees that the provisions of this subparagraph 14.(e) shall not apply to any
initial subletting of space within the Premises that Tenant has not previously
occupied itself.
(f) Any additional documentation reasonably required by Landlord
shall be prepared and executed by Tenant and its assignee or sub-lessee or
transferee as part of the assignment or sub-letting or transfer before it shall
be effected.
(g) Anything contained herein to the contrary notwithstanding,
regardless of whether or not Landlord's consent is required, no sub-letting or
assignment or transfer of any of Tenant's interests hereunder shall be deemed to
release Tenant or any guarantor from any liability under the terms of this
Lease, nor, after any such consent shall Landlord's failure to give Tenant or
guarantor notice of default under any of the terms and conditions of this Lease
release Tenant or guarantor from any liability hereunder. A consent to one
assignment, subletting, occupation or use shall not be deemed a consent to any
subsequent assignment, subletting, occupation or use. Any such purported
assignment, subletting, or permission to occupy or use without such consent from
Landlord shall be void and shall, at the option of Landlord, constitute a
default under this Lease.
(h) Notwithstanding any other provision of this Paragraph 14, it is
expressly agreed that Landlord's consent shall not be required for the
assignment of this Lease or the subletting of all or any portion of the Premises
to (a) any entity resulting from the merger or consolidation with Tenant or (b)
any subsidiary or affiliate of Tenant.
HOLD HARMLESS
15. (a) Tenant shall indemnify Landlord against and hold Landlord and
Landlord's property harmless from any and all liability, claims, loss, damages,
or expense, including reasonable counsel fees and costs, arising by reason of
the death or injury of any person, including Tenant or any person who is an
employee, agent, or customer of Tenant, or by reason of damage to or destruction
of any property, including property owned by Tenant or any person who is an
employee, agent, or customer of Tenant, caused or allegedly caused by:
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(i) Any cause whatsoever while such person or property is in
or on said Premises;
(ii) Some condition of said Premises for which Tenant is
responsible or for which Landlord is responsible and Landlord has not been
given notice thereof and reasonable time to correct;
(iii) Some act or omission on said Premises of Tenant or any
person in or on said Premises with the permission of Tenant; or
(iv) Tenant's use, storage, or disposal of hazardous wastes,
toxic substances, or related materials ("hazardous materials"). Hazardous
materials shall include, but not be limited to, substances defined as
"hazardous substances", "hazardous materials", or "toxic substances" in
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act; and those substances defined as
"hazardous wastes" in Section 25117 of the California Health and Safety
Code; in the regulations adopted and publications promulgated pursuant to
such laws; and in the Hazardous Material Storage Ordinance of the City of
Palo Alto, if any, as amended.
Tenant's indemnity with respect to hazardous materials shall
include, without limitation: (i) any damage, liability, fine, penalty, punitive
damages, cost or expenses arising from or out of any claim, action, suit or
proceeding for personal injury (including, without limitation, sickness, disease
or death), tangible property damage, nuisance, pollution, contamination, leak,
spill, release or other effect on the environment; and (ii) the cost of any
required or necessary investigation, repair clean-up, or treatment of the
Premises and/or the Property, and the preparation and implementation of any
closure, disposal, remedial or other required action in connection with the
Premises and/or the Property.
The indemnity of Tenant provided above shall survive the expiration
or earlier termination of this Lease but shall not apply to any damage: (1)
covered by insurance; (2) caused by a defect in the Premises; (3) caused by the
willful misconduct, negligence or omission of Landlord, its agents or employees;
or (4) caused by a breach of this Lease by Landlord.
(b) Tenant hereby assumes all risk of damage to property or injury
to persons in or upon the Premises, and Tenant hereby waives all claims in
respect thereof against Landlord, from any cause other than the following: (1)
the willful misconduct, negligence or omission of Landlord, its agents or
employees; (2) defects in the Premises; and (3) a breach of this Lease by
Landlord. Landlord and its agents shall not be liable for any damage to property
entrusted to employees of the building, nor for loss or damage to any property
by theft or otherwise, nor from any injury to or damage to persons or property
resulting from any cause whatsoever, unless caused by or due to the following:
(1) the willful misconduct, negligence or omission of Landlord, its agents or
employees; (2) defects in the Premises; and (3) a breach of this Lease by
Landlord.
(c) If any action or proceeding is brought against Landlord by
reason of any claim for which Tenant has an obligation to indemnify Landlord as
set forth above, Tenant shall defend Landlord therein at Tenant's expense by
counsel reasonably
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satisfactory to Landlord; provided however, Tenant shall control such defense.
(d) Landlord and its agents and employees shall not be liable for
interference with the light or other incorporeal hereditaments, or loss of
business by Tenant unless the same is caused by the gross negligence or willful
misconduct of Landlord, its agents, or employees. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or in the
buildings or of alleged defects in the building, fixtures or equipment, provided
that Tenant has actual knowledge of such matters.
(e) To the best knowledge of Landlord, except as set forth herein,
as of the date of this Lease there are no hazardous materials on, in, under or
about the Premises or the property on which the Premises are located (the
"Property"). Landlord hereby discloses to Tenant and Tenant acknowledges receipt
of said disclosure that the Premises contain non-friable asbestos. In the event
such asbestos must be removed or encapsulated, Landlord shall pay the costs
thereof, including, but not limited to, any disposal costs. Except with respect
to hazardous materials released on or under the Premises or Property by Tenant
or adjacent or nearby landowners, tenants, or occupants, Landlord shall
indemnify, defend with counsel reasonably satisfactory to Tenant, protect and
hold Tenant harmless from and against any and all liabilities, claims, losses,
damages, or expense, including reasonable counsel fees and costs, arising out
of, or based upon: (i) the presence of any hazardous materials or asbestos on,
under, in or about the Premises or the Property, unless such hazardous materials
are released onto the Premises or Property by Tenant or, after the date of this
Lease, by adjacent or nearby landowners, tenants, or occupants; or (ii) the
violation or alleged violation by Landlord of any laws, regulations, orders, or
permits relating to the use, generation, manufacture, installation, release,
discharge, storage or disposal of hazardous materials on, under, in or about the
Premises or the Property. This indemnity shall include, without limitation: (i)
any damage, liability, fine, penalty, punitive damages, cost or expenses arising
from or out of any claim, action, suit or proceeding for personal injury
(including, without limitation, sickness, disease or death), tangible property
damage, nuisance, pollution, contamination, leak, spill, release or other effect
on the environment; and (ii) the cost of any required or necessary
investigation, repair clean-up, or treatment of the Premises and/or the
Property, and the preparation and implementation of any closure, disposal,
remedial or other required action in connection with the Premises and/or the
Property, except for hazardous materials released on the Premises or the
Property by Tenant. Landlord shall also indemnify Tenant and hold Tenant
harmless from any and all liability, claims, loss, damages, or expense,
including reasonable counsel fees and costs, arising by reason of the gross
negligence of Landlord, its agents, or employees, a material breach of
Landlord's obligations under this Lease, and Landlord's breach of any
representation and/or warranty contained herein. Landlord's indemnity
obligations hereunder shall survive the expiration or earlier termination of
this Lease.
RELEASE FROM LIABILITY/WAIVER OF SUBROGATION
16. Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss of the type required by this Lease to
be insured against. Landlord and Tenant hereby agree to obtain any special
endorsements (including waivers of subrogation) required by their insurance
carriers in order to effectuate the foregoing mutual release.
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INSURANCE
17. (a) Tenant shall, at Tenant's expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against claims occurring in, on or about
the Premises and all areas appurtenant thereto. The limit of said insurance
shall not, however, limit the liability of Tenant hereunder. Tenant may carry
said insurance under a blanket policy, providing however, said insurance by
Tenant shall name Landlord as an additional insured. If Tenant fails to procure
and maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Tenant shall deliver to
Landlord prior to occupancy of the Premises copies of policies of liability
insurance required herein or certificates evidencing the existence and amount of
such insurance with loss payable clauses satisfactory to Landlord. No policy
shall be cancelable or subject to reduction of coverage except after fifteen
(15) days prior written notice to Landlord. The minimum acceptable amount of
comprehensive liability insurance is $3,000,000 per accident, and property
damage in an amount of not less than $1,000,000.00 per occurrence. The above
stated minimum levels of coverage are subject to amendment by Landlord upon
ninety (90) days written notice should the economic conditions, in the
discretion of Landlord, warrant adjustment thereof. Tenant may, at its own
expense, also insure or self insure its inventory, fixtures, equipment,
furniture, and its own Tenant improvements. Tenant acknowledges that Landlord
shall have no responsibility for insuring such items.
(b) Landlord shall carry and maintain, during the entire term,
including extensions hereof, fire and all risk insurance insuring the Premises
and the initial tenant improvements for their full replacement cost. Said
insurance policy or policies shall cover at least the following risks: fire,
smoke damage, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, malicious mischief, vandalism, aircraft, earthquake (if available at
commercially reasonable rates) and sprinkler leakage. Except for earthquake
coverage, the maximum deductible shall be Five Thousand Dollars ($5,000.00). The
deductible on any earthquake coverage shall not exceed 10% of the face amount of
the earthquake coverage. Additionally, such policy or policies shall have a loss
of rents (12 months) endorsement; provided however, if any institutional lender
of Landlord allows a lower amount, said coverage may be reduced to such lower
amount. Tenant shall pay to Landlord as additional rent, the cost of such policy
or policies pursuant to Paragraph 6(b). Any loss payable under such insurance
shall be payable to Landlord and any Lender holding an encumbrance on the
Premises. The proceeds from any such policy or policies for damages to the
Premises shall be used for the repair of the Premises except as set forth in
Paragraph 22.
(c) Insurance required under this Paragraph 17 shall be in companies
rated A+, Class X or better in "Best's Insurance Guide".
SERVICES AND UTILITIES
18. (a) Tenant shall provide and pay for its own utilities, janitorial
services, trash removal and all other material and services it desires in
connection with its occupation and use of the Premises. Tenant acknowledges that
it understands that Landlord is not obligated to provide services, materials or
supplies, including but not limited to janitorial services or maintenance
services, except as otherwise provided herein, to Tenant.
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(b) Tenant shall not connect with electric current except through
approved electrical outlets in the Premises or such additional electrical
outlets as may be installed by a licensed electrical contractor in conformance
with the then applicable building codes, any apparatus or device, for the
purpose of using electric current.
PERSONAL PROPERTY TAXES
19. Tenant shall pay before delinquency, all taxes levied or assessed and
which become payable during the term hereof upon all Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property located in
the Premises, except that which has been paid for by Landlord and is the
standard of the building. If any of the Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property are assessed and taxed with
the building, Tenant shall pay to Landlord its share of such taxes within ten
(10) days after delivery to Tenant by Landlord of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property.
RULES AND REGULATIONS
20. Intentionally omitted.
ENTRY BY LANDLORD
21. (a) Landlord reserves the right to enter the Premises at any time to
inspect the Premises, to submit the Premises to prospective purchasers or
tenants, to post notice of non-responsibility, and to alter, improve, maintain
or repair the Premises that Landlord deems necessary or desirable, all without
abatement of rent. Except in the cases of emergencies and to post notices of
nonresponsibility, Landlord shall give telephone notice twenty four (24) hours
in advance, unless Tenant waives such notice, prior to entering the Premises.
Landlord may erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, but shall not block the
entrance to the Premises nor interfere with Tenant's business or parking, except
as reasonably required for the particular activity by Landlord. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance, interference with quiet enjoyment, or other damage arising
out of Landlord's entry on the Premises as provided in this paragraph, except
damage, if any, resulting from the willful misconduct or negligence of Landlord
or its authorized representatives.
(b) In an emergency, Landlord shall have the right to use any means
which Landlord deems reasonably necessary to obtain entry to the Premises
without liability to Tenant, except for any failure to exercise due care for
Tenant's property. Any such entry to the Premises by Landlord shall not be
construed or deemed to be forcible or unlawful entry into or a detainer of the
Premises or an eviction of Tenant from the Premises or any portion thereof.
DESTRUCTION/RECONSTRUCTION
22. (a) If ten percent (10%) or less of the Premises is damaged by a
peril not required to be insured pursuant to Paragraph 17 (b), Landlord shall
promptly and diligently proceed to repair and restore the same to substantially
the same condition as existed prior to such damage or destruction; provided,
however, that should such damage be caused by the willful act, negligent act or
omission of any duty with respect to the same by Tenant, its agents, servants,
employees or invitees, Tenant, and not Landlord, shall be
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so obligated to repair and restore. If the Premises are damaged by a peril not
required to be insured pursuant to the provisions of Paragraph 17 (b) rendering
more than ten percent (10%) of the Premises unusable for the conduct of Tenant's
business, Landlord may, upon written notice, given to Tenant within thirty (30)
days after the occurrence of such damage, elect to terminate this Lease (the
effective date of such termination shall be as mutually agreed upon and if the
parties fail to agree on such a date, the effective termination date shall be
the date of the casualty); provided, however, Tenant may, within thirty (30)
days after receipt of such notice, elect to make any required repairs and/or
restoration, in which event this Lease shall remain in full force and effect,
and Tenant shall thereafter diligently proceed with such repairs and/or
restoration.
(b) If the Premises are damaged or destroyed by fire or other peril
required to be insured pursuant to Paragraph 17 (b), Landlord shall promptly and
diligently proceed to repair and restore the same to substantially the same
condition as existed prior to such damage or destruction; provided, however,
that Landlord shall not be obligated to repair and restore until either the
insurer acknowledges that the loss is covered by insurance and sufficient
proceeds of such insurance (plus the applicable deductible which Landlord shall
contribute) are available to Landlord to pay the costs (including a reasonable
allowance for contractor's profit and overhead not to exceed ten percent (10%)
of the repairs and/or restoration) or the Tenant agrees to pay such costs to
Landlord. If the existing laws do not permit the restoration, either party can
terminate this Lease immediately by giving notice to the other party.
If the cost of restoration exceeds the amount of insurance
proceeds (plus the applicable deductible), and Tenant has not agreed to pay the
cost of repairs and/or restoration to Landlord, either party can elect to
terminate this Lease by giving notice to the other within fifteen (15) days
after determining that the restoration cost will exceed the insurance proceeds
(plus the applicable deductible). In the case of destruction to the Premises, if
Landlord elects to terminate this Lease, Tenant, within fifteen (15) days after
receiving Landlord's notice to terminate, may agree to pay to Landlord the
difference between the amount of insurance proceeds (plus the applicable
deductible which Landlord shall pay) and the cost of restoration in which case
Landlord shall restore the Premises. Landlord shall give Tenant satisfactory
evidence that all sums contributed by Tenant as provided in this paragraph 22
have been expended by Landlord in paying the cost of restoration.
If Landlord elects to terminate this Lease and Tenant does not
elect to contribute toward the cost of restoration as provided herein, this
Lease shall terminate, and all of the proceeds of the insurance shall be paid to
Landlord; provided, however, that in the event such proceeds shall include any
amounts paid for damage to or destruction of property belonging to Tenant,
Landlord shall within ten (10) days of receipt, pay over such amounts to Tenant
in the following manner: Out of the gross proceeds paid by insurance to
Landlord, Landlord shall retain an amount equivalent to the current replacement
value of the building and improvements owned by Landlord; after Landlord has
been so paid from the insurance proceeds, if there remains a balance of such
insurance proceeds which represent payment for damages to or destruction of
improvements added by Tenant after the date of Tenant's occupancy of the
Premises, then, to the extent of any remaining balance of the insurance proceeds
and to the extent of Tenant's direct costs of making such added improvements,
Landlord shall be obligated to pay over to Tenant such remaining insurance
proceeds. During any such
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repairs or restoration described in this Paragraph 22, rent and all other costs
and charges, shall abate from the date of the casualty in proportion to the area
of the Premises rendered unusable by such damage or destruction; provided,
however, that Landlord shall have no liability by reason of injury to or
interference with Tenant's business or property arising from the making of any
repairs, alterations, or improvements in or to any portion of the Premises or in
or to fixtures, appurtenances and equipment therein; and further provided, that
if the damage was caused by the willful act or gross negligence of Tenant, its
agents or employees, there shall be no such abatement of rent unless covered by
the loss of rents provisions of the insurance policy Landlord is required to
carry and maintain pursuant to the provisions of Paragraph 17 (b). If the
Premises are destroyed or substantially damaged within one yeartwo (2) months of
the end of this Lease term or extensions thereof, or if Landlord cannot restore
the Premises within One Hundred TwentyFifteen (1205) days from the date of the
damage or destruction, Landlord or Tenant shall each have the option to cancel
the Lease effective as of the date of the damage or destruction or such later
date as the electing party sets forth in its written notice of cancellation, and
all insurance proceeds on the real property shall be paid to Landlord.
In the event Tenant shall have paid all or a portion of the
costs of any repairs or restorations for which Landlord subsequently receives
insurance proceeds, then to the extent that such insurance proceeds and Tenant's
payments exceed Landlord's cost of repair and/or restoration, Landlord shall
reimburse Tenant to the extent of Tenant's payments.
(c) Landlord shall not be required to repair any damage by fire or
other cause, or to make any repairs or replacements of any panels, decoration,
office fixtures, railings, floor coverings, partitions, or any other property
installed in the Premises by Tenant.
DEFAULT
23. Occurrence of any of the following events shall constitute a default
and breach of this Lease by Tenant.
(a) The abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required of Tenant hereunder, as and when due, if such failure continues
for three (3) calendar days after written notice thereof by Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease other than described in
Paragraph 23(b) above, where such failure continues for thirty (30) days after
written notice thereof by Landlord to Tenant; provided however, that if Tenant's
default is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant commences such
cure within said thirty (30) day period and thereafter diligently prosecutes
such cure to completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors or the filing by or against Tenant of a
petition to have Tenant adjudged bankrupt, or a petition, or reorganization or
arrangement under any law relating to bankruptcy (unless in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days); or
the appointment of a trustee or a receiver to take possession of substantially
all of
15
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged in thirty (30) days.
(e) The failure of Tenant or any employee or agent of Tenant to
occupy the Premises for ten (10) consecutive business days unless Tenant gives
prior written notice to Landlord, provides a security service for the Premises
and keeps all utility systems for the Premises functioning and in good
operation.
REMEDIES
24. Landlord shall have the following remedies if Tenant commits a
default. These remedies are not exclusive; they are cumulative and in addition
to any remedies now or later allowed by law.
(a) Landlord may continue this Lease in full force and effect, as
long as Landlord does not terminate Tenant's right to possession, and Landlord
shall have the right to collect rent when due. During the period Tenant is in
default, Landlord may enter the Premises and relet them, or any part of them, to
third parties for Tenant's account. Tenant shall be liable to Landlord for all
costs Landlord incurs in reletting the Premises, including, without limitation,
reasonable broker's commissions and expenses of remodelling the Premises
required by the reletting. Reletting may be for a period shorter or longer than
the remaining term of the Lease. Tenant shall pay to Landlord the rent due under
this Lease as and when due, less the rent Landlord receives from any reletting.
No act by Landlord allowed by this Paragraph shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate Tenant's
right to possession of the Premises. If Tenant obtains Landlord's consent,
Tenant shall have the right to assign or sublet its interest in this Lease, but
Tenant shall not be released from liability. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld.
(b) Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's right to possession. On termination, Landlord has the right to recover
from Tenant:
(i) The worth, at the time of the award of the unpaid rent
that had been earned at the time of termination of this Lease;
(ii) The worth, at the time of the award of the amount by
which the unpaid rent that would have been earned after the date of
termination of this Lease until the time of award exceeds the amount of
the loss of rent that Tenant proves could have been reasonably avoided;
(iii) The worth, at the time of the award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of the loss of rent that Tenant proves could have been
reasonably avoided; and
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(iv) Any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom.
"The worth, at the time of the award", as used in (i) and (ii) of this
subparagraph, is to be computed by allowing interest at the maximum rate
allowed by law. "The worth, at the time of the award", as referred to in
(iii) of this subparagraph, is to be computed by discounting the amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time
of the award, plus one percent (1%).
EMINENT DOMAIN
25. If more than twenty-five percent (25%) of the building which is part
the Premises, or twenty-five percent (25%) of the parking spaces and Landlord
does not provide suitable replacement parking spaces within a reasonable
distance from the building, is taken or appropriated by any public or
quasi-public authority under powers of eminent domain, either party hereto shall
have the right at its option, to terminate this Lease effective as of the date
of taking. If less than twenty-five percent (25%) building or twenty-five
percent (25%) of the parking spaces, is taken (or neither party elects to
terminate as above provided if more than twenty-five percent (25%) of the
building a twenty five percent (25%) of the parking spaces is taken), the Lease
shall continue, and the rental thereafter to be paid shall continue, but the
rental thereafter to be paid shall be equitably reduced. Whether or not the
Lease is terminated by reason of any such taking or appropriation, Landlord
shall be entitled to the entire award and compensation for the taking which is
paid or made by the public or quasi-public agency, and Tenant shall have no
claim against said award; except for amounts paid directly to Tenant for its
moving expenses, interruption to its business or damage to personal property or
trade fixtures. A voluntary sale by Landlord to any public body or agency having
the power of eminent domain, either under threat of condemnation or while the
condemnation proceedings are pending shall be deemed to be a taking under the
power of eminent domain for the purposes of this Paragraph.
ESTOPPEL CERTIFICATE
26. Either party shall at any time and from time to time, upon not less
than ten (10) business days prior written notice from the other, execute,
acknowledge, and deliver to the other party a statement in writing, (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modifications and certifying that this
Lease as so modified, is in full force and effect), and the date to which the
rental and other charges are paid in advance, if any, and (b) acknowledging that
there are not, to the party's knowledge, any uncured defaults on the part of the
other party hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser, encumbrancer,
assignee, or subtenant of all or any portion of the Premises or any purchaser of
Tenant's assets.
SUBORDINATION/NONDISTURBANCE
27. Tenant agrees upon request of Landlord and the holder of any deed of
trust affecting the Premises to subordinate this Lease and its rights hereunder
to the lien of any mortgage, deed of trust or other encumbrance, together with
any conditions, renewals,
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extensions, or replacements thereof, now or hereafter placed, charged or
enforced against the Landlord's interest in this Lease and the leasehold estate
thereby created, the Premises or the land, building or improvements included
therein, and deliver (but without cost to Tenant) at any time and from time to
time upon demand by Landlord such documents as may be required to effectuate
such subordination; provided, however, that Tenant shall not be required to
effectuate such subordination, nor shall Landlord be authorized to effect such
subordination on behalf of Tenant, unless the mortgagee or trustee named in such
mortgage, deed of trust or other encumbrance shall first agree in writing, for
the benefit of Tenant, that so long as Tenant is not in default under any of the
provisions, covenants or conditions of this Lease on the part of Tenant to be
kept and performed, that neither this Lease nor any of the rights of Tenant
hereunder shall be terminated or modified or be subject to termination or
modification, nor shall Tenant's possession of the Premises be disturbed or
interfered with, by any trustee's sale or by an action or proceeding to
foreclose said mortgage, deed of trust or other encumbrance.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
the Landlord covering the Premises, the Tenant shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease.
In the event that the mortgagee or beneficiary of any such mortgage or
deed of trust elects to have this Lease prior to its mortgage or deed of trust,
then and in such event upon such mortgagee or beneficiary giving written notice
to Tenant to that effect, this Lease shall be deemed prior to such mortgage or
deed of trust whether this Lease is dated or recorded prior to or subsequent to
the date of recordation of such mortgage or deed of trust.
Landlord agrees to obtain for Tenant within 30 days after full execution
of this Lease with a non-disturbance agreement from any and all lenders holding
a mortgage, Deed of Trust, or other encumbrance on the Premises. Said
non-disturbance agreement shall be reasonably acceptable to Tenant and contain
the same provisions described above.
PARKING
28. Tenant shall have the right to use the parking facilities provided by
Landlord in common with other tenants of the building in which the Premises are
located subject to any recorded easements. Landlord shall have no obligation to
police the use of the parking facilities, however. Landlord reserves the right
to allocate and/or reserve parking spaces for all tenants.
AUTHORITY
29. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms except as it may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws or by other laws affecting
creditors' or lessors' rights generally and except as to the availability of
equitable relief.
Partnership Authority. If Tenant is a partnership, each
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individual executing this Lease on behalf of said partnership represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said partnership and that this Lease is binding upon said partnership and its
partners in accordance with its terms.
GENERAL PROVISIONS
30. General Provisions.
(a) Clauses, plats and riders, if any, signed by the Landlord and
the Tenant and endorsed on or affixed to this Lease are a part hereof.
(b) The waiver by Landlord of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
on any subsequent breach of the same or any other terms, covenant or condition
herein contained. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of the Tenant to pay
the particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of the acceptance of such rent.
(c) All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by the Landlord to the Tenant shall be sufficient if delivered in person or sent
by United States Mail, certified or registered, postage prepaid, addressed to
the Tenant at the Premises or to such other place as Tenant may from time to
time designate in a written notice to the Landlord. All notices and demands by
the Tenant to the Landlord shall be sufficient if delivered in person, by
receipted courier service, or sent by United States Mail, postage prepaid,
addressed to the Landlord at 800 El Camino Real, Suite 175, Menlo Park,
California 94025 or to such other person or place as the Landlord may from time
to time designate in a notice to the Tenant. Any such notice is effective at the
time of delivery or if mailed, two (2) business days after mailing.
(d) If there be more than one Tenant, the obligations hereunder
imposed upon Tenants shall be joint and several.
(e) The paragraph titles to the paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(f) Time is of the essence of this Lease and each of its provisions
in which performance is a factor.
(g) The time in which any act provided by this Lease is to be done
is computed by excluding the first day and including the last, unless the last
day is a Saturday, Sunday, or holiday, and then it is also excluded. The term
"holiday" shall mean all holidays specified in Sections 6700 and 6701 of the
Government Code.
(h) The covenants and conditions herein contained, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of the parties hereto.
(i) Neither Landlord nor Tenant shall record this Lease or a short
form memorandum hereof without the prior written consent of the other party.
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(j) Upon Tenant paying the rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the provisions of this
Lease.
(k) This Lease contains all of the agreements of the parties hereto
with respect to any matter covered or mentioned in this Lease. No prior
agreements or understandings pertaining to any such matters shall be effective
for any purpose. No provision of this Lease shall be amended or added except by
an agreement in writing signed by the parties hereto or their respective
successors in interest. This Lease shall not be effective or binding on any
party until fully executed by both parties hereto.
(l) If either party shall be delayed or prevented from the
performance of any act required by this Lease by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive
governmental laws, or regulations or other cause, without fault and beyond the
reasonable control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay; and the
period for the performance of any such act shall be extended for a period
equivalent for the period of such delay, provided, however, nothing in this
section shall excuse Tenant from the prompt payment of any rental or other
charge required of Tenant except as may be expressly provided elsewhere in this
Lease.
(m) In the event of any action or proceeding brought by either party
against the other under this Lease, the prevailing party shall be entitled to
recover all costs and expenses including the fees of its attorneys in such
action or proceeding in such amount as the court may adjudge reasonable as
attorney's fees.
(n) In the event of any sale of the building, Landlord shall be and
is hereby entirely freed and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease arising out of
any act, occurrence or omission occurring after the consummation of such sale
and the purchaser, at such sale or any subsequent sale of the Premises shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out all of the covenants and obligations of the Landlord under
this Lease.
(o) Tenant shall not use the name of the building or of the
development in which the building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
(p) Any provision of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other provision
hereof and such other provision shall remain in full force and effect.
(q) No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in
equity.
(r) This Lease shall be governed by the laws of the State of
California.
(s) Tenant shall not conduct any auction, on or at the Premises or
building without Landlord's prior written consent.
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(t) Nothing contained in this Lease shall be deemed or construed by
the parties or by any third person to create the relationship of principal and
agent or of partnership or of joint venture or of any association between
Landlord and Tenant, and neither the method of computation of rent nor any other
provisions contained in this Lease nor any acts of the parties shall be deemed
to create any relationship between Landlord and Tenant other than the
relationship of Landlord and Tenant.
(u) (i) The language in all parts of this Lease shall in all cases
be simply construed according to its fair meaning and not strictly for or
against Landlord or Tenant. Unless otherwise provided in this Lease, or unless
the context otherwise requires, the following definitions and rules of
construction shall apply to this Lease.
(ii) In this Lease the neuter gender includes the feminine and
masculine, and the singular number includes the plural, and the word
"person" includes corporation, partnership, firm, or association wherever
the context so requires.
(iii) "Shall", "will", and "agrees" are mandatory, "may" is
permissive.
(iv) All references to the Term of this Lease or the Lease
Term shall include any extensions of such Term.
(v) Parties shall include the Landlord and Tenant named in
this Lease.
(vi) As used herein, the word "sublessee" shall mean and
include, in addition to a sublessee and subtenant, a licensee,
concessionaire, or other occupant or user of any portion of the leased
Premises or buildings or improvements thereon.
(vii) Whenever the written consent of a party is required
under any provision of this Lease, such consent shall not be unreasonably
withheld or unduly delayed.
BROKERS
31. Each party warrants to the other that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease and
it knows of no real estate broker or agent who is entitled to a commission in
connection with this Lease. Each party agrees to indemnify and hold the other
harmless from any cost, expense, or liability for any compensation, commissions,
or charges claimed by any other broker or agent who alleges he is owed a
compensation through it.
NONRECOURSE OBLIGATIONS
32. It is expressly agreed by Tenant that all obligations of Landlord
accruing under this Lease shall not constitute personal obligations of Landlord
or of any other persons or entities constituting Landlord and Tenant shall not
seek recourse against any such entities, persons, or any of their assets for
satisfaction of any liabilities with respect to this Lease. In the event Tenant
obtains a judgment against Landlord resulting from any default or claim arising
under this Lease, such judgment may only be satisfied from Landlord's interest
in this Lease and the Premises, and no other real, personal, or mixed property
of Landlord or of any other persons or entities comprising Landlord, wherever
situated, shall be
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subject to levy to satisfy such judgment.
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LIST OF EXHIBITS
33. The following is a complete list of the documents attached hereto and
made a part of this Lease:
EXHIBIT DESCRIPTION
A Floor Plan
The parties hereto have executed this Lease and on the dates specified
immediately adjacent to their respective signatures.
LANDLORD:
West Bayshore Associates, a general partnership, Sigrid S. Banks, Frank Lee
Crist, Jr., Allen W. Koering, and George O. McKee
By: The Cortana Corporation, Property Manager
By: /s/ David A. Wollenberg
-----------------------------------
David A. Wollenberg, President
TENANT:
CONNETICS CORPORATION
By /s/ John L. Higgins Date September 30, 2004
-------------------------- ------------------
Title
By Date
-------------------------- ------------------
Title
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