EXHIBIT 10.15
EXECUTED
ORIGINAL
LEASE
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
BRS TORREY I, LLC
a Delaware limited liability company
as Landlord,
and
STRUCTURAL GENOMIX, INC.,
a Delaware corporation
as Tenant
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
SUMMARY OF BASIC LEASE INFORMATION
The undersigned hereby agree to the following terms of this
Summary of Basic Lease Information (the "SUMMARY"). This Summary is hereby
incorporated into and made a part of the attached Lease (the "LEASE") which
pertains to the "Project," as that term is defined in the Lease, commonly known
as "10575/10581 ROSELLE STREET" located in San Diego, California. This Summary
and the Lease are collectively referred to herein as the "LEASE". Each reference
in the Lease to any term of this Summary shall have the meaning set forth in
this Summary for such term. In the event of a conflict between the terms of this
Summary and the Lease, the terms of the Lease shall prevail. Any capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Lease.
TERMS OF LEASE
(REFERENCES ARE TO THE LEASE) DESCRIPTION
1. Date: 6.1, 2001 ("EFFECTIVE DATE")
2. Landlord: BRS TORREY I, LLC
a Delaware limited liability company
c/o Mr. Matt Root
The Shidler Group
4660 La Jolla Village Drive, Suite 800
San Diego, CA 92122
3. Tenant: STRUCTURAL GENOMIX, INC.,
a Delaware corporation
4. Premises (Article 1).
4.1 Addresses of Buildings: 10575/10581 Roselle Street
San Diego, California 92121
4.2 Premises: 24,805 rentable square feet as further
set forth in Exhibit "A" to the Lease.
5. Lease Term (Article 2).
5.1 Length of Term: Seven (7) years.
5.2 Lease Commencement Date: The Lease Commencement Date shall occur
as set forth in Article 2 of the Lease.
The Lease Commencement Date is
anticipated to be September 1, 2001.
5.3 Lease Expiration Date: The last day of the month in which the
seventh (7th) anniversary of the Lease
Commencement Date occurs.
6. Base Rent and Ground Rent
(Article 3)
6.1 Ground Rent: $3,742.10 per month during the
Pre-Commencement Period, as described
in Section 3.
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(i)
6.2 Base Rent:
Monthly Monthly Rental Rate
Installment of Per
Lease Year Annual Base Rent Base Rent Square Foot
- ---------- ---------------- -------------- -------------------
1 $669,501.00 $58,291.75 $2.35
2 $723,313.80 $60,276.15 $2.43
3 $750,103.20 $62,508.60 $2.52
4 $776,892.60 $64,741.05 $2.61
5 $803,682.00 $66,973.50 $2.70
6 $830,471.40 $69,205.95 $2.79
7 $860,237.40 $71,686.45 $2.89
7. Additional Rent (Article 4).
7.1 Tenant's Share: Sixty Five and ninety-four hundredths
percent (65.94%)
8. Security Deposit (Article 21); $349,750.50
9. Parking Pass Ratio Pro-rata basis.
(Article 28):
10. Broker(s) (Section 31.17): Neil Fox, Phase 3 Properties
(Landlord's Broker)
Neil Fox, Phase 3 Properties (Tenant's
Broker)
11. Address of Tenant STRUCTURAL GENOMIX, INC.,
(Section 31.12): 10505 Roselle Street
San Diego, California 92121
Attention: Ms. Geneva Davis
(Prior to Lease Commencement Date)
and
10505 Roselle Street
San Diego, California 92121
Attention: Ms. Geneva Davis
(After to Lease Commencement Date)
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(ii)
The foregoing terms of this Summary are hereby agreed to by Landlord and Tenant.
"LANDLORD" BRS TORREY I, LLC,
a Delaware limited liability company
By: /s/ [Illegible]
---------------------------------
_________________________________
Its: Member
By:
___________________________
Its:
_____________________
"TENANT" STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: /s/ Tim Harris
---------------------------------
Name: T. Harris
Title: Pres & CEO
By: /s/ [Illegible]
---------------------------------
Name: [Illegible]
Title: EVP
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(iii)
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
TABLE OF CONTENTS
ARTICLE SUBJECT MATTER PAGE
- ------- -------------- ----
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS ................ 1
ARTICLE 2 LEASE TERM ................................................... 2
ARTICLE 3 BASE RENT AND GROUND RENT .................................... 2
ARTICLE 4 ADDITIONAL RENT .............................................. 2
ARTICLE 5 USE OF PREMISES .............................................. 6
ARTICLE 6 SERVICES AND UTILITIES ....................................... 7
ARTICLE 7 REPAIRS ...................................................... 8
ARTICLE 8 ADDITIONS AND ALTERATIONS .................................... 8
ARTICLE 9 COVENANT AGAINST LIENS ....................................... 9
ARTICLE 10 INSURANCE .................................................... 9
ARTICLE 11 DAMAGE AND DESTRUCTION ....................................... 11
ARTICLE 12 NONWAIVER .................................................... 12
ARTICLE 13 CONDEMNATION ................................................. 12
ARTICLE 14 ASSIGNMENT AND SUBLETTING .................................... 13
ARTICLE 15 SURRENDER OF PREMISES; REMOVAL OF TRADE FIXTURES ............. 16
ARTICLE 16 HOLDING OVER ................................................. 17
ARTICLE 17 ESTOPPEL CERTIFICATES ........................................ 17
ARTICLE 18 SUBORDINATION ................................................ 17
ARTICLE 19 DEFAULTS; REMEDIES ........................................... 18
ARTICLE 20 COVENANT OF QUIET ENJOYMENT .................................. 20
ARTICLE 21 SECURITY DEPOSIT ............................................. 20
ARTICLE 22 INTENTIONALLY OMITTED ........................................ 20
ARTICLE 23 SIGNS ........................................................ 20
ARTICLE 24 COMPLIANCE WITH LAW .......................................... 21
ARTICLE 25 LATE CHARGES ................................................. 21
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT ......... 22
ARTICLE 27 ENTRY BY LANDLORD ............................................ 22
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(iv)
ARTICLE 28 TENANT PARKING ............................................... 23
ARTICLE 29 EARLY TERMINATION AND CONFIDENTIALITY ........................ 23
ARTICLE 30 RIGHT OF FIRST REFUSAL ....................................... 23
ARTICLE 31 MISCELLANEOUS PROVISIONS ..................................... 24
EXHIBIT "A" OUTLINE OF FLOOR PLAN OF PREMISES
EXHIBIT "B" NOTICE OF LEASE TERM DATES
EXHIBIT "C" RULES AND REGULATIONS
EXHIBIT "D" FORM OF TENANT'S ESTOPPEL CERTIFICATE
EXHIBIT "E" TENANT WORK LETTER
EXHIBIT "F' ENVIRONMENTAL DOCUMENTS
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(v)
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
INDEX OF DEFINED TERMS
Additional Rent................................................... 3
Affiliate ........................................................ 16
Alterations ...................................................... 8
Approved Plans.................................................... Exhibit E
Architect......................................................... Exhibit E
Arroyo Parkway Plaza ............................................. 1
Base Building..................................................... Exhibit E
Base Rent ........................................................ 2
Brokers .......................................................... 26
Building ......................................................... 1
Building Common Areas............................................. 1
Common Areas ..................................................... 1
Construction Drawings ............................................ Exhibit E
Contract.......................................................... Exhibit E
Contractor ....................................................... Exhibit E
Control .......................................................... 16
Cost Pools........................................................ 4
Delivery Date..................................................... Exhibit E
Early Termination Date ........................................... 23
Effective Date ................................................... Summary
Engineers ........................................................ Exhibit E
Environmental Documents .......................................... 28
Estimate.......................................................... 6
Estimate Statement ............................................... 6
Estimated Amount ................................................. 6
Excess............................................................ 5
Existing Hazardous Materials ..................................... 29
Expense Year ..................................................... 3
Extraction Unit .................................................. 22
First Offer Commencement Date .................................... 24
First Offer Notice ............................................... 24
First Offer Rent ................................................. 24
First Offer Space ................................................ 24
Force Majeure-.................................................... 26
Ground Rent....................................................... 2
Hazardous Material ............................................... 27
Landlord ......................................................... 1
Landlord Consulting Fee .......................................... Exhibit E
Landlord Indemnities ............................................. 28
Landlord Parties ................................................. 9
Landlord's Work .................................................. Exhibit E
Lease............................................................. 1
Lease Commencement Date .......................................... 2
Lease Expiration Date ............................................ 2
Lease Term ....................................................... 2
Lease Year ....................................................... 2
Losses ........................................................... 28
Monitoring Well(s) ............................................... 22
Notices........................................................... 26
number of days ................................................... Exhibit E
Operating Expenses ............................................... 3
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(vi)
Option Notice .................................................... 23
Other Improvements ............................................... 29
Pre-Commencement Period .......................................... 2
Premises ......................................................... 1
Project .......................................................... 1
Project Common Areas ............................................. 1
Project Expenses ................................................. 4
Proposition 13 ................................................... 4
Rent ............................................................. 3
Security Deposit ................................................. 20
Seller ........................................................... 23
Statement ........................................................ 5
Subject Space .................................................... 13
Subleasing Costs ................................................. l4
Substances ....................................................... 28
Substantial Completion ........................................... 2
Summary .......................................................... 1
Tax Expenses ..................................................... 4
Tenant ........................................................... 1
Tenant Improvement Allowance ..................................... Exhibit E
Tenant Improvement Allowance Items ............................... Exhibit E
Tenant Improvements .............................................. Exhibit E
Tenant Notice .................................................... 24
Tenant Work ...................................................... 2
Tenant's Agents .................................................. Exhibit E
Tenant's Share ................................................... 5
Transfer Notice .................................................. 13
Transfer Premium ................................................. 14
Transferee ....................................................... 13
Transfers ........................................................ 13
Violations ....................................................... 28
Worker or Workers ................................................ 28
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
(vii)
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
LEASE
This Lease, which includes the preceding Summary of Basic Lease
Information (the "SUMMARY") attached hereto and incorporated herein by this
reference (the Lease and Summary are sometimes collectively referred to herein
as the "LEASE"), dated as of the date set forth in Section 1 of the Summary is
made by and between BRS TORREY I, LLC, a Delaware limited liability company
("LANDLORD"), and STRUCTURAL GENOMIX, INC., a Delaware corporation ("TENANT").
ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 Premises, Building, Project and Common Areas.
1.1.1 The Premises. Upon and subject to the terms hereinafter set
forth in this Lease, Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the premises set forth in Section 4.2 of the Summary (the
"PREMISES"), which Premises are located in the "Building," as that term is
defined in Section 1.1.2, below. The outline of the Premises is set forth in
Exhibit "A" attached hereto.
1.1.2 The Building and the Project. The Premises are a part of the
buildings set forth in Section 4.1 of the Summary (the "BUILDING") located in
San Diego, California. The Building is part of a project known as "10575/10581
ROSELLE STREET". The term "PROJECT," as used in this Lease, shall mean (i) the
Buildings and the "Common Areas", as that term is defined in Section 1.1.3
below, (ii) the land (which is improved with landscaping, parking facilities and
other improvements) upon which the Building, parking facilities and the Common
Areas are located, and (iii) at Landlord's discretion, any additional real
property, areas, buildings or other improvements added thereto.
1.1.3 Common Areas. Tenant shall have the non-exclusive right to use
in common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project, whether or not those areas are open
to the general public (such areas, together with such other portions of the
Project designated by Landlord, in its discretion are collectively referred to
herein as the "COMMON AREAS"). The Common Areas shall consist of the "Project
Common Areas" and the "Building Common Areas". The term "PROJECT COMMON Areas",
as used in this Lease, shall mean the portion of the Project designated as such
by Landlord. "BUILDING COMMON AREAS", as used in this Lease, shall mean the
portions of the Common Areas of the Buildings designated as such by Landlord.
The manner in which the Common Areas are maintained and operated shall be at the
sole discretion of Landlord. Landlord reserves the right to make alterations or
additions to, or to change the location of, elements of the Project and the
Common Areas.
1.2 Number of Square Feet of Premises, Building, and Project. For purposes
of this Lease, and unless otherwise provided herein, "usable square feet" and
"rentable square feet" and any other statement of square footage set forth in
this Lease for the Premises, the Building, the Project, or any portion thereof,
or that may otherwise be used in calculating amounts owed Landlord by Tenant,
including but not limited to rental, security deposit, additional rental and/or
Tenant's Share of Operating Expenses, is an approximation which Landlord and
Tenant agree is reasonable and the rental and Tenant's Share based thereon is
not subject to revision whether or not the actual square footage is more or
less.
1.3 Base, Shell and Core Work in the Premises. Except as specifically set
forth in this Lease and in the Tenant Work Letter attached hereto as Exhibit "E"
(if applicable), Landlord shall not be obligated to provide or pay for any
improvement work or services related to the improvement of the Premises. Tenant
also acknowledges that Landlord has made no representation or warranty regarding
the condition of the Premises or the Project except as specifically set forth in
this Lease and the Tenant Work Letter.
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
ARTICLE 2
LEASE TERM
2.1 Lease Term. The terms and provisions of this Lease shall be effective
as of the date of this Lease. The term of this Lease (the "LEASE TERM") shall be
as set forth in Section 5.1 of the Summary, shall commence on the date which is
the earlier to occur of (i) one hundred twenty (120) days from the Effective
Date, (ii) the date Tenant takes occupancy of the Premises, and (iii) the date
of "Substantial Completion", as that term is defined in this Article 2, of the
Premises ("LEASE COMMENCEMENT DATE"), and shall terminate on the date set forth
in Section 5.3 of the Summary (the "LEASE EXPIRATION DATE") unless this Lease is
sooner terminated as hereinafter provided. For purposes of this Lease, the term
"LEASE YEAR" shall mean each consecutive twelve (12) month period during the
Lease Term; provided, however, that the first Lease Year shall commence on the
Lease Commencement Date and end on the last day of the eleventh month thereafter
and the second and each succeeding Lease Year shall commence on the first day of
the next calendar month; and further provided that the last Lease Year shall end
on the Lease Expiration Date. For purposes of this Lease, "SUBSTANTIAL
COMPLETION" of the Premises shall occur upon the completion of construction, as
reasonably determined by Landlord, of the "Tenant Improvements," as that term is
defined in the Tenant Work Letter, in the Premises pursuant to the plans and
drawings which are prepared pursuant to the terms of the Tenant Work Letter,
with the exception of any punch list items and any tenant fixtures,
work-stations, built-in furniture, or equipment to be installed by Tenant in the
Premises pursuant to the terms of the Tenant Work Letter or to be installed
under the supervision of "Contractor" as that term is defined in the Tenant Work
Letter (the "TENANT WORK"). At any time during the Lease Term, Landlord may
deliver to Tenant a notice in the form as set forth in Exhibit "B", attached
hereto which notice Tenant shall execute and return to Landlord within five (5)
days of receipt thereof.
ARTICLE 3
BASE RENT AND GROUND RENT
Tenant shall pay, without notice or demand, to Landlord or Landlord's
agent at the management office of the Project, or at such other place as
Landlord may from time to time designate in writing, in currency or a check for
currency which, at the time of payment, is legal tender for private or public
debts in the United States of America, (i) base rent ("BASE RENT") as set forth
in Section 6 of the Summary, payable in equal monthly installments as set forth
in Section 6 of the Summary in advance on or before the first day of each and
every month during the Lease Term, without any setoff or deduction whatsoever;
and (ii) an amount equal to $3,742.10 per month (the "GROUND RENT") during the
period commencing upon the date Landlord becomes obligated to begin paying the
Ground Rent to the current owner of the property and ending upon the Lease
Commencement Date (the "PRE-COMMENCEMENT PERIOD"). The Base Rent for the first
full month of the Lease Term, together with the Ground Rent for the first month
of the Pre-Commencement Period, shall be paid at the time of Tenant's execution
of this Lease. If any Rent payment date (including the Lease Commencement Date)
falls on a day of the month other than the first day of such month or if any
payment of Rent is for a period which is shorter than one month, the Rent for
any fractional month shall accrue on a daily basis for the period from the date
such payment is due to the end of such calendar month or to the end of the Lease
Term at a rate per day which is equal to 1/365 of the Rent. All other payments
or adjustments required to be made under the terms of this Lease that require
proration on a time basis shall be prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1 General Terms. As set forth in this Article 4, in addition to paying
the Base Rent Specified in Article 3 of this Lease, Tenant shall pay "Tenant's
Share" of the annual "Project Expenses," as those terms are defined in Sections
4.2.5 and 4.2.3 of this Lease, respectively, allocated to the tenants of the
Building pursuant to the terms of Section 4.3 below. Such payments by Tenant,
together with any and all other amounts payable by Tenant to Landlord pursuant
to the terms of this Lease, are hereinafter collectively referred to as the
"ADDITIONAL RENT", and the Base Rent and the Additional Rent are sometimes
herein collectively referred to as "RENT." All amounts due under this Article 4
as Additional Rent shall be payable for the same periods and in the same manner
as the Base
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
-2-
Rent. No Additional Rent shall be due or owing for the Pre-Commencement Period.
Without limitation on other obligations of Tenant which survive the expiration
of the Lease Term, the obligations of Tenant to pay the Additional Rent provided
for in this Article 4 shall survive the expiration of the Lease Term, and
Landlord shall use commercially reasonable efforts to deliver the Statement, as
defined below, of any Additional Rent to Tenant within six (6) months after the
expiration or termination of this Lease, as applicable.
4.2 Definitions. As used in this Article 4, the following terms shall have
the meanings hereinafter set forth:
4.2.1 "EXPENSE YEAR" shall mean each calendar year in which any
portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires.
4.2.2 "OPERATING EXPENSES" shall mean all expenses, costs and
amounts of every kind and nature incurred in connection with the ownership,
management, maintenance, repair, replacement, restoration or operation of the
Project, including, without limitation, any amounts paid or incurred for (i) the
cost of supplying all utilities servicing the Project, the cost of operating,
maintaining, repairing, renovating, complying with conservation measures in
connection with, and managing the utility systems, mechanical systems, sanitary
and storm drainage systems, and elevator systems, and the cost of supplies and
equipment, maintenance, and service contracts in connection therewith; (ii) the
cost of licenses, certificates, permits and inspections and the cost of
contesting the validity or applicability of any governmental enactments which
may affect Operating Expenses, and the costs incurred in connection with the
implementation and operation of a transportation system management program or a
municipal or public shuttle service or parking program; (iii) the cost of all
insurance carried in connection with the Project, or any portion thereof; (iv)
the cost of landscaping, relamping, and all supplies, tools, equipment and
materials used in the operation, repair and maintenance of the Project, or any
portion thereof; (v) the cost of parking area repair, restoration, and
maintenance, including, but not limited to, resurfacing, repainting,
restripping, and cleaning; (vi) fees, charges and other costs, including
consulting fees, legal fees and accounting fees, of all contractors and
consultants; (vii) payments under any equipment rental agreements or management
agreements (including the cost of any management fee and the fair rental value
of any office space provided thereunder); (viii) wages, salaries and other
compensation and benefits of all persons engaged in the operation, maintenance,
management, or security of the Project, or any portion thereof, including
employer's Social Security taxes, unemployment taxes or insurance, and any other
taxes which may be levied on such wages, salaries, compensation and benefits;
(ix) payments under any easement, license, operating agreement, declaration,
covenant, conditions and restrictions, or any other instrument pertaining to the
sharing of costs by the Project, or any portion thereof; (x) the cost of
operation, repair, maintenance and replacement of all systems and equipment
which serve the Project in whole or part; (xi) exterior window cleaning, trash
removal, maintenance and replacement of curbs and walkways, repair to roofs and
re-roofing; and (xii) the cost of any capital improvements made to the Project
which are intended as a labor-saving device or to effect other economies in the
operation or maintenance of the Project, or any portion thereof, or made to all
or any portion of the Project, or any portion thereof, after the Lease
Commencement Date that are required under any governmental law or regulation
that was not applicable to the Project at the time that permits for the
construction of the Building were obtained; provided, however, that each such
permitted capital expenditure shall be amortized (including interest on the
unamortized cost) over its useful life as Landlord shall reasonably determine.
If the Building is not fully occupied during all or a portion of any Expense
Year, or if all Operating Expenses allocable to a particular Expense Year have
not been billed to Landlord or paid in such Expense Year, Landlord shall make an
appropriate adjustment to the variable components of Operating Expenses for such
year or applicable portion thereof, employing sound accounting and management
principles, to determine the amount of Operating Expenses that would have been
paid had the Building been fully occupied or if all Operating Expenses had been
billed or paid in such Expense Year. Landlord shall have the right, from time to
time, to equitably allocate some or all of the Operating Expenses among
different tenants of the Project and/or the Building (the "COST POOLS").
Notwithstanding the foregoing, Operating Expenses shall not include:
(i) Legal fees incurred in negotiating and enforcing tenant
leases;
(ii) Real estate brokers' leasing commissions;
(iii) The cost of providing any service directly to and paid
directly by any tenant;
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
-3-
(iv) Costs of any items to the extent Landlord receives
reimbursement from insurance proceeds or from a third party (such proceeds to be
credited to Operating Expenses in the year in which received, except that any
deductible amount under any insurance policy shall be included within Operating
Expenses);
(v) Costs arising from Landlord's charitable or political
contributions;
(vi) Depreciation, interest and principal payments on any
mortgage or mortgages, and rental under any ground or underlying lease or
leases, including without limitation, costs incurred in obtaining or refinancing
any such financing and any other debt costs:
(vii) All costs and expenses for which Tenant or other tenants
directly reimburse Landlord other than as part of Rent or Operating Expenses;
(viii) Costs incurred (including permit, license, and
inspection fees but excluding utilities) or cash consideration paid in
renovating otherwise improving, decorating, painting or redecorating space for
tenants, prospective tenants, other occupants, vacant space available for those
tenants, prospective tenants, or other occupants; however, this exclusion does
not apply to remove from Operating Expenses the costs of ordinary maintenance
supplied to the tenants of the Building or the costs of ordinary maintenance of
the common areas, or other modifications to the common areas of the Building
other than the scope of work currently being performed by the Landlord as
described herein.
4.2.3 "PROJECT EXPENSES" shall mean the sum of "Operating Expenses"
and "Tax Expenses".
4.2.4 "TAX EXPENSES" shall mean all federal, state; county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary (including,
without limitation, real estate taxes, general and special assessments, transit
taxes, leasehold taxes or taxes based upon the receipt of rent, including gross
receipts or sales taxes applicable to the receipt of rent, unless required to be
paid by Tenant, personal property taxes imposed upon the fixtures, machinery,
equipment, apparatus, systems and equipment, appurtenances, furniture and other
personal property used in connection with all or any portion of the Project),
which shall be paid during any Expense Year (without regard to any different
fiscal year used by such governmental or municipal authority) because of or in
connection with the ownership, leasing and operation of the Project, or any
portion thereof.
4.2.4.1 Tax Expenses shall include, without limitation:
(i) Any assessment, tax, fee, levy or charge in addition to,
or in substitution, partially or totally, of any assessment, tax, fee,
levy or charge previously included within the definition of real property
tax, it being acknowledged by Tenant and Landlord that Proposition 13 was
adopted by the voters of the State of California in the June 1978 election
("PROPOSITION 13") and that assessments, taxes, fees, levies and charges
may be imposed by governmental agencies for such services as fire
protection, street, sidewalk and road maintenance, refuse removal and for
other governmental services formerly provided without charge to property
owners or occupants, and, in further recognition of the decrease in the
level and quality of governmental services and amenities as a result of
Proposition 13, Tax Expenses shall also include any governmental or
private assessments or the Project's contribution towards a governmental
or private cost-sharing agreement for the purpose of augmenting or
improving the quality of services and amenities normally provided by
governmental agencies. It is the intention of Tenant and Landlord that all
such new and increased assessments, taxes, fees, levies, and charges and
all similar assessments, taxes, fees, levies and charges be included
within the definition of Tax Expenses for the purposes of this Lease;
(ii) Any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the Rent payable hereunder,
including, without limitation, any gross income tax with respect to the
receipt of such rent, or upon or with respect to the possession, leasing,
operating,
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
-4-
management, maintenance, alteration, repair, use or occupancy by Tenant of
the Premises, or any portion thereof;
(iii) Any assessment, tax, fee, levy or charge, upon this
transaction or any document to which Tenant is a party, creating or
transferring an interest or an estate in the Premises; and
(iv) Any possessory taxes charged or levied in lieu of real
estate taxes.
4.2.5 "TENANT'S SHARE" shall mean the percentage set forth in
Section 7.1 of the Summary. Tenant's Share was calculated by multiplying the
number of rentable square feet of the Premises by 100, and dividing the product
by the total rentable square feet in the Building. It is understood and agreed
that the square footage figures set forth in the Basic Lease Provisions may not
be strictly calculated pursuant to BOMA standards and are approximations which
Landlord and Tenant agree are reasonable and shall not be subject to revision
except in connection with an actual change in the size of the Premises or a
change in the space available for lease in the Building or in the Project, as
determined by Landlord.
4.3 Allocation of Project Expenses to Tenants of the Building. Except as
provided herein, Project Expenses (i.e., Operating Expenses and Tax Expenses)
are determined annually for the Project as a whole. If the Building is only one
of multiple buildings which constitute the Project, Project Expenses shall be
allocated by Landlord, in its reasonable discretion, to both the tenants of the
Building and the tenants of the other buildings in the Project, and the portion
of Project Expenses allocated to the tenants of the Building shall consist of
(i) all Project Expenses attributable solely to the Building and (ii) an
equitable portion of Project Expenses attributable to the Project as a whole and
not attributable solely to the Building or to any other building of the Project.
Landlord shall use commercially reasonable efforts to install separate metering
devices for all tenants for utility services utilized solely by such tenant and
in such event, the tenants shall pay the cost of such services directly to
Landlord or the utility company, as determined by Landlord, upon demand,
including the cost of the metering devices. So long as the separately metered
tenants pay such expenses, such costs shall be excluded from Operating Expenses.
Tenant shall not be obligated to pay, as Operating Expenses, any utility costs
solely attributable to any other tenant.
4.4 Calculation and Payment of Additional Rent.
4.4.1 Calculation of Excess. If for any Expense Year ending or
commencing within the Lease Term, Tenant's Share of Project Expenses allocated
to the tenants of the Building pursuant to Section 4.3 above for such Expense
Year exceeds Tenant's Share of the Project Expenses paid by Tenant, then Tenant
shall pay to Landlord, in the manner set forth in Section 4.4.2, below, and as
Additional Rent, an amount equal to Tenant's Share.
4.4.2 Statement of Actual Project Expenses and Payment by Tenant.
Landlord shall endeavor to give to Tenant on or before the first day of April
following the end of each Expense Year, a statement (the "STATEMENT") which
shall state the Project Expenses incurred or accrued for such preceding Expense
Year and the amount thereof allocated to the tenants of the Building, and which
shall indicate the amount, if any, of any excess ("EXCESS"). Upon receipt of the
Statement for each Expense Year ending during the Lease Term, if an Excess is
present, Tenant shall pay, with its next installment of Base Rent due, the full
amount of the Excess for such Expense Year, less the amounts, if any, paid
during such Expense Year as "Estimated Amount," as that term is defined in
Section 4.4.3, below. The failure of Landlord to timely furnish the Statement
for any Expense Year shall not prejudice Landlord or Tenant from enforcing its
rights under this Article 4. Even though the Lease Term has expired and Tenant
has vacated the Premises, when the final determination is made of Tenant's Share
of Project Expenses allocated to the tenants of the Building for the Expense
Year in which this Lease terminates, if an Excess is present, Tenant shall
immediately pay to Landlord an amount as calculated pursuant to the provisions
of Section 4.4.1 of this Lease. The provisions of this Section 4.4.2 shall
survive the expiration or earlier termination of the Lease Term for six (6)
months. In the event Tenant's payment of Project Expenses for an Expense Year
exceeds Tenant's Share of Project Expenses for such year, Landlord shall credit
such excess to the amount of Project Expenses next becoming due from Tenant.
4.4.3 Statement of Estimated Project Expenses. In addition, Landlord
shall endeavor to give Tenant a yearly expense estimate statement (the "ESTIMATE
STATEMENT") which shall set forth Landlord's reasonable
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estimate (the "ESTIMATE") of what the total amount of Project Expenses for the
then-current Expense Year shall be, the amount thereof to be allocated to the
tenants of the Building, and the estimated amount (the "ESTIMATED AMOUNT"). The
failure of Landlord to timely furnish the Estimate Statement for any Expense
Year shall not preclude Landlord from enforcing its rights to collect any
Estimated Amount under this Article 4. If pursuant to the Estimate Statement an
Estimated Amount is calculated for the then-current Expense Year, Tenant shall
pay, with its next installment of Base Rent due, a fraction of the Estimated
Amount for the then-current Expense Year (reduced by any amounts paid pursuant
to the last sentence of this Section 4.4.3). Such fraction shall have as its
numerator the number of months which have elapsed in such current Expense Year,
including the month of such payment, and twelve (12) as its denominator. Until a
new Estimate Statement is furnished (which Landlord shall have the right to
deliver to Tenant at any time), Tenant shall pay monthly, with the monthly Base
Rent installments, an amount equal to one-twelfth (1/12) of the total Estimated
Amount set forth in the previous Estimate Statement delivered by Landlord to
Tenant.
4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible.
Tenant shall reimburse Landlord upon demand for any and all taxes required to be
paid by Landlord, excluding state, local and federal personal or corporate
income taxes measured by the net income of Landlord from all sources and estate
and inheritance taxes, whether or not now customary or within the contemplation
of the parties hereto, when:
4.5.1 Said taxes are measured by or reasonably attributable to the
cost or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises, or by the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, to the extent the cost
or value of such leasehold improvements exceeds the cost or value of a building
standard build-out as determined by Landlord regardless of whether title to such
improvements shall be vested in Tenant or Landlord;
4.5.2 Said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion of the Project (including
the Project parking facility); or
4.5.3 Said taxes are assessed upon this transaction or any document
to which Tenant is a party creating or transferring an interest or an estate in
the Premises.
ARTICLE 5
USE OF PREMISES
Tenant shall use the Premises solely for biotechnology research and
general office and related purposes consistent with the character of the
Building, and Tenant shall not use or permit the Premises to be used for any
other purpose or purposes whatsoever. Tenant further covenants and agrees that
Tenant shall not use, or suffer or permit any person or persons to use, the
Premises or any part thereof for any use or purpose contrary to the provisions
of the Rules and Regulations set forth in Exhibit "C", attached hereto, or in
violation of the laws of the United States of America, the State of California,
or the ordinances, regulations or requirements of the local municipal or county
governing body or other lawful authorities having jurisdiction over the Project.
Tenant shall comply with all recorded covenants, conditions, and restrictions
now or hereafter affecting the Project. Tenant shall not use or allow another
person or entity to use any part of the Premises for the storage, use,
treatment, manufacture or sale of "Hazardous Material," as that term is defined
in Section 31.22 of this Lease, which is in violation of federal, state, or
local law.
ARTICLE 6
SERVICES AND UTILITIES
6.1 Standard Tenant Services. Except as set forth herein, Landlord shall
provide to the Building and the Project (subject to the reimbursement either
through Tenant's Share of Project Expenses or direct payment by Tenant either to
Landlord or to the service provider, all as may be provided herein) the
following services on all days (unless otherwise stated below) during the Lease
Term.
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6.1.1 Landlord shall provide adequate electrical wiring and
facilities and power for normal general commercial use as determined by
Landlord. Tenant shall bear the cost of replacement of lamps, starters and
ballasts for lighting fixtures within the Premises.
6.1.2 Landlord shall provide water for drinking, lavatory and toilet
purposes.
6.2 Overstandard Tenant Use. Tenant shall have the right to install
separate metering devices, supplementary air conditioning units or other
facilities in the Premises, including supplementary or additional metering
devices, and the cost thereof, including the cost of installation, operation and
maintenance, increased wear and tear on existing equipment and other similar
charges, shall be paid by Tenant. If the Premises are not separately metered,
should Tenant use water, electricity, heat or air conditioning in excess of that
otherwise paid for by Tenant's Share of Operating Expenses pursuant to this
Lease, Tenant shall pay to Landlord, upon billing, the cost of such excess
consumption, the cost of the installation, operation, and maintenance of
equipment which is installed in order to supply such excess consumption, and the
cost of the increased wear and tear on existing equipment caused by such excess
consumption; and Landlord may install devices to separately meter any increased
use and in such event Tenant shall pay the increased cost directly to Landlord,
on demand, including the cost of such additional metering devices.
6.3 Interruption of Use. Landlord shall use commercially reasonable
efforts to furnish services described in this section; provided, however, Tenant
agrees that Landlord shall not be liable for damages, by abatement of Rent or
otherwise, for failure to furnish or delay in furnishing any service (including
telephone and telecommunication services), or for any diminution in the quality
or quantity thereof, when such failure or delay or diminution is occasioned, in
whole or in part, by repairs, replacements, or improvements, by any strike,
lockout or other labor trouble, by inability to secure electricity, gas, water,
or other fuel at the Building or Project after reasonable effort to do so, by
any accident or casualty whatsoever, by act or default of Tenant or other
parties, or by any other cause beyond Landlord's reasonable control; and such
failures or delays or diminution shall never be deemed to constitute an eviction
or disturbance of Tenant's use and possession of the Premises or relieve Tenant
from paying Rent or performing any of its obligations under this Lease.
Furthermore, Landlord shall not be liable under any circumstances for a loss of,
or injury to, property or for injury to, or interference with, Tenant's
business, including, without limitation, loss of profits, however occurring,
through or in connection with or incidental to a failure to furnish any of the
services or utilities as set forth in this Article 6. However, should Tenant be
unable to use the Premises for the purpose set forth herein for a period of
greater than five (5) consecutive business days, and if such inability to use
the Premises for the purpose stated herein is solely due to Landlord's failure
to use commercially reasonable efforts to provide the services described in this
section, then Tenant shall be entitled to an equitable abatement of Base Rent
only. Landlord hereby agrees that Tenant shall be entitled to install, at
Tenant's sole cost and expense, and upon Landlord's further written approval as
to the size and location and installation of such generator, which approval
shall not be unreasonably withheld, conditioned or delayed, a generator or other
alternate provider of such utilities for purposes of providing alternate utility
service to the Premises.
ARTICLE 7
REPAIRS
Tenant shall, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Lease Term. In addition, Tenant shall, at
Tenant's own expense and within any reasonable period of time specified by
Landlord, promptly and adequately repair all damage to the Premises and replace
or repair all damaged, broken, or worn fixtures and appurtenances; provided
however, that, if Tenant fails to make such repairs within a reasonable period
of time, Landlord may, but need not, make such repairs and replacements, and
Tenant shall pay Landlord the cost thereof, including a reasonable percentage of
the cost thereof sufficient to reimburse Landlord for all overhead, general
conditions, fees and other costs or expenses arising from Landlord's involvement
with such repairs and replacements forthwith upon being billed for same.
Landlord may, but shall not be required to, enter the Premises at all reasonable
times to make such repairs, alterations, improvements or additions to the
Premises or to the Project or to any equipment located in the Project as
Landlord shall desire or deem necessary or as Landlord may be required to do by
governmental or quasi-governmental authority or court order or decree. Tenant
hereby waives and releases its right to make repairs at
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Landlord's expense under Sections 1941 and 1942 of the California Civil Code or
under any similar law, statute, or ordinance now or hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 Landlord's Consent to Alterations. Subsequent to the completion of the
Tenant Work, as described in the Tenant Work Letter, Tenant may not make any
improvements, alterations, additions or changes to the Premises (collectively,
the "ALTERATIONS") without first procuring the prior written consent of Landlord
to such Alterations, which consent shall be requested by Tenant not less than
ten (10) days prior to the commencement thereof, and which consent shall not be
unreasonably withheld or delayed by Landlord; provided however, that Tenant may
make non-structural, interior, non-penetrating modifications to the Premises,
not exceeding a threshold of $50,000 per instance, or $100,000 per year or
$200,000 during the Lease Term, upon fifteen (15) days prior notice to Landlord.
Tenant may, however, install power, cable and related equipment and make
non-structural, interior, non-penetrating modifications to the Premises not
exceeding $10,000 per instance without prior notice to Landlord. The
construction of the initial improvements to the Premises shall be governed by
the terms of the Tenant Work Letter and not the terms of this Article 8.
8.2 Manner of Construction. Landlord may impose, as a condition of its
prior consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its sole discretion may deem
desirable, including, but not limited to, the requirement that upon Landlord's
request, Tenant shall, at Tenant's expense, remove such Alterations upon the
expiration or any early termination of the Lease Term (such items to be removed
by Tenant shall be determined by Landlord concurrent with its prior consent to
the Alterations), and/or the requirement that Tenant utilize for such purposes
only contractors, materials, mechanics and materialmen reasonably approved by
Landlord. Tenant shall construct such Alterations and perform such repairs in
conformance with any and all applicable federal, state, county or municipal
laws, rules and regulations and pursuant to a valid building permit, issued by
the City of San Diego, all in conformance with Landlord's construction rules and
regulations. All work with respect to any Alterations must be done in a good and
workmanlike manner and diligently prosecuted to completion to the end that the
Premises shall at all times be a complete unit except during the period of work.
In performing the work of any such Alterations, Tenant shall have the work
performed in such manner so as not to obstruct access to the Project or any
portion thereof, by any other tenant of the Project, and so as not to obstruct
the business of Landlord or other tenants in the Project, or interfere with the
labor force working in the Project. In addition to Tenant's obligations under
Article 9 of this Lease, upon completion of any Alterations, Tenant agrees to
cause a Notice of Completion to be recorded in the office of the Recorder of the
County of San Diego in accordance with Section 3093 of the Civil Code of the
State of California or any successor statute, if required, and Tenant shall
deliver to the Project management office a reproducible copy of the "as built"
drawings of the Alterations.
8.3 Payment for Improvements. In the event Tenant requests that any
Alterations or repair work be performed directly by Landlord, the charges for
such work shall be deemed Additional Rent under this Lease, payable within five
(5) days of billing therefor, either periodically during construction or upon
the substantial completion of such work, at Landlord's option. Upon completion
of such work, Tenant shall deliver to Landlord evidence of payment, contractors'
affidavits and full and final waivers of all liens for labor, services or
materials. Tenant shall pay to Landlord a percentage of the cost of such work
sufficient to compensate Landlord for all overhead, general conditions, fees and
other costs and expenses arising from Landlord's involvement with such work,
which amount shall not exceed five percent (5%) of the costs of such work.
8.4 Construction Insurance. In the event that Tenant makes any Alterations
Tenant agrees to carry "Builder's All Risk" insurance in an amount approved by
Landlord covering the construction of such Alterations, and such other insurance
as Landlord may require, it being understood and agreed that all of such
Alterations shall be insured by Tenant pursuant to Article 10 of this Lease
immediately upon completion thereof. In addition, Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee.
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8.5 Landlord's Property. All Alterations, improvements, fixtures and/or
equipment which may be installed or placed in or about the Premises, and all
signs installed in, on or about the Premises, from time to time, shall be at the
sole cost of Tenant and shall be and become the property of Landlord, except
that Tenant may remove (i) any Alterations, improvements, fixtures and/or
equipment which Tenant can substantiate to Landlord have not been paid for with
any Tenant improvement allowance funds provided to Tenant by Landlord and (ii)
those items approved in writing by Landlord from time to time, provided Tenant
repairs any damage to the Premises and Building caused by such removal.
Furthermore, if Landlord, as a condition to Landlord's consent to any
Alteration, requires, as aforesaid, that Tenant remove any Alteration upon the
expiration or early termination of the Lease Term, Landlord may, by written
notice to Tenant prior to the end of the Lease Term, or given following any
earlier termination of this Lease, require Tenant, at Tenant's expense, to
remove such Alterations and to repair any damage to the Premises and Building
caused by such removal. If Tenant fails to complete such removal and/or to
repair any damage caused by the removal of any Alternations, Landlord may do so
and may charge the cost thereof to Tenant.
ARTICLE 9
COVENANT AGAINST LIENS
Landlord shall have the right at all times to post and keep posted on the
Premises any notice which it deems necessary for protection from such liens.
Tenant covenants and agrees not to suffer or permit any lien of mechanics or
materialmen or others to be placed against the Project, the Building or the
Premises, or any portion thereof, with respect to work or services claimed to
have been performed for or materials claimed to have been furnished to Tenant or
the Premises, and, in case of any such lien attaching or notice of any lien,
Tenant covenants and agrees to cause it to be immediately released and removed
of record. Notwithstanding anything to the contrary set forth in this Lease, in
the event that such lien is not released and removed on or before the date
occurring five (5) days after notice of such lien is delivered by Landlord to
Tenant, Landlord, at its sole option, may immediately take all action necessary
to release and remove such lien, without any duty to investigate the validity
thereof, and all sums, costs and expenses, including reasonable attorneys' fees
and costs, incurred by Landlord in connection with such lien shall be deemed
Additional Rent under this Lease and shall immediately be due and payable by
Tenant.
ARTICLE 10
INSURANCE
10.1 Indemnification and Waiver. To the extent not prohibited by law,
Landlord, its partners, subpartners and their respective officers, agents,
servants, employees, and independent contractors (collectively, "LANDLORD
PARTIES") shall not be liable for, any damage either to person or property or
resulting from the loss of use thereof, which damage is sustained by Tenant.
Tenant shall, either prior to, during, or after the expiration of the Lease
Term, indemnify, defend, protect, and hold harmless Landlord Parties from any
and all loss, cost, damage, expense and liability (including without limitation
court costs and reasonable attorneys' fees) incurred in connection with or
arising from any cause in, on or about the Premises during the Lease Term,
provided that the terms of the foregoing indemnity shall not apply to the gross
negligence or willful misconduct of Landlord. The provisions of this Section
10.1 shall survive the expiration or sooner termination of this Lease with
respect to any claims or liability occurring prior to such expiration or
termination.
10.2 Tenant's Compliance with Landlord's Fire and Casualty Insurance.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises. If Tenant's conduct or use
of the Premises causes any increase in the premium for such insurance policies
then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3 Tenant's Insurance. Tenant shall maintain the following coverages in
the following amounts.
10.3.1 Comprehensive General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
arising out of Tenant's operations, assumed liabilities or use of the Premises,
including a Broad Form Comprehensive General Liability endorsement covering the
insuring provisions
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of this Lease and the performance by Tenant of the indemnity agreements set
forth in Section 10.1 of this Lease, for limits of liability not less than:
Bodily Injury and
Property Damage Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office furniture,
trade fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises installed by, for, or at the expense of Tenant, (ii)
the Tenant Improvements, and (iii) all other improvements, alterations and
additions to the Premises. Such insurance shall be written on an "all risks" of
physical loss or damage basis, for the full replacement cost value new without
deduction for depreciation of the covered items and in amounts that meet any
co-insurance clauses of the policies of insurance and shall include a vandalism
and malicious mischief endorsement, sprinkler leakage coverage and earthquake
sprinkler leakage coverage.
10.3.3 Worker's Compensation and Employer's Liability Insurance,
with a waiver of subrogation endorsement, with minimum limits of $1,000,000 per
employee and $1,000,000 per occurrence.
10.3.4 Loss of income and extra expense insurance in such amounts as
will reimburse Tenant for direct or indirect loss of earnings attributable to
all perils commonly insured against by prudent tenants or attributable to
prevention of access to the Premises or to the Building as a result of such
perils.
10.4 Form of Policies. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. All insurance shall (i) be issued by an insurance
company having a rating of not less than A-X in Best's Insurance Guide or which
is otherwise acceptable to Landlord and licensed to do business in the State of
California; and (ii) provide that said insurance shall not be canceled or
coverage changed unless thirty (30) days' prior written notice shall have been
given to Landlord and any mortgagee or ground or underlying lessor of Landlord.
In addition, the insurance described in Section 10.3.1 above shall (a) name
Landlord, and any other party specified by Landlord, as an additional insured;
(b) specifically cover the liability assumed by Tenant under this Lease
including, but not limited to, Tenant's obligations under Section 10.1 of this
Lease; (c) be primary insurance as to all claims thereunder and provide that any
insurance required by Landlord is excess and is non-contributing with any
insurance requirement of Tenant; and (d) contain a cross-liability endorsement
or severability of interest clause acceptable to Landlord. Tenant shall deliver
said policy or policies or certificates thereof to Landlord on or before the
Lease Commencement Date and at least thirty (30) days before the expiration
dates thereof. In the event Tenant shall fail to procure such insurance, or to
deliver such certificate, Landlord may, at its option, procure such policies for
the account of Tenant, and the costs of it shall be paid to Landlord as
Additional Rent within five (5) days after delivery to Tenant of bills therefor.
10.5 Subrogation. Landlord and Tenant agree to have their respective
insurance companies issuing property damage and loss of insurance and extra
expense insurance waive any rights of subrogation that such companies may have
against Landlord or Tenant, as the case may be, so long as the insurance carried
by Landlord and Tenant, respectively, is not invalidated thereby. As long as
such waivers of subrogation are contained in their respective insurance
policies, Landlord and Tenant hereby waive any right that either may have
against the other on account of any loss or damage to the extent such loss or
damage is insurable under such policies of insurance.
10.6 Additional Insurance Obligations. Tenant shall carry and maintain
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10, and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant's operations therein, as may
be reasonably requested by Landlord.
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ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any Common Areas serving or providing access to the
Premises shall be damaged by fire or other casualty, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, and subject to all other terms of
this Article 11, restore the Base, Shell, and Core of the Premises and such
Common Areas. Such restoration shall be to substantially the same condition of
the Base, Shell, and Core of the Premises and the Common Areas prior to the
casualty, except for modifications required by zoning and building codes and
other laws or by the holder of a mortgage on the Building or Project or any
other modifications to the Common Areas deemed desirable by Landlord; provided
that access to the Premises and any common restrooms serving the Premises shall
not be materially impaired. Upon the occurrence of any damage to the Premises,
Tenant shall repair any injury or damage to the Tenant Improvements installed in
the Premises and shall return such Tenant Improvements to their original
condition; provided that if the cost of such repair exceeds the amount of
insurance proceeds received by Tenant from Tenant's insurance carrier, the cost
of such repairs shall be paid by Tenant prior to repair of the damage. In
connection with such repairs and replacements, Tenant shall, prior to the
commencement of construction, submit to Landlord, for Landlord's review and
approval, all plans, specifications and working drawings relating thereto, and
Landlord shall reasonably approve the contractors selected by Tenant to perform
such improvement work. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or its visitors, or injury to Tenant's business resulting in
any way from such damage or the repair thereof; provided however, that if such
fire or other casualty shall have damaged the Premises or Common Areas necessary
to Tenant's occupancy, and if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant's employees, contractors, licensees, or
invitees, Landlord shall allow Tenant a proportionate abatement of Rent to the
extent Landlord is reimbursed from the proceeds of rental interruption insurance
purchased by Landlord as part of Operating Expenses, during the time and to the
extent the Premises are unfit for occupancy for the purposes permitted under
this Lease, and not occupied by Tenant as a result thereof.
11.2 Option to Repair or Terminate. Notwithstanding the terms of Section
11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, Building and/or Project; and either Landlord or Tenant may instead
elect to terminate this Lease by notifying the other party in writing of such
termination within ten (10) days after the date Landlord's architect notifies
each party pursuant to Subsection 11.2(i) below, such notice to include a
termination date of ninety (90) days after such written election to terminate,
but such party may so elect only if the Building or Project shall be damaged by
fire or other casualty or cause, whether or not the Premises are affected, and
one or more of the following conditions is present: (i) Landlord's architect
determines, and notifies both parties in writing, that repairs cannot reasonably
be completed within one hundred eighty (180) days after the date Landlord
receives or will receive insurance proceeds for such damages (when such repairs
are made without the payment of overtime or other premiums); (ii) the holder of
any mortgage on the Building or Project or ground lessor with respect to the
Building or Project is successful in requiring that the insurance proceeds or
any portion thereof be used to retire the mortgage debt, or shall terminate the
ground lease, as the case may be; (iii) the damage arises from flood, earthquake
or other events not customarily covered by standard replacement insurance
policies; or (iv) any owner of any other portion of the Project, other than
Landlord, does not intend to repair the damage to such portion of the Project.
11.3 Waiver of Statutory Provisions. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the State of California, including, without limitation, Sections 1932(2) and
1933(4) of the California Civil Code, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Premises, the Building or the Project.
11.4 Damage Near End of Term. In the event that the Premises, the
Building, or the Project is destroyed or damaged to any substantial extent,
which would render the repair or replacement an undesirable, unreasonable, or
unsound investment decision taking into account financial feasibility and
timing, as reasonably
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determined by Landlord, during the last twelve (12) months of the Lease Term,
then notwithstanding this Article 11, Landlord shall have the option to
terminate this Lease by giving written notice to Tenant of the exercise of such
option within ninety (90) days after Landlord learns of the necessity for
repairs as the result of such damage or destruction, in which event this Lease
shall cease and terminate as of the date of such notice, Tenant shall pay the
Base Rent and Additional Rent, properly apportioned up to such date of damage,
and both parties hereto shall thereafter be freed and discharged of all further
obligations hereunder, except as provided for in provisions of this Lease which
by their terms survive the expiration or earlier termination of the Lease Term.
ARTICLE 12
NONWAIVER
No waiver of any provision of this Lease shall be implied by any failure
of Landlord to enforce any remedy on account of the violation of such provision,
even if such violation shall continue or be repeated subsequently, and any
waiver by Landlord of any provision of this Lease may only be in writing.
Additionally, no express waiver shall affect any provision other than the one
specified in such waiver and then only for the time and in the manner
specifically stated. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
ARTICLE 13
CONDEMNATION
13.1 Permanent Taking. If a substantial part of the Premises, Building or
Project shall be taken by power of eminent domain or condemned by any competent
authority for any public or quasi-public use or purpose, or if Landlord shall
grant a deed or other instrument in lieu of such taking by eminent domain or
condemnation, either party shall have the option to terminate this Lease upon
one hundred eighty (180) days' notice, provided such notice is given no later
than one hundred eighty (180) days after the date of such taking, condemnation,
reconfiguration, vacation, deed or other instrument. If more than twenty-five
percent (25%) of the rentable square feet of the Premises is taken, or if access
to the Premises is substantially impaired, Tenant shall have the option to
terminate this Lease upon ninety (90) days' notice, provided such notice is
given no later than one hundred eighty (180) days after the date of such taking.
Landlord shall be entitled to the entire award or payment in connection
therewith, except that Tenant shall have the right to file any separate claim
available to Tenant for any taking of Tenant's personal property and fixtures
belonging to Tenant and removable by Tenant upon expiration of the Lease Term
pursuant to the terms of this Lease, and for moving expenses, so long as such
claims do not diminish the award available to Landlord, its ground lessor with
respect to the Building or Project or its mortgagee, and such claim is payable
separately to Tenant. All Rent shall be apportioned as of the date of such
termination, or the date of such taking, whichever shall first occur. If any
part of the Premises shall be taken, and this Lease shall not be so terminated,
the Rent shall be proportionately abated. Tenant hereby waives any and all
rights it might otherwise have pursuant to Section 1265.130 of The California
Code of Civil Procedure.
13.2 Temporary Taking. Notwithstanding anything to the contrary contained
in this Article 13, in the event of a temporary taking of all or any portion of
the Premises for a period of one hundred and eighty (180) days or less, then
this Lease shall not terminate but the Base Rent and the Additional Rent shall
be abated for the period of such taking in proportion to the ratio that the
number of rentable square feet of the Premises taken bears to the total number
of rentable square feet of the Premises. Landlord shall be entitled to receive
the entire award made in connection with any such temporary taking.
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ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 Transfers. Tenant shall not, without the prior written consent of
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise transfer, this Lease or any interest hereunder, permit
any assignment, or other transfer of this Lease or any interest hereunder by
operation of law, sublet the Premises or any part thereof, or permit the use of
the Premises by any persons other than Tenant and its employees (all of the
foregoing are hereinafter sometimes referred to collectively as "TRANSFERS" and
any person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "TRANSFEREE"). If Tenant desires Landlord's consent
to any Transfer, Tenant shall notify Landlord in writing, which notice (the
"TRANSFER NOTICE") shall include (i) the proposed effective date of the
Transfer, which shall not be less than twenty (20) days nor more than one
hundred eighty (180) days after the date of delivery of the Transfer Notice,
(ii) a description of the portion of the Premises to be transferred (the
"SUBJECT SPACE"), (iii) all of the material terms of the proposed Transfer and
the consideration therefor (including calculation of the "Transfer Premium", as
that term is defined in Section 14.3 below, in connection with such Transfer),
the name and address of the proposed Transferee, and a copy of all existing
executed and/or proposed documentation pertaining to the proposed Transfer,
including all existing operative documents to be executed to evidence such
Transfer or the agreements incidental or related to such Transfer, and (iv)
current financial statements of the proposed Transferee certified by an officer,
partner or owner thereof, and any other information reasonably required by
Landlord to determine the financial responsibility, character, and reputation of
the proposed Transferee, nature of such Transferee's business and proposed use
of the Subject Space, and such other information as Landlord may reasonably
require. Any Transfer made without Landlord's prior written consent shall, at
Landlord's option, be null, void and of no effect, and shall, at Landlord's
option, constitute a default by Tenant under Section 19.1.7 of this Lease.
Whether or not Landlord consents to any proposed Transfer, Tenant shall pay
Landlord's review and processing fees, as well as any reasonable legal fees (up
to $2,500) incurred by Landlord, within thirty (30) days after written request
by Landlord.
14.2 Landlord's Consent. Landlord shall not unreasonably withhold its
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby agree that it
shall be reasonable under this Lease and under any applicable law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply:
14.2.1 The Transferee is of a character or reputation or engaged in
a business which is not consistent with the quality of the Building or the
Project, or would be a significantly less prestigious occupant of the Building
than Tenant;
14.2.2 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.3 The Transferee intends to use the Subject Space for purposes
which are not permitted under this Lease;
14.2.4 The Transfer will result in more than a reasonable and safe
number of occupants per floor within the Subject Space;
14.2.5 The Transferee is not a party of reasonable financial worth
and/or financial stability in light of the responsibilities involved under the
Lease on the date consent is requested;
14.2.6 The proposed Transfer would cause a violation of another
lease for space in the Project, or would give an occupant of the Project a right
to cancel its lease;
14.2.7 The terms of the proposed Transfer will allow the Transferee
to exercise a right of renewal, right of expansion, right of first offer, or
other similar right held by Tenant (or will allow the Transferee to occupy space
leased by Tenant pursuant to any such right); or
14.2.8 Either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (i) occupies space in the
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Project at the time of the request for consent, (ii) is negotiating with
Landlord to lease space in the Project at such time, or (iii) has negotiated
with Landlord, for the Project, during the twelve (12)-month period immediately
preceding the Transfer Notice.
If Landlord consents to any Transfer pursuant to the terms of this
Section 14.2 (and does not exercise any recapture rights Landlord may have under
Section 14.4 of this Lease), Tenant may within six (6) months after Landlord's
consent, but not later than the expiration of said six-month period, enter into
such Transfer of the Premises or portion thereof, upon substantially the same
terms and conditions as are set forth in the Transfer Notice furnished by Tenant
to Landlord pursuant to Section 14.1 of this Lease, provided that if there are
any material changes in the terms and conditions from those specified in the
Transfer Notice (i) such that Landlord would initially have been entitled to
refuse its consent to such Transfer under this Section 14.2, or (ii) which would
cause the proposed Transfer to be more favorable to the Transferee than the
terms set forth in Tenant's original Transfer Notice, Tenant shall again submit
the Transfer to Landlord for its approval and other action under this Article 14
(including Landlord's right of recapture, if any, under Section 14.4 of this
Lease). Notwithstanding any contrary provisions of this Lease, if Tenant or any
proposed Transferee claims that Landlord has unreasonably withheld or delayed
its consent to a proposed Transfer or otherwise has breached its obligations
under this Article, Tenant's and such Transferee's only remedy shall be to seek
a declaratory judgment and/or injunctive relief, and Tenant, on behalf of itself
and, to the extent permitted by law, such proposed Transferee, waives all other
remedies against Landlord, including without limitation, the right to seek
monetary damages or terminate this Lease.
14.3 Transfer Premium.
14.3.1 Definition of Transfer Premium. If Landlord consents to a
Transfer, as a condition thereto which the parties hereby agree is reasonable,
Tenant shall pay to Landlord 50% of any "Transfer Premium," as that term is
defined in this Section 14.3, received by Tenant from such Transferee. "TRANSFER
PREMIUM" shall mean all rent, additional rent or other consideration payable by
such Transferee in excess of the Rent and Additional Rent payable by Tenant
under this Lease on a per rentable square foot basis if less than all of the
Premises is transferred, after deducting the reasonable expenses incurred by
Tenant for (i) any changes, alterations and improvements to the Premises in
connection with the Transfer, and (ii) any brokerage commissions in connection
with the Transfer (collectively, the "SUBLEASING COSTS"). "Transfer Premium"
shall also include, but not be limited to, key money and bonus money paid by
Transferee to Tenant in connection with such Transfer, and any payment in excess
of fair market value for (A) services rendered by Tenant to Transferee, or (B)
for assets, fixtures, inventory, equipment, or furniture transferred by Tenant
to Transferee in connection with such Transfer. The payment of a Transfer
Premium shall not apply to those transfers set forth in Section 14.6 or 14.7
below.
14.3.2 Payment of Transfer Premiums. The determination of the amount
of the Transfer Premium shall be made on an annual basis in accordance with the
terms of this Section 14.3.2, but an estimate of the amount of the Transfer
Premium shall be made each month and one-twelfth of such estimated amount shall
be paid to Landlord promptly, but in no event later than the next date for
payment of Base Rent hereunder, subject to an annual reconciliation on each
anniversary date of the Transfer. If the payments to Landlord under this Section
14.3.2 during the twelve (12) months preceding each annual reconciliation exceed
the amount of Transfer Premium determined on an annual basis, then Landlord
shall credit the overpayment against Tenant's future obligations under this
Section 14.3.2 or if the overpayment occurs during the last year of the Transfer
in question, refund the excess to Tenant. If Tenant has underpaid the Transfer
Premium, as determined by such annual reconciliation, Tenant shall pay the
amount of such deficiency to Landlord promptly, but in no event later than the
next date for payment of Basic Rent hereunder. For purposes of calculating the
Transfer Premium on an annual basis, Tenant's Subleasing Costs shall be deemed
to be offset against the first rent, additional rent or other consideration
payable by the Transferee, until such Subleasing Costs are exhausted.
14.3.3 Calculations of Rent. In the calculation of the Rent, as it
relates to the Transfer Premium calculated under Section 14.3.1 above, the Rent
paid during each annual period for the Subject Space by Tenant, shall be
computed after adjusting such rent to the actual effective rent to be paid,
taking into consideration any and all leasehold concessions granted in
connection therewith, including, but not limited to, any rent credit and tenant
improvement allowance. For purposes of calculating any such effective rent, all
such concessions shall be amortized on a straight-line basis over the relevant
term.
14.4 Intentionally Omitted.
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14.5 Effect of Transfer. If Landlord consents to a Transfer, (i) the terms
and conditions of this Lease shall in no way be deemed to have been waived or
modified, (ii) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (iii) Tenant shall deliver to Landlord,
promptly after execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to Landlord, (iv)
Tenant shall furnish upon Landlord's request a complete statement, certified by
an independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer, and (v) no Transfer relating to
this Lease or agreement entered into with respect thereto, whether with or
without Landlord's consent, shall relieve Tenant or any guarantor of the Lease
from liability under this Lease. Landlord or its authorized representatives
shall have the right at all reasonable times to audit the books, records and
papers of Tenant relating to any Transfer, and shall have the right to make
copies thereof. If the Transfer Premium respecting any Transfer shall be found
understated, Tenant shall, within thirty (30) days after demand, pay the
deficiency and Landlord's costs of such audit, and if understated by more than
ten percent (l0%), Landlord shall have the right to cancel this Lease upon
thirty (30) days' notice to Tenant.
14.6 Additional Transfers. For purposes of this Lease, the term "Transfer"
shall also include (i) if Tenant is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of twenty-five percent (25%) or
more of the partners, or transfer of twenty-five percent or more of partnership
interests, within a twelve (12)-month period, or the dissolution of the
partnership without immediate reconstitution thereof, and (ii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), (A) the dissolution, merger,
consolidation or other reorganization of Tenant or, (B) the sale or other
transfer of more than an aggregate of twenty-five percent (25%) of the voting
shares of Tenant (other than to immediate family members by reason of gift or
death) within a twelve (12)-month period, or (C) the sale, mortgage,
hypothecation or pledge of more than an aggregate of twenty-five percent (25%)
of the value of the unencumbered assets of Tenant within a twelve (12)-month
period.
14.7 Permitted Transfers. An "AFFILIATE" means any entity that (i)
controls, is controlled by, or is under common control with Tenant, (ii) results
from the transfer of all or substantially all of Tenant's assets or stock, or
(iii) results from the merger or consolidation of Tenant with another entity.
"CONTROL" means the direct or indirect ownership of more than fifty percent
(50%) of the voting securities of an entity or possession of the right to vote
more than fifty (50%) of the voting interest in the ordinary direction of the
entity's affairs. Notwithstanding anything to the contrary contained in the
Lease, Landlord's consent shall not be required for any assignment of this Lease
or sublease of all or a portion of the Premises to an Affiliate so long as the
following conditions are met: (a) at least thirty (30) business days before any
such assignment or sublease, Landlord receives written notice of such assignment
or sublease (as well as any documents or information reasonably requested by
Landlord regarding the proposed intended transfer and the transferee); (b)
Tenant is not then and has not been in default under this Lease; (c) if the
transfer is an assignment or any other transfer to an Affiliate other than a
sublease, the intended assignee assumes in writing all of Tenant's obligations
under this Lease relating to the Premises in form satisfactory to Landlord or,
if the transfer is a sublease, the intended sublessee accepts the sublease in
form satisfactory to Landlord; (d) the intended transferee has a tangible net
worth, as evidenced by financial statements delivered to Landlord and certified
by an independent certified public accountant in accordance with generally
accepted accounting principles that are consistently applied, at least equal to
the net worth of the original Tenant under the Lease as of the Effective Date ;
(e) the Premises shall continue to be operated solely for the use specified in
the Lease; and (f) Tenant shall pay to Landlord all costs reasonably incurred by
Landlord or any mortgagee or ground lessor for such assignment or subletting,
including, without limitation, reasonable attorneys' fees. No transfer to an
Affiliate in accordance with this subparagraph shall relieve Tenant named herein
of any obligation under this Lease or alter the primary liability of Tenant
named herein for the payment of Rent or for the performance of any other
obligation to be performed by Tenant, including the obligations contained in the
Lease with respect to any Affiliate.
ARTICLE 15
SURRENDER OF PREMISES;
REMOVAL OF TRADE FIXTURES
15.1 Surrender of Premises. No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in a writing signed by Landlord. The delivery of keys
to the
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Premises to Landlord or any agent or employee of Landlord shall not constitute a
surrender of the Premises or effect a termination of this Lease, whether or not
the keys are thereafter retained by Landlord, and notwithstanding such delivery
Tenant shall be entitled to the return of such keys at any reasonable time upon
request until this Lease shall have been properly terminated. The voluntary or
other surrender of this Lease by Tenant, whether accepted by Landlord or not, or
a mutual termination hereof, shall not work a merger, and at the option of
Landlord shall operate as an assignment to Landlord of all subleases or
subtenancies affecting the Premises.
15.2 Removal of Tenant Property by Tenant. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear and repairs which are specifically made the responsibility of Landlord
hereunder excepted. Upon such expiration or termination, Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, and such items of furniture, equipment, free-standing cabinet work,
and other articles of personal property owned by Tenant or installed or placed
by Tenant at its expense in the Premises, and such similar articles of any other
persons claiming under Tenant, as Landlord may, in its sole discretion, require
to be removed, and Tenant shall repair at its own expense all damage to the
Premises and Building resulting from such removal.
15.3 Removal of Tenant's Property by Landlord. Whenever Landlord shall
re-enter the Premises as provided in this Lease, any personal property of Tenant
not removed by Tenant upon the expiration of the Lease Term, or within five (5)
days after a termination by reason of Tenant's default as provided in this
Lease, shall be deemed abandoned by Tenant and may be disposed of by Landlord in
accordance with Sections 1980 through 1991 of the California Civil Code and
Section 1174 of the California Code of Civil Procedure, or in accordance with
any laws or judicial decisions which may supplement or supplant those provisions
from time to time.
15.4 Landlord's Actions on Premises. Tenant hereby waives, and releases
Landlord from, all claims for damages or other liability in connection with
Landlord's or its agents' or representatives' reentering and taking possession
of the Premises or removing, retaining, storing or selling the property of
Tenant as herein provided, and Tenant hereby indemnifies and holds Landlord
harmless from any such damages or other liability, and no such re-entry shall be
considered or construed to be a forcible entry.
ARTICLE 16
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term hereof, with
or without the express or implied consent of Landlord, such tenancy shall be
from month-to-month only, and shall not constitute a renewal hereof or an
extension for any further term, and in such case Base Rent shall be payable at a
monthly rate not to exceed one and one-half (1 1/2) the Base Rent applicable
during the last rental period of the Lease Term under this Lease. Such
month-to-month tenancy shall be subject to every other applicable term, covenant
and agreement contained herein. Nothing contained in this Article 16 shall be
construed as consent by Landlord to any holding over by Tenant, and Landlord
expressly reserves the right to require Tenant to surrender possession of the
Premises to Landlord as provided in this Lease upon the expiration or other
termination of this Lease. The provisions of this Article 16 shall not be deemed
to limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law. If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold
Landlord harmless from all loss, costs (including reasonable attorneys' fees)
and liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender (including such tenant's lost profits) and any
lost profits to Landlord resulting therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) days following a request in writing by Landlord, Tenant
shall execute and deliver to Landlord an estoppel certificate, which, as
submitted by Landlord, shall be substantially in the form of Exhibit "D,"
attached hereto (or such other form as may be required by any prospective
mortgagee or purchaser of the Project, or
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any portion thereof), indicating therein any exceptions thereto that may exist
at that time, and shall also contain any other information reasonably requested
by Landlord or Landlord's mortgagee or prospective mortgagee. Tenant shall
execute and deliver whatever other instruments may be reasonably required for
such purposes. Failure of Tenant to timely execute and deliver such estoppel
certificate or other instruments shall constitute an acceptance of the Premises
and an acknowledgment by Tenant that statements included in the estoppel
certificate are true and correct, without exception.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
first mortgage or trust deed, now or hereafter in force against the Building or
Project, if any, and to all renewals, extensions, modifications, consolidations
and replacements thereof, and to all advances made or hereafter to be made upon
the security of such mortgages or trust deeds, unless the holders of such
mortgages or trust deeds, or the lessors under such ground lease or underlying
leases, require in writing that this Lease be superior thereto. Tenant covenants
and agrees in the event any proceedings are brought for the foreclosure of any
such mortgage or deed in lieu thereof, to attorn, without any deductions or
set-offs whatsoever, to the purchaser or any successors thereto upon any such
foreclosure sale or deed in lieu thereof if so requested to do so by such
purchaser, and to recognize such purchaser as the lessor under this Lease.
Tenant shall, within five (5) days of request by Landlord, execute such further
instruments or assurances as Landlord may reasonably deem necessary to evidence
or confirm the subordination or superiority of this Lease to any such mortgages,
trust deeds, ground leases or underlying leases. Tenant waives the provisions of
any current statute, rule or law which may give or purport to give Tenant any
right or election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
ARTICLE 19
DEFAULTS: REMEDIES
19.1 Defaults. The occurrence of any of the following shall constitute a
default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due; or
19.1.2 Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for fifteen (15) days after written notice
thereof from Landlord to Tenant; or
19.1.3 Abandonment or vacation of the Premises by Tenant; or
19.1.4 To the extent permitted by law, a general assignment by
Tenant or any guarantor of the Lease for the benefit of creditors, or the filing
by or against Tenant or any guarantor of any proceeding under an insolvency or
bankruptcy law, unless in the case of a proceeding filed against Tenant or any
guarantor the same is dismissed within sixty (60) days, or the appointment of a
trustee or receiver to take possession of all or substantially all of the assets
of Tenant or any guarantor, unless possession is restored to Tenant or such
guarantor within thirty (30) days, or any execution or other judicially
authorized seizure of all or substantially all of Tenant's assets located upon
the Premises or of Tenant's interest in this Lease, unless such seizure is
discharged within thirty (30) days; or
19.1.5 The hypothecation or assignment of this Lease or subletting
of the Premises, or attempts at such actions, in violation of Article 14 hereof.
19.2 Remedies Upon Default. Upon the occurrence of any event of default by
Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity, the option to pursue any one or more of the
following remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever.
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19.2.1 Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or any part
thereof, without being liable for prosecution or any claim or damages therefor;
and Landlord may recover from Tenant the following:
(i) The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, specifically including but not
limited to, brokerage commissions and advertising expenses incurred,
expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use, and any special
concessions made to obtain a new tenant: and
(v) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to be
and to mean all sums of every nature required to be paid by Tenant pursuant to
the terms of this Lease, whether to Landlord or to others. As used in Sections
19.2.l(i) and (ii), above, the "worth at the time of award" shall be computed by
allowing interest at the rate set forth in Article 25 of this Lease, but in no
case greater than the maximum amount of such interest permitted by law. As used
in Section 19.2.l(iii) above, the "worth at the time of award" shall be computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).
19.2.2 Landlord shall have the remedy described in California Civil
Code Section 1951.4 (lessor may continue lease in effect after lessee's breach
and abandonment and recover rent as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease, including the right to recover
all Rent as it becomes due.
19.3 Sublessees of Tenant. Whether or not Landlord elects to terminate
this Lease on account of any default by Tenant as set forth in this Article 19,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord's sole discretion, succeed
to Tenant's interest in such subleases, licenses, concessions or arrangements.
In the event of Landlord's election to succeed to Tenant's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the date
of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder.
19.4 Form of Payment After Default. Following the occurrence of an event
of default by Tenant, Landlord shall have the right to require that any or all
subsequent amounts paid by Tenant to Landlord hereunder, whether in the cure of
the default in question or otherwise, be paid in the form of cash, money order,
cashier's or certified check drawn on an institution acceptable to Landlord, or
by other means approved by Landlord, notwithstanding any prior practice of
accepting payments in any different form.
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19.5 Waiver of Default. No waiver by Landlord or Tenant of any violation
or breach of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other or later violation or
breach of the same or any other of the terms, provisions, and covenants herein
contained. Forbearance by Landlord in enforcement of one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. The acceptance of any Rent hereunder by
Landlord following the occurrence of any default, whether or not known to
Landlord, shall not be deemed a waiver of any such default, except only a
default in the payment of the Rent so accepted.
19.6 Efforts to Relet. For the purposes of this Article 19, Tenant's right
to possession shall not be deemed to have been terminated by efforts of Landlord
to relet the Premises, by its acts of maintenance or preservation with respect
to the Premises, or by appointment of a receiver to protect Landlord's interests
hereunder. The foregoing enumeration is not exhaustive, but merely illustrative
of acts which may be performed by Landlord without terminating Tenant's right to
possession.
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
SECURITY DEPOSIT
Concurrent with Tenant's execution of this Lease, Tenant shall deposit
with Landlord a security deposit (the "SECURITY DEPOSIT") in the amount set
forth in Section 8 of the Summary. The Security Deposit shall be held by
Landlord as security for the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the Lease Term. If Tenant defaults with respect to any provisions 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 the Security Deposit for the payment of any Rent or any other sum in
default, or for the payment of any amount that Landlord may spend or become
obligated to spend by reason of Tenant's default, or to compensate Landlord for
any other loss or damage that Landlord may suffer by reason of Tenant's default.
If any portion of the Security 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 default under this Lease. If Tenant
shall fully and faithfully perform every provision of this Lease to be performed
by it, the Security Deposit, or any balance thereof, shall be returned to
Tenant, or, at Landlord's option, to the last assignee of Tenant's interest
hereunder, within sixty (60) days following the expiration of the Lease Term.
Tenant shall not be entitled to any interest on the Security Deposit. Tenant
hereby waives the provisions of Section 1950.7 of the California Civil Code, and
all other provisions of law, now or hereafter in force, which provide that
Landlord may claim from a security deposit only those sums reasonably necessary
to remedy defaults in the payment of rent, to repair damage caused by Tenant or
to clean the Premises, it being agreed that Landlord may, in addition, claim
those sums reasonably necessary to compensate Landlord for any other loss or
damage, foreseeable or unforeseeable, caused by the acts or omissions of Tenant
or any officer, employee, agent, contractor or invitee of Tenant.
ARTICLE 22
INTENTIONALLY OMITTED
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[Structural GenomiX, Inc.]
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ARTICLE 23
SIGNS
Tenant's identifying signage shall be provided by Landlord, at Tenant's
cost, and such signage shall be comparable to that used by Landlord for other
similar tenants in the Building and shall comply with Landlord's Building
standard signage program. If applicable, Tenant shall also be entitled to have
Tenant's name be listed, at Tenant's sole cost and expense, on a directory sign
in the main lobby of the Building, and Tenant shall be entitled to a maximum of
three (3) lines on the building directory, at Tenant's sole cost and expense.
Any signs, notices, logos, pictures, names or advertisements which are installed
and that have not been separately approved by Landlord may be removed without
notice by Landlord at the sole expense of Tenant. Except as provided herein,
Tenant may not install any signs on the exterior or roof of the Project or the
Common Areas. Notwithstanding any contrary provision, Tenant may place any and
all safety-related signage as required by law. Any signs (even if the same are
located behind the Landlord-approved window coverings for the Building), or
other items visible from the exterior of the Premises or Building, shall be
subject to the prior approval of Landlord, in its sole discretion.
Landlord agrees that, for so long as Structural GenomiX, Inc., as the
original Tenant under this Lease, leases and occupies at least 24,960 rentable
square feet of the Building, Structural GenomiX, Inc. may place its name on the
Building; and provided that: (1) such signage is not prohibited by any
applicable code, ordinance, statute, rule or regulation or by any action or rule
of any landmark commission having jurisdiction, (2) all consents necessary from
all governmental authorities and landmark commissions having jurisdiction are
reasonably obtainable and are first obtained and (3) the exact design, copy,
location, color, construction, and size of the proposed signage shall be
previously approved, in writing, by Landlord.
Tenant will bear the costs associated with creating, designing,
manufacturing, and installing the signage set forth in the paragraph above.
Tenant shall bear the cost of illuminating said signage and all costs of
operating and maintaining said illumination (including bulbs and ballasts)
("Lighting Costs"). If any Lighting Cost is invoiced to Landlord, such cost
shall become additional rent due upon invoice therefor from Landlord. Landlord
shall otherwise insure and maintain the signage, the costs of which will be
includable in Project Expenses.
Upon termination or expiration of this Lease or of Tenant's right to
possession of the Premises or if Tenant does not lease and occupy at least
24,960 rentable square feet in the Building, Tenant shall, at Tenant's sole
expense, remove such signage and restore and repair all parts of the Building
affected by the installation or removal of said signage, to the condition
existing prior to its installation or to a condition acceptable to Landlord.
Landlord shall be permitted to grant to other Tenants of the Building the
right to install signage on the exterior of the Building.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
other governmental rule, regulation or requirement now in force or which may
hereafter be enacted or promulgated. At its sole cost and expense, Tenant shall
promptly comply with all such governmental measures, other than the making of
structural changes or changes to the Building's life safety system. Should any
standard or regulation now or hereafter be imposed on Landlord or Tenant by a
state, federal or local governmental body charged with the establishment,
regulation and enforcement of occupational, health or safety standards for
employers, employees, landlords or tenants, then Tenant agrees, at its sole cost
and expense, to comply promptly with such standards or regulations. The judgment
of any court of competent jurisdiction or the admission of Tenant in any
judicial action, regardless of whether Landlord is a party thereto, that Tenant
has violated any of said governmental measures, shall be conclusive of that fact
as between Landlord and Tenant.
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[Structural GenomiX, Inc.]
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ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within three (3) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the overdue amount plus any attorneys' fees incurred by Landlord
by reason of Tenant's failure to pay Rent and/or other charges when due
hereunder. The late charge shall be deemed Additional Rent and the right to
require it shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner. In addition to the late charge
described above, any Rent or other amounts owing hereunder which are not paid
within three (3) days after the date they are due shall bear interest from the
date when due until paid at a rate per annum equal to the lesser of (i) eighteen
percent (18%) per annum or (ii) the highest rate permitted by applicable law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT;
PAYMENTS BY TENANT
26.1 Landlord's Cure. All covenants and agreements to be kept or performed
by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any reduction of Rent. If Tenant shall fail to perform
any of its obligations under this Lease, within a reasonable time after such
performance is required by the terms of this Lease, Landlord may, but shall not
be obligated to, after reasonable prior notice to Tenant (except in the case of
an emergency), make any such payment or perform any such act on Tenant's part
without waiving its rights based upon any default of Tenant and without
releasing Tenant from any obligations hereunder.
26.2 Tenant's Reimbursement. Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, within thirty (30) days
after delivery by Landlord to Tenant of statements therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant's defaults pursuant to the provisions
of Section 26.1; (ii) sums equal to all losses, costs, liabilities, damages and
expenses referred to in Article 10 of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all legal fees and other amounts so expended. Tenant's obligations
under this Section 26.2 shall survive the expiration or sooner termination of
the Lease Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord and its representatives and independent contractors reserve the
right at all reasonable times and upon reasonable notice to Tenant (except in
the case of an emergency) to enter the Premises with a representative of Tenant
to (i) inspect them; (ii) show the Premises to prospective purchasers,
mortgagees or tenants, or to the ground or underlying lessors; (iii) inspect
and/or maintain the monitoring well(s) located inside the Premises and in the
Common Area or parking area serving the Premises (the "MONITORING Well(s)") and
for purposes of servicing the extraction unit located in the parking area (the
"EXTRACTION UNIT"); (iv) post notices of nonresponsibility; or (v) alter,
improve or repair the Premises or the Building if necessary to comply with
current building codes or other applicable laws, or for structural alterations,
repairs or improvements to the Building. Notwithstanding anything to the
contrary contained in this Article 27, Landlord may enter the Premises at any
time to (A) perform services required of Landlord; (B) take possession due to
any breach of this Lease in the manner provided herein; and (C) perform any
covenants of Tenant which Tenant fails to perform. Tenant hereby acknowledges
that the Monitoring Well(s) and Extraction Unit have been placed within the
Project for the purposes of monitoring and assessing the Existing Hazardous
Materials, as the same is hereinafter defined, and Tenant has approved of the
location of the same and of Landlord's access to the same throughout the Lease
Term. Landlord may make any such entries without the abatement of Rent and may
take such reasonable steps as required to accomplish the stated purposes. Tenant
hereby waives any claims for damages or for any injuries or inconvenience to or
interference with
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[Structural GenomiX, Inc.]
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Tenant's business, lost profits, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. For each of the above purposes,
Landlord shall at all times have a key with which to unlock all the doors in the
Premises, excluding Tenant's vaults, safes and special security areas designated
in advance by Tenant. In an emergency, Landlord shall have the right to use any
means that Landlord may deem proper to open the doors in and to the Premises.
Any entry into the Premises by Landlord in the manner hereinbefore described
shall not be deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an actual or constructive eviction of Tenant from any portion
of the Premises.
ARTICLE 28
TENANT PARKING
Tenant hereby rents from Landlord, commencing on the Lease Commencement
Date, a pro-rata share of the parking spaces, on a monthly basis throughout the
Lease Term, which parking spaces shall pertain to the Project parking facility.
Such rental shall permit Tenant and its employees to use, on a nonexclusive,
as-available basis, together with other tenants and their respective employees,
any undesignated, unreserved spaces available in such parking facility from time
to time. Tenant shall pay to Landlord for automobile parking spaces on a monthly
basis the prevailing rate charged from time to time for parking spaces in the
Project, which shall be $0 per pass per month for the initial Lease Term.
Landlord specifically reserves the right to change the size, configuration,
design, layout and all other aspects of the Project parking facility at any time
and Tenant acknowledges and agrees that Landlord may, without incurring any
liability to Tenant and without any abatement of Rent under this Lease, from
time to time, close-off or restrict access to the Project parking facility for
purposes of permitting or facilitating any such construction, alteration or
improvements. The parking spaces rented by Tenant pursuant to this Article 28
are provided to Tenant solely for use by Tenant's own personnel and such spaces
may not be transferred, assigned, subleased or otherwise alienated by Tenant
without Landlord's prior approval. Tenant's invitees and guests may use parking
spaces in such parking facility which are not allocated or reserved for Tenant
or other occupants or visitors of the Building or Project on a first-come,
first-serve basis, upon payment of Landlord's then prevailing parking rate. The
parking passes allocated to Tenant are not for long term storage of automobiles,
or for short or long term storage of boats, trailers, recreational vehicles,
motorcycles or other vehicles or equipment.
ARTICLE 29
EARLY TERMINATION AND CONFIDENTIALITY
29.1 Termination of Lease. Should Landlord not acquire insurable fee title
to the Project from the current owner ("SELLER") (and insurable leasehold
interests as to any ground leasehold portions of the Project) prior to sixty
(60) days after the Effective Date of this Lease, Landlord and Tenant shall have
the right to terminate this Lease by written notice (the "EARLY TERMINATION
NOTICE") from the party electing to terminate to the other party. If either
Landlord or Tenant exercises its right to terminate, the Lease Term shall
terminate on the date of the delivery of the Early Termination Notice (the
"EARLY TERMINATION DATE"). If either party exercises such right to terminate,
then Landlord shall reimburse Tenant for its actual out-of-pocket costs incurred
in connection with the negotiation and or upon reasonable reliance upon this
Lease; provided, however, such reimbursement shall not exceed $100,000.
29.2 Confidentiality. The parties acknowledge and agree that the terms and
provisions of this Lease are confidential and such confidentiality shall remain
in effect before, on and after the execution and delivery of this Lease. In
furtherance of the foregoing, any documents, instruments, records or other
information delivered by one party to the other shall be deemed confidential
information. The provisions of this Section shall survive the expiration or
termination of this Lease. Without limiting the generality of the foregoing,
Tenant and its management, members, officers, directors and employees shall not
contact, disclose, discuss, or negotiate with the Seller in connection with any
matter relating to the Project.
29.3 Existing Tenant. Landlord shall use commercially reasonable efforts
to obtain an early termination of the Lazer Armortech lease which expires on
December 31, 2002 and is not renewable at Lazer Armortech's option; provided,
however, Landlord shall not be required to offer concessions or consideration in
connection with such efforts.
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
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ARTICLE 30
RIGHT OF FIRST REFUSAL
30.1. Right of First Refusal. For so long as Structural GenomiX, Inc., as
the original Tenant under this Lease, or its Affiliates, leases and occupies at
least 24,000 rentable square feet, Structural GenomiX, Inc. shall retain a right
of first offer with respect to any and all additional available rentable area
located in the Project (the "FIRST OFFER SPACE"). Notwithstanding the foregoing,
such first offer right shall commence only following the expiration or earlier
termination of any existing lease (including renewals) in the First Offer Space,
Tenant's right of first offer shall be on the terms and conditions set forth in
this Article 30.
30.2 Procedure. Landlord shall notify Tenant (the "FIRST OFFER NOTICE")
from time to time when the First Offer Space or any portion thereof becomes
available for lease to third parties. Pursuant to such First Offer Notice,
Landlord shall offer to lease to Tenant the then available First Offer Space for
the remainder of the term under this Lease for the existing Premises. The First
Offer Notice shall describe the space so offered to Tenant and shall set forth
the "First Offer Rent," as that term is defined below. The First Offer Space
shall be offered to Tenant on substantially the same material economic terms per
square foot as Tenant is then paying under this Lease, taking into account,
among other factors, the amount of time then remaining in the Lease Term and the
then unamortized portion of the Tenant Improvements for the Premises (the "FIRST
OFFER RENT"). The First Offer Rent shall be reasonably determined by Landlord
and, at Landlord's election, may include (i) a tenant improvement allowance per
square foot, or, alternatively, (ii) a lesser rent per square foot with no
tenant improvement allowance.
30.3 Procedure for Acceptance. If Tenant wishes to exercise Tenant's right
of first refusal with respect to the space described in the First Offer Notice,
then within five (5) business days of delivery of the First Offer Notice to
Tenant, Tenant shall deliver notice to Landlord of Tenant's intention to
exercise its right of first offer with respect to the entire space described in
the First Offer Notice on the terms contained in such notice ("TENANT NOTICE").
If Tenant does not so notify Landlord within the five (5) business day period,
then Landlord shall be free to lease the space described in the First Offer
Notice to anyone to whom Landlord desires on any terms Landlord desires.
Notwithstanding anything to the contrary contained herein, Tenant must elect to
exercise its right of first refusal, if at all, with respect to all of the space
offered by Landlord to Tenant at any particular time, and Tenant may not elect
to lease only a portion thereof.
30.4 Intentionally Omitted.
30.5 Construction In First Offer Space. Unless Landlord agrees to
construct tenant improvements, Tenant shall take the First Offer Space in its
"as is" condition.
30.6 Amendment to Lease. If Tenant timely exercises Tenant's right to
lease the First Offer Space as set forth herein, Landlord and Tenant shall
within fifteen (15) days thereafter execute a separate lease for such First
Offer Space upon the terms and conditions as set forth in the First Offer Notice
and this Article 30. Tenant shall commence payment of Rent for the First Offer
Space, and the term of the First Offer Space shall commence upon the date of
delivery of the First Offer Space to Tenant (the "FIRST OFFER COMMENCEMENT
DATE") and terminate on the date set forth in the First Offer Notice.
30.7 Termination of Right of First Offer. The rights contained in this
Article 30 shall be personal to the Tenant named in the Summary, and its
Affiliates, and may only be exercised by Tenant and its Affiliates (and not any
assignee, sublessee or other transferee of Tenant's interest in this Lease) if
Tenant occupies the entire Premises. The right of first offer granted herein
shall terminate as to particular First Offer Space upon the failure by Tenant to
exercise its right of first offer with respect to such First Offer Space as
offered by Landlord. Tenant shall not have the right to lease First Offer Space,
as provided in this Article 30, if, as of the date of the attempted exercise of
any right of first offer by Tenant, or as of the scheduled date of delivery of
such First Offer Space to Tenant, Tenant is in default under this Lease or
Tenant has previously been in default under this Lease more than once.
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
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ARTICLE 31
MISCELLANEOUS PROVISIONS
31.1 Binding Effect. Subject to all other provisions of this Lease, each
of the provisions of this Lease shall extend to and shall, as the case may
require, bind or inure to the benefit not only of Landlord and of Tenant, but
also of their respective successors or assigns, provided this clause shall not
permit any assignment by Tenant contrary to the provisions of Article 14 of this
Lease.
31.2 Modification of Lease. Should any current or prospective mortgagee or
ground lessor for the Building or Project require a modification or
modifications of this Lease, which modification or modifications will not cause
an increased cost or expense to Tenant or in any other way materially and
adversely change the rights and obligations of Tenant hereunder, then and in
such event, Tenant agrees that this Lease may be so modified and agrees to
execute whatever documents are reasonably required therefor and to deliver the
same to Landlord within ten (10) days following a request therefor. Should
Landlord or any such prospective mortgagee or ground lessor require execution of
a short form of Lease for recording, containing, among other customary
provisions, the names of the parties, a description of the Premises and the
Lease Term, Tenant agrees to execute and deliver such short form of Lease to
Landlord within ten (10) days following the request therefor.
31.3 Transfer of Landlord's Interest. Tenant acknowledges that Landlord
has the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of transfer. Tenant further
acknowledges that Landlord may assign its interest in this Lease to the holder
of any mortgage or deed of trust as additional security, but agrees that an
assignment shall not release Landlord from its obligations hereunder and Tenant
shall continue to look to Landlord for the performance of its obligations
hereunder.
31.4 Prohibition Against Recording. Except as provided in Section 31.2 of
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this Lease null and void at Landlord's election.
31.5 Captions. The captions of Articles and Sections are for convenience
only and shall not be deemed to limit, construe, affect or alter the meaning of
such Articles and Sections.
31.6 Time of Essence. Time is of the essence of this Lease and each of its
provisions.
31.7 Partial Invalidity. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term, provision or condition to persons
or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
31.8 No Warranty. In executing and delivering this Lease, Tenant has not
relied on any representations, including, but not limited to, any representation
as to the amount of any item comprising Additional Rent or the amount of the
Additional Rent in the aggregate or that Landlord is furnishing the same
services to other tenants, at all, on the same level or on the same basis, or
any warranty or any statement of Landlord which is not set forth herein or in
one or more of the exhibits attached hereto.
31.9 Entire Agreement. It is understood and acknowledged that there are no
oral agreements between the parties hereto affecting this Lease and this Lease
supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease and
any side letter or separate agreement executed by Landlord and Tenant in
connection with this Lease and dated of even date herewith, contain all of the
terms, covenants, conditions, warranties and agreements of the parties relating
in any manner to the rental, use and occupancy of the Premises and shall be
considered to be the only agreements between the parties hereto and their
representatives and agents. None of the
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[Structural GenomiX, Inc.]
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terms, covenants, conditions or provisions of this Lease can be modified,
deleted or added to except in writing signed by the parties hereto.
31.10 Right to Lease. Landlord reserves the absolute right to effect such
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.
31.11 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, the "FORCE MAJEURE"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure.
31.12 Notices. All notices, demands, statements, designations, approvals
or other communications (collectively, "NOTICES") given or required to be given
by either party to the other hereunder shall be in writing, shall be sent by
United States certified or registered mail, postage prepaid, return receipt
requested, or delivered personally (i) to Tenant at the appropriate address set
forth in Section 11 of the Summary, or to such other place as Tenant may from
time to time designate in a Notice to Landlord; or (ii) to Landlord at the
following addresses, or to such other firm or to such other place as Landlord
may from time to time designate in a Notice to Tenant:
BRS TORREY I, LLC
c/o Mr. Matt Root
The Shidler Group
4660 La Jolla Village Drive, Suite 800
San Diego, CA 92122
with copies to:
Teel, Palmer & Roeper, LLP
8910 University Center Lane, Suite 630
San Diego, California 92122
Attn: Dean E. Roeper, Esq.
Any Notice will be deemed given on the date it is mailed as provided in this
Section 31.12 or upon the date personal delivery is made. If Tenant is notified
of the identity and address of the holder of any deed of trust or ground or
underlying lessor, Tenant shall give to such mortgagee or ground or underlying
lessor written notice of any default by Landlord under the terms of this Lease
by registered or certified mail, and such mortgagee or ground or underlying
lessor shall be given a reasonable opportunity to cure such default prior to
Tenant's exercising any remedy available to Tenant.
31.13 Joint and Several. If there is more than one Tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
31.14 Authority. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in California and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so.
31.15 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
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[Structural GenomiX, Inc.]
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31.16 Submission of Lease. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or an option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
31.17 Brokers. Landlord and Tenant hereby warrant to each other that they
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease, excepting only the real estate brokers or agents
specified in Section 10 of the Summary (the "BROKERS"), and that they know of no
other real estate broker or agent who is entitled to a commission in connection
with this Lease. Each party agrees to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including,
without limitation, reasonable attorneys' fees) with respect to any leasing
commission or equivalent compensation alleged to be owing on account of any
dealings with any real estate broker or agent, other than the Brokers, occurring
by, through, or under the indemnifying party.
31.18 Independent Covenants. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord; provided, however, that the foregoing shall in no
way impair the right of Tenant to commence a separate action against Landlord
for any violation by Landlord of the provisions hereof so long as notice is
first given to Landlord and any holder of a mortgage or deed of trust covering
the Building or Project or any portion thereof, whose address has theretofore
been given to Tenant, and an opportunity is granted to Landlord and such holder
to correct such violations as provided above.
31.19 Project or Building Name and Signage. Landlord shall have the right
at any time to change the name of the Project or Building and to install, affix
and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
31.20 Transportation Management. Tenant shall fully comply with all
present or future programs intended to manage parking, transportation or traffic
in and around the Project or Building, and in connection therewith, Tenant shall
take responsible action for the transportation planning and management of all
employees located at the Premises by working directly with Landlord, any
governmental transportation management organization or any other
transportation-related committees or entities. Such programs may include,
without limitation: (i) restrictions on the number of peak-hour vehicle trips
generated by Tenant; (ii) increased vehicle occupancy; (iii) implementation of
an in-house ridesharing program and an employee transportation coordinator; (iv)
working with employees and any Project, Building or area-wide ridesharing
program manager; (v) instituting employer-sponsored incentives (financial or
in-kind) to encourage employees to rideshare; and (vi) utilizing flexible work
shifts for employees.
31.21 No Discrimination. Tenant covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through
Tenant, and this Lease is made and accepted upon and subject to the following
conditions: that there shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, sex, religion,
marital status, ancestry or national origin in the leasing, subleasing,
transferring, use, or enjoyment of the Premises, nor shall Tenant itself, or any
person claiming under or through Tenant, establish or permit such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy, of tenants, lessees, sublessees, subtenants
or vendees in the Premises.
31.22 Environmental Matters.
31.22.1 Hazardous Material. As used herein, the term "HAZARDOUS
MATERIAL" means any hazardous or toxic substance, material or waste which is or
becomes regulated by, or is dealt with in, any local governmental authority, the
State of California or the Unites States Government. Tenant acknowledges that
Landlord may incur costs (i) for complying with laws, codes, regulations or
ordinances relating to Hazardous Material, or (ii) otherwise in connection with
Hazardous Material including, without limitation, the following: (a) Hazardous
Material present in soil or ground water, (b) Hazardous Material that migrates,
flows, percolates, diffuses or in any way moves onto or under the Project, (c)
Hazardous Material present on or under the Project as a result of any discharge,
dumping or spilling (whether accidental or otherwise) on the Project by other
tenants of the Project or their agents, employees, contractors or invitees, or
by others, and (d) material which becomes Hazardous
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Material due to a change in laws, codes, regulations or ordinances which relate
to hazardous or toxic material, substances or waste. Tenant agrees that the
costs incurred by Landlord with respect to, or in connection with, the Project
for complying with laws, codes, regulations or ordinances relating to Hazardous
Material shall be an Operating Expense, unless the cost of such compliance, as
between Landlord and Tenant, is made the responsibility of Tenant under this
Lease. To the extent any such Operating Expense relating to Hazardous Material
is subsequently recovered or reimbursed through insurance, or recovery from
responsible third parties, or other action, Tenant shall be entitled to a
proportionate share of such Operating Expense to which such recovery or
reimbursement relates.
31.22.2 Representation and Warranties of Tenant.
31.22.2.1 Tenant has received and reviewed the environmental
documents listed in Exhibit "F" ("ENVIRONMENTAL DOCUMENTS"). Tenant acknowledges
that hazardous substances, hazardous materials, wastes, pollutants or
contaminants of the type and nature identified in the Environmental Documents,
or similar or related types or organic and or inorganic substances have been
used and are present or potentially present at the Project at the locations
identified in the Environmental Documents and, potentially, at other locations
at the Project that have not been identified (hereinafter referred to as
"SUBSTANCES").
31.22.2.2 Tenant shall inform and/or disclose, prior to the
commencement of Tenant Work under this Lease and the Tenant Work Letter attached
as Exhibit "E", in a manner reasonably approved by Landlord, to its employees,
contractors, subcontractors and anyone else conducting Tenant Work on the
Project under contract or the supervision or direction of the Tenant or its
Contractor, as defined in Exhibit "E" ("WORKER" or "WORKERS"), the content of
the Environmental Documents, including, without limitation, the type, location,
extent and magnitude and hazards associated with the Substances, present or
potentially present at the Project.
31.22.3 Tenant Release and Indemnification of Landlord. Tenant shall
release, waive and forever discharge Landlord, and indemnify, defend and hold
Landlord and its owners, officers, directors, employees, agents, successors and
assigns ("LANDLORD INDEMNITEES") harmless from and against all losses, claims,
demands, liabilities, obligations, causes of actions, damages, costs, fees,
expenses, fines or penalties including, without limitation, reasonable attorney
fees and the cost and expense to the Landlord Indemnitees of enforcing the
foregoing indemnity obligation (collectively, "LOSSES") asserted against any
Landlord Indemnitee, or incurred by Landlord Indemnitee, arising from or related
to:
31.22.3.1 the performance of the Tenant Work by Tenant,
Contractor or Workers and their owner's officers, directors, employees, agents,
successors and assigns;
31.22.3.2 Tenant's breach of any representation or warranty
under this Subsection 31.22.3;
31.22.3.3 any personal injury or property damage attributable
to the presence of or exposure to Substances suffered by Tenant, Contractor or
any Worker and their owner's officers, directors, employees, agents, successors
and assigns;
31.22.3.4 any exacerbation of existing environmental
conditions, whether or not identified in the Environmental Documents, caused by
Tenant, Contractor or any Worker and their owner's officers, directors,
employees, agents, successors and assigns;
31.22.3.5 creation of environmental conditions not identified
in the Environmental Documents caused by Tenant, Contractor or Worker and their
owner's officers, directors, employees, agents, successors and assigns.
Notwithstanding anything contrary herein, Tenant's obligations
under this Section shall not extend to losses attributable to the negligence or
willful misconduct of Landlord. The foregoing indemnification obligations shall
survive the expiration or termination of this Lease.
31.22.4 Baseline Environmental Report. Sixty (60) days prior to the
Lease Expiration Date or earlier termination hereof, Tenant shall, at its sole
cost and expense, perform such environmental site assessment of
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environmental conditions in connection with the Project as may be reasonably
required by Landlord, specifically including both a Phase I and/or Phase II
Environmental Report, to confirm to Landlord if any violation of the terms and
conditions of this Article 31 have occurred ("VIOLATIONS") (including, but not
limited to, sampling, testing and analysis of soil, water, air, building
materials and other materials and substances whether solid, liquid or gas), and
share with Landlord the reports and other results thereof, and Landlord shall be
entitled to rely on such reports and other results thereof. Tenant shall, at its
sole cost and expense, comply with all reasonable written requests of Landlord
to reasonably effectuate remediation of any condition (including, but not
limited to, a release of a Hazardous Material) in, on, under or from the Project
arising from or in connection with a Violation.
31.22.5 Environmental Insurance; Assignment of Indemnity. In the
event Landlord acquires environmental insurance coverage insuring Landlord
against loss or damage caused by the contamination of the Project and arising
out of the presence of Hazardous Material, then Landlord shall add Tenant as an
additional insured to such policy of insurance but only for loss or injury
caused by the presence of Hazardous Material existing on the Project or the
Premises as of the Commencement Date (the "EXISTING HAZARDOUS MATERIALS"). Such
coverage shall insure Tenant against loss or damage caused by such Existing
Hazardous Material, but only to the extent that proceeds are available to
compensate Tenant after compensating Landlord for any of its losses. In other
words, Tenant's rights to any proceeds under such insurance shall be subrogated
and subordinated to Landlord's rights to such proceeds. In addition, if Landlord
acquires a contractual indemnity for loss or damage arising out of the presence
of any Existing Hazardous Material, from either the previous owner of the
Project or the prior tenant of the Project, then and only to the extent that
such indemnification obligation is assignable, Landlord shall, by execution of
such documents as Landlord may reasonably deem commercially reasonable, assign
the benefits of such indemnity to Tenant, but only to the extent that the
proceeds from such indemnity are available to compensate Tenant after
compensating Landlord for any of its losses. In other words, Tenant's rights to
any proceeds under such indemnity shall be subrogated and subordinated to
Landlord's rights to such proceeds.
31.22.6 Landlord Release of Tenant. Landlord shall release, waive
and forever discharge Tenant for any responsibility for Losses arising from or
related to the Existing Hazardous Materials, provided that such Losses are not
as a result, in whole or in part, of any of the actions or inactions of Tenant
or other parties as described in Subsection 31.22.3 above or are otherwise
covered by the Tenant's obligation to indemnify Landlord.
31.23 Development of the Project.
31.23.1 Subdivision. Tenant acknowledges that the Project has been
subdivided. Landlord reserves the right to further subdivide all or a portion of
the buildings and Common Areas in the Project. Tenant agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents needed to conform this Lease to the circumstances resulting
from a subdivision and any all maps in connection therewith. Notwithstanding
anything to the contrary set forth in this Lease, the separate ownership of any
buildings and/or Common Areas of the Project by an entity other than Landlord
shall not affect the calculation of Project Expenses or Tenant's payment of
Tenant's Share of Project Expenses.
31.23.2 The Other Improvements. If portions of the Project or
property adjacent to the Project (collectively, the "OTHER IMPROVEMENTS") are
owned by an entity other than Landlord, Landlord, at its option, may enter into
an agreement with the owner or owners of any of the Other Improvements to
provide (i) for reciprocal rights of access, use and/or enjoyment of the Project
and the Other Improvements, (ii) for the common management, operation,
maintenance, improvement and/or repair of all or any portion of the Project and
all or any portion of the Other Improvements, (iii) for the allocation of a
portion of the Project Expenses to the Other Improvements and the allocation of
a portion of the operating expenses and taxes for the Other Improvements to the
Project, (iv) for the use or improvement of the Other Improvements and/or the
Project in connection with the improvement, construction, and/or excavation of
the Other Improvements and/or the Project, and (v) for any other matter which
Landlord deems necessary. Nothing contained herein shall be deemed or construed
to limit or otherwise affect Landlord's right to sell all or any portion of the
Project or any other of Landlord's rights described in this Lease.
31.23.3 Construction of Project and Other Improvements. Tenant
acknowledges that portions of the Project and/or the Other Improvements may be
under construction following Tenant's occupancy of -the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.,
which are in excess of that present in a fully constructed project. Tenant
hereby waives any and all rent offsets or claims of constructive eviction which
may arise in connection with such construction.
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[Structural GenomiX, Inc.]
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31.24 Landlord Exculpation. It is expressly understood and agreed that
notwithstanding anything in this Lease to the contrary, and notwithstanding any
applicable law to the contrary, the liability of Landlord hereunder (including
any successor landlord hereunder) and any recourse by Tenant against Landlord
shall be limited solely and exclusively to the lesser of (a) the equity interest
of Landlord in the Building or (b) the equity interest Landlord would have in
the Building if the Building were encumbered by third-party debt in an amount
equal to eighty percent (80%) of the value of the Building (as such value is
determined by Landlord), and neither Landlord, nor any of its constituent
partners or subpartners, shall have any personal liability therefor, and Tenant,
on behalf of itself and all persons claiming by, through or under Tenant, hereby
expressly waives and releases Landlord and such partners and subpartners from
any and all personal liability.
31.25 Waiver of Redemption by Tenant. Tenant hereby waives for Tenant and
for all those claiming under Tenant, all rights now or hereafter existing to
redeem by order or judgment of any court or by any legal process or writ,
Tenant's right of occupancy of the Premises after any termination of this Lease.
31.26 Attorneys' Fees. If either party commences litigation against the
other for the specific performance of this Lease, for damages for the breach
hereof or otherwise for enforcement of any remedy hereunder, the parties hereto
agree to and hereby do waive any right to a trial by jury and, in the event of
any such commencement of litigation, the prevailing party shall be entitled to
recover from the other party such costs and reasonable attorneys' fees as may
have been incurred, including any and all costs incurred in enforcing,
perfecting and executing such judgment.
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[Structural GenomiX, Inc.]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"LANDLORD": BRS TORREY I, LLC,
a Delaware limited liability company
By: /s/ [Illegible]
------------------------------------
____________________________________
Its: Member
By:
_______________________________
Its:
_______________________________
"TENANT": STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: /s/ Tim Harris
------------------------------------
Name: T. Harris
Title: Pres & CEO
By: /s/ [Illegible]
------------------------------------
Name: [Illegible]
Title: EVP
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[Structural GenomiX, Inc.]
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EXHIBIT "A"
TORREY SORRENTO I BUSINESS PARK,
(10575/10581 Roselle Street, San Diego, California)
OUTLINE OF PREMISES
[FLOOR PLAN]
EXHIBIT "A" - Page 1
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
EXHIBIT "B"
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
NOTICE OF LEASE TERM DATES
To:
_________________________________
_________________________________
_________________________________
Re: Lease dated ________________________, 2001 between BRS TORREY I,
LLC, a Delaware limited liability company ("LANDLORD"), and
STRUCTURAL GENOMIX, INC., a Delaware corporation ("TENANT")
concerning Suite _________ on floor(s) ___________ of the office
building located at 10575/10581 Roselle Street, San Diego,
California.
Gentlemen:
In accordance with the referenced Lease (the "LEASE"), we wish to advise
you and/or confirm as follows:
1. The Substantial Completion of the Premises has occurred, and the Lease
Term shall commence on or has commenced on ________________________ for a term
of ____________________________ ending on ________________________________.
2. Rent commenced to accrue on ________________________________, in the
amount of ________________________________.
3. If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the Lease.
4. Your rent checks should be made payable to _________________________ at
________________________________________________________________.
5. The exact number of rental square feet within the Premises is
_________________________ square feet.
6. Base Rent, as adjusted based upon the exact number of rentable square
feet within the Premises, is as follows:
_______________________________________________________________________________.
EXHIBIT "B" - Page 1
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
7. Tenant's Share, as adjusted based upon the exact number of rentable
square feet within the Premises, is ________%.
"LANDLORD": BRS TORREY I, LLC,
a Delaware limited liability company
By: _____________________________________
Its: ____________________________________
By: _____________________________________
Its: ___________________________
Agreed to and Accepted as
of ___________________, 2001
"TENANT":
STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: ______________________________
Its: _________________________
EXHIBIT "B" - Page 2
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
EXHIBIT "C"
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Project.
1. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Two keys will be furnished by Landlord for the Premises, and
any additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises.
3. Any requests of Tenant shall be directed to the management office for
the Project or at such office location designated by Landlord. Employees of
Landlord shall not perform any work or do anything outside their regular duties
unless under special instructions from Landlord.
4. Tenant shall not disturb, solicit, or canvas any occupant of the
Project and shall cooperate with Landlord and its agents to prevent such
activities.
5. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose employees or agents, shall have caused it.
6. Tenant shall not without the prior written consent of Landlord use any
method of heating or air conditioning other than that supplied by Landlord.
7. Tenant shall not allow to escape any foul or noxious gas or substance
in or on the Premises, or permit or allow the Premises to be occupied or used in
a manner offensive or objectionable to Landlord or other occupants of the
Project by reason of noise, odors, or vibrations, or interfere in any way with
other tenants or those having business therein.
8. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for lodging or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters' laboratory-approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors, provided that such use is in accordance
with all applicable federal, state and city laws, codes, ordinances, rules and
regulations.
9. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
10. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
11. Tenant shall assume any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
EXHIBIT "C" - Page 1
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
12. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord. All electrical
ceiling fixtures hung in offices or spaces along the perimeter of the Building
must be fluorescent and/or of a quality, type, design and bulb color approved by
Landlord. Tenant shall abide by Landlord's regulations concerning the opening
and closing of window coverings which are attached to the windows in the
Premises, if any, which have a view of any interior portion of the Building or
Building Common Areas.
Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Premises,
Building, the Common Areas and the Project, and for the preservation of good
order therein, as well as for the convenience of other occupants and tenants
therein. Tenant shall be deemed to have read these Rules and Regulations and to
have agreed to abide by them as a condition of its occupancy of the Premises.
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenants, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules or
Regulations against any or all tenants of the Project.
EXHIBIT "C" - Page 2
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
EXHIBIT "D"
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
FORM OF TENANT'S ESTOPPEL CERTIFICATE
The undersigned as Tenant under that certain Lease (the "LEASE") made and
entered into as of ______________, 2001 by and between BRS TORREY I, LLC, a
Delaware limited liability company, as Landlord, and the undersigned, as Tenant,
for Premises on the ________________ (______) floor(s) of the office building
located at 10575/10581 Roselle Street, San Diego, California, certifies as
follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in Exhibit
A represent the entire agreement between the parties as to the Premises.
2. The undersigned currently occupies the Premises described in the Lease.
3. The Lease Term commenced on ____________________________, and the Lease
Term expires on _________________________________.
4. Base Rent became payable on __________________.
5. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.
6. Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:
7. Tenant shall not modify the documents contained in Exhibit A without
the prior written consent of the holder of the first deed of trust on the
Premises.
8. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through __________________. The current monthly installment of Base Rent is
$________.
9. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder.
10. The current amount of the Security Deposit held by Landlord is
$________.
11. No rental has been paid more than thirty (30) days in advance and no
security has been deposited with Landlord except as provided in the Lease.
12. As of the date hereof, there are no existing defenses or offsets that
the undersigned has against Landlord nor have any events occurred that with the
passage of time or the giving of notice, or both, would constitute a default on
the part of Landlord under the Lease.
13. The undersigned acknowledges that this Estoppel certificate may be
delivered to Landlord or to a prospective mortgagee, or a prospective purchaser,
and acknowledges that said prospective mortgagee or prospective purchaser will
be relying upon the statements contained herein in making the loan or acquiring
the property of which the Premises are a part and that receipt by it of this
certificate is a condition of making of such loan or acquisition of such
property.
14. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do
EXHIBIT "D" - Page 1
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
business in California and that Tenant has full right and authority to execute
and deliver this Estoppel Certificate and that each person signing on behalf of
Tenant is authorized to do so.
Executed at __________________ on the _____ day of __________________,
2001.
"TENANT": STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: ____________________________________
Name: ______________________________
Title:
By: ____________________________________
Name: ______________________________
Title: _____________________________
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
EXHIBIT "D" - Page 2
EXHIBIT "E"
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
TENANT WORK LETTER
This Tenant Work Letter shall set forth the terms and conditions relating
to the construction of the tenant improvements in the Premises. This Tenant Work
Letter is essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues will arise during the
actual construction of the Premises. All capitalized terms used but not defined
herein shall have the meanings given such terms in the Lease. All references in
this Tenant Work Letter to Articles or Sections of "this Lease" shall mean the
relevant portion of Articles 1 through 31 of this Lease to which this Tenant
Work Letter is attached as Exhibit "E" and of which this Tenant Work Letter
forms a part, and all references in this Tenant Work Letter to Sections of "this
Tenant Work Letter" shall mean the relevant portion of Sections 1 through 6 of
this Tenant Work Letter.
SECTION 1
DELIVERY OF THE PREMISES AND BASE BUILDING
Upon the full execution and delivery of this Lease by Landlord and Tenant,
Landlord shall deliver the Premises and "Base Building," as that term is defined
below, to Tenant, and Tenant shall accept the Premises and Base Building from
Landlord in their presently existing, "as-is" condition ("DELIVERY DATE");
provided, however, Landlord shall (i) paint the exterior of the Building, (ii)
repair and/or replace certain portions of the roofing system, (iii) install
glass in all truck doors along the back of the Building, and (iv) repair certain
portions of the parking lot (collectively, the "LANDLORD'S WORK"). The "BASE
BUILDING" shall consist of those portions of the Premises which were in
existence prior to the construction of the Tenant Work. Landlord shall obtain a
bid from the Contractor, defined below, to construct the Landlord's Work. If
such bid is not competitive with Landlord's other bids for the Landlord Work, at
Tenant's option, Tenant may pay the difference between the Contractor's bid and
the most competitive bid for the Landlord's Work to Landlord, and Landlord shall
retain the Contractor to construct the Landlord's Work.
SECTION 2
TENANT IMPROVEMENTS
2.1 Tenant Improvement Allowance. Tenant shall be entitled to a one-time
tenant improvement allowance (the "TENANT IMPROVEMENT ALLOWANCE") in the amount
of up to One Million Eight Hundred Eighty-Five Thousand One Hundred Eighty
Dollars ($1,885,180.00) for reimbursement to Tenant for the costs relating to
the initial design and construction of Tenant's improvements which are
permanently affixed to the Premises (the "TENANT IMPROVEMENTS"). In no event
shall Landlord be obligated to make disbursements pursuant to this Tenant Work
Letter in a total amount which exceeds the Tenant Improvement Allowance.
2.2 Disbursement of the Tenant Improvement Allowance. Except as otherwise
set forth in this Tenant Work Letter, the Tenant Improvement Allowance shall be
disbursed by Landlord (each of which disbursements shall be made pursuant to
Landlord's disbursement process) only for the following items and costs
(collectively, the "TENANT IMPROVEMENT ALLOWANCE ITEMS").
2.2.1 Payment of the fees of the "Space Planner," "Architect" and
the "Engineers," as those terms are defined in Section 3.1 of this Tenant Work
Letter and payment of the fees incurred by, and the cost of documents and
materials supplied by, Landlord and Landlord's consultants in connection with
the preparation and review of the "Construction Drawings," as that term is
defined in Section 3.1 of this Tenant Work Letter;
2.2.2 The payment of plan check, permit and license fees relating to
construction of the Tenant Improvements;
EXHIBIT "E" - Page 1
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
2.2.3 The cost of construction of the Tenant Improvements,
including, without limitation, testing and inspection costs, freight elevator
usage, hoisting and trash removal costs, and contractors' fees and general
conditions;
2.2.4 The cost of any changes in the Base, Shell and Core work or
the Landlord Work when such changes are required by the Construction Drawings
(including if such changes are due to the fact that such work is prepared on an
unoccupied basis), such cost to include all direct architectural and/or
engineering fees and expenses incurred in connection therewith;
2.2.5 The cost of any changes to the Construction Drawings, Tenant
Improvements or Landlord's Work required by Code;
2.2.6 Sales and use taxes and Title 24 fees;
2.2.7 "Landlord Consulting Fee", as that term is defined in Section
4.3 of this Tenant Work Letter; and
2.2.8 All other costs to be expended by Landlord in connection with
the construction of the Tenant Improvements.
2.3 Tenant Work. Any and all work performed by Tenant to the Premises or
the Building or Project shall be defined as "Tenant Improvements." Tenant shall
use its good faith efforts to complete the construction of the Tenant
Improvements on or before October 1, 2001. The Tenant Work shall also be
considered "Tenant Improvements" for purposes of this Tenant Work Letter.
Any failure of Tenant to so complete the Tenant Work or otherwise comply
with the terms and provisions of this Tenant Work Letter shall be a default
under this Lease. Landlord and Tenant shall use commercially reasonable efforts
to concurrently construct the Landlord's Work and the Tenant Work.
SECTION 3
CONSTRUCTION DRAWINGS
3.1 Selection of Architect/Construction Drawings. Tenant shall retain an
architect reasonably acceptable to Landlord (the "ARCHITECT") to prepare any
"Construction Drawings," as that term is defined in this Section 3.1. Tenant
shall retain engineering consultants reasonably acceptable to and approved by
Landlord (the "ENGINEERS") to prepare any plans and engineering working drawings
relating to the structural, mechanical, electrical, plumbing, HVAC, lifesafety,
and sprinkler work in the Premises or otherwise, which work is not part of the
Base Building. The plans and drawings to be prepared by Architect and the
Engineers hereunder shall be known collectively as the "CONSTRUCTION DRAWINGS."
All Construction Drawings shall comply with the drawing format and
specifications determined by Landlord, and shall be subject to Landlord's
approval which will not be unreasonably withheld. Tenant and Architect shall
verify, in the field, the dimensions and conditions as shown on the relevant
portions of the base building plans, and Tenant and Architect shall be solely
responsible for the same, and Landlord shall have no responsibility in
connection therewith. Landlord's review of the Construction Drawings as set
forth in this Section 3, shall be for its sole purpose and shall not imply
Landlord's review of the same, or obligate Landlord to review the same, for
quality, design, Code compliance or other like matters. Accordingly,
notwithstanding that any Construction Drawings are reviewed by Landlord or its
space planner, architect, engineers and consultants, and notwithstanding any
advice or assistance which may be rendered to Tenant by Landlord or Landlord's
space planner, architect, engineers, and consultants, Landlord shall have no
liability whatsoever in connection therewith and shall not be responsible for
any omissions or errors contained in the Construction Drawings, and Tenant's
waiver and indemnity set forth in this Lease shall specifically apply to the
Construction Drawings.
3.2 Approved Plans. Landlord shall approve or reasonably disapprove by
written notice to Tenant (with a detailed description of Landlord's reasons for
such disapproval) of any draft of the Construction Drawings within three (3)
business days after Landlord's receipt thereof. Landlord's failure to approve or
reasonably disapprove any draft of the Construction Drawings by written notice
to Tenant within said three (3) business day period shall be deemed to
constitute Landlord's approval thereof. If Landlord so notifies Tenant of its
disapproval
EXHIBIT "E" - Page 2
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
of any draft of the Construction Drawings, Tenant shall cause the Architect to
revise the Construction Drawings and to resubmit the Construction Drawings for
Landlord's approval. This process shall continue until the Construction Drawings
have been approved or are deemed to have been approved by Landlord. The final
Construction Drawings shall be approved by Landlord (the "APPROVED PLANS") prior
to the commencement of construction of the Tenant Work by Tenant. After approval
by Landlord of the final Approved Plans, which consent may not be unreasonably
withheld or delayed, Tenant shall submit the same and shall acquire all
applicable permits and shall deliver a copy of all permits to Landlord. Tenant
hereby agrees that neither Landlord nor Landlord's consultants shall be
responsible for obtaining any permit regarding the Tenant Work and that
obtaining the same shall be Tenant's responsibility; provided, however, that
Landlord shall cooperate with Tenant in executing permit applications and
performing other ministerial acts reasonably necessary to enable Tenant to
obtain any such permit. No material, substantive changes, modifications or
alterations in the Approved Plans may be made without the prior written consent
of Landlord, which consent may not be unreasonably withheld or delayed. The
failure of Tenant to acquire all permits that are required by any governmental
agency shall be a default of Tenant hereunder.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
4.1 Tenant's Selection of Contractors.
4.1.1 The Contractor. A contractor shall be retained by Tenant to
construct the Tenant Improvements. Such contractor ("CONTRACTOR") shall be
selected by Tenant from a list of contractors acceptable to Landlord, and Tenant
shall deliver to Landlord notice of its selection of the Contractor upon such
selection.
4.1.2 Tenant's Agents. All subcontractors, laborers, materialmen,
and suppliers used by Tenant (such subcontractors, laborers, materialmen, and
suppliers, and the Contractor to be known collectively as "TENANT'S AGENTS")
must be approved in writing by Landlord, which approval shall not be
unreasonably withheld or delayed. If Landlord does not approve any of Tenant's
proposed subcontractors, laborers, materialmen or suppliers within three (3)
business days after Landlord's receipt thereof, Tenant shall submit other
proposed subcontractors, laborers, materialmen or suppliers for Landlord's
written approval.
4.2 Construction of Tenant Improvements by Tenant's Agents.
4.2.1 Construction Contract; Cost Budget. Prior to Tenant's
execution of the construction contract and general conditions with Contractor
(the "CONTRACT"), Tenant shall submit the Contract to Landlord for its approval,
which approval shall not be unreasonably withheld or delayed.
4.2.2 Tenant's Agents.
4.2.2.1 Landlord's General Conditions for Tenant's Agents and
Tenant Improvement Work. Tenant's and Tenant's Agent's construction of the
Tenant Improvements shall comply with the following: (i) the Tenant Improvements
shall be constructed in strict accordance with the Approved Plans; (ii) Tenant's
Agents shall submit schedules of all work relating to the Tenant's Improvements
to Contractor and Contractor shall, within five (5) business days of receipt
thereof, inform Tenant's Agents of any changes which are necessary thereto, and
Tenant's Agents shall adhere to such corrected schedule; and (iii) Tenant shall
abide by all rules made by Landlord's Building manager with respect to the use
of freight, loading dock and service elevators, storage of materials,
coordination of work with the contractors of other tenants, and any other matter
in connection with this Tenant Work Letter, including, without limitation, the
construction of the Tenant Improvements.
4.2.2.2 Indemnity. Tenant's indemnity of Landlord as set forth
in this Lease shall also apply with respect to any and all costs, losses,
damages, injuries and liabilities related in any way to any act or omission of
Tenant or Tenant's Agents, or anyone directly or indirectly employed by any of
them, or in connection with Tenant's non-payment of any amount arising out of
the Tenant Improvements and/or Tenant's disapproval of all or any portion of any
request for payment. Such indemnity by Tenant, as set forth in this Lease, shall
also apply with respect to any and all costs, losses, damages, injuries and
liabilities related in any way to Landlord's performance of any ministerial acts
reasonably necessary (i) to permit Tenant to complete the Tenant Improvements,
and (ii) to enable Tenant to obtain any building permit or certificate of
occupancy for the Premises.
EXHIBIT "E" - Page 3
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
4.2.2.3 Requirements of Tenant's Agents. Each of Tenant's
Agents shall guarantee to Tenant and for the benefit of Landlord that the
portion of the Tenant Improvements for which it is responsible shall be free
from any defects in workmanship and materials for a period of not less than one
(1) year from the date of completion thereof. Each of Tenant's Agents shall be
responsible for the replacement or repair, without additional charge, of all
work done or furnished in accordance with its contract that shall become
defective within one (1) year after the later to occur of (i) completion of the
work performed by such contractor or subcontractors and (ii) the Lease
Commencement Date. The correction of such work shall include, without additional
charge, all additional expenses and damages incurred in connection with such
removal or replacement of all or any part of the Tenant Improvements, and/or the
Building and/or common areas that may be damaged or disturbed thereby. All such
warranties or guarantees as to materials or workmanship of or with respect to
the Tenant Improvements shall be contained in the Contract or subcontract and
shall be written such that such guarantees or warranties shall inure to the
benefit of both Landlord and Tenant, as their respective interests may appear,
and can be directly enforced by either. Tenant covenants to give to Landlord any
assignment or other assurances which may be necessary to effect such right of
direct enforcement.
4.2.2.4 Insurance Requirements.
4.2.2.4.1 General Coverages. All of Tenant's Agents
shall carry worker's compensation insurance covering all of their respective
employees, and shall also carry public liability insurance, including property
damage, all with limits, in form and with companies as are required to be
carried by Tenant as set forth in this Lease.
4.2.2.4.2 Special Coverages. Tenant shall carry
"Builder's All Risk" insurance in an amount approved by Landlord covering the
construction of the Tenant Improvements, and such other insurance as Landlord
may require, it being understood and agreed that the Tenant Improvements shall
be insured by Tenant pursuant to this Lease immediately upon completion thereof.
Such insurance shall be in amounts and shall include such extended coverage
endorsements as may be reasonably required by Landlord including, but not
limited to, the requirement that all of Tenant's Agents shall carry excess
liability and Products and Completed Operation Coverage insurance, each in
amounts not less than $1,000,000 per incident, $3,000,000 in aggregate, and in
form and with companies as are required to be carried by Tenant as set forth in
this Lease.
4.2.2.4.3 General Terms. Certificates for all insurance
carried pursuant to this Section 4.2.2.4 shall be delivered to Landlord before
the commencement of construction of the Tenant Improvements and before the
Contractor's equipment is moved onto the site. All such policies of insurance
must contain a provision that the company writing said policy will give Landlord
thirty (30) days prior written notice of any cancellation or lapse of the
effective date or any reduction in the amounts of such insurance. In the event
that the Tenant Improvements are damaged by any cause during the course of the
construction thereof, Tenant shall immediately repair the same at Tenant's sole
cost and expense. Tenant's Agents shall maintain all of the foregoing insurance
coverage in force until the Tenant Improvements are fully completed and accepted
by Landlord, except for any Products and Completed Operation Coverage insurance
required by Landlord, which is to be maintained for ten (10) years following
completion of the work and acceptance by Landlord and Tenant. All policies
carried under this Section 4.2.2.4 shall insure Landlord and Tenant, as their
interests may appear, as well as Contractor and Tenant's Agents. All insurance,
except Workers' Compensation, maintained by Tenant's Agents shall preclude
subrogation claims by the insurer against anyone insured thereunder. Such
insurance shall provide that it is primary insurance as respects the owner and
that any other insurance maintained by owner is excess and noncontributing with
the insurance required hereunder. The requirements for the foregoing insurance
shall not derogate from the provisions for indemnification of Landlord by Tenant
under Section 4.2.2.2 of this Tenant Work Letter. Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of the Tenant Improvements and naming Landlord
as a co-obligee.
4.2.3 Governmental Compliance. The Tenant Improvements shall comply
in all respects with the following: (i) the Code and other state, federal, city
or quasi-governmental laws, codes, ordinances and regulations, as each may apply
according to the rulings of the controlling public official, agent or other
person; (ii) applicable standards of the American Insurance Association
(formerly, the National Board of Fire Underwriters) and the National Electrical
Code; and (iii) building material manufacturer's specifications.
EXHIBIT "E" - Page 4
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
4.2.4 Inspection by Landlord. Landlord shall have the right to
inspect the Tenant Improvements at all times, provided however, that Landlord's
failure to inspect the Tenant Improvements shall in no event constitute a waiver
of any of Landlord's rights hereunder nor shall Landlord's inspection of the
Tenant Improvements constitute Landlord's approval of the same. Should Landlord
disapprove any portion of the Tenant Improvements, Landlord shall notify Tenant
in writing of such disapproval and shall specify the items disapproved. Any
defects or deviations in, and/or disapproval by Landlord of, the Tenant
Improvements shall be rectified by Tenant at no expense to Landlord, provided
however, that in the event Landlord determines that a defect or deviation exists
or disapproves of any matter in connection with any portion of the Tenant
Improvements and such defect, deviation or matter might adversely affect the
mechanical, electrical, plumbing, heating, ventilating and air conditioning or
life-safety systems of the Building, the structure or exterior appearance of the
Building or any other tenant's use of such other tenant's leased premises,
Landlord may, take such action as Landlord deems necessary, at Tenant's expense
and without incurring any liability on Landlord's part, to correct any such
defect, deviation and/or matter, including, without limitation, causing the
cessation of performance of the construction of the Tenant Improvements until
such time as the defect, deviation and/or matter is corrected to Landlord's
satisfaction.
4.3 Landlord Consulting Fee. Tenant shall pay (as part of the Tenant
Improvement Allowance) a construction consulting fee (the "LANDLORD CONSULTING
FEE") to Landlord in an amount equal to Forty Thousand Dollars ($40,000.00).
4.4 Notice of Completion; Copy of "As Built" Plans. Within ten (10) days
after completion of construction of the Tenant Improvements, Tenant shall cause
a Notice of Completion to be recorded in the office of the county recorder's
office in accordance with Section 3093 of the Civil Code of the State of
California or any successor statute, and shall furnish a copy thereof to
Landlord upon such recordation. If Tenant fails to do so, Landlord may execute
and file the same on behalf of Tenant as Tenant's agent for such purpose, at
Tenant's sole cost and expense. At the conclusion of construction, (i) Tenant
shall cause the Architect and Contractor (A) to update the Approved Plans as
necessary to reflect all changes made to the Approved Plans during the course of
construction, (B) to certify to the best of their knowledge that the
"record-set" of as-built drawings are true and correct, which certification
shall survive the expiration or termination of this Lease, and (C) to deliver to
Landlord two (2) sets of copies of such as-built drawings within ninety (90)
days following issuance of a certificate of occupancy for the Premises, and (ii)
Tenant shall deliver to Landlord a copy of all warranties, guaranties, and
operating manuals and information relating to the improvements, equipment, and
systems in the Premises.
SECTION 5
MISCELLANEOUS
5.1 Tenant's Representative. Tenant has designated Geneva Davis as its
sole representative with respect to the matters set forth in this Tenant Work
Letter, who shall have full authority and responsibility to act on behalf of the
Tenant as required in this Tenant Work Letter.
5.2 Landlord's Representative. Landlord has designated Mr. Matt Root as
its sole representatives with respect to the matters set forth in this Tenant
Work Letter, who, until further notice to Tenant, shall have full authority and
responsibility to act on behalf of the Landlord as required in this Tenant Work
Letter.
5.3 Time or the Essence in This Tenant Work Letter. Unless otherwise
indicated, all references herein to a "NUMBER OF DAYS" shall mean and refer to
calendar days. If any item requiring approval is timely disapproved by Landlord,
the procedure for preparation of the document and approval thereof shall be
repeated until the document is approved by Landlord.
5.4 Tenant's Lease Default. Notwithstanding any provision to the contrary
contained in this Lease, if an event of default as described in this Lease or
this Tenant Work Letter has occurred at any time on or before the Substantial
Completion of the Premises, then (i) in addition to all other rights and
remedies granted to Landlord pursuant to this Lease, Landlord shall have the
right to cause Contractor to cease the construction of the Tenant Improvements
(in which case, Tenant shall be responsible for any delay in the substantial
completion of the Tenant Improvements caused by such work stoppage), and (ii)
all other obligations of Landlord under the terms of this Tenant Work Letter
shall be forgiven until such time as such default is cured pursuant to the terms
of this Lease (in which case, Tenant shall be responsible for any delay in the
substantial completion of the Tenant Improvements caused by such inaction by
Landlord).
EXHIBIT "E" - Page 5
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
EXHIBIT "F"
TORREY SORRENTO I BUSINESS PARK
(10575/10581 Roselle Street, San Diego, California)
ENVIRONMENTAL DOCUMENTS
1. Geosyntec Consultants Report entitled "Preliminary Risk Assessment" dated
May 11, 2001
EXHIBIT "F" - Page 1
10581/10575 Roselle Street
[Structural GenomiX, Inc.]
TORREY SORRENTO BUSINESS PARK
NOTICE OF EXPANSION PREMISES LEASE TERM DATES
To: Structural Genomix, Inc.
10505 Roselle Street
San Diego, CA 92121
Attn: Ms. Geneva Davis
Re: Second Amendment to Lease dated November 5, 2002 between BRS TORREY
I, LLC, a Delaware limited liability company ("LANDLORD"), and
STRUCTURAL GENOMIX, INC., a Delaware corporation ("TENANT")
concerning 10581 Roselle Street, San Diego, California.
Gentlemen:
In accordance with the referenced Second Amendment to Lease (the "LEASE"),
we wish to advise you and/or confirm as follows:
1. The Substantial Completion of the Premises has occurred, and the
Expansion Premises Commencement Date has commenced on February 15, 2003 and will
expire September 30, 2008.
2. Rent commences to accrue on February 15, 2003, in the amount of
$4,537.50 per month.
3. If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the Lease.
4. Your rent checks should be made payable to BRS Torrey I, LLC c/o CB
Bank & Trust - Lockbox, 9775 Clairmont Mesa Boulevard, San Diego, CA 92124.
5. The exact number of rentable square feet within the Premises is 2,750
square feet.
6. Base Rent, as adjusted based upon the exact number of rentable square
feet within the Premises, is as follows:
2/15/03-3/14/03 $4,537.50
3/15/03-3/31/03 $2,268.75 Prorated
4/1/03-2/28/04 $4,537.50
3/1/04-2/28/05 $4,702.50
3/1/05-2/28/06 $4,867/50
3/1/06-2/28/07 $5,032.50
3/1/07-2/28/08 $5,197.50
3/1/08-9/30/08 $5,390.00
7. Tenant's Share, as adjusted based upon the exact number of rentable
square feet within the Premises, is 73.37%.
"LANDLORD": BRS TORREY I, LLC
a Delaware limited liability company
By: JCR Manager, LLC
a Delaware limited liability company
Its: Manager
By: /s/ Jim Reynolds
--------------------------------
Name: Jim Reynolds
Title: Manager
Agreed to and Accepted as
of 3/13, 2003.
"TENANT":
STRUCTURAL GENOMIX, INC.
a Delaware corporation
By: /s/ Herbert G. Mutter
-----------------------------------
Its: Vice President, Finance
FIRST AMENDMENT TO LEASE
THE FIRST AMENDMENT TO LEASE (the "First Amendment") is effective as of
April 23, 2002 (the "Effective Date"), by and between BRS TORREY I, L.L.C., a
Delaware limited liability company ("Landlord"), and STRUCTURAL GENOMIX, INC, a
Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
(the "Original Lease"), dated June 1, 2001, covering premises commonly known as
10581 Roselle Street (the "Building") located at 10575/10581 Roselle Street, San
Diego, California 92121 ("Project");
WHEREAS, Landlord and Tenant entered into that certain Acknowledgement of
Lease Term Dates and Agreement Regarding Performance of Landlord's Work dated
September 28, 2001;
WHEREAS, Tenant currently occupies premises in the Building, which
consists of 24,805 rentable square feet;
WHEREAS, Landlord desires to increase the tenant improvement allowance for
additional Landlord's work to the roof (plywood, coping, downspouts, crickets
and contractor's fees);
NOW, THEREFORE, for and in consideration of the mutual terms and
conditions set forth herein and for Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Tenant Improvement Allowance. Landlord has agreed to increase the
amount of the Tenant Improvement Allowance, as provided under Exhibit E of the
Original Lease and Paragraph 8 of the Acknowledgement of Lease Term Dates and
Agreement Regarding Performance of Landlord's Work by $10.041.81 for additional
costs associated with Landlord's Work. The total amended Tenant Improvement
Allowance is $2,067,964.31.
2. No Termination, Cancellation, Contraction, or Similar Rights.
Notwithstanding anything to the contrary contained in the Lease or this
Amendment, Tenant hereby agrees and acknowledges that Tenant has no termination
rights (except Article 11.2 Option to Repair or Terminate, Article 11.4 Damage
Near End of Term and Article 13.1 Permanent Taking), cancellation rights,
contraction rights, expense cap, first opportunity space, first refusal (except
Article 30 Right of First Refusal), or similar rights under the Lease or this
Amendment. Any and all provisions contained in the Lease regarding Tenant's
termination rights (except Article 11.2 Option to Repair or Terminate, Article
11.4 Damage Near End of Term and Article 13.1 Permanent Taking), cancellation
rights, contraction rights, expense cap, first opportunity or first refusal
(except Article 30 Right of First Refusal) or similar rights, if any, are hereby
deleted from the Lease and shall be of no further force or effect.
3. Tenant Certification. By its execution of this First Amendment, Tenant
hereby certifies that as of the date of such execution, and to the best of
Tenant's knowledge, Landlord is not in default of the performance of its
obligations pursuant to the Lease, and Tenant has no offsets, claims against
Landlord or the rent payable by Tenant under the Lease and no defenses with
respect to the Lease.
4. Continuing Effect. The Lease as amended by the Acknowledgement of Lease
Term Dates and Agreement Regarding Performance of Landlord's Work, and as
amended herein is hereby ratified and confirmed and shall continue in full force
and effect.
5. Counterparts. This First Amendment may be executed in multiple
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall constitute
one and the same instrument.
6. Authority. Tenant hereby warrants and represents that it has the
requisite authority and ability to enter into this First Amendment and to fully
perform all obligations of Tenant hereunder. Landlord hereby warrants and
represents that it has the requisite authority and ability to enter into this
First Amendment and to fully perform all obligations of Landlord hereunder.
7. Defined Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to those terms in the Lease.
8. Conflicts; Incorporation by Reference. In the event of any conflict
between the terms of this First Amendment and either the Lease or the
Acknowledgement of Lease Term Dates and Agreement Regarding Performance of
Landlord's Work, the terms of this First Amendment shall control. All of the
exhibits attached to this First Amendment, if any, are by this reference
incorporated herein and made a part hereof for all purposes.
9. Effect of Submission. Submission of this First Amendment for
examination does not constitute an offer, right of first refusal, reservation
of, or option for, the Building or any other premises at the Project. This First
Amendment shall become effective only upon the execution and delivery by both
Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date or dates set forth below but effective for all purposes as of the
Effective Date.
LANDLORD:
BRS TORREY I, L.L.C.,
a Delaware limited liability company
By: Shidler West Investment Corporation
Its: Authorized Agent
By: /s/ Jim Ingebritsen
------------------------------------
Name: Jim Ingebritsen
Title: C.F.O.
TENANT:
STRUCTURAL GENOMIX, INC,
a Delaware corporation,
By: /s/ Herbert G. Mutter
----------------------------------------
Name: Herbert G. Mutter
Title: Vice President, Finance
By: /s/ Tim Harris
----------------------------------------
Name: T. Harris
Title: Pres & CEO
-2-
SECOND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE (this "SECOND AMENDMENT") is entered into
as of the 5th day of November , 2002 (the "EFFECTIVE DATE"), by and between BRS
TORREY I, LLC, a Delaware limited liability company ("LANDLORD"), and STRUCTURAL
GENOMIX, INC., a Delaware corporation ("TENANT").
RECITALS:
A. Landlord and Tenant are parties to that certain Lease (the "ORIGINAL
LEASE") dated June 1, 2001, as amended by that certain First Amendment to Lease
(the "FIRST AMENDMENT"), dated April 23, 2002 (the First Amendment and Original
Lease will hereinafter be referred to collectively as the "ORIGINAL LEASE"),
regarding certain premises in the buildings commonly known as the Torrey
Sorrento I Business Park located in San Diego, California (the "ORIGINAL
PREMISES"). Initially capitalized terms used in this Second Amendment that are
defined in the Original Lease shall have the same meaning and definition when
used in this Second Amendment unless specifically set forth in this Second
Amendment.
B. The provisions of the Original Lease grant to the Tenant a right of
first refusal to the First Offer Space. Consistent with such rights, the Tenant
and Landlord desire to amend the Original Lease to reflect the expansion of the
Premises to include a portion of the First Offer Space.
C. Landlord and Tenant also desire to modify the additional terms and
provisions of the Original Lease as set forth herein.
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as set
forth below.
AGREEMENT:
1. Expansion Premises. Subject to the terms and conditions of this Second
Amendment, Landlord hereby leases to Tenant and Tenant leases from Landlord an
additional 2,750 rentable square feet of space, as the same is depicted on
EXHIBIT A to this Second Amendment (the "EXPANSION PREMISES"). Subject to the
existing environmental matters provisions in the Original Lease, including, but
not limited to, Sections 31.22.5 and 31.22.6, the Expansion Premises shall be
delivered to the Tenant in its "as-is" condition, it being agreed that the
Landlord shall have no obligation to perform, or pay for any alterations,
improvements or modifications to the Expansion Premises. The date that the
Landlord has delivered the Expansion Premises to the Tenant in the condition
required by this Paragraph is called the "EXPANSION PREMISES COMMENCEMENT DATE".
From and after the Expansion Premises Commencement Date, the Tenant will occupy
the Expansion Premises for the balance of the Lease Term on the terms and
conditions set forth in the Lease (as hereinafter defined).
2. Delivery of the Expansion Premises. The Landlord will endeavor to cause
the Expansion Premises Commencement Date to occur on January 1, 2003 (the
"ESTIMATED DELIVERY DATE"). The Tenant acknowledges that, on the Effective Date,
the Expansion Premises is leased to another occupant. As a result, the Tenant
understands that the Expansion Premises Commencement Date may be delayed in the
event the current occupant fails to vacate the Expansion Premises and deliver
the same to the Landlord in time for the Landlord to deliver the same to the
Tenant on the Estimated Delivery Date. The parties agree that the failure of the
Landlord to deliver the Expansion Premises to the Tenant on the Estimated
Delivery Date shall not subject the Landlord to any liability provided such
failure is due to the current occupant failing to vacate and surrender the space
to the Landlord. In such case, the parties agree that the Landlord shall
endeavor to deliver the Expansion Premises to the Tenant as soon as reasonably
practicable after the Estimated Delivery Date, however in the event that the
Expansion Premises Commencement Date does not occur on or before April 1, 2003
(the "DELIVERY DEADLINE"), then the Tenant shall have the right to terminate
this Second Amendment and its obligation to lease the Expansion Premises by
providing written notice of the same to the Landlord on or before the date that
is ten (10) business days after the Delivery Deadline (such date being referred
to as the "NOTICE DEADLINE"). The failure of the Tenant to exercise its
foregoing termination right on or before the Notice Deadline, shall be deemed to
be a waiver by the Tenant of its termination right.
3. Right of First Refusal. Nothing in this Second Amendment shall affect
Tenant's right of first refusal under Article 30 of the Original Lease. Tenant's
right of first refusal shall remain in effect and unimpaired with respect to any
and all rental spaces which may become available at the expiration or
termination of any lease in the Project including, but not limited to, any
future leases for the 10575 Roselle Street Building.
4. Amendments to the Original Lease. From and after the Expansion Premises
Commencement Date, the Original Lease is amended in the following respects:
(a) All references in the Original Lease to the term "Lease" or
"this Agreement" or to terms such as "herein", shall refer to the Original Lease
as amended by this Second Amendment.
(b) All references in the Lease to the term "Premises" shall be
deemed to refer collectively to the Original Premises and the Expansion
Premises.
(c) All references to the term "Base Rent" shall be deemed to refer
collectively to the Base Rent set forth in the Original Lease, and the Base Rent
For the Expansion Premises (as hereinafter defined).
(d) All references to the term "Tenant's Share" shall mean 73.37%.
5. Base Rent for Expansion Premises. Concurrent with the execution of this
Second Amendment, Tenant shall pay to Landlord the amount of $4,537.50
representing payment of the first (1st) month's Base Rent for the Expansion
Premises. Tenant shall otherwise pay to Landlord Base Rent for the Expansion
Premises in accordance with the schedule and in the amounts set forth below:
EXPANSION PREMISES MONTHLY BASE RENT
LEASE YEAR* ANNUAL BASE RENT MONTHLY BASE RENT PER RENTABLE SQUARE FOOT
- ------------------ ---------------- ----------------- ------------------------
1 $54,450.00 $4,537.50 $1.65
2 $56,430.00 $4,702.50 $1.71
3 $58,410.00 $4,867.50 $1.77
4 $60,390.00 $5,032.50 $1.83
5 $62,370.00 $5,197.50 $1.89
6 $64,680.00 $5,390.00 $1.96
* The term "EXPANSION PREMISES LEASE YEAR" when used in this chart refers to
periods which contain twelve (12) consecutive months; however, notwithstanding
anything herein to the contrary, the final Expansion Premises Lease Year will
expire on the earlier of (i) the expiration of the Lease Term; or (ii) such
earlier date that this Lease is terminated in accordance with its terms. The
first Expansion Premises Lease Year shall commence on the Expansion Premises
Commencement Date. Each subsequent Expansion Premises Lease Year shall commence
on the annual anniversary of the Expansion Premises Commencement Date.
6. Security Deposit. Concurrent with the execution of this Second
Amendment, Tenant shall increase the Security Deposit by an additional
$5,390.00. This amount shall be held by Landlord as the Security Deposit (in
accordance with Article 21 the Lease) for Tenant's obligations under the Lease.
7. Tenant Certification. By its execution of this Second Amendment, Tenant
hereby certifies that as of the date of such execution, and to the best of
Tenant's knowledge, Landlord is not in default of the performance of its
obligations pursuant to the Lease, and Tenant has no offsets, claims against
Landlord or the rent payable by Tenant under the Lease and no defenses with
respect to the Lease.
8. Brokers. Landlord and Tenant both represent and warrant to Landlord
that neither has dealt with any brokers in connection with the terms of this
Second Amendment. Each party agrees to indemnify, save, and hold the other party
harmless from and against any and all claims or demands made upon such party for
any commissions, fees or other compensation by any broker, agent or salesman in
connection with this Second Amendment. The provisions of this paragraph shall
survive the expiration or any earlier termination of the Lease.
-2-
TORREY SORRENTO I BUSINESS PARK
(10575/10581 ROSELLE STREET, SAN DIEGO, CALIFORNIA)
ACKNOWLEDGEMENT OF LEASE TERM DATES AND AGREEMENT
REGARDING PERFORMANCE OF LANDLORD'S WORK
To: Ms. Geneva Davis
Structural Genomix. Inc.
10505 Roselle Street
San Diego, CA 92121
Re: Lease dated June 1, 2001 between BRS TORREY I, LLC, a Delaware
limited liability company ("LANDLORD"), and STRUCTURAL GENOMIX,
INC., a Delaware corporation ("TENANT") concerning 10581 Roselle
Street, San Diego, California.
Ladies and Gentlemen:
In accordance with the referenced Lease (the "LEASE"), we wish to advise
you and/or confirm, and request that you acknowledge as follows:
1. The Lease Term shall commence on or has commenced on October 1, 2001
for a term of seven (7) years ending on September 30, 2008.
2. Base monthly rent commenced to accrue on October 1, 2001, in the amount
of $58,291.75.
3. If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the Lease.
4. Your rent checks should be made payable to BRS Torrey I, LLC at c/o CB
Bank &Trust - Lockbox, 9775 Clairmont Mesa Boulevard, San Diego, CA 92124.
5. The exact number of rentable square feet within the Premises is 24,805
square feet.
6. Base Rent, as adjusted based upon the exact number of rentable square
feet within the Premises, is as follows: No adjustment necessary.
7. Tenant's Share, as adjusted based upon the exact number of rentable
square feet within the Premises, is 65.94%.
8. Tenant has elected to have its Contractor complete the Landlord's Work,
as defined in Exhibit E of the Lease, rather than have Landlord perform
Landlord's Work, and Tenant has agreed to (i) assume the responsibility
therefore, (ii) to complete the Landlord's Work, and (iii) to release Landlord
from its obligations to complete the same. Landlord has agreed to allow Tenant
to perform the Landlord's Work and has agreed to increase the amount of the
Tenant Improvement Allowance, as provided under Exhibit E, by the amount of
$172,742.50 (the "Additional Tenant Improvement Allowance") in consideration of
Tenant's completion of the Landlord's Work by Tenant's Contractor, and Tenant
has agreed to accept the Additional Tenant Improvement Allowance in
consideration thereof. The Additional Tenant Improvement Allowance Amount shall
be deemed to be part of the "Tenant Improvement Allowance" for purposes of the
Lease and Exhibit E and shall be disbursed as provided in Exhibit E.
-1-
"LANDLORD": BRS TORREY I, LLC
a Delaware limited liability company
By: JCR Manager, LLC
-------------------------------------
Its: Manager
By: /s/ [Illegible]
--------------------------------
Its: Manager
Agreed to and Accepted as
of 9/28/01, 2001.
"TENANT":
STRUCTURAL GENOMIX, INC.
a Delaware corporation
By: /s/ Herbert G. Mutter
-----------------------------------
Its: Vice President, Finance
-2-
9. Continuing Effect. The Lease as amended herein is hereby ratified and
confirmed and shall continue in full force and effect.
10. Counterparts. This Second Amendment may be executed in multiple
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall constitute
one and the same instrument.
11. Authority. Tenant hereby warrants and represents that it has the
requisite authority and ability to enter into this Second Amendment and to fully
perform all obligations of Tenant hereunder. Landlord hereby warrants and
represents that it has the requisite authority and ability to enter into this
Second Amendment and to fully perform all obligations of Landlord hereunder.
12. Defined Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to those terms in the Lease.
13. Conflicts; Incorporation by Reference. In the event of any conflict
between the terms of this Second Amendment and the Lease, the terms of this
Second Amendment shall control. All of the exhibits attached to this Second
Amendment are by this reference incorporated herein and made a part hereof for
all purposes.
14. Effect of Submission. Submission of this Second Amendment for
examination does not constitute an offer, right of first refusal, reservation
of, or option for, the Premises or any other premises in the Building. This
Second Amendment shall become effective only upon the execution and delivery by
both Landlord and Tenant.
15. Facsimile Signatures. Landlord and Tenant each (a) have agreed to
permit the use, from time to time where appropriate, of telecopied signatures in
order to expedite the transaction contemplated by this Second Amendment, (b)
intend to be bound by their respective telecopied signatures, (c) are aware that
the other will rely upon the telecopied signature, and (d) acknowledge such
reliance and waive any defense to the enforcement of the documents affecting
this transaction based on the fact that a signature was sent by telecopy only.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the date or dates set forth below but effective for all purposes as of the
Effective Date.
"LANDLORD": BRS TORREY I, LLC,
a Delaware limited liability company
By: JCR Manager, LLC
a Delaware limited liability company
Its: Manager
By: /s/ [Illegible]
------------------------------
Its: Manager
"TENANT": STRUCTURAL GENOMIX, INC.
a Delaware corporation
By: /s/ Tim Harris
-------------------------------------
Name: Dr. Tim Harris
Title: President - CEO
By: /s/ Herbert G. Mutter
-------------------------------------
Name: Herbert G. Mutter
Its: Vice President, Finance
-3-
EXHIBIT F
ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of 9 July ,
2002, is executed by STRUCTURAL GENOMIX, INC, a Delaware corporation ("TENANT")
in favor of ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation,
together with its nominees, designees and assigns (collectively, "BUYER").
RECITALS
A. Buyer and BRS Torrey I, LLC, a Delaware limited liability company
("LANDLORD"), have entered into that certain Purchase and Sale Agreement and
Joint Escrow Instructions, dated as of May 30, 2002 (the "PURCHASE AGREEMENT"),
whereby Buyer has agreed to purchase, among other things, the improved real
property located in the City of San Diego, County of San Diego, State of
California, more particularly described on Exhibit A attached to the Purchase
Agreement (the "PROPERTY")
B. Tenant and Landlord have entered into that certain Lease Agreement
dated as of June 1, 2001 (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "LEASE"), for a portion of
the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested that
Tenant execute this Certificate with an understanding that Buyer will rely on
the representations and agreements below in acquiring the Property and
Landlord's interest under the Lease.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer as
follows:
SECTION 1. LEASE. Attached hereto as Exhibit 1 is a true, correct and
complete copy of the Lease, including the following amendments, modifications,
supplements, guarantees and restatements thereof, which together represent all
of the amendments, modifications, supplements, guarantees and restatements
thereof: Acknowledgement of Lease Terms and Agreement Regarding Performance of
Landlord Work dated 9/28/01; First Amendment to Lease dated 4/23/02; Connecting
Equipment License Agreement dated 9/27/01.
(If none, please state "None.")
SECTION 2. LEASED PREMISES. Pursuant to the Lease, Tenant leases those
certain premises (the "LEASED PREMISES") consisting of approximately 24,805
rentable square feet within the Property, as more particularly described in the
Lease. In addition, pursuant to the terms of the Lease, Tenant has the
non-exclusive right to use its prorata share of parking spaces located on the
Property during the term of the Lease.
SECTION 3. FULL FORCE OF LEASE. The Lease has been duly authorized,
executed and delivered by Tenant, is in full force and effect has not been
terminated.
SECTION 4. COMPLETE AGREEMENT. The Lease constitutes the complete
agreement between Landlord and Tenant for the Leased Premises and the Property,
except as modified by the Lease amendments noted above (if any), has not been
modified, altered or amended.
SECTION 5. ACCEPTANCE OF LEASED PREMISES. Tenant has accepted possession
and is currently occupying the Leased Premises.(1)
SECTION 6. LEASE TERM. The term of the Lease commenced on October 1, 2001
and ends on September 30, 2008, subject to the following options to extend:
NONE. (If none, please state "None.")
SECTION 7. PURCHASE RIGHTS. Tenant has no option, right of first refusal,
right of first offer, or other right to acquire or purchase all or any portion
of the Leased Premises or all or any portion of, or interest in, the Property,
except as follows: NONE.
(If none, please state "None.")
SECTION 8. RIGHTS OF TENANT. Except as expressly stated in this
Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no right, title, or interest in the Leased Premises, other than as
Tenant under the Lease.
SECTION 9. RENT.
(a) The obligation to pay rent under the Lease commenced on July 5, 2001.
The rent under the Lease is current, and Tenant is not in default in the
performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the amount of
$58,291.75 per month. Tenant has not received and is not, presently, entitled to
any abatement, refunds, rebates, concessions or forgiveness of rent or other
charges, free rent, partial rent, or credits, offsets or reductions in rent,
except as follows: NONE.
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area charges,
insurance, real estate taxes and administrative and overhead expenses is 65.94%
and is currently being paid at the rate of $5,854.62 per month, payable to: BRS
Torrey I, LLC.
(d) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease, and there presently is no default or
other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, nor is there a state
of facts which with the passage of time or the giving of notice or both could
ripen into a default on the part of Tenant, or to the best knowledge of Tenant,
could ripen into a default on the part of Landlord under the Lease, except as
follows: NONE.
(If none, please state "None.")
SECTION 10. SECURITY DEPOSIT. The amount of Tenant's security deposit held
by Landlord under the Lease is $349,750.50.
SECTION 11. PREPAID RENT. The amount of prepaid rent separate from the
security deposit is $0, covering the period from N/A.
(1) For Structural Genomix: Upon completion of the following work to be
performed under the Lease, there shall be no more obligations or conditions
under the Lease that would prevent Tenant from accepting possession and
occupying the Leased Premises: NONE. Landlord's sole remaining obligation under
the Lease is to fund $1,175,227.07 toward the cost of such work. If none, Tenant
has accepted possession and is currently occupying the Leased Premises.
SECTION 12. INSURANCE. All insurance, if any, required to be maintained by
Tenant under the Lease is presently in effect.
SECTION 13. PENDING ACTIONS. There is not pending or, to the knowledge of
Tenant, threatened against or contemplated by the Tenant, any petition in
bankruptcy, whether voluntary or otherwise, any assignment for the benefit of
creditors, or any petition seeking reorganization or arrangement under the
federal bankruptcy laws or those of any state.
SECTION 14. TENANT IMPROVEMENTS. As of the date of this Certificate, to
the best of Tenant's knowledge, Landlord has performed all obligations required
of Landlord pursuant to the Lease; no offsets, counterclaims, or defenses of
Tenant under the Lease exist against Landlord; and no events have occurred that,
with the passage of time or the giving of notice, would constitute a basis for
offsets, counterclaims, or defenses against Landlord, except as follows: NONE.
(If none, please state "None.")
SECTION 15. ASSIGNMENTS BY LANDLORD. Tenant has received no notice of any
assignment, hypothecation or pledge of the Lease or rentals under the Lease by
Landlord. Tenant hereby consents to an assignment of leases and rents to be
executed by Landlord to Buyer in connection with the acquisition of the Property
by Buyer and acknowledges that said assignment docs not violate the provisions
of the Lease.
SECTION 16. ASSIGNMENTS BY TENANT. Tenant has not sublet or assigned the
Leased Premises or the Lease or any portion thereof to any sublessee or
assignee. No one except Tenant and its employees will occupy the Leased
Premises. The address for notices to be sent to Tenant is as set forth in the
Lease.
SECTION 17. ENVIRONMENTAL MATTERS. The operation and use of the Leased
Premises does not involve the generation, treatment, storage, disposal or
release into the environment of any hazardous materials, regulated materials
and/or solid waste, except: ATTACHED LIST , which are used in accordance with
all applicable laws.
SECTION 18. SUCCESSION OF INTEREST. Tenant agrees that, in the event Buyer
succeeds to interest of Landlord under the Lease:
(a) Buyer shall not be liable for any act or omission of any prior
landlord (including Landlord);
(b) Buyer shall not be liable for the return of any security deposit
unless such security deposit has been transferred to Buyer;
(c) Buyer shall not be bound by any rent or additional rent which Tenant
might have prepaid under the Lease for more than the current month;
(d) Buyer shall not be bound by any amendments or modifications of the
Lease made without prior consent of Buyer;
(e) Buyer shall not be subject to any offsets or defenses which Tenant
might have against any prior landlord (including Landlord); or
(f) Buyer shall not be liable under the Lease to Tenant for the
performance of Landlord's obligations under the Lease beyond Buyer's interest in
the Property.
SECTION 19. NOTICE OF DEFAULT. Tenant agrees to give Buyer a copy of any
notice of default under the Lease served upon Landlord at the same time as such
notice is given to the Landlord. Tenant
further agrees that if Landlord shall fail to cure such default within the
applicable grace period, if any, provided in the Lease, then Buyer shall have an
additional 60 days within which to cure such default, or if such default cannot
be cured within such 60-day period, such 60-day period shall be extended so long
as Buyer has commenced and is diligently pursuing the remedies necessary to cure
such default (including, but not limited to, commencement of foreclosure
proceedings, if necessary to effect (such cure), in which event the Lease shall
not be terminated while such remedies are being pursued.
SECTION 20. NOTIFICATION BY TENANT. From the date of this Certificate and
continuing until on August 2, 2002, Tenant agrees to immediately notify Buyer at
the following address, in writing personally, by reputable overnight delivery
service or by facsimile transmission (with in the case of a facsimile
transmission, confirmation by reputable overnight delivery service) at the
following addresses, on the occurrence of any event or the discovery of any fact
that would make any representation contained in this Certificate inaccurate.
If To Buyer: Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue
Suite 250
Pasadena, California 91101
Attention: Corporate Secretary
RE: TORREY-SORRENTO INDUSTRIAL PARK
Telephone: (626) 578-0777
Facsimile: (626) 578-0770
With A Copy To: Mayer, Brown, Rowe & Maw
350 South Grand Avenue
25th Floor
Los Angeles, California 90071
Attention: Todd Evan Stark, Esq.
Telephone: (213) 229-9500
Facsimile: (213) 625-0248
Tenant makes this Certificate with the knowledge that it will be relied
upon by Buyer in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written above by
the person named below, who is duly authorized to do so.
TENANT: STRUCTURAL GENOMIX, INC.,
a Delaware corporation
By: /s/ Herbert G. Mutter
Name: Herbert G. Mutter
Its: Vice President, Finance