EXHIBIT
10.8
LEASE
AGREEMENT
OFFICE
LEASE TABLE OF CONTENTS
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Page
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LEASE
AGREEMENT
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2
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RENT
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3
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PREMISES
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7
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CONDITION
OF PREMISES
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7
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PROJECT
SERVICES
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8
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ALTERATIONS
AND REPAIRS
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9
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USE
OF PREMISES
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12
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INTRABUILDING
NETWORK CABLES
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13
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GOVERNMENTAL
REQUIREMENTS AND BUILDING RULES
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14
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WAIVER
OF CLAIMS; INDEMNIFICATION; INSURANCE
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15
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FIRE
AND OTHER CASUALTY
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17
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EMINENT
DOMAIN
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18
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RIGHTS
RESERVED TO LANDLORD
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18
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TENANT'S
DEFAULT
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20
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LANDLORD
REMEDIES
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21
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SURRENDER
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23
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HOLDOVER
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24
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SUBORDINATION
TO GROUND LEASES AND MORTGAGES
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24
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ASSIGNMENT
AND SUBLEASE
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25
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CONVEYANCE
BY LANDLORD
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27
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ESTOPPEL
CERTIFICATE
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27
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LEASE
DEPOSIT
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28
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FORCE
MAJEURE
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28
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TENANT'S
PERSONAL PROPERTY AND FIXTURES
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28
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NOTICES
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29
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QUIET
POSSESSION
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30
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REAL
ESTATE BROKER
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30
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MISCELLANEOUS
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30
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UNRELATED
BUSINESS INCOME
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33
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HAZARDOUS
SUBSTANCES
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33
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LANDLORD'S
LEASE UNDERTAKINGS
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33
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OFFER
TO LEASE
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34
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RESERVATION
OF RIGHTS
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34
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MODIFICATION
AND FINANCING CONDITIONS
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35
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OFFICE
LEASE
THIS
OFFICE LEASE (the "Lease") is made as of the 21st day of March, 2007 (dated
for
reference purposes only) between SEAGATE
TELEGRAPH ASSOCIATES, LLC, a California limited liability corporation
(the
"Landlord"), and NILE
THERAPEUTICS, a Delaware
corporation
as named
in the Schedule below. The term "Project" means the six story office building
and other improvements commonly known as 2850 Telegraph Avenue located in the
City of Berkeley ("City"), County of Alameda ("County"), California, as more
particularly described in EXHIBIT
A.
The
"Premises" means that portion of the Building described in the SCHEDULE.
The
Building in which the Premises are located shall be collectively referred to
herein as the "Building." The following schedule (the "Schedule") is an integral
part of this Lease. Terms defined in this Schedule shall have the same meaning
throughout the Lease.
SCHEDULE
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1.
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Tenant:
NILE THERAPEUTICS, a Delaware
corporation
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Address:
689 Fifth Avenue, 14th Floor, New York, NY, 10022 (until lease commencement
date, and thereafter, the Premises).
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2.
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Premises:
Approximately 2,332 rentable square feet on the Third Floor of the
Building located at 2850 Telegraph Avenue, designated as Suite 310,
Berkeley, CA 94704.
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3.
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Permitted
Use:
Administrative and general office use, as a therapeutical sales
office.
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4.
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Term:
Three
(3) years.
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5.
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Commencement
Date:
May 1, 2007, or substantial completion of Tenant Improvement Work,
which
ever occurs first. Rental Commencement shall be
May 1,2007.
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6.
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Expiration
Date:
April 30,2010
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7.
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Rent
and Other Charges Payable by
Tenant:
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a.
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Base
Rent:
Initially 2,332sf multiplied by $2.61psf, which equals Six Thousand
Eighty-Seven and 00/100 ($6,087.00) Dollars per month for the first
month,
which shall be paid upon Lease execution, and thereafter, payable
monthly
as set forth in the schedule below:
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FOR
THE PERIOD
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MONTHLY
BASE RENT
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ANNUAL
BASE RENT
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May
1,2007 through April 30, 2008
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$
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6,087
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$
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73,044
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May
1,2008 through April 30, 2009
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$
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6,320
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$
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75,840
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May
1,2009 through April 30, 2010
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$
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6,553
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$
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78,636
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b.
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Other
Periodic Payments:
Tenant shall be responsible for payment of Tenant's Proportionate
Share of
certain charges such as operating costs and taxes in excess of the
Base
Year and Additional Rent.
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8.
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Tenant's
Proportionate Share:
3.39% of Building (based on 68,857 rentable square feet in the
Building)
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9.
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Prepaid
Rent:
$6,087.00, representing the first month Base Rent, payable upon Tenant's
execution of Lease.
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10.
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Security
Deposit:
Fourteen Thousand and NO/100 ($14,000.00) Dollars, payable upon Tenant's
execution of Lease, together with the Prepaid Rent will make a total
amount due along with presentation of the signed lease, in an amount
equal
to Twenty Thousand Eighty-Seven and NO/00 ($20,087.00)
Dollars.
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11.
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Parking
Spaces:
Four (4) spaces in common with all other tenants in the Property,
available on an unreserved basis; and charged at prevailing rates,
which
may be adjusted by Landlord in its sole discretion, from time to
time
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13.
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Tenant's
Real Estate Broker for this Lease: Nick
Polsky of CB Richard Ellis
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14.
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Landlord's
Real Estate Broker for this Lease:
Ann Lovi of Collier's International
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15.
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Tenant
Improvement Allowance:
(Intentionally Deleted)
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EXHIBIT
A: SITE
PLAN OF PREMISES
EXHIBIT
B: RULES
AND REGULATIONS
EXHIBIT
C: TENANT
IMPROVEMENT AGREEMENT AND WORK LETTER
LEASE
AGREEMENT
On
the
terms stated in this Lease, Landlord leases the Premises to Tenant, and Tenant
leases the Premises from Landlord, for the Term beginning on the Commencement
Date and ending on the Expiration Date unless extended or sooner terminated
pursuant to this Lease.
The
commencement date (the "Commencement
Date")
for
this Lease is the date set forth in the Schedule. Tenant agrees and acknowledges
that the Commencement Date shall not be delayed as a result of any delays which
may occur in the completion of the "Tenant Improvements," as described in
Section 4 and the Tenant Improvement Agreement and Work Letter, attached hereto
as EXHIBIT
C.
If
Landlord does not deliver possession of the Premises by the Commencement Date,
for any reason whatsoever, then this Lease shall not be void or voidable, and
Landlord shall not be liable to Tenant for any loss or damage resulting
therefrom. Furthermore, no delay in delivery of possession shall in any way
operate to extend the Expiration Date or any other obligation of Landlord or
Tenant hereunder, provided, however, the Monthly Base Rent shall be waived
for
the period between the Commencement Date and the date when Landlord delivers
possession of the Premises to Tenant. In the event Landlord is unable to deliver
possession of the Premises within ninety days after the Commencement Date,
either party may elect to cancel this Lease by giving the other party written
notice of its election to cancel and the Lease shall be canceled as of the
date
of the Notice. If the delay in Commencement is in no way related to Tenant's
actions or inactions, Landlord shall return any prepaid rent and Security
Deposit and neither party shall have any further liability under this
Lease.
The
expiration date (the "Expiration Date") of this Lease is the date set forth
in
the Schedule.
During
the period commencing on the date the original of this fully executed Lease
is
delivered to Tenant and ending on the Commencement Date (the "Early
Occupancy Period"),
Tenant
shall be permitted to enter the Premises for the purposes of installing certain
trade fixtures and the Tenant Improvements, provided that Tenant's occupancy
of
the Premises during the Early Occupancy Period shall be subject to all of the
terms, covenants and conditions of this Lease, including, without limitation,
Tenant's obligations under the Tenant Improvement Agreement, Section 9
(regarding Tenant's compliance with applicable laws and building rules
obligation), and Section 10 (regarding Tenant's indemnity and insurance
obligations), except Tenant's obligation to pay Base Rent shall not commence
until the earlier of the Commencement Date or the date Tenant commences to
do
business in the Premises. Notwithstanding the foregoing, Tenant shall pay for
all utility costs incurred by Landlord to the extent they relate to Tenant's
work in the Premises during the Early Occupancy Period. In addition, if Tenant
occupies any part of the Premises during the Early Occupancy Period for purposes
of doing business, then Tenant shall pay all Base Rent, Operating Cost Share
Rent and Tax Share Rent at the rate for the first Lease Year as set forth in
the
Schedule prorated for any partial month.
RENT
Tenant
shall pay the following Rent in the form of a check to Landlord at the following
address (or in such other manner as Landlord may notify Tenant):
SEAGATE
TELEGRAPH ASSOCIATES, LLC.
c/o
SEAGATE PROPERTIES, INC.
980
Fifth
Avenue
San
Rafael, CA 94901
(1)
Base
Rent
payable
in monthly installments in advance, without prior notice or demand, the first
monthly installment payable concurrently with the execution of this Lease and
thereafter on or before the first day of each month of the Term in the amount
set forth on the Schedule.
(2)
Operating
Cost Share Rent
in an
amount equal to the Tenant's Proportionate Share of the Operating Costs for
the
applicable fiscal year of the Lease, in excess of the Base Year, paid monthly
in
advance in an estimated amount. Definitions of Operating Costs and Tenant's
Proportionate Share, and the method for billing and payment of Operating Cost
Share Rent are set forth in Section 2.B.
(3)
Tax
Share Rent
in an
amount equal to the Tenant's Proportionate Share of the Taxes for the applicable
fiscal year of this Lease, in excess of the Base Year, paid monthly in advance
in an estimated amount. A definition of Taxes and the method for billing and
payment of Tax Share Rent are set forth in Sections 2.B and 2.C.
(4)
Additional
Rent
in the
amount of all costs, expenses, liabilities, and amounts which Tenant is required
to pay under this Lease, excluding Base Rent, Operating Cost Share Rent, and
Tax
Share Rent, but including any late charge and any interest for late payment
of
any item of rent.
(5)
Rent
as used
in this Lease means Base Rent, Operating Cost Share Rent, Tax Share Rent and
Additional Rent. Tenant's agreement to pay Rent is an independent covenant.
All
payments due from Tenant to Landlord hereunder shall be paid to Landlord,
without notice, demand, deduction, recoupment, offset or counterclaim, and
without relief from any valuation or appraisement laws, and in lawful money
of
the United States of America in the manner specified in Section 2.
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E.
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PAYMENT
OF OPERATING COST SHARE RENT AND TAX SHARE
RENT.
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(1)
Payment
of Estimated Operating Cost Share Rent and Tax Share Rent
Landlord
shall estimate the Operating Costs and Taxes of the Project by March 1 of each
fiscal year, or as soon as reasonably possible thereafter. Landlord may revise
these estimates whenever it obtains more accurate information, such as the
final
real estate tax assessment or tax rate for the Project. Within ten (10) days
after receiving the original or revised estimate from Landlord, Tenant shall
pay
Landlord one-twelfth (l/12th) of Tenant's Proportionate Share, in excess of
the
Base Year, of this estimate, multiplied by the number of months that have
elapsed in the applicable Lease Year (as defined in Section 2.C.(4) hereof)
to
the date of such payment including the current month, minus payments previously
made by Tenant for the months elapsed. On the first day of each month
thereafter, Tenant shall pay Landlord one-twelfth (l/12th) of Tenant's
Proportionate Share of this estimate, until a new estimate becomes
applicable.
(2)
Correction
of Operating Cost Share Rent
Landlord
shall deliver to Tenant a report for the previous fiscal year (the "Operating
Cost Report") by May 1st of each Lease Year, or as soon as reasonably possible
thereafter, setting forth (a) the actual Operating Costs Incurred, (b) the
amount of Operating Cost Share Rent due from Tenant, and (c) the amount of
Operating Cost Share Rent paid by Tenant. Within thirty (30) days after such
delivery, Tenant shall pay to Landlord the amount due minus the amount paid.
If
the amount paid exceeds the amount due, Landlord shall apply the excess to
Tenant's payments of Operating Cost Share Rent next coming due or if the Lease
has expired, Landlord shall promptly pay any such excess to Tenant and Tenant
shall promptly pay any amounts then due.
(3)
Correction
of Tax Share Rent
Landlord
shall deliver to Tenant a report for the previous Lease Year (the "Tax Report")
by May 1SI of each Lease Year, or as soon as reasonably possible thereafter,
setting forth (a) the actual Taxes, (b) the amount of Tax Share Rent due from
Tenant, and (c) the amount of Tax Share Rent paid by Tenant. Within thirty
(30)
days after such delivery, Tenant shall pay to Landlord the amount due from
Tenant minus the amount paid by Tenant. If the amount paid exceeds the amount
due, Landlord shall apply any excess as a credit against Tenant's payments
of
Tax Share Rent next coming due or if the Lease has expired, Landlord shall
promptly pay any such excess to Tenant and Tenant shall promptly pay any amounts
then due.
(1)
Included
Operating Costs "Operating Costs"
means
any expenses, costs and disbursements of any kind other than Taxes, paid or
incurred by Landlord in connection with the management, maintenance, operation,
insurance (including the related deductibles), repair and other related
activities in connection with any part of the Project and of the personal
property, fixtures, machinery, equipment, systems and apparatus used in
connection therewith, including the cost of providing those services required
to
be furnished by Landlord under this Lease and a management fee equal to five
(5%) percent of all Gross Rental derived from the Building ("Gross Rental"
shall
mean Base Rent and any Additional Rent payable by tenants). Operating Costs
shall also include the costs of any capital improvements which are intended
to
reduce Operating Costs or improve safety, and those made to keep the Project
in
compliance with governmental requirements applicable from time to time or to
replace existing capital improvements, facilities and equipment within the
Building or the common areas of the Project, such as the roof membrane, the
roof, structural elements of the Building, and resurfacing of the parking areas
(collectively, "Included
Capital Items");
provided, that the costs of any Included Capital Item shall be amortized by
Landlord, together with an amount equal to interest at ten (10%) percent per
annum, over the estimated useful life of such item and such amortized costs
are
only included in Operating Costs for that portion of the useful life of the
Included Capital Item which falls within the Term, unless the cost of the
Included Capital Item is less than Ten Thousand ($10,000) Dollars in which
case
it shall be expensed in the year in which it was incurred. Operating Costs
shall
not include Property Taxes, depreciation on the Building other than depreciation
on exterior window coverings provided by Landlord and carpeting in public
corridors and common areas and the personal property referred to above; costs
of
tenants' improvements in excess of tenant standard; real estate brokers'
commissions, attorneys' fees and expenses incurred in connection with
negotiations or disputes with Building tenants or prospective Building tenants
and any expense to the extent Landlord receives direct reimbursement by tenants,
insurers or other third parties. Notwithstanding anything to the contrary
contained in this Section 2.C.(1), Operating Costs shall only include (i)
Operating Costs fairly allocable to the Building, and (ii) a proportionate
share
(based on the gross rentable area of the Building as a percentage of the gross
rentable area of all of the buildings in the Project) of all Operating Costs
which relate to the Project in general and are not fairly allocable to any
one
building in the Project. If the Project is not fully occupied during any portion
of any Lease Year, Landlord may adjust Operating Costs to equal what would
have
been incurred by Landlord had the Project been fully occupied. Landlord may
incorporate such adjustments in its estimates of Operating Costs.
(2)
Taxes
"Taxes"
means
any and all taxes, assessments and charges of any kind, general or special,
ordinary or extraordinary, levied against the Project, which Landlord shall
pay
or become obligated to pay in connection with the ownership, leasing, renting,
management, use, occupancy, control or operation of the Project or of the
personal property, fixtures, machinery, equipment, systems and apparatus used
in
connection therewith. Taxes shall include real estate taxes, personal property
taxes, sewer rents, water rents, special or general assessments, transit taxes,
ad valorem taxes, and any tax levied by any state, county, municipality or
other
governmental authority on the rents hereunder or the interest of Landlord under
this Lease (the "Rent Tax"). Taxes shall also include all fees and other costs
and expenses paid by Landlord in reviewing any tax and in seeking a refund
or
reduction of any Taxes, whether or not the Landlord is ultimately successful.
Taxes shall also include any assessments or fees paid to any business park
owners association, or similar entity, which are imposed against the Project
pursuant to any Covenants, Conditions and Restrictions ("CC&R's") recorded
against the Project and any installments of principal and interest required
to
pay any existing or future general or special assessments for public
improvements, services or benefits, and any increases resulting from
reassessments imposed in connection with any change in ownership or new
construction. Notwithstanding anything to the contrary contained in this Section
2.C.(2), Taxes shall include only those Taxes (i) fairly allocable to the
Building, and (ii) a proportionate share (based on the gross rentable area
of
the Building as a percentage of the gross rentable area of all of the buildings
in the Project) of all Taxes which relate to the Project in general and are
not
fairly allocable to any one building in the Project. For any year, the amount
to
be included in Taxes (a) from taxes or assessments payable in installments,
shall be the amount of the installments (with any interest) due and payable
during such year, and (b) from all other Taxes, shall at Landlord's election
be
the amount accrued, assessed, or otherwise imposed for such year or the amount
due and payable in such year. Any refund or other adjustment to any Taxes by
the
taxing authority, shall apply during the year in which the adjustment is made.
Taxes shall not include any net income (except Rent Tax), capital, stock,
succession, transfer, franchise, gift, estate or inheritance tax, except to
the
extent that such tax shall be imposed in lieu of any portion of
Taxes.
(3)
Base
Year The
term
"Base Year" shall mean the Operating Costs and Taxes incurred by Landlord during
the calendar year as set forth under Section 12 in the Schedule
hereinabove.
(4)
Lease
Year "Lease Year"
shall
mean each twelve month period during the term hereof ending on December 31;
provided that the first Lease Year shall commence upon the commencement of
the
term hereof and shall end on the next succeeding December 31, and the last
Lease
Year shall end upon the expiration of the term hereof.
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G.
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COMPUTATION
OF BASE RENT AND RENT
ADJUSTMENTS.
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(1)
Prorations
If this
Lease begins on a day other than the first day of a month, the Base Rent,
Operating Cost Share Rent and Tax Share Rent shall be prorated for such partial
month based on the actual number of days in such month. If this Lease begins
on
a day other than the first day, or ends on a day other than the last day of
the
Lease Year, Operating Cost Share Rent and Tax Share Rent shall be prorated
for
the applicable Lease Year.
(2)
Default
Interest
Any sum
due from Tenant to Landlord not paid when due shall bear interest from the
date
due until paid at the lesser of eighteen (18%) percent per annum or the maximum
rate permitted by law.
(3)
Books
and Records
Landlord
shall maintain books and records reflecting the Operating Costs and Taxes in
accordance with its standard operating procedures and practice and generally
accepted accounting principles. Provided Tenant is not otherwise in default
under this Lease, Tenant and its certified public accountant shall have the
right to inspect Landlord's records at Landlord's applicable local office or
other location designated by Landlord upon at least seventy-two (72) hours
prior
written notice during normal business hours during the ninety (90) days
following the respective delivery of the Operating Cost Report or the Tax
Report. The results of any such inspection shall be kept strictly confidential
by Tenant and its agents, and Tenant and its certified public accountant must
agree, in their contract for such services, to such confidentiality restrictions
and shall specifically agree that the results shall not be made available to
any
other tenant of the Project. Unless Tenant sends to Landlord any written
exception to either such report within said ninety-day (90) period, such report
shall be deemed final and accepted by Tenant. Tenant shall pay the amount shown
on both reports in the manner prescribed in this Lease, whether or not Tenant
takes any such written exception, without any prejudice to such exception.
If
Tenant makes a timely exception, Landlord shall cause its independent certified
public accountant to issue a final and conclusive resolution of Tenant's
exception. Tenant shall pay the cost of such certification unless Landlord's
original determination of annual Operating Costs and Taxes in the aggregate
overstated the amounts thereof by more than five (5%) percent.
(4)
Miscellaneous
So long
as Tenant is in default of any obligation under this Lease, Tenant shall not
be
entitled to any refund of any amount from Landlord. If this Lease is terminated
for any reason prior to the annual determination of Operating Cost Share Rent
or
Tax Share Rent, either party shall pay the full amount due to the other within
fifteen (15) days after Landlord's notice to Tenant of the amount when it is
determined. Landlord may commingle any payments made with respect to Operating
Cost Share Rent or Tax Share Rent, without payment of interest.
PREMISES
The
exact
boundaries of the Premises shall extend to the unfinished interior surface
of
all perimeter walls, except glazing, which shall be included within the
Premises, the unfinished surface of all floors, and the underside of the floor
above the Premises that forms the ceiling of the Premises. Notwithstanding
the
foregoing, the Premises shall not be deemed to include the roof, the exterior
surface of the walls of the Premises, any structural portions of the Building
or
any utility installations serving other portions of the Building. Landlord
reserves to itself the use of the roof, exterior walls and the area beneath
the
Premises, together with the right to install, maintain, use, repair and replace
plumbing, telephone facilities, equipment, machinery, connections, pipes, ducts,
conduits and wires leading through the Premises and serving other parts of
the
Building. The square footage of the Premises shall be determined in accordance
with the BOMA Standards. Not later than 15 days before the Commencement Date,
Tenant shall have the right to measure the Premises and determine the rentable
square footage thereof. If the rentable square footage contained in the Premises
is more or less than the square footage identified in the Schedule, then the
Rent and Tenant's Proportionate Share shall be adjusted to reflect the actual
rentable square footage contained within the Premises.
CONDITION
OF PREMISES
Tenant
represents, warrants and covenants to Landlord that, as of the date of this
Lease, Tenant has conducted its own investigation of the Premises and the
physical condition thereof, including, without limitation, the accessibility
and
location of utilities, the improvements, the presence of Hazardous Substances
(defined hereinafter), and any other matters which in Tenant's judgment might
affect or influence Tenant's use of the Premises or Tenant's willingness to
enter into this Lease. Tenant recognizes that Landlord would not lease the
Premises except on an "as is" basis and acknowledges that, except as set forth
in this Lease, Landlord has made no representation of any kind in connection
with the improvements to, or the physical conditions on, or bearing on the
use
of, the Premises. Tenant shall rely solely on Tenant's own inspection and
examination of such items and not on any representations of Landlord, express
or
implied. Landlord shall deliver the Premises to Tenant in the same arrangement
and condition as the Premises now are, reasonable wear and tear excepted, and
that Landlord, except as may be expressly agreed by Landlord in writing as
set
forth in the Tenant Improvement Agreement and Work Letter (the "Work"), set
forth herein as Exhibit C attached and made a part hereof, has no obligation
to
alter, repair, renovate, or render fit for Tenant's occupancy, any part of
the
Premises. Upon execution of this Lease, Tenant shall be deemed fully satisfied
with the results of Tenant's inspection and examination of all such items.
Landlord shall be solely responsible for constructing those certain interior
tenant improvements ("Tenant Improvements") within the Premises in accordance
with the terms and conditions set forth in the Tenant Improvement Agreement
and
Work Letter attached hereto as EXHIBIT C. Tenant agrees and acknowledges that
Landlord shall have no liability or responsibility whatsoever for the
construction of the Tenant Improvements, except that Landlord agrees to provide
as set forth in the Tenant Improvement Agreement and Work Letter.
PROJECT
SERVICES
Landlord
shall furnish services as follows:
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H.
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HEATING
AND AIR CONDITIONING.
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During
the normal business hours of 8:00 a.m. to 6:00 p.m., Monday through Friday,
Landlord shall furnish heating and air conditioning to provide a comfortable
temperature, in Landlord's reasonable judgment, for normal business operations,
except to the extent Tenant fails to take reasonable steps to ensure the
efficient heating and cooling of the Premises (e.g., keeping all exterior doors,
windows and blinds closed) or installs equipment which adversely affects the
temperature maintained by the air conditioning system; provided if the outside
temperature exceeds 95° degrees F dry bulb, then Tenant acknowledges that the
temperatures within the Premises may be slightly higher than usual. If Tenant
installs such equipment, Landlord may reasonably require that Tenant install
supplementary air conditioning units in the Premises and pay the cost of
installation, operation and maintenance thereof. Landlord shall furnish heating
and air conditioning after business hours if Tenant provides Landlord reasonable
prior notice, and pays Landlord all the then current charges for such additional
heating or air conditioning. The current hourly charge for after-hours HVAC
use
is $35.00 per hour, provided that Landlord reserves the right to change this
rate at any time during the Term without notice to Tenant.
If
the
Building is equipped with one or more elevators, Landlord shall provide
passenger elevator service during normal business hours to Tenant in common
with
Landlord and all other tenants. Landlord shall provide limited passenger service
at other times, except in case of an emergency. If the Building is equipped
with
a freight elevator, Landlord shall provide freight elevator service at
reasonable hours at Tenant's request, subject to scheduling by the Landlord
and
payment for the service by Tenant.
Landlord
shall provide sufficient electricity to operate normal office equipment. Tenant
shall not install or operate in the Premises any electrically operated equipment
or other machinery, other than business machines and equipment normally employed
for general office use which do not require high electricity consumption for
operation, without obtaining the prior written consent of Landlord. If any
or
all of Tenant's equipment requires electricity consumption in excess of that
which is necessary to operate normal office equipment, such consumption
(including consumption for computer or telephone rooms and special HVAC
equipment) shall be submetered by Landlord at Tenant's expense, and Tenant
shall
reimburse Landlord as Additional Rent for the cost of its sub-metered
consumption based upon Landlord's average cost of electricity. Such Additional
Rent shall be in addition to Tenant's obligations pursuant to Section 2.A (4)
to
pay its Proportionate Share of Operating Costs.
Landlord
shall furnish hot and cold tap water for drinking and toilet purposes. Tenant
shall pay Landlord for water furnished for any other purpose as Additional
Rent
at rates fixed by Landlord. Such Additional Rent shall be in addition to
Tenant's obligations pursuant to Section 2.A (4) to pay its Proportionate Share
of Operating Costs. Tenant shall take reasonable actions so as to avoid allowing
water to be wasted.
Landlord
shall furnish janitorial service Monday through Friday as generally provided
to
other tenants in the Project and consistent with specifications for other Class
A office buildings for the City of Berkeley, California. With reasonable prior
notice from Tenant, Landlord shall also provide additional janitorial service
on
weekends or holidays at Tenant's expense, and Tenant shall reimburse Landlord
as
Additional Rent for the cost of such additional janitorial services. Such
Additional Rent shall be in addition to Tenant's obligations pursuant to Section
2.A (4) to pay its Proportionate Share of Operating Costs.
|
M.
|
INTERRUPTION
OF SERVICES.
|
Landlord
shall not be liable for any failure to furnish, stoppage of, or interruption
in
furnishing any of the services or utilities, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption abate or suspend Tenant's
obligation to pay Rent required under this Lease or constitute or be construed
as a constructive or other eviction of Tenant or relieve Tenant from fulfillment
of any covenant or agreement hereof. Further, in the event any governmental
authority or public utility promulgates or revises any law, ordinance, rule
or
regulation, or issues mandatory controls or voluntary controls relating to
the
use or conservation of energy, water, gas, light or electricity, the reduction
of automobile or other emissions, or the provision of any other utility or
service, Landlord may take any reasonably appropriate action to comply with
such
law, ordinance, rule, regulation, mandatory control or voluntary guideline
and
Tenant's obligations hereunder shall not be affected by any such action of
Landlord. The parties acknowledge that safety and security devices, services
and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in this Lease. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by
law.
ALTERATIONS
AND REPAIRS
|
N.
|
LANDLORD'S
CONSENT AND CONDITIONS.
|
Tenant
shall not make any improvements or alterations to the Premises (the "Work")
without in each instance submitting plans and specifications for the Work to
Landlord and obtaining Landlord's prior written consent, which consent may
be
withheld in Landlord's sole discretion. Landlord will be deemed to be acting
reasonably in withholding its consent for any Work which (a) impacts the base
structural components or systems of the Building, (b) impacts any other tenant's
premises, or (c) is visible from outside the Premises. Tenant shall pay for
the
cost of all Work, including the cost of any and all approvals, permits, fees
and
other charges which may be required as a condition of performing such Work.
The
following requirements shall apply to all Work:
(1)
Prior
to commencement,
Tenant
shall furnish to Landlord building permits, and certificates of insurance
reasonably satisfactory to Landlord.
(2)
Tenant
shall perform
all Work
so as to maintain peace and harmony among other contractors serving the Project
and shall avoid interference with other work to be performed or services to
be
rendered in the Project.
(3)
The
Work
shall be
performed in a good and workmanlike manner, meeting the standard for
construction and quality of materials in the Building, and shall comply with
all
insurance requirements and all applicable governmental laws, ordinances and
regulations ("Governmental Requirements").
(4)
Tenant
shall perform
all Work
so as to minimize or prevent disruption to other tenants, and Tenant shall
comply with all reasonable requests of Landlord in response to complaints from
other tenants.
(5)
Tenant
shall perform
all Work
in compliance with any "Policies, Rules and Procedures for Construction
Projects" which may be in effect at the time the Work is performed. As of the
date of this Lease, there are no Policies, Rules and Procedures for Construction
Projects which have been established for this Project.
(6)
Tenant
shall reimburse
Landlord
any and all costs and expenses incurred by Landlord in connection with the
construction of the Work, including, without limitation, utilities, trash
removal, and temporary barricades, and the review of any plans and
specifications. Tenant shall permit Landlord to supervise all Work. Landlord
may
charge a supervisory fee not to exceed fifteen percent (15%) of labor,
materials, and all other costs of the Work whether or not Landlord's employees
or contractors perform the Work.
(7)
Upon
completion,
Tenant
shall furnish Landlord with full and final statutory waivers of liens, as-built
plans and specifications, and receipted bills covering all labor and materials,
and all other close-out documentation relating to the Work, including any other
information required under any "Policies, Rules and Procedures for Construction
Projects" which may be in effect at such time.
(8)
Notwithstanding
anything
to the
contrary contained in this Lease, Landlord's approval of any contractors,
subcontractors, engineers, architects, suppliers, plans or specifications
submitted pursuant hereto shall not be deemed a warranty as to the adequacy
of
the design, workmanship, quality of materials or compliance with any applicable
laws.
(9)
Landlord
may require
Tenant
to provide Landlord at Tenant's sole cost and expense a completion and
performance bond in an amount equal to the estimated cost of the Work to insure
Landlord against any liability for mechanic's or materialmens' liens and to
insure the completion of the Work.
If
any
part of the mechanical, electrical or other systems in the Premises (e.g.,
HVAC,
life safety or automatic fire extinguisher/sprinkler system) shall be damaged,
Tenant shall promptly notify Landlord, and Landlord shall repair such damage.
Landlord may also at any reasonable time make any repairs or alterations which
Landlord deems necessary for the safety or protection of the Project, or which
Landlord is required to make by any court or pursuant to any Governmental
Requirement. Tenant shall at its expense make all other repairs necessary to
keep the Premises, and Tenant's fixtures and personal property, in good order,
condition and repair in compliance with all applicable Governmental
Requirements; to the extent Tenant fails to do so, Landlord may make such
repairs itself. The cost of any repairs made by Landlord on account of Tenant's
default, or on account of the misuse or neglect by Tenant or its invitees,
contractors or agents anywhere in the Project, shall become Additional Rent
payable by Tenant on demand. It is a condition precedent to all Landlord's
obligations to repair and maintain that Tenant shall have notified Landlord
of
the need of such repairs or maintenance. Tenant waives the provisions of
Sections 1941 and 1942 of the California Civil Code and any similar or successor
law regarding Tenant's right to make repairs and deduct the cost of such repairs
from the Rent due under this Lease.
Tenant
has no authority to cause or permit any lien or encumbrance of any kind to
affect Landlord's interest in the Project; any such lien or encumbrance shall
attach to Tenant's interest only. If any mechanic's lien shall be filed or
claim
of lien made for work or materials furnished to Tenant, then Tenant shall at
its
expense within ten (10) days thereafter either discharge or contest the lien
or
claim. If Tenant contests the lien or claim, then Tenant shall (i) within such
ten (10) day period, provide Landlord adequate security for the lien or claim,
(ii) contest the lien or claim in good faith by appropriate proceedings that
operate to stay its enforcement, and (iii) pay promptly any final adverse
judgment entered in any such proceeding. If Tenant does not comply with these
requirements, Landlord may discharge the lien or claim, and the amount paid,
as
well as attorney's fees and other expenses incurred by Landlord, shall become
Additional Rent payable by Tenant on demand.
|
Q.
|
OWNERSHIP
OF IMPROVEMENTS.
|
All
Work
as defined in this Section 6, partitions, hardware, and all other improvements
and all fixtures except trade fixtures, constructed in the Premises by either
Landlord or Tenant, (i) shall become Landlord's property upon termination
without compensation to Tenant, or (ii) shall at Landlord's option be removed
in
accordance with Section 6.E below.
|
R.
|
REMOVAL
UPON TERMINATION.
|
Upon
the
termination of this Lease or Tenant's right of possession Tenant shall remove
from the Premises and Project its trade fixtures, furniture, moveable equipment
and other personal property, any improvements which Landlord elects pursuant
to
Section 6.E shall be removed by Tenant, and any improvements to any portion
of
the Project other than the Premises. If Tenant does not timely remove such
property, then Tenant shall be conclusively presumed to have, at Landlord's
election (i) conveyed such property to Landlord without compensation or (ii)
abandoned such property, and Landlord may dispose of or store any part thereof
in any manner at Tenant's sole cost, without waiving Landlord's right to claim
from Tenant all expenses arising out of Tenant's failure to remove the property,
and without liability to Tenant or any other person. Landlord shall have no
duty
to be a bailee of any such personal property. If Landlord elects abandonment,
Tenant shall pay to Landlord, upon demand, any expenses incurred for
disposition.
USE
OF PREMISES
Tenant
shall use the Premises only for the Permitted Use stated in the Schedule. Any
material change in the character of Tenant's business or use shall constitute
a
default under this Lease. Nothing contained in this Lease shall grant to Tenant
the exclusive right to conduct within the Building the business to be conducted
by Tenant within the Premises or otherwise limit the right of Landlord to lease
space in the Building to any other tenants as it deems proper. Tenant shall
not
conduct or permit to be conducted in the Premises any sale by auction, or any
fire, distress or bankruptcy sale, or use or allow the Premises to be used
for
any improper, immoral, unlawful or objectionable purpose, or cause, maintain
or
permit any nuisance in, or about the Premises or commit or suffer to be
committed any waste in or upon the Premises. Tenant shall not allow any use
of
the Premises which will negatively affect the cost of coverage of Landlord's
insurance on the Project. Tenant shall not allow any inflammable or explosive
liquids or materials to be kept on the Premises. Tenant shall not allow any
use
of the Premises which would cause the value or utility of any part of the
Premises to diminish or would interfere with any other tenant or with the
operation of the Project by Landlord. Tenant shall not permit any nuisance
or
waste upon the Project, or allow any offensive noise or odor in or around the
Project. At the end of each business day, or more frequently if necessary,
Tenant shall deposit all garbage and other trash (excluding any inflammable,
explosive and/or hazardous materials) in trash bins or containers approved
by
Landlord in locations designated by Landlord from time to time. If any
governmental authority shall deem the Premises to be a "place of public
accommodation" under the Americans with Disabilities Act or any other comparable
law as a result of Tenant's use, Tenant shall either modify its use to cause
authority to rescind its designation or to be responsible for any alterations,
structural or otherwise, required to be made to the Building or the Premises
under such laws.
Tenant
shall not place on any portion of the Premises any sign, placard, lettering,
banner, displays or other advertising or communicative material which is visible
from the exterior of the Building without the prior written approval of
Landlord. Any approved signs shall strictly conform to all Governmental
Restrictions, any CC&R's recorded against the Project, and any sign criteria
which may be established by Landlord and in effect at the time, and shall be
installed (and removed upon the Expiration Date) at Tenant's expense. Tenant,
at
its sole cost and expense, shall maintain such signs in good condition and
repair, (including the repair of any damage caused to the Building and/or
Project upon the removal of such signs). Landlord current Signage Standards
are
on file and available upon request from the Landlord's corporate office, and
are
subject to change from time to time. Notwithstanding the foregoing, Landlord,
at
its cost, shall include Tenant's name in the lobby directory for the
Building.
Landlord
shall provide Tenant up to the number of parking stalls specified in the
Schedule on an unreserved basis in Landlord's parking facilities (the "Parking
Facilities"). The parking stalls are charged to Tenant at the prevailing rates
which may be adjusted from time to time by Landlord in its sole discretion.
The
use of the Parking Facilities shall be in common with other tenants of the
Project upon a first-come, first-served basis and on other reasonable,
nondiscriminatory terms and conditions, as may from time to time be established
by Landlord. Tenant agrees to cooperate with Landlord and other tenants in
the
Project in the use of the Parking Facilities. Access to the surface parking
lot
and underground parking garage shall be subject to control by Landlord. Landlord
reserves the right in its sole discretion to alter, change or improve the
Parking Facilities. Landlord shall not be liable to Tenant, nor shall this
Lease
be affected, if any parking is impaired by moratorium, initiative, referendum,
law, ordinance, regulation or order passed, issued or made by any governmental
or quasi-governmental body. Landlord assumes no liability for damage or
injuries, theft, collision, fire or damage of Tenant, its employees, customers
and invitees and/or their vehicles and Landlord shall not be responsible for
articles left in vehicles or for damages for loss of use of any vehicle. Tenant
waives any and all claims against Landlord for any injury to or death of any
person or damage to or destruction of property in or about the Parking
Facilities, including, without limitation, loss of use of any one or all of
the
Parking Facilities.
|
V.
|
PROHIBITION
AGAINST USE OF ROOF AND STRUCTURE OF
BUILDING.
|
Tenant
shall be prohibited from using any all or any portion of the roof of the
Building or any portion of the structure of the Building during the Tenancy
of
this Lease (or any extensions thereof) for any purposes.
INTRABUILDING
NETWORK CABLES
Notwithstanding
anything contained in this Lease to the contrary, Landlord and Tenant agree
as
follows:
|
W.
|
TENANT'S
RESPONSIBILITY.
|
At
its
sole cost and expense, Tenant agrees to install, maintain, and repair all
telecommunication cabling, wiring, and risers in the Premises or through the
Building to Tenant's telephone panel as may be required to for Tenant's use
of
the Premises. Any costs incurred by Landlord caused by such installation or
to
comply with governmental laws, rules, and regulations in connection with such
installation, will be for the account of Tenant, and within ten (10) days Tenant
will pay all invoices for those costs as Additional Rent. Tenant shall also
be
responsible, at Tenant's sole cost and expense, for any of Tenant's telephones,
telecopiers, computers, routers, telephone switching, telephone panels and
related equipment.
|
X.
|
LANDLORD'S
RIGHT OF ENTRY.
|
In
addition to Landlord's other rights of entry under this Lease, Landlord has
the
right to enter the Premises to install, maintain, and repair telecommunications
cabling, wiring, and risers for the benefit of other tenants of the
Building.
|
Y.
|
ALTERATIONS
BY TENANT.
|
Regardless
of Tenant's other rights under the Lease to make alterations to the Premises,
Tenant may not alter or modify the telecommunication cabling, wiring, and risers
located in the Premises or throughout the Building or otherwise without
Landlord's prior written consent, which consent may be withheld in Landlord's
sole discretion.
Tenant
agrees that the installation, maintenance, and repair of Tenant's
telecommunications cabling, wiring and risers in the Premises or through the
Building will be done by Landlord's approved service provider or any other
independent contractor that Landlord may approve in writing in advance, which
approval shall not be unreasonably withheld.
Tenant
agrees to indemnify, release, defend, and hold Landlord harmless against any
damages, claims, or other liability resulting from the installation, repair,
or
maintenance, of Tenant's telecommunications calling, wiring and risers in the
Premises or through the Building including, but not limited to, the costs of
repair, the costs of handling complaints from other tenants in the Building,
and
any damages resulting from the interruption in service to other tenants in
the
Building. Tenant releases Landlord from any losses, claims, injuries, damages,
or other liability, including, but not limited to, consequential damages,
whether to persons or property and no matter how caused, in any way connected
with the interruption of telecommunications services to the Premises due to
the
failure of any telecommunications cabling, wiring, or risers. Tenant expressly
waives any right to claim that the interruption of such services constitutes
grounds for a claim of abatement of rent, of constructive eviction, or for
termination of this Lease.
GOVERNMENTAL
REQUIREMENTS AND BUILDING RULES
Tenant
shall comply with all Governmental Requirements applying to its use, repair
and
maintenance of the Premises. Landlord and Tenant acknowledge and agree that
Tenant's obligation to comply with the legal requirements as provided herein
is
a material part of the bargained for consideration under this Lease. Tenant's
obligation hereunder shall include, without limitation, the responsibility
of
Tenant to make substantial repairs and alterations to the Premises (including
any Improvements), regardless of, among other factors, the relationship of
the
cost of curative action to the rental under this Lease, the length of the then
remaining term of this Lease, the relative benefit of the repairs to Tenant,
the
degree in which the curative action may interfere with Tenant's use or enjoyment
of the Premises, the likelihood that Landlord or Tenant contemplated the
particular Governmental Requirements involved, and whether the Governmental
Requirements involved are related to Tenant's particular use of the Premises.
No
occurrence or situation arising during the term hereof, nor any present or
future Governmental Requirements, whether foreseen or unforeseen, and however
extraordinary, shall relieve Tenant from its obligations hereunder, or shall
give Tenant any right to terminate this Lease in whole or in part or to
otherwise seek redress against Landlord. Tenant waives any rights now or
hereafter conferred upon it by any existing or future law to terminate this
Lease, to receive any abatement, diminution, reduction or suspension of payment
of rent, or to compel Landlord to make any repairs to comply with any such
Governmental Requirements, on account of any such occurrence or situation.
Tenant shall also comply with all reasonable rules for the Project which may
be
established and amended from time to time by Landlord. The present rules and
regulations are contained in EXHIBIT B. Failure by another tenant to comply
with
the rules or failure by Landlord to enforce them shall not relieve Tenant of
its
obligation to comply with the rules or make Landlord responsible to Tenant
in
any way. Landlord shall use reasonable efforts to apply the rules and
regulations uniformly with respect to Tenant and any other tenants in the
Project under leases containing rules and regulations similar to this Lease.
All
Work, alterations, repairs or improvements performed by Tenant shall comply
with
the provisions of Section 6 of this Lease and any applicable "Policies, Rules
and Regulations for Construction Projects" which may be reasonably established
by Landlord and in effect at the time. Notwithstanding the foregoing, Landlord
shall be responsible for all ADA compliance costs required to be incurred in
connection with the common areas of the Project, except that Tenant shall be
solely responsible for all ADA compliance costs which are required to be
incurred in connection with the common areas of the Project as a result of
Tenant's particular use or activities (e.g., alterations or repairs). Tenant
shall be solely responsible for all ADA compliance costs which are required
to
be incurred within the Premises during the Term. Landlord makes no
representations or warranties regarding the Project's or the Premises'
compliance with the ADA.
WAIVER
OF CLAIMS; INDEMNIFICATION; INSURANCE
To
the
extent permitted by law, Tenant waives any claims it may have against Landlord
or its officers, directors, employees or agents for business interruption or
damage to property sustained by Tenant as the result of any act or omission
of
Landlord, its agents or employees. To the extent permitted by law, Landlord
waives any claims it may have against Tenant or its officers, directors,
employees or agents for loss of rents or damage to property sustained by
Landlord as the result of any act or omission of Tenant, its agents or
employees.
Except
for Landlord's or its agent's, employees or contractors willful misconduct
or
active negligence, Tenant shall indemnify, defend, and hold Landlord harmless
from any and all claims, liability, damage or loss, and from and against any
and
all costs and expenses, including reasonable attorneys' fees, arising out of:
(a) any injury to or death of any person or damage to or destruction of any
property, from any cause whatsoever occurring in or about the Premises or the
Building or the Project, and, if occurring in or about any portion of the common
areas or elsewhere in or about the Building or the Project, when such injury
or
damage shall be caused in whole or in part by the act, neglect, default or
omission of any duty by Tenant, its agents, employees or invitees or otherwise
by any conduct, or (b) transactions of any of said persons in or about or
concerning the Premises, including any failure of Tenant to observe or perform
any of its obligations. The provisions of this Section 10.B shall survive the
termination of this Lease.
Except
for Tenant's or its employees, agents, contractors or invitees willful
misconduct or active negligence, Landlord shall indemnify, defend, and hold
Tenant harmless from any and all claims, liability, damage or loss, and from
and
against any and all costs and expenses, including reasonable attorneys' fees,
arising out of: any injury to or death of any person or damage to or destruction
of any property, occurring in or about the Building or the Project, when such
injury or damage shall be caused in whole or in part by the willful misconduct
or active negligence of Landlord, its agents, employees or
contractors.
Tenant
shall maintain insurance as follows:
(1)
Commercial
General Liability Insurance,
with
(a) contractual liability including the indemnification provisions contained
in
this Lease, (b) a severability of interest endorsement, (c) limits of not less
than One Million Dollars ($1,000,000) combined single limit per occurrence
and
not less than Two Million Dollars ($2,000,000) in the aggregate for bodily
injury, sickness or death, and property damage, and umbrella coverage of not
less than Three Million Dollars ($3,000,000).
(2)
Property
Insurance against
"All
Risks" of physical loss covering the replacement cost of all Improvements.
Tenant waives all rights of subrogation, and Tenant's property insurance shall
include a waiver of subrogation in favor of Landlord.
(3)
Workers'
Compensation
or
similar insurance in form and amounts required by law, and Employer's Liability
with not less than the following limits:
Each
Accident $500,000
Disease
-
Policy Limit $500,000
Disease
-
Each Employee $500,000
(4)
Such
insurance
which
Tenant is required to maintain shall contain a waiver of subrogation provision
in favor of Landlord and its agent. If in the opinion of Landlord's insurance
advisor, based on a substantial increase in recovered liability claims, the
aforesaid amounts of coverage are no longer adequate, then such coverage shall
be proportionately increased. Tenant's insurance shall be primary and not
contributory to that carried by Landlord, its agents, or mortgagee. Landlord,
and if any, Landlord's building manager or agent, mortgagee and ground lessor
shall be named as additional insureds. The company or companies writing any
insurance which Tenant is required to maintain under this Lease, as well as
the
form of such insurance, shall at all times be subject to Landlord's approval,
and any such company shall be licensed to do business in the State of
California. Such insurance companies shall have a A.M. Best rating of A VI
or
better. Should this Lease be canceled due to damage or destruction to or
condemnation of the Premises and Tenant is thus relieved of its obligation
to
restore or rebuild the improvements on the Premises, any insurance proceeds
for
damage to the Premises, including all fixtures and leasehold improvements
thereon, shall belong to Landlord, free and clear of any claims by Tenant.
(5)
Tenant
shall cause
any
contractor of Tenant performing work on the Premises to maintain insurance
as
follows, with such other terms, coverages and insurers, as Landlord shall
reasonably require from time to time:
(a) Commercial
General Liability Insurance,
including contractor's liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement, and
contractor's protective liability coverage, to afford protection with limits,
for each occurrence, of not less than One Million Dollars ($ 1,000,000) with
respect to personal injury, death or property damage.
(b) Workers'
Compensation
or
similar insurance in form and amounts required by law, and Employer's Liability
with not less than the following limits:
Each
Accident $500,000
Disease
-
Policy Limit $500,000
Disease
-
Each Employee $500,000
Such
insurance shall contain a waiver of subrogation provision in favor of Landlord
and its agents. Tenant's contractor's insurance shall be primary and not
contributory to that carried by Tenant, Landlord, their agents or mortgagees.
Tenant and Landlord, and if any, Landlord, mortgagee or ground lessor shall
be
named as additional insured on Tenant's contractor, insurance
policies.
|
EE.
|
INSURANCE
CERTIFICATES.
|
Tenant
shall deliver to Landlord certificates evidencing all required insurance no
later than five (5) days prior to the Commencement Date and each renewal date.
Each certificate will provide for thirty (30) days prior written notice of
cancellation to Landlord and Tenant. E.
|
FF.
|
LANDLORD'S
INSURANCE.
|
Landlord
shall maintain "All-Risk" property insurance at replacement cost, including
loss
of rents, on the Building, and Commercial General Liability insurance policies
covering the common areas of the Project, each with such terms, coverages and
conditions as are normally carried by reasonably prudent owners of properties
similar to the Project. The cost of any premium for Landlord's insurance shall
be included as part of the Operating Costs. With respect to property insurance,
Landlord and Tenant mutually waive all rights of subrogation, and the respective
"All-Risk" coverage property insurance policies carried by Landlord and Tenant
shall contain enforceable waiver of subrogation endorsements.
FIRE
AND OTHER CASUALTY
If
a fire
or other casualty causes substantial damage to the Building or the Premises,
and
sufficient insurance proceeds will be available to Landlord to cover the cost
of
any restoration to the Building and Premises, Landlord shall engage a registered
architect to certify within one (1) month of the casualty to both Landlord
and
Tenant the amount of time needed to restore the Building and the Premises to
tenantability, using standard working methods without the payment of overtime
and other premiums. If the time needed exceeds twelve (12) months from the
beginning of the restoration, or two (2) months therefrom if the restoration
would begin during the last twelve (12) months of the Lease, then in the case
of
the Premises, either Landlord or Tenant may terminate this Lease, and in the
case of the Building, Landlord may terminate this Lease, by notice to the other
party within ten (10) days after the notifying party's receipt of the
architect's certificate. If sufficient insurance proceeds will not be available
to Landlord to cover the cost of any restoration to the Building or the
Premises, Landlord may terminate this Lease by written notice to Tenant. Any
termination pursuant to this Section 11 .A shall be effective thirty (30) days
from the date of such termination notice and Rent shall be paid by Tenant to
that date, with a reasonable abatement of Rent for any portion of the space
which has been untenantable after the casualty.
If
a
casualty causes damage to the Building or the Premises but this Lease is not
terminated for any reason, then subject to the rights of any mortgagees or
ground lessors, Landlord shall obtain the applicable insurance proceeds and
diligently restore the Building and the Premises subject to current Governmental
Requirements. Landlord's obligation, should it elect or be obligated to repair
or rebuild, shall be limited to the basic Premises, the building-standard tenant
improvements, or the basic Building, as the case may be, and Tenant shall,
at
Tenant's expense, replace or fully repair its damaged improvements (including
any Tenant Improvements in excess of the building standard), personal property
and fixtures. Rent shall be abated on a per diem basis during the restoration
for any portion of the Premises which is untenantable, except to the extent
that
the casualty was caused by the negligence or intentional misconduct of Tenant,
its agents or employees. Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the Premises, damage to Tenant's
personal property and trade fixtures or any inconvenience occasioned by such
damage, repair or restoration. Tenant hereby waives the provisions of Section
1932, Subdivision 2, and Section 1933, Subdivision 4, of the California Civil
Code, and the provisions of any similar law hereinafter enacted.
If
a part
of the Project is taken by eminent domain or deed in lieu thereof which is
so
substantial that the Premises cannot reasonably be used by Tenant for the
operation of its business, then either party may terminate this Lease effective
as of the date of the taking. If any substantial portion of the Project is
taken
without affecting the Premises, then Landlord may terminate this Lease as of
the
date of such taking. Rent shall abate from the date of the taking in proportion
to any part of the Premises taken, provided Tenant can terminate this Lease
if
any material portion of the Premises is taken such that the conduct of Tenant's
business activities is not reasonably possible. The entire award for a taking
of
any kind shall be paid to Landlord, and Tenant shall have no right to share
in
the award. All obligations accrued to the date of the taking shall be performed
by each party.
RIGHTS
RESERVED TO LANDLORD
Landlord
may exercise at any time any of the following rights respecting the operation
of
the Project without liability to the Tenant of any kind:
To
change
the name of all or any of the Buildings or the Project, or the street address
of
the Buildings or the suite number(s) of the Premises.
To
install, modify and/or maintain any signs on the exterior and in the interior
of
the Buildings or on the Project, and to approve at its sole discretion, prior
to
installation, any of Tenant's signs in the Premises visible from the common
areas or the exterior of the Building.
To
approve, at its discretion, prior to installation, any shades, blinds,
ventilators or window treatments of any kind, as well as any lighting within
the
Premises that may be visible from the exterior of the Building or any interior
common area.
To
retain
and use at any time passkeys to enter the Premises or any door within the
Premises. Tenant shall be required to obtain Landlord's consent, which consent
shall not be unreasonably withheld, to install additional security measures
in
the Premises (i.e. card reader), at Tenant's sole cost and expense; provided,
however, that the installation and use of such security measures shall not
interfere with Landlord's ability to access the Premises in
emergencies.
To
have
access to the Premises with twenty-four (24) hour prior notice (except in the
case of an emergency in which case Landlord shall have the right to immediate
access) to inspect the Premises, and to perform its obligations, or make
repairs, alterations, additions or improvements, as permitted by this Lease.
Landlord may make repairs required of Landlord under the terms hereof or repairs
to any adjoining space or utility services or make repairs, alterations or
additions to any other portion of the Building or Project, provided, however,
that all such work shall be done as promptly as reasonably possible, and so
as
to cause as little interference to Tenant as reasonably possible. Tenant hereby
waives any claims for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises
or any other loss occasioned by such entry.
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NN.
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PREPARATION
FOR REOCCUPANCY.
|
To
decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy at any time after Tenant abandons the Premises, without relieving
Tenant of any obligation to pay Rent.
To
approve the weight, size, placement and time and manner of movement within
the
Building of any safe, central filing system or other heavy article of Tenant's
property. Tenant shall move its property entirely at its own risk.
To
show
the Premises to, prospective purchasers, brokers, lenders, mortgagees,
investors, rating agencies or others at any reasonable time, provided that
Landlord gives prior notice to Tenant and does not materially interfere with
Tenant's use of the Premises; and to show the Premises to prospective tenants
during the last six (6) months of the Term, provided that Landlord gives at
least twenty-four (24) hour notice to Tenant and does not materially interfere
with Tenant's use of the Premises.
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QQ.
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RELOCATION
OF TENANT.
|
To
relocate the Tenant, upon thirty (30) days' prior written notice, from all
or
part of the Premises (the "Old Premises") to another area in the Project (the
"New Premises"), provided that:
(1)
The
size
of the
New Premises is at least equal to the size of the Old Premises;
(2)
Landlord pays
the cost
of moving the Tenant, including reasonable cost of telecommunications wiring,
stationery and cost of moving Tenant's furnishings and improving the New
Premises to the standard of the Old Premises. Tenant shall cooperate with
Landlord in all reasonable ways to facilitate the move, including supervising
the movement of files or fragile equipment, designating new locations for
furniture, equipment and new telephone and electrical outlets, and determining
the color of paint in the New Premises.
To
designate a lockbox collection agent for collections of amounts due Landlord.
In
that case, the date of payment of Rent or other sums shall be the date of the
agent's receipt of such payment or the date of actual collection if payment
is
made in the form of a negotiable instrument thereafter dishonored upon
presentment. However, Landlord may reject any payment for all purposes as of
the
date of receipt or actual collection by mailing to Tenant within a reasonable
time after such receipt or collection a check equal to the amount sent by
Tenant.
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SS.
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REPAIRS
AND ALTERATIONS.
|
To
make
repairs or alterations to the Project and in doing so transport any required
material through the Premises, to close entrances, doors, corridors, elevators
and other facilities in the Project, to open any ceiling in the Premises, or
to
temporarily suspend services or use of common areas in the Building. Landlord
may reasonably perform any such repairs or alterations during ordinary business
hours, except that Tenant may require any work in the Premises to be done after
business hours if Tenant pays Landlord for overtime and any other expenses
incurred. Landlord may do or permit any work on any nearby building, land,
street, alley or way.
If
Tenant
is in default under this Lease, possession of Tenant's funds or negotiation
of
Tenant's negotiable instrument by any of Landlord's agents shall not waive
any
breach by Tenant or any remedies of Landlord under this Lease.
To
install, use and maintain through the Premises, pipes, conduits, wires and
ducts
serving the Building, provided that such installation, use and maintenance
does
not unreasonably interfere with Tenant's use of the Premises.
To
permit
Landlord (or any entity selected by Landlord) to install, operate, maintain
and
repair any satellite dish, antennae, equipment, or other facility on the roof
of
the Building or to use the roof of the Building in any other manner, provided
that such installation, operation, maintenance, repair or use does not
unreasonably interfere with Tenant's use of the Premises.
To
take
any other action which Landlord deems reasonable in connection with the
operation, maintenance or preservation of the Building and the
Premises.
TENANT'S
DEFAULT
Any
of
the following shall constitute a default by Tenant:
Tenant
fails to pay any Rent when due after any statutory notice period;
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YY.
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ASSIGNMENT/SUBLEASE
OR HAZARDOUS SUBSTANCES
DEFAULT.
|
Tenant
defaults in its obligations under Section 19 Assignment and Sublease or Section
30 Hazardous Substances;
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ZZ.
|
OTHER
PERFORMANCE DEFAULT.
|
Tenant
fails to perform any other obligation to Landlord under this Lease, and this
failure continues for ten (10) days after written notice from Landlord, except
that if Tenant begins to cure its failure within the ten (10) day period but
cannot reasonably complete its cure within such period, then, so long as Tenant
continues to diligently attempt to cure its failure, the ten (10) day period
shall be extended to sixty (60) days, or such lesser period as is reasonably
necessary to complete the cure;
One
of
the following credit defaults occurs:
(1)
Tenant
commences
any
proceeding under any law relating to bankruptcy, insolvency, reorganization
or
relief of debts, or seeks appointment of a receiver, trustee, custodian or
other
similar official for the Tenant or for any substantial part of its property,
or
any such proceeding is commenced against Tenant and either remains undismissed
for a period of thirty (30) days or results in the entry of an order for relief
against Tenant which is not fully stayed within seven (7) days after
entry;
(2)
Tenant
becomes
insolvent or bankrupt, does not generally pay its debts as they become due,
or
admits in writing its inability to pay its debts, or makes a general assignment
for the benefit of creditors;
(3)
Any
third party
obtains
a levy or attachment under process of law against Tenant's leasehold interest
and such levy or attachment is not lifted or otherwise removed within fifteen
(15) days.
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BBB.
|
VACATION
OR ABANDONMENT DEFAULT.
|
Tenant
vacates or abandons the Premises.
LANDLORD
REMEDIES
Upon
a
default, Landlord shall have the following remedies, in addition to all other
rights and remedies provided by law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
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CCC.
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TERMINATION
OF LEASE OR POSSESSION.
|
If
Tenant
defaults, Landlord may elect by notice to Tenant either to terminate this Lease
or to terminate Tenant's possession of the Premises without terminating this
Lease. In either case, Tenant shall immediately vacate the Premises and deliver
possession to Landlord, and Landlord may repossess the Premises and may, at
Tenant's sole cost, remove any of Tenant's signs and any of its other property,
without relinquishing its right to receive Rent or any other right against
Tenant. In the latter case, this Lease shall continue in full force and effect
as long as Landlord does not terminate this Lease, and Landlord shall have
the
right to collect Rent when due.
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DDD.
|
POSSESSION
TERMINATION DAMAGES.
|
If
Landlord elects to terminate Tenant's possession without terminating this Lease
and Landlord takes possession of the Premises itself, then Landlord may re-let
for Tenant's account all or any portion of the Premises for such rent, length
of
time and other terms as Landlord in its sole discretion shall determine, without
any obligation to do so prior to renting other vacant areas in the Building.
Tenant shall be liable immediately to Landlord for all costs Landlord incurs
in
re-letting the Premises or any part thereof, including, without limitation,
broker's commissions, expenses of cleaning and redecorating the Premises
required by the reletting and like costs. Tenant shall pay to Landlord the
Rent
and other sums due under this Lease on the date the Rent is due, less the rent
and other sums received by Landlord from any releasing of the Premises. No
act
by Landlord other than giving written notice to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the Premises or the appointment
of
a receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to
possession.
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EEE.
|
LEASE
TERMINATION DAMAGES.
|
If
Landlord elects to terminate this Lease, then this Lease shall terminate on
the
date for termination set forth in such notice. Tenant shall immediately vacate
the Premises and deliver possession to Landlord, and Landlord may repossess
the
Premises and may, at Tenant's sole cost, remove any of Tenant's signs and any
of
its other property, without relinquishing its right to receive Rent or any
other
right against Tenant. On termination, Landlord has the right to recover from
Tenant as damages:
(1)
The
worth
at the
time of award of unpaid Rent and other sums due and payable which had been
earned at the time of termination; plus
(2)
The
worth
at the
time of award of the amount by which the unpaid Rent and other sums due and
payable which after termination until the time of award exceeds the amount
of
such Rent loss that Tenant proves could have been reasonably avoided;
plus
(3)
The
worth
at the
time of award of the amount by which the unpaid Rent and other sums due and
payable for the balance of the Term after the time of award exceeds the amount
of such Rent loss that Tenant proves could be reasonably avoided;
plus
(4)
Any
other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform Tenant's obligations under this Lease, or which,
in
the ordinary course of things, would be likely to result therefrom, including,
without limitation, any costs or expenses incurred by Landlord: (i) in retaking
possession of the Premises; (ii) in maintaining, repairing, preserving,
restoring, replacing, cleaning, altering or rehabilitating the Premises or
any
portion thereof, including such acts for re-letting to a new tenant or tenants;
(iii) for leasing commissions; or (iv) for any other costs necessary or
appropriate to re-let the Premises; plus
(5)
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 the laws of the State of California. The "worth at the
time
of award" of the amounts referred to in Sections 15.C (1) and 15.C (2) is
computed by allowing interest at the maximum rate permitted by law on the unpaid
rent and other sums due and payable from the termination date through the date
of award. The "worth at the time of award" of the amount referred to in Section
15.C (3) is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%). Tenant waives redemption or relief from forfeiture under California Code
of Civil Procedure Sections 1174 and 1179, or under any other present or future
law, in the event Tenant is evicted or Landlord takes possession of the Premises
by reason of any default of Tenant hereunder.
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FFF.
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CONTINUATION
OF LEASE.
|
In
the
event Tenant breaches this Lease and abandons the Premises and Landlord does
not
elect to terminate this Lease by reason of such breach and abandonment, this
Lease shall continue in full force and effect, and in addition to any other
rights and remedies Landlord may have, Landlord shall have all of the rights
and
remedies of a landlord provided by Section 1951.4 of the California Civil Code,
including the right to recover rent as it falls due. Without any obligation
to
Tenant to do so, Landlord may also re-let the Premises as the agent of Tenant
and for Tenant's account for such term, which may extend beyond the term of
this
Lease, and upon such other reasonable terms and conditions as Landlord may
deem
appropriate. Landlord may do all things reasonably necessary for such
re-letting, including repair, remodeling and renovating of the Premises, and
Tenant shall reimburse Landlord on demand for all reasonable costs incurred
by
Landlord in connection therewith. In the event Landlord re-lets the Premises,
Landlord shall apply any sums received upon such re-letting in the following
order of priority: (1) to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord, (2) the payment of all reasonable legal
expenses and other related costs incurred by Landlord following Tenant's
default, (3) to the payment of all costs incurred by Landlord in restoring
the
Premises to good order and repair, or in remodeling, renovating or otherwise
preparing the Premises for reletting, (4) to the payment of all costs
(including, without limitation, any brokerage commissions) incurred by Landlord
in reletting the Premises, (5) to the payment of rent due and unpaid hereunder,
and (6) the balance, if any, to the payment of future rent as the same may
become due hereunder. Notwithstanding any determination by Landlord not to
elect
to terminate this Lease, Landlord may at any time elect to terminate this Lease
for any previous breach or default hereunder by Tenant which remains uncured
or
for any subsequent breach or default.
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GGG.
|
LANDLORD'S
REMEDIES CUMULATIVE.
|
All
of
Landlord's remedies under this Lease shall be in addition to all other remedies
Landlord may have at law or in equity. Waiver by Landlord of any breach of
any
obligation by Tenant shall be effective only if it is in writing, and shall
not
be deemed a waiver of any other breach, or any subsequent breach of the same
obligation. Landlord's acceptance of payment by Tenant shall not constitute
a
waiver of any breach by Tenant, and if the acceptance occurs after Landlord's
notice to Tenant, or termination of the Lease or of Tenant's right to
possession, the acceptance shall not affect such notice or termination.
Acceptance of payment by Landlord after commencement of a legal proceeding
or
final judgment shall not affect such proceeding or judgment. Landlord may
advance such monies and take such other actions for Tenant's account as
reasonably may be required to cure or mitigate any default by Tenant. Tenant
shall immediately reimburse Landlord for any such advance, and such sums shall
bear interest at the default interest rate until paid.
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HHH.
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WAIVER
OF TRIAL BY JURY.
|
EACH
PARTY WAIVES TRIAL BY JURY IN THE EVENT OF ANY LEGAL PROCEEDING BROUGHT BY
THE
OTHER IN CONNECTION WITH THIS LEASE. EACH PARTY SHALL BRING ANY ACTION AGAINST
THE OTHER IN CONNECTION WITH THIS LEASE IN A FEDERAL OR STATE COURT LOCATED
TN
CALIFORNIA, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT
TO
HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER
VENUE
OR INCONVENIENT FORUM. LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL BY JURY
IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE
OTHER
IN CONNECTION WITH THIS LEASE OR THE PREMISES.
Tenant
shall pay Landlord's reasonable attorneys' fees and other costs in enforcing
this Lease, whether or not suit is filed.
SURRENDER
Upon
the
expiration or earlier termination of this Lease for any reason, Tenant shall
surrender the Premises to Landlord in its condition existing as of the
Commencement Date, normal wear and tear and damage by fire or other casualty
excepted, with all interior walls repaired and repainted if marked or damaged,
all carpets shampooed and cleaned, all broken, marred or nonconforming
acoustical ceiling tiles replaced, all windows washed, the HVAC, plumbing and
electrical systems and lighting in good order and repair, including replacement
of any burned out or broken light bulb or ballasts, and all floors cleaned
and
waxed, all to the reasonable satisfaction of Landlord. Tenant shall remove
from
the Premises all Tenant's personal property and all of Tenant's alterations
required to be removed pursuant to Section 6.E, and restore the Premises to
its
condition prior to their installation. If Tenant fails to remove any alterations
and/or Tenant's personal property, and such failure continues after the
termination of this Lease, Landlord may retain or dispose of such property
and
all rights of Tenant with respect to it shall cease, or Landlord may place
all
or any portion of such property in public storage for Tenant's account. Tenant
shall be liable to Landlord for costs of removal of any such alterations and
Tenant's personal property and storage and transportation costs of same, and
the
cost of repairing and restoring the Premises, together with interest at the
Interest Rate from the date of expenditure by Landlord. If the Premises are
not
so surrendered at the termination of this Lease, Tenant shall indemnify Landlord
against all loss or liability, including attorneys' fees and costs, resulting
from delay by Tenant in so surrendering the Premises.
HOLDOVER
Tenant
shall have no right to holdover possession of the Premises after the expiration
or termination of this Lease without Landlord's prior written consent which
Landlord may withhold in its sole and absolute discretion. If, however, Tenant
retains possession of any part of the Premises after the Term, Tenant shall
become a month-to-month tenant for the entire Premises upon all of the terms
of
this Lease as might be applicable to such month-to-month tenancy, except that
Tenant shall pay all of the Base Rent, Operating Cost Share Rent and Tax Share
Rent at one hundred fifty (150%) percent of the rate in effect immediately
prior
to such holdover, computed on a monthly basis for each full or partial month
Tenant remains in possession. Tenant shall also pay Landlord all of Landlord's
direct and consequential damages resulting from Tenant's holdover. No acceptance
of Rent or other payments by Landlord under these holdover provisions shall
operate as a waiver of Landlord's right to regain possession or any other of
Landlord's remedies.
SUBORDINATION
TO GROUND LEASES AND MORTGAGES
This
Lease shall be subordinate to any present or future ground lease or mortgage
respecting the Project, and any amendments to such ground lease or mortgage,
at
the election of the ground lessor or mortgagee as the case may be, effected
by
notice to Tenant in the manner provided in this Lease. The subordination shall
be effective upon such notice, but at the request of Landlord or ground lessor
or mortgagee, Tenant shall within ten (10) days of the request, execute and
deliver to the requesting party any reasonable documents provided to evidence
the subordination. At any time that the Project is made subject to any ground
lease or mortgage, Landlord shall use commercially reasonable efforts to cause
the mortgagee or ground lessor to deliver to Tenant a non-disturbance agreement
reasonably acceptable to Tenant, providing that so long as Tenant is not in
default under the Lease after the expiration of any applicable notice and cure
periods, Tenant may remain in possession of the Premises under the terms of
this
Lease, even if the ground lessor should terminate the ground lease or if the
mortgagee or its successor should acquire Landlord's title to the
Project.
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KKK.
|
TERMINATION
OF GROUND LEASE OR FORECLOSURE OF
MORTGAGE.
|
If
any
ground lease is terminated or mortgage foreclosed or deed in lieu of foreclosure
given and the ground lessor, mortgagee, or purchaser at a foreclosure sale
shall
thereby become the owner of the Project, Tenant shall attorn to such ground
lessor or mortgagee or purchaser without any deduction or setoff by Tenant,
and
this Lease shall continue in effect as, a direct lease between Tenant and such
ground lessor, mortgagee or purchaser. The ground lessor or mortgagee or
purchaser shall be liable as Landlord only during the time such ground lessor
or
mortgagee or purchaser is the owner of the Project. At the request of Landlord,
ground lessor or mortgagee, Tenant shall execute and deliver within ten (10)
days of the request any document furnished by the requesting party to evidence
Tenant's agreement to attorn.
As
used
in this Section 18.C, "mortgage" shall include "trust deed" and "deed of
trust",
"mortgagee" shall include '"trustee," "beneficiary" and the mortgagee of
any
ground lessee, and "ground lessor", "mortgagee", and "purchaser at a foreclosure
sale" shall include, in each case, all of its successors, and assigns, however
remote.
ASSIGNMENT
AND SUBLEASE
Tenant
shall not, without the prior consent of Landlord in each case, (i) make or
allow
any assignment or transfer, by operation of law or otherwise, of any part of
Tenant's interest in this Lease, (ii) grant or allow any lien or encumbrance,
by
operation of law or otherwise, upon any part of Tenant's interest in this Lease,
(iii) sublet any part of the Premises, or (iv) permit anyone other than Tenant
and its employees to occupy any part of the Premises. Tenant shall remain
primarily liable for all of its obligations under this Lease, notwithstanding
any assignment or transfer. No consent granted by Landlord shall be deemed
to be
a consent to any subsequent assignment or transfer, lien or encumbrance,
sublease or occupancy. Tenant shall pay all of Landlord's attorneys' fees and
other expenses incurred in connection with any consent requested by Tenant
or in
reviewing any proposed assignment or subletting. Any assignment or transfer,
grant of lien or encumbrance, or sublease or occupancy without Landlord's prior
written consent shall be void. If Tenant shall assign this Lease or sublet
the
Premises in its entirety any rights of Tenant to renew this Lease, extend the
Term or to lease additional space in the Project shall be extinguished thereby
and will not be transferred to the assignee or subtenant, all such rights being
personal to the Tenant named herein.
"Assign"
or
"Assignment"
As used
in this paragraph, the term "assign" or "assignment" shall include the
following:
(1)
If
Tenant is a corporation:
(1) any
dissolution, merger, consolidation, or other reorganization of Tenant; (2)
a
sale of more than 50% of the value of the assets of Tenant; or (3) if Tenant
is
a corporation with fewer than 35 shareholders, a sale or other transfer of
more
than 50%, at any one time or in the aggregate, of such party's capital stock
of
Tenant.
Landlord
will not unreasonably withhold its consent to any proposed assignment or
subletting. It shall be reasonable for Landlord to withhold its consent to
any
assignment or sublease if (i) Tenant is in default under this Lease, (ii) the
proposed assignee or sublessee is a tenant in the Project or an affiliate of
such a tenant or a party that Landlord has identified as a prospective tenant
in
the Project, (iii) the financial responsibility, nature of business, and
character of the proposed assignee or subtenant are not all reasonably
satisfactory to Landlord, (iv) in the reasonable judgment of Landlord the
purpose for which the assignee or subtenant intends to use the Premises (or
a
portion thereof) is not in keeping with Landlord's standards for the Building
or
are in violation of the terms of this Lease or any other leases in the Project,
(v) the proposed assignee or subtenant is a government entity, or (vi) the
proposed sublease is for less than the entire Premises or for less than the
remaining Tenancy of the Lease. The foregoing shall not exclude any other
reasonable basis for Landlord to withhold its consent.
Tenant
shall notify Landlord of any proposed assignment or sublease at least thirty
(30) days prior to its proposed effective date. The notice shall include the
name and address of the proposed assignee or subtenant, its corporate affiliates
in the case of a corporation and its partners in a case of a partnership, an
execution copy of the proposed assignment or sublease, and sufficient
information to permit Landlord to determine the financial responsibility and
character of the proposed assignee or subtenant. As a condition to any effective
assignment of this Lease, the assignee shall execute and deliver in form
satisfactory to Landlord at least fifteen (15) days prior to the effective
date
of the assignment, an assumption of all of the obligations of Tenant under
this
Lease. As a condition to any effective sublease, subtenant shall execute and
deliver in a form satisfactory to Landlord at least fifteen (15) days prior
to
the effective date of the sublease, an agreement to comply with all of Tenant's
obligations under this Lease, and at Landlord's option, an agreement (except
for
the economic obligations which subtenant will undertake directly to Tenant)
to
attorn to Landlord under the terms of the sublease in the event this Lease
terminates before the sublease expires.
If
Tenant
shall assign this Lease or sublet any part of the Premises for consideration
in
excess of the prorata portion of Rent applicable to the space subject to the
assignment or sublet, then Tenant shall pay to Landlord as Additional Rent,
seventy-five (75%) percent of any such excess immediately upon receipt; provided
that prior to sharing such portion of excess rent with Landlord, Tenant shall
be
first entitled to reimburse itself for all reasonable leasing commissions,
attorneys' fees and tenant improvements costs which were specifically and
reasonably incurred in connection with such assignment of this Lease or sublet
of the Premises.
For
any
proposed sublease which would sublet a portion of the Premises for the remainder
of the Term, or assignment which would assign this Lease for the remainder
of
the Term, Landlord may, by giving written notice to Tenant within thirty (30)
days after receipt of Tenant's notice of assignment or subletting, terminate
this Lease with respect to the space described in Tenant's notice, as of the
effective date of the proposed assignment or sublease and all obligations under
this Lease as to such space shall expire except as to any obligations that
expressly survive any termination of this Lease.
|
RRR.
|
EFFECTIVENESS
OF CONSENT.
|
Provided
Landlord has consented to such assignment or subletting, Tenant shall be free
to
assign this Lease or sublet the Premises, subject to the following conditions:
(1) at the time of the transfer, Tenant is not in default under the Lease or
would not be in default under the Lease but for the pendency of any grace or
cure period; (2) the assignment or subletting shall be on the same terms set
forth in the notice given by Tenant to Landlord; (3) assignment or sublease
shall be valid and no sublessee shall take possession of the Premises until
an
executed counterpart of the assignment or sublease has been delivered to
Landlord; and no assignee or sublessee shall have a right further to
sublet.
Tenant
shall not be entitled to, and Tenant hereby waives any right it may have to
make
any claim for, money damages (nor shall Tenant claim any money damages by way
of
set-off, counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed its consent
or
approval to a proposed assignment or subletting or as provided for herein.
Tenant's sole remedy shall be an action or proceeding to enforce any provision
hereof, or for specific performance, injunction or declaratory judgment. Tenant
acknowledges that Tenant's rights hereunder satisfy the conditions set forth
in
Section 1951.4 of the California Civil Code with respect to the availability
to
Landlord of certain remedies for a default by Tenant under this Lease, and
which
provides, in part: "The lessor has the remedy described in California Civil
Code
Section 1951.4 (lessor may continue the 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)."
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TTT.
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CONTINUING
LIABILITY OF TENANT.
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Regardless
of Landlord's consent, no subletting or assignment shall release Tenant of
Tenant's obligation or alter the primary liability of Tenant to pay the rental
and to perform all other obligations to be performed by Tenant hereunder. The
acceptance of rental by Landlord from another person shall not be deemed to
be a
waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by any assignee of Tenant or any successor
of Tenant in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such assignee or successor. Landlord may consent to subsequent assignments
or
subletting of this Lease or amendments or modifications to this Lease with
assignees of Tenant, without notifying Tenant, or any successor of Tenant,
and
without obtaining its or their consent thereto, and such action shall not
relieve Tenant of liability under this Lease.
CONVEYANCE
BY LANDLORD
If
Landlord shall at any time transfer its interest in the Project or this Lease,
Landlord shall be released of any obligations occurring after such transfer,
except the obligation to return to Tenant any security deposit not delivered
to
its transferee, and Tenant shall look solely to Landlord's successors for
performance of such obligations. This Lease shall not be affected by any such
transfer.
ESTOPPEL
CERTIFICATE
Each
party shall, within ten (10) business days of receiving a request from the
other
party, execute, acknowledge in recordable form, and deliver to the other party
or its designee a certificate stating, subject to a specific statement of any
applicable exceptions, that the Lease as amended to date is in full force and
effect, that the Tenant is paying Rent and other charges on a current basis,
and
that to the best of the knowledge of the certifying party, the other party
has
committed no uncured defaults and has no offsets or claims. The certifying
party
may also be required to state the date of commencement of payment of Rent,
the
Commencement Date, the Expiration Date, the Base Rent, the current Operating
Cost Share Rent and Tax Share Rent estimates, the status of any improvements
required to be completed by Landlord, the amount of any security deposit, and
such other matters as may be reasonably requested. Failure to deliver such
statement within the time required shall be conclusive evidence against the
non-certifying party that this Lease, with any amendments identified by the
requesting party, is in full force and effect, that there are no uncured
defaults by the requesting party, that not more than one month's Rent has been
paid in advance, that the non certifying party has not paid any security
deposit, and that the non-certifying party has no claims or offsets against
the
requesting party.
LEASE
DEPOSIT
Tenant
shall deposit with Landlord on the date Tenant executes and delivers this Lease
to Landlord, the cash sums set forth in the Schedule for both Prepaid Rent
and
Security Deposit (collectively, the "Lease Deposit"). The Prepaid Rent shall
be
applied by Landlord against the first full month's Base Rent payment obligation
hereunder. The Security Deposit shall be held by Landlord as security for the
performance of all of its obligations in the amount set forth on the Schedule.
If Tenant is in default under this Lease more than two (2) times within any
Lease Year, irrespective of whether such default is cured, then, without
limiting Landlord's other rights or remedies available under this Lease, at
law
or in equity, the Security Deposit shall automatically be increased by an amount
equal to three (3) times the original Security Deposit. If Tenant defaults
under
this Lease, Landlord may apply all or any part of the Lease Deposit for the
payment of any Rent or other sum in default, the repair of any damage to the
Premises caused by Tenant or the payment of any other amount which Landlord
may
spend or become obligated to spend by reason of Tenant's default or to
compensate Landlord for any other loss or damage which Landlord may suffer
by
reason of Tenant's default to the full extent permitted by law. Tenant hereby
waives any restriction on the use or application of the Security Deposit by
Landlord as set forth in California Civil Code Section 1950.7. To the extent
any
portion of the Security Deposit is used, Tenant shall within five (5) days
after
demand from Landlord restore the Security Deposit to its full amount. No trust
relationship is created herein between Landlord and Tenant with respect to
the
security deposit. Landlord may keep the Security Deposit in its general funds
and shall not be required to pay interest to Tenant on the deposit amount.
If
Tenant shall perform all of its obligations under this Lease and return the
Premises to Landlord at the end of the Term, Landlord shall return all of the
remaining Security Deposit to Tenant within thirty (30) days after the end
of
the Term provided, however, that Landlord may retain the Security Deposit as
security for the payment of any adjustment in rent or additional rent following
an expiration or termination of the Lease, and, upon such adjustment apply
the
retained Security Deposit against the amount due Landlord. The Security Deposit
shall not serve as an advance payment of Rent or a measure of Landlord's damages
for any default under this Lease. If Landlord transfers its interest in the
Project or this Lease, Landlord may transfer the Security Deposit to its
transferee. Upon such transfer, Landlord shall have no further obligation to
return the Security Deposit to Tenant, and Tenant's right to the return of
the
Security Deposit shall apply solely against Landlord's transferee.
FORCE
MAJEURE
Landlord
shall not be in default under this Lease to the extent Landlord is unable to
perform any of its obligations on account of any prevention, delay, stoppage
due
to strikes, lockouts, inclement weather, labor disputes, inability to obtain
labor materials, fuels, energy or reasonable substitutes therefor, governmental
restrictions, regulations: controls, actions or inaction, civil commotion,
fire
or other acts of God, national emergency, or any other cause of any kind beyond
the reasonable control of Landlord (except financial inability) (collectively
"Force Majeure").
TENANT'S
PERSONAL PROPERTY AND FIXTURES
In
addition to any statutory lien granted to lessors under California law, Landlord
shall have, at all times, and Tenant hereby grants and agrees to grant Landlord,
a valid security interest to secure payment of all rental and all other sums
payable under this Lease upon all goods, equipment, fixtures, furniture,
improvements, inventory, chattel, and other personal property of Tenant
presently, or which may hereafter be, situated within the Premises or used
in
connection therewith wherever located, whether now owned or hereafter acquired,
and all proceeds therefrom, including, without limitation, insurance proceeds
(collectively "Personal Property"). Landlord may, in addition to any other
remedies provided elsewhere herein or allowed by law, all of which are
cumulative, enter upon the Premises and take possession of any and all Personal
Property of Tenant situated within the Premises, without liability for trespass
or conversion, and sell the same at public or private sale, with or without
having such property at the sale, after giving Tenant reasonable notice of
the
time and place of any public sale or of the time after which any private sale
is
to be made, at which sale the Landlord or its assigns may purchase such Personal
Property unless otherwise prohibited by law. Landlord shall only be required
to
give notice if required by law. The requirement of notice shall be met if such
notice is given in the manner prescribed in this Lease at least five (5) days
before the time of sale. The proceeds from any such disposition, less any and
all expenses connected with the taking of possession, holding and selling of
the
Personal Property (including, without limitation, reasonable attorneys' fees
and
legal expenses) shall be applied as a credit against the indebtedness secured
by
the security interest granted in this Section. Any surplus shall be paid to
Tenant or as otherwise required by law, and Tenant shall pay any deficiencies
forthwith. Contemporaneous with the execution of this Lease, and at any other
time during the Lease Term if requested by Landlord, Tenant shall execute and
deliver to Landlord, uniform commercial code financing statements (UCC-1) in
sufficient form so that when properly filed, the security interest hereby given
shall thereupon be perfected. If requested hereafter by Landlord, Tenant shall
also execute and deliver to Landlord uniform commercial code financing statement
change instruments in sufficient form to reflect any proper amendment or
modification in or extension of the aforesaid contract lien and security
interest hereby granted. Landlord shall, in addition to all of its rights
hereunder, also have all of the rights and remedies of a secured party under
the
California Commercial Code.
All
notices, consents, approvals and similar communications to be given by one
party
to the other under this Lease, shall be given in writing, mailed or personally
delivered as follows:
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To
LANDLORD as follows:
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SEAGATE
TELEGRAPH ASSOCIATES, LLC
c/o
SEAGATE PROPERTIES, INC.
980
Fifth Avenue
San
Rafael, CA 94901
Attention:
Property Manager
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| |
|
|
or
to such other person at such other address as Landlord may designate
by
notice to Tenant.
|
| |
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To
TENANT as follows:
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NILE
THERAPEUTICS, A DELAWARE CORPORATION
689
Fifth Avenue
14th
Floor
New
York, NY 10022
Attention:
Allan Gordon/Daron Evans
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| |
|
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With
a copy to:
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NILE
THERAPEUTICS, A DELAWARE CORPORATION 2850 Telegraph Avenue; Suite
310
Berkeley,
CA 94704
Attention:
Allan Gordon/Daron Evans
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| |
|
or
to
such other person at such other address as Tenant may designate by notice to
Landlord. Mailed notices shall be sent by United States certified or registered
mail, or by a reputable national overnight courier service, postage prepaid.
Mailed notices shall be deemed to have been given on the earlier of actual
delivery or three (3) business days after posting in the United States Mail
in
the case of registered or certified mail, and one business day in the case
of
overnight courier.
QUIET
POSSESSION
So
long
as Tenant shall perform all of its obligations under this Lease, Tenant shall
enjoy peaceful and quiet possession of the Premises against any party claiming
through the Landlord, subject to the terms of this Lease.
REAL
ESTATE BROKER
Tenant
represents to Landlord that Tenant has not dealt with any real estate broker
with respect to this Lease except for any brokers) listed in the Schedule,
and
no other broker is in any way entitled to any broker's fee or other payment
in
connection with this Lease. Tenant shall indemnify and defend Landlord against
any claims by any other broker or third party for any payment of any kind in
connection with this Lease.
MISCELLANEOUS
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UUU.
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SUCCESSORS
AND ASSIGNS.
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Subject
to the limits on Tenant's assignment contained in Section 19, the provisions
of
this Lease shall be binding upon and inure to the benefit of all successors
and
assigns of Landlord and Tenant.
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VVV.
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DATE
PAYMENTS ARE DUE.
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Except
for payments to be made by Tenant under this Lease which are due upon demand,
Tenant shall pay to Landlord any amount for which Landlord renders a statement
of account within fifteen (15) days of Tenant's receipt of Landlord's
statement.
Meaning
of "Landlord",
"Re-Entry”,
"Including" and
"Affiliate"
The
term
"Landlord" means only the owner of the Project and the lessor's interest in
this
Lease from time to time. The words "re-entry" and "re-enter" are not restricted
to their technical legal meaning. The words "including" and similar words shall
mean "without limitation." The word "affiliate" shall mean a person or entity
controlling, controlled by or under common control with the applicable entity.
"Control" shall mean the power directly or indirectly, by contract or otherwise,
to direct the management and policies of the applicable entity.
Time
is
of the essence of each provision of this Lease.
This
document shall not be effective for any purpose until it has been executed
and
delivered by both parties; execution and delivery by one party shall not create
any option or other right in the other party.
The
unenforceability of any provision of this Lease shall not affect any other
provision.
This
Lease shall be governed in all respects by the laws of the state in which the
Project is located, without regard to the principles of conflicts of
laws.
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AAAA.
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LEASE
MODIFICATION.
|
Tenant
agrees to clarify this Lease in any way requested by a mortgagee which does
not
cause increased expense to Tenant or otherwise adversely affect Tenant's
interests under this Lease.
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BBBB.
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NO
ORAL MODIFICATION.
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No
modification of this Lease shall be effective unless it is a written
modification signed by both parties.
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CCCC.
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LANDLORD'S
RIGHT TO CURE.
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If
Landlord breaches any of its obligations under this Lease, Tenant shall notify
Landlord in writing and shall take no action respecting such breach so long
as
Landlord promptly begins to cure the breach and diligently pursues such cure
to
its completion. Landlord may cure any default by Tenant; any expenses incurred
shall become Additional Rent due from Tenant on demand by Landlord.
The
captions used in this Lease shall have no effect on the construction of this
Lease.
Landlord
and Tenant each represents to the other that it has full power and authority
to
execute and perform this Lease.
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FFFF.
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LANDLORD'S
ENFORCEMENT OF REMEDIES.
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Landlord
may enforce any of its remedies under this Lease either in its own name or
through an agent.
This
Lease, together with all Appendices, constitutes the entire agreement between
the parties. No representations or agreements of any kind have been made by
either parry which are not contained in this Lease.
Landlord's
title shall always be paramount to the interest of the Tenant, and nothing
in
this Lease shall empower Tenant to do anything which might in any way impair
Landlord's title.
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IIII.
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LIGHT
AND AIR RIGHTS.
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Landlord
does not grant in this Lease any rights to light and air in connection with
Project. Landlord reserves to itself, the Land, the Building below the improved
floor of each floor of the Premises, the Building above the ceiling of each
floor of the Premises, the exterior of the Premises and the areas on the same
floor outside the Premises, along with the areas within the Premises required
for the installation and repair of utility lines and other items required to
serve other tenants of the Building.
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JJJJ.
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SINGULAR
AND PLURAL.
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Wherever
appropriate in this Lease, a singular term shall be construed to mean the plural
where necessary, and a plural term the singular. For example, if at any time
two
parties shall constitute Landlord or Tenant, then the relevant term shall refer
to both parties together.
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KKKK.
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NO
RECORDING BY TENANT.
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Tenant
shall not record in any public records any memorandum or any portion of this
Lease.
Landlord
does not grant to Tenant in this Lease any exclusive right except the right
to
occupy its Premises.
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MMMM.
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NO
CONSTRUCTION AGAINST DRAFTING
PARTY.
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The
rule
of construction that ambiguities are resolved against the drafting party shall
not apply to this Lease.
All
obligations of Landlord and Tenant under this Lease shall survive the
termination of this Lease.
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OOOO.
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RENT
NOT BASED ON INCOME.
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No
Rent
or other payment in respect of the Premises shall be based in any way upon
net
income or profits from the Premises. Tenant may not enter into or permit any
sublease or license or other agreement in connection with the Premises which
provides for a rental or other payment based on net income or
profit.
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PPPP.
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BUILDING
MANAGER AND SERVICE
PROVIDERS.
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Landlord
may perform any of its obligations under this Lease through its employees or
third parties hired by the Landlord.
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QQQQ.
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LATE
CHARGE AND INTEREST ON LATE
PAYMENTS.
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Without
limiting the provisions of Section 14.A, if Tenant fails to pay any installment
of Rent or other charge to be paid by Tenant pursuant to this Lease within
five
(5) business days after the same becomes due and payable, then Tenant shall
pay
a late charge equal to the greater of five percent (5%) of the amount of such
payment or $250. In addition, interest shall be paid by Tenant to Landlord
on
any late payments of Rent from the date due until paid at the rate provided
in
Section 2.D (2). Such late charge and interest shall constitute Additional
Rent
due and payable by Tenant to Landlord upon the date of payment of the delinquent
payment referenced above.
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RRRR.
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TENANT'S
FINANCIAL STATEMENTS.
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Within
ten (10) days after Landlord's written request therefor, Tenant shall deliver
to
Landlord the current financial statements of Tenant, and financial statements
of
the two (2) years prior to the current financial statements year, with an
opinion of a certified public accountant, including a balance sheet and profit
and loss statement for the most recent prior year, all prepared in accordance
with generally accepted accounting principles consistently applied.
If
either
party defaults in the performance of any terms, covenants, agreements or
conditions contained in this Lease and Landlord places enforcement of this
Lease
or the collection of rent due or to become due hereunder, or recovery of
possession of the Premises in the hands of any attorney, or either party files
suit upon the same, the non prevailing parry agrees to pay the prevailing
party's reasonable attorneys' fees and expenses.
UNRELATED
BUSINESS INCOME
If
Landlord is advised by its counsel at any time that any part of the payments
by
Tenant to Landlord under this Lease may be characterized as unrelated business
income under the United States Internal Revenue Code and its regulations, then
Tenant shall enter into any amendment proposed by Landlord to avoid such income,
so long as the amendment does not require Tenant to make more payments or accept
fewer services from Landlord, than this Lease provides.
HAZARDOUS
SUBSTANCES
Tenant
shall not cause or permit any Hazardous Substances to be brought upon, produced,
stored, used, discharged or disposed of in or near the Project unless Landlord
has consented to such storage or use in its sole discretion. Any handling,
transportation, storage, treatment, disposal or use of any Hazardous Substances
in or about the Project by Tenant, its agents, employees, contractors or
invitees shall strictly comply with all applicable Governmental Requirements.
Tenant shall indemnify, defend and hold Landlord harmless from and against
any
liabilities, losses, claims, damages, penalties, fines, attorneys' fees and
court costs, remediation costs, investigation costs and any other expenses
which
result from or arise out of the use, storage, treatment, transportation,
release, or disposal of any Hazardous Substances on or about the Project by
Tenant, its agents, employees, contractors or invitees. If any lender or
governmental agency shall require testing for Hazardous Substances in the
Premises, Tenant shall pay for such testing if the requirement for the testing
arises from the Tenant's use or activities on or around the
Project.
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TTTT.
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HAZARDOUS
SUBSTANCES.
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"Hazardous
Substances"
means
any hazardous or toxic substances, materials or waste which are or become
regulated by any local government authority, the State of California or the
United States government, including those substances described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., defined as a "hazardous waste,"
"extremely hazardous waste" or "restricted hazardous waste" under Sections
25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control),
defined as a "hazardous substance" under Section 25316 of the California Health
and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), defined as a "hazardous material," "hazardous substance"
or "hazardous waste" under Section 25501 of the California Health and Safety
Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and
Inventory), defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), petroleum, or any fraction thereof, methyl tertiary
butyl ether (MTBE), asbestos, polychlorinated biphenyls, any other applicable
federal, state or local law, and the regulations adopted under these
laws.
LANDLORD'S
LEASE UNDERTAKINGS
Notwithstanding
anything to the contrary contained in this Lease or in any exhibits, Riders
or
addenda hereto attached (collectively the "Lease Documents"), it is expressly
understood and agreed by and between the parties hereto that: (a) the recourse
of Tenant or its successors or assigns against Landlord with respect to the
alleged breach by or on the part of Landlord of any representation, warranty,
covenant, undertaking or agreement contained in any of the Lease Documents
or
otherwise arising out of Tenant's use of the Premises or the Building
(collectively, "Landlord's Lease Undertaking") shall extend only to Landlord's
interest in the real estate of which the Premises demised under the Lease
Documents are a part ("Landlord's Real Estate") and not to any other assets
of
Landlord or its beneficiaries; and (b) no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted
or
enforceable against, Landlord, SEAGATE PROPERTIES, INC., or against any of
their
respective directors, officers, employees, agents, constituent partners,
members, managers, beneficiaries, trustees or representatives. Tenant
acknowledges that this Lease may be executed by certain officers of SEAGATE
PROPERTIES, INC., not individually but solely on behalf of, and as the
authorized nominee and agent for, Landlord, and Tenant and all persons dealing
with Landlord waive any right to bring a cause of action against the individuals
executing this Lease on behalf of Landlord and must look solely to the
Landlord's Real Estate for the enforcement of any claim against
Landlord.
OFFER
TO LEASE
The
submission of this Lease to Tenant or its broker or other agent, does not
constitute an offer to Tenant to lease the Premises. This Lease shall have
no
force and effect until (a) it is executed and delivered by Tenant to Landlord,
and (b) it is fully reviewed, executed and delivered by Landlord to Tenant;
provided, however, that upon execution of this Lease by Tenant and delivery
to
Landlord, such execution and delivery by Tenant shall, in consideration of
the
time and expense incurred by Landlord in reviewing the Lease and Tenant's
credit, constitute an offer by Tenant to Lease the Premises upon the terms
and
conditions set forth herein (which offer to Lease shall be irrevocable for
twenty (20) business days following the date of delivery).
RESERVATION
OF RIGHTS
Landlord
reserves the following rights exercisable without notice (except as otherwise
expressly provided to the contrary in this Lease) and without being deemed
an
eviction or disturbance of Tenant's use or possession of the Premises or giving
rise to any claim for set-off or abatement of Rent: (a) to change the name
or
street address of the Building; (b) to install, affix and maintain all signs
on
the exterior and/or interior of the Building; (c) to designate and/or approve
prior to installation, all types of signs, window shades, blinds, drapes,
awnings or other similar items, and all internal lighting that may be visible
from the exterior of the Premises and, notwithstanding the provisions of Section
9, the design, arrangement, style, color and general appearance of the portion
of the Premises visible from the exterior, and contents thereof, including,
without limitation, furniture, fixtures, art work, wall coverings, carpet and
decorations, and all changes, additions and removals thereto, shall, at all
times have the appearance of Premises having the same type of exposure and
used
for substantially the same purposes that are generally prevailing in comparable
office buildings in the area; (d) to change the location of any other tenant,
the arrangement, size, character, use or location of entrances or passageways,
doors, doorways, corridors, elevators, escalators, stairs, landscaping, toilets
or any other parts of the Building, or to change common area to tenant space
and
tenant space to common area; (e) to grant any party the exclusive right to
conduct any business or render any service in the Building, provided such
exclusive right shall not operate to prohibit Tenant from using the Premises
for
the purposes permitted under this Lease; (f) to prohibit the placement of
vending or dispensing machines of any kind in or about the Premises other than
for use by Tenant's employees; (g) to prohibit the placement of video or other
electronic games in the Premises; (h) to have access for Landlord and other
tenants of the Building to any mail chutes and boxes located in or on the
Premises according to the rules of the United States Post Office and to
discontinue any mail chute business in the Building; (i) to close the Building
after normal business hours, except that Tenant and its employees and invitees
shall be entitled to admission at all times under such rules and regulations
as
Landlord prescribes for security purposes; (j) to install, operate and maintain
security systems which monitor, by close circuit television or otherwise, all
persons entering or exiting the Building; (k) to install and maintain pipes,
ducts, conduits, wires and structural elements located in the Premises which
serve other parts or other tenants of the Building; and (1) to retain at all
times master keys or pass keys to the Premises. None of the foregoing shall
result in any liability of Landlord to Tenant.
MODIFICATION
AND FINANCING CONDITIONS
Landlord
may obtain financing for the Building, portions thereof, and the operation
thereof, secured by mortgages or deeds of trust encumbering the Building. If
any
mortgage lender should require, as a condition to such financing, or pursuant
to
rights of approval set forth in the mortgage or deed of trust encumbering the
Building, any modification of the terms or conditions of this Lease, Tenant
agrees to execute such modification or amendment, provided that, such
modification or amendment (a) shall not increase the rental or Tenant's share
of
any costs additional to minimum rent, (b) shall not materially interfere with
Tenant's use or occupancy of the Premises, and (c) shall not materially increase
Tenant's obligation hereunder.
(This
space intentionally left blank) (Signatures on next page)
IN
WITNESS WHEREOF, the parties hereto have executed this Lease dated March 21,
2007, by and between SEAGATE
TELEGRAPH ASSOCIATES, LLC,
a
California limited liability corporation, and NILE THERAPEUTICS, a Delaware
corporation, for the above referenced and described Property located at 2850
Telegraph Avenue, Suite 310, Berkeley, California 94704.
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LANDLORD:
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TENANT:
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SEAGATE
TELEGRAPH ASSOCIATES, LLC,
a
California limited liability corporation
BY:
SEAGATE 2850 ASSOCIATES, LLC
ITS:
GENERAL PARTNER
By:.
/s/ John R. Conely
Name:
John R. Conely
Its:
Managing Member
Date:
March 29, 2007
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NILE
THERAPEUTICS,
a
Delaware corporation
By:.
/s/ Allan Gordon
Name:
Allan Gordon
Its:
CEO
By:
/s/ Daron Evans
Name:
Daron Evans
Its:
COO
Date:
March 27, 2007
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EXHIBIT
A
SITE
PLAN
OF PREMISES
This
Exhibit A is attached to and made a part of that certain Lease dated March
21,
2007, by and between SEAGATE TELEGRAPH ASSOCIATES, LLC, a California limited
liability corporation, as Landlord, and NILE THERAPEUTICS, a Delaware
corporation, as Tenant, in the Building commonly referred to as 2850 Telegraph
Avenue, Berkeley, California 94704.
Insert
Graphic
Exhibit
10.8
EXHIBIT
B
RULES
AND
REGULATIONS
This
Exhibit B is attached to and made a part of that certain Lease dated March
21,
2007, by and between SEAGATE TELEGRAPH ASSOCIATES, LLC, a California limited
liability corporation, as Landlord, and NILE THERAPEUTICS, a Delaware
corporation, as Tenant, in the Building commonly referred to 2850 Telegraph
Avenue, Berkeley, California 94704.
1. Tenant
shall not place anything, or allow anything to be placed near the glass of
any
window, door, partition or wall, which may, in Landlord's j udgment, appear
unsightly from outside of the Project.
2. The
Project directory, if any, shall be used by Landlord to display names and
locations of tenants in the Project. No tenant shall use or make any changes
to
such directories without Landlord's prior written consent.
3. The
sidewalks, halls, passages, exits, entrances, elevators and stairways shall
not
be obstructed by Tenant or used by Tenant for any purposes other than for
ingress to and egress from the Premises, unless Tenant is the sole occupant
of
the Building. Tenant shall lend its full cooperation to keep such areas free
from all obstruction and in a clean and sightly condition and shall move all
supplies, furniture and equipment as soon as received directly to the Premises
and move all such items and waste being taken from the Premises (other than
waste customarily removed by employees of the Building) directly to the shipping
platform at or about the time arranged for removal therefrom. Neither Tenant
nor
any employee or invitee of Tenant shall go upon the roof of the
Project.
4. The
toilet rooms, urinals, wash bowls and other apparatuses shall not be used for
any purposes other than that for which they were constructed, and no foreign
substance of any kind whatsoever shall be thrown therein, and to the extent
caused by Tenant or its employees or invitees, the expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne
by
Tenant.
5. Tenant
shall not cause any unnecessary janitorial labor or services by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness.
6. Tenant
shall not install or operate any refrigerating, heating or air conditioning
apparatus, or carry on any mechanical business without the prior written consent
of Landlord; use the Premises for housing, lodging or sleeping purposes; or
permit preparation or warming of food in the Premises (warming of coffee and
individual meals with employees and guests excepted). Tenant shall not occupy
or
use the Premises or permit the Premises to be occupied or used for any purpose,
act or thing which is in violation of any Governmental Requirement or which
may
be dangerous to persons or property.
7. Tenant
shall not bring upon, use or keep in the Premises or the Project any kerosene,
gasoline or inflammable or combustible fluid or material, or any other articles
deemed hazardous to persons or property, or use any method of heating or air
conditioning other than that supplied by Landlord.
8. Landlord
shall have sole power to direct electricians as to where and how telephone
and
other wires are to be introduced. No boring or cutting for wires is to be
allowed without the consent of Landlord. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
9. No
additional locks shall be placed upon any doors, windows or transoms in or
to
the Premises. Tenant shall not change existing locks or the mechanism thereof.
Upon termination of the lease, Tenant shall deliver to Landlord all keys and
passes for offices, rooms, parking lot and toilet rooms which shall have been
furnished Tenant.
In
the
event of the loss of keys so furnished, Tenant shall pay Landlord therefor.
Tenant shall not make, or cause to be made, any such keys and shall order all
such keys solely from Landlord and shall pay Landlord for any keys in addition
to the two sets of keys originally furnished by Landlord for each
lock.
10. Tenant
shall not install linoleum, tile, carpet or other floor covering so that the
same shall be affixed to the floor of the Premises in any manner except as
approved by Landlord.
11. No
furniture, packages, supplies, equipment or merchandise will be received in
the
Project or carried up or down in the freight elevator, except between such
hours
and in such freight elevator as shall be designated by Landlord. Tenant shall
not take or permit to be taken in or out of other entrances of the Building,
or
take or permit on other elevators, any item normally taken in or out through
the
trucking concourse or service doors or in or on freight elevators.
12. Without
the prior written consent of Landlord, Tenant shall not use the name of the
Project or any picture of the Project in connection with, or in promoting or
advertising the business of, Tenant, except Tenant may use the address of the
Project as the address of its business.
13. Tenant
shall cooperate fully with Landlord to assure the most effective operation
of
the Premises' or the Project's heating and air conditioning, and shall refrain
from attempting to adjust any controls, other than room thermostats installed
for Tenant's use. Tenant shall keep all corridor and exterior doors and windows
closed, and during periods which outside temperatures exceed 90 degrees F dry
bulb. Tenant shall close all blinds and turn off any unnecessary
equipment.
14. Tenant
assumes full responsibility for protecting the Premises from theft, robbery
and
pilferage, which may arise from a cause other than Landlord's negligence, which
includes keeping doors locked and other means of entry to the Premises closed
and secured.
15. Peddlers,
solicitors and beggars shall be reported to the office of the Project or as
Landlord otherwise requests.
16. Tenant
shall not advertise the business, profession or activities of Tenant conducted
in the Project in any manner which violates the letter or spirit of any code
of
ethics adopted by any recognized association or organization pertaining to
such
business, profession or activities.
17. No
bicycle (except in those areas which may be designated for bicycles by Landlord)
or other vehicle and no animals or pets shall be allowed in the Premises, halls,
freight docks, or any other parts of the Building except that blind persons
may
be accompanied by "seeing eye" dogs. Tenant shall not make or permit any noise,
vibration or odor to emanate from the Premises, or do anything therein tending
to create, or maintain, a nuisance, or do any act tending to injure the
reputation of the Building.
18. Tenant
acknowledges that Building security problems may occur which may require the
employment of extreme security measures in the day-to-day operation of the
project accordingly:
(a) Landlord
may, at any time, or from time to time, or for regularly scheduled time periods,
as deemed advisable by Landlord and/or its agents, in their sole discretion,
require that persons entering or leaving the Project or the Property identify
themselves to watchmen or other employees designated by Landlord, by
registration, identification or otherwise.
(b) Tenant
agrees that it and its employees will cooperate fully with Project employees
in
the implementation of any and all security procedures.
(c) Such
security measures shall be the sole responsibility of Landlord, and Tenant
shall
have no liability for any action taken by Landlord in connection therewith,
it
being understood that Landlord is not required to provide any security
procedures and shall have no liability for such security procedures or the
lack
thereof.
19. Tenant
shall not do or permit the manufacture, sale, purchase, use or gift of any
fermented, intoxicating or alcoholic beverages without obtaining written consent
of Landlord.
20. Tenant
shall not disturb the quiet enjoyment of any other tenant.
21. Landlord
may retain a pass key to the Premises and be allowed admittance thereto at
all
times to enable its representatives to examine the Premises from time to time
and to exhibit the same and Landlord may place and keep on the windows and
doors
of the Premises at any time signs advertising the Premises for
Rent.
22. No
equipment, mechanical ventilators, awnings, special shades or other forms of
window covering shall be permitted either inside or outside the windows of
the
Premises without the prior written consent of Landlord, and then only at the
expense and risk of Tenant, and they shall be of such shape, color, material,
quality, design and make as may be approved by Landlord.
23. Tenant
shall not during the term of this Lease canvas or solicit other tenants of
the
Building for any purpose.
24. Tenant
shall not install or operate any phonograph, musical or sound-producing
instrument or device, radio receiver or transmitter, TV receiver or transmitter,
or similar device in the Building or Project Common Areas, nor install or
operate any antenna, aerial, wires or other equipment inside or outside the
Building, nor operate any electrical device from which may emanate electrical
waves which may interfere with or impair radio or television broadcasting or
reception from or in the Building or elsewhere, without in each instance the
prior written approval of Landlord. The use thereof, if permitted, shall be
subject to control by Landlord to the end that others shall not be
disturbed.
25. Tenant
shall promptly remove all rubbish and waste from the Premises.
26. Tenant
shall not exhibit, sell or offer for sale, Rent or exchange in the Premises
or
at the Project any article, thing or service, except those ordinarily embraced
within the use of the Premises specified in Section 7 of this Lease, without
the
prior written consent of Landlord.
27. If
required by Landlord, Tenant shall list all furniture, equipment and similar
articles Tenant desires to remove from the Premises or the Building and deliver
a copy of such list to Landlord and procure a removal permit from Landlord
(or
the Project manager) authorizing Building employees to permit such articles
to
be removed.
28. Tenant
shall not overload any floors in the Premises or any public corridors or
elevators in the Building.
29. Tenant
shall not do any painting in the Premises, or mark, paint, cut or drill into,
drive nails or screws into, or in any way deface any part of the Premises or
the
Building, outside or inside, without the prior written consent of
Landlord.
30. Whenever
Landlord's consent, approval or satisfaction is required under these Rules,
then
unless otherwise stated, any such consent, approval or satisfaction must be
obtained in advance, such consent or approval may be granted or withheld in
Landlord's sole discretion, and Landlord's satisfaction shall be determined
in
its sole judgment.
31. Tenant
and its employees shall cooperate in all fire drills conducted by Landlord
in
the Building.
Tenant
Initials: _____________
EXHIBIT
C
TENANT
IMPROVEMENT AGREEMENT AND WORK LETTER
This
Tenant Improvement Agreement and Work Letter ("Work Letter") is executed
simultaneously with that certain Office Lease, dated for reference purposes,
March 21, 2007, (the "Lease") between NILE THERAPEUTICS, a Delaware corporation
as "Tenant", and SEAGATE TELEGRAPH ASSOCIATES, LLC, a California limited
liability corporation, as "Landlord", relating to demised premises ("Premises")
at the building commonly known as 2850 Telegraph Avenue (the "Building"), which
Premises are more fully identified in the Lease. Capitalized terms used herein,
unless otherwise defined in this Work Letter, shall have the respective meanings
ascribed to them in the Lease Letter.
For
and
in consideration of the agreement to lease the Premises and the mutual covenants
contained herein and in the Lease, Landlord and Tenant hereby agree as
follows:
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1.
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Landlord,
at its sole cost and expense (subject to the terms and provisions
of
Section 2 below) shall perform improvements to the Premises in accordance
with the following work list (the "Work List") using Building standard
methods, materials and finishes. The improvements to be performed
in
accordance with the Work List are hereinafter referred to as the
"Landlord
Work". Landlord shall enter into a direct contract for the Landlord
Work
with a general contractor selected by Landlord. In addition, Landlord
shall have the right to select and/or approve of any subcontractors
used
in connection with the Landlord
Work.
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WORK
LIST
1. Reuse
existing Building standard carpet presently in-place within the
Premises;
2. Provide
and install demising wall between Suite 310 and Suite 300;
3. Provide
interior full height walls to create six private perimeter offices as generally
and approximately depicted on the Hook's Design Plan dated 3-20-07, attached
as
Exhibit C-l;
4. Provide
and install six Building Standard interior office doors and frames with building
standard hardware and passage sets, no locks.
5. Provide
18-inch glass side-lites at corner office and the adjacent those private offices
along south window line.
6. Provide
approximately 24 lineal feet of 48-inch high low wall partition in entry
area.
7. Provide
ring and string telephone outlets in each office, open office and Break
Room.
8. Provide
Building Standard electrical distribution per code minimum in each office,
Open
Office, and Break Room;
9. Provide
six lineal foot of upper and lower cabinet with sink in Break Room;
10. Provide
Building Standard paint, one coat, to match existing wall colors. Any color
changes to be Tenant additional charge.
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2.
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All
other work and upgrades, subject to Landlord's approval, shall be
at
Tenant's sole cost and expense, plus any applicable state sales or
use tax
thereon, payable upon demand as Additional Rent. Tenant shall be
responsible for any Tenant Delay in completion of the Premises resulting
from any such other work and upgrades as requested or performed by
Tenant.
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3.
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Landlord's
supervision or performance of any work for or on behalf of Tenant
shall
not be deemed to be a representation by Landlord that such work complies
with applicable insurance requirements, building codes, ordinances,
laws
or regulations or that the improvements constructed will be adequate
for
Tenant's use.
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4.
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Tenant
acknowledges that the Landlord Work may be performed by Landlord
in the
Premises during Building Service Hours subsequent to the Commencement
Date; Landlord and Tenant agree to cooperate with each other in order
to
enable the Landlord Work to be performed in a timely manner and with
as
little inconvenience to the operation of Tenant's business as is
reasonably possible. Notwithstanding anything herein to the contrary,
any
delay in the completion of the Landlord Work or inconvenience suffered
by
Tenant during the performance of the Landlord Work shall not delay
the
Commencement Date; nor shall it subject Landlord to any liability
for any
loss or damage resulting therefrom or entitle Tenant to any credit,
abatement or adjustment of Rent or other sums payable under the
Lease.
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5.
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This
Exhibit shall not be deemed applicable to any additional space added
to
the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises
or any additions to the Premises in the event of a renewal or extension
of
the original Term of the Lease, whether by any options under the
Lease or
otherwise, unless expressly so provided in the Lease or any amendment
or
supplement to the Lease.
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(Signatures
on next page)
IN
WITNESS WHEREOF,
the
parties hereto have executed this Tenant Improvement Agreement and Work Letter
as of the date first above written.
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LANDLORD:
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TENANT:
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SEAGATE
TELEGRAPH ASSOCIATES, LLC,
a
California limited liability corporation
BY:
SEAGATE 2850 ASSOCIATES, LLC
ITS:
GENERAL PARTNER
By:.
/s/ John R. Conely
Name:
John R. Conely
Its:
Managing Member
Date:
March 29, 2007
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NILE
THERAPEUTICS,
a
Delaware corporation
By:.
/s/ Allan Gordon
Name:
Allan Gordon
Its:
CEO
By:
/s/ Daron Evans
Name:
Daron Evans
Its:
COO
Date:
March 27, 2007
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Exhibit
10.8
EXHIBIT
C-l
SCOPE
OF
WORK/INITIAL PLANS
Landlord
shall construct Tenant Improvements, which will be constructed in compliance
with all applicable codes and regulations, using Building Standard materials
and
Building Standard finishes, consistent with that which is presently in the
Premises, per the attached floorplan, which has been prepared by Landlord's
architect, and which are mutually agreeable to Landlord and Tenant.
Insert
Graphic
2850
TELEGRAPH AVE.
SUITE
314
BERKELEY,
CA