Common use of Measurement of the Premises Clause in Contracts

Measurement of the Premises. Within thirty (30) days after the date on which Landlord's Base Building Work is substantially complete for Tenant Improvements construction, but in no event later than the Term Commencement Date, Landlord shall cause the Premises to be measured by a mutually acceptable and professionally qualified architect (other than Landlord's or Tenants architect) licensed in the state of California. The rentable square feet of the Premises shall be based on a dripline measurement. If the rentable square footage of the Premises is other than the stated rentable feet of the Premises in the Basic Lease Information, the Base Rent shall correspondingly be adjusted at the same rate per square foot as set forth in the Basic Lease Information. Any modification or adjustment to the rentable square feet of the Premises and any other terms of the Lease must be made and agreed to in writing by the parties within fifteen (15) days after Landlord's receipt of architect's measurement. Failure on the part of the parties to agree within fifteen (15) days or any dispute between Landlord and Tenant pertaining this Paragraph 38.l. shall be resolved by submitting to binding arbitration, conducted and determined in San Diego County according to the prevailing rules of the American Arbitration Association for arbitration of commercial disputes. 39. JURY TRIAL WAIVER EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 39. THE PROVISIONS OF THE PARAGRAPH 39 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.

Measurement of the Premises. Within thirty (30i) days after The total rentable area of the date on which Landlord's Premises, upon completion of the Base Building Work, is based on the Construction Documents listed on Exhibit 10.03(a) (the “Base Building Construction Plans”). The parties agree that, except as set forth in this Section 2.01(e), the rentable area figures set forth in this Lease are conclusive unless the Base Building Work, as constructed, does not substantially conform to the Base Building Construction Plans (as they may be amended pursuant to this Lease). In the event that the Base Building Work, as constructed, does not substantially conform to the Base Building Construction Plans, Landlord’s architect shall calculate the amount by which the rentable area of the Premises and the Building have changed in accordance with the Measurement Standard and certify the final rentable square footage to Landlord and Tenant. Such certification shall include data and calculations supporting how such measurement was arrived at (which may include as-built plans and specs) so that Tenant can have such measurement checked by its architect should it choose to do so. Tenant shall have the right to review such certification and other listed materials and, if Tenant elects to dispute the same, shall notify Landlord of any dispute within fifteen (15) business days of Tenant’s receipt of such certificate. Any such dispute shall be resolved in accordance with Section 19.03. If the rentable areas change on account of the provisions of this Section, Landlord and Tenant shall then enter into an amendment to this Lease confirming the rentable areas, as modified, as well as proportional changes in the Base Rent, Tenant’s Pro Rata Share and any other charges or rights under this Lease that are calculated based upon square footage shall be adjusted based upon the rentable square footage in question. (ii) In addition, prior to the commencement of construction of the Finish Work is substantially complete for Tenant Improvements constructionin each Phase, but following Tenant’s completion of Construction Documents for the Finish Work in the First Floor Space and each successive Phase, Landlord’s architect shall remeasure the rentable area of the applicable Phase in accordance with the ANSI/BOMA Z65.1-1996 method of measurement for useable space in office buildings and consistent with the method used to determine the initial measurement of the Premises as set forth on Exhibit 2.01(e) attached (collectively, the “Measurement Standard”) and certify the final rentable square footage to Landlord and Tenant. Such certification shall include data and calculations supporting how such measurement was arrived at so that Tenant can have such measurement checked by its architect should it choose to do so. Tenant shall have the right to review such certification and other listed materials and, if Tenant elects to dispute the same, shall notify Landlord of such dispute within fifteen (15) business days of Tenant’s receipt of such certificate. Any such dispute shall be resolved in accordance with Section 19.03. In no event later shall the First Floor Space be less than 10,000 rentable square feet, the Term Commencement DateOffice Space be more than 20,000 rentable square feet, Landlord shall cause or the Premises to be measured by a mutually acceptable and professionally qualified architect (other than Landlord's or Tenants architect) licensed in the state of California. The aggregate rentable square feet of the Premises be less than 112,516 rentable square feet on account of the re-measurements described in this paragraph. Following such remeasurement, Landlord shall be based on a dripline measurement. If prepare and Tenant shall enter into an amendment to this Lease memorializing any change in the rentable square footage of the Premises is other than the stated rentable feet any Phase on account of the Premises in the Basic Lease Information, such remeasurement and adjusting the Base Rent shall correspondingly be adjusted at Rent, Letter of Credit increase, Finish Work Allowance, and Additional Allowance (if applicable) for the same rate per square foot as set forth in the Basic Lease Information. Any modification or adjustment to the rentable square feet of the Premises and any other terms of the Lease must be made and agreed to in writing by the parties within fifteen (15) days after Landlord's receipt of architect's measurement. Failure on the part of the parties to agree within fifteen (15) days or any dispute between Landlord and Tenant pertaining this Paragraph 38.l. shall be resolved by submitting to binding arbitration, conducted and determined in San Diego County according to the prevailing rules of the American Arbitration Association for arbitration of commercial disputes. 39. JURY TRIAL WAIVER EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 39. THE PROVISIONS OF THE PARAGRAPH 39 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASEapplicable Phase.

Measurement of the Premises. Within thirty (30) days after On or before the twentieth day immediately following the date on which that this Lease Amendment No. 1 is fully executed, you may measure the Expansion Premises. You further acknowledge that you previously had the right to measure the Building and the Original Premises and that you have accepted the measurements specified in this Lease as to the Building and as to the Original Premises as conclusive. All calculations of usable area under this Lease shall be based upon the American National Standard ANZI Z65.1 - 1980 (Reaffirmed 1989) (Approved June 21, 1989 by the American National Standards Institute, Inc.). Rentable square footage is the usable square footage plus a common area factor of 15% for multi-tenant floors and 12% for single tenant floors. If you do not provide Landlord with written notice disputing the measurement of the Expansion Premises within such twenty day period, time being of the essence, then the Expansion Premises shall be conclusively deemed to measure the rentable square footage specified in the definition of the Expansion Premises set forth above. If Landlord receives written notice from you within such twenty day period disputing the measurement of the Expansion Premises and if Landlord disagrees with your determination, then Landlord's Base Building Work is substantially complete for Tenant Improvements construction, but in no event later than the Term Commencement Date, Landlord architect and your architect shall cause the Premises mutually select a third architect whose sole purpose shall be to be measured by a mutually acceptable and professionally qualified architect state whose measurement (other than Landlord's or Tenants architect) licensed yours in which event Landlord shall have the state of California. The rentable square feet of the Premises shall be based on a dripline measurement. If right to claim that the rentable square footage of the Expansion Premises is other less than or greater than the stated rentable feet amount specified in the definition of Expansion Premises) is most correct and the determination of the Premises in third architect shall be conclusive and binding upon the Basic Lease Informationparties. Once the third architect makes a determination as to which measurement is most correct, the Base Rent shall correspondingly rental rates during the primary term for the Expansion Premises will be adjusted at based on a fraction, the same rate per numerator of which is the rentable square foot as footage of whichever of Landlord's or your measurement the third architect determined to be most correct and the denominator of which is the rentable square footage set forth in the Basic Lease Informationdefinition of Expansion Premises. Any modification or adjustment to the rentable square feet The cost of the Premises and any other terms third architect shall be paid for equally by the parties. Tenant's Initials RDM Landlord's Initials ES/JA ------- ------- Section 3.01 (a) of the Lease must be made is deleted in its entirety and agreed the following is substituted in its place: (a) You agree to pay to Landlord monthly base rent for the Original Premises, in writing by advance, without demand, deduction or set off, for the parties within fifteen (15) days after Landlord's receipt of architect's measurement. Failure entire primary term hereof beginning on the part Rent Commencement Date, at the initial rate of $32,896.00 a month, provided, however, that if the Rent Commencement Date is a day other than the first day of a calendar month, then for the initial partial month, you agree to pay a per diem base rental of $1,096.52 a day for each day of the parties partial month beginning on the Rent Commencement Date and ending on the last day of the partial month in which the Rent Commencement Date falls. You agree to pay to Landlord monthly base rent for the Expansion Premises, in advance, without demand, deduction or set off, for the entire primary term hereof beginning on the Expansion Premises Rent Commencement Date, at the initial rate of $21,878.96 a month, provided, however, that if the Expansion Premises Rent Commencement Date is a day other than the first day of a calendar month, then for the initial partial month, you agree within fifteen (15) days or any dispute between Landlord to pay a per diem base rental of $729.30 a day for each day of the partial month beginning on the Expansion Premises Rent Commencement Date and Tenant pertaining this Paragraph 38.lending on the last day of the partial month in which the Expansion Premises Rent Commencement Date falls. shall be resolved The monthly base rent amount payable by submitting to binding arbitration, conducted and determined in San Diego County according you during the primary term for each of the Original Premises as well as for the Expansion Premises will increase on each Adjustment Date beginning with the Adjustment Date corresponding to the prevailing rules first day of the American Arbitration Association for arbitration of commercial disputes. 39. JURY TRIAL WAIVER EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEEsecond Lease Year, SUCCESSOR HEIR OR PERSONAL REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 39. THE PROVISIONS OF THE PARAGRAPH 39 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASEthe annual increase to be computed in the manner prescribed in Section 3.03.