COMMERCIAL LEASE
RESEARCH WAY INVESTMENTS
LANDLORD
ANTIVIRAL, INC.
TENANT
LEASE
For and in consideration of the Rent and other sums to be paid by Tenant to
Landlord under this Lease, and of the covenants and agreements hereinafter set
forth to be kept and performed by Tenant, Landlord hereby leases, to Tenant and
Tenant hereby leases from Landlord the Premises for the term, at the rental and
subject to and upon all of the terms, covenants, conditions and agreements
hereinafter set forth:
1. PREMISES:
1.1 DESCRIPTION. The Premises comprise the area described in
PARAGRAPH D OF THE SUMMARY OF LEASE TERMS, and are shown as crosshatched on
EXHIBIT A attached hereto and made a part hereof.
1.2 NET RENTABLE AREA DEFINED. The term "Net Rentable Area" is
hereby defined for the purposes of this Lease to mean the area of space leased
by Tenant (or, in the case of the entire Building, leasable) computed by
measuring to the inside finish of permanent outer building walls, to the
Premises side of public corridors and/or other permanent partitions and to the
center of partitions which separate the adjoining rentable areas, with no
deductions for columns and projections in the Building. On multi-tenant floors,
common corridors and toilets, air conditioning rooms, fan rooms, janitorial
closets, electrical and telephone closets and any other areas serving that floor
are considered common area and for purposes of this Section shall be allocated
pro rata to the tenants. Tenant acknowledges that Tenant has measured or has
waived measurement of the Net Rentable Area of the Premises and Building and
Tenant agrees that the square footage stated in PARAGRAPH D OF THE SUMMARY OF
LEASE TERMS is the Net Rentable Area for the Premises and Building calculated on
the basis of the foregoing definition and Tenant further agrees to waive any
right to contest the amount of such square footage.
2. TERM:
2.1 TERM. The term of this Lease shall be for a period
commencing as of the Commencement Date (as defined in PARAGRAPH E OF THE SUMMARY
OF LEASE TERMS) and continuing to and including the Expiration Date (as defined
in PARAGRAPH E OF THE SUMMARY OF LEASE TERMS) unless sooner terminated pursuant
to this Lease.
2.2 DELAY IN COMMENCEMENT. Tenant agrees that in the event of
the inability of Landlord for any reason whatsoever to deliver possession of the
Premises to Tenant on the Commencement Date, Landlord shall not be liable for
any damage suffered thereby nor shall such inability affect the validity of this
Lease or the obligations of Tenant hereunder, but in such case there shall be a
proportionate reduction in Fixed Rent and Tenant's Percentage Share of Operating
Costs and Taxes until possession of the Premises is tendered to Tenant. No
delay in the delivery of possession shall extend the term hereof beyond the
Expiration Date.
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2.3 EARLY OCCUPANCY. In the event the Premises are ready for
occupancy prior to the Commencement Date, Tenant shall have the right to take
possession of the Premises on such date as Landlord and Tenant shall agree upon
in writing, and notwithstanding the Commencement Date, the term of this Lease
and the obligation of Tenant to pay Rent and all other monetary sums to be paid
by Tenant under this Lease (whether or not payable directly to Landlord) shall
begin on such date; provided, however, that the Expiration Date in all events
shall remain unchanged.
2.4 ACKNOWLEDGMENT OF COMMENCEMENT DATE. In the event the
Commencement Date is other than as specified in PARAGRAPH E OF THE SUMMARY OF
LEASE TERMS, Landlord and Tenant shall execute a written acknowledgment of the
actual date of commencement which shall be deemed to be the Commencement Date.
2.5 OPTION TO TERMINATE. Landlord shall have the option to
terminate this Lease if Landlord intends to demolish or substantially alter all
or a substantial portion of the Building. Landlord shall exercise this option
by written notice given to Tenant no less than nine (9) months prior to the
effective date of such termination.
3. RENT:
3.1 FIXED RENT. Tenant agrees to pay to Landlord the Fixed Rent
(as set forth in PARAGRAPH F OF THE SUMMARY OF LEASE TERMS) in equal monthly
installments in advance on the first day of each calendar month of the term of
this Lease without deduction, offset, prior notice or demand, in lawful money of
the United States, at the office of Landlord at Landlord's address for notice as
specified in PARAGRAPH M OF THE SUMMARY OF LEASE TERMS or at such other place as
designated by Landlord (the "Fixed Rent"). If the Commencement Date is not the
first day of a month, or if the Expiration Date is not the last day of a month,
a prorated monthly installment shall be paid at the then current rate for the
fractional month during which the Lease commences and/or expires. It is the
responsibility of Tenant to ensure that the Rent arrives at the above-mentioned
place on or before the due date. If the due date is a weekend or holiday, then
Tenant must arrange for earlier delivery. Payments made by mail will be
considered late if they do not arrive at the place designated by Landlord on the
designated due date.
All amounts of Rent, including, without limitation, Fixed Rent, and
other sums due under this Lease if not paid when due shall (i) bear interest
from the due date until paid at a per annum rate equal to the lesser of (x) the
maximum rate allowed by law, or (y) fifteen percent (15%) (the "Default Rate")
until fully paid, and (ii) incur a late charge of five percent (5%) of such
unpaid amount. Landlord and Tenant agree that the amount of such interest and
late charge is fair and reasonable compensation for costs and expenses incurred
by Landlord due to the failure by Tenant to timely make any payment of Rent or
other sums due under this Lease as such costs and expenses are extremely
difficult to estimate and ascertain.
3.2 CPI ADJUSTMENTS. The amount of Fixed Rent shall be adjusted
as of the expiration of each calendar year after the calendar year in which this
Lease commences (the
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"Adjustment Dates") to reflect any increase in the cost of living. Each
adjustment, if any, shall be calculated on the basis of the United States
Department of Labor, Bureau of Labor Statistics, Consumer Price Index, All
Item, All Urban Consumers for the region specified in PARAGRAPH G(i) OF THE
SUMMARY OF LEASE TERMS (the "Index") as of the Commencement Date of this
Lease. The Index for the month in which the sixtieth (60th) day preceding
each Adjustment Date falls shall be deemed the "Adjustment Index." The
Adjustment Index for determining an adjustment to Fixed Rent for a specific
Adjustment Date shall be deemed the Index on the next following Adjustment
Date. At the Adjustment Date, the new Fixed Rent shall be determined by
multiplying the then current Fixed Rent by the percentage increase of the
Adjustment Index over the Index, if any. In no event shall the Fixed Rent as
so adjusted be less than the Fixed Rent in effect for the month immediately
prior to such Adjustment Date. When the new Fixed Rent is determined,
Landlord shall give Tenant written notice of same. If Landlord fails to give
timely notice of the new Fixed Rent, the adjustment shall be retroactive to
the Adjustment Date and Tenant shall pay the arrears within fifteen (15) days
after being billed therefor. If at any Adjustment Date, the Index is no
longer published as described in this Section, Landlord, after consultation
with Tenant, shall substitute the official index published by the United
States Department of Labor, Bureau of Labor Statistics or successor or
similar governmental agency as may then be in existence which is most nearly
equivalent thereto.
3.3 MARKET VALUE RENT ADJUSTMENT. The Fixed Rent shall be
adjusted on each Adjustment Date listed in PARAGRAPH G(ii) OF THE SUMMARY OF
LEASE TERMS to an amount equal to the then current fair market rental for the
Premises. The Market Value Rent Adjustment is defined in and shall be
determined in accordance with the provisions of PARAGRAPH G(ii) OF THE SUMMARY
OF LEASE TERMS and the Addendum referred to therein. In no event shall Fixed
Rent ever be reduced pursuant to the provisions of this SECTION 3.3.
3.4 RENT DEFINITION. Fixed Rent, as adjusted in accordance with
the terms hereof, and any other sums due to Landlord from Tenant pursuant to
this Lease shall be deemed to be "Rent" hereunder.
4. SECURITY DEPOSIT:
Concurrently with Tenant's execution of this Lease, Tenant shall
deposit with Landlord the Security Deposit (as set forth in PARAGRAPH H OF THE
SUMMARY OF LEASE TERMS). The Security Deposit shall be held by Landlord as
security for the faithful performance by Tenant of all of the terms, covenants,
conditions and provisions of this Lease to be kept and performed or observed by
Tenant. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of Rent or
any other monetary sums due herewith, Landlord may (but shall not be required
to) use, apply or retain all or any part of the Security Deposit for the payment
of any Rent or other monetary sums due herewith and/or for the payment of any
other amount which Landlord may spend or become obligated by reason of Tenant's
default, or to compensate Landlord for any other loss or damage which Landlord
may suffer thereby. If any portion of the Security Deposit is so used or
applied, Tenant shall, within ten (10) days after demand therefor, deposit cash
with Landlord in an
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amount sufficient to restore the Security Deposit to the full amount thereof,
and Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep the Security Deposit separate from its
general accounts and/or funds. If Tenant shall fully and faithfully perform
all of its obligations hereunder, the Security Deposit, or any balance
thereof that has not theretofore been applied by Landlord, shall be returned
to Tenant, without payment of interest or other increment for its use (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder),
within ten (10) days after the expiration of the Lease term and after Tenant
has vacated the Premises. In the event of termination of Landlord's interest
in this Lease, Landlord shall transfer the Security Deposit to Landlord's
successor in interest whereupon Landlord shall be released from any and all
liability for the return thereof or the accounting therefor. No trust
relationship is created herein between Landlord and Tenant with respect to
the Security Deposit.
5. OPERATING COSTS AND REAL PROPERTY TAXES:
5.1 DEFINITIONS. For purposes of this Section and Lease, the
following terms are herein defined:
(a) OPERATING COSTS: All costs and expenses of management,
ownership, operation and maintenance of the Building and Property, including by
way of illustration but not limited to, utilities; waste disposal; materials and
supplies; insurance (unless otherwise paid for by Tenant pursuant to the
provisions of SECTION 13.1 below); cost of services of independent contractors
and employees (including, without limitation, wages, salaries, employment taxes
and fringe benefits of such persons but excluding persons performing services
not uniformly available to all Building tenants), day-to-day operation,
maintenance and repair of the Premises, Building, its equipment, and the common
areas, parking areas, walkways, access ways, and landscaped areas, including,
without limitation, janitorial, gardening, security, elevator servicing,
painting, plumbing, electrical, carpentry, heating, ventilation, air
conditioning, window washing, signing and advertising; rental expense or
depreciation of personal property used in the maintenance, operation, and repair
of the Building; the cost of capital improvements to the Building (amortized in
accordance with generally accepted accounting principles together with interest
at the prevailing annual rate on the unamortized portion of such cost) made
after the date of this Lease which reduce other items of Operating Costs or are
required under any governmental law or regulation; provided, however, that
Operating Costs shall not include Real Property Taxes (as defined in
SECTION 5.1(b) below) or the taxes referred to in SECTION 5.3 below; debt
service, if any, on the Building; depreciation on the Building other than
depreciation on exterior window draperies provided by Landlord and carpeting in
public corridors and common areas; costs of Tenant's improvements; real estate
brokers' commissions; capital items other than those included in Operating Costs
above; and the cost of repairs, utilities, or extra services furnished to,
billed to and payable separately by, Tenant or any other lessee of the Building.
(b) REAL PROPERTY TAXES: Includes without limitation, all
taxes, service payments levied or assessed wholly or partly in lieu of taxes,
annual or periodic license, permit,
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inspection or use fees, excises, transit charges, housing fund assessments,
assessments, levies, fees or charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind which are
assessed, levied, charged, confirmed, or imposed by any recorded declaration
affecting the Property or by any public authority upon the Property, the
Building, its operation, personal property contained therein, or the Rent
payable hereunder, (but excluding taxes referred to in SECTION 5.3 below and
state and federal, personal or corporate income taxes measured by the net
income of Landlord from all sources), and the cost of contesting by
appropriate proceedings the amount or validity of any of the aforementioned
taxes.
5.2 TENANT'S PERCENTAGE SHARE OF OPERATING COSTS AND TAXES.
(a) In addition to the Fixed Rent payable during each
calendar year or any portion thereof, during the term of this Lease Tenant shall
pay Tenant's proportionate share of the amount of Operating Costs and Real
Property Taxes paid or incurred by Landlord in such year or any portion thereof
("Tenant's Percentage Share of Operating Costs and Taxes") (as shown in
PARAGRAPH I OF THE SUMMARY OF LEASE TERMS). Tenant's Percentage Share of
Operating Costs and Taxes has been computed by dividing the amount of Tenant's
Net Rentable Area by the amount of Net Rentable Area for the entire Building.
In the event that either Tenant's Net Rentable Area or the Building's Net
Rentable Area is changed, Tenant's Percentage Share of Operating Costs and Taxes
shall be appropriately adjusted by Landlord, such adjustment to be conclusive
and binding on Tenant. If such change occurs during any calendar year, Tenant's
Percentage Share of Operating Costs and Taxes shall be determined for that
calendar year on the basis of the number of days during such calendar year each
such percentage is applicable.
(b) Landlord's estimate of Tenant's Percentage Share of
Operating Costs and Taxes for the first Lease Year is set forth in PARAGRAPH I
OF THE SUMMARY OF LEASE TERMS. On December of each calendar year or as soon
thereafter as practicable, Landlord shall give Tenant notice of its adjusted
estimate of Tenant's Percentage Share of Operating Costs and Taxes for the
succeeding calendar year. On or before the first day of each month during the
succeeding calendar year (or in the case of the first year of the Lease, on or
before the first day of each month during such first year), Tenant shall pay to
Landlord one-twelfth (1/12) of such estimate or adjusted estimate. If Landlord
fails to deliver such notice to Tenant in December, Tenant shall continue to pay
Tenant's Percentage Share of Operating Costs and Taxes on the basis of the prior
year's estimate until the first day of the next calendar month after such notice
is given, provided that on such date Tenant shall pay to Landlord the amount of
such estimated adjustment payable to Landlord as of January 1 of the year in
question, less any portion thereof previously paid by Tenant.
(b)
(c) Within ninety (90) days after the close of each
calendar year or as soon after such ninety (90) day period as practicable,
Landlord shall deliver to Tenant a statement of Tenant's Percentage Share of
Operating Costs and Taxes for such calendar year. If, on the basis of such
statement, Tenant owes an amount that is more than the estimated payments for
such calendar year previously made by Tenant, Tenant shall pay the deficiency to
Landlord within fifteen (15) days after delivery of the statement. If on the
basis of such
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statement Tenant has paid to Landlord an amount in excess of the actual
adjustment to be made for the preceding calendar year and Tenant is not in
default in the performance of any of its covenants under this Lease, then
Landlord, at its option, shall either promptly refund such excess to Tenant
or credit the amount thereof to the Rent next becoming due from Tenant until
such credit has been exhausted.
(d) In the event of any dispute as to any amount due by
Tenant for Tenant's Percentage Share of Operating Costs and Taxes, Tenant shall
have the right upon reasonable advance written notice to inspect Landlord's
accounting records relative to Operating Costs and Real Property Taxes at the
address at which Landlord maintains its records during normal business hours at
any time within forty-five (45) days following the furnishing by Landlord to
Tenant of such statement. If Tenant makes such timely written demand, a
certification as to the proper amount of Tenant's Percentage Share of Operating
Costs and Taxes shall be made by an independent public accountant designated by
Landlord, which certification shall be final and conclusive. Tenant agrees to
pay the cost of such certification unless it is determined that Landlord's
original determination of Tenant's Share of Operating Costs and Taxes was in
error by more than ten percent (10%) over Tenant's actual obligation.
(e) If this Lease (i) terminates on a day other than the
last day of a calendar year, the amount of Tenant's Percentage Share of
Operating Costs and Taxes payable by Tenant applicable to the calendar year in
which such termination occurs, shall be prorated on the basis which the number
of days from the commencement of such calendar year, to and including such
termination date, bears to 360; or (ii) commences on a day other than the first
day of a calendar year, the amount of Tenant's Percentage Share of Operating
Costs and Taxes payable by Tenant applicable to the calendar year in which such
commencement occurs, shall be prorated on the basis which the number of days
from the Commencement Date, to and including the last day of the calendar year
in which the Commencement Date occurs, bears to 360.
Tenant's obligations to pay Tenant's Percentage Share of Operating
Costs and Taxes for either year end adjustments or partial lease years as
contemplated by subparagraphs (c) and (e) above shall survive the termination or
expiration of this Lease.
5.3 OTHER TAXES PAYABLE BY TENANT. Tenant shall reimburse
Landlord upon demand for, or upon Landlord's request shall pay directly to the
appropriate party or entity the amount of, any and all taxes payable by Landlord
(other than net income taxes) whether or not now customary or within the
contemplation of the parties hereto:
(a) imposed upon, measured by or reasonably attributable to
the cost or value of Tenant's equipment, furniture, fixtures and other
personal property located on the Premises or by the cost or value of any
leasehold improvements made in or to the Premises by or for Tenant, other
than building standard improvements made by Landlord, if any, regardless of
whether title to such improvements shall be in Tenant or Landlord;
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(b) imposed upon or measured by the Rent payable hereunder,
including, without limitation, any gross income tax or excise tax levied by
the City and County in which the Premises are located, the Federal
Government or any other governmental body with respect to the receipt of
such rental;
(c) imposed upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; and
(d) imposed upon this transaction or any document to which
Tenant is a party creating or transferring an interest or an estate in the
Premises.
In the event that it shall not be lawful for Tenant to so reimburse
Landlord, the Rent payable to Landlord under this Lease shall be revised to net
Landlord the same income after imposition of any such tax upon Landlord as would
have been received by Landlord hereunder prior to the imposition of any such
tax.
6. USE:
6.1 USE. The Premises shall be used and occupied by Tenant for
the purposes stated on PARAGRAPH J OF THE SUMMARY OF LEASE TERMS and for no
other purpose without the prior written consent of Landlord.
6.2 SUITABILITY. Tenant acknowledges that neither Landlord nor
any officer, director, shareholder, employee or agent of Landlord has made
any representation or warranty with respect to the condition of the Premises
or the Building or with respect to the suitability of either for the conduct
of Tenant's business, nor has Landlord agreed to undertake any modification,
alteration or improvement to the Premises except as provided in this Lease.
The taking of possession of the Premises by Tenant shall conclusively
establish that the Premises and the Building were at such time in a
satisfactory condition.
6.3 USES PROHIBITED.
(a) Tenant shall not do or permit anything to be done in
or about the Premises or the Building, or bring or keep or permit to be
brought or kept anything in or about the Premises or Building, which is
prohibited by any Law (as defined in SECTION 6.3(b) below), or which is
prohibited by, or will in any way increase the existing rate of, cause a
cancellation of, or otherwise affect any fire or other insurance on the
Building, or any part thereof, or any of its contents.
(b) Tenant shall at its sole cost and expense promptly
comply with all applicable covenants, conditions and restrictions now or
hereafter affecting the Premises, or the Building, or the Property, with all
laws, rules, ordinances, regulations, directives and requirements of all
federal, state, county and municipal authorities having jurisdiction over the
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Premises, or the Building, or the Property ("Laws"), including without
limitation those relating to health, safety, noise, environmental protection,
waste disposal, water and air quality, and other environmental matters, and
the use, storage and disposal of Hazardous Materials, as such term is defined
in SECTION 6.4(a) below, and with the certificate of occupancy for the
Premises or the Building and shall not permit anything to be done on the
Premises in violation thereof. Upon written demand, Tenant shall discontinue
any use of the Premises in violation of any covenants, conditions and
restrictions, or of any Law or of the certificate of occupancy.
(c) Tenant shall not do or permit anything to be done in,
or about the Premises, or the Building, or the Property which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building, or injure or annoy them, or use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on, or about the Premises or the
Building, or the Property nor use or permit to be used any loudspeaker, or other
device, system or apparatus which can be heard outside the Premises without the
prior written consent of Landlord. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises, the Building, or the Property.
6.4 TENANT'S OBLIGATIONS REGARDING ENVIRONMENTAL MATTERS.
(a) Tenant shall at all times and in all respects comply
with all federal, state and local laws, ordinances and regulations (collectively
"Hazardous Materials Laws") relating to industrial hygiene, environmental
protection or the use, analysis, generation, manufacture, storage, disposal, or
transportation of any oil, gasoline and related products, flammable substance or
explosives, asbestos, radioactive materials or waste, or other hazardous, toxic,
contaminated or polluting materials, substances, chemicals, wastes or related
injurious materials, whether injurious by themselves or in combination with
other materials including, without limitation, any "hazardous substances,"
"hazardous wastes," "hazardous materials," or "toxic substances" under any such
Laws, any toxic or hazardous substance, material or waste listed in the United
States Department of Transportation Table (49 CFR 172.101) or by the
Environmental Protection Agency as a hazardous substance (40 CFR, Part 302) and
amendments thereto, or such substances, materials and wastes which are or become
regulated or listed as toxic under any applicable local, state or federal law)
(collectively, "Hazardous Materials").
(b) Tenant shall at its own expense procure, maintain in
effect and comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals required for Tenant's use of the Premises,
including, without limitation, discharge of (appropriately treated) materials or
wastes into or through any sanitary sewer serving the Premises. Except as
discharged into the sanitary sewer in compliance with all applicable Hazardous
Materials Laws, Tenant shall cause any and all Hazardous Materials removed from
the Premises to be removed and transported solely by duly licensed haulers to
duly licensed facilities for final disposal of such materials and wastes as
required by applicable governmental agencies having responsibility for any such
removal. Tenant shall in all respects handle, treat, deal with and manage any
and all Hazardous Materials in, on, under or about the Premises in compliance
with all applicable Hazardous Materials Laws and prudent industry practices
regarding management of such Hazardous Materials. Upon expiration or earlier
termination of the term of this Lease, Tenant shall cause all Hazardous
Materials in excess of levels permitted by governmental authorities to be
removed from the Premises and transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Materials Laws. Tenant
shall not take any remedial action in response to the presence of any Hazardous
Materials in or about the
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Premises or the Building, nor enter into any settlement agreement, consent
decree or other compromise in respect to any claims relating to any Hazardous
Materials in any way connected with the Premises or the Building, without
first notifying Landlord of Tenant's intention to do so and affording
Landlord ample opportunity to appear, intervene or otherwise appropriately
assert and protect Landlord's interest with respect thereto.
(c) Tenant shall immediately notify Landlord in writing of:
(i) any enforcement, cleanup, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(ii) any claim made or threatened by any person against Tenant, the Premises,
the Building, or the Property relating to damage, contribution, cost recovery
compensation, loss or injury resulting from or claimed to result from any
Hazardous Materials; and (iii) any reports made to any environmental agency
arising out of or in connection with any Hazardous Materials in, on, under,
about or removed from the Premises, the Building, or the Property including any
complaints, notices, warnings or asserted violations in connection therewith.
Tenant shall also supply to Landlord as promptly as possible, and in any event
within five (5) business days after Tenant first receives or sends the same,
copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Property, the Building, or the Premises,
or Tenant's use thereof. Tenant shall promptly deliver to Landlord copies of
hazardous waste manifests reflecting the legal and proper disposal of all
Hazardous Materials removed from the Premises.
(d) Tenant shall indemnify, defend (by counsel reasonably
acceptable to Landlord), protect, and hold Landlord, and each of Landlord's
partners, employees, agents, attorneys, lenders, successors and assigns, and the
Premises, the Building, and Property free and harmless from and against any and
all loss of rents and/or damages, claims, liabilities, penalties, liens,
judgments, forfeitures, costs, losses or expenses (including permits, and
consultants' and attorneys' fees) or death of or injury to any person or damage
to any property or the environment whatsoever, arising from or caused in whole
or in part, directly or indirectly, by (a) the presence in, on, under or about
the Premises, the Building or the Property or discharge in or from the Premises,
the Building, or the Property of any Hazardous Materials caused or contributed
to by Tenant, or Tenant's use, analysis, storage, transportation, disposal,
release, threatened release, discharge or generation of Hazardous Materials to,
in, on, under, about or from the Premises, the Building, or the Property or
(b) Tenant's failure to comply with any Hazardous Materials Laws or (c) any
storage tank brought onto the Premises, the Building or the Property by or for
Tenant. Tenant's obligations hereunder shall include, without limitation, and
whether foreseeable or unforeseeable, all costs of any required or necessary
investigation (including consultants' and attorneys' fees and testing), repair,
cleanup or detoxification or
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decontamination of the Premises, the Building, or the Property, and the
preparation and implementation of any restoration, abatement, closure,
remedial action or other required plans in connection therewith, and shall
survive the expiration or earlier termination of the term of this Lease. For
purposes of the release and indemnity provisions hereof, any acts or
omissions of Tenant, or by employees, agents, assignees, contractors or
subcontractors of Tenant or others acting for or on behalf of Tenant (whether
or not they are negligent, intentional, willful or unlawful) shall be
strictly attributable to Tenant. No termination, cancellation or release
agreement entered into by Landlord and Tenant shall release Tenant from its
obligations under this Lease with respect to Hazardous Materials or storage
tanks, unless specifically so agreed in writing at the time of such
agreement.
7. SERVICES AND UTILITIES:
7.1 LANDLORD'S OBLIGATIONS. Provided that Tenant is not in
default in the performance or observation of any of the terms, covenants,
conditions or provisions of this Lease to be kept and performed or observed by
it, Landlord, subject to the rules and regulations of the Building hereinafter
referred to, agrees to (i) furnish to the Premises during reasonable hours of
generally recognized business days (as determined by Landlord) water, gas,
electricity, heating and air conditioning suitable for the intended use of the
Premises; (ii) maintain and keep lighted the common stairs, entries and
bathrooms in the Building and outside lighting on the Property; (iii) make all
repairs other than those specified to be Tenant's obligation under this Lease;
and (iv) maintain and repair, other than as specified to be Tenant's obligation
under this Lease, the elevators, if any, and maintain all portions of the
Property and Building used in common by Tenant and Landlord's other tenants;
provided that such repair shall be at Tenant's cost and expense if damage
thereto is caused by the negligence of Tenant, or Tenant's employees, agents,
contractors or invitees. Tenant agrees that at all times it will cooperate
fully with Landlord and abide by all regulations and requirements that Landlord
may prescribe for the proper functioning and protection of any of the Building's
heating, ventilation and air conditioning systems. Whenever heat generating
machines or equipment are used in the Premises by Tenant which affect the
temperature otherwise maintained by the air conditioning system, if any,
Landlord shall have the right to install supplementary air conditioning units in
the Premises, and the cost thereof, including the cost of installation,
operation and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord with interest at the Default Rate accruing from the date
Landlord incurs such costs until the time payment for same is actually received
by Landlord, and Landlord shall have (in addition to any other right or remedy
of Landlord) the same rights and remedies in the event of non-payment thereof by
Tenant as in the case of failure by Tenant to pay Rent hereunder. To the extent
that the cost and expense incurred by Landlord in performing its obligations in
this SECTION 7.1 are not reimbursed to Landlord by insurance or individual
tenants, such costs shall be included in Operating Expenses.
7.2 NON-LIABILITY. Landlord shall not be liable for, and Tenant
shall not be entitled to, any abatement or reduction of Rent by reason of
Landlord's failure to furnish any of the items Landlord is obligated to furnish
pursuant to SECTION 7.1 above when such failure
10
is caused by accident, breakage, repairs, strikes, lockouts or other labor
disturbances or disputes of any character; by the limitation, curtailment,
rationing or restrictions on use of electricity, gas or any other form of
energy; or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord; and Landlord shall not be liable under any circumstances
for injury to or death of any person or damage to or destruction of any
property, however occurring, through or in connection with or incidental to
failure to furnish any of the foregoing.
7.3 TENANT'S OBLIGATIONS. Tenant agrees it will not, without
the written consent of Landlord, use any apparatus or device in the Premises
(including, without limitation, electronic data processing machines, computers
or machines using current in excess of 110 volts) which will in any way increase
the amount of electricity, water or air conditioning usually furnished or
supplied to the Premises for the purposes allowed pursuant to SECTION 6.1 above
or connect with electric current (except through existing electrical outlets in
the Premises) or with water pipes any apparatus or device for the purposes of
using electric current or water. If Tenant shall require water or electrical
current in excess of that usually furnished or supplied to the Premises as used
for the purposes allowed pursuant to SECTION 6.1 above, Tenant shall first
obtain the written consent of Landlord, and Landlord may cause an electric
current or water meter to be installed in the Premises in order to measure the
amount of electric current or water consumed for any such excess use. The cost
of any such meter and of the installation, maintenance and repair thereof; all
charges for such excess water and electric current consumed (as shown by such
meters and at the rates then charged by the furnishing public utility); and any
additional expense incurred by Landlord in keeping account of electric current
or water so consumed shall be paid by Tenant, and Tenant agrees to pay Landlord
therefor promptly upon demand by Landlord, and Landlord shall have (in addition
to any other right or remedy of Landlord) the same rights and remedies in the
event of non-payment thereof by Tenant as in the case of failure by Tenant to
pay Rent hereunder.
7.4 ADDITIONAL SERVICES. Landlord agrees to make reasonable
effort to provide utilities and services to the Premises during hours and on
days not otherwise provided in this Lease upon written request by Tenant.
Tenant shall give reasonable notice in making such request. Tenant agrees to
pay promptly on demand any and all costs incurred by Landlord in connection with
providing such additional services, and Landlord shall have (in addition to any
other right or remedy of Landlord) the same rights and remedies in the event of
non-payment thereof by Tenant as in the case of failure by Tenant to pay Rent
hereunder.
8. MAINTENANCE AND REPAIR:
8.1 TENANT'S OBLIGATIONS. By its execution hereof, Tenant
accepts the Premises as being in the condition in which Landlord is obligated to
deliver the Premises. Tenant, at Tenant's sole cost and expense, shall at all
times maintain and keep the Premises in good and sanitary order, condition and
repair, including, but not limited to, the interior surfaces of the ceilings,
walls and floors, all doors, interior surface of windows (and replacement of all
cracked or broken glass), all plumbing and all electrical fixtures and special
items in excess of building standard improvements, and all equipment (including
heating, cooling, or air conditioning units)
11
installed by or at the request of Tenant. Tenant expressly waives the
benefits of any statute now or hereafter in effect permitting Tenant to
repair the Premises and deduct the cost thereof from Rent otherwise due.
8.2 SURRENDER OF PREMISES. Upon the Expiration Date, Tenant
shall surrender the Premises and all Alterations (as defined in SECTION 9 below)
thereto (unless designated by Landlord to be removed in accordance with
SECTION 9) to Landlord in the same condition as received, ordinary wear and tear
(except to the extent Tenant is obligated to keep the Premises in good condition
and repair) and damage thereto by fire, earthquake, acts of God or the elements
alone excepted, and shall promptly remove or cause to be removed at Tenant's
expense from the Premises and the Building any signs, notices and displays
placed by Tenant, as well as any furniture or fixtures placed therein by Tenant.
Tenant shall indemnify the Landlord against any loss, cost, liability and/or
expense (including, without limitation, attorneys' and paralegals' fees and
costs and court costs) resulting from delay by Tenant in so surrendering the
Premises and Alterations thereto, including, without limitation, any claims made
by any succeeding tenant founded on such delay.
8.3 REMOVAL OF FIXTURES. Tenant agrees to repair any damage to
the Premises or the Building caused by or in connection with the removal of any
articles of personal property business or trade fixtures, movable equipment, and
cabinetwork, belonging to Tenant including without limitation thereto, repairing
the floor and patching and painting the walls where required by Landlord to
Landlord's reasonable satisfaction, all at Tenant's sole cost and expense.
9. ALTERATIONS AND ADDITIONS:
Tenant agrees not to make or suffer to be made any alteration,
addition or improvement to or of the Premises or any part thereof
("Alterations"), without obtaining the prior written consent of Landlord. If
Landlord consents to the making of any Alterations, they shall be made by Tenant
at its sole cost and expense. Tenant shall use a contractor designated by
Landlord or shall obtain Landlord's prior written approval to any contractor
selected by Tenant. Prior to commencement of any work, Tenant shall deliver to
Landlord for its approval plans and specifications for each Alteration to be
undertaken by Tenant; and, at the completion of such work, Tenant shall deliver
to Landlord a certificate from Tenant's architect or engineer stating that the
work has been completed in full compliance with such plans and specifications,
such certificate to be in form and substance reasonably satisfactory to
Landlord. Landlord shall also have the right to impose as a condition to its
consent such requirements as Landlord may deem necessary in its sole discretion
including, without limitation, full reimbursement to Landlord of any and all
expenses incurred by Landlord in connection with the granting of its consent,
the amounts and types of liability and other insurance covering all risks
normally associated with such work and the times and dates during which the
Alterations are to be accomplished. If Landlord is required pursuant to
applicable law or agrees to supervise such work, Tenant shall pay to Landlord a
fee in the amount of fifteen percent (15%) of the total cost of the Alterations
for its management and supervision of the progress of the work. Tenant agrees
that in no event shall such management or supervision by Landlord impose any
obligation
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or liability upon Landlord to Tenant as to or in connection with such work.
All sums due and owing to contractors which have been paid by Landlord due to
Tenant's failure to pay such sums when due, shall bear interest payable to
Landlord at the Default Rate until fully paid. Upon the Expiration Date,
Tenant, at its sole cost and expense, shall promptly remove any Alterations
designated by Landlord to be so removed and repair any damage to the Premises
or the Building caused by such removal and any Alterations not so designated
to be removed shall become the property of the Landlord. Unless removed by
Tenant prior to or on the Expiration Date, any equipment, trade fixtures,
machinery, cabinetwork, movable furniture, or other personal property
remaining on the Premises at the expiration or sooner termination of this
Lease shall, in the sole option of Landlord, either (i) become the property
of Landlord; or (ii) be removed from the Premises and discarded at Tenant's
sole cost and expense. It is agreed that Landlord has no obligation, and has
made no promises, to alter, add to, remodel, improve, repair, decorate or
paint the Premises or any part thereof and that no representations respecting
the condition of the Premises or the Building have been made by Landlord to
Tenant except as may be specifically set forth herein.
10. ENTRY BY LANDLORD:
(a) Landlord reserves, and shall at any and all times have,
the right to enter the Premises to (i) inspect them; (ii) supply any service to
be provided by Landlord to Tenant hereunder; (iii) present the Premises to
prospective purchasers, mortgagees or lessees; (iv) post notices of
non-responsibility, "For Sales" and "For Lease" signs; and (v) alter, improve or
repair the Premises and any portion of the Building all without abatement of
Rent, and may erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, using all reasonable
efforts to provide that Tenants's use of the Premises shall not be unreasonably
interfered with thereby. As part of the consideration for this Lease, Tenant
hereby waives any claim for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned by such entry, For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with which
to unlock all doors, in, upon and about the Premises, excluding Tenant's vaults
and safes, and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency, in order to obtain
entry to the Premises, and any entry to the Premises obtained by Landlord by any
of said means, or otherwise, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of, or an eviction
of Tenant from, the Premises or any portion thereof.
(b) Landlord shall also have the right at any time to
change the arrangement or location of or eliminate entrances or passageways,
doors and doorways, and corridors, elevators, stairs, toilets or other public or
common areas of the Building, or change the arrangement and location of or
eliminate parking areas, access ways, or landscaped areas of the Property, and
to change the name, number or designation by which the Building is commonly
known, and none of the foregoing shall be deemed an actual or constructive
eviction
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of Tenant, nor shall it entitle Tenant to any reduction of Rent or result in
any liability of Landlord to Tenant.
11. LIENS:
Tenant shall keep the Premises, the Building and the land upon which
the Building is situated, free from any liens arising out of work performed,
materials furnished or obligations incurred by Tenant and shall indemnify, hold
harmless and defend Landlord from any liens and encumbrances arising out of any
work performed or materials furnished by or at the direction of Tenant. In the
event that Tenant does not, within ten (10) days following the recording of
notice of any such lien, cause such lien to be released of record, by payment or
posting of a proper bond, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but not the obligation, to cause such
lien to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All sums paid by Landlord and all expenses
incurred by it in connection therewith, including, without limitation,
attorneys' and paralegals' fees and costs and court costs, shall be payable to
Landlord by Tenant on demand with interest at the Default Rate, from the date
such expenses are incurred by Landlord to the date payment is received by
Landlord from Tenant and Landlord shall have (in addition to any other right of
remedy of Landlord) the same rights and remedies in the event of non-payment
thereof by Tenant as in the case of failure of Tenant to pay Rent hereunder.
Landlord shall have the right- at all times to post and keep posted on the
Premises any notices permitted or required by law, or which Landlord shall deem
proper for the protection of Landlord, the Premises, the Building, the Property,
or any other party having an interest therein, or to keep same free from
mechanics' and materialmen's and similar liens. Tenant shall give Landlord at
least ten (10) days prior written notice of the date of commencement of any
construction or other work on or to the Premises.
12. INDEMNITY:
Landlord shall not be liable to Tenant and Tenant waives all claims
against Landlord for any injury to or death of any person or for loss of use of,
damage to, or destruction of property in or about the Premises, the Building, or
the Property by or from any cause whatsoever, including without limitation,
earthquake or earth movement, gas, fire, oil, electricity or leakage from the
roof, walls, basement or other portion of the Premises or the Building, unless
caused by the gross negligence or willful misconduct of Landlord, its agents or
employees. Tenant agrees to hold Landlord harmless from and to indemnify and
defend Landlord against all claims, liability, damage or loss and against all
costs and expenses, including, without limitation, attorneys' and paralegals'
fees and costs and court costs in connection therewith, arising out of any
injury or death of any person or damage to or destruction of property
(i) occurring in, on or about the Premises, from any cause whatsoever,
including, without limitation, Tenant's use of the Premises, unless caused
solely by the gross negligence or willful misconduct of Landlord, its agents or
employees; or (ii) occurring in, on or about any facilities (including without
limitation elevators, stairways, passageways or hallways) the use of which
Tenant has in common with other lessees, or elsewhere in or about
14
the Property or the Building other than the Premises, when such claim, injury
or damage is caused in whole or in part by the act, neglect, default, or
omission of any duty by Tenant, its agents, employees, contractors, invitees,
or subtenants or otherwise by any conduct of any of said persons in or about
the Premises, the Building, or the Property including failure of Tenant to
observe or perform any of its obligations under this Lease, including,
without limitation, its obligations under SECTION 6 hereof.
Without in any way limiting the foregoing, Tenant specifically
acknowledges that Tenant assumes all risks in the use of any or all of the
exercise equipment or facilities in the Building; Tenant acknowledges that
neither the Landlord nor the property manager provide instruction for or
supervision of the use of the exercise equipment and facilities, and neither the
Landlord nor the property manager shall be liable for injury, death, or any
claim arising directly or indirectly out of use of the exercise equipment and
facilities. Tenant agrees to hold Landlord harmless from and to indemnify and
defend Landlord against all claims, liability, damage, or loss and against all
costs and expenses, including, without limitation, attorneys' and paralegals'
fees and costs and court costs in connection therewith, arising out of any
injury or death of any person using the exercise equipment or facilities through
said person's association with Tenant. Tenant further acknowledges that said
exercise equipment and/or facilities may only be used by Tenant and its
employees in common with other tenants and their employees. Tenant shall not
permit use of the exercise equipment or facilities by Tenant's vendors, or the
family members or friends of Tenant and its employees.
The provisions of this SECTION 12 shall survive the termination of
this Lease with respect to any claims or liability occurring prior to such
termination.
13. INSURANCE:
13.1 TENANT'S REQUIRED COVERAGE. Tenant shall, at Tenant's sole
cost and expense, procure and continue in force the following policies of
insurance in the amounts set forth in PARAGRAPH K OF THE SUMMARY OF LEASE TERMS,
unless such amounts are otherwise set forth in this SECTION 13.1:
(i) Liability insurance on an occurrence basis, with limits
in an amount set forth in PARAGRAPH K OF THE SUMMARY OF LEASE TERMS, for
claims or losses arising out of or resulting from personal injury
(including bodily injury), death and/or property damage sustained or
alleged to have been sustained by any person for any reason on or about the
Premises, for liability arising out of or resulting from Tenant's covenants
contained in SECTION 12 above to indemnify Landlord, its agents and
employees, or for contractual liability;
(ii) All risk replacement cost insurance with an agreed
amount endorsement upon property of every description and kind owned by
Tenant and located in the Premises and for all improvements located in the
Premises except building standard improvements in an amount equal to 100%
of the full replacement value thereof;
15
(iii) Workers' compensation insurance (including employer's
liability insurance) in accordance with applicable law;
(iv) Such other insurance as may be reasonably required by
Landlord or by any holder of any ground or underlying lease, mortgage or
deed of trust.
Not more often than every year and upon not less than sixty (60) days
prior written notice, Landlord, in its reasonable discretion, may require Tenant
to increase the insurance limits set forth in subparagraphs (i) or (ii) above.
13.2 LANDLORD'S REQUIRED COVERAGE. Landlord shall procure and
continue in force the following policies of insurance in the amounts set forth
in PARAGRAPH L OF THE SUMMARY OF LEASE TERMS, the cost of same to be included in
Operating Costs:
(i) Liability insurance on an occurrence basis, with limits
in the amount set forth in PARAGRAPH L OF THE SUMMARY OF LEASE TERMS, for
claims or losses arising out of or resulting from personal injury
(including bodily injury), death and/or property damage sustained or
alleged to have been sustained by any person for any reason on or about the
Premises, for liability arising out of or resulting from Tenant's covenants
contained in SECTION 12 above to indemnify Landlord, its agents and
employees, or for contractual liability;
(ii) Casualty insurance insuring the Building against loss
by or damage due to risks covered by the broadest form of casualty
insurance policy (such coverage shall include, without limitation, coverage
against the risk of fire, lightning, extended coverage, vandalism and
malicious mischief). Such policy, shall also include, a rental loss
endorsement. Such policy, exclusive of the rental loss endorsement, shall
be in the face amount of not less than ninety (90%) percent of the full
value of the improvements covered thereby. The rental loss endorsement
shall cover Landlord's loss of rentals in an amount of not less than one
(1) year's aggregate Rent for the Premises;
(iii) Difference in conditions insurance against (1) damage
or loss by flood if the Premises are located in an area identified by the
Secretary of Housing and Urban Development or any successor thereto or
other appropriate authority (governmental or private) as an area having
special flood hazards and in which flood insurance has been made available
under the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, as amended, modified, supplemented or replaced from
time to time, on such basis as shall be required by Landlord and with
coverage in an amount not less than as set forth in PARAGRAPH L OF THE
SUMMARY OF LEASE TERMS, and (2) against damage or loss by earthquake with a
deductible of not more than ten percent (10%) and with coverage in an
amount not less than as set forth in PARAGRAPH L OF THE SUMMARY OF TERMS,
so long as same is available at commercially reasonable rates;
16
(iv) Such other insurance as may be reasonably required by
Landlord or by any holder of any ground or underlying lease, mortgage or
deed of trust.
Landlord may increase the insurance limits set forth in subparagraphs
(i), (ii), or (iii) above.
13.3 INSURANCE POLICIES. The minimum limits of insurance
policies as set forth in SECTION 13.1 above shall in no event limit the
liability of Tenant hereunder. The following provisions shall apply regarding
all insurance policies Tenant is required to procure and maintain under
SECTION 13.1 above. For any insurance policies Landlord is to procure and
maintain under SECTION 13.2 above, Landlord may, at its option, have such
policies comply with such provisions. The aforesaid insurance shall name
Landlord as an additional insured (and, at Landlord's option, the property
manager and the holder of any mortgage or deed of trust on the Building, or any
part thereof or interest therein, as an additional insured), and shall be with
companies having a rating of not less than AAA in "Best's insurance Guide" or
another comparable rating or publication if Best's Insurance Guide is no longer
published or produced. For any insurance policies procured by Tenant, Tenant
shall cause the insurance companies to furnish Landlord with certificates of
coverage, and shall provide that such insurance policy shall not be canceled or
subject to reduction or modification of coverage except after thirty (30) days'
prior written notice to Landlord by the insurer. All such policies shall be
written as primary policies, not contributing with and not in excess of the
coverage which Landlord may carry and shall contain a cross-liability
endorsement stating that the rights of named insureds shall not be prejudiced by
one insured making a claim or commencing an action against another named
insured. For any insurance policies procured by Tenant, Tenant shall, at least
thirty (30) days prior to the expiration of such policies, furnish Landlord with
renewals or binders for renewals thereof. Tenant agrees that if Tenant does not
procure and maintain the insurance required to be procured and maintained by
Tenant pursuant to SECTION 13.1 above Landlord may (but shall not be required
to) procure said insurance on Tenant's behalf and charge Tenant the premiums
charged therefor together with the sum equal to all costs and expenses incurred
by Landlord in connection therewith (including, without limitation, costs
allocated to the use of Landlord's employees in connection therewith, including
without limitation, costs of wages for such employees) together with interest
thereon at the Default Rate, payable upon demand and upon Tenant's failure to
pay such insurance premiums and handling charge, Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
as in the case of failure by Tenant to pay Rent hereunder. Tenant shall have
the right to provide the insurance policies required pursuant to SECTION 13.1
above pursuant to blanket policies obtained by Tenant, provided such blanket
policies expressly afford coverage to the Premises and to Landlord as required
by this Lease.
13.4 WAIVER OF SUBROGATION. Landlord and Tenant each hereby
waive any and all rights of recovery against the other or against the officers,
employees, agents and representatives of the other, on account of loss or damage
occasioned to such waiving party or its property or the property of others under
its control to the extent that such loss or damage is insured against under any
fire and extended coverage insurance policy which either may have
17
in force at the time of such loss or damage. Tenant shall, upon obtaining
the policies of insurance required under this Lease, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is contained in this Lease and shall obtain from such insurance carrier or
carriers a waiver of any right of recovery by way of subrogation against
Landlord.
14. DAMAGE OR DESTRUCTION:
PARTIAL DAMAGE - INSURED. In the event the Premises or the
Building are partially damaged by fire or other casualty which is covered
under fire and extended coverage insurance carried pursuant to SECTION
13.2(1) above, Landlord shall restore such damage provided insurance proceeds
are available to pay one hundred percent (100%) of the cost of restoration
and provided such restoration can be completed within one hundred eighty
(180) days after the commencement of the work thereof under the laws and
regulations of the state, federal, county and municipal authorities having
jurisdiction thereover and if such conditions apply so as to require Landlord
to restore such damage, this Lease shall continue in full force and effect.
Tenant shall be entitled to a proportionate reduction of Fixed Rent and
Tenant's Proportionate Share of Operating Costs and Taxes while such
restoration takes place, such proportionate reduction to be based upon the
extent to which the restoration efforts interfere with Tenant's business in
the Premises, provided that Tenant shall not be entitled to such reduction in
Fixed Rent and Tenant's Proportionate Share of Operating Costs and Taxes if
the damage is the result of negligence, default or omission of Tenant, its
agents, employees, contractors, or invitees; and provided, further, that in
no event shall the reduction of Fixed Rent and Tenant's Proportionate Share
of Operating Costs and Taxes exceed the amounts received by Landlord from
rent loss insurance. Tenant's rights to a reduction in Fixed Rent and
Tenant's Proportionate Share of Building Operating Costs and Taxes hereunder
shall be Tenant's sole and exclusive remedy in connection with any such
damage.
Notwithstanding the foregoing, Landlord may terminate this Lease if
such damage or casualty occurs during the last twelve (12) months of the term of
this Lease (or the term of any renewal option, if applicable) by giving Tenant
notice thereof at any time within thirty (30) days of the occurrence of such
damage or casualty and such notice shall specify the date of such termination
which date shall not be less than thirty (30) nor more than sixty (60) days
after the giving of such notice. In the event of the giving of such notice of
termination, this Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the Rent shall be
paid to the date of such termination.
14.2 PARTIAL DAMAGE - UNINSURED. In the event the Premises or
the Building are partially damaged by a risk not covered by Landlord's fire and
extended coverage insurance or the proceeds of available insurance are less than
one hundred percent (100%) of the cost of restoration, or if the restoration
cannot be completed within one hundred eighty (180) days after the commencement
of such restoration under the laws and regulations of the state, federal, county
and municipal authorities having jurisdiction thereover in the reasonable
opinion of Landlord, or if such damage occurs during the last twelve (12) months
of the term of this Lease
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(or the term of any renewal option, if applicable), Landlord shall have the
option either to (i) repair or restore such damage, with the Lease continuing
in full force and effect, but the Rent to be proportionately abated as
provided in SECTION 14.1 above; or (ii) give notice to Tenant at any time
within thirty (30) days after the occurrence of such damage terminating this
Lease as of a date to be specified in such notice which date shall not be
less than thirty (30) nor more than sixty (60) days after the giving such
notice. In the event of the giving of such notice of termination, this Lease
shall expire and all interest of Tenant in the Premises shall terminate on
the date so specified in such notice and the Rent, reduced by any
proportionate reduction in Fixed Rent and Tenant's Proportionate Share of
Building Operating Costs and Taxes as provided for in this Section and/or
SECTION 14.1 above, shall be paid to the date of such termination.
14.3 TOTAL DESTRUCTION. In the event the Premises are totally
destroyed or the Premises cannot be restored as required herein under applicable
laws and regulations, notwithstanding the availability of insurance proceeds,
Landlord shall have the right to terminate this Lease by giving Tenant notice
thereof within thirty (30) days of date of the occurrence of such casualty
specifying the date of termination which shall not be less than thirty (30) days
nor more than sixty (60) days after the date of the delivery of such notice.
14.4 LANDLORD'S OBLIGATIONS. Notwithstanding the provisions of
this Lease, Landlord shall in no event be required to repair any injury or
damage by fire or other cause whatsoever to, or to make any restoration or
replacement of, any paneling, decorations, partitions, railings, ceilings, floor
coverings, office fixtures or any other improvements or property installed in
the Premises by Tenant or at the direct or indirect expense of Tenant. Tenant
shall be required to restore or replace same in the event of damage at its sole
cost and expense and except for abatement of Fixed Rent and Tenant's
Proportionate share of Operating Costs and Taxes, if any, Tenant shall have no
claim against Landlord for any damage, loss, liability, cost or expense incurred
by Tenant by reason of any such injury, damage or destruction to or repair or
restoration of such items.
14.5 TENANT'S WAIVER. The provisions of this SECTION 14 shall
constitute the express agreement of the parties regarding damage to or
destruction of the Premises and shall supersede any statute now or hereafter in
effect.
15. CONDEMNATION:
(a) If all or part of the Premises shall be taken by any public
or quasi-public authority under the power of eminent domain or shall be conveyed
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title or the right to possession vests in the
condemnor.
(b) If (i) a part of the Premises shall be taken by any public
or quasi-public authority under the power of eminent domain or shall be conveyed
in lieu thereof; and (ii) Tenant is reasonably able to continue the operation of
Tenant's business in that portion of the Premises remaining; and (iii) Landlord
elects to restore the Premises to an architectural
19
whole, then this Lease shall remain in effect as to said portion of the
Premises remaining, and the Fixed Rent and Tenant's Proportionate Share of
Operating Costs and Taxes payable from the date of the taking shall be
reduced in the same proportion as the area of the Premises taken bears to the
total area of the Premises. If, after a partial taking, Tenant is not
reasonably able to continue the operation of its business in the Premises or
Landlord elects not to restore the Premises as hereinabove described, this
Lease may be terminated by either Landlord or Tenant by giving written notice
to the other party within thirty (30) days of the date of the taking. Such
notice shall specify the date of termination which shall not be less than
thirty (30) nor more than sixty (60) days after the date of such notice.
(c) If a portion of the Building is taken, whether any portion
of the Premises is taken or not, and Landlord determines that it is not
economically feasible to continue operating the portion of the Building
remaining, then Landlord shall have the option for a period for sixty (60) days
after such taking to terminate this Lease. If Landlord determines that it is
economically feasible to continue operating the portion of the Building
remaining after such taking, then this Lease shall remain in effect, and
Landlord at Landlord's cost shall restore the Building to an architectural
whole.
(d) Landlord shall be entitled to any and all payment, income,
rent, award, or any interest thereon whatsoever which may be paid or made in
connection with such taking or conveyance, and Tenant hereby assigns any rights
to same to Landlord and Tenant shall have no claim against Landlord or otherwise
for the value of any unexpired term of this Lease. Notwithstanding the
foregoing, to the extent that Landlord's recovery for such taking shall not be
diminished, Tenant shall have the right to make a claim for moving expenses and
for loss or damage to Tenant's trade fixtures, equipment and movable furniture.
(e) No temporary taking of the Premises and/or of Tenant's
rights therein or under this Lease shall terminate this Lease or give Tenant any
right to any abatement of Rent hereunder.
16. ASSIGNMENT AND SUBLETTING:
(a) Tenant shall not assign, transfer, mortgage, pledge
hypothecate or encumber this Lease or any interest therein and shall not
sublet the Premises or any part thereof, or allow occupation or use thereof
by any other party or entity, without the prior written consent of Landlord.
In the event Tenant should desire to assign or transfer this Lease or sublet
any part of the Premises, Tenant shall notify Landlord in writing
(hereinafter referred to as "Sublet Notice") of the terms of the proposed
assignment or transfer or subletting, at least ninety (90) days in advance of
the date on which Tenant desires to make such assignment or transfer or
sublease. Landlord shall then have a reasonable period of time following
receipt or such notice within which to notify Tenant in writing that Landlord
elects to do one of the following:
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(i) Terminate this Lease as to the space so affected as of
the date so specified by Tenant in the Sublet Notice, in which event Tenant
shall be relieved of all further obligations hereunder as to such space
from and after such date; or
(ii) Grant consent to Tenant to assign or transfer the Lease
or sublet such space to the proposed assignee or transferee or sublessee on
the terms set forth in the Sublet Notice; or
(iii) Deny consent to Tenant to assign or transfer the Lease
or sublet such space.
(b) If Tenant proposes to sublease less than all of the
Premises, an election by Landlord under subparagraph (a)(i) above to terminate
this Lease with respect to such space shall not affect the force or validity of
the Lease with respect to the remainder of the Premises, provided that the Rent
payable hereunder shall be adjusted on a pro rata basis in accordance with the
reduction in the rentable area of the Premises. If Landlord should fail to
notify Tenant in writing of its election under subparagraph (a) within the
thirty (30) day period, Landlord shall be deemed to have waived the option
described in subparagraph (a)(i), but prior written consent by Landlord of the
proposed assignee or transferee or sublessee shall still be required. Landlord
shall have the right to require complete financial statements and business
history information (including without limitation, the name and legal
composition of the proposed assignee or transferee or sublessee and the nature
of the business proposed to be carried on in the Premises) regarding the
proposed assignee or transferee or sublessee before determining whether or not
to consent.
(c) Any consideration in excess of the Fixed Rent and Tenant's
Proportionate Share of Building Operating Costs and Taxes payable hereunder
which is realized by Tenant under any sublease or assignment or transfer in
accordance with this Section shall be paid entirely to Landlord. Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of nonpayment thereof by Tenant as in the case of failure
by Tenant to pay Rent hereunder.
(d) The consent of Landlord to any assignment, transfer,
mortgage, pledge, encumbrance, hypothecation, subletting, occupation or use by
any other person or entity shall not release Tenant from any of Tenant's
obligations hereunder or discharge any liability of Tenant under this Lease, nor
shall said consent be deemed to be a consent to any subsequent similar or
dissimilar assignment, transfer, mortgage, pledge, encumbrance, hypothecation,
subletting, occupation or use by any other person or entity. Any such
assignment, transfer, mortgage, pledge, encumbrance, hypothecation, subletting,
occupation or use by any other person or entity without such consent shall be
void and shall constitute a breach of the Lease by Tenant and shall, at the
option of Landlord, constitute a material event of default hereunder. The
acceptance of Rent by Landlord from any other person or entity shall not be
deemed to be a waiver by Landlord of any provision of this Lease or to be a
consent to any assignment, subletting or other transfer thereof.
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(e) For purposes of this SECTION 16, sales, transfers or
assignments of (i) a controlling interest in the stock of Tenant (if Tenant is a
corporation); (ii) the general partnership interest of Tenant sufficient to
materially change its general partnership composition and management (if Tenant
is a partnership); or (iii) the majority of controlling underlying beneficial
interest of Tenant (if Tenant is any other form or business entity) shall
constitute an assignment hereunder.
(f) The voluntary or other surrender of this Lease or of the
Premises by Tenant or a mutual cancellation of this Lease shall not work a
merger, and at the option of Landlord any existing subleases may be terminated
or be deemed assigned to Landlord in which event the tenants under such
subleases shall become tenants of Landlord.
(g) Tenant shall reimburse Landlord for all costs incurred by
Landlord in connection with its review and consideration of any proposed
assignment, transfer, mortgage, pledge, encumbrance or hypothecation of the
Lease or subletting of the Premises, or any part thereof, including without
limitation, reasonable attorneys' fees.
17. MORTGAGEE/GROUND LANDLORD PROTECTION:
17.1 SUBORDINATION. This Lease, at the Landlord's option, shall
be subject and subordinate at all times to all ground or underlying leases which
now exist or may hereafter exist affecting the Premises, the Building or the
land upon which the Building is situated, or all of same, and to the lien of any
mortgage or deed of trust in any amount or amounts whatsoever now or hereafter
placed on or against the Building or land upon which the Building is situated,
or both, or on or against Landlord's interest or estate therein, all without the
necessity of the execution and delivery of any further instruments on the part
of Tenant to effectuate such subordination.
17.2 SUBORDINATION AGREEMENTS. Tenant covenants and agrees to
execute and deliver upon demand and without charge, such further instruments
evidencing subordination of this Lease to (i) any ground or underlying leases
and (ii) to the lien of any mortgages or deeds of trust, as described in
SECTION 17.1 above, as may be requested by Landlord. Tenant hereby appoints
Landlord as Tenant's attorney-in-fact, irrevocably, to execute and deliver any
such agreements, instruments, releases or other documents.
17.3 FINANCIAL STATEMENTS. If this Lease is to be subject and
subordinate to any ground or underlying lease, mortgage or deed of trust
executed after this date, within ten (10) days after Landlord's request, Tenant
shall deliver to Landlord, or to any actual or prospective ground lessor or
lender that Landlord designates, such financial statements as are reasonably
required by any holder of any underlying or ground lease or mortgage or deed of
trust (the "Holder") to verify the net worth of Tenant (or any assignee,
subtenant or guarantor of Tenant) to facilitate the financing or refinancing of
the Building, or any part
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18. INSOLVENCY OR BANKRUPTCY:
18.1 EVENTS OF DEFAULT. In addition to the occurrences set forth
in SECTION 19 below, the following events shall constitute a default under this
Lease: (i) Tenant admits in writing its inability to pay its debts as they
mature; (ii) Tenant makes an assignment for the benefit of creditors or takes
any other similar action for the protection or benefit of creditors;
(iii) Tenant gives notice to any governmental body of insolvency or pending
insolvency, or suspension or pending suspension of operations; (iv) Tenant files
a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or
insolvent; (v) an involuntary petition in bankruptcy is filed against Tenant and
is not dismissed within sixty (60) days from the date same is filed; (vi) Tenant
files any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or other similar relief
under any present or future bankruptcy statute, regulation or law; (vii) a court
of competent jurisdiction enters an order, judgment or decree approving a
petition filed against Tenant seeking any relief described in the preceding
subparagraph (vi) and such order, judgment or decree shall remain unvacated and
unstayed for an aggregate of thirty (30) days from the date of entry thereof;
(viii) a trustee, receiver, conservator or liquidator of Tenant or of all or any
substantial part of its property or its interest in the Premises is employed or
appointed and such receivership remains undissolved for thirty (30) days; or
(ix) this Lease or any estate of Tenant hereunder is levied upon under any
attachment or execution and such attachment or execution shall remain unvacated
and unstayed for ten (10) days.
18.2 BANKRUPTCY. Upon the filing of a petition by or against
Tenant under the United States Bankruptcy Code, Tenant, as debtor in possession,
and any trustee who may be appointed agree to:
(i) Perform each and every obligation of Tenant under this
Lease until such time as this Lease is either rejected or assumed by order
of the United States Bankruptcy Court;
(ii) Pay monthly in advance on the first day of each month
as reasonable compensation for use and occupancy of the Premises the Rent
payable hereunder and all other charges due pursuant to this Lease as said
charges become due;
(iii) Reject or assume this Lease within sixty (60) days of
the filing of such petition under Chapter 7 of the Bankruptcy Code or
within one hundred twenty (120) days (or such shorter term as Landlord, in
its sole discretion, may deem reasonable so long as notice of such period
is given) of the filing of a petition under any other Chapter;
(iv) Give Landlord at least forty-five (45) days prior
written notice of any abandonment of the Premises, any such abandonment to
be deemed a rejection of this Lease; and
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(v) Do all other things of benefit to Landlord otherwise
required under the Bankruptcy Code.
Tenant, as debtor in possession, and any such trustee shall be deemed
to have rejected this Lease in the event of the failure to comply with any of
the above requirements and to have consented to the entry of an order by an
appropriate Bankruptcy Court providing all of the above, waiving notice and
hearing of the entry of same.
19. DEFAULT AND REMEDIES:
In the event that (i) any of the events described in SECTION
18.1 above shall occur; (ii) Tenant abandons or vacates the Premises; (iii)
Tenant fails to pay any Rent payable hereunder when and as the same becomes
due and payable and such failure shall continue for more than five (5) days;
or (iv) Tenant fails to perform any other term, covenant or condition of this
Lease and such failure continues for more than thirty (30) days after
receiving notice thereof from Landlord, or, if such default cannot reasonably
be cured within said thirty (30) day period, fails to commence to cure such
default with all due diligence and dispatch within said thirty (30) day
period, or having commenced such cure, shall fail to diligently prosecute
such cure to completion; then Landlord, in addition to any other rights and
remedies of Landlord at law or in equity, shall have the right to terminate
Tenant's right to possession of the Premises and either terminate this Lease
or have this Lease continue in full force and effect. Should Landlord elect
to terminate Tenant's right to possession of the Premises, then Landlord
shall have the right of entry and may remove all persons and property from
the Premises, subject to applicable law. Such property so removed may be
stored in a public warehouse or elsewhere at the cost and for the account of
Tenant. Upon such termination, Landlord, in addition to any other rights and
remedies provided by law, shall be entitled to recover from Tenant (i) all
delinquent Rent, together with interest and late charges; and (ii) all costs
and expenses of recovering possession, in restoring the Premises to good
order and condition, or in remodeling, renovating, or preparing the Premises
for reletting; (iii) all costs of reletting, including broker's commissions;
(iv) the worth at the time of award of the amount by which the unpaid Rent
for the balance of the term hereof after the time of award exceeds the amount
of such Rent loss that the Tenant proves could be reasonably avoided; and (v)
all other damages caused by Tenant's default. The worth at the time of award
of the amount referred to in this subparagraph shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of the award plus one percent (1%). As used
herein, the term "time of award" shall mean either the date upon which Tenant
pays to Landlord the amount recoverable by Landlord as hereinabove set forth
or the date of entry of any determination, order or judgment of any court or
other legally constituted body, or of any arbitrators determining the amount
recoverable, whichever first occurs.
(b) Should Landlord, following any breach or default of this
Lease by Tenant, elect to keep this Lease in full force and effect with Tenant
retaining the right to possession of the Premises (notwithstanding the fact that
Tenant may have abandoned the Premises), then Landlord, in addition to all other
rights and remedies Landlord may have at law or in equity,
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shall have the right to enforce all of Landlord's rights and remedies under
this Lease, including, but not limited to, the right to recover the
installments of Rent as they become due under this Lease. Notwithstanding
any such election to have this Lease remain in full force and effect,
Landlord may at any time thereafter elect to terminate Tenant's right to
possession of said Premises for any previous breach or default hereunder by
Tenant which remains uncured or for any subsequent breach or default.
20. MISCELLANEOUS:
20.1 TRANSFER OF LANDLORD'S INTEREST. In the event of a sale or
conveyance by Landlord of Landlord's interest in the Premises,or the Building,
or Property Landlord shall be relieved from any further obligations and
liabilities accruing hereunder (whether express or implied) in favor of Tenant
on the part of Landlord. Tenant agrees to look solely to the successor in
interest of Landlord in and to the Property or the Building and this Lease.
This Lease shall not be affected by any such sale and Tenant agrees to attorn to
the Landlord's successor in interest.
20.2 RIGHT OF LANDLORD TO PERFORM. All terms and covenants of
this Lease to be performed or observed by Tenant shall be performed or observed
by Tenant at Tenant's expense and without any reduction of Rent. If Tenant
fails to pay any Rent hereunder or fails to perform any other term or covenant
hereunder on its part to be performed, and such failure shall continue for ten
(10) days after written notice thereof by Landlord, Landlord, without waiving or
releasing Tenant from any obligation of Tenant hereunder, may (but shall not be
obligated to) make any such payment or perform any such other term or covenant
on Tenant's part to be performed. All sums so paid by Landlord and all
necessary costs of such performance by Landlord, together with interest thereon
at the Default Rate from the date of such payment or performance by Landlord,
shall be paid by Tenant to Landlord on demand by Landlord, and Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of non-payment thereof by Tenant as in the case of failure
by Tenant in the payment of Rent hereunder.
20.3 CAPTIONS: ATTACHMENTS; DEFINED TERMS.
(a) The captions of the paragraphs of this Lease are for
convenience of reference only and shall not be deemed to be relevant in
resolving any question of interpretation or construction of any section of this
Lease.
(b) Exhibits attached hereto, and addendums and schedules
initialed by the parties, are deemed by attachment to constitute part of this
Lease and are incorporated herein.
(c) The words "Landlord" and "Tenant," as used herein,
shall include the plural as well as the singular. Words used in neuter gender
include the masculine and feminine and words in the masculine or feminine gender
include the neuter. If there be more
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than one Tenant, the obligations hereunder imposed upon Tenant shall be joint
and several; as to a Tenant which consists of husband and wife, the
obligations shall extend individually to their sole and separate property as
well as community property. The term "Landlord" shall mean only the owner or
owners at the time in question of the fee title or a tenant's interest in a
ground lease of the land underlying the Building. The obligations contained
in this Lease to be performed by Landlord shall be binding on Landlord or
Landlord's successors and assigns only during their respective periods of
ownership.
20.4 ENTIRE AGREEMENT. This instrument together with any
exhibits and attachments hereto constitutes the entire agreement between
Landlord and Tenant relative to the Premises and this Lease and such exhibits
and attachments hereto may be modified, amended or revoked only by an instrument
in writing signed by the party to be charged thereunder. Landlord and Tenant
hereby agree that all prior or contemporaneous agreements (whether oral or
otherwise) between and among themselves and their agents or representatives
relative to the leasing of the Premises are merged in, superseded by or revoked
by this Lease.
20.5 SEVERABILITY. If any term or provision of this Lease shall,
to any extent, be determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforceable to the
fullest extent permitted by law.
20.6 COSTS OF SUIT.
(a) If Landlord places this Lease in the hands of an
attorney for collection or enforcement of Tenant's obligations as a consequence
of Tenant's default hereunder, Tenant agrees to pay reasonable attorney fees and
expenses so incurred, even though no suit or action is filed.
(b) If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of this Lease,
including, but not limited to, any suit by Landlord for the recovery of Rent or
possession of the Premises, the losing party shall pay the successful party the
court costs and reasonable attorneys' fees incurred therefor and such expenses
shall be paid whether or not such action is prosecuted to judgment.
(c) Should Landlord, without fault on Landlord's part, be
made a party to any litigation instituted by Tenant or by any third party
against Tenant, or by or against any person holding under or using the Premises
by license of Tenant (for the purposes of this Section the "Licensee"), or for
the foreclosure of any lien for labor or material furnished to or for Tenant or
any Licensee or otherwise arising out of or resulting from any act or
transaction of Tenant or of any Licensee, Tenant agrees and covenants to save
and hold Landlord harmless from any judgment rendered against Landlord or the
Premises or Building or any part of either thereof, and to defend and indemnify
Landlord as to any and all costs and expenses, including attorneys' fees and
court costs, incurred by Landlord in or in connection with such litigation.
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20.7 TIME: JOINT AND SEVERAL LIABILITY. Time is of the essence
as to this Lease and each and every provision thereof, except as to the
conditions relating to the delivery of possession of the Premises to Tenant.
All the terms, covenants and conditions contained in this Lease to be performed
by either party, if such party shall consist of more than one person or
organization, shall be deemed to be joint and several, and all rights and
remedies of the parties shall be cumulative and nonexclusive of any other remedy
at law or in equity.
20.8 BINDING EFFECT: CHOICE OF LAW. The parties hereto agree
that all provisions of this Lease are to be construed as both covenants and
conditions as though the words importing such covenants and conditions were used
in each separate paragraph. Subject to any provisions hereof restricting
assignment or subletting by Tenant and subject to the provisions of SECTION 20.1
above, all of the provisions hereof shall bind and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns. This Lease shall be governed by the laws of the state in which the
Premises are located.
20.9 WAIVER. No covenant, term or condition or the breach
thereof shall be deemed waived, except by written consent of the party against
whom the waiver is claimed, and any waiver or the breach of any covenant, term
or condition shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other covenant, term or condition of this Lease.
Acceptance by Landlord of any performance by Tenant after the time the same
shall have become due (including, but not limited to, the acceptance of Rent)
shall not constitute a waiver by Landlord of the breach or default of any
covenant, term or condition of the Lease unless otherwise expressly agreed to by
Landlord in writing.
20.10 SURRENDER OF LEASE. The voluntary or other surrender of
this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger,
and shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord operate as an assignment to it
of any or all such subleases or subtenancies.
20.11 RELOCATION OF THE PREMISES. Landlord reserves the
unrestricted and unconditional right to relocate the Premises to substantially
comparable space subject to the same terms and conditions as the Premises
originally leased. Landlord shall give Tenant written notice of its intention
to relocate the Premises, and Tenant shall complete such relocation within
ninety (90) days after receipt of such written notice. If the improvements of
the space to which Landlord proposes to relocate Tenant are substantially
inferior than those of the Premises, or if the fixed rent of the new space is
substantially greater than the Fixed Rent, Tenant may so notify Landlord, and if
Landlord fails to offer space satisfactory to Tenant, Tenant may terminate this
Lease by written notice thereof effective as of the thirtieth (30th) day after
Landlord's initial notice. If Landlord does relocate Tenant, then effective on
the date of such relocation this Lease shall be amended by (i) deleting the
description of the original Premises and substituting for it a description of
such comparable space, and (ii) making such other changes thereto as Landlord
reasonably requires. Landlord agrees to reimburse Tenant for its actual moving
costs to such other space to the extent such costs are reasonable.
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20.12 HOLDING OVER. Any holding over after the expiration or
other termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall be construed to be a tenancy from month-to-month on
all the terms, covenants and conditions herein specified so far as applicable,
except that the Rent (including the Fixed Rent and the Percentage Rent, if any)
shall be an amount equal to one hundred percent (100%) of the Rent otherwise
payable by Tenant immediately prior to such holding over. Any holding over
after the expiration or other termination of the term of this Lease without the
written consent of Landlord shall be construed to be a tenancy from
month-to-month on all the terms set forth herein, except that the Rent
(including the Fixed Rent and the Percentage Rent, if any) shall be an amount
equal to two hundred percent (200%) of the Rent otherwise payable by Tenant
immediately prior to such holding over. Acceptance by Landlord of Rent after
the expiration or termination of this Lease shall not constitute a consent by
Landlord to any such tenancy from month-to-month or result in any other tenancy
or any renewal of the term hereof. The provisions of this paragraph are in
addition to, and do not affect, Landlord's right to re-entry or other rights
provided by this Lease or by law.
20.13 SIGNS.
(a) Tenant shall not place or permit to be placed in or
upon the Premises, or outside the Premises, or any part of the Building
(including, but not limited to the exterior or roof) any signs, notices, drapes,
shutters, blinds or displays of any type without the prior written consent of
Landlord.
(b) Landlord reserves the right in Landlord's sole
discretion to place and locate on the roof, exterior of the Building, and in any
area of the Building not leased to Tenant such signs, notices, displays and
similar items as Landlord deems appropriate in the proper operation of the
Building.
20.14 RULES AND REGULATIONS. Tenant and Tenant's agents,
servants, employees, visitors and licensees shall observe and comply fully
and faithfully with the Rules and Regulations attached hereto as Exhibit B
for the care, protection, cleanliness and operation of the Building and its
lessees and any modification or addition thereto adopted by Landlord,
provided Landlord shall give notice thereof to Tenant. Landlord shall not be
responsible to Tenant for the non-performance by any other lessee or occupant
of the Building of any said Rules and Regulations.
20.15 NOTICES. All notices, demands, requests, advice or
designations ("Notices") which may be or are required to be given by either
party to the other hereunder shall be in writing. All Notices by Landlord to
Tenant shall be sufficiently given, made or delivered if personally served on
Tenant by leaving the same at the Premises, or if sent by United States
certified or registered mail, postage prepaid, addressed to Tenant at
Tenant's address as set forth in PARAGRAPH M OF THE SUMMARY OF LEASE TERMS.
All notices by Tenant to Landlord shall be sufficiently given, made or
delivered if personally served on Landlord or sent by United States certified
registered mail, postage prepaid, addressed to (or in the case of personal
delivery,
28
delivered to) Landlord at Landlord's address for notices as set forth in
PARAGRAPH M OF THE SUMMARY OF LEASE TERMS. Each Notice shall be deemed
received on the date of the personal service or three (3) days after the
mailing thereof in the manner herein provided.
20.16 CORPORATE AUTHORITY. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he or she is duly authorized to execute and deliver this Lease
on behalf of said corporation in accordance with a duly adopted resolution of
the Board of Directors of said corporation or in accordance with the Bylaws
of said corporation, and that this Lease is binding upon said corporation in
accordance with its terms; and at the time of execution of this Lease, Tenant
shall deliver to Landlord a certified copy of a resolution of the Board of
Directors of said corporation authorizing or ratifying the execution of this
Lease.
20.17 RECORDING. Tenant shall not record this Lease or any
memoranda thereof without Landlord's prior written consent.
20.18 LIGHT AIR AND VIEW. Tenant agrees that no diminution or
shutting off of light, air or view by any structure which may be erected
(whether or not by Landlord) on property adjacent to the Building shall in any
way affect this Lease, entitle Tenant to any reduction of Rent hereunder or
result in any liability of Landlord to Tenant.
20.19 NAME. Tenant agrees that it shall not use the name of the
Building for any purpose other than as the address of the business conducted by
Tenant in the Premises without first obtaining the written consent of Landlord.
20.20 BROKERAGE. Tenant covenants and represents that it has
negotiated this Lease directly with Landlord and has not acted by implication to
authorize, nor has authorized, any real estate broker, finder or salesman to act
for it in these negotiations other than the Broker (as defined in PARAGRAPH N OF
THE SUMMARY OF LEASE TERMS). Tenant agrees to hold Landlord harmless from and
to defend and indemnify Landlord against any and all claims, cost, liability
and/or expense (including attorneys' fees and court costs) incurred by Landlord
in connection with any claim by any real estate broker or salesman or finder
(other than the Broker) for a commission or finder's fee as a result of Tenant's
entering into this Lease The provisions contained herein shall survive the
termination of this Lease
20.21 EXAMINATION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for a lease, and this instrument is not effective as a Lease or otherwise
until its execution and delivery by both Landlord and Tenant.
20.22 ESTOPPEL LETTER. Tenant shall at any time and from time
to time within ten (10) days following request from Landlord execute,
acknowledge and deliver to Landlord a statement in writing and signed by Tenant,
(i) certifying that
29
this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease as so
modified is in full force and effect), (ii) acknowledging that there are not,
to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed, (iii) certifying
the date that Tenant entered into occupancy of the Premises and that Tenant
is open for business in the Premises, (iv) certifying the amount of the Fixed
Rent and the date to which Rent is paid in advance, if any, (v) evidencing
the status of this Lease as may be required either by a lender making a loan
affecting, or a purchaser of, the Premises or the Building of any interest of
Landlord therein, (vi) certify the amount of the Security Deposit, if any,
(vii) certifying that all building standard improvements to be constructed in
the Premises by Landlord, if any, are substantially completed except for
punch list items which do not prevent Tenant from using the Premises for its
intended use, and (viii) certifying such other matters relating to this Lease
and/or the Premises as may be requested by either a lender making a loan to
Landlord or a purchaser purchasing the Premises or the Building, or any
interest of Landlord therein, from Landlord. Any such statement may be
relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Building or any interest therein. Tenant shall, within ten
(10) days following request of Landlord, deliver such other documents
including Tenant's financial statements as are reasonably requested in
connection with the sale of, or loan to be secured by, the Premises or
Building or any interest therein. Tenant's failure to deliver said statement
in the time required shall be conclusive upon Tenant that: (i) the Lease is
in full force and effect, without modification except as may be represented
by Landlord; (ii) there are no uncured defaults in Landlord's performance and
Tenant has no right of offset, counterclaim or deduction against Rent under
the Leases; and (iii) no more than one month's Fixed Rent has been paid in
advance.
20.23 NO THIRD PARTY BENEFICIARIES. Unless otherwise expressly
specified herein, no term, covenant, condition or provision of this Lease shall
be construed to be for the benefit of any lessee (other than Tenant) or occupant
of the Building or any other third party or entity.
20.24 EASEMENTS. Landlord reserves the right to grant public
utility easements and other rights on, over and under the Premises without any
abatement in Rent, provided that such rights do not unreasonably interfere with
Tenant's business operations on the Premises.
20.25 FORCE MAJEURE. Landlord shall incur no liability to
Tenant, and shall not be responsible for any failure to perform any of
Landlord's obligations hereunder, if such failure is caused by reason of strike,
other labor trouble, governmental rule, regulations, ordinance, statute or
interpretation, or by fire, earthquake, civil commotion, or any and all other
causes beyond the reasonable control of Landlord. The amount of time for
Landlord to perform any of Landlord's obligations shall be extended for the
amount of time Landlord is delayed in performing such obligation by reason of
such force majeure occurrence.
20.26 SURVIVAL OF OBLIGATIONS. Any obligations of Tenant
accruing prior to the expiration of this Lease shall survive termination of this
Lease, and Tenant shall promptly perform all such obligations whether or not the
Lease term has expired.
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21. EXCULPATION:
Any liability of Landlord (including without limitation Landlord's partners and
their shareholders, affiliates, agents, and employees) to Tenant or any other
person shall be limited to the interest of Landlord in the Property. Tenant or
any other person claiming through Tenant agrees to look solely to such interest
for the recovery of any judgment against Landlord, it being intended by the
parties that neither Landlord, its partners, and their shareholders, affiliates,
agents and employees, nor any other assets of Landlord or such partners, and
their shareholders, affiliates, agents, and employees shall be liable for any
such judgment.
THIS IS A LEGAL DOCUMENT. PLEASE READ IT CAREFULLY. IF YOU HAVE ANY
QUESTIONS ABOUT IT, YOU SHOULD CONSULT YOUR OWN ATTORNEY. NOTE THAT SOME
STATES REQUIRE AN ACKNOWLEDGEMENT.
RESEARCH WAY INVESTMENTS, INC. ANTIVIRALS, INC.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------------------
By: ▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------------
Its: General Partner Its: Director of Business Development
------------------------------- ------------------------------------
31
ACKNOWLEDGMENTS
FOR INDIVIDUAL ACKNOWLEDGMENT
STATE OF Oregon )
) ss.
COUNTY OF Multnomah )
THIS IS TO CERTIFY that on this 17TH day of June, 1992, before me,
the undersigned, a notary public in and for said State, duly commissioned and
sworn, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known to be the individual
described in and who executed the within and foregoing instrument, and
acknowledged to me that said individual signed the same as said individual's
free and voluntary act and deed for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year in this
certificate first above written.
/s/ ▇▇▇▇▇ ▇. Eayes
------------------------------------------------
Notary public in and for state of Oregon,
residing at
------------------------------------------------
My appointment expires 10/20/95
32
FOR PARTNERSHIP ACKNOWLEDGMENT
STATE OF X X X )
) ss.
COUNTY OF X X X )
THIS IS TO CERTIFY that on this X day of X , 19X, before me, the
undersigned, a notary public in and for said State, duly commissioned and
sworn, personally appeared ▇▇▇ ▇▇▇▇▇▇▇▇, to me known to be a general partner
of Research Way Investments, the ____________________ partnership that
executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said partnership for
the uses and purposes therein mentioned, and on oath stated that said
individual was authorized to execute said instrument.
WITNESS my hand and official seal the day and year in this
certificate first above written.
X X X
------------------------------------------------
Notary public in and for state of X X,
residing at
------------------------------------------------
My appointment expires X X
33
FOR CORPORATE ACKNOWLEDGMENT
STATE OF Oregon )
) ss.
COUNTY OF Multnomah )
THIS IS TO CERTIFY that on this 17th day of June, 1992, before me,
the undersigned, a notary public in and for said State, duly commissioned and
sworn, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known to be the Director of
AntiVirals, the corporation that executed the within and foregoing
instrument, and acknowledged the said instrument to be the free and voluntary
act and deed of said corporation for the uses and purposes therein mentioned,
and on oath stated that said individual was authorized to execute said
instrument.
WITNESS my hand and official seal the day and year in this
certificate first above written.
/s/ ▇▇▇▇▇ ▇ . Eayes
------------------------------------------------
Notary public in and for state of Oregon,
residing at
------------------------------------------------
My appointment expires 10/20/95
34
ADDENDUM 1
TO COMMERCIAL LEASE BETWEEN
RESEARCH WAY INVESTMENTS AND ANTIVIRALS, INC.
1. At Tenant's request, from time to time, Landlord will permit
Tenant access to the space between the floor of the Premises and the ceiling of
the first floor area directly below the Premises for the purpose of conducting
inspection, maintenance, and repairs to equipment and conduits. Tenant shall
request access as far in advance of the actual inspection, repair, or
maintenance as is reasonably possible and shall coordinate the scheduling of the
access so as to minimum disturbance of the first floor tenants that may be
affected by Tenant's access to said area between the floor and the ceiling.
Tenant shall promptly repair any damage to the floor, the ceiling below the
floor, Landlord's conduits or equipment, or the first floor tenants that is
caused by Tenant.
2. Within a reasonable time of Tenant's request, Landlord shall
provide partitions/dividers for Tenant's use during the term of this Lease.
Tenant shall install the partitions/dividers at Tenant's expense and shall
repair or replace any damaged or lost partitions/dividers during the term of
this Lease.
3. Tenant shall not be obligated to pay Fixed Rent for the stairs
and stairwell in the Premises. However, all other terms and provisions of this
Lease shall apply to the stairs and stairwell, including Tenant's obligation to
pay its Percentage Share of Operating Costs and Taxes; without limiting the
foregoing, Tenant shall be responsible for cleaning and maintaining the stairs
and stairwell in good condition throughout the term of the Lease.
4. Tenant shaM have the right to cancel this Lease after Tenant has
paid Fixed Rent on the entire Premises for 48 months; provided, that Tenant
shall give Landlord a minimum of 12 months' prior written notice of Tenant's
intent to cancel, which notice shall be accompanied by a cancellation payment in
the sum of $54,000.00; and, provided further, that Tenant shall not be entitled
to cancel this Lease if Tenant is in default.
5. Tenant agrees to pay a leasing commission to ▇▇▇▇▇▇▇▇ & Associates
in the amount of $34,399.80, which sum shall be paid in installment payments
equivalent to installments of Fixed Rent on the first day of each month until
paid in full. Landlord shall credit Tenant with payments of Fixed Rent
equivalent to each installment of leasing commission timely paid to ▇▇▇▇▇▇▇▇
& Associates. Notwithstanding the foregoing, Tenant acknowledges that
▇▇▇▇▇▇▇▇ & Associates has represented only the interests of Landlord in this
transaction and in the negotiations for this Lease; there is no fiduciary
relationship or agency relationship between ▇▇▇▇▇▇▇▇ & Associates and Tenant.
Tenant shall pay its Percentage Share of Operating Costs and Taxes directly
to Landlord.
1
6. Tenant shall have access from the Premises to the upstairs
freight elevator and access from the shipping/receiving area to the freight
elevator on the first floor; Landlord shall have the right to change the route
of the access from time to time.
7. Tenant may, at its option, extend this Lease for three additional
years beyond December 15, 1997 at a Fixed Rent rate of 78CENTS per square foot
of Net Rental Area per month; provided, that Tenant shall give Landlord prior
written notice on or before December 15, 1996, of its intent to extend the
Lease, which notice shall be accompanied by a nonrefundable payment of $20,000
to be applied toward Fixed Rent due and payable during the extended term; and,
provided further, that Tenant shall not be entitled to extend this Lease if
Tenant is in default.
8. Tenant shall have a "second right of refusal" to lease other
space in the Building on the following terms and conditions: prior to Landlord
entering into a lease with a third party for space in the Building, Landlord
shall first offer such space in writing (on the same terms and conditions on
which Landlord is willing to lease to said third party) to CH2M Hill and then to
Tenant herein ("Landlord's Written Notice"). Tenant shall have 10 days, from
the date of Landlord's Written Notice, to deliver written notice to Landlord
unconditionally agreeing to lease such space on the specified terms and
conditions. If Tenant fails to deliver said written acceptance to Landlord
within the 10-day period, Tenant shall have no further "second right of refusal"
on the space described in Landlord's Written Notice so long as Landlord
thereafter enters into a lease for said space on the terms and conditions
specified in Landlord's Written Notice or on terms and conditions more favorable
to Landlord. Tenant acknowledges that notwithstanding Landlord's Written
Notice, CH2M Hill has a "first right of refusal" and may preempt Tenant's right
to lease such space. Notwithstanding the foregoing, Tenant shall have no
"second right of refusal" if Tenant is in default.
9. Landlord hereby agrees to pay ▇▇▇▇▇▇▇▇ & Associates a leasing
commission, if Tenant extends the Lease pursuant to SECTION 7 of this Addendum
or otherwise, as follows: 3% of Rent (Fixed Rent plus Tenant's estimated
Percentage Share of Operating Expenses and Taxes) to be paid during the extended
term of the Lease, provided that no commission shall be payable for extensions
beyond the first 10 years of Tenant's occupancy of the entire Premises; said
commission shall be due and payable in full at the commencement of the extended
term. Landlord hereby agrees to pay ▇▇▇▇▇▇▇▇ & Associates a leasing commission
if Tenant leases additional space, pursuant to the "second right of refusal" or
otherwise, as follows: 3% of Rent (Fixed Rent plus Tenant's estimated Percentage
Share of Operating Expenses and Taxes) to be paid during the term of the lease
for the additional space, provided, that no commission shall
2
be payable for any portion of the lease term that extends beyond the first 10
years of Tenant's occupancy of the additional space.
RESEARCH WAY INVESTMENTS, INC. ANTIVIRALS, INC.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- -------------------------------------
By: ▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- ------------------------------------
Its: General Partner Its: Director of Corporate Deveploment
------------------------------- ------------------------------------
3
EXHIBIT B
To
COMMERCIAL LEASE
RULES AND REGULATIONS
1. No sidewalks, entrance, passages, courts, elevators, vestibules,
stairways, corridors or halls shall be obstructed or encumbered by Tenant or
used for any purpose other than ingress and egress to and from the Premises or
the Building and if the Premises are situated on the ground floor of the
Building. Tenants shall further, at Tenant's own expense, keep the sidewalks
and curb directly in front of the Premises clean and free from rubbish.
2. No awning or other projection shall be attached to the outside
walls or windows of the Building or Premises without the prior written consent
of Landlord. No curtains, blinds, shades, drapes or screens shall be attached
to or hung in, or used in connection with any window or door of the Premises,
without the prior written consent of Landlord. Such awnings, projections,
curtains, blinds, shades, drapes, screens and other fixtures must be of a
quality, type, design, color, material and general appearance approved by
Landlord, and shall be attached in the manner approved by Landlord. All
electrical fixtures hung in offices or spaces along the perimeter of the
Premises must be fluorescent, of a quality, type, design, bulb color, size and
general appearance approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside or
inside of the Premises or of the Building without the prior written consent of
Landlord. In the event of the violation of the foregoing by Tenant, Landlord
may remove same without any liability, and may charge the expense incurred by
such removal to Tenant. Interior signs on doors and the directory tablet shall
be inscribed, painted or affixed for Tenant by Landlord at the expense of
Tenant, and shall be of a quality, quantity, type, design, color, size, style,
composition, material, location and general appearance acceptable to Landlord.
4. The sashes, sash doors, skylights, windows and doors that reflect
or admit light or air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the window ▇▇▇▇▇ or in the public
portions of the Building.
5. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in public
portion thereof without the prior written consent of Landlord.
Page 1
6. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were constructed, and
no sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant to
the extent that Tenant or Tenant's agents, servants, employees, contractors,
visitors or licensees shall have caused the same.
7. Tenant shall not ▇▇▇▇, paint, drill into or in any way deface any
part of the Premises or Building. No boring, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord, and as
Landlord may direct.
8. No animal or bird of any kind shall be brought into or kept in or
about the Premises or Building.
9. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building or
neighboring buildings or premises or those having business with them. Tenant
shall not throw anything out of the doors, windows or skylights or down the
passageways.
10. Neither Tenant nor any of Tenant's agents, servants, employees,
contractors, visitors or licensees shall at any time bring or keep upon the
Premises any flammable, combustible or explosive fluid, chemical or substance
other than those substances in reasonable quantities, customarily used in
Tenant's operations.
11. No additional locks, bolts or mail slots of any kind shall be
placed upon any of the doors or windows by Tenant, nor shall any change be
made in existing locks or the mechanism thereof. Tenant must, upon the
termination of the tenancy, restore to Landlord all keys of stores, offices
and toilet rooms, either furnished to, or otherwise procured by Tenant, and
in the event of the loss of any keys so furnished, Tenant shall pay to
Landlord the cost thereof.
12. All removals, or the carrying in or out of any safes, freight,
furniture, construction material, bulky mater or heavy equipment of any
description must take place during the hours which Landlord or its agent may
determine from time to time. Landlord reserves the right to prescribe the
weight and position of all safes, which must be placed upon two-inch thick
plank strips to distribute the weight. The moving of safes, freight,
furniture, fixtures, bulky matter or heavy equipment of any kind must be made
upon previous notice to the Superintendent of the Building and in a manner
and at times prescribed by him, and the persons employed by Tenant for such
work are subject to Landlord's prior approval. Landlord reserves the right
to inspect all safes, freight or other bulky articles to be brought into the
Building and to exclude from the Building all safes, freight or other bulky
articles which violate any of these Rules and Regulations or the Lease of
which these Rules and Regulations are a part.
13. Tenant shall not engage janitorial or maintenance or other like
service from any company or persons not approved by Landlord. Landlord shall
approve a sufficient number of
Page 2
sources of such services to provide Tenant with a reasonable selection, but
only in such instances and to such extent as Landlord in its judgment shall
consider consistent with security and proper operation of the Building.
14. Landlord shall have the right to prohibit any advertising or
business conducted by Tenant referring to the Building which, in Landlord's
opinion, tends to impair the reputation of the Building or its desirability
as a first class building for offices and/or commercial services and upon
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
15. Landlord reserves the right (but does not have the obligation) to
exclude from the Building between the hours of 6:00 p.m. and 8:00 a.m. on all
days and at all hours on Saturdays, Sundays and legal holidays, all persons
who do not present a pass to the Building or Project issued by Landlord.
Landlord may furnish passes to Tenant so that Tenant may validate and issue
same. Tenant shall safeguard said passes and shall be responsible for all
acts of persons in or about the Building or Project who possess a pass issued
by Tenant.
16. Tenant's contractors shall, while in the Building, be subject to
and under the control and direction of the Superintendent of the Building
(but not as agent or servant of said Superintendent of the Building or of
Landlord).
17. If the Premises is or becomes infested with vermin as a result of
the use or any misuse or neglect of the Premises by Tenant, its agents,
servants, employees, contractors, visitors or licensees, Tenant shall
forthwith at Tenant's expense cause the same to be exterminated from time to
time to the satisfaction of Landlord and shall employ such licensed
exterminators as shall be approved in writing in advance by Landlord.
18. The requirements of Tenant will be attended to only upon
application at the office of the Landlord. Building personnel shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from the office of the Landlord.
19. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
20. No water cooler, air conditioning unit or system or other apparatus
shall be installed or used by Tenant without the written consent of Landlord.
21. There shall not be used in any space, or in the public halls, plaza
areas or lobbies of the Building, either by Tenant or by jobbers or others,
in the delivery or receipt of merchandise, any hand trucks or dollies, except
those equipped with rubber tires and sideguards.
22. Tenant, Tenant's agents, servants, employees, contractors,
licensees, or visitors shall not park any vehicles in any driveways, service
entrances, or areas posted "No Parking" and shall comply with any other
parking restrictions imposed by Landlord from time to time.
Page 3
23. Tenant shall install and maintain, at Tenant's sole cost and
expense, an adequate visibly marked (at all times properly operational) fire
extinguisher next to any duplicating or photocopying machine or similar heat
producing equipment, which may or may not contain combustible material in the
Premises.
24. Tenant shall not use the name of the Building for any purpose other
than as the address of the business to be conducted by Tenant in the
Premises, nor shall Tenant use any picture of the Building in its
advertising, stationery or in any other manner without the prior written
permission of Landlord. Landlord expressly reserves the right at any time to
change said name without in any manner being liable to Tenant therefor.
25. Tenant shall not prepare any food nor do any cooking, conduct any
restaurant, luncheonette or cafeteria for the sale or service of food or
beverages to its employees or to others, or cause or permit any odors of
cooking or other processes, or otherwise to emanate from the Premises.
Tenant shall not install or permit the installation or use of any vending
machine or permit the delivery of any food or beverage to the Premises except
by such persons and in such manner as are approved in advance in writing by
Landlord.
26. Tenant, Tenant's agents, servants, employees, contractors,
licensees, or visitors shall not smoke in the interior common areas of the
Building.
27. Tenant shall not use the elevator in any way which exceeds the
posted weight limit of the elevator.
28. Tenant acknowledges that the exercise equipment and facilities may
only be used by Tenant and its employees; Tenant shall not permit the
exercise equipment and facilities to be used by Tenant's vendors, customers,
family members, friends, etc.
Page 4
COMMERCIAL LEASE
RESEARCH WAY INVESTMENTS
LANDLORD
ANTIVIRAL, INC.
TENANT
COMMERCIAL LEASE
SUMMARY OF LEASE TERMS
A. EXECUTION DATE:
--------------------------------------------------------------------------
B. LANDLORD:
Research Way Investments, a California Limited Partnership
C. TENANT:
Antivirals, Inc., an Oregon corporation
D. PREMISES (SECTION 1, EXHIBIT A):
Approximately 13,180 square feet (not including stairs and stairwell) of
Net Rentable Area located on the second floor in that certain building
located and addressed at Research Way, Corvallis, Oregon (the "Building"),
situated on the real property described on Exhibit C ("Property"). The Net
Rentable Area of the Building is 89,000 square feet.
E. TERM (SECTION 2.1):
Commencement Date: June 15, 1992
Expiration Date: December 15, 1997
Length of Term: 5.5 Years
F. FIXED RENT (SECTION 3.1):
*First year: $.26 per square foot of Net
Rentable Area per month;
Second year: $.52 per square foot of Net Rentable Area per month;
Third year: $.52 per square foot of Net Rentable Area per month;
Fourth year: $.52 per square foot of Net Rentable Area per month;
Fifth year through expiration date: $.78 per square foot of Net Rentable
Area per month;
Tenant has paid $0 installments of Fixed Rent in advance totalling the sum
of $0.
G. ADJUSTMENTS TO RENT:
(i) CPI Rent Adjustment Region (Section 3.2): N/A
--------------------------
___________________________
* First year commences when Tenant occupies any portion of the Premises;
Tenant pays Fixed Rent only on portions that Tenant occupies (prorated to
nearest 100 square feet), but shall pay Fixed Rent on entire Premises
commencing December 15, 1992 in any event. Second year commences 12 months
after commencement of First year, etc. All of Tenant's other obligations in
this Lease commence on the Commencement Date defined in Section E,
above.
-i-
(ii) Market Value Rent Adjustment Dates (Section 3.3 and Addendum No.
________): N/A
---------------------------------------------------------
H. SECURITY DEPOSIT (SECTION 4):
$25,000 00
I. OPERATING COSTS AND TAXES (SECTION 5.2):*
Tenant's Percentage Share of Operating Costs and Taxes: Fourteen and
ninety-nine hundreds percent (14.99%)
Estimate for First Lease Year: $56,036.40
* Tenant shall commence payment of its Percentage Share of Operating Costs
and Taxes on the Commencement Date defined in Section E, above.
J. PERMITTED USE (SECTION 6.1):
Pharmaceutical research and development laboratory.
K. TENANT'S INSURANCE REQUIREMENTS (SECTION 13.1):
(i) Liability: $5,000,000 min.
(ii) All Risk Replacement Cost: $Cost of replacement
L. LANDLORD'S INSURANCE REQUIREMENTS (SECTION 13.2):
(i) Liability: $5,000,000.00
(ii) Casualty: Cost of replacement
(iii) Difference in Conditions: Actual loss of rents
M. ADDRESS FOR NOTICES (SECTION 20.15):
TO LANDLORD: WITH COPIES TO:
Research Way Investments Turn-Key Property Management
c/o ▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇/▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 93447/93446 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX) (▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
-ii-
TO TENANT: WITH COPIES TO:
Antivirals, Inc. ▇/▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ --------------------------------------
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
503) 227-0554
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
N. BROKER(S) (SECTION 20.20):
Broker(s): ▇▇▇▇▇▇▇▇ & Associates
Address: ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Party Paying Commission (Landlord or Tenant): Tenant*
* See Addendum 1
O. LIST OF EXHIBITS:
EXHIBIT A - Floor Plan
EXHIBIT B - Rules and Regulations
EXHIBIT C - Real Property Description
P. LIST OF ADDENDA:
Addendum 1
The provisions of the lease identified above in parentheses are those
provisions making reference to above-described Lease Terms. Each such reference
in the Lease shall incorporate the applicable Lease Terms. In the event of any
conflict between the Summary of Lease Terms and the Lease, the latter shall
control.
-iii-