EXHIBIT 10.19
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LEASE AGREEMENT
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BASIC LEASE INFORMATION
Section 1 Date: May 18, 1998
Section 1 Landlord Address: Piazza Trading & Co., Ltd.
Sausalito ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact- ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Section 1 Tenant Address: BioMarin Pharmaceuticals ATTN: ▇▇▇▇▇ ▇▇▇▇▇ Ph.D.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ FAX ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ of Premises: 8,740 (inclusive of load factor)
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ of Building: 32,600
Section 2 Load Factor: 12%
Section 2 Floor: Second
Section 2 Suites: See Exhibit "A" attached hereto
Section 3 Commencement Date: May 18, 1998
Section 3 Expiration Date: May 31, 2001
Section 4 Possession: Upon lease execution
Section 5 Rent Commencement: May 15, 1998
Section 5 Monthly Base Rent: $14,858.00 plus $14,858.00 security deposit paid upon
lease execution, as adjusted annually.
(Addendum, Section 2)
Section 6 Base Year: 1998
Section 6 Tenant's Share Expenses & Taxes: 26.81%
Section 7 Permitted Uses: Office and Laboratory
Section 7 Parking: 26 unassigned and unreserved spaces
Section 15 Tenant Liability Insurance: $1,000,000 naming Landlord as "Additionally Insured"
Section 27 Real Estate Brokerage: Meridian Commercial, Inc.
Addendum to Lease: See "Tenant Improvement Allowance"
Addendum to Lease: See "Possession"
Addendum to Lease' Tenant Improvement Allowance is $23,600.00
The foregoing Basic Lease Information is incorporated into and made part
of this Lease. Each reference in this Lease to any of the Basic Lease
Information shall mean the specified information set forth above and
shall be construed to incorporate all the terms provided under the
particular section of this lease pertaining to such information. In the
event a conflict between any Basic Lease Information and the remainder
of this Lease exist, the remainder of this Lease shall control.
TABLE OF CONTENTS
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Section Description
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Basic Lease Information............................................ ii
1. Parties............................................................ 1
2. Premises........................................................... 1
3. Term............................................................... 1
4. Possession......................................................... 1
5. Rent............................................................... 2
7. Use................................................................ 5
8. Compliance with Law................................................ 5
9. Alterations........................................................ 5
10. Repairs............................................................ 6
11. Liens.............................................................. 7
12. Assignment and Subletting.......................................... 7
13. Indemnification.................................................... 8
14. Subrogation........................................................ 9
15. Insurance.......................................................... 9
16. Services and Utilities............................................. 10
17. Taxes on Tenant's Personal Property................................ 12
18. Rules and Regulations.............................................. 12
19. Holding Over....................................................... 12
20. Entry by Landlord.................... ............................ 12
21. Damage and Destruction............................................. 13
22. Default............................................................ 14
23. Remedies in Default................................................ 14
24. Eminent Domain..................................................... 15
25. Estoppel Certificate............................................... 16
26. Authority of Tenant................................................ 16
27. Brokers............................................................ 16
28. Default by Landlord................................................ 17
39. Option to Renew.................................................... 17
30. General Provisions................................................. 17
Exhibit A -- Description of the Premises
Exhibit B -- Index of Defined Terms
Exhibit C -- Work Agreement
Exhibit D -- Expense Exclusions
Exhibit E -- Rules and Regulations
BEL MARIN KEYS BOULEVARD
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BEL MARIN KEYS BOULEVARD
OFFICE LEASE
1. PARTIES. This Lease, dated for reference purposes only as of the date
set forth on the first line of the Basic Lease Information, is made by and
between Landlord and Tenant specified in the Basic Lease Information.
2. PREMISES. Landlord leases to Tenant and Tenant leases from Landlord
that certain space outlined in the floor plan attached as Exhibit A, together
with the improvements now or hereafter located therein (the "Premises"), upon
and subject to the conditions set forth in this Lease. Landlord and Tenant agree
that, for purposes of this Lease, the Premises shall be deemed to have a
Rentable Area equal to the square footage specified in the Basic Lease
Information. As used in this Lease, the "Rentable Area" of the Premises shall be
equal to the "Usable Area" of the Premises ("usable area" shall be computed in
accordance with the American Standard Method of Measuring Floor Area in Office
Buildings, ANSI Z65. I-1980, published by the Building Owners and Managers
Association) multiplied by the load factor set forth in the Basic Lease
Information. The Premises are situated in that certain office building (the
"Building") commonly known as ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
in the suite and on the floor specified in the Basic Lease Information. As used
in this Lease, the term "Building" includes the land upon which such office
building stands and the land and improvements surrounding such office building
and designated from time to time by Landlord as land or Common Areas (as defined
below) appurtenant to such office building, together with utilities, facilities,
drives, walkways and other amenities appurtenant to or servicing such office
building. The Rentable Areas of the Building and of the office space in the
Building are set forth in the Basic Lease Information.
3. TERM. The Premises are leased for a term (the "Term") to commence and
end on the dates respectively specified in the Basic Lease Information, unless
the Term shall sooner terminate as provided in this Lease. The dates upon which
the Term shall commence and terminate pursuant to this Section 3 are called the
"Commencement Date" and the "Expiration Date," respectively.
4. POSSESSION.
(a) Landlord shall deliver possession of the Premises to Tenant
in its "AS-IS" condition on the Commencement Date. Landlord shall have no
obligation to remodel, alter or otherwise improve the Premises prior to or
following the Commencement Date.
(b) If, for any reason whatsoever, Landlord fails to deliver
possession of the Premises to Tenant on the Commencement Date, this Lease shall
remain in full force and effect, and Landlord shall have no liability to Tenant
for any loss or damage resulting from such failure, provided, however, that,
Tenant's obligation to pay Base Rent under Subsection 5(a) and Additional
Charges under Section 7 shall be delayed one (1) day for each day Landlord
delays in delivering possession to Tenant after the Commencement Date.
(c) Following the delivery of possession of the Premises to
Tenant, Tenant shall commence the design and construction of the Leasehold
Improvement Work in accordance with the Work Agreement attached hereto as
Exhibit C.
(d) The purpose of attached Exhibit A is only to show the
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approximate location of the Premises in the Building, and such Exhibit is not
meant to constitute an agreement as to the construction or Rentable Area of the
Premises, as to the specific location of elements of the Common Areas, or as to
the
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specific location of the accessways to the Premises or the Building. Landlord
reserves the right, at any time and from time to time, to make alterations or
additions to, to construct other improvements in, and to alter the dimensions
and appearance of the Building and the Common Areas.
5. RENT.
(a) Beginning on the Rent Commencement Date specified in the
Basic Lease Information, Tenant shall pay to Landlord as annual minimum rent for
'the Premises the sum specified in the Basic Lease Information as "Base Rent."
Base Rent shall be payable in equal monthly installments on or before the Rent
Commencement Date and or before the first day of each and every successive
calendar month thereafter. Base Rent shall be paid to Landlord, without any
demand and without any deduction or offset whatsoever, in lawful money of the
United States of America at the address for Landlord specified in the Basic
Lease Information, or to such other person or at such other place as Landlord
may from time to time designate by notice to Tenant.
(b) Tenant shall pay to Landlord as additional charges all fees,
costs, expenses, charges and other mounts required to be paid by Tenant under
this Lease other than Base Rent ("Additional Charges"). Additional Charges shall
be payable to Landlord at the place where the Base Rent is payable, landlord
shall have the same remedies for a default in the payment of Additional Charges
as for a default in the payment of Base Rent. The terms "Base Rent" and
"Additional Charges" are sometimes collectively referred to herein as "Rent".
(c) In addition, upon the execution of this Lease, Tenant shall
pay to Landlord the sum (if any) specified in the Basic Lease Information as
"Advance Rent." Advance Rent shall be applied to the first amounts of Base Rent
due under this Section 5.
(d) If more than one (1) time during any twelve (12) consecutive
month period Tenant shall fail to pay to Landlord any Rent within ten (10) days
after the date on which such Rent is due and payable, then for each such
additional failure to pay any Rent, Tenant shall pay to Landlord a late payment
charge equal to four percent (4%) of the unpaid amount of such Rent, to
compensate Landlord for Landlord's additional administrative and other costs
resulting from each such additional failure by Tenant. By way of example, if
Tenant shall fail to pay an installment of Base Rent within the time period
described above, then Tenant shall pay to Landlord a late payment charge of $782
(viz. 10% of $7,820). This late payment charge shall be paid to Landlord as
Additional Charges together with the unpaid amount of such Rent. Any payment of
Rent to Landlord following service upon Tenant of a three (3) day notice to pay
Rent or quit shall be in the form of cash or a certified or cashier's check.
6. TENANT'S SHARE OF EXPENSES AND TAXES.
(a) During the Term, Tenant shall pay to Landlord as Additional
Charges (i) Tenant's Expense Share (as defined below) of the total dollar
increase, if any, in Expenses (as defined below) attributable to each
Computation Year (as defined below) over Base Expenses (as defined below) and
(ii) Tenant's Tax Share (as defined below) of the total dollar increase, if any,
in Taxes (as defined below) attributable to each Computation Year over Base
Taxes (as defined below).
(b) During the last month of the Base Year and each Computation
Year or as soon thereafter as practicable, Landlord shall give to Tenant notice
of Landlord's estimate of the total amounts that will be payable by Tenant under
Subsection 7(a) for the following Computation Year. On or before the fast day of
each month during the following Computation Year, Tenant shall pay to Landlord
one-twelfth (1/12) of such estimated amounts, provided that if Landlord fails to
give such notice in the last month of the prior Computation Year, then Tenant
shall continue to pay on the basis of the prior Computation Year's estimate
until the first day of the calendar month next succeeding the date when such
notice is given by Landlord. If at
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any time or times Landlord determines that the amounts payable under Subsection
7(a) for the current Computation Year will vary from Landlord's estimate given
to Tenant, Landlord, by notice to Tenant, may revise the estimate for such
Computation Year, and subsequent payments by Tenant for such Computation Year
shall be based upon such revised estimate.
(c) Following the end of each Computation Year, Landlord shall
deliver to Tenant a statement ("Expense Statement") of amounts payable under
Subsection 7(a) for such Computation Year, prepared by Landlord and audited by
an independent public accounting firm designated by Landlord. Upon written
request given by Tenant to Landlord within thirty (30) days after the delivery
of any Expense Statement, Landlord shall allow Tenant to review in Landlord's
office reasonable back-up documentation for the Expenses included in such
Expense Statement. If such Expense Statement shows an amount owing by Tenant
that is less than the payments for such Computation Year previously made by
Tenant, and if no Event of Default (as defined below) is outstanding at the time
such statement is delivered, Landlord shall credit such amount to the next
payments of Rent falling due under this Lease or, if the Term has expired, shall
refund such amount to Tenant. If such Expense Statement shows an amount owing by
Tenant that is more than the payments for such Computation Year previously made
by Tenant, Tenant shall pay the deficiency to Landlord within thirty (30) days
after delivery of such statement. The obligations of Landlord and Tenant under
this Subsection 7(c) shall survive the Expiration Date, and, if the Expiration
Date is a day other than the last day of a Computation Year, the adjustment in
Kent pursuant to this Section 7 for the Computation Year in which the Expiration
Date occurs shall be prorated in the proportion that the number of days in such
Computation Year preceding the Expiration Date bears to 365.
(d) As used in this Lease, the following terms shall have the
meanings specified:
(i) "Expenses" shall mean (A) all costs of management,
operation, maintenance and repair of the Building, including, without
limitation, costs for janitorial, maintenance, security and other service
contracts charges for electricity, heat, ventilation, air conditioning, light,
power, water, sewer and waste disposal and other utilities; charges or fees for
utility connections and equipment costs for materials, supplies, equipment and
tools; costs for maintenance, replacements and repairs; insurance premiums and
license, permit and inspection fees, but only to the extent such license, permit
and inspection fees relate to the Building or the Premises; depreciation on
personal property (excluding Tenant's personal property); the fair market rental
value of Landlord's and the property manager's offices in the Building; wages,
salaries, employee benefits and payroll costs of personnel engaged in the
management, operation and maintenance of the Building; fees, charges and other
costs for management, consulting, legal, accounting and other services performed
by any independent contractors engaged by Landlord or for any such services
performed by Landlord in connection with the Building; and any other reasonable
expenses incurred by Landlord which, under generally accepted accounting
principles, would be considered an operating or maintenance expense of the
Building; and (B) the cost of any capital improvements made to the Building
after its construction that reduce other Expenses or made to the Building after
the date of this Lease as a result of governmental orders, ordinances, codes,
rules and regulations that Were inapplicable to the Building at the time permits
for its construction were obtained, such cost to be amortized over the useful
life of such capital improvements in accordance with generally accepted
accounting principles, together with interest on the unamortized balance at a
rate equal to the lesser of (1) the rate of interest publicly announced by Bank
of America NT&SA in San Francisco, California, as its "reference rate" (or any
successor interest rate), plus two percent (2%), which rate on the unamortized
balance shall be adjusted as of the effective date of any change in such
reference (or successor) rate, or (2) the highest rate permitted by law.
Notwithstanding the foregoing, Expenses shall exclude Taxes and any costs set
forth in attached Exhibit D. In the event the Rentable Area of the office space
in the Building is less than ninety-five percent (95%) occupied during the Base
Year or any Computation Year, Expenses for the Base Year and each such
Computation Year shall be determined by adjusting the actual costs under clauses
(A) and (B) above for the Base Year and each such Computation Year upward to
equal Landlord's reasonable estimate of the costs that would have been incurred
under clauses (A) and (B) if ninety-five percent (95%) of the total Rentable
Area of the office space in the Building had been
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fully occupied for the entire Base Year and each such Computation Year. The
determination of Expenses shall be made by Landlord, shall be audited by
Landlord's independent public accounting firm as provided in Section 7(c) and
shall be final and binding on Tenant.
(ii) "Taxes" shall mean all taxes, assessments and
charges levied upon or with respect to the Building (including, without
limitation, the Common Areas and all leasehold improvement work), any personal
property of Landlord used in the operation of the Building, or Landlord's
interest in the Building or in such personal property. Taxes shall include,
without limitation, all general real property taxes and general and special
assessments, transit charges, housing fund assessments, service payments in lieu
of taxes and-any tax, fee or excise on the act of entering into this Lease or
any other lease of space in the Building, on the use or occupancy of all or any
part of. the Building, on the rent payable under this Lease or any other lease
of space in the Building or on or in connection with the business of renting
space in the Building, that are now , or hereafter levied or assessed against
Landlord by the United States of America, the State of California, or any
political subdivision, public corporation, district or other political or public
entity, and shall also include any other tax, fee or excise, however described)
that may be levied or assessed as a substitute for, or as an addition to, in
full or in part, any other Taxes, whether or not now customary or within the
contemplation of the parties. Taxes also shall include all reasonable legal,
accounting, consulting or other fees, costs and disbursements incurred in
connection with proceedings to contest, determine or reduce Taxes. Taxes shall
not include franchise, transfer, estate or inheritance taxes, or income taxes
measured by the net income of Landlord from all sources, unless, due to a change
in the method of taxation, any of these taxes are levied or assessed against
Landlord as a substitute for, or as an addition to, in full or in part, any
other tax that would otherwise constitute a Tax.
(iii) "Base Year" shall mean the calendar year
specified in the Basic Lease Information.
(iv) "Base Expenses" shall mean the amount of
Expenses for the Base Year.
(v) "Base Taxes" shall mean the amount of Taxes for
the Base Year, provided, however, that if the Building is assessed on less than
a fully completed basis for the Base Year, then Base Taxes shall mean the amount
of Taxes that would have been payable with respect to the Building for the Base
Year if the Building had been assessed on a fully completed basis for the Base
Year, as reasonably determined by Landlord.
(vi) "Tenant's Expense Share" shall mean the
percentage figure so specified in the Basic Lease Information. This percentage
figure has been obtained by dividing the Rentable Area of the Premises by the
total Rentable Area of the office space in the Building. In the event Tenant's
Expense Share is changed during a Computation Year by reason of a change in the
Rentable Area of the Premises or the office space in the Building, Tenant's
Expense Share shall thereafter mean the percentage figure obtained by dividing
the new Rentable Area, if any, of the Premises by the new total Rentable Area,
if any, of the office space in the Building.
(vii) "Tenant's Tax Share" shall mean the percentage
figure so specified in the Basic Lease Information. This percentage figure has
been obtained by dividing the Rentable Area of the Premises by the total
Rentable Area of the Building. In the event Tenant's Tax Share is changed during
a Computation Year by reason of a change in the Rentable Area of the Premises or
the Building, Tenant's Tax Share shall thereafter mean the percentage figure
obtained by dividing the new Rentable Area, if any, of the Premises by the new
total Rentable Area, if any, of the Building.
(viii) "Computation Year" shall mean each twelve (12)
consecutive month period commencing January 1 of each year during the Term
following the Base Year, provided that Landlord, upon notice to Tenant, may
change the Computation Year from time to time to any other twelve (12)
consecutive month period, and, in the event of any such change, Tenant's Expense
Share of Expenses over Base Expenses
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and Tenant's Tax Share of Taxes over Base Taxes shall be equitably adjusted for
the Computation Years involved in any such change.
7. USE.
(a) Tenant shall use and continuously occupy the Premises for
general office purposes and any other purpose specified in the Basic Lease
Information and' shall not use the Premises, or permit the Premises to be used,
for any other purpose.
(b) Tenant shall take no action nor permit any action to be
taken, in or about the Premises that will in any way increase the existing rate
of or affect any fire or other insurance upon the Building or any of its
contents, or cause cancellation of any insurance policy coveting all or any part
of the Building or ,any of its contents. Tenant shall take no action, nor permit
any action to be taken, in or about the Premises that will in any way injure,
annoy, obstruct or interfere with the rights of other tenants or occupants of
the Building nor use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall neither commit nor suffer to be
committed any waste in, on or about the Premises.
(c) Tenant shall have a non-exclusive right to use the Common
Areas, provided, however, that Tenant's use of the Common Areas shall be subject
to such rules and regulations as Landlord shall make from time to time. The
manner and expense of maintaining, repairing and operating the Common Areas
shall be at the sole discretion of Landlord. As used in this Lease, the term
"Common Areas" shall mean the Building's pedestrian sidewalks, truckways,
loading docks, hallways, lobby, corridors, delivery areas, elevators, escalators
and stairs outside of the leased areas, public bathrooms and comfort stations,
and all other areas or improvements that from time to time may be provided by
Landlord for the convenience and use of the tenants of the Building and their
respective sub-tenants, agents, employees, customers and invitees and any other
licensees of Landlord. Landlord reserves the right, from time to time, to
utilize portions of the Common Areas for entertainment, art shows, displays,
product shows, the leasing of kiosks or any other uses that Landlord deems
reasonable.
(d) Tenant shall have the right to use the number of reserved
parking places set forth in the Base Lease Information.
8. COMPLIANCE WITH LAW. Tenant shall neither use, nor permit the use of,
the Premises in any way that will conflict with any law, statute, ordinance or
governmental rule or regulation now in force or hereafter enacted or promulgated
(collectively, "Laws"). At its sole expense, Tenant shall promptly comply with
all Laws, and with the requirements of any board of fire insurance underwriters
or other similar body now or hereafter constituted, relating to or affecting the
condition, use or occupancy of the Premises.
9. ALTERATIONS.
(a) Except for the Leasehold Improvement Work described in the
Work Agreement attached hereto as Exhibit C, Tenant shall neither make nor
permit to be made any alterations, additions or improvements to all or any part
of the Premises, or attach any fixtures or equipment to the Premises
(collectively, "Alterations"), without Landlord's prior approval, which approval
shall not be unreasonably withheld. If Tenant desires that any Alterations be
made, Tenant shall give notice to Landlord of the nature and estimated cost of
such Alterations. Within three (3) business days after Landlords receipt of such
notice, Landlord shall give notice to Tenant stating whether Landlord requires
Tenant to provide Landlord with detailed plans and specifications for the
proposed Alterations.
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(b) If Landlord requires Tenant to provide detailed plans and
specifications, the following procedures shall be followed: Tenant shall have
reasonably detailed plans and specifications for the proposed Alterations
prepared at Tenant's sole expense by a licensed architect or space planner.
Landlord shall approve or disapprove the proposed Alterations within ten (10)
business days after delivery of such plans and specifications to Landlord.
Failure of Landlord to respond within such ten (10) business day period shall be
deemed to be approval by Landlord of the proposed Alterations. If Landlord
disapproves the proposed Alterations, Landlord shall specify in reasonable
detail its reasons for such disapproval and the changes required in order to
secure its approval. In the event Landlord disapproves the proposed Alterations,
Tenant may revise the plans and specifications as necessary to secure Landlord's
approval or may elect to forego the proposed Alterations. If Tenant elects to
revise-the plans and specifications, Landlord shall have a period of ten (10)
business days following submission of such revised plans and specifications to
approve or disapprove the proposed Alterations as provided above. If Landlord
disapproves such revised plans and specifications, the same procedure shall be
followed as to further revisions until Landlord's approval is given or is deemed
to be given or until Tenant elects to forego the proposed Alterations.
(c) If Landlord does not require Tenant to have detailed plans and
specifications prepared for the proposed Alterations pursuant to Subsection
10(b), then Landlord shall approve or disapprove the proposed Alterations within
five (5) business days of receipt of Tenant's initial notice of the nature and
estimated costs of the proposed Alterations pursuant to Subsection 10(a).
Failure of Landlord to respond within such five (5) business day period shall be
deemed to be approval by Landlord of the proposed Alterations.
(d) As a condition of approving the proposed Alterations, Landlord may
reasonably require Tenant to agree to remove all or any part of such Alterations
no later than the Expiration Date and to reimburse Landlord for any reasonable
expenses incurred by Landlord in reviewing the plans and specifications,
including, without limitation, the reasonable costs of any outside consultants
retained by Landlord for such purpose.
(e) If Landlord approves the proposed Alterations, the Alterations
shall be made in accordance with the detailed plans and specifications approved
by Landlord or, if no plans or specifications were required, in accordance with
Tenant's notice to Landlord under Section 10(a) and with any other reasonable
requirements imposed by Landlord. The Alterations shall be performed by Landlord
or, at Landlord's option, by a contractor selected by Tenant and reasonably
approved by Landlord. In either event, all Alterations shall be made at Tenant's
sole expense, and Tenant shall reimburse Landlord for all expenses incurred by
Landlord with respect to such Alterations: including, without limitation, a
reasonable charge for Landlord's overhead if such Alterations are made by
Landlord, or a reasonable charge for Landlord's cost of inspecting the
Alterations prior to and upon their completion if such Alterations are made by
Tenant's contractor. Tenant shall reimburse Landlord for all such expenses
within ten (10) days after receipt of any invoice from Landlord. If Tenant's
approved contractor constructs or installs the Alterations, Tenant shall provide
Landlord with copies of all required permits and other governmental approvals
for such Alterations, and Landlord shall have the right from time to time to
inspect such Alterations prior to or after their completion. All Alterations
shall immediately become Landlord's property and shall remain in the Premises at
the end of the Term without compensation to Tenant, unless Landlord conditioned
its approval of such Alterations on Tenant's agreement to remove them, in which
event Tenant shall by the Expiration Date remove such Alterations and restore
the Premises to their condition prior to the installation of such Alterations.
10. REPAIRS.
(a) By occupying the Premises, Tenant accepts the Premises as being in
the condition in which Landlord is obligated to deliver the Premises under the
terms of this Lease. At all times during the Term, and at Tenant's sole expense,
Tenant shall keep all of the Premises in good condition and repair, except for
ordinary wear and tear or damage by fire, earthquake, act of God or the
elements; provided, however, that
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Tenant shall not be obligated to repair any latent structural defects in the
Premises. Tenant waives all rights to make repairs at the expense of Landlord or
in lieu of such repairs to vacate the Premises as provided by California Civil
Code Sections 1941 and 1942 or any other Laws now or hereafter in effect. Tenant
shall at the end of the Term surrender the Premises to Landlord in the same
condition as when received, except for ordinary wear and tear, damage by fire,
earthquake, act of God or the elements, and Alterations approved by Landlord.
Landlord shall have no obligation and has made no promise to alter, remodel,
improve, repair, decorate or paint all or any part of the Premises, except as
specifically set forth in Section II(b). Furthermore, Landlord has made no
representations to Tenant regarding the condition of the Premises or the
Building, except as specifically set forth in this Lease.
(b) Notwithstanding the provisions of Section II(a), Landlord shall
repair and maintain the structural portions of the Building, including the basic
plumbing, heating, air conditioning, ventilation and electrical systems,
installed or furnished by Landlord, unless the necessity for such maintenance
and repair is in any way caused by the negligence or intentional misconduct of,
or failure to observe or perform any provision of this Lease by, Tenant, or
Tenant's, agents, servants, contractors, employees or invitees, in which case
Tenant shall pay to Landlord the reasonable cost of such maintenance and repair.
Landlord shall not be liable for any failure to make any such repair or to
perform any such maintenance unless Landlord receives notice of the need for
such repair or maintenance from Tenant and fails to make such repair or perform
such maintenance within a reasonable period of time following such notice by
Tenant. Rent shall not ▇▇▇▇▇ nor shall Landlord be liable as a result of any
injury to or interference with Tenant's business arising from the making of any
repair, or the performance of any maintenance, in or to any portion of the
Building or the Premises.
11. LIENS. Tenant shall keep the Premises and the Building free from any
liens arising out of any act or omission, of Tenant, including, without
limitation, any work performed, materials furnished or obligations incurred by
Tenant. Landlord shall have the right to post and keep posted on the Premises
any notices that may be provided by law or that Landlord may deem to be proper
for the protection of Landlord, the Premises and the Building from such liens.
Tenant shall give to Landlord at least ten (10) days' prior notice of the date
of commencement of the Leasehold Improvement Work or any Alterations on the
Premises in order to permit the posting of such notices by Landlord. Landlord
may require, in Landlord's sole discretion, that Tenant, at Tenant's sole
expense, provide to Landlord a lien and completion bond in form and substance
satisfactory to Landlord in an amount equal to one hundred fifty percent (150%)
of the total estimated cost of any Alterations, to insure Landlord against any
liability for mechanics' and materialmen's liens and to insure completion of
work.
12. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not directly or indirectly, voluntarily or by
operation of law, sell, assign, encumber, pledge or otherwise transfer or
hypothecate all of its interest in or rights with respect to the Premises or
Tenant's leasehold estate hereunder (collectively, "Assignment"), or permit all
or any portion of the Premises to be occupied by anyone other than Tenant,
sublet all or any portion of the Premises or transfer a portion of Tenant's
interest in or rights with respect to Tenant's leasehold estate hereunder
(collectively, "Sublease"), without Landlord's prior consent in each instance;
provided, however, that Tenant shall have the right with notice to, but without
the consent of, Landlord to enter into an Assignment of this Lease or to
Sublease the Premises to an entity that controls, is controlled by or is under
common control with, Tenant (hereinafter referred to as an "Affiliate"). No
Assignment of this Lease or Sublease of the Premises to an Affiliate shall
relieve Tenant of any obligation to be performed by Tenant under this Lease,
whether arising before or after such Assignment or Sublease.
(b) If Tenant desires at any time to enter into an Assignment of this
Lease or a Sublease of all or any portion of the Premises, Tenant shall first
give notice to Landlord of such desire, which notice shall contain (i) the name
and address of the proposed assignee, subtenant or occupant, (ii) the nature of
the
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proposed assignee's, subtenant or occupant's business to be carried on in the
Premises, (iii) the terms and provisions of the proposed Assignment or Sublease
and (iv) such financial information as Landlord may reasonably request
concerning the proposed assignee, subtenant or occupant.
(c) Except in the case of an Assignment of this Lease or a Sublease of
the Premises to an Affiliate, at any time within fifteen (15) business days
after Landlord's receipt of the notice specified in Subsection 13(b), Landlord
may by notice to Tenant elect to (i) terminate this Lease as to the portion
(including all) of the Premises that is specified in Tenant's notice, with a
proportionate abatement in Base Rent payable by Tenant, (ii) consent to the
Sublease or Assignment, or (iii) disapprove the Sublease or Assignment. As a
condition for granting its consent to any Assignment or Sublease, however,
Landlord may require that Tenant agree to pay to Landlord the amount by which
all sums payable to Tenant in connection with such Assignment or Sublease exceed
Rent payable by Tenant to Landlord hereunder (or a proportionate amount of such
Rent representing the portion of the Premises subject to a Sublease if less than
the entire Premises are subject to a Sublease). If Landlord. consents to the
Sublease or Assignment within such fifteen (15) business day period, Tenant may,
within ninety (90) days after Landlord's consent, but not later than the
expiration of such ninety (90) days, enter into such Assignment or Sublease upon
the terms and conditions set forth in the notice furnished by Tenant to Landlord
pursuant to Subsection 13(b).
(d) No consent by Landlord to any Assignment or Sublease by Tenant
shall relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether arising before or after such Assignment or Sublease. The consent
by Landlord to any Assignment or Sublease shall not relieve Tenant from the
obligation to obtain Landlord's express consent to any other Assignment or
Sublease. Any Assignment or Sublease that fails to comply with this Section 13
shall be void and, at the option of Landlord, shall constitute an Event of
Default by Tenant under this Lease. The acceptance of Rent by Landlord from a
proposed assignee or sublessee shall not constitute the consent to such
Assignment or Sublease by Landlord.
(e) Any sale or other transfer, including, without limitation, one by
consolidation, merger or reorganization, of a majority of the voting stock of
Tenant (or of any guarantor of Tenant's obligations under this Lease), if Tenant
(or such guarantor) is a corporation, or any sale or other transfer of a
majority of the partnership interests in Tenant (or of any guarantor of Tenant's
obligations under this Lease), if Tenant (or such guarantor) is a partnership,
shall be an Assignment for purposes of this Section 13.
(f) Each assignee, sublessee or other transferee (including, without,
limitation, any Affiliate), other than Landlord, shall assume all obligations of
Tenant under this Lease and shall be and remain liable jointly and severally,
with Tenant for the payment of Rent, and for the performance of all the
provisions of this Lease; provided, 'however, that the assignee, sublessee or
other transferee shall be liable to Landlord for rent and additional charges
only in the amount set forth in the Assignment or Sublease. No Assignment shall
be binding on Landlord unless the assignee or Tenant shall deliver to Landlord a
counterpart of the Assignment and an instrument in recordable form that contains
a covenant of assumption by the assignee satisfactory in substance and form to
Landlord, consistent with the requirements of this Subsection 13(b), but the
failure or refusal of the assignee to execute such instrument of assumption
shall not release or discharge the assignee from its liability as set forth
above.
(g) In the event of any Assignment or Sublease by Tenant or in the
event Tenant requests Landlord's approval of any Assignment or Sublease, Tenant
shall pay Landlord's reasonable attorneys' fees, costs and disbursements
incurred in connection therewith, but in no event shall Tenant pay an mount
higher than $650.00.
13. INDEMNIFICATION.
(a) If Tenant shall default in the performance of its obligations
under this Lease, Landlord, at any time thereafter and without notice, may
remedy such default for Tenant's account and at Tenant's
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expense, without thereby waiving any other rights or remedies of Landlord with
respect to such default.
(b) Tenant agrees to indemnify Landlord against and hold Landlord
harmless from any and all loss, cost, liability, damage and expense, including,
without limitation, penalties, fines and reasonable attorneys' fees, incurred in
connection with or arising from any cause whatsoever in, on or about the
Premises, except to the extent caused by the negligence or intentional
misconduct of Landlord including, without limitation, (i) any failure by Tenant
to observe or perform any of the provisions of this Lease, (ii) the use or
occupancy or manner of use or occupancy of the Premises by Tenant or any person
claiming through or under Tenant, (iii) the construction of the Leasehold
Improvement Work in the Premises, (iv) the condition of the Premises or any
occurrence or happening in or on the Premises from any cause whatsoever, or (v)
any negligence or intentional misconduct, whether prior to, during or after the
Term, Of Tenant or any person claiming through or under Tenant, or of the
contractors, agents, servants, employees, visitors or licensees of Tenant or any
such person, in, on or about the Premises or the Building. Tenant further agrees
to indemnify Landlord, Landlord's agents, and the lessor or lessors under all
ground or underlying leases, against and hold them harmless from any and all
loss, cost, liability, damage and expense, including, without limitation,
reasonable attorneys' fees, incurred in connection with or arising from any
claims of any persons by reason of injury to persons or damage to property
occasioned by any event referred to in the preceding sentence.
(c) Except as specifically provided to the contrary in this Lease,
Tenant shall pay to Landlord, within ten (10) business days after delivery by
Landlord to Tenant of bills or statements therefor: (i) sums equal to all
expenditures made and monetary obligations incurred by Landlord including,
without limitation, expenditures made and obligations incurred for reasonable
attorneys' fees, in connection with the remedying of any default by Tenant for
Tenant's account pursuant to the provisions of Subsection 14(a); (ii) sums equal
to all losses, costs, liabilities, damages and expenses referred to in
Subsection 14(b); and (iii) sums equal to all expenditures, made and monetary
obligations incurred by Landlord, including, without limitation, expenditures
made and obligations incurred for reasonable attorneys' fees, in collecting or
attempting to collect Rent.
(d) Tenant waives all claims against Landlord for damage to any
property or for injury or death of any person in, upon or about the Premises or
the Building arising at any time and from any cause other than solely by reason
of the negligence or intentional misconduct of Landlord or its employees or
contractors.
(e) Landlord agrees to indemnify Tenant against and hold Tenant
harmless from any and all loss, cost, liability, damage and expense, including,
without limitation, penalties, flues and reasonable attorneys' fees, incurred in
connection with or arising from (i) any failure by Landlord to observe or
perform any of the provisions of this Lease or (ii) any gross negligence or
intentional misconduct, whether prior to, during or after the Term, of Landlord
in, on or about the Premises or the Building.
(f) Tenant's and Landlord's obligations under this Section 14 shall
survive the expiration or sooner termination of the Term.
14. SUBROGATION. Landlord and Tenant each shall obtain from their insurers
a waiver of all rights of subrogation that the insurer of one party might have
against the other party under all policies of all risk coverage insurance
maintained by either at any time during the Term insuring or covering the
Building or Premises or any improvements, fixtures, equipment, furnishings or
other property, including, without limitation, salable goods, merchandise, and
inventory, if any, in, on or about the Premises.
15. INSURANCE. Tenant agrees to carry and keep in force during the Term,
at Tenant's sole expense, the following types of insurance:
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(i) Public Liability and Property Damage. Comprehensive general
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liability insurance, including contractual liability, with a minimum combined
single limit of liability equal to the amount set forth in the Basic Lease
Information, insuring against any and all liability for property damage and for
injury to or death of persons occurring in, on or about the Premises or arising
out of the maintenance, use or occupancy of the Premises. All such comprehensive
general liability insurance shall specifically insure the performance by Tenant
of its indemnity obligations under Section 14(b) with respect to liability for
injury to or death of persons and for damage to property.
(ii) Workers' Compensation and Employers' Liability. Workers'
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compensation and employers' liability insurance covering employees for
California Workers' Compensation benefits, including employers' liability with
limits for each accident in an amount reasonably required by Landlord.
(iii) Tenant's Property. Insurance covering any and all fixtures,
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equipment, furnishings and personal property of Tenant from time to time in, on
or about the Premises, providing protection against all perils included within a
standard "all risk from" insurance policy, together with insurance against
sprinkler damage, vandalism, and malicious mischief. Such insurance shall be in
an amount not less than the full replacement cost of the property insured
without deduction for depreciation.
(iv) Policy Form. All policies of insurance provided for in this
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Section 16 shall be issued by insurance companies with a general policyholders'
rating of not less than A and a financial rating of XIII as rated in the most
current available "Best's Insurance Reports," and qualified to do business in
the State of California; and, except for workers' compensation and employers'
liability, all such policies shall name Landlord, and such other persons and
entities as Landlord specifies from time to time, as additional insureds.
Executed copies or certificates of all such policies of insurance shall be
delivered to Landlord at least ten (10) days prior to the delivery of possession
of the Premises to Tenant, and thereafter copies or certificates of all renewals
of such policies of insurance within thirty (30) days prior to the expiration of
the term of each such policy. All comprehensive general liability insurance
policies shall contain a provision that Landlord, although named as an insured,
shall nevertheless be entitled to recovery under such policies for any loss
occasioned to Landlord, its agents and employees by reason of the negligence or
willful act of Tenant. As often as any such policy shall expire or terminate,
renewal or additional policies shall be procured and maintained by Tenant in
like manner and to like extent. All such policies of insurance shall provide
that the companies writing such policies shall give to Landlord thirty (30)
days' prior written notice (i) of any cancellation or lapse of the policies or
(ii) of the effective date of any reduction in the amounts of insurance. All
public liability, property damage and other casualty policies shall be written
as primary policies, not contributing with and not in excess of coverage that
Landlord may carry.
16. SERVICES AND UTILITIES.
(a) Subject to the rules and regulations of the Building, Landlord
agrees to furnish to the Premises and the Building the following services and
utilities:
(i) Heating, ventilation, and air conditioning ("HVAC") shall be,
provided to the Premises between the hours of 8:00 a.m. and 6:00 p.m., Monday
through Friday, except for generally recognized business holidays in San
Francisco, California (such hours during these days shall be referred to herein
as "Standard Building Hours"), in such amounts as are necessary for the
comfortable use and occupancy of the Premises as general office space, as
reasonably determined by Landlord. Additionally, upon reasonable advance notice
from Tenant, Landlord shall provide the Premises with HVAC during other than
Standard Building Hours, provided, however, that Tenant shall separately
reimburse Landlord for Landlord's' cost of providing such HVAC to the Premises
during other than Standard Building Hours.
(ii) Electricity for lighting and fractional horsepower office
equipment shall be provided to the, Premises twenty-four (24) hours per day,
every day of the year, in such amounts as are necessary for
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the use and occupancy of the Premises as general office space, as reasonably
determined by Landlord, provided, however, that if Tenant requests HVAC during
hours other than Standard Building Hours, or if Tenant otherwise regularly uses
electricity during other than Standard Business Hours, Landlord shall have the
right to require Tenant to pay to Landlord as Additional Charges the cost of
Tenant's additional electricity usage during such hours, as reasonably estimated
by a utility company or by Landlord's electrical engineer.
(iii) Janitorial service shall be provided to the Premises during
other than Standard Building Hours, at a level that is sufficient for the use
and occupancy of the Premises as general office space, as reasonably determined
by Landlord, but including trash disposal, cleaning of all restrooms once on all
normal business days, and periodic washing of the inside and outside Building
windows.
(iv) Water for reasonable drinking and lavatory use shall be provided
to the Premises and/or the floor on which the Premises are located twenty-four
(24) hours per day, every day.
(v) Landlord shall provide services and utilities to the Building,
including the Common Areas, as necessary to operate and maintain the Building in
a Class-A manner substantially equivalent to the manner in which comparable
Class-A office buildings in San Francisco, California, are operated and
maintained.
(vi) Landlord shall provide security services for the Building that,
in Landlord's judgement, are required for the reasonable safety of Tenant's
property and employees. Tenant and its employees, guests, invitees and agents
shall be given access to the Premises after business hours and on weekends, with
appropriate security measures therefor reasonably established by Landlord.
(b) Landlord shall .not be liable for, and Tenant shall not be
entitled to any abatement of Rent or Additional Charges by reason of, (i)the
inadequacy, stoppage, interruption, or discontinuance of any of the services or
utilities in Subsection 17(a) above-when caused by accident, breakage, repair,
maintenance, strike, lockout or other labor disturbance or labor dispute of any
character, or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord, or by the making of any repairs, alterations, additions or
improvements to the Premises or to the Building or any portion of either, or
(ii) the limitation, curtailment, rationing or restriction on use of water,
electricity, gas or any other utility provided to the Premises or the Building
by any public utility company or governmental agency.
(c) Without the prior consent of Landlord, as provided below, Tenant
shall not install or use any equipment or machines in the Premises, including,
without limitation, computers, data processing machines, punch card machines and
equipment or machines using in excess of 220 volts, that will in any way cause
Tenant to use electricity in the Premises in excess of the amount of electricity
that is commonly used by other tenants of the Building for the use and occupancy
of their respective premises as general office space. If Tenant desires to
install and use In the Premises any such equipment or machines that will cause
Tenant to use electricity in excess of the amount that is commonly used by other
tenants of the Building for the use and occupancy of their respective premises
as general office space, Tenant shall fast procure the consent of Landlord to
the installation and use of such equipment or machines, which consent shall not
be unreasonably withheld. If such consent is granted by Landlord, Landlord shall
have the rig, hi to cause an electrical current submeter to be installed in the
Premises, so as to measure the amount of electricity consumed for any such use.
Promptly upon demand by Landlord, Tenant shall reimburse Landlord, as Additional
Charges, for the cost of any such submeter, including, without limitation, the
cost of its installation, maintenance and repair, and for the cost of all
electricity consumed as shown by such submeter, at the rate charged for such
service by the local public utility furnishing the same, plus any additional
expense incurred by Landlord in keeping account of the electricity so consumed.
If separately submetered, the cost of electricity shall be excluded from the
calculation of Expenses for the purpose of computing Tenant's Share of Expenses,
except that the cost of electricity used in or with respect to the Common Areas,
as reasonably determined by Landlord, shall be included in such calculation. If
Landlord elects not to install a separate
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electric current submeter, the cost of the electricity used by Tenant in excess
of the amount that is commonly used by other tenants of the Building for the use
and occupancy of their respective premises as general office space shall be
established by an estimate made by a utility company or, at Landlord's option,
by an electrical engineer selected by Landlord and reasonably approved by Tenant
and shall be paid to Landlord monthly as "Additional Charges together with the
Rent.
17. TAXES ON TENANT'S PERSONAL PROPERTY. Tenant agrees to pay, before
delinquency, any and all taxes levied or assessed during the Term upon' Tenant's
equipment, furniture, trade fixtures and other personal property located in, on
or about the Premises. In the event any or all of Tenant's equipment, furniture,
fixtures and other personal property shall be assessed and taxed with the
Building, Tenant shall pay to Landlord as Additional Charges the taxes so levied
with respect to such personal property within ten (10) business days after
delivery to Tenant by Landlord of a statement setting forth the amount of such
taxes' applicable to Tenant's property.
18. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the rules and regulations for the Building that are attached as Exhibit E.
Landlord reserves the right from time to time to make reasonable additions to
and modifications of such roles and regulations. Any such additions and
modifications shall be binding on 'Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible to Tenant for the nonperformance of
any such rules and regulations by any other tenants or occupants of the Building
19. HOLDING OVER. Any holding over by Tenant after the Expiration Date with
the prior consent of Landlord shall be construed to be a tenancy from month to
month on all of the terms, covenants and conditions herein specified but, unless
otherwise agreed upon in writing by Landlord and Tenant, at a monthly Base Rent
equal' to one hundred twenty-five percent (125%) of the monthly Base Rent in
effect immediately prior to the Expiration Date. Acceptance by Landlord of Rent
after, the Expiration Date without Landlord's prior consent to Tenant's holding
over 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. The
provisions of this Section 20 are in addition to, and do not affect, Landlord's
right of re-entry or other rights hereunder or provided by law, including,
without limitation, the right to recover damages for any period when Tenant
holds over without Landlord's prior consent.
20. ENTRY BY LANDLORD. Landlord reserves, and shall at all times have the
right to enter the Premises to inspect the Premises; to supply janitorial
service and any other service to be provided by Landlord hereunder; to read any
meters; to show the Premises to prospective purchasers, lenders or tenants (but
only after the giving of no less than 8 hours notice by Landlord to Tenant); to
determine whether Tenant is in compliance with all of its obligations hereunder;
to post notices of nonresponsibility; to erect scaffolding and other necessary
structures in or through the Premises where reasonably required by the character
of the work to be performed; to alter, repair and improve the Building, the
Premises or any part of either; to make additions to and build additional floors
on the Building; to alter, repair, or improve or location of entrances or
passageways, doors and doorways, electrical, plumbing, heating, ventilating and
air conditioning equipment and systems, corridors, elevators, stairs and
toilets, and all other facilities serving the Building, wherever located, .and
whether or not such alterations, repairs or improvements are required by any
governmental agency, entity, ordinance, role or regulation; to construct other
buildings or improvements on land adjacent to- the Building; and to change the
use of all or any part of the Building, other than the Premises, provided that
Landlord shall use reasonable efforts to minimize any interference with Tenant's
use and enjoyment of the Premises caused by any such entry. The exercise by
Landlord of any of the foregoing rights shall not be deemed an actual or
constructive eviction of Tenant, shall not result in any liability of Landlord
to Tenant, and shall not entitle Tenant to any reduction of Rent; provided,
however, that in the event that the exercise by Landlord of any of the foregoing
rights shall result in a permanent actual decrease in the rentable area of the
Premises, then the Rent shall be reduced in proportion to such decrease. Tenant
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet
-12-
enjoyment of the Premises, and any other loss occasioned by such entry. For each
of the foregoing purposes, . Landlord shall at all times have and retain a key
with which to unlock all of the doors in, on and about the Premises (excluding
doors to Tenant's vaults, safes and similar areas designated in writing by
Tenant in advance). Landlord shall have the right to use any and all means that
Landlord may deem proper to open such doors in an emergency in order to obtain
entry to the Premises, and any entry to the Premises obtained by " Landlord by
any of such means, or otherwise, shall not under any circumstances be construed
or deemed to be a forcible or unlawful entry into or a detainer of the Premises
or an eviction, actual or constructive, of Tenant from all or any portion of
the Premises.
21. DAMAGE AND DESTRUCTION.
(a) If the Premises or the Building is damaged by fire, earthquake,
act of God, the elements or other casualty, Landlord shall promptly, but in no
event later than thirty 00) days following the occurrence of such damage, give
notice to Tenant stating the. number of days, in Landlord's reasonable judgment,
that will be necessary to repair such damage. If such damage can substantially
be repaired within one hundred twenty (120) days after the damage occurred,
Landlord shall commence to repair such damage promptly and shall complete such
repairs as soon as reasonably possible thereafter, subject to the provisions of
this Section 22. During the making of such repairs by Landlord, this Lease shall
remain in full force and effect, except that if the damage is not the result of
the ______________________ intentional misconduct of Tenant, its agents,
contractors, employees or invitees, Tenant shall be entitled to an abatement of
Base Rent, while such repair is being made, in the proportion that the Rentable
Area of the Premises rendered unusable by such damage bears to the total
Rentable Area of the Premises. If such damage cannot substantially be repaired
within one hundred twenty (120) days after the damage, as evidenced by a
statement from Landlord's architect or general contractor to such effect,
Landlord and Tenant shall each have the option, exercisable at any time within
thirty (30) days after Landlord's notice to Tenant as provided above, to
terminate this Lease This option to terminate shall be exercised, if at all, by
Landlord or Tenant giving notice to the other party within such thirty (30) day
period of its election to terminate this Lease, with such termination to be
effective as of a date specified in such notice no later than thirty (30) days
after the giving of such notice to the other party. If both parties elect to
terminate this Lease, the termination date shall be the date specified in
Landlord's notice. If either Landlord or Tenant elects to terminate this Lease
by giving such notice of termination to the other party, this Lease and . all
interest of Tenant in the Premises shall terminate on the date specified in such
notice, and the Kent, proportionately abated as provided above, shall be paid up
to the date of such termination, with. Landlord refunding to Tenant any Rent
previously paid for any period of time subsequent to such date If neither party
elects to terminate this Lease as provided above, Landlord promptly shall repair
such damage, with this Lease continuing in full force and effect, but with the
Base Rent proportionately abated as provided above. If Landlord is required to
repair the Premises or the Building under this Section 22, Landlord shall repair
at its cost any injury or damage to the Building and the. leasehold improvements
in the Premises, and Tenant shall be responsible for and shall repair at its
sole cost all trade fixtures, equipment, furniture and other property of Tenant
in the Premises. Tenant waives any right to terminate this Lease under Sections
1932__2) and 1933(4) of the California Civil Code, or under any similar Laws now
or hereafter in effect. Tenant shall not be entitled to any compensation or
damages from Landlord for damage to any of Tenant's trade fixtures, personal
property or equipment, for loss of use of all or any part of the Premises, for
any damage to Tenant's business or profits, or for any disturbance to Tenant
caused by any casualty or the restoration of the Premises following such
casualty.
(b) Notwithstanding the provisions of Subsection 22(a) above, each
party also shall have the option to terminate this Lease, exercisable by notice
to the other party within thirty (30) days of damage or destruction to the
Premises or Building, in each of the following instances:
(i) If more than fifty percent (50%) of the Rentable Area of the
Building is destroyed, regardless of whether the Premises are damaged.
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(ii) If the Premises are substantially damaged or destroyed during
the last twelve (12) months of the Term.
(c) Notwithstanding the provisions of Subsections 22(a) and Co) above,
Landlord also shall , have the option to terminate this Lease, exercisable by
notice to Tenant within thirty (30) days of damage or destruction to the
Premises or Building, if the uninsured cost of repairing any damage or
destruction (excluding the amount of any applicable deductible, in the case of
an insured loss) exceeds ten percent (10%) of the full replacement cost of the
Building, including, without limitation, all leasehold improvements therein.
22. DEFAULT. The occurrence of an) one or more of the following events
shall constitute a default and breach of this Lease by Tenant (an "Event of
Default"):
(a) The vacation or abandonment of the Premises by Tenant for a period
of twenty (20) days or longer.
(b) The failure of Tenant to pay any installment of Rent within five
(5) business days after such installment is due.
(c) The failure by Tenant to observe or perform any of the provisions
of this Lease to be observed or performed by Tenant, other than the failure
described in Subsection 23(b), where such failure shall continue for a period of
fifteen (I5) days after notice of such failure by Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such that more than fifteen
(15) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant commences such cure within such fifteen (15) day
period and thereafter diligently prosecutes such cure to completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing of any action by or
against Tenant under any insolvency, bankruptcy, reorganization, moratorium or
other debtor relief statute, whether now or hereafter existing (unless, in the
case of such action taken against Tenant, the action is dismissed within sixty
(60) days); or the appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days after such taking; or the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within ten
(10)days; or the admission by Tenant in writing of its inability to pay its
debts as they become due.
23. REMEDIES IN DEFAULT. Upon the occurrence of any Event of Default,
Landlord may at any time thereafter, with or without notice or demand, Without
limitation on Landlord's exercise of any right or remedy that Landlord may have
by reason of such Event of Default, and in addition to any other right or remedy
Landlord may have at law or in equity:
(a) Terminate this Lease and recover damages as provided by Section
1951.2 of the California Civil Code, including, but not limited to, recovery of
the worth at the time of award of the amount by which the unpaid Rent for the
balance of the Term after the time of award exceeds the amount of rental loss
for the same period that Tenant proves could have been reasonably avoided, as
computed pursuant to subsection (b) of Section 1951.2;
(b) Continue this Lease in effect and enforce all of Landlord's rights
and remedies under this. Lease, as provided by Section 1951.4 of the California
Civil Code, including, without limitation, the right to recover Rent as it
becomes due, for so long as Landlord does not terminate Tenant's right to
possession; acts of maintenance or preservation by Landlord, efforts by Landlord
to relet or sublet the Premises, or the appointment of a receiver upon
Landlord's initiative to protect its interest under this Lease shall not
constitute a termination of Tenant's right to possession;
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(c) Sublet all or any part of the Premises for such term or terms
(which may extend beyond the Term), at such rent and on such other terms as
Landlord in its sole discretion may deem advisable, with the right to make
alterations and repairs to the Premises, all as attorney-in-fact for Tenant
pursuant to Subsection 24(f);
(d) Enter the Premises and remove therefrom all persons and property,
store such property in a public warehouse or elsewhere at the cost of and for
the account of Tenant, and sell such property and apply the proceeds therefrom
pursuant to applicable California law, all as attorney-in-fact for Tenant
pursuant to Subsection 24(f); and
(e) Take all steps necessary or appropriate to have a receiver
appointed for Tenant to take possession of the Premises, to apply any rental
collected from the Premises and to exercise all other rights and remedies
granted to Landlord as attorney-in-fact for Tenant pursuant to Subsection 24(f).
Additionally, Landlord shall have the following rights, powers, and remedies:
(f) For all purposes set forth in Subsections 24(c) through 24(e),
Tenant in evocably appoints and constitutes Landlord as attorney-in-fact for
Tenant, with power of substitution. No taking possession of the Premises by
Landlord, as attorney-in-fact for Tenant, shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such election
is given to Tenant. Notwithstanding any subletting by Landlord without
termination under Subsection 24(c.), Landlord may at any time thereafter elect
to terminate this Lease for any previous Event of Default.
(g) In the case of any Event of Default in the payment of Rent,
Landlord shall receive interest on all unpaid Rent at a rate equal to the lesser
of (i) the rate of interest publicly announced by Bank of America NT&SA in San
Francisco, California, as its "reference rate" (or any successor interest rate),
plus five percent (5%), which rate on unpaid Rent shall be adjusted as of the
effective date of any change in such reference (or successor) rate, or (ii) the
highest rate permitted by law.
24. EMINENT DOMAIN.
(a) If all of the Premises are condemned or taken in any manner for
public or quasi-public use, including, but not limited to, a conveyance or
assignment in lieu of a condemnation or taking, this Lease shall automatically
terminate as of the earlier of the date of the vesting of title or the date of
dispossession, of Tenant as a result of such condemnation or taking. If a
portion of the Premises is so condemned or taken, this Lease shall automatically
terminate, as to the portion of the Premises so condemned or taken, as of the
earlier of. the date of the vesting of title or the date of dispossession of
Tenant as a result of such condemnation or taking. If a portion of the Building
is condemned or taken so as to require, in the reasonable judgment of Landlord,
a substantial alteration or reconstruction of the remaining portions of the
Building, this Lease may be terminated by Landlord, as of the earlier of the
date of the vesting of title or the date of dispossession of Tenant as a result
of such condemnation or taking, by notice to Tenant within sixty (60) days
following notice to Landlord of the date on which such vesting or dispossession
will occur. If a material portion of the Premises is condemned or taken so as to
render the remaining portion unusable by Tenant, in Tenant's reasonable
judgment, this Lease may be terminated by Tenant, as of the earlier of the date
of the vesting of title or the date of dispossession of Tenant as a result of
such condemnation or taking, by notice to Landlord within sixty (60) days
following notice to Tenant of the date on which such vesting or dispossession
will occur.
(b) Landlord shall be entitled to the entire award in any condemnation
proceeding or other proceeding for taking for public or quasi-public use,
including, without limitation, any award made for the value of the leasehold
estate created by this Lease. No award for any partial or entire taking shall be
apportioned, and Tenant assigns to Landlord any award that may be made in such
condemnation or taking,
-15-
together with any and all rights of Tenant now or hereafter arising in or to
such award; provided, however, that nothing contained herein shall be deemed to
give Landlord any interest in, or to require Tenant to assign to Landlord, any
award made to Tenant specifically for its relocation expenses, the taking of
personal property and fixtures belonging to Tenant, or the interruption of or
damage to Tenant's business.
(c) In the event of a partial condemnation or taking that does not
result in a termination of this Lease as to the entire Premises, Base Rent shall
▇▇▇▇▇ in proportion to the portion of the Premises taken by such condemnation or
taking.
(d) If all or any portion of the Premises is condemned or taken for
public or quasi-public use for a limited period of time, this Lease shall remain
in full force and effect and Tenant shall continue to observe all of the terms,
conditions and covenants of this Lease; provided, however, that Base Rent shall
▇▇▇▇▇ during such limited period in proportion to the portion of the Premises
that is rendered untenantable and unusable as a result of such condemnation or
taking. Landlord shall be entitled to receive the entire award made in
connection with any such temporary condemnation or taking.
(e) Tenant waives and releases any right to terminate this Lease under
Sections 1265.120 and 1265.130 of the California Code of Civil Procedure, or
under any similar Laws now or hereafter in effect.
25. ESTOPPEL CERTIFICATE. At any time and from time to time, and no later
than thirty (30) days after notice from Landlord, Tenant shall promptly execute,
acknowledge and deliver to Landlord, and, at Landlord's request, to any
prospective purchaser, ground lessor, or mortgagee, a certificate certifying (a)
that Tenant has accepted the Premises (or, if Tenant has not done so, that
Tenant has not accepted the Premises and specifying the reasons for not
accepting them); (b) the Commencement, Rent Commencement and Expiration Dates;
(c) that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that this Lease is in full force and effect as modified
and stating the date and nature of each modification); (d) the dates, if any, to
which Rent has been paid; (e) whether or not there are then existing any
defenses against the enforcement of any of the obligations of Tenant under this
Lease (and, if so, specifying such defenses); (f) whether or not there are then
existing any defaults by Landlord in the performance of its obligations under
this Lease (and, if so, specifying such defaults); and (g) such other matters as
may be reasonably requested by Landlord. Any such certificate may be relied upon
by Landlord and by any prospective purchaser, ground lessor or mortgagee
considering the purchase of or a loan on all or any part of the Building or any
interest therein. If Tenant fails to deliver any such certificate within thirty
(30) days of receipt, Tenant agrees and acknowledges that Landlord, and any
prospective purchaser, ground lessor, or mortgagee, may rely on all in,
formation set forth in such certificate as true and correct. Tenant shall
indemnify Landlord against and hold Landlord harmless from all costs, damages,
expenses, liabilities and fees, including, without limitation, reasonable
attorneys' fees and any consequential damages or lost profits, arising from or
in any way related to or connected with Tenant's failure to deliver any such
certificate within the time specified in this Section 26.
26. AUTHORITY OF TENANT. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of Tenant represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of Tenant,
that Tenant is a duly authorized and existing entity, that Tenant has qualified
and is qualified to do business in California, that Tenant has full right and
authority to enter into this Lease, and that this Lease is binding upon such
corporation or partnership in accordance with the terms of this Lease. Upon
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing representations and
warranties.
27. BROKERS, Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease,
excepting only the brokers specified in the Basic Lease Information, and Tenant
knows of no other real estate broker or agent who is entitled to a commission in
connection with this Lease. Tenant agrees to indemnify Landlord against and hold
Landlord harmless from
-16-
any and all claims, demands, losses, liabilities; lawsuits, judgments, costs and
expenses (including reasonable attorneys' fees) with respect to any leasing
commission or equivalent compensation alleged to be owing on account of Tenant's
dealings with any real estate broker or agent other than as specified in the
Basic Lease Information.
28. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after notice by Tenant to Landlord
specifying the nature of the obligation Landlord has failed to perform;
provided, however, that if the nature of Landlord's obligation is such that
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes such performance to completion.
30. INTENTIONALLY OMMITTED.
31. GENERAL PROVISIONS.
(a) Waiver. The waiver by Landlord or Tenant of the other party's
------
failure to perform or observe any provision of this Lease shall not be deemed to
be a continuing waiver of such provision or a waiver of any subsequent failure
of Landlord or Tenant to perform or observe the same or any other such
provision, and no custom or practice that may develop between the parties during
the Term shall be deemed a waiver of, or shall in any way affect, the right of
Landlord or Tenant to insist upon performance and observance by the other party
in strict accordance with the terms of this Lease. The subsequent acceptance of
Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
failure of Tenant to perform or observe any provision of this Lease, other than
the failure of Tenant to pay the particular Rent so accepted, irrespective of
any knowledge on the part of Landlord of such preceding failure of Tenant at the
time of acceptance of such Rent.
(b) Notices. Any bills, statements, notices, demands, requests or
-------
other communications given or required to be given under this Lease shall be
effective only if rendered or given in writing, sent by registered, certified,
or express mail or delivered personally, (i) to Tenant (A) at Tenant's address
set forth in the Basic Lease Information, if sent prior to Tenant's taking
possession of the Premises, (B) at Tenant's address at the Building, if sent
subsequent to Tenant's taking possession of the Premises, or (C) at any place
where Tenant or any agent or employee of Tenant may be found, if sent subsequent
to Tenant's vacating, deserting, abandoning or surrendering the Premises; (ii)
to Landlord at Landlord's address set forth in the Basic Lease Information; or
(iii) to Tenant or Landlord at such other address as either party may designate
as its new address for such purpose by notice given to the other in accordance
with the provisions of this Subsection 31(b). If Tenant is notified of the
identity and address of Landlord's mortgagee or ground or underlying lessor,
Tenant shall give to such mortgagee or ground or underlying lessor notice of any
default by Landlord under the terms of this Lease, in writing sent by registered
or certified mail, and such mortgagee or ground or underlying lessor shall be
given a reasonable opportunity to cure such default prior to Tenant's ground or
underlying lessor shall be given a reasonable opportunity to cure such default
prior to Tenant's exercising any remedy available to Tenant.
-17-
(c) Examination of Lease. Submission of this instrument to Tenant for
--------------------
its execution does not constitute a reservation or option for a lease, and this
instrument is not and shall not be deemed to be effective as a lease or
otherwise until its execution and delivery by both Landlord and Tenant.
(d) Captions. The captions of this Lease are for convenience of
--------
reference only and shall have no effect upon the construction or interpretation
of any provision of this Lease.
(e) Definitions. The words "Landlord" and "Tenant" as used herein
-----------
shall include the plural as well as the singular. Words used in the neuter
gender include the masculine and feminine. If Landlord or Tenant is more than
one entity, the obligations under this Lease imposed on Landlord or Tenant shall
be joint and several.
(f) Time. Time is of the essence of this Lease and each and all of its
----
provisions in which performance is a factor
(g) Successors and Assigns. The terms, covenants and conditions
----------------------
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and, except as otherwise provided herein, their personal representatives,
successors and assigns; provided, however, that upon the sale, assignment or
transfer by Landlord named herein (or by any subsequent Landlord) of its
interest in the Building as owner or lessor, including any transfer by operation
of law, Landlord named herein (or any subsequent Landlord) shall be relieved
from all subsequent obligations and liabilities under this Lease, and all
obligations and liabilities subsequent to such sale, assignment or transfer (but
not any obligations or liabilities that have accrued prior to the date of such
sale, assignment or transfer) shall be binding upon the grantee, assignment or
transferee of such interest, and any such grantee, assignee or transferee, by
accepting such interest, shall be deemed to have assumed such subsequent
obligations and liabilities. A lease of the entire Building to a person other
than for such person's occupancy shall be deemed a transfer within the meaning
of this Subsection 3l(g). Tenant agrees to execute any and all documents deemed
necessary or appropriate by Landlord to evidence the foregoing.
(h) Recordation. Tenant shall not record this Lease or a short form
-----------
memorandum of this Lease without the prior consent of Landlord.
(i) Quiet Possession. Upon Tenant's paying the Rent reserved hereunder
----------------
and observing and performing all of the provisions of this Lease, Tenant shall
have quiet' possession of the Premises for the entire Term, subject to all the
provisions of this Lease.
(j) Prior Agreements. This Lease contains all of the agreements of
----------------
Landlord and Tenant with respect to all matters covered or mentioned in this
Lease, and no prior agreements or understandings pertaining to any such matters
shall be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties or their
successors in interest. Tenant acknowledges that in executing and delivering
this Lease, Tenant is not relying on any verbal or written understanding,
promise or representation outside the scope of this Lease and not described or
referred to herein.
(k) Attorneys' Fees. In the event of any action or proceeding brought
---------------
by either party against the other under this Lease, the prevailing party shall
be entitled to recover all costs and expenses, including, without limitation,
its attorneys' fees, for such action or proceeding in such amount as the court
or arbitrator may adjudge reasonable. The prevailing party shall be determined
by the court or arbitrator based upon an assessment of which party's major
arguments made or positions taken in the action or proceeding could fairly be
said to have prevailed over court's or arbitrator's decision. If Landlord is
named as a defendant in any suit brought against Tenant in
-18-
connection with or in any way arising out of this Lease or Tenant's use or
occupancy of the Premises, Tenant shall pay Landlord's costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred in such
suit.
(1) Subordination: Attornment. Without the necessity of any additional
-------------------------
document being executed by Tenant for the purpose of effecting a subordination,
this Lease shall be subject and subordinate at all times to (i) all ground
leases or underlying leases that may now exist or hereafter be executed
affecting the Building or the land upon which the Building is situated, or both,
and (ii) the lien of any mortgage or deed of trust that may now exist or
hereafter be executed in any amount for which the Building, the land upon which
the Building is situated, any ground leases or underlying leases of the Building
or such land, or Landlord's interest or estate in any of such items is specified
as security, provided that the lessees under such ground or underlying leases,
and the mortgagees or beneficiaries named in such mortgages or deeds of trust,
shall agree to recognize the interest of Tenant under this Lease in the event of
foreclosure, if Tenant is not then in default. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be subordinated to this
Lease any such ground leases or underlying leases or any such liens. In the
event that any ground lease or underlying lease terminates for any reason or any
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant shall, notwithstanding any subordination, attorn
to and become the Tenant of the successor in interest to Landlord, at the option
of such successor in interest. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents evidencing the priority or subordination of this Lease with
. respect to any such ground lease or underlying lease or the lien of any such
mortgage or deed of trust.
(m) Names. Tenant shall not use the name of the Building or of the
-----
development in which the Building is situated for any purpose other than as an
address of the business to be conducted by Tenant in the Premises.
(n) Severability. Any provision of this Lease that shall prove to be
------------
invalid, void, illegal or unenforceable shall in no way affect, impair or
invalidate any other provisions of this Lease, and such other provisions and
this Lease shall remain in full force and effect.
(o) Cumulative Remedies. No remedy or election hereunder shall be
-------------------
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies or elections at law or in equity.
(p) Choice of Law. This Lease shall be governed by and construed in
-------------
accordance with the Laws of the State of California.
(q) Signs and Building Name. Tenant shall not place any sign upon the
-----------------------
Premises or Building without Landlord's prior consent. All signs to which
Landlord so consents and which are placed by Tenant upon or in the Premises
shall comply in all respects with size, design, lettering and material
guidelines established by Landlord for the Building. Landlord reserves the right
to change or alter such guidelines at such times and for such tenants as
Landlord may determine in its sole discretion. The name of the Building may be
changed from time to time in Landlord's sole discretion.
(r) No Merger. The voluntary or other surrender of this Lease by
---------
Tenant, or a mutual cancellation of this Lease by Landlord and Tenant, shall not
constitute a merger of Tenant's estate and Landlord's estate, and, at the option
of Landlord, shall either (i) terminate any or all existing subleases or
subtenancies or (ii) operate as an assignment to Landlord of any or all such
subleases or subtenancies.
(s) Light and Air. Tenant covenants and agrees that no diminution or
-------------
shutting off of light, air or view that may result from the erection of any
structure (whether or not by Landlord) on property adjacent to the Building, and
no closing or shutting off of any windows in the Premises or the Building as a
result of
-19-
The erection of all such structure, shall in anyway affect this Lease, entitle
Tenant to any reduction of rent hereunder or result in any liability of Landlord
to Tenant, of any type or nature whatsoever.
(t) Confidentiality. Tenant shall not disclose the terms of this Lease to
-----------------
any unrelated third party except as required in the normal course of Tenant's
business (e.g., if necessary to obtain financing).
(u) Landlord's Review. The review, approval, inspection or examination by
-----------------
Landlord of any item to be reviewed, approved, inspected or examined by Landlord
under the terms of this Lease or the attached exhibits shall not constitute the
assumption of any responsibility by Landlord for either the accuracy or the
sufficiency of any such item or the quality or suitability of such item for its
intended use. Any such review, approval, inspection or examination by Landlord
is for the sole purpose of protecting Landlord's interests in the Building and
under this Lease, and no third parties, including, without limitation, Tenant or
any person or entity claiming through or under Tenant, or the contractors,
agents, servants, employees, visitors or any such person or entity, shall have
any rights arising out of any such review, approval, inspection or-examination.
All improvements will be subject to permit and code compliance.
LANDLORD: PIAZZA TRADING & CO., LTD.
By
/s/ Signature
----------------------------
Its: General Manager
-----------------------
Date: 5-20-98
---------------------
TENANT: BIOMARIN PHARMACEUTICALS
By
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Its: Vice President Research
------------------------
Date: MAY 18, 1998
----------------------
ADDENDUM TO LEASE
BY AND BETWEEN
PIAZZA TRADING & CO., LTD., LANDLORD
AND
BIOMARIN PHARMACEUTICALS, TENANT
DATED MAY 18, 1998
1. POSSESSION: Upon execution of this agreement, and upon Tenant's
presentation to Landlord of Tenant's certificate of Liability Insurance
pursuant to Section 15 herein, Tenant shall be granted access to the
Premises to commence installation of Tenant's improvements to the Premises
and all the terms and conditions of this lease shall be in full force and
effect.
2. RENTAL ADJUSTMENT: On or before May 18, 1998, Tenant shall pay to Landlord
$14,858.00 as rent from May 18, 1998 to June 17, 1998. Thereafter, for the
balance of the first year of the lease term the monthly rent shall be
$14,853.00. Commencing June 1, 1999 and each subsequent June 1st thereafter
for the balance of the lease term the monthly rent payable shall adjust in
accordance with the percentage increase, if any, in the San Francisco-
Oakland-San ▇▇▇▇ Area "All Urban Consumers" Consumer Price Index. In no
event shall the adjustment decrease below the immediately preceeding years
rent.
3. CONDITION OF PREMISES: As a condition of Landlord leasing said Premises to
Tenant, Tenant agrees to lease the Premises in an "as is' condition and
repair, with the exception that Landlord represents to Tenant that the HVAC
is in good operating condition and repair as of the lease commencement
date.
4. TENANT IMPROVEMENT ALLOWANCE: As a condition of Tenant executing a lease
agreement Landlord shall provide Tenant with $23,460.00 Tenant Improvement
Allowance. Upon completion of the tenant improvements pursuant to Section 5
herein this Addendum to Lease, Tenant shall provide Landlord with written
notice of Tenant's completion and Landlord shall have the right to inspect
Tenant's work. Landlord shall pay Tenant 50 % of the total Tenant
Improvements ($11,730.00) within thirty (30) days of the lease commencement
date and the remaining ($11,730.00) within one hundred eighty (180) days of
lease commencement.
5. TENANT IMPROVEMENT PLAN: Tenant shall obtain Landlord's prior consent of
Tenant's improvement plan, which consent shall not be unreasonably
withheld, prior to Tenant commencing construction of its improvements to
the Premises. Landlord shall notify Tenant at the time of Landlord's
consent if Landlord wants all or part of the Tenant improvements removed
upon the expiration of the lease term. Tenant shall be responsible for all
Building Permits and Governmental Fees associated with Tenant's improvement
plan.
6. OPTION TO EXTEND: If the Tenant has fully and faithfully kept and performed
all of the terms, covenants and conditions of this Lease on the part of the
Tenant to be kept and performed, including the full and prompt payments of
all rental herein, then Tenant to be kept and performed, including the full
and prompt payments of all rental herein, then Tenant shall have the
right, at its option, to renew and extend this Lease for one (1)
additional
term of three (3) years, to begin at the expiration of the lease term,
provided Tenant gives written notice to Landlord of Tenant's intent to
exercise said option no earlier than twelve (12) months but not later than
six (6) months prior to the date of expiration of the term of this Lease.
The monthly rent for the option period shall be under the same terms and
conditions herein, and adjusted pursuant to Section 2 of this addendum.
All other terms and conditions of this lease shall remain in full force effect
except as amended herein.
LANDLORD- PIAZZA TRADING & CO., LTD. TENANT: BIOMARIN PHARMACEUTICALS
By /s/ Signature By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------- -----------------------------
Title: General Mgr. Title: Vice President Research
------------------------- -------------------------
Date: 5-20-98 Date: May 18, 1998
-------------------------- --------------------------
PROPERTY: ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Novato
HAZARDOUS MATERIALS WARNING: Current and future federal, state and local laws
and regulations may require the clean-up of such toxic, hazardous or undesirable
materials at the expense of those persons who in the past, present or future
have had any interest in the Property including, but not limited to, current,
past and future owners and users of the Property. Landlord and Tenant are
advised to consult with independent legal counsel of their choice or other
experts, to determine their potential liability.
AMERICANS WITH DISABILITIES ACT: On July 26, 1991, the federal legislation known
as the Americans with Disabilities Act (ADA) was signed into law. The purpose of
the ADA is to integrate persons with disabilities into the economic and social
mainstream of American life. Title III of the ADA applies to landlords and
tenants of "places of public accommodation" and "commercial facilities," and
requires that places of public accommodation undertake "readily achievable"
removal of communication and access barriers to the disabled. This requirement
of Title III of the ADA is effective January 26, 1992. Landlord and Tenant
should seek expert advice regarding the implications of the Act as it affects
this agreement.
LIABILITY RELEASE: Meridian Commercial, Inc., and its salespeople in this
transaction have no expertise regarding hazardous materials or the Americans
with Disabilities Act. Landlord and Tenant agree that they shall indemnify and
hold Meridian Commercial, Inc. and its salespeople harmless from any claim,
liability, or expense regarding hazardous materials or the ADA.
BROKER REPRESENTATION: Meridian Commercial, Inc., is the real estate broker for
the Landlord and the Tenant, and both Landlord and Tenant consent and
acknowledge herewith.
LANDLORD- PIAZZA TRADING & CO., LTD. TENANT: BIOMARIN PHARMACEUTICALS
By /s/ Signature By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------- ---------------------------
Title: General Mgr. Title: Vice President Research
------------------------ -----------------------
Date: 5-20-98 Date: May 18,1998
------------------------- ------------------------
BIOMARIN PHARMACEUTICAL INC.
Exhibit C
TENANT IMPROVEMENTS PLANNED FOR ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
We plan to expand the existing laboratory space into the adjacent vacant suite.
This will necessitate that we remove and/or move the existing office walls,
resurface some of the floor space, add two floor drains and add 2/3 partitions
around the perimeter. All of the laboratory area will be upgraded to strict drug
production standards required by the FDA making it extremely valuable property
in Marin county as there is currently has a shortage of good lab space. We
estimate that this facilities work will cost BioMarin about $300,000. An overall
renovation plan for the space is attached. We also may need to add a second HVAC
system, roof mounted, in order to provide adequate room ventilation. We
anticipate using no hazardous chemicals in the facilities and waste will be
strictly monitored as required by the FDA.
This will be a very clean operation which we feel will add significant value to
the property. As some of the modifications that we are planning will result in
permanent changes to the floor plan, utilities, plumbing, and ventilation
systems, if and when we do vacate the premises we will not be converting the
renovated space back to the existing office space configuration. Therefore the
owners of the building should consider the addition of this laboratory space as
a permanent modification to the building. Based on the current 100% occupancy
rate on similar laboratory space in Marin country we believe our renovations
will add considerable value to the property. When and if we move from the
facility we will agree however to remove all laboratory equipment.
Please let me know if you have any concerns or questions that have not been
addressed.
We agree to the above terms:
For BioMarin Pharmaceuticals For Piazza Trading Co.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ Signature
------------------------- ----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ General Mgr.
----------------------------
VP. Research
If we move prior to the beginning of the option term or if the lease terminates
early for any reason, we will reimburse for all costs in connection with de-
installation of the laboratory fixtures and equipment.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ TEL: ▇▇▇-▇▇▇-▇▇▇▇ FAX: 415-382-
7889
[PLAN APPEARS HERE]
AMENDMENT TO LEASE AGREEMENT
DATED MAY 18, 1998
BY & BETWEEN
PIAZZA TRADING & COMPANY., LTD., LANDLORD
AND
BIOMARIN PHARMACEUTICAL, INC., TENANT
DATED JULY 9, 1998
The following sections of the lease agreement by and between the Landlord and
Tenant referenced herein above shall be amended as follows:
Section 2: Rentable Area of Premises:
The rentable area of Tenant's Premises shall be increased
from 8,740 rentable square feet to 11,165 rentable square
feet.
Section 2 Suite: Commencing upon execution of this Amendment to Lease, Tenant
hereby leases from Landlord Suite 230 located at ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ hereinafter the
"Amended Premises".
Section 4: Possession:
Upon execution of this Amendment to Lease, Tenant hereby is
granted possession of the Amended Premises in its present
"as is" condition and repair, and the Landlord has no
obligations to improve the Premises.
Section 5: Rent Commencement:
Upon execution of this Amendment to Lease, Tenant shall pay
to Landlord the first month's rent for the Amended Premises
in the mount of $4,365.00.
Section 5: Monthly Base Rent:
The new monthly base rent payable by Tenant to Landlord
shall be $19,218.00 for the Premises as defined in the lease
by the parties herein dated May 18, 1998 and the Amended
Premises. Upon execution, of the Amendment, Tenant shall
deposit with Landlord an additional security deposit in the
amount of $4,365.00 which shall increase the security
deposit held by Landlord to $19,223.00
Section 6: Tenant's Share Expenses & Taxes:
35.17%
Section 7: Parking:
Thirty-one (31) unassigned and unreserved spaces.
All other terms and conditions of the Lease Agreement by and between the parties
herein dated May 18, 1998 shall remain in full force and effect except as
amended herein.
LANDLORD: PIAZZA TRADING & COMPANY, LTD. BY:
By: /s/ Signature
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Its: GEN. MGR.
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Date: AUG. 7 '98
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TENANT: BIOMARIN PHARMACEUTICAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Its: VP Research
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Date: July 16, 1998
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