Exhibit 10.8


EXECUTION VERSION


 


 


 


LEASE


 


by and between


 


BMR-6114-6154 Nancy Ridge Drive LLC,


a Delaware limited liability company,


as Landlord


 


and


 


Arena Pharmaceuticals, Inc.,


a Delaware corporation,


as Tenant


 


Building E:  6154 Nancy Ridge Drive, San Diego, CA

















TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Lease of Premises

  	
   

  	
  1

  
	
  2.

  	
   

  	
  Basic Lease Provisions

  	
   

  	
  1

  
	
  3.

  	
   

  	
  Term

  	
   

  	
  2

  
	
  4.

  	
   

  	
  Term Commencement Date and Possession

  	
   

  	
  2

  
	
  5.

  	
   

  	
  Rent

  	
   

  	
  2

  
	
  6.

  	
   

  	
  Rent Adjustments

  	
   

  	
  3

  
	
  7.

  	
   

  	
  Taxes

  	
   

  	
  3

  
	
  8.

  	
   

  	
  Security Deposit

  	
   

  	
  5

  
	
  9.

  	
   

  	
  Use

  	
   

  	
  7

  
	
  10.

  	
   

  	
  Brokers

  	
   

  	
  8

  
	
  11.

  	
   

  	
  Holding Over

  	
   

  	
  8

  
	
  12.

  	
   

  	
  Property Management Fee

  	
   

  	
  9

  
	
  13.

  	
   

  	
  Condition of Premises

  	
   

  	
  9

  
	
  14.

  	
   

  	
  Regulations and Parking Facilities

  	
   

  	
  10

  
	
  15.

  	
   

  	
  Utilities and Services

  	
   

  	
  10

  
	
  16.

  	
   

  	
  Tenant Improvements

  	
   

  	
  11

  
	
  17.

  	
   

  	
  Alterations

  	
   

  	
  13

  
	
  18.

  	
   

  	
  Repairs and Maintenance

  	
   

  	
  15

  
	
  19.

  	
   

  	
  Liens

  	
   

  	
  16

  
	
  20.

  	
   

  	
  Indemnification and Exculpation

  	
   

  	
  16

  
	
  21.

  	
   

  	
  Insurance; Waiver of Subrogation

  	
   

  	
  17

  
	
  22.

  	
   

  	
  Damage or Destruction

  	
   

  	
  19

  
	
  23.

  	
   

  	
  Eminent Domain

  	
   

  	
  21

  
	
  24.

  	
   

  	
  Defaults and Remedies

  	
   

  	
  22

  
	
  25.

  	
   

  	
  Assignment or Subletting

  	
   

  	
  25

  
	
  26.

  	
   

  	
  Attorneys’ Fees

  	
   

  	
  28

  
	
  27.

  	
   

  	
  Bankruptcy

  	
   

  	
  29

  
	
  28.

  	
   

  	
  Definition of Landlord

  	
   

  	
  29

  
	
  29.

  	
   

  	
  Estoppel Certificate

  	
   

  	
  29

  
	
  30.

  	
   

  	
  Purchase Option

  	
   

  	
  30

  
	
  31.

  	
   

  	
  Limitation of Landlord’s Liability

  	
   

  	
  33

  
	
  32.

  	
   

  	
  Premises Control by Landlord

  	
   

  	
  33

  
	
  33.

  	
   

  	
  Quiet Enjoyment

  	
   

  	
  34

  
	
  34.

  	
   

  	
  Subordination and Attornment

  	
   

  	
  34

  
	
  35.

  	
   

  	
  Surrender

  	
   

  	
  35

  
	
  36.

  	
   

  	
  Waiver and Modification

  	
   

  	
  35

  
	
  37.

  	
   

  	
  Waiver of Jury Trial and Counterclaims

  	
   

  	
  35

  
	
  38.

  	
   

  	
  Hazardous Materials

  	
   

  	
  36

  
	
  39.

  	
   

  	
  Miscellaneous

  	
   

  	
  37

  
	
  40.

  	
   

  	
  Option to Extend Term

  	
   

  	
  39

  
	
  41.

  	
   

  	
  Tenant’s Authority

  	
   

  	
  40

  
	
  41.

  	
   

  	
  Landlord’s Authority

  	
   

  	
  40

  
	
  42.

  	
   

  	
  Confidentiality

  	
   

  	
  40

  
	
  43.

  	
   

  	
  Odors and Exhaust

  	
   

  	
  40

  
	
  44.

  	
   

  	
  Excavation

  	
   

  	
  40

  



 
















LEASE


THIS LEASE (this “Lease”)
is entered into as of this 2nd day of May, 2007 (the “Execution Date”),
by and between BMR-6114-6154 Nancy
Ridge Drive LLC, a Delaware limited liability company (“Landlord”),
and Arena Pharmaceuticals, Inc., a Delaware corporation (“Tenant”).


RECITALS


A.                                   Landlord owns certain real property (the “Property”)
and the improvements thereon located at 6154 Nancy Ridge Drive, San Diego,
California, including the approximately 50,000 rentable square foot building
located thereon (the “Existing Building”) in which the Premises (as
defined below) are located;


B.                                     Tenant intends to construct an additional
building totaling approximately 75,000 rentable square feet on the Property and
related improvements which may include a parking structure (collectively, the “Expansion
Building” and, together with the Existing Building, the “Buildings”);


C.                                     Tenant may elect to construct additional
improvements totaling between approximately 18,000 and 36,000 rentable square
feet on the Property which may consist of expansion to the Existing Building or
the Expansion Building and an additional parking structure (collectively, the “Optional
Improvements”); and


D.                                    Landlord wishes to lease to Tenant, and
Tenant desires to lease from Landlord, the Premises (as defined below) pursuant
to the terms and conditions of this Lease, as detailed below.


AGREEMENT


NOW, THEREFORE, Landlord and
Tenant, in consideration of the mutual promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, agree as follows:


1.                                       Lease of Premises. 
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, as more particularly described on Exhibit A attached
hereto.  The Property and all
landscaping, parking facilities and other improvements and appurtenances
related thereto, including, without limitation, the Buildings and the Optional
Improvements, if any, are hereinafter collectively referred to as the “Premises.”


2.                                       Basic Lease Provisions.  For
convenience of the parties, certain basic provisions of this Lease are set
forth herein.  The provisions set forth
herein are subject to the remaining terms and conditions of this Lease and are
to be interpreted in light of such remaining terms and conditions.


2.1.                              This Lease shall take effect upon the date of
execution and delivery hereof by all parties hereto and, except as specifically
otherwise provided within this Lease, each of the provisions hereof shall be
binding upon and inure to the benefit of Landlord and Tenant from the date of
execution and delivery hereof by all parties hereto.  Notwithstanding anything to the contrary
contained in this Lease, the delivery of this Lease by each party hereto to the
other shall occur concurrently with, and as part of, the consummation of the
transactions contemplated by that certain Agreement of Purchase and Sale dated
as of March 21, 2007 (the “Purchase Agreement”).


2.2.                              Rentable Area of the Premises:  As of the Term Commencement Date, the
Rentable Area of the Premises is approximately 50,000 rentable square feet for
the Existing Building.


2.3.                              Initial monthly installment of Basic Annual
Rent for the Premises (“Basic Annual Rent”) as of the Term Commencement
Date shall be $133,109.07, subject to the rental adjustments provided in Article 6
hereof.


2.4.                              Term Commencement Date: May 2, 2007.


2.5.                              Term Expiration Date:  May 31, 2027.



 1
 









2.6.                              Security Deposit: An amount equal to
$133,109.07, which amount shall be increased in accordance with Section 8.1.


2.7.                              Permitted Use:  General office and/or laboratory use,
together with all manufacturing, research and development in connection with
such laboratory use, in conformity with Applicable Laws (as defined below) and
consistent with applicable zoning for the Premises.


	
  

  	
  2.8.

  	
   

  	
  Address for Rent Payment:

  	
   

  	
  BMR-6114-6154 Nancy Ridge Drive LLC

  
	
   

  	
   

  	
   

  	
   

  	
  17140 Bernardo Center Drive, Suite 222

  
	
   

  	
   

  	
   

  	
   

  	
  San Diego, California 92128

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Karen Sztraicher

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.9.

  	
   

  	
  Address for Notices to Landlord:

  	
   

  	
  BMR-6114-6154 Nancy Ridge Drive LLC

  
	
   

  	
   

  	
   

  	
   

  	
  17140 Bernardo
  Center Drive, Suite 222

  
	
   

  	
   

  	
   

  	
   

  	
  San Diego,
  California 92128

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: General
  Counsel/Real Estate

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.10.

  	
   

  	
  Address for Notices to Tenant:

  	
   

  	
  Arena Pharmaceuticals, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  6166 Nancy Ridge
  Drive

  
	
   

  	
   

  	
   

  	
   

  	
  San Diego,
  California 92121

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy to:

  	
   

  	
  Arena Pharmaceuticals, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  6166 Nancy Ridge
  Drive

  
	
   

  	
   

  	
   

  	
   

  	
  San Diego,
  California 92121

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: General
  Counsel

  



 


2.11.                        The following Exhibits are attached hereto
and incorporated herein by reference:


	
  

  	
  Exhibit A

  	
   

  	
  Premises

  
	
   

  	
  Exhibit B

  	
   

  	
  Acknowledgement of Term Commencement Date and Term Expiration
  Date

  
	
   

  	
  Exhibit C

  	
   

  	
  Rules and Regulations

  
	
   

  	
  Exhibit D

  	
   

  	
  Form of Estoppel Certificate

  
	
   

  	
  Exhibit E

  	
   

  	
  Form of Letter of Credit

  
	
   

  	
  Exhibit F

  	
   

  	
  Form of Notice of Exercise of Purchase Option

  



 


3.                                       Term.


3.1.                              This Lease shall take effect upon the date of
execution and delivery hereof by all parties hereto and, except as specifically
otherwise provided within this Lease, each of the provisions hereof shall be
binding upon and inure to the benefit of Landlord and Tenant from the date of
execution and delivery hereof by all parties hereto.


3.2.                              The actual term of this Lease (the “Term”)
shall be that period from the Term Commencement Date through the Term
Expiration Date, subject to earlier termination of this Lease as provided
herein.


4.                                       Term Commencement Date and Possession.


4.1.                              Tenant currently occupies and shall continue
to occupy the Premises on the Term Commencement Date.  Tenant and Landlord shall execute and deliver
to each other a written acknowledgement of the actual Term Commencement Date
and the Term Expiration Date within ten (10) days after the Term Commencement
Date, in the form attached as Exhibit B hereto.  Failure to execute and deliver such
acknowledgement, however, shall not affect the Term Commencement Date or
Landlord’s or Tenant’s liability hereunder.


5.                                       Rent.


5.1.                              Tenant shall pay to Landlord as Basic Annual
Rent for the Premises, commencing on the Term Commencement Date, the sum set
forth in Section 2.3, subject to the rental adjustments provided in
Article 6 hereof.  Basic
Annual Rent shall be paid in equal monthly 



 2
 









installments (as set forth in Section 2.3),
subject to the rental adjustments provided in Article 6 hereof,
each in advance on the first day of each and every calendar month during the
Term.


5.2.                              In addition to Basic Annual Rent, Tenant
shall pay to Landlord as additional rent (“Additional Rent”) at times
hereinafter specified in this Lease (a) amounts related to Insurance Costs and
Taxes (each as defined below) and (b) any other amounts that Tenant assumes or
agrees to pay under the provisions of this Lease that are owed to Landlord,
including, without limitation, any and all other sums that may become due by
reason of any default of Tenant or failure on Tenant’s part to comply with the
agreements, terms, covenants and conditions of this Lease to be performed by
Tenant, after notice and the lapse of any applicable cure periods.


5.3.                              Basic Annual Rent and Additional Rent shall
together be denominated “Rent.” 
Rent shall be paid to Landlord, without abatement, deduction or offset,
in lawful money of the United States of America at the office of Landlord as
set forth in Section 2.9 or to such other person or at such other
place as Landlord may from time to time designate in writing.  In the event the Term commences or ends on a
day other than the first day of a calendar month, then the Rent for such fraction
of a month shall be prorated for such period on the basis of a thirty (30) day
month and shall be paid at the then-current rate for such fractional month.


6.                                       Rent Adjustments.  The
Basic Annual Rent shall be subject to the following adjustments:


6.1.                              Annual Adjustment.  The
Basic Annual Rent shall be subject to an annual upward adjustment of two and
one-half percent (2.5%) of the then-current Basic Annual Rent.  The first such adjustment shall become
effective commencing with that monthly rental installment that is due on or
after the first (1st) anniversary of the Term Commencement Date,
and subsequent adjustments shall become effective on every successive
anniversary for so long as this Lease continues in effect.


6.2.                              Expansion Building: Basic Annual Rent
Increase.  In the event Tenant receives the Building E
Additional Purchase Price (as defined in Section 1.3.2 of the Purchase
Agreement), the monthly rental installment of Basic Annual Rent shall be
increased (effective as of the date Tenant receives the Building E Additional
Purchase Price) by the applicable amount set forth in Schedule 1
attached hereto (the “Basic Annual Rent Increase”), and the Basic Annual
Rent as so adjusted shall be subject to further rental adjustments as provided
in Section 6.1 hereof.


6.3.                              Building F Option: Basic Annual Rent
Reduction.  Pursuant to the Purchase Agreement, Tenant
assigned to Landlord Tenant’s existing option (the “Building F Option”)
to acquire that certain real property located at 6122, 6124 and 6126 Nancy Ridge
Drive, San Diego, California, including the approximately 68,000 rentable
square foot building located thereon (the “Building F Property”).  In the event: (a) Landlord elects not to
exercise the Building F Option as a result of any casualty loss or proceeding
in eminent domain in accordance with Section 1.2 of the Purchase
Agreement; and (b) Tenant pays Landlord the Building F Option Termination
Payment in accordance with Section 1.2 of the Purchase Agreement, the
monthly rental installment of Basic Annual Rent shall be reduced by the
applicable amount set forth in Schedule 2 attached hereto (the “Basic
Annual Rent Reduction”), and the Basic Annual Rent as so adjusted shall be
subject to further rental adjustments as provided in Section 6.1 hereof.


7.                                       Taxes.


7.1.                              Commencing with the Term Commencement Date
and continuing for each calendar year or, at Landlord’s option, tax year (each
such “tax year” being a period of twelve (12) consecutive calendar months for
which the applicable taxing authority levies or assesses Taxes), for the
balance of the Term, Tenant shall pay to Landlord the amount of all Taxes
levied and assessed for any such year upon the Premises.  “Taxes” shall mean all government
impositions including, without limitation, property tax costs consisting of
real and personal property taxes and assessments (including amounts due under
any improvement bond upon the Premises or any portion thereof, including the
parcel or parcels of real property upon which the Buildings are located or
assessments levied in lieu thereof) imposed by any federal, state, regional,
local or municipal governmental authority, agency or subdivision (each, a “Governmental
Authority”) on the Premises or improvements thereon, any tax on or measured
by gross rentals received from the rental of space in the Buildings (other than
gross receipt taxes assessed against Landlord based solely on Landlord’s
business entity structure), or tax based on 



 3
 









the square footage of the
Premises or the Buildings as well as any parking charges, utilities surcharges,
or any other costs levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations thereof, promulgated
by any Governmental Authority in connection with the use or occupancy of the Premises
or the parking facilities serving the Premises; any tax on this transaction or
this Lease; provided, however, that “Taxes” shall in no event
include any franchise or income tax or any tax based on net rentals received
from the rental of space in the Buildings. Any amount paid by Tenant for any
partial year of the Term shall be prorated on the basis of the number of days
of such partial year.  Payment shall be
made in the following manner:  Tenant
shall pay to Landlord the amounts owed under this Article 7 within
thirty (30) days after Landlord gives notice to Tenant of the amount of such
Taxes payable by Tenant (or not less than ten (10) days prior to delinquency,
whichever is later).  Landlord also shall
provide Tenant with a copy of the applicable tax bill or tax statement from the
relevant taxing authority. 
Notwithstanding the foregoing, if Applicable Laws allow any such Taxes
to be paid in installments, then Tenant may make such payments to Landlord in
installments, provided that each such installment shall be payable to
Landlord not less than ten (10) days prior to the date upon which payment of
the applicable installment to the taxing authority becomes delinquent.  In addition to any other amounts due from
Tenant to Landlord, if Tenant fails to pay Taxes to Landlord as herein
required, Tenant shall pay to Landlord the amount of any interest, penalties or
late charges imposed for late payment.  “Applicable
Laws” means all federal, state, municipal and local laws, codes,
ordinances, rules and regulations of Governmental Authorities, committees,
associations, or other regulatory committees, agencies or governing bodies
having jurisdiction over the Premises, Landlord or Tenant, including both
statutory and common law and hazard waste rules and regulations.


(a)                          If the Premises are separately assessed,
Tenant shall have the right, by appropriate proceedings, to protest or contest
in good faith any assessment or reassessment of Taxes, any special assessment,
or the validity of any Taxes or of any change in assessment or tax rate; provided,
however, that prior to any such challenge Tenant must either (i) pay to the
appropriate Governmental Authority the Taxes alleged to be due in their
entirety and seek a refund from the appropriate authority (which payment may be
under protest if payment under protest will not materially adversely affect
Landlord) or (ii) post a bond (or provide to Landlord other security acceptable
to Landlord) in an amount sufficient to ensure full payment of the Taxes,
including any potential interest, late charges and penalties.  Upon a final determination with respect to
any such contest or protest, Tenant shall promptly pay to the appropriate
Governmental Authority all sums found to be due with respect thereto.  In any such protest or contest, Tenant may
act in its own name, and at the request of Tenant, Landlord shall cooperate
with Tenant in any way Tenant may reasonably require in connection with such
contest or protest, including signing such documents as Tenant reasonably shall
request, provided that such cooperation shall be at no expense to
Landlord and shall not require Landlord to attend any appeal or other hearing
unless (x) such attendance is mandatory or reasonably determined by Tenant to
be reasonably required in order to materially increase the prospects of a
successful contest or protest, and (y) Tenant pays all costs and expenses of
Landlord’s appearance and fairly compensates Landlord for all time spent at
such appeal or hearing.  Any such contest
or protest shall be at Tenant’s sole expense (subject to reimbursement of such
expenses whenever Tenant prevails in such contest or protest but only to the
extent of available proceeds therefor from any portion of the refund that would
not have accrued to the benefit of Landlord absent Tenant’s protest or
contest), and if any penalties, interest or late charges become payable with
respect to the Taxes as a result of such contest or protest, Tenant shall pay
the same.


(b)                         If Tenant obtains a refund as the result of
Tenant’s protest or contest, and subject to Tenant’s obligation to pay Landlord’s
costs (if any) associated therewith, Tenant shall be entitled to such refund to
the extent it relates to the Premises during the Term.


7.2.                              Tenant shall be solely responsible for the
payment of any and all taxes levied upon personal property and trade fixtures
located upon the Premises, and shall pay the same at least ten (10) days prior
to delinquency.  Tenant shall have the
right by appropriate proceedings to protest or contest in good faith the
assessment or validity of any such taxes. 
Any such contest or protest shall be at Tenant’s sole expense.


7.3.                              If, at any time during the Term under the
laws of any Governmental Authority, a tax or excise on rent or any other tax
howsoever described is levied or assessed by any such political body against
Landlord on account of rentals payable to Landlord hereunder, such tax or 



 4
 









excise shall be considered “Taxes”
for the purposes of this Article 7. 
Notwithstanding the foregoing, “Taxes” shall not include any amount
assessed against Landlord as any local, state or federal income tax, including
any gross receipt taxes assessed against Landlord based solely on Landlord’s
business entity structure.


7.4.                              Within ten (10) business days after the end
of each calendar month, Tenant shall submit to Landlord an invoice, or, in the
event an invoice is not available, an itemized list, of all costs and expenses
paid by Tenant that (a) Tenant has incurred (either internally or by employing
third parties) during the prior month and (b) for which Tenant reasonably
believes it is entitled to reimbursements from Landlord pursuant to the terms
of this Lease; provided, however, in no event should this Section
7.4 apply to the Building E Additional Purchase Price.  Landlord shall pay to Tenant each invoiced
amount within twenty (20) days after Landlord’s receipt of the applicable
invoice unless Landlord, in good faith, disputes any obligation to pay the
invoice; provided, however, Landlord shall pay to Tenant any
undisputed portion of such invoice and shall notify Tenant in writing of those
portions of such invoice which Landlord disputes (the “Disputed Amounts”).  Upon resolution of any Disputed Amount, in a
manner in which Landlord is either determined to owe, or has agreed to pay, any
of the Disputed Amounts, then Landlord shall promptly pay to Tenant the amount
it is determined to owe or has agreed to pay, as applicable.


8.                                       Security Deposit.


8.1.                              Prior to the Term Commencement Date, Tenant
shall deposit with Landlord the sum set forth in Section 2.6 (the “Security
Deposit”), which sum shall be held by Landlord as security for the faithful
performance by Tenant of all of the terms, covenants and conditions of this
Lease to be kept and performed by Tenant during the Term of this Lease.  In addition, Tenant shall, within five (5)
days after any upward adjustment in the Basic Annual Rent pursuant to Section
6.2, deposit with Landlord, and the Security Deposit shall be increased by,
an amount equal to the increase in the monthly rental installment of the Basic
Annual Rent pursuant to Section 6.2. 
If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, any provision relating to the payment of Rent,
then Landlord may (but shall not be required to) use, apply or retain all or
any part of the Security Deposit for the payment of any Rent or any other sum
in default, or to compensate Landlord for any other loss or damage that
Landlord may suffer by reason of Tenant’s default.  If any portion of the Security Deposit is so
used or applied, then Tenant shall, within ten (10) days following demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount, and Tenant’s failure to do so shall be
a material breach of this Lease. 
Landlord shall not be required to keep this Security Deposit separate
from its general fund, and Tenant shall not be entitled to interest on the
Security Deposit.  The provisions of this
Article 8 shall survive the expiration or earlier termination of this
Lease.  TENANT HEREBY WAIVES THE
REQUIREMENTS OF SECTION 1950.7 OF THE CALIFORNIA CIVIL CODE, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, WHICH, AMONG OTHER THINGS, (a) ESTABLISH THE TIME
FRAME BY WHICH LANDLORD MUST REFUND A SECURITY DEPOSIT UNDER A LEASE, AND/OR
(b) PROVIDE THAT LANDLORD MAY CLAIM FROM THE SECURITY DEPOSIT ONLY THOSE SUMS
REASONABLY NECESSARY TO REMEDY DEFAULTS IN THE PAYMENT OF RENT, TO REPAIR
DAMAGE CAUSED BY TENANT OR TO CLEAN THE PREMISES.


8.2.                              In the event of bankruptcy or other
debtor-creditor proceedings against Tenant, the Security Deposit shall be
deemed to be applied first to the payment of Rent and other charges due
Landlord for all periods prior to the filing of such proceedings.


8.3.                              Landlord may deliver to any purchaser of
Landlord’s interest in the Premises the funds deposited hereunder by Tenant,
and thereupon Landlord shall be discharged from any further liability with
respect to such deposit.  This provision
shall also apply to any subsequent transfers.


8.4.                              The Security Deposit, or any balance thereof
after Landlord applies the Security Deposit to the payment of Rent or the
amount reasonably necessary to repair damage to the Premises caused by Tenant
or to compensate Landlord for any breach by Tenant, shall be returned to Tenant
(or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder)
within thirty (30) days after the later of: (a) the expiration or earlier
termination of this Lease so long as Tenant is not then in Default under this
Lease nor is any event then occurring which with 



 5
 









the giving of notice or the passage of time,
or both, would constitute a Default hereunder; or (b) the date that Tenant has
cured all such Defaults or prospective Defaults under this Lease.


8.5.                              The Security Deposit may be in the form of
cash, a letter of credit or any other security instrument acceptable to
Landlord in its sole discretion.  Tenant
may at any time, except during Default, deliver a letter of credit (the “L/C
Security”) as the entire Security Deposit, as follows.


(a)                          If Tenant elects to deliver L/C Security,
then Tenant shall provide Landlord, and maintain in full force and effect
throughout the Term, a letter of credit in substantially the form of Exhibit E
issued by any national bank that has (x) a branch office within San Diego
County where Landlord may present drafts under the L/C Security and (y) an
issuer reasonably satisfactory to Landlord, in the amount of the Security
Deposit, with an initial term of at least one year.  If, at the Term Expiration Date, any Rent
remains uncalculated or unpaid, then: 
(i) Landlord shall with reasonable diligence complete any necessary
calculations; (ii) Tenant shall extend the expiry date of such L/C
Security from time to time as Landlord reasonably requires; and (iii) in
such extended period, Landlord shall not unreasonably refuse to consent to an
appropriate reduction of the L/C Security. 
Tenant shall reimburse Landlord’s out-of-pocket legal costs not to
exceed the sum of Two Thousand Dollars ($2,000) in handling Landlord’s
acceptance of L/C Security or its replacement or extension, except with respect
to any replacement in accordance with subparagraph (d) of this Section 8.5.


(b)                         If Tenant delivers to Landlord satisfactory
L/C Security in place of the entire Security Deposit, Landlord shall promptly
remit to Tenant any cash Security Deposit Landlord previously held.


(c)                          Landlord may draw upon the L/C Security, and
hold and apply the proceeds in the same manner and for the same purposes as the
Security Deposit, if:  (i) an
uncured Default exists; (ii) as of the date 45 days before any L/C
Security expires (even if such scheduled expiry date is after the Term
Expiration Date) Tenant has not delivered to Landlord an amendment or
replacement for such L/C Security, reasonably satisfactory to Landlord,
extending the expiry date to the earlier of (1) the date two (2) months
after the then-current Term Expiration Date or (2) the date one year after
the then-current expiry date of the L/C Security; (iii) the L/C Security
provides for automatic renewals, Landlord asks the issuer to confirm the
current L/C Security expiry date, and the issuer fails to do so within ten (10)
business days; (iv) Tenant fails to pay (when and as Landlord reasonably
requires) any bank charges for Landlord’s transfer of the L/C Security;
(v) the issuer of the L/C Security ceases, or announces that it will
cease, to maintain an office within San Diego County where Landlord may present
drafts under the L/C Security; or (vi) upon the expiration or earlier
termination of this Lease, the conditions set forth in Section 8.4 have
not been satisfied, and the L/C Security expires in less than thirty (30)
days.  This paragraph does not limit any
other provisions of this Lease allowing Landlord to draw the L/C Security under
specified circumstances.


(d)                         Tenant shall not seek to enjoin, prevent, or
otherwise interfere with Landlord’s draw under L/C Security, even if it
violates this Lease.  Tenant acknowledges
that the only effect of a wrongful draw would be to substitute a cash Security
Deposit for L/C Security, causing Tenant no legally recognizable damage.  Landlord shall hold the proceeds of any draw
in the same manner and for the same purposes as a cash Security Deposit.  In the event of a wrongful draw, the parties
shall cooperate to allow Tenant to post replacement L/C Security simultaneously
with the return to Tenant of the wrongfully drawn sums, and Landlord shall upon
request confirm in writing to the issuer of the L/C Security that Landlord’s
draw was erroneous.


(e)                          If Landlord transfers its interest in the
Premises, then Tenant shall at Tenant’s expense, within fifteen (15) Business
Days after receiving a written request from Landlord, deliver (and, if the
issuer requires, Landlord shall consent to) an amendment to the L/C Security
naming Landlord’s grantee as substitute beneficiary.  If the required Security changes while L/C
Security is in force, then Tenant shall deliver (and, if the issuer requires,
Landlord shall consent to) a corresponding amendment to the L/C Security.


(f)                            Notwithstanding an election by Tenant during
the Term to substitute a cash Security Deposit for L/C Security, Tenant shall
nevertheless have the right to replace the



 6
 









L/C Security with a cash
Security Deposit, at Tenant’s sole cost and expense.  If Tenant delivers the cash Security Deposit
to Landlord in place of the L/C Security, Landlord shall promptly cancel or
surrender the L/C Security.  Tenant may
effect such substitutions on multiple occasions during the Term, provided
Tenant shall not effect such substitutions more than twice in any calendar
year.


9.                                       Use.


9.1.                              Tenant shall use the Premises for the
purposes set forth in Section 2.7 (or any one, or any combination of,
such purposes), and shall not use the Premises, or permit or suffer the
Premises to be used, for any other purpose without Landlord’s prior written
consent, which consent Landlord may withhold in its sole and absolute
discretion.


9.2.                              Tenant shall not use or occupy the Premises
in violation of Applicable Laws; zoning ordinances; or the certificate of
occupancy issued for the Buildings, and shall, upon five (5) days’ written
notice from Landlord, discontinue any use of the Premises if such use is in
violation of Applicable Law or declared or claimed by any Governmental
Authority having jurisdiction to be a violation of any of the above.  Tenant shall, at its sole cost and expense,
promptly and properly observe and comply with (including in the making by
Tenant of the any Alterations to the Premises): (a) all present and future
orders, regulations, directions, rules, laws, ordinances, and requirements of
all Governmental Authorities arising from the use or occupancy of, or
applicable to, the Premises or any portion thereof (except for any orders,
regulations, directions, rules, laws, ordinances or requirement that it is
contesting in accordance with this Section 9.2); and (b) any direction
of any Governmental Authority having jurisdiction that shall, by reason of the
nature of Tenant’s use or occupancy of the Premises, impose any duty upon
Tenant or Landlord with respect to the Premises or with respect to the use or
occupation thereof.    Tenant shall
comply with all safety, fire protection and evacuation procedures and
regulations established by any Governmental Authority.  Notwithstanding the foregoing, Tenant shall
not be obligated to comply with any declaration, direction or other
governmental rule or governmental action (a) whose application or validity is
being contested by Tenant diligently and in good faith by appropriate
proceedings if Tenant’s failure to comply therewith neither creates any
material risk of any financial liability or criminal sanction against Landlord
or the Premises, nor creates any material risk of damage to the Premises, nor
creates any risk to Landlord’s title to or rights in the Premises, or (b)
compliance with which shall have been excused or exempted by a nonconforming
use permit, waiver, extension or forbearance exempting it from such
declaration, direction or other governmental rule or governmental action.


9.3.                              Tenant shall not do or permit to be done
anything that will invalidate the cost of any fire, environmental, extended
coverage or any other insurance policy covering the Premises, and shall comply
with all rules, orders, regulations and requirements of the insurers of the
Premises, and Tenant shall promptly, upon demand, reimburse Landlord for any
additional premium charged for such policy by reason of Tenant’s failure to
comply with the provisions of this Article.


9.4.                              Tenant shall, upon termination of this Lease,
return to Landlord all keys to offices and restrooms either furnished to or
otherwise procured by Tenant.  In the
event any key so furnished to Tenant is lost, Tenant shall pay to Landlord the
cost of replacing the same or of changing the lock or locks opened by such lost
key if Landlord shall deem it necessary to make such change.


9.5.                              No awnings or other projections shall be
attached to any outside wall of the Buildings in violation of any Applicable
Laws.


9.6.                              Tenant shall, at Tenant’s sole cost and
expense, have the right to install legally permitted signage on the Premises
(including any building thereon) (“Signage”), which Signage shall be
subject to Landlord’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. 
Tenant shall keep the Signage in good condition and repair.  The size, design, and other physical aspects
of any sign shall be subject to Landlord’s written approval prior to
installation, which approval will not unreasonably be withheld, and shall
conform to all covenants, conditions, and restrictions encumbering the Premises
and all Applicable Laws. The cost of the sign(s), including but not limited to
the permitting, installation, maintenance and removal thereof shall be at
Tenant’s sole cost and expense. If Tenant fails to maintain its sign(s), or if
Tenant fails to remove such sign(s) upon termination of this Lease, or 



 7
 









fails to repair any damage caused by such
removal (including without limitation, painting the damaged portions of the
Buildings and any other portions of the Buildings that Landlord reasonably
determines in good faith shall be painted so that repainting the damaged
portion of the Buildings does not adversely affect the visual appearance of the
Buildings, if required by Landlord), Landlord may do so at Tenant’s expense.
Tenant shall reimburse Landlord within twenty (20) days after written demand
for all reasonable costs incurred by Landlord to effect such maintenance,
removal or repair, which amounts shall be deemed Additional Rent and shall
include without limitation, all sums disbursed, incurred or deposited by
Landlord, including Landlord’s costs, expenses and actual attorneys’ fees with
interest thereon.  Notwithstanding the
foregoing, Landlord has observed, and hereby approves, all existing signage on
the Premises, and all future repairs and replacements to such existing signage,
so long as such repairs and replacements: (a) are consistent with the size,
design, quality and other physical aspects of the existing signage, (b) are in
compliance with Applicable Laws, (c) are paid for at Tenant’s sole cost and
expense, and (d) do not adversely affect the visual appearance of the
Buildings.  In addition, Tenant shall
have the right to incorporate its company logo and trademarks as part of the
design of its Signage.


9.7.                              Tenant shall only place equipment within the
Premises with floor loading consistent with the structural design of the
Buildings without Landlord’s prior written approval, and such equipment shall
be placed in a location designed to carry the weight of such equipment.  If Tenant desires to place equipment within
the Premises that exceeds the floor loading consistent with the structural
design of the Buildings, Tenant shall make any structural enhancements
necessary to carry the weight of such equipment in accordance with the terms
and conditions of Article 17 hereof.


9.8.                              Tenant shall not (a) use or allow the
Premises to be used for unlawful purposes or (b) cause, maintain or permit any
waste in, on or about the Premises.


9.9.                              Notwithstanding any other provision herein to
the contrary but subject to Section 9.2 hereof, Tenant shall be
responsible for all liabilities, costs and expenses arising out of or in
connection with the compliance during the Term of the Premises with the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (together with
regulations promulgated pursuant thereto, the “ADA”).


10.                                 Brokers.


10.1.                        Tenant represents and warrants that it knows
of no other real estate broker or agent other than Antaeus Capital, Inc. (“Antaeus”)
/ Coastline Capital Partners (“Coastline Capital” and, together with
Antaeus, the “Brokers”), that is or might be entitled to a commission in
connection with this Lease.  Tenant shall
compensate Antaeus in relation to this Lease pursuant to a separate agreement
between Tenant and Antaeus, and it is Tenant’s understanding that Antaeus will
compensate Coastline Capital in relation to this Lease pursuant to a separate
agreement between Antaeus and Coastline Capital.  Landlord represents and warrants that it
knows of no other real estate broker or agent other than Brokers that is or
might be entitled to a commission in connection with this Lease.


10.2.                        Tenant and Landlord represent and warrant to
the other that no broker or agent has made any representation or warranty
relied upon by it in its decision to enter into this Lease, other than as
contained in this Lease.


10.3.                        Tenant acknowledges and agrees that the
employment of brokers by Landlord is for the purpose of solicitation of offers
of leases from prospective tenants and that no authority is granted to any
broker to furnish any representation (written or oral) or warranty from
Landlord unless expressly contained within this Lease.  Landlord is executing this Lease in reliance
upon Tenant’s representations, warranties and agreements contained within Sections
10.1 and 10.2, and Tenant is executing this Lease in reliance upon
Landlord’s representations, warranties and agreements contained within Sections 10.1
and 10.2.


11.                                 Holding Over.


11.1.                        If, with Landlord’s prior written consent,
Tenant holds possession of all or any part of the Premises after the Term,
Tenant shall become a tenant from month to month after the expiration or earlier
termination of the Term, and in such case Tenant shall continue to pay (a) 



 8
 









the Basic Annual Rent in accordance with Article 5,
as adjusted in accordance with Article 6, and (b) any amounts for
which Tenant would otherwise be liable under this Lease if the Lease were still
in effect, including, without limitation, payments for Taxes and
insurance.  Any such month-to-month
tenancy shall be subject to every other term, covenant and agreement contained
herein.


11.2.                        Notwithstanding the foregoing, if Tenant
remains in possession of the Premises after the expiration or earlier
termination of the Term without Landlord’s prior written consent, Tenant shall
become a tenant at sufferance subject to the terms and conditions of this
Lease, except that the per diem monthly rent shall be equal to: (a) for the
first three (3) months that Tenant remains in possession of the Premises after
the expiration or earlier termination of this Lease,  one hundred twenty-five percent (125%) of the
Basic Annual Rent in effect during the last thirty (30) days of the Term; and
(b) for any time thereafter that Tenant remains in possession of the Premises
after the expiration or earlier termination of this Lease, one hundred fifty
percent (150%) of the Basic Annual Rent in effect during the last thirty (30)
days of the Term.


11.3.                        Acceptance by Landlord of Rent after the
expiration or earlier termination of the Term shall not result in an extension,
renewal or reinstatement of this Lease.


11.4.                        The foregoing provisions of this Article 11
are in addition to and do not affect Landlord’s right of reentry or any other
rights of Landlord hereunder or as otherwise provided by Applicable Laws.


12.                                 Property Management Fee. 
Tenant shall pay to Landlord on the first day of each calendar month of
the Term, as Additional Rent, the “Property Management Fee,” which shall
equal one percent (1%) of the monthly installment of Basic Annual Rent then due
from Tenant.


13.                                 Condition of Premises.


13.1.                        Tenant acknowledges that immediately prior to
the Term Commencement Date, Tenant occupied the Premises, is familiar with the
condition of the Premises and accepts the entire Premises in its “as is”
condition with all faults, and Landlord makes no representation or warranty of
any kind with respect to the condition of the Premises or with respect to the
suitability of the Premises for the conduct of Tenant’s business, and Landlord
shall have no obligation to alter, repair or otherwise prepare the Premises for
Tenant’s occupancy or to pay for or construct any improvements to the Premises
other than, if required by Section 1.3.2 of the Purchase Agreement, the
Building E Additional Purchase Price.  It
is understood and agreed that Landlord is not obligated to install any
equipment, or make any repairs, improvements or Alterations to the Premises,
including the Tenant Improvements. 
Tenant’s possession of the Premises as of the Term Commencement Date
shall, except as otherwise agreed to in writing by Landlord and Tenant,
conclusively establish that the Premises were at such time in good, sanitary
and satisfactory condition and repair.


13.2.                        NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT LANDLORD IS LEASING THE
PREMISES “AS IS” AND “WHERE IS,” AND WITH ALL FAULTS AND THAT, LANDLORD IS
MAKING NO REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE QUALITY OR PHYSICAL
CONDITION OF THE PREMISES, THE INCOME OR EXPENSES FROM OR OF THE PREMISES, OR
THE COMPLIANCE OF THE PREMISES WITH APPLICABLE BUILDING OR FIRE CODES,
ENVIRONMENTAL LAWS OR OTHER LAWS, RULES, ORDERS OR REGULATIONS.  WITHOUT LIMITING THE FOREGOING, IT IS
UNDERSTOOD AND AGREED THAT LANDLORD MAKES NO WARRANTY WITH RESPECT TO THE
HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.  TENANT AGREES THAT IT ASSUMES
FULL RESPONSIBILITY FOR, AND THAT IT HAS HAD AN OPPORTUNITY TO PERFORM
EXAMINATIONS AND INVESTIGATIONS OF THE PREMISES, INCLUDING SPECIFICALLY,
WITHOUT LIMITATION, EXAMINATIONS AND INVESTIGATIONS FOR THE PRESENCE OF
ASBESTOS, PCBS AND OTHER HAZARDOUS SUBSTANCES, MATERIALS AND WASTES (AS THOSE
TERMS MAY BE DEFINED HEREIN OR BY APPLICABLE FEDERAL OR STATE LAWS, RULES OR
REGULATIONS) ON OR IN THE PREMISES. 
WITHOUT LIMITING THE FOREGOING, 



 9
 









TENANT IRREVOCABLY WAIVES ALL CLAIMS THAT
EXIST AS OF THE EXECUTION DATE AGAINST LANDLORD WITH RESPECT TO ANY
ENVIRONMENTAL CONDITION, INCLUDING CONTRIBUTION AND INDEMNITY CLAIMS, WHETHER
STATUTORY OR OTHERWISE.  TENANT ASSUMES
FULL RESPONSIBILITY (AS BETWEEN LANDLORD AND TENANT) FOR ALL COSTS AND EXPENSES
REQUIRED TO CAUSE THE PREMISES TO COMPLY WITH ALL APPLICABLE BUILDING AND FIRE
CODES, MUNICIPAL ORDINANCES, ENVIRONMENTAL LAWS AND OTHER LAWS, RULES, ORDERS,
AND REGULATIONS.


14.                                 Regulations and Parking Facilities.


14.1.                        Tenant shall faithfully observe and comply
with the rules and regulations attached hereto as Exhibit C, together with such other reasonable and
nondiscriminatory rules and regulations as are hereafter promulgated by
Landlord in its reasonable discretion (the “Rules and Regulations”).  During the Term, Landlord shall not
promulgate any rules and regulations that (a) have a material adverse effect on
Tenant’s use or occupancy of the Premises, or (b) materially increase Tenant’s
costs under this Lease, without Tenant’s prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed.


14.2.                        Tenant shall have a non-exclusive license to
use all parking facilities located on the Premises during the Term except to
the extent of any covenants, conditions and restrictions existing as of the
Execution Date providing for rights in favor of others to use the parking
facilities in common with Tenant. 
Landlord shall not use or grant a license or any other right to use the
parking facilities located on the Premises to any person or entity (other than
Tenant pursuant to the terms and conditions of this Lease and any Required
Lease (as defined below)).


14.3.                        Landlord reserves the right to subdivide the
real property; provided, however, that such right shall be exercised in a way
that does not materially adversely affect Tenant’s beneficial use and occupancy
of the Premises in any way whatsoever, including Tenant’s Permitted Use and
Tenant’s access to the Premises and use of parking facilities serving the
Premises.


15.                                 Utilities and Services.


15.1.                        Tenant shall, at Tenant’s sole cost and
expense, hire contractors and procure and maintain contracts, in customary form
and substance for, and with contractors adequately qualified and experienced in
the maintenance of the following equipment and improvements, if and when
installed on the Premises (a) HVAC equipment, (b) boilers and pressure vessels,
(c) fire extinguishing systems, including fire alarm and smoke detection
devices, (d) landscaping and irrigation systems (to the extent not maintained
by the owners’ association), (e) roof coverings and drains, (f) clarifiers, (g)
basic utility feeds to the perimeter of the Buildings (except to the extent the
owner’s association, City of San Diego or applicable utility provider is
responsible for such maintenance) and (h) any other equipment reasonably
required by Landlord; provided, however, Tenant may provide such maintenance
using its own personnel so long as it hires personnel with adequate experience
and qualifications in maintaining such equipment.  Tenant shall deliver to Landlord copies of
any such contracts that contemplate total expenditures for such services of One
Hundred Thousand Dollars ($100,000) or more.  
Notwithstanding the foregoing, in the event Tenant fails either to
maintain the contracts required under this Section 15.1 or to employ
experienced and qualified personnel, Landlord reserves the right, upon three
(3) days prior written notice to Tenant, to procure and maintain any such
contracts which Tenant has failed to maintain, and if Landlord so elects,
Tenant shall reimburse Landlord, upon demand, for the actual documented costs
thereof.


15.2.                        Within sixty (60) days after the Term
Commencement Date, and within sixty (60) days after the beginning of each
calendar year during the Term, Landlord shall give Tenant a good faith written
estimate for such calendar year of the cost of insurance provided by Landlord,
in connection with the Premises (“Insurance Costs”), and any repair and
maintenance expenses Landlord incurs pursuant to Section 18.4 (“Landlord’s
Maintenance Costs”).  Such written
estimate shall be consistent with then prevailing expenses in the applicable
industries and reflect allowable expenditures by Landlord pursuant to this
Lease.  Tenant shall pay such estimated
amount to Landlord in advance in equal monthly installments. Within ninety (90)
days after the end of each calendar year, Landlord shall furnish to Tenant a statement
showing in reasonable detail the Insurance Costs and Landlord’s Maintenance
Costs incurred by Landlord during such 



 10
 









year (the “Annual Statement”), and
Tenant shall pay to Landlord the Insurance Costs and Landlord’s Maintenance
Costs incurred in excess of the payments previously made by Tenant within ten
(10) days of receipt of the Annual Statement. 
In the event that the payments previously made by Tenant for Insurance
Costs and Landlord’s Maintenance Costs exceed Tenant’s obligation, such excess
amount shall be credited by Landlord to the Rent or other charges next due and
owing, provided that, if the Term has expired, Landlord shall promptly
remit such excess amount to Tenant.


15.3.                        Tenant shall make all arrangements for and
pay for all water, electricity, air, sewer, refuse, gas, heat, light, power,
telephone service and any other service or utility Tenant requires at the
Premises.  Landlord shall cooperate with
Tenant, at Tenant’s sole cost and expense, in its arrangements for such
services and utilities and shall use commercially reasonable efforts to avoid
impeding the continued provision of such services and utilities to the Premises
in any way.  Landlord shall not be liable
for, nor shall any eviction of Tenant result from, the unintentional failure
(unless such failure is caused by Landlord’s willful misconduct or gross
negligence), or Landlord’s inability, to furnish any utility or service,
whether or not such failure is caused by accident; breakage; repair; strike,
lockout or other labor disturbance or labor dispute of any character; act of
terrorism; shortage of materials, which shortage is not unique to Landlord or
Tenant, as the case may be; or governmental regulation, moratorium or other
governmental action (collectively, “Force Majeure”).  In the event of such failure, Tenant shall
not be entitled to termination of this Lease, any abatement or reduction of
Rent, or relief from the operation of any covenant or agreement of this
Lease.  Tenant shall pay for, prior to
delinquency of payment therefor, any utilities and services that may be
furnished to the Premises during or, if Tenant occupies the Premises after the
expiration or earlier termination of the Term, after the Term.


15.4.                        Tenant shall not, without Landlord’s prior
written consent, use any device in the Premises that will in any way increase
the amount of ventilation, air exchange, gas, steam, electricity or water
beyond the then existing capacity of the Buildings.


16.                                 Tenant Improvements.


16.1.                        Tenant Improvements. Tenant shall have the right at any time,
and from time to time during the Term, to construct the Expansion Building and
the Optional Improvements on the Premises (collectively, the “Tenant
Improvements”), as Tenant shall deem necessary or desirable, which Tenant
Improvements shall be made in compliance with the requirements described in
this Article 16; provided, however, any Optional
Improvements to the Existing Building shall be made in compliance with the
requirements set forth in Article 17. Tenant shall be solely responsible
for all costs and expenses in connection with any Tenant Improvements
constructed on the Premises at no cost to Landlord other than, if required by Section
1.3.2 of the Purchase Agreement, the Building E Additional Purchase Price.
Tenant shall reimburse Landlord for any extra expenses incurred by Landlord
during the Term by reason of faulty work done by Tenant or its architects or
contractors in connection with any of the Tenant Improvements.  Landlord will reasonably cooperate with
Tenant’s obtaining of approvals from Governmental Authorities including
providing letters of permission, consent letters, applications and similar
authorizations.  Upon payment of the
Building E Additional Purchase Price, all Tenant Improvements shall (a) become
part of the Premises and the property of Landlord, (b) remain upon and be
surrendered with the Premises as a part thereof, and (c) remain on the Premises
and not be removed by Tenant at any time during the Term, other than items that
Tenant replaces with a comparable item of equal quality and quantity as existed
as of the time of such removal.


16.2.                        Plans.  Tenant’s architect, Smith
Consulting Architects, or such other architect who is reasonably acceptable to
Landlord, shall be responsible for the preparation of plans for such Tenant
Improvements (the “Plans”). 
Tenant shall prepare and submit to Landlord for Landlord’s approval the
Plans.  Landlord shall notify Tenant in
writing within seven (7) days after receipt of the Plans whether Landlord
approves or objects to the Plans and (in a reasonably detailed description) of
the manner, if any, in which the Plans are objectionable.  If Landlord objects to the Plans, then Tenant
shall revise the Plans and cause Landlord’s permissible objections (based on
the allowable grounds for such objections described in this Section 16.2)
to be remedied in the revised Plans to Landlord. Landlord shall not withhold
its approval to the Plans unless the Tenant Improvements to be constructed in
accordance with such Plans: (a) create a foreseeable risk of violating any Law,
including zoning ordinances; (b) violate any recorded document affecting the
Premises; provided that during the Term, Landlord shall not record any document
affecting the Premises which has (or will have in the event Tenant 



 11
 









exercises the Purchase Option and acquires
the Premises) a material adverse effect on Tenant’s use or occupancy of the
Premises without Tenant’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed; (c) are not reasonably
consistent with the architecture and overall design of comparable office
buildings in the surrounding Sorrento Mesa/Sorrento Valley area; (d) are not at
least equivalent to the then existing quality of the Existing Building and
other office buildings in the vicinity of the Buildings; (e) involves a use of
the Premises that is inconsistent with the Permitted Use of the Premises; or
(f) are reasonably expected to reduce the value of the Existing Building or the
Premises (each, a “Tenant Improvement Design Problem”).  Landlord’s approval of, or objection to, the
revised Plans and Tenant’s correction of the same shall be in accordance with
this Section 16.2 until Landlord has approved the Plans in writing.  The iteration of the Plans that is approved
by Landlord without objection shall be referred to herein as the “Approved
Plans.”


16.3.                        Changes.  Any changes to the Approved
Plans (each, a “TI Change”) requested by Tenant which causes a Tenant
Improvement Design Problem shall be subject to the written approval of
Landlord, which approval shall not be unreasonably withheld or delayed.


16.4.                        Landlord’s Approval. 
Landlord shall respond to all requests for consents, approvals or
directions made by Tenant pursuant to this Section 16 within seven (7)
days following Landlord’s receipt of such request.  If Landlord fails to respond within such
seven (7) days period, then Tenant shall provide Landlord with a second written
notice stating that “Landlord’s failure to respond within three (3) days after
Tenant’s second notice shall be deemed approval by Landlord,” and if Landlord
does not respond within such three (3) day period, then Landlord shall be
deemed to have approved such item.


16.5.                        Construction of Tenant Improvements. Tenant covenants and agrees that all work
done by Tenant or Tenant’s contractors in connection with such Tenant
Improvements shall be performed: (a) by licensed contractors (unless done by
qualified employees of Tenant); (b) in a good and workmanlike manner; and (c)
in full compliance with Applicable Laws. Tenant shall require its contractors
and subcontractors performing such Tenant Improvements to name Landlord and its
affiliates and lenders as additional insureds on their respective insurance
policies.


16.6.                        Completion of Tenant Improvements. 
Tenant shall complete such Tenant Improvements in all respects in
accordance with the provisions of this Lease. 
The applicable Tenant Improvements shall be deemed completed at such
time as Tenant shall furnish to Landlord:


(a)                                        A certificate of occupancy from the City of
San Diego for such Tenant Improvements;


(b)                                       Either (i) a final unconditional waiver of
liens from each contractor and any other individual or entity for whom payment
is requested in connection with such Tenant Improvements and their respective
subcontractors, if any (other than contractors and any other individuals or
entities and their respective subcontractors, if any, requesting payment of
less than One Thousand Five Hundred Dollars ($1,500)), in the form prescribed
by Section 3626 of the California Civil Code which provides that such
individual or entity, as applicable, unconditionally waives and releases all
mechanics’ liens and other similar encumbrances, stop notices and bond rights
with respect to all work performed by such individual or entity, as applicable
(the “Building E Unconditional Waiver”),
except to the extent Tenant does not receive any unconditional waivers of liens
from any contractors and other individuals or entities and their respective
subcontractors, if any, for whom payment is requested in connection with such
work and the lien period has lapsed without any such contractors or other
individuals or entities and their respective subcontractors, if any, recording
mechanics liens; or (ii) Tenant posts a bond in an amount sufficient to ensure
full payment of any mechanic’s liens and other similar encumbrances for which
Landlord has not received a Building E Unconditional Waiver, including any
potential interest, late charge or penalties;


(c)                                        All other certifications and approvals with
respect to such Tenant Improvements that may be required from any Governmental
Authority and any board of fire underwriters or similar body for the use and
occupancy of the Expansion Building;



 12
 









(d)                                         Complete “as-built” drawing print sets and
electronic CADD files on disc showing such Tenant Improvements to the extent
Tenant obtains such files (or files in such other format as Tenant maintains
for its records);


(e)                                        Upon Landlord’s request, documentation
showing the amounts expended by Tenant with respect to such Tenant Improvements,
together with supporting documentation reasonably acceptable to Landlord; and


(f)                                          A Certificate of Substantial Completion in
the form of the American Institute of Architects document G704, or such other
form reasonably approved by Landlord, executed by the project architect and the
general contractor.


17.                                 Alterations.  


17.1.                        Subject to Article 16, Tenant shall,
at Tenant’s sole cost and expense, have the right at any time, and from time to
time during the Term, to make such Alterations (as defined below) to the
Buildings, and improvements and fixtures hereafter erected on the Premises,
including, without limitation, solar panels on the roof of the Existing
Building, as Tenant shall deem necessary or desirable in connection with the
requirements of its business, which Alterations (other than Alterations of
Tenant’s movable trade fixtures and equipment) shall be made in compliance with
the requirements described in this Article 17; provided, however,
the Tenant Improvements (other than any Optional Improvements to the Existing
Building) shall be made in compliance with the requirements of Article 16.  Tenant shall make no alterations, additions
or improvements in or to the Premises or engage in any construction,
demolition, reconstruction, renovation, or other work of any kind in, at, or
serving the Premises (“Alterations”) without Landlord’s prior written
approval, which approval Landlord may withhold in its sole and absolute
discretion in connection with any Alteration that: (a) adversely affects the
exterior appearance of the Buildings or the Premises; (b) adversely affects the
structural aspects of the Buildings, including, without limitation, the roof, foundation, load bearing walls and structural
elements of the Premises; (c) adversely affects any base-building system or equipment, including, without
limitation, the base building HVAC, mechanical, electrical, plumbing or life
safety systems; (d) violates any Applicable Law; (e) violates any recorded
document affecting the Premises; provided that during the Term, Landlord shall
not record any document affecting the Premises which has (or will have in the
event Tenant exercises the Purchase Option and acquires the Premises) a
material adverse effect on Tenant’s use or occupancy of the Premises without
Tenant’s prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed; (f) causes the Buildings to be inconsistent
with the then existing quality of the Buildings and other office buildings in
the vicinity of the Buildings; (g) involves a use of the Premises that is
inconsistent with the Permitted Use of the Premises; or (h) reduces the value
of the Buildings or the Premises (each, a “Design Problem”).


17.2.                        Notwithstanding the foregoing, Tenant may
make non-structural Alterations to the Premises (“Acceptable Changes”) upon at least ten (10) business days
prior written notice to Landlord but without Landlord’s prior consent provided
(a) the Acceptable Changes do not involve Design Problems; and (b) the cost of
such Acceptable Changes do not exceed Seventy-Five Thousand Dollars ($75,000)
per occurrence or an aggregate amount of One Hundred Seventy-Five Thousand
Dollars ($175,000) in any twelve (12) month period; provided, however,
Tenant shall not be required to provide Landlord any notice in connection with
any non-structural Alterations in any twelve (12) month period where the total
combined cost of such non-structural Alterations do not exceed Twenty Thousand
Dollars ($20,000).


17.3.                        If Landlord’s approval of proposed Alterations
is required, Tenant shall provide Landlord, at least ten (10) days in advance
of any proposed construction, with plans, specifications, bid proposals, work
contracts, requests for laydown areas and such other information concerning the
nature and cost of the Alterations as Landlord may reasonably request.  If Landlord’s approval of the proposed
Alterations is required, Landlord shall notify Tenant in writing within ten
(10) business days after receipt of the applicable plans, whether Landlord has approved
or disapproved the plans (and, in the case of disapproval, shall provide a
detailed explanation of the reason(s) for disapproval).  If Landlord’s approval of proposed
Alterations is not required, Tenant shall (a) give Landlord at least ten (10)
business days’ prior written notice of the proposed commencement of such
proposed Alterations, and (b) a copy of the applicable plans upon Landlord’s
written request after Tenant’s completion of the Alterations.



 13
 









17.4.                        Tenant shall not construct or permit to be
constructed partitions or other obstructions in a manner that will interfere
with free access to mechanical installation or service facilities of the
Buildings.


17.5.                        Tenant shall accomplish any work performed on
the Premises in such a manner as to permit any fire sprinkler system and fire
water supply lines to remain fully operable at all times, unless such
interruption in service is temporary and commercially reasonable arrangements
are made for the provision of temporary services, all in accordance with
Applicable Laws and the applicable insurance policies.


17.6.                        Tenant covenants and agrees that all work
done by Tenant or Tenant’s contractors shall be performed in full compliance
with Applicable Laws.  Within thirty (30)
days after completion of any Alterations, Tenant shall provide Landlord, to the
extent available, with complete “as-built” drawing print sets and electronic
CADD files on disc (or files in such other current format in common use as
Landlord reasonably approves or requires) showing any changes in the Premises.


17.7.                        All Alterations shall (a) unless, prior to
such construction or installation Landlord elects otherwise, become the
property of Landlord upon the expiration or earlier termination of the Term,
(b) remain upon and be surrendered with the Premises as a part thereof, and (c)
remain on the Premises and not be removed by Tenant at any time during the
Term, other than items that Tenant replaces with a comparable item of equal
quality and quantity as existed as of the time of such removal.  The Premises shall at all times remain the property of
Landlord and shall be surrendered to Landlord upon the expiration or earlier
termination of this Lease.  Subject to
the first sentence of this Section 17.7, the Tenant’s Personal Property,
whether owned by Tenant or leased by Tenant from a
lessor/owner (the “Owner/Secured Party”), shall be and remain the
property of Tenant or any such Owner/Secured Party and may be removed by Tenant
or any such Owner/Secured Party at any time. 
Tenant shall promptly repair any damage to the Property caused by the
removal of Tenant’s Personal Property. 
The Premises shall at all times remain the property of Landlord and
shall be surrendered to Landlord upon the expiration or earlier termination of
this Lease.


17.8.                        Tenant shall repair any damage to the
Premises caused by Tenant’s removal of any property from the Premises.  During any such restoration period, Tenant
shall pay Rent to Landlord as provided herein as if said space were otherwise
occupied by Tenant.  The provisions of
this Section shall survive the expiration or earlier termination of this Lease.


17.9.                        If Tenant shall fail to remove any of its
effects from the Premises prior to termination of this Lease, then Landlord
may, at its option, remove the same in any manner that Landlord shall choose
and store said effects without liability to Tenant for loss thereof or damage
thereto, and Tenant shall pay Landlord, upon demand, any costs and expenses
incurred due to such removal and storage or Landlord may, at its sole option
and without notice to Tenant, sell such property or any portion thereof at
private sale and without legal process for such price as Landlord may obtain
and apply the proceeds of such sale against any (a) amounts due by Tenant to
Landlord under this Lease and (b) any expenses incident to the removal, storage
and sale of said personal property.


17.10.                  Notwithstanding any other provision of this Article 17
to the contrary, in no event shall Tenant remove any improvement from the
Premises as to which Landlord directly contributed payment without Landlord’s
prior written consent, unless Tenant replaces such improvement with
improvements having equal or greater value than those removed, as reasonably
determined by, and subject to the prior written approval of, Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.


17.11.                  Upon Landlord’s written request, within sixty
(60) days after final completion of any Alterations performed by Tenant with
respect to the Premises, Tenant shall submit to Landlord documentation showing
the amounts expended by Tenant with respect to such Alterations, together with
supporting documentation reasonably acceptable to Landlord.


17.12.                  Tenant shall reimburse Landlord for any extra
expenses incurred by Landlord during the Term by reason of faulty work done by
Tenant or its contractors.



 14
 









17.13.                  Tenant shall require its contractors and
subcontractors performing work on the Premises to name Landlord and its
affiliates and lenders as additional insureds on their respective insurance
policies.


18.                                 Repairs and Maintenance.


18.1.                        Tenant, at its sole cost and expense, shall
maintain and keep the Premises, all improvements thereon, and all appurtenances
thereto, including but not limited to sidewalks, parking areas, curbs, roads,
driveways, lighting standards, landscaping, sewers, water, gas and electrical
distribution systems and facilities, drainage facilities, and all signs, both
illuminated and non-illuminated that are now or hereafter on the Premises, in
good condition (ordinary wear and tear excepted) and in a manner consistent
with the Permitted Use provided, however, Tenant shall not be required to
maintain any of the foregoing to the extent such maintenance is the
responsibility of an owners’ association, City of San Diego or any utility
provider.  Tenant shall make all repairs,
replacements and improvements, including, without limitation, all structural,
roof, HVAC, plumbing and electrical repairs, replacements and improvements
required, and shall keep the same free and clear from all rubbish and
debris.  All repairs made by Tenant shall
be at least equal in quality to the original work, and shall be made only by a
licensed, bonded contractor approved in advance by Landlord (which shall not be
unreasonably withheld, conditioned or delayed); provided, however,
Tenant may make such repairs using its own personnel so long as it hires
personnel with adequate experience and qualifications in performing such work; provided,
further, that such contractor or qualified personnel need not be bonded
or approved by Landlord if the Alterations, repairs, additions or improvements
to be performed do not exceed Seventy-Five Thousand Dollars ($75,000) per
occurrence or an aggregate amount of One Hundred Seventy-Five Thousand Dollars
($175,000) in any twelve (12) month period. 
Tenant shall not take or omit to take any action, the taking or omission
of which shall cause waste, damage or injury to the Premises, ordinary wear and
tear excepted.


18.2.                        Tenant shall, and shall cause Tenant’s
contractors or agents to, maintain the lines designating the parking spaces in
good condition and paint the same as often as may be necessary, so that they
are discernable at all times; resurface the parking areas as necessary to
maintain them in good condition; paint any exterior portions of the Buildings
as necessary to maintain them in good condition; maintain the roof and
landscaping in good condition; maintain sight screens, barricades or enclosures
around any waste or storage areas; and take all reasonable precautions to
insure that the drainage facilities of the roof are not clogged and are in good
and operable condition at all times; provided, however, Tenant shall not be
required to maintain any of the foregoing that are the responsibility of any
Governmental Authority or an owners’ association to maintain.


18.3.                        There shall be no abatement of Rent and no
liability of Landlord by reason of any injury to or interference with Tenant’s
business arising from the making of any repairs, Alterations or improvements in
or to any portion of the Premises, or in or to improvements, fixtures,
equipment and personal property therein unless such damage is caused by
Landlord or its agents’ gross negligence or willful misconduct.


18.4.                        Landlord shall not be required to maintain or
make any repairs or replacements of any nature or description whatsoever to the
Premises.  Except for repairs arising as
a result of damage caused by Landlord or its agents’ gross negligence or
willful misconduct, Tenant hereby expressly waives the right to make repairs at
the expense of Landlord as provided for in any Applicable Laws in effect at the
time of execution of this Lease, or in any other Applicable Laws that may
hereafter be enacted, and waives its rights under Applicable Laws relating to a
landlord’s duty to maintain its premises in a tenantable condition.  Notwithstanding the foregoing, if Tenant
shall fail during the Term, after reasonable notice, to maintain or to commence
and thereafter to proceed with diligence to make any repair required of it
pursuant to the terms of this Lease, Landlord, without being under any
obligation to do so and without thereby waiving such default by Tenant, may so
maintain or make such repair and may charge Tenant for the costs thereof.  Any expense reasonably incurred by Landlord
in connection with the making of such repairs may be billed by Landlord to
Tenant monthly or, at Landlord’s option, immediately, and shall be due and
payable within twenty (20) days after such billing or, at Landlord’s option,
may be deducted from the Security Deposit.


18.5.                        During the Term, Landlord and Landlord’s
agents shall have the reasonable right to enter upon the Premises or any
portion thereof for the purposes of performing any repairs or 



 15
 









maintenance Landlord is
permitted to make pursuant to this Lease, and of ascertaining the condition of
the Premises or whether Tenant is observing and performing Tenant’s obligations
hereunder, all without unreasonable interference from Tenant or Tenant’s
Agents.  Except for emergency maintenance
or repairs, the right of entry contained in this paragraph shall be exercisable
at reasonable times, at reasonable hours and on reasonable notice in compliance
with Section 32.3 hereof, conducted in a manner that protects Tenant’s
intellectual property and does not unreasonably interfere with Tenant’s
business.


18.6.                        Tenant shall, upon the expiration or sooner
termination of the Term, surrender the Premises to Landlord in as good of a
condition as when received, ordinary wear and tear and casualty excepted.  Landlord shall have no obligation to alter,
remodel, improve, repair, decorate or paint the Premises or any part thereof.


18.7.                        This Article 18 relates to
repairs and maintenance arising in the ordinary course of operation of the
Premises and any related facilities.  In
the event of fire, earthquake, flood, vandalism, war, terrorism, natural
disaster or similar cause of damage or destruction, Article 22
shall apply in lieu of this Article 18.


19.                                 Liens.


19.1.                        Subject to the immediately succeeding
sentence Tenant shall keep the Premises free from any liens arising out of work
performed, materials furnished or obligations incurred by Tenant.  Tenant further covenants and agrees that any
mechanic’s lien filed against the Premises for work claimed to have been done
for, or materials claimed to have been furnished to, shall be discharged or
bonded by Tenant within twenty (20) days after the filing thereof, at Tenant’s
sole cost and expense.


19.2.                        Should Tenant fail to discharge or bond
against any lien of the nature described in Section 19.1, Landlord may,
at Landlord’s election, pay such claim or post a bond or otherwise provide
security to eliminate the lien as a claim against title, and Tenant shall
within twenty (20) days, reimburse Landlord for the costs thereof as Additional
Rent.


19.3.                        In the event that Tenant leases or finances
the acquisition of office equipment, furnishings or other personal property of
a removable nature utilized by Tenant in the operation of Tenant’s business,
Tenant warrants that any Uniform Commercial Code financing statement executed
by Tenant shall, upon its face or by exhibit thereto, indicate that such
financing statement is applicable only to removable personal property of Tenant
located within the Premises.  In no event
shall the address of the Premises be furnished on a financing statement without
qualifying language as to applicability of the lien only to removable personal
property located within the Premises. 
Should any holder of a financing statement executed by Tenant record or
place of record a financing statement that appears to constitute a lien against
any interest of Landlord or against equipment that may be located other than
within an identified suite leased by Tenant, Tenant shall, within twenty (20)
days after filing such financing statement, (a) cause a copy of the lender
security agreement or other documents to which the financing statement pertains
to be furnished to Landlord to facilitate Landlord’s ability to demonstrate
that the lien of such financing statement is not applicable to Landlord’s
interest and (b) take commercially reasonable efforts to cause Tenant’s lender
to amend such financing statement and any other documents of record to clarify
that any liens imposed thereby are not applicable to any interest of Landlord
in the Premises.


20.                                 Indemnification and Exculpation.


20.1.                        Tenant agrees to indemnify, defend and save
Landlord harmless from and against any and all demands, claims, liabilities,
losses, costs, expenses, actions, causes of action, damages or judgments, and
all reasonable expenses (including, without limitation, reasonable attorneys’
fees, charges and disbursements) incurred in investigating or resisting the
same (collectively, “Claims”) arising from (a) injury or death to any
person or injury to any property occurring within or about the Premises arising
directly or indirectly out of Tenant’s or any of Tenant’s officers, employees,
agents, contractors, invitees, customers and subcontractors (collectively, “Tenant’s
Agents”) use or occupancy of the Premises, (b) a breach or default by
Tenant in the performance of any of its obligations hereunder, including,
without limitation, tenant’s failure to perform any of its obligations in Sections
9.6 and 18.1, (c) any of the Tenant Improvements or any of the
Tenant’s Alterations, (d) any determination by a Governmental 



 16
 









Authority that the Premises during the Term,
the Tenant Improvements or any of Tenant’s Alterations at any time, fails or
failed to comply with the ADA, and (e) any and all cost or liability for
compensation claimed by any other broker or agent, other than the Brokers,
employed or engaged by Tenant or claiming to have been employed or engaged by
Tenant, except to the extent caused by Landlord’s Parties’ willful misconduct
or gross negligence.


20.2.                        Notwithstanding any provision of Section
20.1 to the contrary, Landlord shall not be liable to Tenant for, and
Tenant assumes all risk of, damage to personal property or scientific research,
including, without limitation, loss of records kept by Tenant within the
Premises and damage or losses caused by fire, electrical malfunction, gas
explosion or water damage of any type (including, without limitation, broken
water lines, malfunctioning fire sprinkler systems, roof leaks or stoppages of
lines), unless any such loss is due to Landlord’s willful disregard of written
notice by Tenant of need for a repair that Landlord is responsible to make for
an unreasonable period of time or to Landlord Parties’ willful misconduct or
gross negligence.  Tenant further waives
any claim for injury to Tenant’s business or loss of income relating to any
such damage or destruction of personal property as described in this Section
20.2 except to the extent caused by Landlord Parties’ willful misconduct or
gross negligence.


20.3.                        Landlord shall not be liable for any damages
arising from any act, omission or neglect of any third party other than the
gross negligence or willful misconduct of the Landlord Parties.


20.4.                        Tenant acknowledges that security devices and
services, if any, while intended to deter crime, may not in given instances
prevent theft or other criminal acts. 
Landlord shall not be liable for injuries or losses caused by criminal
acts of third parties other than Landlord’s affiliates and agents, and Tenant
assumes the risk that any security device or service may malfunction or
otherwise be circumvented by a criminal. 
Tenant may, subject to Article 17, at its expense, install such
security devices and contract for such services as Tenant determines are
appropriate to deter crime or otherwise protect against criminal acts.  If Tenant desires protection against such
criminal acts, then Tenant shall, at Tenant’s sole cost and expense, obtain
appropriate insurance coverage.


20.5.                        Landlord agrees to indemnify, defend and save
Tenant harmless from and against any and all Claims arising from (a) injury or
death to any person or injury to any property occurring within or about the
Premises arising directly or indirectly out of Landlord Parties’ willful
misconduct or gross negligence, (b) a breach or default by Landlord in the
performance of its obligations hereunder, or (c) any and all cost or liability
for compensation claimed by any other broker or agent, other than the Brokers,
employed or engaged by Landlord or claiming to have been employed or engaged by
Landlord.


20.6.                        If a party (the “Indemnified Party”)
becomes aware of a Claim which would reasonably be expected to result in an
obligation to indemnify the Indemnified Party by the other party (the “Obligated
Party”) under this Lease, the Indemnified Party shall notify the Obligated
Party thereof in writing within thirty (30) days after it becomes so aware,
giving a reasonably detailed description of the Claim to the extent then known,
and providing a copy of any written demand, notice, summons or other paper
received by the Indemnified Party; provided, however, the
Indemnified Party’s failure to provide the Obligated Party notice under this Section
20.6 shall not relieve the Obligated Party’s liability hereunder except to
the extent such failure to provide notice created or exacerbated the Obligated
Party’s liability hereunder.  In
addition, the Indemnified Party shall not settle any Claims under Sections
20.1 and 20.5 without the Obligated Party’s prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed.


20.7.                        The provisions of this Article 20
shall survive the expiration or earlier termination of this Lease.


21.                                 Insurance; Waiver of Subrogation.


21.1.                        Landlord shall maintain insurance for the
Premises in amounts equal to full replacement cost (exclusive of the costs of
excavation, foundations and footings, and without reference to depreciation
taken by Landlord upon its books or tax returns) or such lesser coverage as
Landlord may elect, provided that such coverage shall not be less than
ninety percent (90%) of such full replacement cost or the amount of such
insurance Landlord’s lender, 



 17
 









mortgagee or beneficiary
(each, a “Lender”), if any, requires Landlord to maintain (but Tenant
shall not be required to pay the incremental costs of obtaining limits greater
than the full replacement cost, as determined by Landlord in its reasonable
discretion), providing protection against any peril generally included within
the classification “Fire and Extended Coverage,” together with insurance
against sprinkler damage (if applicable), vandalism and malicious
mischief.  Landlord, subject to
availability thereof, shall further insure, if Landlord deems it appropriate,
coverage against flood, environmental hazard and earthquake, loss or failure of
building equipment, rental loss during the period of repairs or rebuilding,
workmen’s compensation insurance and fidelity bonds for employees employed to
perform services.  Notwithstanding the
foregoing, Landlord may, but shall not be deemed required to, provide insurance
for any improvements or Alterations installed by Tenant hereunder, without
regard to whether or not such improvements or Alterations are made a part of or
are affixed to the Buildings; provided, however, upon payment of
the Building E Additional Purchase Price, the Premises hereunder shall include
the Tenant Improvements constructed in accordance with Section 16.


21.2.                        In addition, Landlord shall carry public
liability insurance with a single limit of not less than One Million Dollars
($1,000,000) for death or bodily injury, or property damage with respect to the
Premises.


21.3.                        Tenant shall, at its own cost and expense,
procure and maintain in effect, beginning on the Term Commencement Date, and
continuing throughout the Term (and occupancy by Tenant, if any, after
termination of this Lease) commercial general liability insurance with limits
of not less than Two Million Dollars ($2,000,000) per occurrence for death or
bodily injury and not less than Two Million Dollars ($2,000,000) for property
damage with respect to the Premises (including $100,000 fire legal liability
(each loss)).


21.4.                        The insurance required to be purchased and
maintained by Tenant pursuant to this Lease shall name Landlord, BioMed Realty,
L.P., BioMed Realty Trust, Inc., and their respective officers, employees,
agents, general partners, members, subsidiaries, affiliates and Lenders (“Landlord
Parties”) as additional insureds. 
Said insurance shall be with companies having a rating of not less than
policyholder rating of A and financial category rating of at least Class XII in
“Best’s Insurance Guide.”  Tenant shall
obtain for Landlord from the insurance companies or cause the insurance
companies to furnish certificates of coverage to Landlord.  The insurer shall endeavor to provide
Landlord at least thirty (30) days’ prior written notice of any reduction of
coverage, other modification or cancellation of such policy (except in the
event of non-payment of premium, in which case ten (10) days written notice
shall be given).  All such policies shall
be written as primary policies, not contributing with and not in excess of the
coverage that Landlord may carry.  Tenant’s
policy may be a “blanket policy” that specifically provides that the amount of
insurance shall not be prejudiced by other losses covered by the policy.  Tenant shall, on or before the expiration of
such policies, furnish Landlord with a copy of a certificate of insurance for Tenant
from a duly licensed insurance company showing all premiums due on the renewal
or successor policy have been paid at the time such premiums are due and
payable and showing the insurance provided by the renewal or successor policy
to be in full force and effect.  Tenant
agrees that if Tenant does not take out or does not maintain such insurance,
Landlord may (but shall not be required to) procure said insurance on Tenant’s
behalf and at its cost to be paid by Tenant as Additional Rent.


21.5.                        Subject to Section 20.5, Tenant
assumes the risk of damage to any fixtures, goods, inventory, merchandise,
equipment and leasehold improvements, and Landlord shall not be liable for
injury to Tenant’s business or any loss of income therefrom, relative to such
damage, all as more particularly set forth within this Lease.  Tenant shall, at Tenant’s sole cost and
expense, carry such insurance as Tenant desires for Tenant’s protection with
respect to personal property of Tenant or business interruption.


21.6.                        In each instance where insurance is to name
Landlord Parties as additional insureds, Tenant shall, upon Landlord’s written
request, also designate and furnish certificates evidencing such Landlord
Parties as additional insureds to (a) any Lender of Landlord holding a security
interest in the Premises or any portion thereof, (b) the landlord under any
lease whereunder Landlord is a tenant of the real property upon which the
Buildings are located if the interest of Landlord is or shall become that of a
tenant under a ground lease rather than that of a fee owner, and (c) any
management company retained by Landlord to manage the Premises.



 18
 









21.7.                        Landlord and Tenant each hereby waive any and
all rights of recovery against the other or against the officers, directors,
employees, agents and representatives of the other on account of loss or damage
occasioned by such waiving party or its property or the property of others
under such waiving party’s control, in each case to the extent that such loss
or damage is insured against under any fire and extended coverage insurance
policy that either Landlord or Tenant may have in force at the time of such
loss or damage.  Such waivers shall
continue so long as their respective insurers so permit.  Any termination of such a waiver shall be by
written notice to the other party, containing a description of the
circumstances hereinafter set forth in this Section 21.7.  Landlord and Tenant, upon obtaining the
policies of insurance required or permitted under this Lease, shall give notice
to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease. 
If such policies shall not be obtainable with such waiver or shall be so
obtainable only at a premium over that chargeable without such waiver, then the
party seeking such policy shall notify the other of such conditions, and the
party so notified shall have ten (10) days thereafter to either (a) procure
such insurance with companies reasonably satisfactory to the other party or
(b) agree to pay such additional premium. 
If the parties do not accomplish either (a) or (b), then this Section
21.7 shall have no effect during such time as such policies shall not be
obtainable or the party in whose favor a waiver of subrogation is desired
refuses to pay the additional premium. 
If such policies shall at any time be unobtainable, but shall be
subsequently obtainable, then neither party shall be subsequently liable for a
failure to obtain such insurance until a reasonable time after notification
thereof by the other party.  If the
release of either Landlord or Tenant, as set forth in the first sentence of
this Section 21.7, shall contravene Applicable Laws, then the liability
of the party in question shall be deemed not released but shall be secondary to
the other party’s insurer.


21.8.                        Landlord may require insurance policy limits
required under this Lease to be raised to conform with requirements of Landlord’s
Lender, if any, to bring coverage limits to levels then being required of
similarly situated tenants under leases of premises that are comparable
in size to the Premises, used for similar purposes as the Premises are used and
located in buildings comparable in quality to, and in the general vicinity of,
the Buildings.  In addition, upon each
tenth (10th) anniversary of the Term Commencement
Date, Landlord may require
insurance policy limits required under this Lease to be adjusted by the
percentage change in the Consumer Price Index for All Urban Consumers for the
San Diego metropolitan area, as published by the United States Department of
Labor’s Bureau of Labor Statistics from the Term Commencement Date through such
tenth (10th) anniversary of the Term Commencement Date.


21.9.                        Any costs incurred by Landlord pursuant to
this Article 21 shall be included as Insurance Costs payable by Tenant
pursuant to this Lease; provided, however, with respect to
insurance coverage for environmental hazard and earthquake, if any, maintained
by Landlord under Section 21.8, the costs included as Insurance Costs
payable by Tenant pursuant to this Lease shall not exceed an amount equal to
Tenant’s pro rata portion of the cost to Landlord of maintaining portfolio-wide
policies with limits of up to $10,000,000 for environmental hazard and up to
$20,000,000 for earthquake, in each case as may be adjusted by Landlord in its
sole and absolute discretion on each anniversary of the Term Commencement Date
of this Lease by the then most recent available 12-month percentage change in
the Consumer Price Index for All Urban Consumers for the San Diego metropolitan
area, as published by the United States Department of Labor’s Bureau of Labor
Statistics.


22.                                 Damage or Destruction.


22.1.                        In the event of a partial destruction of the
Premises by fire or other perils covered by extended coverage insurance not
exceeding thirty percent (30%) of the full insurable value thereof, and provided
that (a) the damage thereto is such that the Premises may be repaired,
reconstructed or restored to substantially the same condition as existed
immediately before such damage and destruction in accordance with Applicable
Laws within a period of twelve (12) months from the date of the happening of
such casualty and (b) Landlord shall receive insurance proceeds sufficient to
cover the cost of such repairs (except for any deductible amount provided by
Landlord’s policy, which deductible amount, if paid by Landlord, shall
constitute an Insurance Cost), Landlord shall commence and proceed diligently
with the work of repair, reconstruction and restoration of the Premises, and
the provisions of this Lease shall continue in full force and effect except as
otherwise provided in this Article 22.


22.2.                        In the event of any damage to or destruction
of the Premises other than as described in Section 22.1, Landlord may
elect to repair, reconstruct and restore the Premises in 



 19
 









which case the provisions of this Lease shall
continue in full force and effect except as otherwise provided in this Article
22.  Landlord shall give written
notice to Tenant of its election to repair, reconstruct or restore the Premises
or to terminate this Lease within sixty (60) days following the date of damage
or destruction (the “Landlord’s Restoration Notice”).  Landlord shall
include with the Landlord’s Restoration Notice a good faith estimate (the “Restoration
Estimate”) prepared by Landlord’s architect or engineer of: (a) the time
required to substantially complete the repair, reconstruction or restoration of
the Premises to its original condition in compliance with Applicable Laws (the “Restoration
Period”), and (b) the costs and expenses incurred or to be incurred in
restoring such damage and destruction, including, without limitation, the
design costs, project management costs, insurance costs and all other costs in
connection with the repair, reconstruction or restoration of such damage or
destruction (the “Restoration Costs”). 
If Landlord elects to repair, reconstruct and restore the Premises but
the estimated Restoration Period set forth in the Landlord’s Restoration Notice
is greater than twenty-four (24) months, then Tenant shall have the right to
terminate this Lease as of the date of such damage or destruction within twenty
(20) business days following the date upon which Tenant receives the Landlord’s
Restoration Notice.  If Landlord elects to
terminate this Lease, then this Lease shall terminate as of the date of such
damage or destruction; provided, however, if Landlord elects to
terminate this Lease, then Tenant may elect, within such twenty (20) business
days following the date upon which Tenant receives the Landlord’s Restoration
Notice, to exercise the Purchase Option in accordance with Section
30.1(c)(ii), in which event Tenant shall receive any insurance proceeds
resulting from such damage; and provided  further, if the
Restoration Period set forth in the Restoration Estimate is less than
thirty-six (36) months, Tenant may elect, within such twenty (20) business days
following the date upon which Tenant receives the Landlord’s Restoration
Notice, to deposit with Landlord an amount that is sufficient to cover any
shortfall between the amount of insurance proceeds Landlord expects to receive
in connection with the damage or destruction and the expected Restoration Costs
set forth in the Restoration Estimate (the “Restoration Deposit”), so long
as Tenant: (1) reaffirms its intention to pay all Rent as such Rent becomes due
and owing under this Lease; (2) waives any claim to offsets, defenses or
abatement of such Rent as a consequence of such damage or destruction without
regard to the duration of the Restoration Period; and (3) deposits with
Landlord the Restoration Deposit, in which event this Lease shall remain in
full force and effect and Landlord shall repair, reconstruct or restore such
damage or destruction in accordance with the terms and conditions of Section
22.6, and in the event Landlord thereafter notifies Tenant at any time that
the expected Restoration Costs exceed the remaining Restoration Deposit and
remaining insurance proceeds to be received by Landlord, Tenant shall within ten
(10) days after such notice pay the amount of such deficiency to Landlord.  Landlord shall have the right to use the
Restoration Deposit to cover all costs and expenses in excess of the insurance
proceeds received by Landlord necessary to complete the repair, reconstruction
or restoration of such damage or destruction. 
In addition, if the actual cost of such repair, reconstruction or
restoration exceeds the amount of the Restoration Fund, Tenant shall promptly
deposit with Landlord such excess to be included in the Restoration Fund.  Any sum which remains in the Restoration Fund
upon completion of the repair, reconstruction or restoration of such damage or
destruction after the payment of all Restoration Costs shall be promptly
refunded to Tenant.


22.3.                        Upon any termination of this Lease under any
of the provisions of this Article 22 (and provided Tenant does not
exercise the Purchase Option), the parties shall be released thereby without
further obligation to the other from the date possession of the Premises is
surrendered to Landlord, except with regard to (a) items occurring prior to the
damage or destruction and (b) provisions of this Lease that, by their express
terms, survive the expiration or earlier termination hereof.


22.4.                        Except as set forth in Section 22.2,
in the event of repair, reconstruction and restoration as provided in this Article 22,
all Rent to be paid by Tenant under this Lease shall be abated proportionately
based on the extent to which Tenant’s use of the Premises is impaired during
the period of such repair, reconstruction or restoration; provided,
however, that the amount of such abatement shall be reduced by the proceeds of
lost rental income insurance actually received by Tenant with respect to the
Premises.


22.5.                        Notwithstanding anything to the contrary
contained in this Article 22, should Landlord be delayed or
prevented from completing the repair, reconstruction or restoration of the
damage or destruction to the Premises after the occurrence of such damage or
destruction by Force Majeure, then the time for Landlord to commence or
complete repairs shall be extended on a day-for-day basis.



 20














22.6.                        If, and solely to the extent, Landlord is
obligated to or elects to repair, reconstruct or restore as herein provided,
then Landlord shall be obligated to make such repair, reconstruction or
restoration only with regard to: (a) those portions of the Premises that were
originally provided at Landlord’s expense, and (b) those portions of the
Premises that are covered by the insurance Landlord is required to, or has
elected to, obtain in accordance with Article 21.  Landlord shall not be obligated to repair,
reconstruct or restore improvements not originally provided by Landlord or at
Landlord’s expense to the extent not covered by the insurance Landlord is
required to, or has elected to, obtain in accordance with Article 21.


22.7.                        Notwithstanding anything to the contrary
contained in this Article 22, Landlord shall not have any
obligation whatsoever to repair, reconstruct or restore the Premises if the
damage resulting from any casualty covered under this Article 22
occurs during the last twenty-four (24) months of the Term unless Tenant
exercises the Extension Option to extend, in which event Landlord shall not
have any obligation to repair, reconstruct or restore the Premises if the
damages resulting from any casualty covered under this Article 22
occurs during the last twenty-four (24) months of any extension hereof, or to
the extent that insurance proceeds are not available therefor.


22.8.                        Landlord’s obligation, should it elect or be
obligated to repair or rebuild, shall be limited to the Premises; provided
that Tenant shall have the right but not the obligation, at its expense, to
replace or fully repair all of Tenant’s personal property and any Tenant
Improvements or Alterations installed by Tenant existing at the time of such
damage or destruction.  If the Premises
are to be repaired in accordance with the foregoing, Landlord shall make
available to Tenant any portion of insurance proceeds it receives that are
allocable to the Tenant Improvements and Alterations constructed by Tenant
pursuant to this Lease, provided Tenant is not then in monetary Default
under this Lease.


23.                                 Eminent Domain.


23.1.                        In the event the whole of the Premises shall
be taken for any public or quasi-public purpose by any lawful power or
authority by exercise of the right of appropriation, condemnation or eminent
domain, or sold to prevent such taking, Tenant or Landlord may terminate this
Lease effective as of the date possession is required to be surrendered to said
authority.


23.2.                        In the event of a partial taking of the
Premises, or of drives, walkways or parking areas serving the Premises for any
public or quasi-public purpose by any lawful power or authority by exercise of
right of appropriation, condemnation, or eminent domain, or sold to prevent
such taking, then Tenant may elect to terminate this Lease as of such taking if
such taking is, in Tenant’s reasonable opinion, of a material nature such as to
make it impracticable or infeasible to continue use of the unappropriated
portion for purposes of renting office or laboratory space.


23.3.                        In the event a partial taking of the Premises
is threatened (in writing) or instituted by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain with
respect to: (a) twenty-five percent (25%) or more of the Premises, or (b) the
condemnation award is less than the cost to repair the unappropriated portion
of the Premises (“Condemnation Restoration Costs”), Landlord may, upon
thirty (30) days prior written notice to Tenant (the “Landlord’s Condemnation
Notice”), elect to either (i) terminate this Lease, or (ii) continue this
Lease in accordance with Section 23.5. 
Landlord shall include with the Landlord’s Condemnation Notice a good
faith estimate (the “Condemnation Restoration Estimate”) prepared by
Landlord’s architect or engineer of the costs and expenses incurred or to be
incurred in restoring the unappropriated portion of the Premises.  If Landlord elects to terminate this Lease
because the condemnation award is less than the cost to repair the
unappropriated portion of the Premises, then Tenant may elect, within fifteen
(15) days following the date upon which Tenant receives Landlord’s Condemnation
Notice, to either (1) exercise the Purchase Option in accordance with Section
30.1(c)(iii), in which event Tenant shall receive any condemnation proceeds
resulting from such condemnation, or (2) deposit with Landlord an amount that
is sufficient to cover any shortfall between the amount of the condemnation
award Landlord expects to receive in connection with the partial taking of the
Premises and the expected Condemnation Restoration Costs set forth in the
Condemnation Restoration Estimate (the “Condemnation Restoration Deposit”),
so long as Tenant: (x) reaffirms its intention to pay all Rent as such Rent
becomes due and owing under this Lease; (y) waives any claim to offsets, 



 21
 








defenses or abatement of such Rent as a
consequence of such damage or destruction without regard to the duration of the
restoration period; and (z) deposits with Landlord the Condemnation Restoration
Deposit, in which event this Lease shall remain in full force and effect and
Landlord shall repair, reconstruct or restore the unappropriated portion of the
Premises, and in the event Landlord thereafter notifies Tenant at any time that
the expected Condemnation Restoration Costs exceeds the remaining Condemnation
Restoration Deposit and remaining condemnation proceeds to be received by
Landlord, Tenant shall within ten (10) days after such notice pay the amount of
such deficiency to Landlord.


23.4.                        Tenant shall be entitled to any award that is
specifically awarded as compensation for (a) the taking of Tenant’s personal
property that was installed at Tenant’s expense, and (b) the costs of Tenant
moving to a new location.  Except as set
forth in the previous sentence, any award for such taking shall be the property
of Landlord.


23.5.                        If, upon any taking of the nature described
in this Article 23, this Lease continues in effect, then Landlord
shall promptly proceed to restore the Premises to substantially the same
condition prior to such partial taking. 
To the extent such restoration is feasible, as reasonably determined by
Landlord, the Rent shall be decreased proportionately to reflect the loss of
any portion of the Premises no longer available to Tenant.


24.                                 Defaults and Remedies.


24.1.                        Late payment by Tenant to Landlord of Rent
and other sums due shall cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which shall be extremely difficult and impracticable
to ascertain.  Such costs include, but
are not limited to, processing and accounting charges and late charges that may
be imposed on Landlord by the terms of any mortgage or trust deed covering the
Premises.  Therefore, if any installment
of Rent due from Tenant is not received by Landlord within five (5) days after
written notice that such payment is due, Tenant shall pay to Landlord an
additional sum of four percent (4%) of the overdue Rent as a late charge.  The parties agree that this late charge represents
a fair and reasonable estimate of the costs that Landlord shall incur by reason
of late payment by Tenant.


24.2.                        No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent payment herein stipulated shall be deemed to
be other than on account of the Rent, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of such Rent or pursue any
other remedy provided in this Lease or in equity or at law.  If a dispute shall arise as to any amount or
sum of money to be paid by Tenant to Landlord hereunder, Tenant shall have the
right to make payment “under protest,” such payment shall not be regarded as a
voluntary payment, and there shall survive the right on the part of Tenant to
institute suit for recovery of the payment paid under protest.


24.3.                        If Tenant fails to pay any sum of money
required to be paid by it hereunder, or shall fail to perform any other act on
its part to be performed hereunder, Landlord may, without waiving or releasing
Tenant from any obligations of Tenant, but shall not be obligated to, make such
payment or perform such act; provided that Landlord may do so only if
(a) such failure by Tenant continues for five (5) days after Landlord delivers
notice to Tenant demanding performance by Tenant, or (b) such failure by Tenant
unreasonably interferes with the efficient operation of the Premises, or
resulted or will result in a violation of Applicable Laws or the cancellation
of an insurance policy maintained by Landlord. 
Notwithstanding the foregoing, in the event of an emergency, Landlord
shall have the right to enter the Premises and act in accordance with its
rights as provided elsewhere in this Lease. 
In addition to the late charge described in Section 24.1, Tenant
shall pay to Landlord as Additional Rent all sums so paid or incurred by
Landlord, together with interest thereon, from the date such sums were paid or
incurred, at the annual rate equal to ten percent (10%) per annum or the
highest rate permitted by Applicable Laws, whichever is less.


24.4.                        The occurrence of any one or more of the
following events shall constitute a “Default” hereunder by Tenant:


(a)                          The abandonment of the Premises by Tenant;



 22
 








(b)                         The failure by Tenant to make any payment of
Rent, as and when due, where such failure shall continue for a period of five
(5) days after written notice thereof from Landlord to Tenant;


(c)                          The failure by Tenant to observe or perform
any material obligation or material covenant contained herein (other than
described in Sections 24.4(a) and 24.4(b)) to be performed by
Tenant, where such failure shall continue for a period of twenty (20) days
after written notice thereof from Landlord to Tenant (except where Tenant has
contested in good faith the existence of a breach of a material obligation or
material covenant and the parties have not yet resolved the dispute by mutual
agreement or, if necessary, final court judgment); provided that, if the
nature of Tenant’s default is such that it reasonably requires more than twenty
(20) days to cure, Tenant shall not be deemed to be in default if Tenant shall
commence such cure within said twenty (20) day period and thereafter diligently
prosecute the same to completion;


(d)                         Tenant makes an assignment for the benefit of
creditors;


(e)                          A receiver, trustee or custodian is appointed
to or does take title, possession or control of all or substantially all of
Tenant’s assets and such circumstance is not reversed within sixty (60) days;


(f)                            Tenant files a voluntary petition under the
United States Bankruptcy Code or any successor statute (the “Bankruptcy Code”)
or an order for relief is entered against Tenant pursuant to a voluntary or
involuntary proceeding commenced under any chapter of the Bankruptcy Code;


(g)                         Any involuntary petition if filed against
Tenant under any chapter of the Bankruptcy Code and is not dismissed within one
hundred twenty (120) days;


(h)                         The occurrence of a monetary Default or a
material non-monetary Default under the Building D Lease, the Building F Lease
or the Building G Lease (each as defined in the Purchase Agreement);


(i)                             The occurrence of any Transfer that is not in
compliance with the provisions of Article 25, where such failure shall
continue for a period of three (3) business days after written notice thereof
from Landlord to Tenant; or


(j)                             Tenant’s interest in this Lease is attached,
executed upon or otherwise judicially seized and such action is not released
within one hundred twenty (120) days of the action.


Notices given under this Section
24.4 shall specify the alleged default and shall demand that Tenant perform
the provisions of this Lease or pay the Rent that is in arrears, as the case
may be, within the applicable period of time, or quit the Premises.  No such notice shall be deemed a forfeiture
or a termination of this Lease unless Landlord elects otherwise in such notice.


24.5.                        In the event of a monetary default or a
material non-monetary default by Tenant after the lapse of any applicable cure
periods, and at any time thereafter, with notice or demand and without limiting
Landlord in the exercise of any right or remedy that Landlord may have,
Landlord shall be entitled to terminate Tenant’s right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord.  In such event, Landlord shall have the immediate
right to re-enter and remove all persons and property, and such property may be
removed and stored in a public warehouse or elsewhere at the cost and for the
account of Tenant, all without service of notice or resort to legal process and
without being deemed guilty of trespass or becoming liable for any loss or
damage that may be occasioned thereby. 
In the event that Landlord shall elect to so terminate this Lease, then
Landlord shall be entitled to recover from Tenant the following damages to the
extent incurred by Landlord by reason of Tenant’s default:


(a)                          The worth at the time of award of any unpaid
Rent that had accrued at the time of such termination; plus



 23
 








(b)                         The worth at the time of award of the amount
by which the unpaid Rent that would have accrued during the period commencing
with termination of this Lease and ending at the time of award exceeds that
portion of the loss of Landlord’s rental income from the Premises that Tenant
proves could have been reasonably avoided; plus


(c)                          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 that portion of the loss of Landlord’s rental income from the Premises
that Tenant proves could have been reasonably avoided; plus


(d)                         Any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant’s failure to
perform its obligations under this Lease or that in the ordinary course of
things would be likely to result therefrom, including, without limitation, the
cost of restoring the Premises to the condition required under the terms of
this Lease; plus


(e)                          At Landlord’s election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time
by Applicable Laws.


As used in Sections 24.5(a) and 24.5(b),
“worth at the time of award” shall be computed by allowing interest at the rate
specified in Section 24.1.  As
used in Section 24.5(c) above, the “worth at the time of the award”
shall be computed by taking the present value of such amount, using the
discount rate of the Federal Reserve Bank of San Francisco at the time of the
award plus one (1) percentage point.


24.6.                        In addition to any other remedies available
to Landlord at law or in equity and under this Lease, Landlord shall have the
remedy described in California Civil Code Section 1951.4 (Landlord may continue
this Lease in effect after Tenant’s Default and abandonment and recover Rent as
it becomes due, provided Tenant has the right to sublet or assign,
subject only to reasonable limitations). 
In addition, Landlord shall not be liable in any way whatsoever for its
failure or refusal to relet the Premises. 
For purposes of this Section 24.6, the following acts by Landlord
will not constitute the termination of Tenant’s right to possession of the
Premises:


(a)                          Acts of maintenance or preservation or
efforts to relet the Premises, including, but not limited to, alterations,
remodeling, redecorating, repairs, replacements or painting as Landlord shall
consider advisable for the purpose of reletting the Premises or any part
thereof; or


(b)                         The appointment of a receiver upon the
initiative of Landlord to protect Landlord’s interest under this Lease or in
the Premises.


Notwithstanding the foregoing, in the event of a
Default by Tenant, Landlord may elect at any time to terminate this Lease and
to recover damages to which Landlord is entitled.  If Landlord does not elect to terminate this
Lease as provided in Section 24.5, then Landlord may, from time to time,
recover all Rent as it becomes due under this Lease.


24.7.                        If Landlord does not elect to terminate this
Lease as provided in Section 24.5, then Landlord may, from time to time,
recover all Rent as it becomes due under this Lease.  At any time thereafter, Landlord may elect to
terminate this Lease and to recover damages to which Landlord is entitled.


24.8.                        In the event Landlord elects to terminate
this Lease and relet the Premises, Landlord may execute any new lease in its
own name.  Tenant hereunder shall have no
right or authority whatsoever to collect any Rent from such tenant.  The proceeds of any such reletting shall be
applied as follows:


(a)                          First, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord, including, without
limitation, storage charges or brokerage commissions owing from Tenant to
Landlord as the result of such reletting;


(b)                         Second, to the payment of the costs and
expenses of reletting the Premises, including (i) repairs that Landlord
deems reasonably necessary and advisable and (ii) reasonable attorneys’ fees,
charges and disbursements incurred by Landlord in connection with the retaking
of the Premises and such reletting;



 24
 








(c)                          Third, to the payment of Rent and other
charges due and unpaid hereunder; and


(d)                         Fourth, to the payment of future Rent and
other damages payable by Tenant under this Lease.


24.9.                        All of Landlord’s rights, options and
remedies hereunder shall be construed and held to be nonexclusive and
cumulative.  Landlord shall have the
right to pursue any one or all of such remedies, or any other remedy or relief
that may be provided by Applicable Laws, whether or not stated in this
Lease.  No waiver of any default of
Tenant hereunder shall be implied from any acceptance by Landlord of any Rent
or other payments due hereunder or any omission by Landlord to take any action
on account of such default if such default persists or is repeated, and no
express waiver shall affect defaults other than as specified in said waiver.


24.10.                  Landlord’s termination of (a) this Lease or
(b) Tenant’s right to possession of the Premises shall not relieve Tenant of
any liability to Landlord that has previously accrued or that shall arise based
upon events that occurred prior to the later to occur of (i) the date of Lease
termination or (ii) the date Tenant surrenders possession of the Premises.


24.11.                  To the extent permitted by Applicable Laws,
Tenant waives any and all rights of redemption granted by or under any present
or future Applicable Laws if Tenant is evicted or dispossessed for any cause,
or if Landlord obtains possession of the Premises due to Tenant’s default
hereunder or otherwise.


24.12.                  Landlord shall not be in default under this
Lease unless Landlord fails to perform obligations required of Landlord within
a reasonable time, but in no event shall such failure continue for more than
thirty (30) days after written notice from Tenant specifying the nature of
Landlord’s failure; provided, however, that if the nature of
Landlord’s obligation is such that more than thirty (30) days are required for
its performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.


24.13.                  In the event of any default by Landlord, Tenant
shall give notice by registered or certified mail to any (a) beneficiary
of a deed of trust or (b) mortgagee under a mortgage covering the Premises
or any portion thereof and to any landlord of any lease of land upon or within
which the Premises are located, and shall offer such beneficiary, mortgagee or
landlord the Lender’s Cure Period to cure the default, including
time to obtain possession of the Premises by power of sale or a judicial action
if such should prove necessary to effect a cure; provided that Landlord shall
promptly furnish to Tenant in writing, upon written request by Tenant, the
names and addresses of all such persons who are to receive such notices.  “Lender’s Cure Period” shall mean sixty (60)
days after written notice from Tenant within which to cure or correct such
default (of which the initial thirty (30) days may run concurrently with the
thirty (30) days after written notice from Tenant described in Section 24.12
above); provided, however, if such default cannot be cured or
corrected within that time, then Lender’s Cure Period shall include such
additional time as may be necessary to cure such default if such mortgagee,
beneficiary or landlord has commenced to cure such Default within such sixty
(60) day period and is diligently pursuing the remedies or steps necessary to
cure or correct such default; provided, further, if such
mortgagee, beneficiary or landlord requires possession of the Premises to
prosecute such cure, and such mortgagee, beneficiary or landlord commences
foreclosure proceedings within such sixty (60) day period (or is unable to
commence foreclosure proceedings because of a bankruptcy proceeding involving
Landlord or Tenant, but commences such foreclosure proceeding promptly after it
is permitted to do so), then such sixty (60) day period shall commence to run
only on the conveyance of the Premises pursuant to such proceeding.


25.                                 Assignment or Subletting.


25.1.                        Except as hereinafter expressly permitted,
Tenant shall not, either voluntarily or by operation of Applicable Laws,
directly or indirectly sell, hypothecate, assign, pledge, encumber or otherwise
transfer this Lease, or sublet the Premises (each, a “Transfer”),
without Landlord’s prior written consent, which consent Landlord may not
unreasonably delay, condition or withhold. 
Notwithstanding the foregoing, Tenant shall have the right to Transfer
the Premises, upon twenty (20) days prior written notice to Landlord but
without obtaining Landlord’s prior written consent, to a corporation or other
entity which is a successor-in-interest 



 25
 








to Tenant, by way of merger, consolidation or
corporate reorganization, or by the purchase of all or substantially all of the
assets or the controlling ownership interests of Tenant provided that
(a) such merger or consolidation, or such acquisition or assumption, as
the case may be, is for a good business purpose and not principally for the
purpose of transferring this Lease, and (b) the net worth (as determined
in accordance with generally accepted accounting principles (“GAAP”) of
the assignee is not less than the net worth (as determined in accordance with
GAAP) of Tenant as of the date of Tenant’s then most current quarterly or
annual financial statements, and (c) such assignee shall agree in writing
to assume all of the terms, covenants and conditions of this Lease arising
after the effective date of the assignment (collectively, the “Permitted
Assignees”).  Notwithstanding the
foregoing, Tenant shall have the right to sublet any portion of the Premises,
upon twenty (20) days prior written notice to Landlord, but without obtaining
Landlord’s prior written consent,  to a
Permitted Subtenant subject to the conditions precedent in Section 25.9.


25.2.                        In the event Tenant desires to effect a
Transfer, then, at least twenty (20) days prior to the date when Tenant desires
the assignment or sublease to be effective (the “Transfer Date”), Tenant
shall provide written notice to Landlord (the “Transfer Notice”)
containing information concerning the character, relevant business experience and
financial responsibility and status of the proposed transferee, assignee or
sublessee; the Transfer Date; any ownership or commercial relationship between
Tenant and the proposed transferee, assignee or sublessee; and the
consideration and all other material terms and conditions of the proposed
Transfer, all in such detail as Landlord shall reasonably require (the “Transfer
Information”).  Tenant shall also
reimburse Landlord for Landlord’s actual and reasonable costs and expenses,
including, without limitation, reasonable attorneys’ fees, charges and other
costs or overhead expenses incurred by Landlord in connection with the review,
processing and documentation of such request in an amount not to exceed Five
Thousand Dollars ($5,000);


25.3.                        Landlord, in determining whether consent
should be given to a proposed Transfer, may give consideration to (a) the
financial strength of such transferee or assignee (notwithstanding Tenant
remaining liable for Tenant’s performance), and (b) any change in use that such
transferee, assignee or sublessee proposes to make in the use of the Premises
to the extent any such change in use is not a Permitted Use.  In no event shall Landlord be deemed to be
unreasonable for declining to consent to a Transfer to a transferee or assignee
lacking financial qualifications (commensurate with the obligations proposed to
be undertaken in connection with such a Transfer) or seeking a change in the
Permitted Use, or jeopardizing directly or indirectly the status of Landlord or
any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986.  Notwithstanding anything contained in this
Lease to the contrary, (w) no Transfer shall be consummated on any basis such
that the rental or other amounts to be paid by the occupant, assignee, manager
or other transferee thereunder would be based, in whole or in part, on the
income or profits derived by the business activities of such occupant,
assignee, manager or other transferee; (x) Tenant shall not furnish or render
any services to an occupant, assignee, manager or other transferee with respect
to whom transfer consideration is required to be paid, or manage or operate the
Premises or any capital additions so transferred, with respect to which
transfer consideration is being paid; (y) Tenant shall not consummate a
Transfer with any person in which Landlord owns an interest, directly or
indirectly (by applying constructive ownership rules set forth in Section
856(d)(5) of the Internal Revenue Code (the “Revenue Code”)); and (z)
Tenant shall not consummate a Transfer with any person or in any manner that
could cause any portion of the amounts received by Landlord pursuant to this
Lease or any sublease, license or other arrangement for the right to use,
occupy or possess any portion of the Premises to fail to qualify as “rents from
real property” within the meaning of Section 856(d) of the Revenue Code, or any
similar or successor provision thereto or which could cause any other income of
Landlord to fail to qualify as income described in Section 856(c)(2) of the
Revenue Code.  The immediately preceding
sentence shall not apply if ownership of the Property is transferred or
conveyed to a person or entity other than a real estate investment trust or
affiliate thereof.


25.4.                        As conditions precedent to Tenant subleasing
the Premises or to Landlord considering a request by Tenant to Tenant’s
transfer of rights or sharing of the Premises, Landlord may require any or all
of the following:


(a)                          Tenant shall remain fully liable under this
Lease during the unexpired Term;



 26
 








(b)                         Tenant shall provide Landlord with the
Transfer Information;


(c)                          Tenant shall reimburse Landlord for Landlord’s
actual and reasonable costs and expenses, including, without limitation,
reasonable attorneys’ fees, charges and other costs or overhead expenses
incurred by Landlord in connection with the review, processing and
documentation of such request in an amount not to exceed Five Thousand Dollars
($5,000);


(d)                         Subject to Section 25.8, if Tenant’s
transfer of rights or sharing of the Premises provides for the receipt by, on
behalf of or on account of Tenant of any consideration of any kind whatsoever
(including, without limitation, a premium rental for a sublease or lump sum
payment for an assignment, but excluding Tenant’s reasonable costs in marketing
and subleasing the Premises) in excess of the rental and other charges due to
Landlord under this Lease, Tenant shall pay fifty percent (50%) of all of such
excess to Landlord, after deductions for any transaction costs incurred by
Tenant, including marketing expenses, tenant improvement allowances actually
provided by Tenant, alterations, cash concessions, brokerage commissions,
attorneys’ fees and free rent.  If said
consideration consists of cash paid to Tenant, payment to Landlord shall be
made upon receipt by Tenant of such cash payment;


(e)                          With respect to any Transfer of all or any
portion of the Premises, the proposed transferee, assignee or sublessee shall
agree that, in the event Landlord gives such proposed transferee, assignee or
sublessee notice that Tenant is in default under this Lease, such proposed
transferee, assignee or sublessee shall thereafter make all payments otherwise
due Tenant directly to Landlord, which payments shall be received by Landlord
without any liability being incurred by Landlord, except to credit such payment
against those due by Tenant under this Lease, and any such proposed transferee,
assignee or sublessee shall agree to attorn to Landlord or its successors and
assigns should this Lease be terminated for any reason; provided, however,
that in no event shall Landlord or its Lenders, successors or assigns be
obligated to accept such attornment;


(f)                            Any such consent to Transfer (if such consent
is required hereunder) shall be effected on Landlord’s forms, subject to
changes by Tenant that are satisfactory to Landlord in its reasonable
discretion;


(g)                         Tenant shall not then be in Default hereunder
in any respect;


(h)                         Such proposed transferee, assignee or
sublessee’s use of the Premises shall not violate Section 2.7;


(i)                             Landlord shall not be bound by any provision
of any agreement pertaining to the Transfer, except for Landlord’s written
consent to the same;


(j)                             Tenant shall pay all transfer and other taxes
(including interest and penalties) assessed or payable for any Transfer;


(k)                          Landlord’s consent (if such consent is
required hereunder) (or waiver of its rights) for any Transfer shall not waive
Landlord’s right to consent to any later Transfer;


(l)                             Tenant shall deliver to Landlord one executed
copy of any and all written instruments evidencing or relating to the Transfer;
and


(m)                       A list of Hazardous Materials (as defined in Section
38.6 below), certified by the proposed transferee, assignee or sublessee to
be true and correct, which the proposed transferee, assignee or sublessee
intends to use, store, handle, treat, generate in or release or dispose of from
the Premises, together with copies of all documents relating to such use,
storage, handling, treatment, generation, release or disposal of Hazardous
Materials by the proposed assignee or subtenant in the Premises, including,
without limitation: permits; approvals; reports and correspondence; storage and
management plans; plans relating to the installation of any storage tanks to be
installed in or under the Premises (provided, such installation of tanks shall
only be permitted after Landlord has given its written consent to do so, which
consent may not be unreasonably withheld); and all closure plans or any other
documents required by any and all federal, state and local Governmental
Authorities for any storage tanks installed in, on or under the Premises for
the closure of any such tanks.  Neither
Tenant nor any such proposed transferee, assignee or sublessee is required,
however, to 



 27
 








provide
Landlord with any portion(s) of such documents containing information of a
proprietary nature which, in and of themselves, do not contain a reference to
any Hazardous Materials or hazardous activities.


25.5.                        Any Transfer that is not in compliance with
the provisions of this Article 25 shall be void and constitute a “Default”
hereunder after the lapse of any applicable notice and cure period set forth in
Section 24.4(i).


25.6.                        The consent by Landlord to a Transfer shall
not relieve Tenant or proposed transferee or assignee from obtaining Landlord’s
consent to any further Transfer, nor shall it release Tenant or any proposed
transferee or assignee of Tenant from liability under this Lease.


25.7.                        Notwithstanding any Transfer, Tenant shall
remain liable for the payment of all Rent and other sums due or to become due
hereunder, and for the full performance of all other terms, conditions and
covenants to be kept and performed by Tenant. 
The acceptance of Rent or any other sum due hereunder, or the acceptance
of performance of any other term, covenant or condition thereof, from any
person or entity other than Tenant shall not be deemed a waiver of any of the
provisions of this Lease or a consent to any Transfer.


25.8.                        Notwithstanding any contrary provision of
this Article 25, the original Tenant named hereunder (but not any
assignee or subtenant other than Permitted Assignees) shall have the right,
without the receipt of Landlord’s consent, but on prior written notice to
Landlord, to license (but not sublease) up to an aggregate of up to ten percent
(10%) of the rentable square feet of the Premises to individuals or entities
(each, a “Business Affiliate”), which license to a Business Affiliate
shall be on and subject to all of the following conditions:  (a) Tenant shall have a direct
contractual business relationship (relating to a primary business of Tenant
conducted in the Premises and other than Business Affiliate’s use of the
Premises) with each such Business Affiliate and any such Business Affiliate’s
use of the Premises shall be directly and primarily related to such business
relationships; (b) each such Business Affiliate shall be of a character
and reputation consistent with the quality of the Buildings; (c) each such
license shall clearly specify that it is only a contract right and that the
Business Affiliate is not a subtenant and has no interest in real property; (d)
each such Business Affiliate’s use of the Premises is in a manner consistent
with the Permitted Use; (e) no demising walls or separate entrances shall
be constructed in the Premises to accommodate any such license; (f) the term of
such license shall not exceed six (6) months unless otherwise agreed to in
writing by Landlord; (g) the primary motivation for Tenant’s grant of such license
is not to provide space to such Business Affiliate; and (h) such Business
Affiliate shall pay no rent to Tenant in respect of such license.  No such license shall relieve Tenant from any
liability under this Lease.


25.9.                        Notwithstanding any contrary provision of
this Article 25, the original Tenant named hereunder (but not any
assignee or subtenant other than Permitted Assignees) shall have the right,
without the receipt of Landlord’s consent, but on prior written notice to
Landlord, to sublet up to an aggregate of up to thirty-five percent (35%) of
the rentable square feet of the Premises to individuals or entities (each, a “Permitted
Subtenant”) on and subject to all of the following conditions:  (a) the net worth (as determined in
accordance with generally accepted accounting principles (“GAAP”) of
such Permitted Subtenant is not less than Five Million Dollars ($5,000,000);
(b) each such Permitted Subtenant shall be of a character and reputation
consistent with the quality of the Buildings; (c) each such Permitted Subtenant’s
use of the Premises is in a manner consistent with the Permitted Use; (d) the
term of such sublease shall not exceed four (4) years unless otherwise agreed
to in writing by Landlord; and (e) all rent and other compensation paid to
Tenant by such Permitted Subtenant shall be subject to Section 25.4(d).  No such sublease shall relieve Tenant from
any liability under this Lease.


25.10.                  If Tenant sublets the Premises or any portion
thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as
security for Tenant’s obligations under this Lease, all rent from any such
subletting, and Landlord (or a receiver for Tenant appointed on Landlord’s
application) may collect such rent and apply it toward Tenant’s obligations
under this Lease; provided that, until the occurrence of a Default by
Tenant, or if a Default occurs and is cured to the satisfaction of Landlord,
Tenant shall have the right to collect such rent.


26.                                 Attorneys’ Fees.  If
either party commences an action against the other party arising out of or in
connection with this Lease, then the substantially prevailing party shall be
entitled to 



 28
 








have and recover from the other party
reasonable attorneys’ fees, charges and disbursements and costs of suit.


27.                                 Bankruptcy.  In the event a debtor, trustee
or debtor in possession under the Bankruptcy Code, or another person with
similar rights, duties and powers under any other Applicable Laws, proposes to
cure any default under this Lease or to assume or assign this Lease and is
obliged to provide adequate assurance to Landlord that (a) a default shall be
cured, (b) Landlord shall be compensated for its damages arising from any
breach of this Lease and (c) future performance of Tenant’s obligations under
this Lease shall occur, then such adequate assurances shall include any or all
of the following, as designated by Landlord in its sole and absolute
discretion:


27.1.                        Those acts specified in the Bankruptcy Code
or other Applicable Laws as included within the meaning of “adequate assurance,”
even if this Lease does not concern a shopping center or other facility
described in such Applicable Laws;


27.2.                        A prompt cash payment to compensate Landlord
for any monetary defaults or actual damages arising directly from a breach of
this Lease;


27.3.                        A cash deposit in an amount at least equal to
the then-current amount of the Security Deposit; or


27.4.                        The assumption or assignment of all of Tenant’s
interest and obligations under this Lease.


28.                                 Definition of Landlord.  With
regard to obligations imposed upon Landlord pursuant to this Lease, the term “Landlord,”
as used in this Lease, shall refer only to Landlord or Landlord’s then-current
successor-in-interest.  In the event of
any transfer, assignment or conveyance of Landlord’s interest in this Lease or
in Landlord’s fee title to or leasehold interest in the Property, as
applicable, Landlord herein named (and in case of any subsequent transfers or
conveyances, the subsequent Landlord) shall be automatically freed and
relieved, from and after the date of such transfer, assignment or conveyance,
from all liability for the performance of any covenants or obligations
contained in this Lease thereafter to be performed by Landlord and, without
further agreement, the transferee, assignee or conveyee of Landlord’s in this
Lease or in Landlord’s fee title to or leasehold interest in the Property, as
applicable, shall be deemed to have assumed and agreed to observe and perform
any and all covenants and obligations of Landlord hereunder during the tenure of
its interest in this Lease or the Property. 
Landlord or any subsequent Landlord may transfer its interest in the
Premises or this Lease without Tenant’s consent.


29.                                 Estoppel Certificate. 
Tenant shall, within fifteen (15) days after receipt of written notice
from Landlord, execute, acknowledge and deliver a statement in writing
substantially in the form attached hereto as Exhibit D, or on any other
form reasonably requested by a proposed Lender or purchaser, (a) certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease as so
modified is in full force and effect) and the dates to which rental and other
charges are paid in advance, if any, (b) acknowledging (if accurate) that
there are not, to Tenant’s knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed, and (c)
setting forth such further information with respect to this Lease or the
Premises as may be reasonably requested thereon.  Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part. 
Tenant’s
failure to deliver such statement within the prescribed time shall be
binding upon Tenant that there are no uncured defaults on the part of Landlord
hereunder and that this Lease is in full force and effect and without
modification except as may be represented by Landlord in any certificate
prepared by Landlord and delivered to Tenant for execution and that all other
statements set forth in such certificate are true and correct.  Likewise, Landlord shall, within fifteen (15)
days after receipt of written notice from Tenant, execute, acknowledge and
deliver an estoppel certificate containing substantially the same content shown
on Exhibit D (as appropriately modified to reflect that the
certificate is being executed by Landlord in favor of Tenant).  Landlord’s failure to deliver such estoppel
certificate within the prescribed time shall be binding upon Landlord that
there are no uncured defaults on the part of Tenant hereunder and that this
Lease is in full force and effect and without modification except as may be
represented by Tenant in any certificate prepared by Tenant and delivered to
Landlord for execution and that all other statements set forth in such
certificate are true and correct.



 29
 








30.                                 Purchase Option.


30.1.                        Grant of Option. 
Landlord hereby grants to Tenant the exclusive
option (the “Purchase Option”)
to purchase the Property, including, without limitation, the Premises, for an
amount equal to (a) the annualized aggregate Basic Annual Rent for the month in
which the Closing Date (as defined below) occurs (i.e., the Basic Annual Rent
for the entire month in which the Closing Date occurs (without giving effect to
any free rent or rent abatement), multiplied by twelve) under this Lease,
divided by (b) seven and nine-tenths percent (7.9%) (the “Building E
Purchase Option Exercise Price”), subject to the following provisions:


(a)                  The Purchase Option is conditioned upon
Tenant: (i) concurrently exercising its purchase option under the Building D
Lease, the Building G Lease and, solely in the event Landlord acquires the
Building F Property (as defined in the Purchase Agreement), then from and after
the closing of such acquisition (the “Building F Acquisition”), the
Building F Lease (unless the purchase option under such Lease shall have been
(1) previously exercised in accordance with Section 30.1(c)(i) through (iv)
under such Lease, or (2) terminated in accordance with the penultimate sentence
of Section 30.1(a) of such Lease) in strict accordance with the
requirements of each such lease (collectively, the “Required Leases”),
and (ii) paying the purchase option exercise price under, and in accordance
with the terms and conditions of, each Required Lease upon the closing of each
such transaction.  For purposes of
clarity, Tenant shall only have the right to exercise the Purchase Option in
connection with its purchase options under each of the Building D Lease, the
Building G Lease and from and after the Building F Acquisition, the Building F
Lease and shall not have the right to exercise the Purchase Option with respect
to individual buildings.  Notwithstanding
the foregoing, solely upon the occurrence of any of the events set forth in Sections
30.1(c)(i) through (iv) below, (1) Tenant shall have the right to
exercise the Purchase Option solely with respect to the Property, (2) Tenant
shall not have the right to exercise the respective purchase options under any
of the Required Leases at any time other than the times specified therein, and
(3) in the event Tenant elects not to acquire the Property in accordance with Section
30.1(c)(ii) or (iii), Tenant’s right to exercise its Purchase Option
under this Lease shall terminate.  Tenant
shall have no right to exercise its option to purchase the Building F Property
until the Building F Acquisition.


(b)                 Tenant shall have no right to exercise the
Purchase Option: (i) while a monetary Default or a material non-monetary
Default exists under this Lease or any Required Lease; provided that, if
the nature of Tenant’s non-monetary Default is such that it could not
reasonably be cured before the deadline for Tenant’s exercise of the Purchase
Option, then the deadline for Tenant’s exercise of the Purchase Option shall be
extended so long as Tenant promptly commences such cure and thereafter
diligently prosecutes the same to completion; (ii) during the period of time
any monthly installment of Basic Annual Rent under this Lease or any Required
Lease is due and unpaid; or (iii) in the event this Lease or any of the
Required Leases are terminated (other than any termination as a consequence of
a casualty or condemnation or pursuant to Section 30.1(c)(v)) or
rejected as a result of a Tenant bankruptcy.


(c)                  The closing of the sale under such Purchase
Option must occur on the tenth, fifteenth, or twentieth anniversary of the
Execution Date or, in the event Tenant exercises its Purchase Option in
accordance with Sections 30.1(c)(i) through (iv) below, thirty
(30) days after Tenant exercises its Purchase Option (the applicable date, the “Closing
Date”).  Tenant may only exercise the
Purchase Option by Tenant delivering to Landlord written notice exercising the
Purchase Option substantially in the form attached hereto as Exhibit F
(the “Purchase Option Exercise Notice”) at least twelve (12) months
before the corresponding anniversary; provided, however,


(i)                                     in the event Landlord directly or indirectly
transfers its interest in the Property or this Lease to a party other than
Landlord’s Affiliate (as defined in the Purchase Agreement) or a special
purpose entity formed solely to own the Property,  Landlord
shall give Tenant written notice of such transfer (“Landlord’s Assignment
Notice”) and Tenant shall have a period of fifteen (15) days after receipt
of Landlord’s Assignment Notice to exercise its Purchase Option at the Building
E Purchase Option Exercise Price in accordance with the terms and conditions of
this Article 30, subject to Tenant’s satisfaction of each of the
conditions contained in Sections 30.1(e) and (f).  “Affiliate” of Landlord means (x) an
entity that directly or indirectly controls, is controlled by or is under
common 



 30
 








control
with such landlord, (y) a partnership or other entity in which such landlord
described in (x) is a partner or other owner, or (z) an entity that acquires
substantially all of the assets or stock of such landlord; and the term “control”
means the power to direct the management of such landlord through voting
rights, ownership or contractual obligations.


(ii)                                  in the event Landlord elects to terminate
this Lease pursuant to Landlord’s Restoration Notice delivered to Tenant in
accordance with Section 22.2, Tenant shall have a period of twenty (20)
business days after receipt of Landlord’s Restoration Notice to exercise its
Purchase Option at the Building E Purchase Option Exercise Price in accordance
with the terms and conditions of this Article 30, subject to Tenant’s
satisfaction of each of the conditions contained in Sections 30.1(e) and
(f).  Notwithstanding the
foregoing, in no event shall Tenant’s exercise of the Purchase Option in
accordance with this Section 30.1(c)(ii) affect or reduce the Building E
Purchase Option Exercise Price.  Landlord
will assign to Tenant the right to receive and retain any casualty insurance
proceeds resulting from such damage.


(iii)                               in the event Landlord elects to terminate
this Lease pursuant to Landlord’s Condemnation Notice delivered to Tenant in
accordance with Section 23.3, Tenant shall have a period of twenty (20)
business days after receipt of Landlord’s Condemnation Notice to exercise its
Purchase Option at the Building E Purchase Option Exercise Price in accordance
with the terms and conditions of this Article 30, subject to Tenant’s
satisfaction of each of the conditions contained in Sections 30.1(e) and
(f).  Notwithstanding the
foregoing, in no event shall Tenant’s exercise of the Purchase Option in
accordance with this Section 30.1(c)(iii) affect or reduce the Building
E Purchase Option Exercise Price. 
Landlord will assign to Tenant the right to receive and retain any
condemnation proceeds resulting from such condemnation.


(iv)                              in the event Landlord transfers its interest
in the Property or this Lease to an entity other than Landlord’s Affiliate and
such entity files a voluntary petition under the Bankruptcy Code or an order
for relief is entered against such entity pursuant to a voluntary proceeding
commenced under any chapter of the Bankruptcy Code, Landlord shall give Tenant
written notice of such proceeding (“Landlord’s Bankruptcy Notice”) and
Tenant shall have a period of twenty (20) days after receipt of Landlord’s
Bankruptcy Notice to exercise its Purchase Option at the Building E Purchase
Option Exercise Price in accordance with the terms and conditions of this Article
30 to the extent permitted by the Bankruptcy Code and other Applicable
Laws, subject to Tenant’s satisfaction of each of the conditions contained in Sections
30.1(e) and (f).


(v)                                 in the event Landlord elects to terminate
this Lease in accordance with Section 24.5, Tenant shall have a period
of twenty (20) business days after receipt of Landlord’s notice of termination
to exercise its Purchase Option at the Building E Purchase Option Exercise
Price in accordance with the terms and conditions of this Article 30,
subject to (i) Tenant’s compliance with each of the terms contained in Sections
30.1(e) and (f), (ii) Tenant’s exercise of its purchase option under
each of the Required Leases (Tenant shall not have the right to exercise the
Purchase Option under this Section 30.1(c)(v) without exercising its
purchase option under each of the Required Leases), and (iii) Tenant’s
prepayment of all Rent due from Tenant under this Lease from the termination
date through the closing of the sale under the Purchase Option; provided,
however, Tenant shall not have the right to exercise its Purchase Option
under this Section 30.1(c)(v) in the event Landlord’s termination of
this Lease was due to Tenant’s failure to pay either (x) any monthly
installment of Basic Annual Rent or (y) any insurance costs, Taxes or Property
Management Fee.  Notwithstanding
the foregoing, nothing in this Section 30.1(c)(v) shall limit the liability
of Tenant under this Lease or Landlord’s ability to exercise any of its rights
and remedies available at law or in equity or under this Lease, including Article
24 of this Lease.


(vi)                              in the event (a) Tenant exercises its
purchase option under any of the Required Leases, and (b) such Required Lease
imposes a condition that Tenant exercise its Purchase Option under this Lease,
Tenant shall concurrently exercise its Purchase Option under this Lease at the
Building E Purchase Option Exercise Price in accordance with the terms and
conditions of this Article 30, subject to Tenant’s satisfaction of each
of the conditions contained in Sections 30.1(a) and (b), and each
of the provisions contained in Sections (e) and (f).



 31
 








Notwithstanding
the foregoing, in the event Tenant exercises its Purchase Option on or before
the fourth (4th) anniversary of the Execution Date, (a) the
closing of the sale under such Purchase Option shall occur on the first (1st) business day after the fourth (4th)
anniversary of the Execution Date, (b) Tenant shall continue to pay Rent in
accordance with this Lease until such closing date, and (c) Tenant shall pay
Landlord the Building E Purchase Option Exercise Price on, and calculated as
of, such closing date.


(d)                 If Tenant does not timely deliver the
Purchase Option Exercise Notice on or before the nineteenth anniversary of the
Execution Date, the Purchase Option shall terminate except as provided in Section
30.1(b); time being of the essence with respect to the delivering
thereof.  If Tenant timely delivers the
Purchase Option Exercise Notice to Landlord, then Landlord shall sell to
Tenant, and Tenant shall purchase from Landlord, the Property for the Building
E Purchase Option Exercise Price. Notwithstanding the foregoing, (i) any amounts due from Tenant to Landlord pursuant to
this Lease and any prorations in favor of Landlord shall be paid by Tenant on
the Closing Date, and (ii) any prorations in favor of Tenant shall be offset
against the Building E Purchase Option Exercise Price.


(e)                  The Property shall be sold in its
then-current, as-is, with all faults conditions and without any representation
and warranty, expressed or implied, whatsoever; provided, however, Landlord
shall satisfy all monetary obligations on the Property (including, without
limitation, mechanics and materialmens liens or claims thereof, any liens or
encumbrances that secure obligations for borrowed money and any encumbrances to
title which are created by Seller after the Effective Date), and all
nonmonetary encumbrances on the Property which were entered into after the Term
Commencement Date and which have not been consented to by Tenant.  Notwithstanding the foregoing, in the event
Landlord enters into any nonmonetary encumbrance in accordance with Section
32.1 or otherwise required by Applicable Laws and Landlord elects to
request Tenant’s consent in connection with any such encumbrance, Tenant’s
consent shall not be unreasonably withheld, conditioned or delayed.


(f)                    Any condemnation or damage to the Property
(other than damage caused by the willful misconduct or gross negligence of
Landlord or its affiliates) shall not affect Tenant’s obligations to purchase
the Property after Tenant delivers the Purchase Option Exercise Notice and
shall not affect the Building E Purchase Option Exercise Price.  Landlord will assign to Tenant the right to
receive and retain any casualty insurance proceeds or condemnation proceeds
resulting from such damage or condemnation.


(g)                 Upon the termination of the Purchase Option
herein granted, (i) Tenant shall execute and deliver such documents as Landlord
may reasonably request to evidence the termination thereof, and (ii) Landlord
may execute, file and record an instrument evidencing the termination of the
Purchase Option herein granted.  If
Tenant fails to execute and deliver such documents, then Landlord may do
so.  Tenant hereby appoints Landlord its
attorney in fact for such purpose, which appointment is coupled with an
interest and is irrevocable.  Tenant
shall pay all transaction costs (including title insurance premiums and
transfer taxes in connection with the conveyance of the Property to Tenant).


30.2.                        No Representations and Warranties. 
Tenant acknowledges that neither Landlord nor any of its agents or
representatives has made any oral or written representations or warranties
concerning the Property of any nature whatsoever and that Tenant will be
relying on its own independent investigation thereof.


30.3.                        Assignment of Purchase Option.  The
Purchase Option and Tenant’ rights and obligations under this Article 30
are personal to Tenant, may not be exercised by any assignee or transferee of
Tenant and shall irrevocably terminate upon any Transfer of this Lease.  Notwithstanding the foregoing, Tenant shall
have the right to assign this Lease without Landlord’s prior written consent to
a Permitted Assignee in accordance with Section 25.1, and in such event
the Purchase Option shall not terminate and may be exercised by such Permitted
Assignee, but only if  (a) Tenant
notifies Landlord in writing prior to the effectiveness of such assignment to
such Permitted Assignee, and (b) prior to or concurrently with such assignment,
such Permitted Assignee assumes all of Tenant’s obligations under this Article
30.  Notwithstanding the foregoing, in
no event shall Landlord’s consent to a Transfer under Article 25 (to the
extent such consent is required) be deemed to include the Purchase Option or
the provisions of this Article 30 unless explicitly agreed to in writing
by Landlord.



 32
 








30.4.                        Tenant’s Remedies.  In
the event the closing of the sales transaction pursuant to the Purchase Option
shall fail to occur by reason of a default in Landlord’s obligations under this
Article 30, Tenant may elect one of the following two remedies: (a)
reimbursement from Landlord for Tenant’s reasonable actual documented out of
pocket costs incurred in connection with this Article 30 (provided that
said sum recoverable as reimbursement shall not exceed One Hundred Thousand
Dollars ($100,000)); or (b) enforce specific performance of this Article
30 against Landlord, including the right to recover reasonable attorneys’
fees and court costs, but shall have no right to receive any other equitable
relief.  Tenant hereby waives any right
to record a lis pendens on the property other than in connection with the
filing of an action for specific performance. 
In no event shall Tenant be entitled to seek or obtain any other damages
of any kind, including, without limitation, actual, consequential, indirect or
punitive damages.  Notwithstanding the
foregoing, any liability of Landlord under this Article 30 shall be
limited strictly to the assets of Landlord only, and not to any of its general
partners or their respective partners.


31.                                 Limitation of Landlord’s Liability.


31.1.                        If Landlord is in default under this Lease
and, as a consequence, Tenant recovers a monetary judgment against Landlord,
the judgment shall be satisfied only out of (a) the proceeds of sale received
on execution of the judgment and levy against the right, title and interest of
Landlord in the Premises, (b) rent or other income from such real property
receivable by Landlord and/or (c) the consideration received by Landlord from
the sale, financing, refinancing or other disposition of all or any part of
Landlord’s right, title or interest in the Premises.  Notwithstanding the foregoing, the foregoing
limitation shall not apply to any default by Landlord of its obligation to
convey the Property to Tenant following Tenant’s exercise of its Purchase
Option.


31.2.                        Except as described in Section 31.1,
Landlord shall not be personally liable for any deficiency under this
Lease.  If Landlord is a partnership or
joint venture, then the partners of such partnership shall not be personally
liable for Landlord’s obligations under this Lease, and no partner of Landlord
shall be sued or named as a party in any suit or action relating to the
obligations of Landlord under this Lease, and service of process shall not be
made against any partner of Landlord relating to the obligations of Landlord
under this Lease except as may be necessary to secure jurisdiction of the
partnership or joint venture.  If
Landlord is a corporation, then the shareholders, directors, officers,
employees and agents of such corporation shall not be personally liable for
Landlord’s obligations under this Lease, and no shareholder, director, officer,
employee or agent of Landlord shall be sued or named as a party in any suit or
action, and service of process shall not be made against any shareholder,
director, officer, employee or agent of Landlord.  If Landlord is a limited liability company,
then the members of such limited liability company shall not be personally
liable for Landlord’s obligations under this Lease, and no member of Landlord
shall be sued or named as a party in any suit or action, and service of process
shall not be made against any member of Landlord except as may be necessary to
secure jurisdiction of the limited liability company.  No partner, shareholder, director, employee,
member or agent of Landlord shall be required to answer or otherwise plead to
any service of process, and no judgment shall be taken or writ of execution
levied against any partner, shareholder, director, employee or agent of
Landlord, relating to the obligations of Landlord under this Lease.


31.3.                        Each of the covenants and agreements of this Article
31 shall be applicable to any covenant or agreement either expressly
contained in this Lease or imposed by Applicable Laws and shall survive the
expiration or earlier termination of this Lease.


32.                                 Premises Control by Landlord.


32.1.                        Landlord reserves full control over the
Premises to the extent not inconsistent with Tenant’s rights under this Lease,
including, without limitation, Landlord’s right to subdivide the Property,
convert the Buildings to condominium units, grant easements and licenses to
third parties, and maintain or establish ownership of the Buildings separate
from fee title to the Property.


32.2.                        Tenant shall, at Landlord’s request, promptly
execute such further documents as may be reasonably appropriate to assist
Landlord in the performance of its obligations hereunder;



 33
 








provided that Tenant need not execute any document
that creates additional liability for Tenant or that deprives Tenant of the
quiet enjoyment and use of the Premises as provided by this Lease.


32.3.                        During the Term, Landlord may, at any and all
reasonable times during non-business hours (or during business hours if Tenant
so requests), and upon two (2) business days’ prior notice (provided
that no time restrictions shall apply or advance notice be required if an
emergency necessitates immediate entry), enter the Premises to (a) inspect the
same and to determine whether Tenant is in compliance with its obligations
hereunder, (b) supply any service Landlord is required to provide hereunder,
(c) show the Premises to prospective purchasers or tenants during the final
year of the Term (as extended if Tenant exercises the Extension Option), and
(d) post notices of nonresponsibility. 
In no event shall Tenant’s Rent abate as a result of Landlord’s
activities pursuant to this Section 32.3; provided, however,
that all such activities shall be conducted in such a manner so as to cause as
little interference to Tenant as is reasonably possible, and Landlord shall safeguard
all of Tenant’s property, including intellectual property, within the
Premises.  Landlord shall comply with
Tenant’s customary restrictions, policies and procedures for security and
access, particularly with respect to any areas of the Premises containing
fragile or expensive equipment or confidential or proprietary information or
materials.  If an emergency necessitates
immediate access to the Premises, Landlord may use such reasonable force as
Landlord believes is appropriate under the circumstances to enter the Premises,
and any such entry to the Premises shall not constitute a forcible or unlawful
entry to the Premises, a detainer of the Premises, or an eviction of Tenant
from the Premises or any portion thereof.


33.                                 Quiet Enjoyment.  So
long as Tenant is not in default under this Lease, Landlord or anyone acting
through or under Landlord shall not disturb Tenant’s occupancy of the Premises,
except as permitted by this Lease.


34.                                 Subordination and Attornment.


34.1.                        Subject to the delivery of the
non-disturbance agreements described in this Article 34 as a
condition precedent to any such subordination, this Lease shall be subject and
subordinate to the lien of any mortgage, deed of trust, or lease in which
Landlord is tenant now or hereafter in force against the Premises or any
portion thereof and to all advances made or hereafter to be made upon the
security thereof without the necessity of the execution and delivery of any
further instruments on the part of Tenant to effectuate such subordination.  In consideration of, and as a condition
precedent to, Tenant’s agreement to permit its interest pursuant  to this Lease to be subordinated to any
particular future ground or underlying lease of the Buildings or the Premises
or to the lien of any mortgage or trust deed, hereafter enforced against the
Buildings or the Premises and to any renewals, extensions, modifications,
consolidations and replacements thereof, Landlord shall deliver to Tenant a
non-disturbance agreement on (a) the form of non-disturbance agreement
customarily used by the lessor under such ground lease or underlying lease or
the holder of such mortgage or trust deed or (b) another commercially
reasonable form, provided in either instance that such form (i) is reasonably
acceptable to Tenant, and (ii) recognizes Tenant’s Purchase Option.  Landlord’s delivery to Tenant of
non-disturbance agreement(s) in favor of Tenant from any ground lessors,
mortgage holders or lien holders of Landlord who later came into existence at
any time prior to the expiration of the Term shall be in consideration of, and
a condition precedent to, Tenant’s agreement to be bound by the terms of this Article 34.  Tenant shall be entitled, at Tenant’s sole
cost and expense, to record any such non-disturbance agreement promptly after
full execution and delivery of such agreement.


34.2.                        Notwithstanding the foregoing, subject to
Landlord’s compliance with the terms of Section 34.1, Tenant shall
execute and deliver upon demand such further instrument or instruments evidencing
such subordination of this Lease to the lien of any such mortgage or mortgages
or deeds of trust or lease in which Landlord is tenant as may be required by
Landlord; provided, however, if any such mortgagee, beneficiary or Landlord
under lease wherein Landlord is tenant so elects, this Lease shall be deemed
prior in lien to any such lease, mortgage, or deed of trust upon or including
the Premises regardless of date and Tenant shall execute a statement in writing
to such effect at Landlord’s request.  If
Tenant fails to execute any document required from Tenant under this Section
within ten (10) days after written request therefor, Tenant hereby constitutes
and appoints Landlord or its special attorney-in-fact to execute and deliver
any such document or documents in the name of Tenant.  Such power is coupled with an interest and is
irrevocable.  Within five (5) business
days after Landlord 



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executes any document in accordance with this
Section 34.2 as Tenant’s attorney-in-fact, Landlord shall provide Tenant
a copy of such document.


34.3.                        Upon written request of Landlord and
opportunity for Tenant to review, Tenant agrees to execute any Lease amendments
not materially altering the terms of this Lease, if required by a mortgagee or
beneficiary of a deed of trust encumbering real property of which the Premises
constitute a part incident to the financing of the real property of which the
Premises constitute a part.  Any change
affecting the amount or timing of the consideration to be paid by Tenant or
modifying the Term of this Lease shall be deemed as materially altering the
terms hereof.


34.4.                        In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by Landlord covering the Premises, Tenant shall
at the election of the purchaser at such foreclosure or sale attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
Landlord under this Lease.


35.                                 Surrender.


35.1.                        At least ten (10) days prior to Tenant’s
surrender of possession of any part of the Premises, Tenant shall provide
Landlord with (a) a facility decommissioning and Hazardous Materials closure
plan for the Premises (“Exit Survey”), and (b) written evidence of all
appropriate governmental releases obtained by Tenant in accordance with
Applicable Laws, including, without limitation, laws pertaining to the
surrender of the Premises.  In addition, Tenant agrees to remain
responsible after the surrender of the Premises for the remediation of any
recognized environmental conditions set forth in the Exit Survey and compliance
with any recommendations set forth in the Exit Survey.  Tenant’s
obligations under this Section 35.1 shall survive the expiration or
earlier termination of the Lease.


35.2.                        No surrender of possession of any part of the
Premises shall release Tenant from any of its obligations hereunder, unless
such surrender is accepted in writing by Landlord.


35.3.                        The voluntary or other surrender of this
Lease by Tenant shall not effect a merger with Landlord’s fee title or
leasehold interest in the Premises or any portion thereof, unless Landlord
consents in writing, and shall, at Landlord’s option, operate as an assignment
to Landlord of any or all subleases.


35.4.                        The voluntary or other surrender of any
ground or other underlying lease that now exists or may hereafter be executed
affecting the Premises or any portion thereof, or a mutual cancellation thereof
or of Landlord’s interest therein by Landlord and its lessor shall not effect a
merger with Landlord’s fee title or leasehold interest in the Premises and
shall, at the option of the successor to Landlord’s interest in the Premises or
any portion thereof, operate as an assignment of this Lease.


35.5.                        All permanently attached equipment,
permanently attached fixtures, additions and improvements attached to or built
into the Premises, including, without limitation, all floor and wall coverings,
built-in cabinet work and paneling, sinks and related plumbing fixtures,
laboratory benches, exterior venting fume hoods, ductwork, conduits, electrical
panels and circuits, together with all additions and accessories thereto is the
property of Landlord and shall remain upon and be surrendered with the Premises
as a part thereof.


35.6.                        In the event Tenant has performed any
Alterations in accordance with this Lease, upon surrender of the Premises,
Tenant shall reimburse Landlord for any extra costs and expenses incurred by
Landlord by reason of any delays in re-leasing the Premises caused by Tenant’s
removal of such Alterations.


36.                                 Waiver and Modification.  No
provision of this Lease may be modified, amended or supplemented except by an
agreement in writing signed by Landlord and Tenant.  The waiver by either party of any breach by
the other party of any term, covenant or condition herein contained shall not
be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant or condition herein contained.


37.                                 Waiver of Jury Trial and Counterclaims.  The
parties waive trial by jury in any action, proceeding or counterclaim brought
by the other party hereto related to matters arising out of or 



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in any way connected with this Lease; the
relationship between Landlord and Tenant; Tenant’s use or occupancy of the
Premises; or any claim of injury or damage related to this Lease or the
Premises.


38.                                 Hazardous Materials.


38.1.                        Tenant shall not cause or permit any
Hazardous Materials (as hereinafter defined) to be brought upon, kept or used
in or about the Premises in violation of Applicable Laws by Tenant, its agents,
employees, contractors or invitees.  If
Tenant breaches such obligation, or if the presence of Hazardous Materials as a
result of such a breach results in contamination of the Premises or any
adjacent property, or if contamination of the Premises or any adjacent property
by Hazardous Materials otherwise occurs during the Term of this Lease or any
extension or renewal hereof or holding over hereunder (other than in connection
with substances that migrated to the Premises from any adjoining property,
except in the event Tenant is aware of such contamination and neither remedies
such contamination nor promptly notifies Landlord of the existence of such
contamination), then Tenant shall indemnify, save, defend and hold Landlord, its
agents and contractors harmless from and against any and all claims, judgments,
damages, penalties, fines, costs, liabilities and losses (including, without
limitation, diminution in value of the Premises or any portion thereof; damages
for the loss or restriction on use of rentable or usable space or of any
amenity of the Premises; damages arising from any adverse impact on marketing
of space in the Premises; and sums paid in settlement of claims, attorneys’
fees, consultants’ fees and experts’ fees) that arise during or after the Term
as a result of such breach or contamination. 
This indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any Governmental
Authority because of Hazardous Materials present in the air, soil or
groundwater above, on or under the Premises. 
Without limiting the foregoing, if the presence of any Hazardous
Materials in, on, under or about the Premises or any adjacent property caused
or permitted by Tenant results in any contamination of the Premises or any
adjacent property, then Tenant shall promptly take all actions at its sole cost
and expense as are necessary to return the Premises and any adjacent property
to their respective condition existing prior to the time of such contamination;
provided that Landlord’s written approval of such action shall first be
obtained, which approval Landlord shall not unreasonably withhold (provided
that no time restrictions shall apply or advance approval be required if an
emergency necessitates the remediation of such contamination so long as Tenant
promptly provides Landlord written notice of any action taken by Tenant
pursuant to this Section 38.1); and provided, further, that it
shall be reasonable for Landlord to withhold its consent if such actions could
have a material adverse long-term or short-term effect on the Premises.  Notwithstanding the foregoing, Landlord shall
neither (a) settle any Claims under this Section 38.1 without Tenant’s
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed, nor (b) except in the case of an emergency (where there
is imminent threat of injury to persons or damage to property), enter into any
agreement with a third party for any cleanup, remedial, removal or restoration
work in connection with such breach or contamination other than in the event an
emergency necessitates immediate entry, without first providing Tenant prior
written notice.


38.2.                        Landlord acknowledges that it is not the
intent of this Article 38 to prohibit Tenant from operating its business
as described in Section 2.7 above. 
Tenant may operate its business according to the custom of Tenant’s
industry so long as the use or presence of Hazardous Materials is strictly and
properly monitored according to Applicable Laws.  As a material inducement to Landlord to allow
Tenant to use Hazardous Materials in connection with its business, Tenant
agrees to deliver to Landlord prior to the Term Commencement Date a list
identifying each type of Hazardous Material expected to be present on the
Premises and setting forth any and all governmental approvals or permits
required in connection with the presence of such Hazardous Material on the
Premises (the “Hazardous Materials List”).  Within twenty (20) days after Landlord gives
to Tenant a written request (which request shall not be made more frequently
than annually), Tenant shall deliver to Landlord an updated Hazardous Materials
List.  Tenant shall deliver to Landlord
true and correct copies of the following documents received from or submitted
to any Government Authority (hereinafter referred to as the “Documents”)
relating to the handling, storage, disposal and emission of Hazardous Materials
prior to the Term Commencement Date or, if unavailable at that time, concurrent
with the receipt from or submission to any Governmental Authority:  permits; approvals; reports and correspondence;
storage and management plans; notices of violations of Applicable Laws; plans
relating to the installation of any storage tanks to be installed in or under
the Premises (provided that 



 36
 








installation of storage tanks shall only be
permitted after Landlord has given Tenant its written consent to do so, which
consent Landlord may withhold in its sole and absolute discretion); and all
closure plans or any other documents required by any and all Governmental
Authorities for any storage tanks installed in, on or under the Premises for
the closure of any such storage tanks. 
Tenant shall not be required, however, to provide Landlord with any
portion of the Documents containing information of a proprietary nature that,
in and of themselves, do not contain a reference to any Hazardous Materials or
activities related to Hazardous Materials.


38.3.                        At any time, and from time to time,  prior to the expiration of the Term, Landlord
shall have the right to conduct appropriate tests of the Premises to
demonstrate that Hazardous Materials are present or that contamination has
occurred due to Tenant or Tenant’s agents, employees or invitees.  Tenant shall pay all reasonable costs of any
test of the Property demonstrating that Tenant has breached any provision of
this Lease regarding Hazardous Materials or has any clean-up obligations under
this Article 38.  Such tests shall
be conducted in a manner that minimizes any interference with Tenant’s normal
operations on the Premises.


38.4.                        If underground or other storage tanks storing
Hazardous Materials are located on the Premises or are hereafter placed on the
Premises by any party, Tenant shall monitor the storage tanks, maintain
appropriate records, implement reporting procedures, properly close any
underground storage tanks, and take or cause to be taken all other steps
necessary or required under the Applicable Laws.


38.5.                        Tenant’s obligations under this Article 38
shall survive the expiration or earlier termination of this Lease.  During any period of time needed by Tenant or
Landlord after the termination of this Lease to complete the removal from the
Premises of any such Hazardous Materials, Tenant shall continue to pay Rent in
accordance with this Lease, which Rent shall be prorated daily.


38.6.                        As used herein, the term “Hazardous
Material” means any hazardous or toxic substance, material or waste that is
or becomes regulated by any Governmental Authority.


39.                                 Miscellaneous.


39.1.                        This Lease shall be deemed and construed to
be an “absolute net lease” and, except as herein expressly provided, Landlord
shall receive all payments required to be made by Tenant free from all charges,
assessments, impositions, expenses and deductions of any and every kind or
nature whatsoever.  Landlord shall not be
required to furnish any services or facilities or to make any repairs, replacements
or Alterations of any kind in or on the Premises except as specifically
provided herein. Tenant shall receive all invoices and bills relative to the
Premises and, except as otherwise provided herein, shall pay for all expenses
directly to the person or company submitting a bill without first having to
forward payment for the expenses to Landlord. 
Tenant shall at Tenant’s sole cost and expense be responsible for the
management of the Premises, shall maintain the landscaping and parking lot (to the
extent the landscaping and parking lot are not maintained by the owner’s
association), and shall make those additional repairs and Alterations required
of Tenant hereunder to maintain the Premises in a condition consistent with the
quality of the condition as of the Execution Date, ordinary wear and tear
excepted.


39.2.                        Where applicable in this Lease, the singular
includes the plural and the masculine or neuter includes the masculine,
feminine and neuter.  The section
headings of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.


39.3.                        Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for a
lease, and shall not be effective as a lease or otherwise until execution by
and delivery to both Landlord and Tenant.


39.4.                        Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.


39.5.                        Each provision of this Lease performable by
Tenant shall be deemed both a covenant and a condition.



 37
 








39.6.                        Whenever consent or approval of either party
is required, that party shall not unreasonably withhold, condition or delay
such consent or approval, except as may be expressly set forth to the contrary.


39.7.                        The terms of this Lease are intended by the
parties as a final expression of their agreement with respect to the terms as
are included herein, and may not be contradicted by evidence of any prior or
contemporaneous agreement.


39.8.                        If any provision of this Lease is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative.


39.9.                        Either party may, but shall not be obligated
to, record a short form memorandum of this Lease, including a description of
the Purchase Option granted under Article 30 above.  Each party agrees to execute and deliver such
memorandum upon the other party’s request. 
Neither party shall record this Lease. 
Tenant shall be responsible for the cost of recording any memorandum of
this Lease, including any transfer or other taxes incurred in connection with
said recordation.


39.10.                  The language in all parts of this Lease shall
be in all cases construed as a whole according to its fair meaning and not
strictly for or against either Landlord or Tenant.


39.11.                  Each of the covenants, conditions and
agreements herein contained shall inure to the benefit of and shall apply to
and be binding upon the parties hereto and their respective heirs; legatees;
devisees; executors; administrators; and permitted successors, assigns,
sublessees.  Nothing in this Section
39.11 shall in any way alter the provisions of this Lease restricting
assignment or subletting.


39.12.                  Any notice, consent, demand, bill, statement
or other communication required or permitted to be given hereunder shall be in
writing and shall be given by personal delivery, overnight delivery with a
reputable nationwide overnight delivery service, or certified mail (return
receipt requested), and if given by personal delivery, shall be deemed
delivered upon receipt; if given by overnight delivery, shall be deemed
delivered one (1) day after deposit with a reputable nationwide overnight
delivery service; and, if given by certified mail (return receipt requested),
shall be deemed delivered three (3) business days after the time the notifying
party deposits the notice with the United States Postal Service.  Any notices given pursuant to this Lease
shall be addressed to Tenant at the Premises, or to Landlord or Tenant at the
addresses shown in Sections 2.9 and 2.10, respectively.  Either party may, by notice to the other
given pursuant to this Section, specify additional or different addresses for
notice purposes.


39.13.                  This Lease shall be governed by, construed
and enforced in accordance with the laws of the State in which the Premises are
located, without regard to such State’s conflict of law principles.


39.14.                  That individual or those individuals signing
this Lease guarantee, warrant and represent that said individual or individuals
have the power, authority and legal capacity to sign this Lease on behalf of
and to bind all entities, corporations, partnerships, limited liability
companies, joint venturers or other organizations and entities on whose behalf
said individual or individuals have signed.


39.15.                  Tenant agrees that it shall promptly furnish to
Landlord, from time to time, upon Landlord’s written request, the most recent
audited year-end financial statements reflecting Tenant’s current financial
condition.  Tenant shall, within ninety
(90) days after the end of Tenant’s financial year or as soon thereafter as
available, furnish Landlord with a certified copy of Tenant’s audited year-end
financial statements for the previous year (unless Tenant is a public company
that is listed on a United States stock exchange).  Tenant represents and warrants that all
financial statements, records and information furnished by Tenant to Landlord
in connection with this Lease are true, correct and complete in all
respects.  Notwithstanding the foregoing,
the provisions of this Section 39.15 shall not apply to Tenant so
long as Tenant is a publicly traded company that is listed on a United States
stock exchange.



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39.16.                  This Lease may be executed in one or more
counterparts, each of which, when taken together, shall constitute one and the
same document.


39.17.                  This Lease is subject to any recorded
covenants, conditions or restrictions on the Premises or Property (the “CC&Rs”).  Tenant shall comply with the CC&Rs.


39.18.                  Any notice of default or breach under this
Lease shall be given only if the party giving the notice has a reasonable, good
faith belief that a default or breach has occurred.


40.                                 Option to Extend Term. 
Tenant shall have the option (“Extension Option”) to extend the
Term of this Lease as to the entire Premises (and no less than the entire
Premises) upon the following terms and conditions.  Any extension of the Term pursuant to any
Extension Option shall be on all the same terms and conditions as this Lease,
except as follows:


40.1.                        Tenant shall have two (2) consecutive options
to extend the Term of this Lease for five (5) years each on the same terms and
conditions as this Lease.  Basic Annual
Rent shall be adjusted on the first (1st)
day of the extension term and each annual anniversary date thereof in
accordance with Article 6.


40.2.                        The Extension Option is not assignable
separate and apart from this Lease.


40.3.                        The Extension Option is conditional upon
Tenant giving Landlord written notice of its election to exercise the Extension
Option at least twelve (12) months prior to the end of the expiration of the
then-current Term.  Time shall be of the
essence as to Tenant’s exercise of any Extension Option.  Tenant assumes full responsibility for
maintaining a record of the deadlines to exercise any Extension Option.  Tenant acknowledges that it would be inequitable
to require Landlord to accept any exercise of any Extension Option after the
date provided for in this paragraph.


40.4.                        Notwithstanding anything contained in this Article
40, Tenant shall not have the right to exercise the Extension Option: (a) during
any time that Tenant is in Default under any provision of this Lease or the
Required Leases (provided, however, that, for purposes of this Section
40.4(b), Landlord shall not be required to provide Tenant with notice of
such Default but upon Tenant’s notification to Landlord of Tenant’s intent to
exercise the Extension Option, Landlord shall promptly provide Tenant with
written notice of such Defaults to which Landlord is aware) and continuing
until Tenant cures any such Default, if such Default is susceptible to being
cured; or (b) in the event that Tenant has defaulted in the performance of its
obligations under this Lease three (3) or more times and a service or late
charge has become payable under Section 24.1 for each of such defaults
during the twelve (12)-month period immediately prior to the date that Tenant
intends to exercise an Extension Option, whether or not Tenant has cured such
defaults.  Notwithstanding the foregoing,
if the nature of such default is such that it could reasonably be cured before
the deadline for Tenant’s exercise of the Extension Option, then the deadline
for Tenant’s exercise of the Extension Option shall be extended for five (5)
days to provide Tenant the opportunity to cure such default.


40.5.                        Except as provided in Section 40.4,
the period of time within which Tenant may exercise an Extension Option shall
not be extended or enlarged by reason of Tenant’s inability to exercise such
Extension Option because of the provisions of Section 40.4.


40.6.                        All of Tenant’s rights under the provisions
of the Extension Option shall terminate and be of no further force or effect
even after Tenant’s due and timely exercise of the Extension Option if, after
such exercise, but prior to the commencement date of the new term, (a) Tenant
fails to pay to Landlord a monetary obligation of Tenant for a period of twenty
(20) days after written notice from Landlord to Tenant, (b) Tenant fails to
commence to cure a default (other than a monetary default) within thirty (30)
days after the date Landlord gives notice to Tenant of such default, (c) Tenant
commences to cure a default (other than a monetary default) but does not
prosecute to completion prior to the commencement date of the extended Term
(unless Tenant is diligently prosecuting to completion and merely needs
additional time), or (d) Tenant has defaulted under this Lease three (3) or
more times and a service or late charge under Section 24.1 has become
payable for any such default, whether or not Tenant has cured such defaults.



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41.                                 Tenant’s Authority.  Tenant hereby
covenants and warrants that (a) Tenant is duly incorporated or otherwise
established or formed and validly existing under the laws of its state of
incorporation, establishment or formation, (b) Tenant has and is duly
qualified to do business in the state in which the Property is located,
(c) Tenant has full corporate, partnership, trust, association or other
appropriate power and authority to enter into this Lease and to perform all
Tenant’s obligations hereunder and (d) each person (and all of the persons
if more than one signs) signing this Lease on behalf of Tenant is duly and
validly authorized to do so.


42.                                 Landlord’s Authority.  Landlord
hereby covenants and warrants that (a) Landlord is duly incorporated or
otherwise established or formed and validly existing under the laws of its
state of incorporation, establishment or formation, (b) Landlord has and
is duly qualified to do business in the state in which the Property is located,
(c) Landlord has full corporate, partnership, trust, association or other
appropriate power and authority to enter into this Lease and to perform all
Landlord’s obligations hereunder and (d) each person (and all of the
persons if more than one signs) signing this Lease on behalf of Landlord is
duly and validly authorized to do so.


43.                                 Confidentiality.  Neither party
shall disclose any terms or conditions of this Lease (including Rent) or give a
copy of this Lease to any third party, and Landlord shall
not release to any third party any nonpublic financial information or nonpublic
information about Tenant’s ownership structure that Tenant gives Landlord, except
(a) if required by Applicable Laws or in any judicial proceeding, provided
that the releasing party has given the other party reasonable notice of such
requirement, if feasible, (b) to a party’s attorneys, accountants,
lenders, brokers and other bona fide consultants or advisers, provided
such third parties agree to be bound by this Section, or (c) to bona fide
prospective assignees or subtenants of this Lease, provided they agree in
writing to be bound by this Section. 
Notwithstanding the foregoing, either Landlord or Tenant may file a copy
of this Lease in connection with any NASDAQ or SEC filing.  The parties shall reasonably cooperate with
each other in connection with such filing.


44.                                 Odors and Exhaust.  If
the Buildings have an adequate ventilation system, Tenant shall vent the
Premises through such system.  Tenant
shall comply with Applicable Laws in connection with the venting of fumes and
odors from the Premises.


45.                                 Excavation.  If any excavation shall be
made upon land adjacent to or under the Buildings, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation license to enter the Premises for the purpose of performing such
work as said person shall deem reasonably necessary to preserve and protect the
Buildings from injury or damage and to support the same by proper foundations,
without any claim for damages or liability against Landlord (except in the case
of Landlord Parties’ willful misconduct or gross negligence) and without
reducing or otherwise affecting Tenant’s obligations under this Lease.  Any such work must be conducted in a manner
that minimizes disruption and inconvenience to Tenant.


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]



 40















IN WITNESS WHEREOF, the
parties hereto have executed this Lease as of the date first above written.


BMR-6114-6154 NANCY RIDGE DRIVE LLC:

a Delaware limited liability company


	
  By:

  	
  BioMed Realty, L.P.,

  	
   

  
	
   

  	
  a Maryland limited partnership,

  	
   

  
	
   

  	
  its sole member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary A. Kreitzer

  	
   

  
	
   

  	
  Name:

  	
  Gary A. Kreitzer

  
	
   

  	
  Title:

  	
  Executive Vice President

  
					



 


ARENA
PHARMACEUTICALS, INC.:

a Delaware corporation


	
  By:

  	
   

  	
  /s/ Robert E. Hoffman

  	
   

  
	
  Name:

  	
   

  	
  Robert E. Hoffman

  	
   

  
	
  Title:

  	
   

  	
  VP, Finance and CFO

  	
   

  



 


















EXHIBIT A


PREMISES


ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:


PARCEL A:


PARCEL 12 OF PARCEL MAP NO. 17347, IN THE CITY OF SAN DIEGO, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, AS PER THE MAP THEREOF FILED IN THE OFFICE OF
THE SAN DIEGO COUNTY RECORDER ON APRIL 13, 1994 AS FILE NO. 1994-0242762 OF
OFFICIAL RECORDS.


PARCEL B:


A NONEXCLUSIVE EASEMENT FOR INGRESS AND EGRESS BY VEHICULAR AND
PEDESTRIAN TRAFFIC AND VEHICLE PARKING UPON, OVER AND ACROSS THE “COMMON AREA”
FOR THE BENEFIT OF THE OWNER, PRESENT AND FUTURE, AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS, TENANTS, CUSTOMERS AND INVITEES, TOGETHER WITH A
NONEXCLUSIVE EASEMENT UNDER AND THROUGH THE “COMMON AREA” FOR THE INSTALLATION,
MAINTENANCE, REMOVAL, AND REPLACEMENT OF WATER DRAINAGE SYSTEMS OR STRUCTURES,
WATER MAINS, SEWERS, WATER SPRINKLER SYSTEM LIENS, TELEPHONE OR ELECTRICAL
CONDUITS OR SYSTEMS, GAS MAINS AND ANY OTHER PUBLIC UTILITIES AND/OR SERVICE
EASEMENTS, AS CREATED SET FORTH, DEFINED, DESCRIBED AND GRANTED IN THAT CERTAIN
“DECLARATION OF RECIPROCAL EASEMENTS OF THE SORRENTO RIDGE BUSINESS PARK
PLANNED INDUSTRIAL DEVELOPMENT” RECORDED APRIL 13, 1994 AS FILE NO.
1994-0242763 OF OFFICIAL RECORDS.



 Exhibit A-1















EXHIBIT B


ACKNOWLEDGEMENT OF TERM
COMMENCEMENT DATE

AND TERM EXPIRATION DATE


THIS ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE AND TERM EXPIRATION DATE
is entered into as of [                ], 20[    ],
with reference to that certain Lease (the “Lease”) dated as of May 2,
2007, by Arena Pharmaceuticals, Inc., a Delaware corporation (“Tenant”),
in favor of BMR-6114-6154 Nancy Ridge
Drive LLC, a Delaware limited liability company (“Landlord”).  All capitalized terms used herein without
definition shall have the meanings ascribed to them in the Lease.


Tenant hereby confirms the
following:


1.             The Premises are located at 6154
Nancy Ridge Drive, San Diego, California.


2.             Tenant accepted possession of the
Premises under the Lease on May 2, 2007.


3.             The Premises are accepted in AS IS
condition


4.             All conditions of the Lease to be
performed by Landlord as a condition to the full effectiveness of the Lease
have been satisfied, and Landlord has fulfilled all of its duties in the nature
of inducements offered to Tenant to lease the Premises.


5.             In accordance with the provisions
of Section 3.3 of the Lease, the Term Commencement Date is May 2, 2007,
and, unless the Lease is terminated or extended prior to the Term Expiration
Date pursuant to its terms, the Term Expiration Date shall be May 31, 2027.


6.             The Lease is in full force and
effect, and the same represents the entire agreement between Landlord and
Tenant concerning the Premises [, except [               ]].


7.             Tenant has no existing defenses
against the enforcement of the Lease by Landlord, and there exist no offsets or
credits against Rent owed or to be owed by Tenant.


8.             The obligation to pay Rent is
presently in effect and all Rent obligations on the part of Tenant under the
Lease commenced to accrue on
[             ], 20[    ].


9.             The undersigned Tenant has not made
any prior assignment, transfer, hypothecation or pledge of the Lease or of the
rents thereunder or sublease of the Premises or any portion thereof.


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK]



 Exhibit B-1
 









IN WITNESS WHEREOF, the parties hereto have executed this
Acknowledgment of Term Commencement Date and Term Expiration Date as of [              ], 20[    ].


ARENA PHARMACEUTICALS, INC.,

a Delaware corporation


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 



 Exhibit B-2















EXHIBIT C


RULES AND REGULATIONS


NOTHING IN THESE RULES AND
REGULATIONS (“RULES AND REGULATIONS”) SHALL SUPPLANT ANY PROVISION OF
THE LEASE.  IN THE EVENT OF A CONFLICT OR
INCONSISTENCY BETWEEN THESE RULES AND REGULATIONS AND THE LEASE, THE LEASE
SHALL PREVAIL.


1.             Tenant
shall not obstruct any sidewalks or entrances to the Buildings, or any halls,
passages, exits, entrances or stairways within the Premises, in any case that
are required to be kept clear for health and safety reasons.


2.             Tenant
shall not place a load upon any floor of the Premises that exceeds the load per
square foot that (a) such floor was designed to carry or (b) is allowed by
Applicable Laws.


3.             Tenant
shall store all of its trash, garbage and Hazardous Materials within its
Premises or in designated receptacles outside of the Premises.  Tenant shall not place in any such receptacle
any material that cannot be disposed of in the ordinary and customary manner of
trash, garbage and Hazardous Materials disposal.


4.             Tenant
assumes any and all responsibility for protecting the Premises from theft,
robbery and pilferage, which responsibility includes keeping doors locked and
other means of entry to the Premises closed.


5.             Landlord
may waive any one or more of these Rules and Regulations for the benefit of
Tenant, but no such waiver by Landlord shall be construed as a waiver of such
Rules and Regulations in favor of Tenant, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against Tenant.


6.             These
Rules and Regulations are in addition to, and shall not be construed to in any
way modify or amend, in whole or in part, the terms covenants, agreements and
conditions of the Lease.


7.             Tenant
shall be responsible for the observance of these Rules and Regulations by
Tenant’s employees, agents, clients, customers, invitees and guests.



 Exhibit C-1















EXHIBIT D


FORM OF ESTOPPEL CERTIFICATE


To:          BMR-6114-6154 Nancy Ridge Drive LLC


17140 Bernardo Center
Drive, Suite 222


San Diego, CA 92128


Attention: General Counsel/Real Estate


BioMed Realty, L.P.


c/o BioMed Realty
Trust, Inc.


17140 Bernardo Center
Drive, Suite 222


San Diego, CA 92128


Re:                               6154
Nancy Ridge Drive (the “Premises”) in San Diego, California (the “Property”)


The
undersigned tenant (“Tenant”) hereby certifies to you as follows:


1.             Tenant
is a tenant at the Property under a lease (the “Lease”) for the Premises
dated as of May 2, 2007.  The Lease has
not been cancelled, modified, assigned, extended or amended [except as
follows:  [                ]],
and there are no other agreements, written or oral, affecting or relating to
Tenant’s lease of the Premises or any other space at the Property.  The lease term expires on [                ], 20[     ].


2.             Tenant
took possession of the Premises, currently consisting of [                ]
square feet, on [                ], 20[     ],
and commenced to pay rent on [                ],
20[     ]. 
Tenant has full possession of the Premises, has not assigned the Lease
or sublet any part of the Premises, and does not hold the Premises under an
assignment or sublease[, except as follows: 
[                ]].


3.             All
base rent, rent escalations and additional rent under the Lease have been paid
through [                ], 20[    ].  There is no prepaid rent[, except $[                ]][,
and the amount of security deposit is $[                ]
[in cash][in the form of a letter of credit]]. 
Tenant currently has no right to any future rent abatement under the
Lease.


4.             Base
rent is currently payable in the amount of $[                ]
per month.


5.             Tenant
is currently paying estimated payments of additional rent of $[                ]
per month on account of real estate taxes, insurance, management fees and
common area maintenance expenses.


6.             Landlord
was not required to perform any work or tenant improvements for Tenant under
the Lease.


7.             The
Lease is in full force and effect, free from default and free from any event
that could become a default under the Lease, and Tenant has no claims against
Landlord or offsets or defenses against rent, and there are no disputes with
Landlord. Tenant has received no notice of prior sale, transfer, assignment,
hypothecation or pledge of the Lease or of the rents payable thereunder[,
except [                ]].


8.             Tenant
has the following expansion rights for the Property:  [                ].  Tenant has the following options to purchase
the Property: [                                                     ].


9.             To
Tenant’s knowledge, no hazardous wastes have been generated, treated, stored or
disposed of by or on behalf of Tenant in, on or around the Premises in
violation of any environmental laws that have not been corrected.


10.           The
undersigned has executed this Estoppel Certificate with the knowledge and
understanding that [INSERT NAME OF LANDLORD, PURCHASER OR LENDER, AS
APPROPRIATE] or its assignee is acquiring the Property in reliance on this
certificate and that the undersigned shall be bound by this certificate.  The statements contained herein may be relied
upon by [INSERT NAME OF PURCHASER OR LENDER, AS APPROPRIATE], [LANDLORD], BioMed
Realty, L.P., BioMed Realty Trust, Inc., and any mortgagee of the Property and
their respective successors and assigns.



 Exhibit D-1
 









Any
capitalized terms not defined herein shall have the respective meanings given
in the Lease.


Dated this [                              ]
day of [                ], 20[     ].


[                ],

a [                ]


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 



 Exhibit D-2















EXHIBIT E


FORM OF LETTER OF CREDIT


[On
letterhead or L/C letterhead of Issuer.]


LETTER OF CREDIT


Date:                 ,
200  


_________________________
(the “Beneficiary”)


_________________________


_________________________


Attention:_________________


L/C. No.: _________________


Loan No. _________________


 


Ladies and Gentlemen:


We establish in favor of Beneficiary our
irrevocable and unconditional Letter of Credit numbered as identified above
(the “L/C”) for an aggregate amount of $                ,
expiring at     :00 p.m. on               
or, if such day is not a Banking Day, then the next succeeding Banking Day
(such date, as extended from time to time, the “Expiry Date”). “Banking
Day” means a weekday except a weekday when commercial banks in                       
are authorized or required to close.


We authorize Beneficiary to
draw on us (the “Issuer”)
for the account of               
(the “Account Party”), under the terms and conditions of this L/C.


Funds under this L/C are
available by presenting the following documentation (the “Drawing
Documentation”): (a) the original L/C and (b) a sight draft substantially
in the form of Exhibit A, with blanks filled in and bracketed
items provided as appropriate. No other evidence of authority, certificate, or documentation
is required.


Drawing Documentation must
be presented at Issuer’s office at                     
on or before the Expiry Date by personal presentation, courier or messenger
service, or fax. Presentation by fax shall be effective upon electronic
confirmation of transmission as evidenced by a printed report from the sender’s
fax machine. After any fax presentation, but not as a condition to its
effectiveness, Beneficiary shall with reasonable promptness deliver the
original Drawing Documentation by any other means.  Issuer will on request issue a receipt for
Drawing Documentation.


We agree, irrevocably, and
irrespective of any claim by any other person, to honor drafts drawn under and
in conformity with this L/C, within the maximum amount of this L/C, presented
to us on or before the Expiry Date, provided we also receive (on or before the
Expiry Date) any other Drawing Documentation this L/C requires.


We shall pay this L/C only
from our own funds by check or wire transfer, in compliance with the Drawing
Documentation.


If Beneficiary presents
proper Drawing Documentation to us on or before the Expiry Date, then we shall
pay under this L/C at or before the following time (the “Payment Deadline”):
(a) if presentment is made at or before noon of any Banking Day, then the close
of the next Banking Day; and (b) otherwise, the close of the second Banking Day
following presentment.  We waive any
right to delay payment beyond the Payment Deadline. If we determine that Drawing
Documentation is not proper, then we shall so advise Beneficiary in writing,
specifying all grounds for our determination, within one Banking Day after the
Payment Deadline.


Partial drawings are
permitted. This L/C shall, except to the extent reduced thereby, survive any
partial drawings.



 Exhibit E-1
 









We shall have no duty or
right to inquire into the validity of or basis for any draw under this L/C or
any Drawing Documentation.  We waive any
defense based on fraud or any claim of fraud.


The Expiry Date shall
automatically be extended by one year (but never beyond              
the “Outside Date”) unless, on or before the date 60 days before any
Expiry Date, we have given Beneficiary notice that the Expiry Date shall not be
so extended (a “Nonrenewal Notice”). We shall promptly upon request
confirm any extension of the Expiry Date under the preceding sentence by
issuing an amendment to this L/C, but such an amendment is not required for the
extension to be effective. We need not give any notice of the Outside Date.


Beneficiary may from time to
time without charge transfer this L/C, in whole but not in part, to any
transferee (the “Transferee”). 
Issuer shall look solely to Account Party for payment of any fee for any
transfer of this L/C.  Such payment is
not a condition to any such transfer. Beneficiary or Transferee shall
consummate such transfer by delivering to Issuer the original of this L/C and a
Transfer Notice substantially in the form of Exhibit B, purportedly
signed by Beneficiary, and designating Transferee.  Issuer shall promptly reissue or amend this
L/C in favor of Transferee as Beneficiary. 
Upon any transfer, all references to Beneficiary shall automatically
refer to Transferee, who may then exercise all rights of Beneficiary.  Issuer expressly consents to any transfers
made from time to time in compliance with this paragraph.


Any notice to Beneficiary
shall be in writing and delivered by hand with receipt acknowledged or by
overnight delivery service such as FedEx (with proof of delivery) at the above
address, or such other address as Beneficiary may specify by written notice to
Issuer. A copy of any such notice shall also be delivered, as a condition to
the effectiveness of such notice, to:                        
(or such replacement as Beneficiary designates from time to time by written notice).


No amendment that adversely
affects Beneficiary shall be effective without Beneficiary’s written consent.


This L/C is subject to and
incorporates by reference: (a) the Uniform Customs and Practice for Documentary
Credits, International Chamber of Commerce Publication No. 500 (the “UCP”);
and (b) to the extent not inconsistent with the UCP, Article 5 of the Uniform
Commercial Code of the State of New York.


	
  

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Issuer Signature]

  



 



 Exhibit E-2
 









EXHIBIT
A


FORM
OF SIGHT DRAFT


[BENEFICIARY LETTERHEAD]


TO:


[Name
and Address of Issuer]


SIGHT
DRAFT


AT SIGHT, pay to the Order of                            ,
the sum of                            
United States Dollars ($                           ).
Drawn under [Issuer] Letter of Credit No.                            
dated                            .


[Issuer is hereby directed to pay the
proceeds of this Sight Draft solely to the following account:                                         .]


[Name and signature block, with signature or
purported signature of Beneficiary]


Date:                            



 Exhibit E-3
 









EXHIBIT
B


FORM
OF TRANSFER NOTICE


[BENEFICIARY LETTERHEAD]


TO:


[Name and Address of Issuer] (the “Issuer”)


TRANSFER
NOTICE


By signing below, the undersigned,
Beneficiary (the “Beneficiary”) under Issuer’s Letter of Credit No.                            
dated                            
(the “L/C”), transfers the L/C to the following transferee (the “Transferee”):


[Transferee Name and Address]


The original L/C is enclosed. Beneficiary
directs Issuer to reissue or amend the L/C in favor of Transferee as
Beneficiary. Beneficiary represents and warrants that Beneficiary has not
transferred, assigned, or encumbered the L/C or any interest in the L/C, which
transfer, assignment, or encumbrance remains in effect.


[Name and signature block, with signature or
purported signature of Beneficiary]


Date:                            



 Exhibit E-4















EXHIBIT
F


FORM OF
NOTICE OF EXERCISE OF PURCHASE OPTION


[On
Tenant’s letterhead]


To:          BMR-6114-6154 Nancy Ridge Drive LLC


17140 Bernardo Center
Drive, Suite 222


San Diego, CA 92128


Attention: General Counsel/Real Estate


BioMed Realty, L.P.


c/o BioMed Realty
Trust, Inc.


17140 Bernardo Center
Drive, Suite 222


San Diego, CA 92128


Re:          Notice
of Exercise of Purchase Option


The
undersigned Tenant hereby exercises its option to purchase the real property
located at [                         ]
Nancy Ridge Drive, San Diego, California in accordance with Section 30 of those
certain Leases dated May 2, 2007 by and between BMR-6114-6154 Nancy Ridge Drive
LLC and Arena Pharmaceuticals, Inc.


Please
call the undersigned immediately at                              
if you have any questions.


Sincerely,


TENANT:


[name of Tenant],


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 



 Exhibit F-1















SCHEDULE 1


BASIC ANNUAL RENT INCREASE




	
  Calendar Year

  	
   

  	
  Additional

  Monthly Rental

  Installment of

  Basic Annual Rent

  	
   

  
	
  2007

  	
   

  	
  $

  	
  112,500.00

  	
   

  
	
  2008

  	
   

  	
  $

  	
  115,312.50

  	
   

  
	
  2009

  	
   

  	
  $

  	
  118,195.31

  	
   

  
	
  2010

  	
   

  	
  $

  	
  121,150.20

  	
   

  
	
  2011

  	
   

  	
  $

  	
  124,178.95

  	
   

  
	
  2012

  	
   

  	
  $

  	
  127,283.42

  	
   

  






 



 Schedule 1
 









SCHEDULE 2


BASIC ANNUAL RENT REDUCTION




	
  Calendar Year

  	
   

  	
  Monthly Rental

  Installment of Basic

  Annual Rent

  Reduction(1)

  	
   

  
	
  2007

  	
   

  	
  $

  	
  58,109.07

  	
   

  
	
  2008

  	
   

  	
  $

  	
  59,561.80

  	
   

  
	
  2009

  	
   

  	
  $

  	
  61,050.84

  	
   

  
	
  2010

  	
   

  	
  $

  	
  62,577.11

  	
   

  
	
  2011

  	
   

  	
  $

  	
  64,141.54

  	
   

  
	
  2012

  	
   

  	
  $

  	
  65,745.08

  	
   

  






 


 






(1) Amount shown is
amount by which the monthly installment of the Basic Annual Rent shall be
reduced.



 Schedule 2