exv10w33





 Exhibit
10.33

LEASE AGREEMENT




     THIS LEASE AGREEMENT (this “Lease”) is made this 9 day of July, 2010, between ARE-SAN FRANCISCO NO. 12, LLC, a
Delaware limited liability company (“Landlord”), and ONYX PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”).



	 	 	 

	Address:

	 	249 East Grand Avenue, South San Francisco, California
	 
	 	 
	Premises:

	 	That portion of the Project, consisting of the first and second floors of the Building,
containing approximately 57,755 rentable square feet, as determined by Landlord, as shown on
Exhibit A, subject to adjustment as provided for in Section 41 hereof.
	 
	 	 
	Project:

	 	The real property on which the building (the “Building”) in which the Premises are
located, together with all improvements thereon and appurtenances thereto as described on
Exhibit B.
	 
	 	 
	Base Rent:

	 	$2.85 per rentable square foot of the Premises per month





Rentable Area of Premises: 57,755 sq. ft., subject to adjustment as provided for in Section 41
hereof.



Rentable Area of Building: 129,501 sq. ft.



Rentable Area of Project: 129,501 sq. ft., subject to adjustment as provided form in Section 5
hereof



Building’s Share of Project: 100%



Tenant’s Share of Operating Expenses of Building: 44.6%, subject to adjustment as provided for in
Section 41 hereof.



Tenant’s Share of Operating Expenses of Project: 44.6%, subject to adjustment as provided for in
Section 5 and Section 41 hereof.



Security Deposit: $164,601



Rent Adjustment Percentage: 3%




	 	 	 

	Base Term:

	 	Beginning on the Commencement Date and ending 120 months from the first day of the
first full month following the Rent Commencement Date.
	 
	 	 
	Permitted Use:

	 	Research and development laboratory, office and other uses consistent with the
character of the Project and otherwise in compliance with the provisions of Section 7 hereof.






	 	 	 

	Address for Rent Payment:

	 	Landlord’s Notice Address:
	P.O. Box 975383

	 	385 E. Colorado Boulevard, Suite 299
	Dallas, TX 75397-5383

	 	Pasadena, CA 91101
	 

	 	Attention: Corporate Secretary
	 
	 	 
	Tenant’s Notice Address:
	 	 
	After Tenant Occupies the Building:

	 	Before Tenant Occupies the Building:
	249 E. Grand Avenue

	 	2100 Powell Street
	South San Francisco, CA 94080

	 	Emeryville, CA 94608
	Attention: General Counsel

	 	Attention: General Counsel







	 	 	 	 	 

	 

	 	
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RIGHTS RESERVED. Confidential and Proprietary — Do Not

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The following Exhibits and Addenda are attached hereto and incorporated herein by this
reference:




	 	 	 

	þ EXHIBIT A — PREMISES DESCRIPTION

	 	þ EXHIBIT B — DESCRIPTION OF PROJECT
	þ EXHIBIT C — WORK LETTER

	 	þ EXHIBIT D — COMMENCEMENT DATE
	þ EXHIBIT E — RULES AND REGULATIONS

	 	þ EXHIBIT F — TENANT’S PERSONAL PROPERTY
	þ EXHIBIT G — NORTHERN FACILITY LAND

	 	þ EXHIBIT H — APPROVED SIGNAGE
	þ EXHIBIT I — INTENTIONALLY OMITTED

	 	þ EXHIBIT J — SITE PLAN






     1. Lease of Premises. Upon and subject to all of the terms and conditions hereof,
Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from
Landlord. The portions of the Project which are for the non-exclusive use of tenants of the
Project are collectively referred to herein as the “Common Areas.” Landlord reserves the right
to modify Common Areas, provided that such modifications do not materially adversely affect
Tenant’s use of the Premises for the Permitted Use and provided that such modifications do not
materially increase the obligations or materially decrease the rights of Tenant under this
Lease.



     2. Delivery; Acceptance of Premises; Commencement Date. Landlord shall make the Premises
available to Tenant for Tenant’s Work under the Work Letter within 2 days of full execution of
this Lease and Tenant’s delivery of evidence of the insurance required hereby and by the Work
Letter (“Delivery” or “Deliver”). As used herein, the term “Tenant’s Work” shall have the
meaning set forth for such term in the Work Letter.



     The “Commencement Date” shall be the date Landlord Delivers the Premises to Tenant. The
“Rent Commencement Date” shall be the earliest of: (i) the date the Tenant Improvements (as
defined in the Work Letter) are Substantially Completed (as defined in the Work Letter) by
Tenant; (ii) the date Tenant conducts any business in the Premises or any part thereof; and
(iii) April 1, 2011 (“Outside Date”); provided, however, that the Outside Date shall be
delayed one day for each day that Substantial Completion of the Tenant Improvements is delayed
due to Landlord Delay (as defined in the Work Letter) and Force Majeure (as hereinafter
defined). Upon request of Landlord, Tenant shall execute and deliver a written acknowledgment
of the Commencement Date, the Rent Commencement Date and the expiration date of the Term when
such are established in the form of the “Acknowledgement of Commencement Date” attached to
this Lease as Exhibit D; provided, however, Tenant’s failure to execute and deliver such
acknowledgment shall not affect Landlord’s rights hereunder. The “Term” of this Lease shall be
the Base Term, as defined above on the first page of this Lease and any Extension Terms which
Tenant may elect pursuant to Section 40 hereof.



     Except as set forth in this Lease or the Work Letter, if applicable: (i) Tenant
shall accept the Premises in their condition as of the Commencement Date, subject to all
applicable Legal Requirements (as defined in Section 7 hereof); (ii) Landlord shall have no
obligation for any defects in the Premises; and (iii) Tenant’s taking possession of the
Premises shall be conclusive evidence that Tenant accepts the Premises and that the Premises
were in good condition at the time possession was taken. Any occupancy of the Premises by
Tenant before the Commencement Date shall be subject to all of the terms and conditions of
this Lease, except the obligation to pay Base Rent or Operating Expenses.



     Notwithstanding anything to the contrary contained herein, for the period of 90
consecutive days after the Commencement Date, Landlord shall, at its sole cost and expense
(which shall not constitute an Operating Expense), be responsible for any repairs that are
required to be made to the roof of and elevators in the Building, unless Tenant and/or any
Tenant Party was responsible for the cause of such repair, in which case Tenant shall pay the
cost.



     Tenant agrees and acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the condition of all or any portion of the
Premises or the Project, and/or the suitability of the Premises or the Project for the conduct
of Tenant’s business, and Tenant waives any implied warranty that the Premises or the Project
are suitable for the Permitted Use. This Lease constitutes the complete agreement of Landlord
and Tenant with respect to the subject matter





	 	 	 	 	 

	 

	 	
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RIGHTS RESERVED. Confidential and Proprietary — Do Not

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hereof and supersedes any and all prior representations, inducements, promises,
agreements, understandings and negotiations which are not contained herein. Landlord in executing
this Lease does so in reliance upon Tenant’s representations, warranties, acknowledgments and
agreements contained herein.




     3. Rent.



     (a) Base Rent. The Base Rent for the month in which the Rent Commencement Date occurs and the
Security Deposit shall be due and payable on delivery of an executed copy of this Lease to
Landlord. Tenant shall pay to Landlord in advance, without demand, abatement, deduction or
set-off, monthly installments of Base Rent on or before the first day of each calendar month
during the Term hereof after the Rent Commencement Date, in lawful money of the United States of
America, at the office of Landlord for payment of Rent set forth above, or to such other person or
at such other place as Landlord may from time to time designate in writing. Payments of Base Rent
for any fractional calendar month shall be prorated. The obligation of Tenant to pay Base Rent and
other sums to Landlord and the obligations of Landlord under this Lease are independent
obligations. Tenant shall have no right at any time to abate, reduce, or set-off any Rent (as
defined in Section 5) due hereunder except for any abatement as expressly provided in this Lease.



     (b) Additional Rent. In addition to Base Rent, Tenant agrees to pay to Landlord as additional
rent (“Additional Rent”): (i) Tenant’s Share of “Operating Expenses” (as defined in Section 5),
and (ii) the TI Rent (as defined in Section 4), and (iii) any and all other amounts Tenant assumes
or agrees to pay under the provisions of this Lease, including, without limitation, any and all
other sums that may become due by reason of any default of Tenant or failure to comply with the
agreements, terms, covenants and conditions of this Lease to be performed by Tenant, after any
applicable notice and cure period.



     4. Base Rent Adjustments.



     (a) Additional Tenant Improvement Allowance. Landlord shall, subject to the terms of
the Work Letter, make the Additional Tenant Improvement Allowance (as defined in the Work Letter)
available to Tenant for the construction of the Tenant Improvements. Commencing on the Rent
Commencement Date, and continuing thereafter monthly on the same day that Base Rent is due, in
addition to Base Rent, Tenant agrees to pay to Landlord the amount necessary to fully amortize
over the Base Term, the portion of the Additional Tenant Improvement Allowance actually funded by
Landlord with interest at a rate of 8.5% per annum and paid in equal monthly installments (“TI
Rent”). The Additional Tenant Improvement Allowance shall only be available for use by Tenant as
part of the construction of the Tenant Improvements and Tenant shall have no right thereafter to
use any undisbursed portion thereof.



     (b) Annual Adjustments. Base Rent shall be increased on each annual anniversary of the
first day of the calendar month following the Rent Commencement Date (each an “Adjustment Date”)
by multiplying the Base Rent payable immediately before such Adjustment Date by the Rent
Adjustment Percentage and adding the resulting amount to the Base Rent payable immediately before
such Adjustment Date. Base Rent, as so adjusted, shall thereafter be due as provided herein. Base
Rent adjustments for any fractional calendar month shall be prorated.



     5. Operating Expense Payments. Landlord shall endeavor to deliver to Tenant, at
least
30 days prior to the beginning of each calendar year of the Term, a written estimate of
Operating Expenses for each calendar year during the Term (the “Annual Estimate”), which may be
revised by Landlord from time to time during such calendar year but no more than quarterly.
Commencing on the Rent Commencement Date and continuing thereafter on the first day of each month
of the Term, Tenant shall pay Landlord an amount equal to 1/12th of Tenant’s Share of the Annual
Estimate. Payments for any fractional calendar month shall be prorated.





	 	 	 	 	 

	 

	 	
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RIGHTS RESERVED. Confidential and Proprietary — Do Not

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     The term “Operating Expenses” means all costs and expenses of any kind or description
whatsoever incurred or accrued in accordance with GAAP (except as otherwise provided herein) each
calendar year by Landlord with respect to the Building (including the Building’s Share of all
costs and expenses of any kind or description incurred or accrued by Landlord with respect to the
Project which are not specific to the Building or any other building located in the
Project)(including, without duplication, Taxes (as defined in Section 9), capital repairs and
improvements amortized over the useful life of such capital items as reasonably determined by
Landlord taking into account relevant factors including, without limitation, the hours of
operation of the Building and its use for laboratory/office purposes (“Approved Capital
Expenses”), and the costs of Landlord’s third party property manager (not to exceed 1.5% of the
then-current Base Rent for each month of the calendar year) or, if there is no third party
property manager, administration rent in the amount of 1.5% of the then-current Base Rent for each
month of the calendar year), excluding only:



     (a) the original construction costs of the Project and renovation prior to the date of the
Lease and costs of correcting defects in such original construction or renovation;



     (b) expenditures for expansion of the Project, including to develop additional
buildings at the
Project;



     (c) any costs incurred to remove, study, test, remediate or otherwise related to the
presence of Hazardous Materials in or about the Building or the Project, which Hazardous Materials
Tenant proves
(i) existed prior to the Commencement Date, except to the extent caused by or
contributed to by Tenant or any Tenant Party, (ii) originated from any separately demised tenant
space within the Project other than the Premises, except to the extent caused by or contributed to
by Tenant or any Tenant Party, or (iii) were not brought upon, kept, used, stored, handled,
treated, generated in, or released or disposed of from, the Project by Tenant or any Tenant Party
(as herein defined);



     (d) interest, principal payments of Mortgage (as defined in Section 27) debts of Landlord,
financing costs and amortization of funds borrowed by Landlord, whether secured or unsecured and
all payments or base rent (but not taxes or operating expenses) under any ground lease or other
underlying lease of all or any portion of the Project;



     (e) depreciation of the Project and reserves (except for capital improvements, the cost of
which are includable in Operating Expenses);



     (f) advertising, legal and space planning expenses and leasing commissions and other costs
and expenses incurred in procuring and leasing space to tenants for the Project, including any
leasing office maintained in the Project, free rent and construction allowances for tenants;



     (g) legal and other expenses incurred in the negotiation or enforcement of leases;



     (h) completing, fixturing, improving, renovating, painting, redecorating or other work, which
Landlord pays for or performs for other tenants within their premises, and costs of correcting
defects in such work;



     (i) costs to be reimbursed by other tenants of the Project or Taxes to be paid directly by
Tenant or other tenants of the Project, whether or not actually paid;



     (j) salaries, wages, benefits and other compensation paid to officers and employees of
Landlord who are not assigned in whole or in part to the operation, management, maintenance or
repair of the Project;



     (k) general organizational, administrative and overhead costs relating to maintaining
Landlord’s existence, either as a corporation, partnership, or other entity, including general
corporate, legal and accounting expenses;






	 	 	 	 	 

	 

	 	
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     (l) costs (including attorneys’ fees and costs of settlement, judgments and payments in lieu
thereof) incurred in connection with disputes with tenants, other occupants, or prospective
tenants, and costs and expenses, including legal fees, incurred in connection with negotiations or
disputes with employees, consultants, management agents, leasing agents, purchasers or mortgagees
of the Building;



     (m) costs incurred by Landlord due to the violation by Landlord, its employees, agents
or contractors or any tenant of the terms and conditions of any lease of space in the Project or
any Legal Requirement (as defined in Section 7);



     (n) penalties, fines or interest incurred as a result of Landlord’s inability or failure to
make payment of Taxes and/or to file any tax or informational returns when due, or from Landlord’s
failure to make any payment of Taxes required to be made by Landlord hereunder before delinquency;



     (o) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in or to the Project to the extent the same exceeds the costs
of such goods and/or services rendered by unaffiliated third parties on a competitive basis;



     (p) costs of Landlord’s charitable or political contributions, or of fine art
maintained at the
Project;



     (q) costs in connection with services (including electricity and janitorial), items or other
benefits of a type which are not provided by Landlord to Tenant without specific charges therefor,
but which are provided to another tenant or occupant of the Project, whether or not such other
tenant or occupant is specifically charged therefor by Landlord;



     (r) costs incurred in the sale or refinancing of the Project;



     (s) net income taxes of Landlord or the owner of any interest in the Project, franchise,
capital stock, gift, estate or inheritance taxes or any federal, state or local documentary taxes
imposed against the Project or any portion thereof or interest therein;



     (t) any expenses otherwise includable within Operating Expenses to the extent actually
reimbursed by persons other than tenants of the Project under leases for space in the Project;



     (u) costs incurred in connection with the operation of any parking concession
within the Project;



     (v) costs incurred in connection with the performance of alterations or modifications
to the Project (other than the Premises for which Tenant shall be solely responsible for) that are
required solely due to the non-compliance of the Project with Legal Requirements applicable to the
Project (other than the Premises for which Tenant shall be solely responsible for) as of the
Commencement Date;



     (w) costs occasioned by condemnation; and



     (x) until the square footage of such buildings are included in the rentable area of the
Project pursuant to the last paragraph of this Section 5, costs attributable to other portions of
the Project other than Phase I as shown on the site plan attached hereto as Exhibit J.



     Notwithstanding anything to the contrary contained in this Lease, Tenant’s Share of
each deductible affecting the Premises (as the same may be expanded pursuant to the terms of this
Lease) or each uninsured casualty damage shall not exceed $12.00 per rentable square foot of the
Premises (as the same may be expanded pursuant to the terms of this Lease) (the “Cap”). Commencing
on the Rent Commencement Date and on the first day of each month thereafter, the Cap shall be
reduced by $0.125 per rentable square foot of the Premises; provided, however, if the Term of the
Lease is extended for any reason (e.g., Tenant extends for an Extension Term or the Term is
extended pursuant to the provisions of






	 	 	 	 	 

	 

	 	
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Section 39(a)), then the Cap shall be increased on the commencement date of the applicable
extension to an amount equal to the product of the number of years remaining on the Term
multiplied by $1.20 per rentable square foot of the Premises and the same shall be reduced each
month by $0.125 per rentable square foot of the Premises. Notwithstanding anything to the contrary
contained in this paragraph in no event shall the Cap be reduced below $6.00 per rentable square
foot of the Premises (as the same may be expanded pursuant to the terms of this Lease). Tenant
shall pay Tenant’s Share of any such deductible or uninsured damage in equal monthly installments
(not to exceed the applicable Cap) amortized over the remaining balance of the Base Term of this
Lease (or, if the event occurs during an Extension Term, then over the remaining balance of such
Extension Term) with interest at 8% per annum.




     Within 90 days after the end of each calendar year (or such longer period as may be
reasonably required), Landlord shall furnish to Tenant a statement (an “Annual Statement”) showing
in reasonable detail: (a) the total and Tenant’s Share of actual Operating Expenses for the
previous calendar year, and
(b) the total of Tenant’s payments in respect of Operating Expenses for such year. If
Tenant’s Share of actual Operating Expenses for such year exceeds Tenant’s payments of Operating
Expenses for such year, the excess shall be due and payable by Tenant as Rent within 30 days after
delivery of such Annual Statement to Tenant. If Tenant’s payments of Operating Expenses for such
year exceed Tenant’s Share of actual Operating Expenses for such year Landlord shall pay the
excess to Tenant within 30 days after delivery of such Annual Statement, except that after the
expiration, or earlier termination of the Term or if Tenant is delinquent in its obligation to pay
Rent, Landlord shall pay the excess to Tenant after deducting all other amounts due Landlord.



     The Annual Statement shall be final and binding upon Tenant unless Tenant, within 60
days after Tenant’s receipt thereof, shall contest any item therein by giving written notice to
Landlord, specifying each item contested and the reason therefor. If, during such 60 day period,
Tenant reasonably and in good faith questions or contests the accuracy of Landlord’s statement of
Tenant’s Share of Operating Expenses, Landlord will provide Tenant with access to Landlord’s books
and records relating to the operation of the Project and such information as Landlord reasonably
determines to be responsive to Tenant’s questions (the “Expense Information”). If after Tenant’s
review of such Expense Information, Landlord and Tenant cannot agree upon the amount of Tenant’s
Share of Operating Expenses, then Tenant shall have the right to have a nationally or regionally
recognized independent public accounting firm selected by Tenant and approved by Landlord (which
approval shall not be unreasonably withheld or delayed), working pursuant to a fee arrangement
other than a contingent fee (at Tenant’s sole cost and expense), audit and/or review the Expense
Information for the year in question (the “Independent Review”). The results of any such
Independent Review shall be binding on Landlord and Tenant. If the Independent Review shows that
the payments actually made by Tenant with respect to Operating Expenses for the calendar year in
question exceeded Tenant’s Share of Operating Expenses for such calendar year, Landlord shall pay
the excess to Tenant within 30 days after delivery of such statement, except that after the
expiration or earlier termination of this Lease or if Tenant is delinquent in its obligation to
pay Rent, Landlord shall pay the excess to Tenant after deducting all other amounts due Landlord.
If the Independent Review shows that Tenant’s payments with respect to Operating Expenses for such
calendar year were less than Tenant’s Share of Operating Expenses for the calendar year, Tenant
shall pay the deficiency to Landlord within 30 days after delivery of such statement. If the
Independent Review shows that Tenant has overpaid with respect to Operating Expenses by more than
5% then Landlord shall reimburse Tenant for all costs incurred by Tenant for the Independent
Review. Operating Expenses for the calendar years in which Tenant’s obligation to share therein
begins and ends shall be prorated such that Tenant shall not be required to pay any Taxes or other
Operating Expenses for periods prior to the Rent Commencement Date or after the termination of
this Lease.



     “Tenant’s Share” shall be the percentage set forth on the first page of this Lease as
Tenant’s Share as reasonably adjusted by Landlord for changes in the physical size of the Premises
or the Project occurring thereafter. The rentable area of the Premises shall not be subject to
remeasurement by either party. If Landlord has a reasonable basis for doing so, Landlord may
equitably charge Tenant for any item of expense or cost reimbursable by Tenant that relates to a
repair, replacement, or service that benefits only the Premises or only a portion of the Project
that includes the Premises or that varies with





	 	 	 	 	 

	 

	 	
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occupancy or use. Base Rent, Tenant’s Share of Operating Expenses and all other amounts
payable by Tenant to Landlord hereunder are collectively referred to herein as “Rent.”




     Landlord and Tenant acknowledge that Landlord intends to develop other buildings at the
Project. Upon receipt of a temporary or permanent certificate of occupancy for each new building
at the Project,
(x) the definition of “Rentable Area of Project” on page 1 of this Lease shall be amended
as to reflect the actual rentable square footage of such buildings, and (y) the definitions of
“Building’s Share of Project” and “Tenant’s Share of Operating Expenses of Project” on page 1 of
this Lease shall also be amended due to the fact that the same were calculated based on the actual
rentable square footage of the Building and the Project as of the date of this Lease.



     6. Security Deposit. Tenant shall deposit with Landlord, upon delivery of an executed
copy of this Lease to Landlord, a security deposit (the “Security Deposit”) for the performance of
all of Tenant’s obligations hereunder in the amount set forth on page 1 of this Lease, which
Security Deposit shall be in the form of an unconditional and irrevocable letter of credit (the
“Letter of Credit”): (i) in form and substance satisfactory to Landlord, (ii) naming Landlord as
beneficiary, (iii) expressly allowing Landlord to draw upon it at any time from time to time by
delivering to the issuer notice that Landlord is entitled to draw thereunder, (iv) issued by an
FDIC-insured financial institution satisfactory to Landlord, and (v) redeemable by presentation of
a sight draft in the state of Landlord’s choice. If Tenant does not provide Landlord with a
substitute Letter of Credit complying with all of the requirements hereof at least 10 days before
the stated expiration date of any then current Letter of Credit, Landlord shall have the right to
draw the full amount of the current Letter of Credit and hold the funds drawn in cash without
obligation for interest thereon as the Security Deposit until Tenant shall have replaced the
expired Letter of Credit with a new Letter of Credit consistent with the requirements herein, at
which time Landlord shall refund the amount of the previously drawn Letter of Credit to Tenant
less any amounts applied under this Lease. The Security Deposit shall be held by Landlord as
security for the performance of Tenant’s obligations under this Lease. The Security Deposit is not
an advance rental deposit or a measure of Landlord’s damages in case of Tenant’s default. Upon
each occurrence of a Default (as defined in Section 20), Landlord may use all or any part of the
Security Deposit to pay delinquent payments due under this Lease, future rent damages under
California Civil Code Section 1951.2, and the cost of any damage, injury, expense or liability
caused by such Default, without prejudice to any other remedy provided herein or provided by law.
Landlord’s right to use the Security Deposit under this Section 6 includes the right to use the
Security Deposit to pay future rent damages following the termination of this Lease pursuant to
Section 21(c) below. Upon any use of all or any portion of the Security Deposit, Tenant shall, at
Landlord’s option, (i) pay Landlord on demand the amount that will restore the Security Deposit to
the amount set forth on Page 1 of this Lease or (ii) restore the Letter of Credit to the amount
defined herein. Tenant hereby waives the provisions of any law, now or hereafter in force,
including, without limitation, California Civil Code Section 1950.7, which provide that Landlord
may claim from a 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, it being agreed that
Landlord may, in addition, claim those sums reasonably necessary to compensate Landlord for any
other loss or damage, foreseeable or unforeseeable, caused by the act or omission of Tenant or any
officer, employee, agent or invitee of Tenant. Upon 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 periods prior to the filing of such
proceedings. Upon any such use of all or any portion of the Security Deposit, Tenant shall, within
5 days after demand from Landlord, restore the Security Deposit to its original amount. If Tenant
shall fully perform every provision of this Lease to be performed by Tenant, the Security Deposit,
or any balance thereof (i.e., after deducting therefrom all amounts to which Landlord is entitled
under the provisions of this Lease), shall be returned to Tenant (or, at Landlord’s option, to the
last assignee of Tenant’s interest hereunder) within 90 days after the expiration or earlier
termination of this Lease.



     If Landlord transfers its interest in the Project or this Lease, Landlord shall either (a)
transfer any Security Deposit then held by Landlord to a person or entity assuming Landlord’s
obligations under this Section 6, or (b) return to Tenant any Security Deposit then held by
Landlord and remaining after the deductions permitted herein. Upon such transfer to such
transferee or the return of the Security Deposit





	 	 	 	 	 

	 

	 	
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to Tenant, Landlord shall have no further obligation with respect to the Security Deposit,
and Tenant’s right to the return of the Security Deposit shall apply solely against Landlord’s
transferee. Landlord’s obligation respecting the Security Deposit is that of a debtor, not a
trustee, and no interest shall accrue thereon.




     7. Use. The Premises shall be used solely for the Permitted Use set forth in the basic
lease provisions on page 1 of this Lease, and in compliance with all laws, orders, judgments,
ordinances, regulations, codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises, and to the use and occupancy thereof, including, without
limitation, the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (together with the
regulations promulgated pursuant thereto, “ADA”) (collectively, “Legal Requirements” and each, a
“Legal Requirement”). Tenant shall, as quickly as commercially feasible following written notice
from Landlord, discontinue any use of the Premises which is declared by any Governmental Authority
(as defined in Section 9) having jurisdiction to be a violation of a Legal Requirement. Tenant
will not use or permit the Premises to be used for any purpose or in any manner that would void
Tenant’s or Landlord’s insurance or cause the disallowance of any sprinkler or other credits. The
Permitted Use as defined in this Lease will not result in the voidance of or an increased
insurance risk or cause the disallowance of any sprinkler or other credits with respect to the
insurance currently being maintained by Landlord. Tenant shall not permit any part of the Premises
to be used as a “place of public accommodation”, as defined in the ADA or any similar legal
requirement. Tenant shall reimburse Landlord promptly upon demand for any additional premium
charged for any such insurance policy by reason of Tenant’s failure to comply with the provisions
of this Section or otherwise caused by Tenant’s use and/or occupancy of the Premises. Tenant will
use the Premises in a careful, safe and proper manner and will not commit or permit waste,
overload the floor or structure of the Premises, subject the Premises to use that would damage the
Premises or obstruct or interfere with the rights of Landlord or other tenants or occupants of the
Project, including conducting or giving notice of any auction, liquidation, or going out of
business sale on the Premises, or using or allowing the Premises to be used for any unlawful
purpose. Tenant shall cause any equipment or machinery to be installed in the Premises so as to
reasonably prevent sounds or vibrations from the Premises from extending into Common Areas, or
other space in the Project. Tenant shall not place any machinery or equipment which will overload
the floor in or upon the Premises or transport or move such items through the Common Areas of the
Project or in the Project elevators without the prior written consent of Landlord. Except as may
be provided under the Work Letter, Tenant shall not, without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed, use the Premises in any manner
which will require ventilation, air exchange, heating, gas, steam, electricity or water beyond the
existing capacity of the Project as proportionately allocated to the Premises based upon Tenant’s
Share as usually furnished for the Permitted Use.



     Landlord shall, as an Operating Expense (to the extent such Legal Requirement is generally
applicable to similar buildings in the area in which the Project is located) or at Tenant’s
expense (to the extent such Legal Requirement is applicable by reason of Tenant’s, as compared to
other tenants of the Project, particular use of the Premises or any alterations or modifications
or Tenant Improvements made by Tenant) make any alterations or modifications to the Project that
are required by Legal Requirements, including the ADA. However, Tenant shall, at Tenant’s expense,
make any alterations or modifications to the Premises that are required due to the non compliance
of the Premises with the Legal Requirements applicable to the Premises as of the Commencement
Date. Notwithstanding any other provision herein to the contrary, subject to the first sentence of
this paragraph, Tenant shall be responsible for any and all demands, claims, liabilities, losses,
costs, expenses, actions, causes of action, damages or judgments, and all reasonable expenses
incurred in investigating or resisting the same (including, without limitation, reasonable
attorneys’ fees, charges and disbursements and costs of suit) (collectively, “Claims”) arising out
of any failure of the Premises to comply with any Legal Requirements, and Tenant shall indemnify,
defend, hold and save Landlord harmless from and against any and all Claims arising out of or in
connection with any failure of the Premises to comply with any Legal Requirement.



     8. Holding Over. If, with Landlord’s express written consent, Tenant retains possession
of the Premises after the termination of the Term, (i) unless otherwise agreed in such written
consent, such






	 	 	 	 	 

	 

	 	
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possession shall be subject to immediate termination by Landlord at any time, (ii) all of the
other terms and provisions of this Lease (including, without limitation, the adjustment of Base
Rent pursuant to Section 4 hereof) shall remain in full force and effect (excluding any expansion
or renewal option or other similar right or option) during such holdover period, (iii) Tenant
shall continue to pay Base Rent in the amount payable upon the date of the expiration or earlier
termination of this Lease or such other amount as Landlord may indicate, in Landlord’s sole and
absolute discretion, in such written consent, and (iv) all other payments shall continue under the
terms of this Lease. If Tenant remains in possession of the Premises after the expiration or
earlier termination of the Term without the express written consent of Landlord, (A) Tenant shall
become a tenant at sufferance upon the terms of this Lease except that the monthly rental shall be
equal to 150% of Rent in effect during the last 30 days of the Term for the first 60 days of such
tenancy at sufferance and thereafter 200% of Rent in effect during the last 30 days of the Term,
and (B) Tenant shall be responsible for all damages suffered by Landlord resulting from or
occasioned by Tenant’s holding over, including consequential damages. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend this Lease except as
otherwise expressly provided, and this Section 8 shall not be construed as consent for Tenant to
retain possession of the Premises. Acceptance by Landlord of Rent after the expiration of the Term
or earlier termination of this Lease shall not result in a renewal or reinstatement of this Lease.




     9. Taxes. Landlord shall pay, as part of Operating Expenses, all taxes, levies, fees,
assessments and governmental charges of any kind, existing as of the Commencement Date or
thereafter enacted (collectively referred to as “Taxes”), imposed by any federal, state, regional,
municipal, local or other governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, “Governmental Authority”) during the Term, including, without
limitation, all Taxes: (i) imposed on or measured by or based, in whole or in part, on rent
payable to (or gross receipts received by) Landlord under this Lease and/or from the rental by
Landlord of the Project or any portion thereof, or (ii) based on the square footage, assessed
value or other measure or evaluation of any kind of the Premises or the Project, or (iii) assessed
or imposed by or on the operation or maintenance of any portion of the Premises or the Project,
including parking, or (iv) assessed or imposed by, or at the direction of, or resulting from Legal
Requirements, or interpretations thereof, promulgated by any Governmental Authority, or (v)
imposed as a license or other fee, charge, tax, or assessment on Landlord’s business or occupation
of leasing space in the Project. Landlord may contest by appropriate legal proceedings the amount,
validity, or application of any Taxes or liens securing Taxes. Notwithstanding anything to the
contrary herein, Landlord shall only charge Tenant for assessments as if those assessments were
paid by Landlord over the longest possible term which Landlord is permitted to pay for the
applicable assessments without additional charge other than interest, if any, provided under the
terms of the underlying assessments. Notwithstanding anything to the contrary contained in this
Lease, Taxes shall not include any net income taxes, gross receipts tax, estate taxes or
inheritance taxes imposed on Landlord except to the extent such net income taxes are in
substitution for any Taxes payable hereunder, or any late penalties, interest or fines unless due
to any late payment of Rent by Tenant. If any such Tax is levied or assessed directly against
Tenant, then Tenant shall be responsible for and shall pay the same at such times and in such
manner as the taxing authority shall require. Tenant shall pay, prior to delinquency, any and all
Taxes levied or assessed against any personal property or trade fixtures placed by Tenant in the
Premises, whether levied or assessed against Landlord or Tenant. If any Taxes on Tenant’s personal
property or trade fixtures are levied against Landlord or Landlord’s property, or if the assessed
valuation of the Project is increased by a value attributable to improvements in or alterations to
the Premises, whether owned by Landlord or Tenant and whether or not affixed to the real property
so as to become a part thereof, higher than the base valuation on which Landlord from time-to-time
allocates Taxes to all tenants in the Project, Landlord shall have the right, but not the
obligation, to pay such Taxes. Landlord’s determination of any excess assessed valuation shall be
binding and conclusive, absent manifest error. The amount of any such payment by Landlord shall
constitute Additional Rent due from Tenant to Landlord immediately upon demand.



     10. Parking. Subject to all matters of record, Force Majeure, a Taking (as defined
in Section 19 below) and the exercise by Landlord of its rights hereunder, Tenant shall have the right, in
common with other tenants of the Project pro rata in accordance with the rentable area of the
Premises and the




	 	 	 	 	 

	 

	 	
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rentable areas of the Project occupied by such other tenants, to park in those areas
designated for non-reserved parking, subject in each case to Landlord’s rules and regulations.
Subject to the foregoing, Tenant’s pro rata share of parking shall not be less than 2.83 parking
spaces per 1,000 rentable square feet of the Premises. Landlord may reasonably designate (taking
into consideration the proximity of such spaces to the leased premises) certain parking spaces
within the Project for the exclusive use of Tenant and other tenants in the Project on a pro rata
basis as described above if Landlord determines that such parking facilities are becoming crowded.




     11. Utilities, Services. Landlord shall provide, subject to the terms of this Section
11, water, electricity, heat, light, power, sewer, and other utilities (including gas and fire
sprinklers to the extent the Project is plumbed for such services), refuse and trash collection
and, to the Common Areas, janitorial services (collectively, “Utilities”). Landlord shall pay, as
Operating Expenses or subject to Tenant’s reimbursement obligation, for all Utilities used on the
Premises, all maintenance charges for Utilities, and any storm sewer charges or other similar
charges for Utilities imposed by any Governmental Authority or Utility provider, and any taxes,
penalties, surcharges or similar charges thereon. Landlord may cause, at Landlord’s expense, any
Utilities to be separately metered or charged directly to Tenant by the provider. Tenant shall pay
directly to the Utility provider, prior to delinquency, any separately metered Utilities and
services which may be furnished to Tenant or the Premises during the Term. Tenant shall pay, as
part of Operating Expenses, its share of all charges for jointly metered Utilities based upon
consumption, as reasonably determined by Landlord. No interruption or failure of Utilities, from
any cause whatsoever other than Landlord’s willful misconduct, shall result in eviction or
constructive eviction of Tenant, termination of this Lease or the abatement of Rent.



     12. Alterations and Tenant’s Property. Any alterations, additions, or improvements made to
the Premises by or on behalf of Tenant, including additional locks or bolts of any kind or nature
upon any doors or windows in the Premises, but excluding installation, removal or realignment of
furniture systems (other than removal of furniture systems owned or paid for by Landlord) not
involving any modifications to the structure or connections (other then by ordinary plugs or
jacks) to Building Systems (as defined in Section 13) (“Alterations”) shall be subject to
Landlord’s prior written consent, which shall not be unreasonably withheld. Tenant may construct
nonstructural Alterations in the Premises from time to time without Landlord’s prior approval if
the cost of the applicable project does not exceed $100,000 (a “Notice-Only Alteration”), provided
Tenant notifies Landlord in writing (or by email to persons designated by Landlord from time to
time as Landlord’s representatives for purposes of receiving such email notices) of such intended
Notice-Only Alteration. For all other Alterations, Tenant’s notice shall be accompanied by plans,
specifications, work contracts and such other information concerning the nature and cost of the
Notice-Only Alteration as may be reasonably requested by Landlord, which notice and accompanying
materials shall be delivered to Landlord not less than 15 business days in advance of any proposed
construction. If Landlord approves any Alterations, Landlord may impose such conditions on Tenant
in connection with the commencement, performance and completion of such Alterations as Landlord
may deem appropriate in Landlord’s reasonable discretion and the procedures set forth in Sections
2(a) — 2(d), 3(a) and 4 of the Work Letter shall apply to the approval of the plans and
construction but with Tenant being responsible for all costs. Any request for approval shall be in
writing, delivered not less than 15 business days in advance of any proposed construction, and
accompanied by plans, specifications, bid proposals, work contracts and such other information
concerning the nature and cost of the alterations as may be reasonably requested by Landlord,
including the identities and mailing addresses of all persons performing work or supplying
materials. Landlord’s right to review plans and specifications and to monitor construction shall
be solely for its own benefit, and Landlord shall have no duty to ensure that such plans and
specifications or construction comply with applicable Legal Requirements. Tenant shall cause, at
its sole cost and expense, all Alterations to comply with insurance requirements and with Legal
Requirements and shall implement at its sole cost and expense any alteration or modification
required by Legal Requirements as a result of any Alterations. Tenant shall pay to Landlord, as
Additional Rent, on demand an amount equal to 1.5% of all charges incurred by Tenant or its
contractors or agents in connection with any Alteration as to which Landlord’s consent is required
to cover Landlord’s overhead and expenses where Landlord has plan review, coordination, scheduling
and supervision responsibilities (albeit along with Tenant) in connection with such Alteration.
Notwithstanding the foregoing, Tenant shall




	 	 	 	 	 

	 

	 	
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not be required to pay the Additional Rent provided for in the preceding sentence for an
Alteration where Landlord’s obligations are limited to review and approval of plans for the
proposed Alteration. Before Tenant begins any Alteration, Landlord may post on and about the
Premises notices of non-responsibility pursuant to applicable law. Tenant shall reimburse Landlord
for, and indemnify and hold Landlord harmless from, any expense incurred by Landlord by reason of
faulty work done by Tenant or its contractors, delays caused by such work, or inadequate cleanup.
Notwithstanding anything to the contrary contained herein, if any of Tenant’s Alterations result
in the configuration between laboratory and office space on the first and second floors of the
Building being other than what is in place immediately following the completion of construction of
the Tenant Improvements; and if any proposed Alterations would reduce the proportion of laboratory
to office space, then in addition to requiring the restoration of the same upon the expiration or
earlier termination of the Term, Landlord shall have the right, if the restoration cost is
reasonably determined by Landlord to be material, to require Tenant to concurrently deposit with
Landlord a letter of credit in an amount not to exceed the estimated restoration cost to secure
Tenant’s restoration obligation. Such letter of credit shall be in form and content reasonably
acceptable to Landlord and otherwise satisfy the requirements of Section 6.




     Tenant shall furnish security or make other arrangements reasonably satisfactory to Landlord
to assure payment for the completion of all Alterations costing in excess of $500,000 free and
clear of liens, and shall provide (and cause each contractor or subcontractor to provide)
certificates of insurance for workers’ compensation and other coverage in amounts and from an
insurance company satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any Alterations, Tenant shall
deliver to Landlord: (i) sworn statements setting forth the names of all contractors and
subcontractors who did the work and final lien waivers from all such contractors and
subcontractors; and (ii) “as built” plans for any such Alteration.



     Except for Removable Installations (as hereinafter defined), all Installations (as
hereinafter defined) shall be and shall remain the property of Landlord during the Term and
following the expiration or earlier termination of the Term, shall not be removed by Tenant at any
time during the Term, and shall remain upon and be surrendered with the Premises as a part
thereof. Notwithstanding the foregoing, Landlord may, at the time its approval of any such
Installation is requested, notify Tenant that Landlord requires that Tenant remove such
Installation upon the expiration or earlier termination of the Term, in which event Tenant shall
remove such Installation in accordance with the immediately succeeding sentence. Upon the
expiration or earlier termination of the Term, Tenant shall remove (i) all wires, cables or
similar equipment which Tenant has installed in the Premises or in the risers or plenums of the
Building, (ii) any Installations for which Landlord has given Tenant notice of removal in
accordance with the immediately preceding sentence, and (iii) all of Tenant’s Property (as
hereinafter defined), and Tenant shall restore and repair any damage caused by or occasioned as a
result of such removal, including, without limitation, capping off all such connections behind the
walls of the Premises and repairing any holes. During any restoration period beyond the expiration
or earlier termination of the Term, Tenant shall pay Rent to Landlord as provided herein as if
said space were otherwise occupied by Tenant. Notwithstanding anything to the contrary contained
herein, Tenant shall have no obligation to remove any Tenant Improvements. If Landlord is
requested by Tenant or any lender, lessor or other person or entity claiming an interest in any of
Tenant’s Property to waive any lien Landlord may have against any of Tenant’s Property, and
Landlord consents to such waiver, then Landlord shall be entitled to be paid as administrative
rent a fee of $1,000 per occurrence for its time and effort in preparing and negotiating such a
waiver of lien.



     For purposes of this Lease, (x) “Removable installations” means any items listed on Exhibit F
attached hereto and any items agreed by Landlord in writing to be included on Exhibit F in the
future, (y) “Tenant’s Property” means Removable Installations and, other than Installations, any
personal property or equipment of Tenant that may be removed without material damage to the
Premises, and (z) “Installations” means all property of any kind paid for by Landlord, all Alterations,
all fixtures, and all partitions, hardware, built-in machinery, built-in casework and
cabinets and other similar additions, equipment, property and improvements built into the
Premises so as to become an integral part of the Premises, including, without limitation,
fume hoods which penetrate the roof or plenum area, built-in cold




	 	 	 	 	 

	 

	 	
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rooms, built-in warm rooms, walk-in cold rooms, walk-in warm rooms, deionized water
systems, glass washing equipment, autoclaves, chillers, built-in plumbing, electrical and
mechanical equipment and systems, and any power generator and transfer switch.




     13. Landlord’s Repairs. Landlord, as an Operating Expense (except to the extent the
cost thereof is excluded from Operating Expenses pursuant to Section 5 hereof), shall maintain all
of the structural, exterior, parking and other Common Areas of the Project, including HVAC,
plumbing, fire sprinklers, fire risers, elevators and all other building systems serving the
Premises and other portions of the Project and related utilities beyond the meters (“Building
Systems”), in good repair, reasonable wear and tear and uninsured losses and damages (unless such
losses or damages would have been insured losses or expenses if the insurance Landlord is required
to maintain hereunder had been obtained) caused by Tenant, or by any of Tenant’s agents, servants,
employees, invitees and contractors (collectively, “Tenant Parties”) excluded. Subject to the
provisions of the penultimate paragraph of Section 17, losses and damages caused by Tenant or any
Tenant Party shall be repaired by Landlord, at Tenant’s sole cost and expense, to the extent not
covered by insurance Landlord is required to maintain hereunder (or to the extent such losses or
damages would have been covered by insurance Landlord is required to maintain hereunder if such
insurance had been maintained and so long as it would make reasonable business sense to Landlord
unless the losses or damages in question are relatively minor, bearing in mind the potential
amount of the losses and damages and the amount of the applicable deductibles, to submit a claim
for such losses and damages to its insurer). Landlord reserves the right to stop Building Systems
services when necessary (i) by reason of accident or emergency, or (ii) for planned repairs,
alterations or improvements, which are, in the judgment of Landlord, desirable or necessary to be
made, until said repairs, alterations or improvements shall have been completed, provided Landlord
shall use reasonable efforts to minimize interference with Tenant’s Permitted Use of the Premises.
Landlord shall have no responsibility or liability for failure to supply Building Systems services
during any such period of interruption; provided, however, that Landlord shall, except in case of
emergency, make a commercially reasonable effort to give Tenant 24 hours advance notice of any
planned stoppage of Building Systems services for routine maintenance, repairs, alterations or
improvements and shall in all events use reasonable efforts to perform any repairs in a manner
that will minimize interference and Tenant’s use of the Premises. Tenant shall promptly give
Landlord written notice of any repair required by Landlord pursuant to this Section, after which
Landlord shall make a commercially reasonable effort to effect such repair. Landlord shall not be
liable for any failure to make any repairs or to perform any maintenance unless such failure shall
persist for an unreasonable time after Tenant’s written notice of the need for such repairs or
maintenance as provided in this Lease. Tenant waives its rights under any state or local law to
terminate this Lease or to make such repairs at Landlord’s expense and agrees that the parties’
respective rights with respect to such matters shall be solely as set forth herein. Repairs
required as the result of fire, earthquake, flood, vandalism, war, or similar cause of damage or
destruction shall be controlled by Section 18.



     Notwithstanding the foregoing, during any period that Tenant is leasing the Premises and all
of the Additional Space, Tenant may access the Building’s environmental management system to
directly control its own utilities and shall have the obligation to maintain, at Tenant’s sole
cost and expense, all of Building Systems which serve the Building except for the elevators, fire
risers and utilities beyond the meters which shall be maintained by Landlord as part of Operating
Expenses. The maintenance obligation described in the preceding sentence shall include, without
limitation, an obligation on the part of Tenant to maintain the applicable Building Systems in
good condition and repair which shall include the procurement and maintenance of contracts, in
form and substance reasonably satisfactory to Landlord, with copies to Landlord, for, and with
contractors specializing and experienced in the maintenance and repair of such Building Systems
that Tenant is responsible for under this Lease. If Tenant fails to maintain such Building Systems
in a manner reasonably acceptable to Landlord, Landlord shall have the right to provide Tenant
with written notice thereof and to undertake maintenance of such Building Systems if Tenant does
not cure Tenant’s failure within 10 days after receipt of such notice.



     14. Tenant’s Repairs. Subject to Section 13 hereof, Tenant, at its expense, shall repair,
replace and maintain in good condition all portions of the Premises, including, without
limitation, entries,




	 	 	 	 	 

	 

	 	
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doors, ceilings, interior windows, interior walls, and the interior side of demising walls,
including systems serving the Premises. Such repair and replacement may include capital
expenditures and repairs whose benefit may extend beyond the Term. Should Tenant fail to make any
such repair or replacement or fail to maintain the Premises, Landlord shall give Tenant notice of
such failure. If Tenant fails to commence cure of such failure within 10 days of Landlord’s
notice, and thereafter diligently prosecute such cure to completion, Landlord may perform such
work and shall be reimbursed by Tenant within 10 days after demand therefor; provided, however,
that if such failure by Tenant creates or could create an emergency, Landlord may immediately
commence cure of such failure and shall thereafter be entitled to recover the costs of such cure
from Tenant. Subject to Sections 17 and 18, Tenant shall bear the full uninsured cost of any
repair or replacement to any part of the Project that results from damage caused by Tenant or any
Tenant Party and any repair that benefits only the Premises.




     15. Mechanic’s Liens. Tenant shall discharge, by bond or otherwise, any mechanic’s lien
filed against the Premises or against the Project for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant within 10 days after the filing thereof, at
Tenant’s sole cost and shall otherwise keep the Premises and the Project free from any liens
arising out of work performed, materials furnished or obligations incurred by Tenant. Should
Tenant fail to discharge any lien described herein, Landlord shall have the right, but not the
obligation, to pay such claim or post a bond or otherwise provide security to eliminate the lien
as a claim against title to the Project and the cost thereof shall be immediately due from Tenant
as Additional Rent. If Tenant shall lease or finance 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 filed
as a matter of public record by any lessor or creditor of Tenant will 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 Project be furnished
on the statement without qualifying language as to applicability of the lien only to removable
personal property, located in an identified suite held by Tenant.



     16. Indemnification. Tenant hereby indemnifies and agrees to defend, save and hold
Landlord harmless from and against any and all Claims for injury or death to persons or damage to
property occurring within or about the Premises, arising directly or indirectly out of use or
occupancy of the Premises or a breach or default by Tenant in the performance of any of its
obligations hereunder, except to the extent caused by the willful misconduct or negligence of
Landlord or the default by Landlord in the performance of its obligations under this Lease.
Landlord shall not be liable to Tenant for, and Tenant assumes all risk of damage to, personal
property (including, without limitation, loss of records kept within the Premises). Tenant further
waives any and all Claims for injury to Tenant’s business or loss of income relating to any such
damage or destruction of personal property (including, without limitation, any loss of records).
Landlord shall not be liable for any damages arising from any act, omission or neglect of any
tenant in the Project or of any other third party.



     17. Insurance. Landlord shall maintain all risk property and, if applicable, sprinkler damage
insurance covering the full replacement cost of the Project including the Tenant Improvements.
Landlord shall further procure and maintain commercial general liability insurance with a single
loss limit of not less than $3,000,000 for bodily injury and property damage with respect to the
Project. Landlord may, but is not obligated to, maintain such other insurance and additional
coverages as it may deem necessary, including, but not limited to, flood, environmental hazard and
earthquake, loss or failure of building equipment, errors and omissions, rental loss during the
period of repair or rebuilding, workers’ compensation insurance and fidelity bonds for employees
employed to perform services and insurance for any improvements installed by Tenant or which are
in addition to the standard improvements customarily furnished by Landlord without regard to
whether or not such are made a part of the Project. All such insurance shall be included as part
of the Operating Expenses. The Project may be included in a blanket policy (in which case the cost
of such insurance allocable to the Project will be determined by Landlord based upon the insurer’s
cost calculations). Tenant shall also reimburse Landlord for any increased premiums or additional
insurance which Landlord reasonably deems necessary as a result of
Tenant’s use of the Premises.




	 	 	 	 	 

	 

	 	
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     Tenant, at its sole cost and expense, shall maintain during the Term: all risk property
insurance with business interruption and extra expense coverage, covering the full replacement
cost of all property and improvements installed or placed in the Premises by Tenant at Tenant’s
expense (other than the Tenant Improvements and in no event shall Landlord be responsible for
insuring of any Tenant’s Property or Alterations); workers’ compensation insurance with no less
than the minimum limits required by law; employer’s liability insurance with such limits as
required by law; and commercial general liability insurance, with a minimum limit of not less than
$2,000,000 per occurrence for bodily injury and property damage with respect to the Premises. The
commercial general liability insurance policy shall name Alexandria Real Estate Equities, Inc.,
and Landlord, its officers, directors, employees, managers, agents, invitees and contractors
(collectively, “Landlord Parties”), as additional insureds; insure on an occurrence and not a
claims-made basis; be issued by insurance companies which have a rating of not less than
policyholder rating of A and financial category rating of at least Class X in “Best’s Insurance
Guide”; shall not be cancelable for nonpayment of premium unless 10 days prior written notice
shall have been given to Landlord from the insurer; contain a hostile fire endorsement and a
contractual liability endorsement; and provide primary coverage to Landlord (any policy issued to
Landlord providing duplicate or similar coverage shall be deemed excess over Tenant’s policies).
Copies of such policies (if requested by Landlord), or certificates of insurance showing the
limits of coverage required hereunder and showing Landlord as an additional insured, along with
reasonable evidence of the payment of premiums for the applicable period, shall be delivered to
Landlord by Tenant upon commencement of the Term and upon each renewal of said insurance. Tenant’s
policy may be a “blanket policy” with an aggregate per location endorsement which specifically
provides that the amount of insurance shall not be prejudiced by other losses covered by the
policy. Tenant shall, at least 5 days prior to the expiration of such policies, furnish Landlord
with renewal certificates.



     In each instance where insurance is to name Landlord as an additional insured, Tenant
shall upon written request of Landlord also designate and furnish certificates so evidencing
Landlord as additional insured to: (i) any lender of Landlord holding a security interest in the
Project or any portion thereof, (ii) the landlord under any lease wherein Landlord is tenant of
the real property on which the Project is located, if the interest of Landlord is or shall become
that of a tenant under a ground or other underlying lease rather than that of a fee owner, and/or
(iii) any management company retained by Landlord to manage the Project.



     The property insurance obtained by Landlord and Tenant shall include a waiver of subrogation
by the insurers and all rights based upon an assignment from its insured, against Landlord or
Tenant, and their respective officers, directors, employees, managers, agents, invitees and
contractors (“Related Parties”), in connection with any loss or damage thereby insured against.
Notwithstanding anything to the contrary contained in this Lease, neither party nor its respective
Related Parties shall be liable to the other for loss or damage caused by any risk insured against
under property insurance required to be maintained hereunder regardless of the negligence of the
party to the Lease receiving the benefit of the waiver, and each party waives any claims against
the other party, and its respective Related Parties, for such loss or damage. The failure of a
party to insure its property shall not void this waiver. Landlord and its respective Related
Parties shall not be liable for, and Tenant hereby waives all claims against such parties for,
business interruption and losses occasioned thereby sustained by Tenant or any person claiming
through Tenant resulting from any accident or occurrence in or upon the Premises or the Project
from any cause whatsoever. If the foregoing waivers shall contravene any law with respect to
exculpatory agreements, the liability of Landlord or Tenant shall be deemed not released but shall
be secondary to the other’s insurer.



     Landlord may require insurance policy limits to be raised to conform with requirements of
Landlord’s lender and/or to bring coverage limits to levels then being generally required of new
tenants within the Project; provided, however, that the increased amount of coverage is consistent
with coverage amounts then being required by institutional owners of similar projects with tenants
occupying similar size premises in the geographical area in which the Project is located.




	 	 	 	 	 

	 

	 	
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     18. Restoration. If, at any time during the Term, the Premises or the Building is damaged or
destroyed by a fire or other casualty, Landlord shall notify Tenant within 60 days after discovery
of such damage as to the amount of time Landlord reasonably estimates it will take to restore the
Premises or the Building, as applicable (the “Restoration Period”). If the Restoration Period is
estimated to exceed 12 months (the “Maximum Restoration Period”), Landlord may, in such notice,
elect to terminate this Lease as of the date that is 75 days after the date of discovery of such
damage or destruction; provided, however, that notwithstanding Landlord’s election to restore,
Tenant may elect to terminate this Lease by written notice to Landlord delivered within 5 business
days of receipt of notice from Landlord estimating a Restoration Period for the Premises longer
than the Maximum Restoration Period. Unless either Landlord or Tenant so elects to terminate this
Lease, Landlord shall (with any insurance deductible to be treated as a current Operating Expense
subject to the provisions of Section 5), promptly restore the Premises (including the Tenant
Improvements but excluding any other improvements or Alterations installed by Tenant or by
Landlord and paid for by Tenant), subject to delays arising from the collection of insurance
proceeds, from Force Majeure events or as needed to obtain any license, clearance or other
authorization of any kind required to enter into and restore the Premises issued by any
Governmental Authority having jurisdiction over the use, storage, handling, treatment, generation,
release, disposal, removal or remediation of Hazardous Materials (as defined in Section 30) in, on
or about the Premises (collectively referred to herein as “Hazardous Materials Clearances”);
provided, however, that if repair or restoration of the Premises is not substantially complete as
of the end of the Maximum Restoration Period or, if longer, the Restoration Period, Tenant may by
written notice to Landlord delivered within 5 business days of the expiration of the Maximum
Restoration Period or, if longer, the Restoration Period, elect to terminate this Lease, in which
event Landlord shall be relieved of its obligation to make such repairs or restoration and this
Lease shall terminate as of the date that is 75 days after the later of: (i) discovery of such
damage or destruction, or (ii) the date all required Hazardous Materials Clearances are obtained,
but Landlord shall retain any Rent paid and the right to any Rent payable by Tenant prior to such
election by Landlord or Tenant. In the event that this Lease terminates pursuant to the provisions
of this Section 18 as a result of an earthquake, Tenant shall not be required to pay any
deductibles applicable thereto as part of Operating Expenses. Notwithstanding anything to the
contrary in this Section, (a) the Restoration Period and the Maximum Restoration Period shall not
be extended by Force Majeure and (b) Landlord may not terminate this Lease due to a casualty
unless it also terminates the Exelixis Lease.



     Notwithstanding the foregoing, Landlord shall also have the right to terminate this Lease if
sufficient insurance proceeds are not available to pay for such restoration in full but not in the
event that sufficient insurance proceeds are not available as a result of Landlord’s failure to
maintain the property insurance which Landlord is expressly required to maintain under this Lease.
Notwithstanding the foregoing, if the Building is damaged or destroyed by a casualty which is not
covered by Landlord’s insurance (or is only partially covered by Landlord’s insurance) such that
any shortfall in coverage to restore the Building is (i) 5% or less of the replacement cost of the
Building, Landlord shall be required to repair the Building (exclusive of Tenant’s Property and
Alterations), or (ii) more than 5% of the replacement cost of the Building and Landlord is not
willing to pay for the cost of the repair, then Landlord shall give written notice to Tenant of
such determination (the “Determination Notice”). In addition, if any Holder requires that any of
the insurance proceeds from a casualty be applied to indebtedness secured by the Project and it
results in a shortfall of more than 5% of the replacement cost of the Building to complete the
repairs and Landlord is not willing to pay for such shortfall, then Landlord shall have the right
to provide a Determination Notice to Tenant. Either Landlord or Tenant may terminate this Lease by
giving written notice (“Termination Notice”) to the other party within 30 days after receipt of
the Determination Notice. Tenant shall have the right to reject Landlord’s termination notice and
require Landlord to restore the Building provided, however, that Tenant provides Landlord with
written notice (“Termination Rejection Notice”), within 10 business days after receipt of the
Termination Notice, of Tenant’s election to require Landlord to restore the Building and Tenant
pays the full amount of the shortfall over and above the 5% that Landlord would have been required
to pay (“Tenant Contribution”). Landlord shall have the right to require Tenant to deposit a
letter of credit complying with the terms of Section 6 above in the amount of the full Tenant
Contribution with Landlord concurrently with Tenant’s delivery of the Termination Rejection Notice
to secure Tenant’s obligation to pay the Tenant Contribution. Notwithstanding anything to the
contrary contained in this paragraph, (w) if the shortfall which is required




	 	 	 	 	 

	 

	 	
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to be paid by Landlord is greater than 3% but not more than 5% of the replacement cost
of the Building, Landlord shall have no obligation to make any repairs under this paragraph unless
there is at least 7 years remaining on the Base Term of this Lease from and after the estimated
completion date of the repairs, (x) if the shortfall which is required to be paid by Landlord is
greater than 1% but not more than 3% of the replacement cost of the Building, Landlord shall have
no obligation to make any repairs under this paragraph unless there is at least 2 years remaining
on the Base Term of this Lease (or, if applicable, an Extension Term) from and after the estimated
completion date of the repairs, and (y) if the shortfall which is required to be paid by Landlord
is 1% or less of the replacement cost of the Building, Landlord shall be required to complete the
repairs unless any provisions of this Lease other than this paragraph may apply.




     Tenant may, at Tenant’s option, promptly re-enter the Premises and commence doing
business in accordance with this Lease upon Landlord’s completion of all repairs or restoration
required to be done by Landlord pursuant to this Section 18; provided, however, that Tenant shall
nonetheless (and even if Tenant does not re-enter the Premises) continue to be responsible for all
of its obligations under this Lease. Rent shall be abated from the date all required Hazardous
Material Clearances applicable to Tenant’s operations at the Premises are obtained until the
Premises are repaired and restored, in the proportion which the area of the Premises, if any,
which is not usable by Tenant bears to the total area of the Premises. Such abatement shall be the
sole remedy of Tenant, and except as provided in this Section 18, Tenant waives any right to
terminate the Lease by reason of damage or casualty loss.



     The provisions of this Lease, including this Section 18, constitute an express agreement
between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any
part of the Premises, or any other portion of the Project, and any statute or regulation which is
now or may hereafter be in effect shall have no application to this Lease or any damage or
destruction to all or any part of the Premises or any other portion of the Project, the parties
hereto expressly agreeing that this Section 18 sets forth their entire understanding and agreement
with respect to such matters.



     19. Condemnation. If the whole or any material part of the Premises or the Building is
taken for any public or quasi-public use under governmental law, ordinance, or regulation, or by
right of eminent domain, or by private purchase in lieu thereof (a “Taking” or “Taken”), and the
Taking would in Landlord’s reasonable judgment, either prevent or materially interfere with
Tenant’s use of the Premises or materially interfere with or impair Landlord’s ownership or
operation of the Project, then upon written notice by Landlord this Lease shall terminate and Rent
shall be apportioned as of said date. If part of the Premises shall be Taken, and this Lease is
not terminated as provided above, Landlord shall promptly restore the Premises and the Project as
nearly as is commercially reasonable under the circumstances to their condition prior to such
partial Taking and the rentable square footage of the Building, the rentable square footage of the
Premises, Tenant’s Share of Operating Expenses and the Rent payable hereunder during the unexpired
Term shall be reduced to such extent as may be fair and reasonable under the circumstances. Upon
any such Taking, Landlord shall be entitled to receive the entire price or award from any such
Taking without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant’s interest, if
any, in such award; provided, however, that if any of Tenant’s Alterations or Tenant Improvements
to the extent paid for by Tenant and not the Tl Allowance are attributed a specific value in and
of themselves in connection with the Taking which increases the price or award that would in the
absence of such Alterations and Tenant Improvements to the extent paid for by Tenant and not the
Tl Allowance have been paid to Landlord, Tenant shall have the right to make a claim for the
unamortized value specifically attributable to such Alterations and Tenant Improvements to the
extent paid for by Tenant and not the Tl Allowance. Tenant shall have the right, to the extent
that same shall not diminish Landlord’s award other than as provided for in the preceding
sentence, to make a separate claim against the condemning authority (but not Landlord) for such
compensation as may be separately awarded or recoverable by Tenant for moving expenses and damage
to Tenant’s trade fixtures, if a separate award for such items is made to Tenant. Tenant hereby
waives any and all rights it might otherwise have pursuant to any provision of state law to
terminate this Lease upon a partial Taking of the Premises or the Project. Notwithstanding the
foregoing, Landlord may not terminate this Lease due to a Taking unless it also terminates the
Exelixis Lease.




	 	 	 	 	 

	 

	 	
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     20. Events
of Default. Each of the following events shall be a default
(“Default”) by
Tenant under this Lease:



     (a) Payment Defaults. Tenant shall fail to pay any installment of Rent or any other
payment hereunder when due; provided, however, that Landlord will give Tenant notice and an
opportunity to cure any failure to pay Rent within 3 days of any such notice not more than twice
in any 12 month period.



     (b) Insurance. Any insurance required to be maintained by Tenant pursuant to this Lease
shall be canceled or terminated or shall expire or shall be reduced or materially changed and
Tenant shall fail to restore the required coverage within 5 days after notice from Landlord.



     (c) Abandonment. Tenant shall abandon the Premises.



     (d) Improper Transfer. Tenant shall assign, sublease or otherwise transfer or attempt to
transfer all or any portion of Tenant’s interest in this Lease or the Premises except as expressly
permitted herein, or Tenant’s interest in this Lease shall be attached, executed upon, or
otherwise judicially seized and such action is not released within 90 days of the action.



     (e) Liens. Tenant shall fail to discharge or otherwise obtain the release of any lien placed
upon the Premises in violation of this Lease within 10 days after notice to Tenant that any such
lien has been filed against the Premises.



     (f) Insolvency Events. Tenant or any guarantor or surety of Tenant’s obligations hereunder
shall: (A) make a general assignment for the benefit of creditors; (B) commence any case,
proceeding or other action seeking to have an order for relief entered on its behalf as a debtor
or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or of any substantial part of its
property (collectively a “Proceeding for Relief”); (C) become the subject of any Proceeding for
Relief which is not dismissed within 90 days of its filing or entry; or (D) die or suffer a legal
disability (if Tenant, guarantor, or surety is an individual) or be dissolved or otherwise fail to
maintain its legal existence (if Tenant, guarantor or surety is a corporation, partnership or
other entity).



     (g) Estoppel Certificate or Subordination Agreement. Tenant fails to execute any document
required from Tenant under Sections 23 or 27 within 5 days after a second notice requesting such
document.



     (h) Other Defaults. Tenant shall fail to comply with any provision of this Lease other than
those specifically referred to in this Section 20, and, except to the extent a different time
period is otherwise provided for herein, such failure shall continue for a period of 30 days after
written notice thereof from Landlord to Tenant.



Any notice given under Section 20(h) hereof shall: (i) specify the alleged default,
(ii) demand that Tenant cure such default, (iii) be in lieu of, and not in addition to, or shall
be deemed to be, any notice required under any provision of applicable law, and (iv) not be deemed
a forfeiture or a termination of this Lease unless Landlord elects otherwise in such notice;
provided that if the nature of Tenant’s default pursuant to Section 20(h) is such that it cannot
be cured by the payment of money and reasonably requires more than 30 days to cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure within said 30 day period and
thereafter diligently prosecutes the same to completion; provided, however, that, upon request
from Landlord from time to time, Tenant shall provide Landlord with any information reasonably
requested by Landlord regarding the prosecution of the cure in question including, without
limitation, status reports detailing actions being undertaken by Tenant.






	 	 	 	 	 

	 

	 	
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     21. Landlord’s Remedies.


     (a) Payment By Landlord; Interest. Upon a Default by Tenant hereunder, Landlord may, without
waiving or releasing any obligation of Tenant hereunder, make such payment or perform such act on
behalf of Tenant. 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 12% per annum or the highest
rate permitted by law (the “Default Rate”), whichever is less, shall be payable to Landlord on
demand as Additional Rent. Nothing herein shall be construed to create or impose a duty on
Landlord to mitigate any damages resulting from Tenant’s Default hereunder.



     (b) Late Payment Rent. Late payment by Tenant to Landlord of Rent and other sums due
will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will
be extremely difficult and impracticable to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on Landlord under any
Mortgage covering the Premises. Therefore, if any installment of Rent due from Tenant is not
received by Landlord within 5 days after the date such payment is due, Tenant shall pay to
Landlord an additional sum equal to 6% of the overdue Rent as a late charge. Notwithstanding the
foregoing, before assessing a late charge the first time in any calendar year, Landlord shall
provide Tenant written notice of the delinquency and will waive the right if Tenant pays such
delinquency within 5 days thereafter. The parties agree that this late charge represents a fair
and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. In
addition to the late charge, Rent not paid when due shall bear interest at the Default Rate from
the 5th day after the date due until paid.



     (c) Remedies. Upon the occurrence of a Default, Landlord, at its option, without further
notice or demand to Tenant, shall have in addition to all other rights and remedies provided in
this Lease, at law or in equity, the option to pursue any one or more of the following remedies,
each and all of which shall be cumulative and nonexclusive, without any notice or demand
whatsoever.




     (i) Terminate this Lease, or at Landlord’s option, Tenant’s right to possession only,
in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant
fails to do so, Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying the Premises or any part
thereof, without being liable for prosecution or any claim or damages therefor;




     (ii) Upon any termination of this Lease, whether pursuant to the foregoing
Section 21(c)(i) or otherwise, Landlord may recover from Tenant the following:


     (A) The worth at the time of award of any unpaid rent which has been earned at
the time of such termination; plus




     (B) The worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time of award exceeds the
amount of such rental loss 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 the amount of such
rental loss 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 which in the ordinary course of things would be likely to result therefrom,
specifically including, but not limited to, to the extent allocable to the
remainder of the
Term, brokerage commissions and advertising expenses incurred, expenses of




	 	 	 	 	 

	 

	 	
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remodeling the Premises or any portion thereof for a new tenant, whether for
the same or a different use, and any special concessions made to obtain a new
tenant; and




     (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 law.



The term
“rent” as used in this Section 21 shall be deemed to be and to mean all sums of every
nature required to be paid by Tenant pursuant to the terms of this Lease, whether to Landlord or
to others. As used in Sections 21(c)(ii) (A) and (B), above, the “worth at the time of award”
shall be computed by allowing interest at the Default Rate. As used in Section 21(c)(ii)(C) above,
the “worth at the time of award” shall be computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award plus 1% .




     (iii) Landlord may continue this Lease in effect after Tenant’s Default and recover
rent as it becomes due (Landlord and Tenant hereby agreeing that Tenant has the right to
sublet or assign hereunder, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease following a Default by Tenant, Landlord
may, from time to time, without terminating this Lease, enforce all of its rights and
remedies hereunder, including the right to recover all Rent as it becomes due.




     (iv) After Landlord terminates this Lease following a Default by Tenant, Landlord
shall have the right to terminate any and all subleases, licenses, concessions or other
consensual arrangements for possession entered into by Tenant and affecting the Premises or
may, in Landlord’s sole discretion, succeed to Tenant’s interest in such subleases,
licenses, concessions or arrangements. Upon Landlord’s election to succeed to Tenant’s
interest in any such subleases, licenses, concessions or arrangements, Tenant shall, as of
the date of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder.




     (v) Independent of the exercise of any other remedy of Landlord hereunder or under
applicable law, Landlord may conduct an environmental test of the Premises as generally
described in Section 30(d) hereof, at Tenant’s expense.



     (d) Effect of Exercise. Exercise by Landlord of any remedies hereunder or otherwise
available shall not be deemed to be an acceptance of surrender of the Premises and/or a
termination of this Lease by Landlord, it being understood that such surrender and/or termination
can be effected only by the express written agreement of Landlord and Tenant. Any law, usage, or
custom to the contrary notwithstanding, Landlord shall have the right at all times to enforce the
provisions of this Lease in strict accordance with the terms hereof; and the failure of Landlord
at any time to enforce its rights under this Lease strictly in accordance with same shall not be
construed as having created a custom in any way or manner contrary to the specific terms,
provisions, and covenants of this Lease or as having modified the same and shall not be deemed a
waiver of Landlord’s right to enforce one or more of its rights in connection with any subsequent
default. A receipt by Landlord of Rent or other payment with knowledge of the breach of any
covenant hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any
provision of this Lease shall be deemed to have been made unless expressed in writing and signed
by Landlord. To the greatest extent permitted by law, Tenant waives the service of notice of
Landlord’s intention to re-enter, re-take or otherwise obtain possession of the Premises as
provided in any statute, or to institute legal proceedings to that end, and also waives all right
of redemption in case Tenant shall be dispossessed by a judgment or by warrant of any court or
judge. Notwithstanding the foregoing, nothing contained herein shall constitute Tenant’s waiver of
its right under applicable Legal Requirements to receive a 3 day notice from Landlord to quit or
pay rent prior to Landlord commencing an unlawful detainer action. Any relating of the Premises or
any portion thereof shall be on such terms and conditions as Landlord in its sole discretion may
determine. Landlord shall not be liable for, nor shall
Tenant’s obligations hereunder be diminished because of, Landlord’s failure to relet the
Premises or




	 	 	 	 	 

	 

	 	
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collect rent due in respect of such reletting or otherwise to mitigate any damages arising by
reason of Tenant’s Default.




     22. Assignment and Subletting.



     (a) General Prohibition. Without Landlord’s prior written consent subject to and on the
conditions described in this Section 22, Tenant shall not, directly or indirectly, voluntarily or
by operation of law, assign this Lease or sublease the Premises or any part thereof or mortgage,
pledge, or hypothecate its leasehold interest or grant any concession or license within the
Premises, and any attempt to do any of the foregoing shall be void and of no effect.



     (b) Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or
otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment
(as defined below), then at least 15 business days, but not more than 45 business days, before the
date Tenant desires the assignment or sublease to be effective (the “Assignment Date”), Tenant
shall give Landlord a notice (the “Assignment Notice”) containing such information about the
proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous
Materials proposed to be used, stored handled, treated, generated in or released or disposed of
from the Premises, the Assignment Date, any relationship between Tenant and the proposed assignee
or sublessee, and all material terms and conditions of the proposed assignment or sublease,
including a copy of any proposed assignment or sublease in its final form, and such other
information as Landlord may deem reasonably necessary or appropriate to its consideration whether
to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days
after receipt of the Assignment Notice: (i) grant such consent, or (ii) refuse such consent, in
its reasonable discretion. Among other reasons, it shall be reasonable for Landlord to withhold
its consent in any of these instances: (1) the proposed assignee or subtenant is a governmental
agency; (2) in Landlord’s reasonable judgment, the use of the Premises by the proposed assignee or
subtenant would entail any alterations that would materially lessen the value of the leasehold
improvements in the Premises; (3) Landlord has experienced previous defaults by or is in
litigation with the proposed assignee or subtenant; (4) the use of the Premises by the proposed
assignee or subtenant will violate any applicable Legal Requirement; (5) the proposed assignee or
subtenant is an entity with whom Landlord has agreed to a letter of intent to lease space in the
Project; or (6) the assignment or
sublease is prohibited by Landlord’s lender. No failure of Landlord to deliver a timely
notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the
proposed assignment, sublease or other transfer. Tenant shall pay to Landlord a fee equal to One
Thousand Five Hundred Dollars ($1,500) in connection with its consideration of any Assignment
Notice and/or its preparation or review of any consent documents. Notwithstanding the foregoing,
Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Premises
to any entity controlling, controlled by or under common control with Tenant (a “Control Permitted
Assignment”) shall not be required, provided that Landlord shall have the right to approve the
form of any such sublease or assignment (which approval shall not be unreasonably withheld or
delayed). In addition, Tenant shall have the right to assign this Lease, provided that Tenant
delivers written notice thereof to Landlord within 5 business days thereafter but without
obtaining Landlord’s prior written consent, to a corporation or other entity which is a
successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or
by the purchase of all or substantially all of the assets or the ownership interests of Tenant
provided that (i) 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 the Lease,
and (ii) the net worth (as determined in accordance with generally accepted accounting principles
(“GAAP”)) of the assignee is not less than the greater of the net worth (as determined in
accordance with GAAP) of Tenant as of the date of Tenant’s most current quarterly or annual
financial statements, and (iii) 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 (a
“Corporate Permitted Assignment”). Control Permitted Assignments and Corporate Permitted
Assignments are hereinafter referred to as “Permitted Assignments.”



     (c) Additional Conditions. As a condition to any such assignment or subletting, whether
or not Landlord’s consent is required, Landlord may require:





	 	 	 	 	 

	 

	 	
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     (i) that any assignee or subtenant agree, in writing at the time of such assignment or
subletting, that if Landlord gives such party notice that Tenant is in default under this
Lease, such party shall thereafter make all payments otherwise due Tenant directly to
Landlord, which payments will be received by Landlord without any liability except to
credit such payment against those due under the Lease, and any such third party shall agree
to attorn to Landlord or its successors and assigns should this Lease be terminated for any
reason; provided, however, in no event shall Landlord or its successors or assigns be
obligated to accept such attornment; and




     (ii) A list of Hazardous Materials, certified by the proposed assignee or sublessee to
be true and correct, which the proposed 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 or on
the Project, prior to the proposed assignment or subletting, 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 Project
(provided, said installation of tanks shall only be permitted after Landlord has given its
written consent to do so, which consent may be withheld in Landlord’s sole and absolute
discretion); 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 Project for the closure of any such tanks. Neither Tenant nor any such proposed
assignee or subtenant is required, however, to provide Landlord with any portion(s) of the
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.



     (d) No
Release of Tenant, Sharing of Excess Rents. Notwithstanding any assignment or
subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at
all times remain fully and primarily responsible and liable for the payment of Rent and for
compliance with all of Tenant’s other obligations under this Lease. Except with respect to a
Permitted Assignment, if the Rent due and payable by a sublessee or assignee (or a combination of
the rental payable under such sublease or assignment plus any bonus or other consideration
therefor or incident thereto in any form attributable to the assignment or sublease) exceeds the
sum of the rental payable under this Lease, (excluding however, any Rent payable under this
Section) and actual and reasonable brokerage fees, legal costs and any design or construction fees
directly related to and required pursuant to the terms of any such
sublease) (“Excess Rent”), then
Tenant shall be bound and obligated to pay Landlord as Additional Rent hereunder 50% of such
Excess Rent within 10 days following receipt thereof by Tenant. If Tenant shall sublet the
Premises or any part 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 as assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed on
Landlord’s application, may collect such rent and apply it toward Tenant’s obligations under this
Lease; except that, until the occurrence of a Default, Tenant shall have the right to collect such
rent.



     (e) No
Waiver. The consent by Landlord to an assignment or subletting shall not relieve
Tenant or any assignees of this Lease or any sublessees of the Premises from obtaining the consent
of Landlord to any further assignment or subletting nor shall it release Tenant or any assignee or
sublessee of Tenant from full and primary liability under the Lease. The acceptance of Rent
hereunder, or the acceptance of performance of any other term, covenant, or condition thereof,
from any other person or entity shall not be deemed to be a waiver of any of the provisions of
this Lease or a consent to any subletting, assignment or other transfer of the Premises.



     (f) Prior
Conduct of Proposed Transferee. Notwithstanding any other provision of
this Section 22, if (i) the proposed assignee or sublessee of Tenant has been required by
any prior landlord, lender or Governmental Authority to take remedial action in connection with
Hazardous Materials contaminating a property, where the contamination resulted from such party’s
action or use of the property in question, (ii) the proposed assignee or sublessee is subject to
an enforcement order issued by any Governmental Authority in connection with the use, storage,
handling, treatment, generation, release





	 	 	 	 	 

	 

	 	
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or disposal of Hazardous Materials (including, without limitation, any order related to
the failure to make a required reporting to any Governmental Authority), or (iii) because of the
existence of a pre-existing environmental condition in the vicinity of or underlying the Project,
the risk that Landlord would be targeted as a responsible party in connection with the remediation
of such pre-existing environmental condition would be materially increased or exacerbated by the
proposed use of Hazardous Materials by such proposed assignee or sublessee, Landlord shall have
the absolute right to refuse to consent to any assignment or subletting to any such party.




     23. Estoppel
Certificate. Tenant shall, within 10 business days of written notice from
Landlord, execute, acknowledge and deliver a statement in writing in any form reasonably requested
by a proposed lender or purchaser, (i) 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 the rental and other
charges are paid in advance, if any, (ii) acknowledging that there are not any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed, and (iii) setting
forth such further information with respect to the status of this Lease or the Premises as may be
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 such time shall, at the option of Landlord, be conclusive
upon Tenant that the 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.



     24. Quiet
Enjoyment. So long as Tenant is not in Default under this Lease, Tenant shall,
subject to the terms of this Lease, at all times during the Term, have peaceful and quiet
enjoyment of the Premises against any person claiming by, through or under Landlord.



     25. Prorations. All prorations required or permitted to be made hereunder shall be made on
the basis of a 360 day year and 30 day months.



     26. Rules
and Regulations. Tenant shall, at all times during the Term and any extension
thereof, comply with all reasonable rules and regulations at any time or from time to time
established by Landlord covering use of the Premises and the Project. The current rules and
regulations are attached hereto as Exhibit E. If there is any conflict between said rules and
regulations and other provisions of this Lease, the terms and provisions of this Lease shall
control. Landlord shall not have any liability or obligation for the breach of any rules or
regulations by other tenants in the Project and shall not enforce such rules and regulations in a
discriminatory manner.



     27. Subordination. This Lease and Tenant’s interest and rights hereunder are hereby
made and shall be subject and subordinate at all times to the lien of any Mortgage now existing or
hereafter created on or against the Project or the Premises, and all amendments, restatements,
renewals, modifications, consolidations, refinancing, assignments and extensions thereof, without
the necessity of any further instrument or act on the part of Tenant; provided, however that so
long as there is no Default hereunder by Tenant such subordination shall be subject to Landlord’s
SNDA Obligation (as defined below). Tenant agrees, at the election of the Holder of any such
Mortgage, to attorn to any such Holder. Tenant agrees upon demand to execute, acknowledge and
deliver such instruments, confirming such subordination, and such instruments of attornment as
shall be requested by any such Holder, provided any such instruments contain appropriate
non-disturbance provisions assuring Tenant’s quiet enjoyment of the Premises as set forth in this
Section 27 and Section 24 hereof. Notwithstanding the foregoing, any such Holder may at any time
subordinate its Mortgage to this Lease, without Tenant’s consent, by notice in writing to Tenant,
and thereupon this Lease shall be deemed prior to such Mortgage without regard to their respective
dates of execution, delivery or recording and in that event such Holder shall have the same rights
with respect to this Lease as though this Lease had been executed prior to the execution, delivery
and recording of such Mortgage and had been assigned to such Holder.
The term “Mortgage” whenever
used in this Lease shall be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the “Holder” of a Mortgage shall be deemed to include the
beneficiary under a deed of trust. As of the date of this Lease, Landlord represents that
there is no






	 	 	 	 	 

	 

	 	
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existing Mortgage encumbering the Project. Upon written request from Tenant, Landlord shall
use reasonable efforts to obtain for execution by Tenant a commercially reasonable form of
subordination, non-disturbance and attornment agreement (a
“SNDA”) executed by the Holder of any
future Mortgage with a lien on the Project which provides subject to the terms and carve-outs
reasonably required by the Holder in such SNDA, among other things, that so long as Tenant is not
in Default of its obligations under this Lease, foreclosure or other enforcement of such Mortgage
shall not terminate this Lease and the successor to Landlord’s interest in the Project shall
recognize and be bound by the terms of this Lease and, if applicable, the Exelixis Lease (and
Landlord’s consent to the Exelixis Sublease) including the provisions of Section 5(f) of the Work
Letter and Tenant’s right to possession of the Premises
(“Landlord’s SNDA Obligation”). Tenant
acknowledges and agrees that the SNDA may provide that in no event shall any such Holder and/or
the successor to Landlord’s interest in the Project: (i) be liable for any act or omission of any
prior landlord or with respect to events occurring prior to acquisition of ownership and, with
respect to any continuing failure by Landlord under the Lease such as the failure to perform
required maintenance and repairs, such failure shall as to such Holder or successor only be deemed
to have commenced from and after the date that such party succeeds to Landlord’s interest in the
Project and obtains written notice from Tenant of the failure in question; (ii) except for Section
5(f) of the Work Letter, be subject to any offsets or defenses which Tenant might have against any
prior landlord, (iii) be bound by prepayment of more than one (1) month’s rent, or (iv) be
obligated to be bound by any modifications or amendments to this Lease not consented to in writing
by such Holder or successor to Landlord’s interest in the Project.




     28. Surrender. Upon the expiration of the Term or earlier termination of Tenant’s right of
possession, Tenant shall surrender the Premises to Landlord in the same condition as received,
subject to any Alterations or Installations permitted by Landlord to remain in the Premises, free
of Hazardous Materials brought upon, kept, used, stored, handled, treated, generated in, or
released or disposed of from, the Premises by any person other than a Landlord Party
(collectively, “Tenant HazMat Operations”) and released of all Hazardous Materials Clearances,
broom clean, ordinary wear and tear and casualty loss and condemnation covered by Sections 18 and
19 excepted. At least 3 months prior to the surrender of the Premises, Tenant shall deliver to
Landlord a narrative description of the actions proposed (or required by any Governmental
Authority) to be taken by Tenant in order to surrender the Premises (including any Installations
permitted by Landlord to remain in the Premises) at the expiration or earlier termination of the
Term, free from any residual impact from the Tenant HazMat Operations and otherwise released for
unrestricted use and occupancy (the “Surrender Plan”). Such Surrender Plan shall be accompanied by
a current listing of (i) all Hazardous Materials licenses and permits held by or on behalf of any
Tenant Party with respect to the Premises, and (ii) all Hazardous Materials used, stored, handled,
treated, generated, released or disposed of from the Premises, and shall be subject to the review
and approval of Landlord’s environmental consultant, such approval not to be unreasonably withheld
or delayed. In connection with the review and approval of the Surrender Plan, upon the request of
Landlord, Tenant shall deliver to Landlord or its consultant such additional non-proprietary
information concerning Tenant HazMat Operations as Landlord shall request. On or before such
surrender, Tenant shall deliver to Landlord evidence that the approved Surrender Plan shall have
been satisfactorily completed and Landlord shall have the right, subject to reimbursement at
Tenant’s expense as set forth below, to cause Landlord’s environmental consultant to inspect the
Premises and perform such additional procedures as may be deemed reasonably necessary to confirm
that the Premises are, as of the effective date of such surrender or early termination of the
Lease, free from any residual impact from Tenant HazMat Operations. Tenant shall reimburse
Landlord, as Additional Rent, for the actual reasonable out-of pocket expense incurred by Landlord
for Landlord’s environmental consultant to review and approve the Surrender Plan and to visit the
Premises and verify satisfactory completion of the same, which cost shall not exceed $5,000.
Landlord shall have the unrestricted right to deliver such Surrender Plan and any report by
Landlord’s environmental consultant with respect to the surrender of the Premises to third
parties.



     If Tenant shall fail to prepare or submit a Surrender Plan approved by Landlord, or if
Tenant shall fail to complete the approved Surrender Plan, or if such Surrender Plan, whether or
not approved by Landlord, shall fail to adequately address any residual effect of Tenant HazMat
Operations in, on or about






	 	 	 	 	 

	 

	 	
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the Premises, Landlord shall have the right to take such actions as Landlord may deem
reasonable or appropriate to assure that the Premises and the Project are surrendered free from
any residual impact from Tenant HazMat Operations, the cost of which actions shall be reimbursed
by Tenant as Additional Rent, without regard to the limitation set forth in the first paragraph of
this Section 28.




     Tenant shall immediately return to Landlord all keys to parking, the Project, restrooms or
all or any portion of the Premises furnished to or otherwise procured by Tenant. If any such key
is lost, Tenant shall pay to Landlord, at Landlord’s election, either the cost of replacing such
lost key or changing the lock or locks opened by such lost key. Any Tenant’s Property, Alterations
and property not so removed by Tenant as permitted or required herein shall be deemed abandoned
and may be stored, removed, and disposed of by Landlord at Tenant’s expense, and Tenant waives all
claims against Landlord for any damages resulting from Landlord’s retention and/or disposition of
such property. All obligations of Tenant hereunder not fully performed as of the termination of
the Term, including the obligations of Tenant under Section 30 hereof, shall survive the
expiration or earlier termination of the Term, including, without limitation, indemnity
obligations, payment obligations with respect to Rent and obligations concerning the condition and
repair of the Premises.



     29. Waiver
of Jury Trial. TO THE EXTENT PERMITTED BY LAW, TENANT AND LANDLORD WAIVE ANY RIGHT
TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO.



     30. Environmental
Requirements.



     (a) Prohibition/Compliance/Indemnity. Tenant shall not cause or permit any Hazardous
Materials (as hereinafter defined) to be brought upon, kept, used, stored, handled, treated,
generated in or about, or released or disposed of from, the Premises or the Project in violation
of applicable Environmental Requirements (as hereinafter defined) by Tenant or any Tenant Party.
If Tenant breaches the obligation stated in the preceding sentence, or if the presence of
Hazardous Materials in the Premises during the Term or any holding over results in contamination
of the Premises, the Project or any adjacent property or if contamination of the Premises, the
Project or any adjacent property by Hazardous Materials brought into, kept, used, stored, handled,
treated, generated in or about, or released or disposed of from, the Premises by anyone other than
Landlord and Landlord’s employees, agents and contractors otherwise occurs during the Term or any
holding over, Tenant hereby indemnifies and shall defend and hold Landlord, its officers,
directors, employees, agents and contractors harmless from any and all actions (including, without
limitation, remedial or enforcement actions of any kind, administrative or judicial proceedings,
and orders or judgments arising out of or resulting therefrom), costs, claims, damages (including,
without limitation, punitive damages and damages based upon diminution in value of the Premises or
the Project, or the loss of, or restriction on, use of the Premises or any portion of the
Project), expenses (including, without limitation, attorneys’, consultants’ and experts’ fees,
court costs and amounts paid in settlement of any claims or actions), fines, forfeitures or other
civil, administrative or criminal penalties, injunctive or other relief (whether or not based upon
personal injury, property damage, or contamination of, or adverse effects upon, the environment,
water tables or natural resources), liabilities or losses
(collectively, “Environmental Claims”)
which arise during or after the Term as a result of such contamination. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work
required by any federal, state or local Governmental Authority because of Hazardous Materials
present in the air, soil or ground water above, on, or under the Premises. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Premises, the Building, the Project
or any adjacent property caused or permitted by Tenant or any Tenant Party results in any
contamination of the Premises, the Building, the Project or any adjacent property, Tenant shall
promptly take all actions at its sole expense and in accordance with applicable Environmental
Requirements as are necessary to return the Premises, the Building, the Project or any adjacent
property to the condition






	 	 	 	 	 

	 

	 	
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existing prior to the time of such contamination, provided that Landlord’s approval of
such action shall first be obtained, which approval shall not unreasonably be withheld so long as
such actions would not potentially have any material adverse long-term or short-term effect on the
Premises, the Building or the Project. Notwithstanding anything to the contrary contained in
Section 28 or this Section 30, Tenant shall not be responsible for or have any liability to
Landlord, and the indemnification and hold harmless obligation set forth in this paragraph shall
not apply to (i) contamination in the Premises which Tenant can prove to Landlord’s reasonable
satisfaction existed in the Premises immediately prior to the Commencement Date, (ii) the presence
of any Hazardous Materials in the Premises which Tenant can prove to Landlord’s reasonable
satisfaction migrated from outside of the Premises into the Premises, or (iii) any Hazardous
Materials that Tenant can prove to Landlord’s reasonable satisfaction were not brought upon, kept,
used, stored, handled, treated, generated in, or released or disposed of from, the Project by
Tenant or any Tenant Party, unless in any case, the presence of such Hazardous Materials (x) is
the result of a breach by Tenant of any of its obligations under this Lease, or (y) was caused,
contributed to or exacerbated by Tenant or any Tenant Party.




     (b) Business. Landlord acknowledges that it is not the intent of this Section 30 to
prohibit Tenant from using the Premises for the Permitted Use. Tenant may operate its business
according to prudent industry practices so long as the use or presence of Hazardous Materials is
strictly and properly monitored according to all then applicable Environmental Requirements. 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 Commencement Date a list identifying
each type of Hazardous Materials to be brought upon, kept, used, stored, handled, treated,
generated on, or released or disposed of from, the Premises and setting forth any and all
governmental approvals or permits required in connection with the presence, use, storage,
handling, treatment, generation, release or disposal of such Hazardous Materials on or from the
Premises (“Hazardous Materials List”). Tenant shall deliver to Landlord an updated Hazardous
Materials List at least once per calendar year listing all Hazardous Materials which Tenant is
required to disclose to any Governmental Authority (e.g., the fire department) in connection with
its use or occupancy of the Premises. Tenant shall deliver to Landlord true and correct copies of
the following documents (the “Haz Mat Documents”) relating to the use, storage, handling,
treatment, generation, release or disposal of Hazardous Materials prior to the Commencement Date,
or if unavailable at that time, concurrent with the receipt from or submission to a Governmental
Authority: permits; approvals; reports and correspondence; storage and management plans, notice of
violations of any Legal Requirements; plans relating to the installation of any storage tanks to
be installed in or under the Project (provided, said installation of tanks shall only be permitted
after Landlord has given Tenant its written consent to do so, which consent may be withheld in
Landlord’s sole and absolute discretion); 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 Project for the closure of any such tanks; and a Surrender Plan (to the extent
surrender in accordance with Section 28 cannot be accomplished in 3 months). Tenant is not
required, however, to provide Landlord with any portion(s) of the Haz Mat Documents containing
information of a proprietary nature which, in and of themselves, do not contain a reference to any
Hazardous Materials or hazardous activities. It is not the intent of this Section to provide
Landlord with information which could be detrimental to Tenant’s business should such information
become possessed by Tenant’s competitors.



     (c) Tenant
Representation and Warranty. Tenant hereby represents and warrants to Landlord
that (i) neither Tenant nor any of its legal predecessors has been required by any prior landlord,
lender or Governmental Authority at any time to take remedial action in connection with Hazardous
Materials contaminating a property which contamination was permitted by Tenant of such predecessor
or resulted from Tenant’s or such predecessor’s action or use of the property in question, and
(ii) Tenant is not subject to any enforcement order issued by any Governmental Authority in
connection with the use, storage, handling, treatment, generation, release or disposal of
Hazardous Materials (including, without limitation, any order related to the failure to make a
required reporting to any Governmental Authority). If Landlord determines that this representation
and warranty was not true as of the date of this lease, Landlord shall have the right to terminate
this Lease in Landlord’s sole and absolute discretion.






	 	 	 	 	 

	 

	 	
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     (d) Testing. Landlord shall have the right to conduct annual tests of the Premises to
determine whether any contamination of the Premises or the Project has occurred as a result of
Tenant’s use. Tenant shall be required to pay the cost of such annual test of the Premises only if
there is violation of this Section 30 or if contamination for which Tenant is responsible under
this Section 30 is identified; provided, however, that if Tenant conducts its own tests of the
Premises using third party contractors and test procedures acceptable to Landlord which tests are
certified to Landlord, Landlord shall accept such tests in lieu of the annual tests. In addition,
at any time, and from time to time, prior to the expiration or earlier termination of the Term,
Landlord shall have the right to conduct appropriate tests of the Premises and the Project to
determine if contamination has occurred as a result of Tenant’s use of the Premises. In connection
with such testing, upon the request of Landlord, Tenant shall deliver to Landlord or its
consultant such non-proprietary information concerning the use of Hazardous Materials in or about
the Premises by Tenant or any Tenant Party. If contamination has occurred for which Tenant is
liable under this Section 30, Tenant shall pay all costs to conduct such tests. If no such
contamination is found, Landlord shall pay the costs of such tests (which shall not constitute an
Operating Expense). Landlord shall provide Tenant with a copy of all third party, non-confidential
reports and tests of the Premises made by or on behalf of Landlord during the Term without
representation or warranty and subject to a confidentiality agreement. Tenant shall, at its sole
cost and expense, promptly and satisfactorily remediate any environmental conditions identified by
such testing in accordance with all Environmental Requirements. Landlord’s receipt of or
satisfaction with any environmental assessment in no way waives any rights which Landlord may have
against Tenant.



     (e) Control
Areas. Tenant shall comply with all Legal Requirements applicable to the
storage of Hazardous Materials at the Project.



     (f) Underground
Tanks. If underground or other storage tanks storing Hazardous Materials
located on the Premises or the Project are used by Tenant or are hereafter placed on the Premises
or the Project by Tenant, Tenant shall install, use, monitor, operate, maintain, upgrade and
manage such storage tanks, maintain appropriate records, obtain and maintain appropriate
insurance, implement reporting procedures, properly close any underground storage tanks, and take
or cause to be taken all other actions necessary or required under applicable state and federal
Legal Requirements, as such now exists or may hereafter be adopted or amended in connection with
the installation, use, maintenance, management, operation, upgrading and closure of such storage
tanks.



     (g) Tenant’s
Obligations. Tenant’s obligations under this Section 30 shall survive the
expiration or earlier termination of the Lease. During any period of time after the expiration or
earlier termination of this Lease required by Tenant or Landlord to complete the removal from the
Premises of any Hazardous Materials (including, without limitation, the release and termination of
any licenses or permits restricting the use of the Premises and the completion of the approved
Surrender Plan), Tenant shall continue to pay the full Rent in accordance with this Lease for any
portion of the Premises not relet by Landlord in Landlord’s sole discretion, which Rent shall be
prorated daily.



     (h) Definitions.
As used herein, the term “Environmental Requirements” means all
applicable present and future statutes, regulations, ordinances, rules, codes, judgments, orders
or other similar enactments of any Governmental Authority regulating or relating to health,
safety, or environmental conditions on, under, or about the Premises or the Project, or the
environment, including without limitation, the following: the Comprehensive Environmental
Response, Compensation and Liability Act; the Resource Conservation and Recovery Act; and all
state and local counterparts thereto, and any regulations or policies promulgated or issued
thereunder. As used herein, the term “Hazardous Materials” means and includes any substance,
material, waste, pollutant, or contaminant listed or defined as hazardous or toxic, or regulated
by reason of its impact or potential impact on humans, animals and/or
the environment under any Environmental Requirements, asbestos and petroleum, including crude
oil or any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and such synthetic gas). As defined in
Environmental Requirements, Tenant is and shall be deemed to be the
“operator” of Tenant’s
“facility” and the “owner” of all Hazardous Materials brought






	 	 	 	 	 

	 

	 	
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on the Premises by Tenant or any Tenant Party, and the wastes, by-products, or residues
generated, resulting, or produced therefrom.




     31. Tenant’s
Remedies/Limitation of Liability. Landlord shall not be in default
hereunder unless Landlord fails to perform any of its obligations hereunder within 30 days after
written notice from Tenant specifying such failure (unless such performance will, due to the
nature of the obligation, require a period of time in excess of 30 days, then after such period of
time as is reasonably necessary). Upon any default by Landlord, Tenant shall give notice by
registered or certified mail to any Holder of a Mortgage covering the Premises and to any landlord
of any lease of property in or on which the Premises are located and Tenant shall offer such
Holder and/or landlord a reasonable opportunity to cure the default, including time to obtain
possession of the Project by power of sale or a judicial action if such should prove necessary to
effect a cure; provided Landlord shall have furnished to Tenant in writing the names and addresses
of all such persons who are to receive such notices. All obligations of Landlord hereunder shall
be construed as covenants, not conditions; and, except as may be otherwise expressly provided in
this Lease, Tenant may not terminate this Lease for breach of Landlord’s obligations hereunder.



     All obligations of Landlord under this Lease will be binding upon Landlord only during
the period of its ownership of the Premises and not thereafter. The
term “Landlord” in this Lease
shall mean only the owner for the time being of the Premises. Upon the transfer by such owner of
its interest in the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be binding during the Term
upon each new owner for the duration of such owner’s ownership.



     32. Inspection
and Access. Landlord and its agents, representatives, and contractors may
enter the Premises at any reasonable time to inspect the Premises and to make such repairs as may
be required or permitted pursuant to this Lease. Landlord and Landlord’s representatives may enter
the Premises during business hours on not less than 48 hours advance written notice (except in the
case of emergencies in which case no such notice shall be required and such entry may be at any
time) for the purpose of effecting any such repairs, inspecting the Premises, other business
purposes or showing the Premises to prospective purchasers and, during the last 9 months of the
Term, to prospective tenants. Landlord may erect a suitable sign on the Premises stating the
Premises are available to let or that the Project is available for sale. Landlord may grant
easements, make public dedications, designate Common Areas and create restrictions on or about the
Premises, provided that no such easement, dedication, designation or restriction materially,
adversely affects Tenant’s use or occupancy of the Premises for the Permitted Use. At Landlord’s
request, Tenant shall execute such instruments as may be necessary for such easements, dedications
or restrictions. Tenant shall at all times, except in the case of emergencies, have the right to
escort Landlord or its agents, representatives, contractors or guests while the same are in the
Premises, provided such escort does not materially and adversely affect Landlord’s access rights
hereunder.



     33. Security. Tenant acknowledges and agrees that security devices and services, if any,
while intended to deter crime may not in given instances prevent theft or other criminal acts and
that Landlord is not providing any security services with respect to the Premises. Tenant agrees
that Landlord shall not be liable to Tenant for, and Tenant waives any claim against Landlord with
respect to, any loss by theft or any other damage suffered or incurred by Tenant in connection
with any unauthorized entry into the Premises or any other breach of security with respect to the
Premises. Tenant shall be solely responsible for the personal safety of Tenant’s officers,
employees, agents, contractors, guests and invitees while any such person is in, on or about the
Premises and/or the Project. Tenant shall at Tenant’s cost obtain insurance coverage to the extent
Tenant desires protection against such criminal acts.



     34. Force
Majeure. Neither Tenant nor Landlord shall be responsible or liable for
delays in the performance of its obligations hereunder when caused by, related to, or arising out
of acts of God, sinkholes or subsidence, strikes, lockouts, or other labor disputes, embargoes,
quarantines, weather, national, regional, or local disasters, calamities, or catastrophes,
inability to obtain labor or materials (or





	 	 	 	 	 

	 

	 	
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reasonable substitutes therefor) at reasonable costs or failure of, or inability to obtain,
utilities necessary for performance, governmental restrictions, orders, limitations, regulations,
or controls, national emergencies, delay in issuance or revocation of permits, enemy or hostile
governmental action, terrorism, insurrection, riots, civil disturbance or commotion, fire or other
casualty, and other causes or events beyond the reasonable control of such party (“Force
Majeure”); provided, however, that Force Majeure shall not include the inability to pay money
(including, without limitation, the Rent due Landlord hereunder), general economic conditions,
restrictions on the availability of credit or money, or other causes related to the particular
financial condition of a party. Any party claiming Force Majeure shall be required to notify the
other party of such Force Majeure promptly after the commencement of such Force Majeure and shall
be required to keep such other party reasonably informed regarding the same throughout the period
during which Force Majeure is being claimed. If the happening of any such Force Majeure event only
partially impairs the performance of a party’s obligations hereunder, such party shall continue to
perform under this Lease to the fullest extent possible in light of such Force Majeure event.




     35. Brokers. Landlord and Tenant each represents and warrants that it has not dealt with any
broker, agent or other person (collectively, “Broker”) in connection with this transaction and
that no Broker brought about this transaction, other than CB Richard Ellis and Cresa Partners.
Landlord and Tenant each hereby agree to indemnify and hold the other harmless from and against
any claims by any Broker, other than the broker, if any named in this Section 35, claiming a
commission or other form of compensation by virtue of having dealt with Tenant or Landlord, as
applicable, with regard to this leasing transaction. Landlord shall be responsible for all fees of
Broker arising out of the execution of this Lease in accordance with the terms of a separate
written agreement between Broker and Landlord.



     36. Limitation
on Landlord’s Liability. NOTWITHSTANDING ANYTHING SET FORTH HEREIN OR IN ANY
OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO
TENANT OR ANY OTHER PERSON FOR (AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS,
DAMAGE OR INJURY, WHETHER ACTUAL OR CONSEQUENTIAL TO: TENANTS PERSONAL PROPERTY OF EVERY KIND AND
DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT, INVENTORY, SCIENTIFIC
RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS, PRODUCT, SPECIMENS, SAMPLES, AND/OR
SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER RECORDS OF EVERY KIND AND DESCRIPTION KEPT AT THE
PREMISES AND ANY AND ALL INCOME DERIVED OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL
RECOURSE TO LANDLORD FOR ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR ARISING IN ANY WAY
UNDER THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND ANY LIABILITY OF LANDLORD HEREUNDER SHALL BE STRICTLY LIMITED SOLELY TO
LANDLORD’S INTEREST IN THE PROJECT OR ANY PROCEEDS FROM SALE OR CONDEMNATION THEREOF AND ANY
INSURANCE PROCEEDS PAYABLE IN RESPECT OF LANDLORD’S INTEREST IN THE PROJECT OR IN CONNECTION WITH
ANY SUCH LOSS; AND (C) IN NO EVENT SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST LANDLORD IN
CONNECTION WITH THIS LEASE NOR SHALL ANY RECOURSE BE HAD TO ANY OTHER PROPERTY OR ASSETS OF
LANDLORD OR ANY OF LANDLORD’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. UNDER NO
CIRCUMSTANCES SHALL LANDLORD OR ANY OF LANDLORDS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
CONTRACTORS BE LIABLE FOR INJURY TO TENANT’S BUSINESS OR FOR ANY LOSS OF INCOME OR PROFIT
THEREFROM.



     37. Severability. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby. It is also the
intention of the parties to this Lease that in lieu of each clause or provision of this Lease that
is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or
provision as similar in effect to such illegal, invalid or unenforceable clause or provision as
shall be legal, valid and enforceable.






	 	 	 	 	 

	 

	 	
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     38. Signs;
Exterior Appearance. Tenant shall not, without the prior written consent of
Landlord, which may be granted or withheld in Landlord’s sole discretion: (i) attach any awnings,
exterior lights, decorations, balloons, flags, pennants, banners, painting or other projection to
any outside wall of the Project, (ii) use any curtains, blinds, shades or screens other than
Landlord’s standard window coverings, (iii) coat or otherwise sunscreen the interior or exterior
of any windows, (iv) place any bottles, parcels, or other articles on the window sills, (v) place
any equipment, furniture or other items of personal property on any exterior balcony which can be
viewed from the exterior of the Premises, or (iv) paint, affix or exhibit on any part of the
Premises or the Project any signs, notices, window or door lettering, placards, decorations, or
advertising media of any type which can be viewed from the exterior of the Premises. Interior
signs on doors and the directory tablet shall be inscribed, painted or affixed for Tenant by
Landlord at the sole cost and expense of Tenant.



     Within 60 days of the Commencement Date, Landlord shall, at Landlord’s sole cost, (a)
remove the names on the existing monument sign closest to the Building and replace them with
Tenant’s name and logo and (b) remove the existing Exelixis signage on the Building and replace it
with Tenant’s name and logo as provided in this paragraph. Tenant shall have the exclusive right
to display, at Landlord’s cost and expense, Tenant’s name and/or logo on the Building monument
sign located on E. Grand Avenue (“Monument Sign”). Tenant shall also have the exclusive right to
display, at Tenant’s cost and expense, signs bearing Tenant’s name and/or logo at locations on the
Building acceptable to Landlord, in Landlord’s reasonable discretion. Notwithstanding the
foregoing, Tenant acknowledges and agrees that Tenant’s name signage on the Monument Sign and on
the Building including, without limitation, the size, color and type, shall be subject to
Landlord’s prior written approval and shall be consistent with Landlord’s signage program at the
Project and applicable Legal Requirements. Tenant shall be responsible, at Tenant’s sole cost and
expense, for the maintenance of Tenant’s signs, for the removal of Tenant’s signs at the
expiration or earlier termination of this Lease and for the repair all damage resulting from such
removal. Landlord hereby approves of the signage described in
Exhibit H attached hereto.



     39. Right
to Expand.



     (a) Expansion
in the Project. Tenant shall have the one-time right, commencing on the
Commencement Date and exercisable on or before that date that is 36 months after the Rent
Commencement Date (“Expansion Right Expiration
Date”), to elect to lease (the “Expansion Right”) a
minimum of 60% of the rentable square footage of that certain
building (“Expansion Space”) (in
locations within the building reasonably acceptable to both Landlord and Tenant but Landlord may
require Tenant to lease all of the space on particular contiguous floor(s) before Tenant is
permitted to lease space on any other floor) to be constructed
(“Northern Facility”) in
approximately the location on the land shown on Exhibit G attached hereto (“Northern Facility
Land”), which Northern Facility Landlord currently anticipates will contain 5 floors and a total
of approximately 161,942 rentable square feet of space. Notwithstanding the foregoing, Tenant
acknowledges and agrees that (i) Landlord shall have no obligation to commence design and/or
construction of the Northern Facility prior to Tenant delivering an Expansion Exercise Notice (as
defined below) to Landlord, and (ii) the number of floors and anticipated square footage of the
Northern Facility is not guaranteed and is subject to change by Landlord. If Tenant elects to
exercise the Expansion Right, Tenant shall, on or before the Expansion Right Expiration Date,
deliver irrevocable written notice to Landlord of its election to exercise the Expansion Right
(“Expansion Exercise Notice”), which Expansion Exercise Notice will set forth how much of the
Northern Facility Tenant elects to lease but in no event shall Tenant be permitted to lease less
than 60% of the rentable square footage of the Northern Facility. Tenant acknowledges and agrees
that if Tenant elects to exercise its Expansion Right, then, commencing on the Expansion Space
Rent Commencement Date (as defined below), the Base Term of this Lease for the Premises shall
automatically be extended for 10 years and the Base Rent for the Premises shall continue at the
then current rate with the annual Rent Adjustment Percentage escalations, but Tenant shall
nonetheless be required to comply with the other provisions of the lease agreement or lease
amendment entered into with respect to the Expansion Space following the mutual execution and
delivery of the same. (For example, if the Expansion Space Rent Commencement Date for the
Expansion Space is January 1, 2012, then the Base Term of the Lease for the Premises and the
Expansion Premises shall expire on December 31, 2021.) Tenant acknowledges





	 	 	 	 	 

	 

	 	
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and agrees that if Tenant elects to lease the Expansion Space as provided for in this Section
39(a) prior to the Expansion Right Expiration Date, all of the terms and conditions of this Lease
shall apply to the leasing of the Expansion Space, except that: (i) the definitions on page 1 of
the Lease shall be amended as necessary to document and reflect the addition of the Northern
Facility to the Project and Tenant’s leasing of the Expansion Space plus an increase in the
Security Deposit to reflect one month of Base Rent for the Expansion Space; (ii) Base Rent shall
be determined pursuant to the provisions of Section 39(a)(D) below but in no event shall the
initial Base Rent for the Expansion Space be more than $3.50 per rentable square foot per month
and the same shall increase as provided for in Section 4(b) on each anniversary of the Expansion
Space Rent Commencement Date; (iii) the “Expansion Space
Rent Commencement Date” shall be the date
that is 9 months after the Shell Delivery Date (as defined
below) (“Tenant’s Build-Out Period”)
and Tenant shall commence paying Base Rent and Operating Expenses for the Expansion Space on such
date except that such date shall be extended on a day for day basis due to any Force Majeure and
Landlord Delay applicable to Tenant’s construction of the Expansion Space Tenant Improvements;
(iv) Tenant shall be responsible for the construction of tenant improvements in the Expansion
Space desired by Tenant which improvements shall be of a fixed and permanent nature approved by
Landlord (“Expansion Space Tenant Improvements”) and the parties shall enter into a work letter
for the Expansion Space substantially in the form of
Exhibit C but, instead of the Tenant
Improvement Allowance and Additional Tenant Improvement Allowance provided for in Section 5 of the
Work Letter, Tenant shall receive a tenant improvement allowance in the amount of $150 per
rentable square foot of the Expansion Space (“Expansion Space
Work Letter”) which shall be
disbursed as provided for in the work letter and Tenant shall have 18 months from the Shell
Delivery Date to use such allowance and any amount not used as of the expiration of such 18 month
period shall be forfeited; (v) other than systems and facilities dedicated solely to the Expansion
Space, Tenant shall not be entitled to maintain the Building Systems in the Northern Facility
unless Tenant is leasing the entire Northern Facility; (vi) Landlord shall make available to
Tenant its pro-rata share of the signage rights applicable to the Northern Facility; (vii) the
provisions of Section 42(s) shall not apply to the Expansion Space and the provisions of Section
42(t) shall apply if Tenant leases the first floor of the Northern Facility as part of the
Expansion Space; and (vii) since the Northern Facility may be a multi-tenant building Landlord may
require such other changes to the lease for the Expansion Space as would be appropriate for a
multi-tenant building. If (x) Tenant does not deliver an Expansion Exercise Notice to Landlord on
or before the Expansion Right Expiration Date or (y) no lease amendment or lease agreement for the
Expansion Space (including a Expansion Space Work Letter), acceptable to Landlord and Tenant, each
in their respective reasonable discretion, has been executed and delivered by the parties within
20 days after Landlord delivers a draft of the same to Tenant despite the good faith efforts of
both parties, Tenant shall be deemed to have forever waived its right to lease the Expansion Space
and this Section 39(a) shall terminate and be of no further force or effect.




In addition to the foregoing, the following provisions shall apply following Tenant’s
election to exercise the Expansion Right:




     (A)
Northern Facility, Architects and Contractors. Landlord shall be obligated to
construct the Building Shell for the Northern Facility. As used
herein, “Building Shell”
shall mean a warm building shell comparable to the warm building shell constructed by
Landlord for the Building.




          Tenant acknowledges and agrees that the architect for the Northern Facility
shall be selected by Landlord, subject to Tenant’s approval, which approval shall not be
unreasonably withheld, conditioned or delayed. In addition, Landlord shall competitively
bid the construction of the Northern Facility to 3 general contractors selected by
Landlord. Landlord shall select the winning bidder, subject to Tenant’s approval of the
selected bid, which approval shall not be unreasonably withheld, conditioned or delayed.
Landlord shall thereafter enter into a guaranteed maximum price contract with the selected
general contractor.




     (B)
Plans. The plans for the Northern Facility shall be prepared by Landlord and
shall be subject to Tenant’s approval which shall not be unreasonably withheld, conditioned
or






	 	 	 	 	 

	 

	 	
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delayed and may in no event increase Landlord’s costs or reduce the rentable
square footage of the Northern Facility. Any changes requested by Tenant shall be set forth
in a written change order. Tenant acknowledges and agrees that, subject to changes in Legal
Requirements, Tenant’s approval shall not be required for the Building Shell to the extent
that the same is comparable to the warm building shell which Landlord constructed for the
Building. Notwithstanding anything to the contrary contained herein, to the extent set
forth in a written change order, Tenant shall be solely responsible for paying for any
costs in connection with any changes which Tenant requests to the Building Shell
(including, without limitation, with respect to any plans) whether or not such changes are
made, and any delays in the design and/or construction of the Northern Facility caused by
Tenant and/or any Tenant Party shall reduce Tenant’s Build-Out Period on a day for day
basis. Tenant acknowledges that certain plans and other information that may be made
available Tenant pursuant to the provisions of this Section 39 constitute information that
Landlord considers confidential and, upon request from Landlord, Tenant shall execute a
confidentiality and non-disclosure agreement reasonably acceptable to Landlord and Tenant
with respect to such confidential information.




     (C)
Northern Facility Budget and Schedule. Landlord shall, within a reasonable
period of time, submit to Tenant a budget (“Northern Facility
Budget”) for the estimated
Total Northern Facility Expansion Costs (as defined below), including a sample calculation
of Base Rent for the Expansion Space and a proposed construction schedule for the Northern
Facility. The cost information related to the design and construction of the Northern
Facility shall be shared with Tenant on a so called “open book basis”. The construction
costs for the Building Shell shall not exceed the final Northern Facility Budget which
Tenant shall have the right to approve (which approval shall not be unreasonably withheld,
conditioned or delayed) prior to Landlord entering into the guaranteed maximum price
contract with the general contractor for the Building Shell. Notwithstanding anything to
the contrary contained herein, Landlord shall have the right to include a contingency of up
to 8% in the Northern Facility Budget and the same 8% contingency in the guaranteed maximum
price contract with the general contractor.




          The construction schedule shall include the following milestones (with Tenant
acknowledging and agreeing that any failure by Tenant to make its representatives
reasonably available for meetings and/or to provide information and other approvals
required of Tenant shall, along with any other delays caused by Tenant and/or any Tenant
Party in connection the design and construction of the Northern Facility that, with respect
to any such event, (i) actually contribute to delaying (x) Landlord’s placing of Landlord’s
steel order beyond the Outside Steel Order Date or (y) construction of the Building Shell
beyond the Target Shell Delivery Date and (ii) continue for more than one day following
Landlord’s written (or email) notice to Tenant of the matter that caused the delay,
constitute a delay caused by Tenant which shall extend the dates for Landlord’s performance
of the milestones noted below on a day for day basis):




     (i) on or before the date that is 9 months after the date that the parties have
entered into the lease agreement or amendment for the Expansion Space (as such date
may be extend by delays caused by Tenant), Landlord shall place the order for the
steel for the Building Shell. If Landlord fails to timely place the order for the
steel, Landlord shall not be liable to Tenant for any loss or damage resulting
therefrom, and the lease with respect to the Expansion Space shall not be void or
voidable except as provided for in the immediately following sentence. If, for any
reason including Force Majeure (but specifically excluding any delays caused by
Tenant), Landlord fails to place the order for the steel within 10.5 months after
the parties have entered into the lease agreement or amendment for the Expansion
Space (as extended by delays caused by Tenant, the “Outside
Steel Order Date”),
Tenant shall have the one time right (“Expansion Termination
Right”) to terminate
the lease agreement or amendment with respect to the Expansion Space and if so
terminated, then, notwithstanding anything to the contrary contained herein, neither
Landlord nor Tenant shall have any further rights, duties or obligations to one
another with respect to the Northern Facility. If Tenant fails to deliver






	 	 	 	 	 

	 

	 	
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written notice to Landlord within 5 business day after the Outside Steel Order Date
of its election to terminate pursuant to the provisions of the preceding sentence,
Tenant shall be deemed to have forever waived its Expansion Termination Right. The
parties hereby agree that, if applicable, for each day during the 1.5 month period
following the expiration of the 9 month period (as such period may be extended by
delays caused by Tenant) provided for in the first sentence of this paragraph until
Landlord places the steel order, Tenant shall be entitled, starting on the
Expansion Space Rent Commencement Date, to occupy the Expansion Space without the
obligation to pay Base Rent for 1 day. If Tenant exercises the Expansion
Termination Right or Landlord places the steel order prior to the expiration of
such 9 month period (as such period may be extended by delays caused by Tenant) the
provisions of the preceding sentence shall not apply.




     (ii) the target date for the Shell Delivery Date (as defined below) shall be
21 months after the date that the parties have entered into the lease agreement or
amendment for the Expansion Space (“Target Shell Delivery
Date”). If Landlord fails
satisfy the requirements of the preceding sentence, Landlord shall not be liable
for any loss or damage resulting therefrom but, if applicable depending on the
Shell Delivery Date, the provisions of the second to last paragraph of this Section
39(a)(C) shall apply.




     The
“Shell Delivery Date” shall mean the date that Tenant is notified accurately by
Landlord or the general contractor for the Northern Facility that construction of the
Building Shell is at a point where the Expansion Space is weather tight and is in a
condition acceptable for the commencement of construction of the Expansion Space Tenant
Improvements.




     Landlord shall deliver the Expansion Space to Tenant for the commencement of the
construction of the Expansion Space Tenant Improvements on the Shell Delivery Date. If
Landlord fails to timely deliver by the Target Shell Delivery Date, Landlord shall not be
liable to Tenant for any loss or damage resulting therefrom except as expressly provided
for below in this paragraph, and this Lease shall not be void or voidable. If Landlord does
not deliver the Expansion Space with the Building Shell in the condition required on the
Shell Delivery Date within 120 days of the Target Shell Delivery Date (as such date may be
extended for Force Majeure and delays caused by Tenant and/or any Tenant Party, the
“Outside Date”), Tenant shall be entitled, starting on the Expansion Space Rent
Commencement Date, to occupy the Expansion Space without the obligation to pay Base Rent, 1
day for each day following the Outside Date until the Shell Delivery Date.




     Upon request of Landlord, Tenant shall execute and deliver a written
acknowledgement of the Shell Delivery Date, the Expansion Space Rent Commencement Date, the
Base Rent for the Expansion Space and the expiration date of the Base Term when such are
established in the form substantially similar to the form of the “Acknowledgement of
Commencement Date” attached to this Lease as
Exhibit D; provided, however, Tenant’s failure
to execute and deliver such acknowledgment shall not affect Landlord’s rights hereunder.




     Notwithstanding the foregoing, no tenant delay shall be deemed to have occurred
under this Section 39 except to the extent (x) Tenant’s and/or any Tenant Parties’ action
and/or inaction actually contributed to such delay beyond the applicable deadline or
milestone and (y) such delay continues for more than one day following Landlord’s written
(or email) notice to Tenant of the matter that caused the delay.




     (D)
Base Rent for Expansion Space. The annual Base Rent for the Expansion Space
shall, during the first year following the Expansion Space Rent Commencement Date, be equal
to the percentage of Expansion Space relative to the rentable square footage of the
Northern Facility multiplied by the product of (i) the Total Northern Facility Expansion
Costs and (ii) the Annual Rate of Return; provided, however, that the monthly Base Rent for
the Expansion Space shall not, during the first year following the Expansion Space Rent
Commencement Date,







	 	 	 	 	 

	 

	 	
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exceed $3.50 per rentable square foot per month for the Expansion Space and the
same shall thereafter increase as provided for in Section 4(b) on each anniversary of the
Expansion Space Rent Commencement Date. For example, if the Total Northern Facility
Expansion Costs equals $450 per rentable square foot, then the initial Base Rent for the
Expansion Space shall be $3.38 per rentable square foot per month.




     (E) Definitions. For purposes of this Section 39(a), the following
terms apply:




     (x)
“Annual Rate of Return” shall mean an annual rate
of return of 9%.




     (y)
“Project Close-Out” is the first date following the final completion of the
Building Shell by Landlord that (i) all contractors, subcontractors, suppliers,
architects and others who supplied labor or materials have been paid in full; (ii)
the architect or general contractor for the Northern Facility have issued any
certificate(s) of completion as may be required by Landlord; and (iii) all punch
list items have been completed; provided, however, that in no event shall such date
be deemed to occur until the Expansion Space Rent Commencement Date.




     (z)
“Total Northern Facility Expansion Costs” shall mean the sum of all
of the costs incurred by Landlord through Project Close-Out in connection with the
acquisition of the Northern Facility Land and the design and construction of the
Northern Facility and related improvements including: (i) the purchase price
allocable for Northern Facility Land (including the proposed parking structure
allocated proportionately between the Northern Facility and the Project) and
Landlord’s carrying costs for the Northern Facility Land (and proposed parking
structure) from the time of Tenant’s delivery of the Expansion Exercise Notice
through Project Close-Out, (ii) all architectural, engineering, construction,
development, project management and leasing fees (consistent with other comparable
projects in South San Francisco undertaken by Landlord and/or its affiliates) and
all reasonable legal fees allocable to the Northern Facility (allocated
proportionately to the extent such fees also relate to other portions of the
Project), (iii) Landlord’s carry costs related to the Building Shell from the
initiation of construction of the Building Shell and until the Expansion Space Rent
Commencement Date, (iv) the $150 per rentable square foot tenant improvement
allowance for the Expansion Space plus Landlord’s carry costs related to the
Expansion Space Tenant Improvements from the initiation of construction of the
Expansion Space Tenant Improvements until the Expansion Space Rent Commencement
Date, (v) infrastructure costs, impact fees, site preparation costs, testing, labor
and materials to construct the Northern Facility and related infrastructure and
improvements, permit fees and any other governmental fees, sales taxes and fees
payable to contractors, project landscaping, water, gas and electrical fees and
related miscellaneous costs, and builder’s risk insurance and other insurance
related costs (with costs described in this clause (v) allocated proportionately to
the extent such costs also relate to other portions of the Project), and (vi)
Landlord’s reasonable financing costs (or reasonable imputed financing costs) with
respect to all of the foregoing.




     Notwithstanding the foregoing, in no event shall Total Northern Facility
Expansion Costs include (A) a project management fee to Landlord for the
construction of the Northern Facility in excess of 1.5% of the Total Northern
Facility Expansion Costs,
(B) costs due to the presence of Hazardous Materials at the Project which
Tenant is not otherwise responsible for under this Lease, (C) costs to correct code
violations at the Project, (D) overtime and premium time costs to complete the
construction of the Northern Facility, (E) costs due to casualties (other than
insurance premiums and deductibles up to $50,000 which may be included as part of
Total Northern Facility Expansion Costs, (F) costs to enforce Landlord’s rights in
the event of a contractor default, (G) construction costs in excess of the approved
Northern Facility Budget (except for change orders requested and approved by Tenant
or required by Legal Requirements






	 	 	 	 	 

	 

	 	
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which may be included as part of Total Northern Facility Expansion
Costs), and (H) costs that in and of themselves would not otherwise have been
incurred by Landlord had Tenant not elected to exercise the Expansion Right.




     (F)
Tenant Default. Notwithstanding anything to the contrary contained herein,
Landlord shall have the right to suspend performance of all or any of Landlord’s
obligations under this Section 39 during any period that Tenant is in Default under this
Lease and such period of suspension shall constitute a delay caused by Tenant; provided
that Landlord has notified Tenant in writing (including email) of Landlord’s intention to
suspend performance due to such Default.



     (b) Additional
Expansions in Northern Facility. Provided that Landlord and Tenant have
entered into a lease agreement or lease amendment for Tenant to lease the Expansion Space, Tenant
shall, subject to the provisions of this Section 39(b) and (c). have the right from time to time,
until the date that is 36 months after the Expansion Right Expiration Date, to elect to expand the
Expansion Space (the “Right of First Offer”) to lease additional space(s) in the Northern Facility
(“Additional Expansion Space”) upon the terms and conditions set forth in the immediately
following paragraph; provided, however, that Landlord and Tenant can reasonably agree on the
location(s) of any Additional Expansion Space but Landlord may require Tenant to lease all of the
space on particular contiguous floor(s) before Tenant is permitted to lease space on any other
floor. If Tenant elects to exercise the Right of First Offer, Tenant shall, on or before the date
that is 36 months after Expansion Right Expiration Date, deliver written notice to Landlord of its
election to lease Additional Expansion Space (“Additional
Expansion Space Exercise Notice”).
Tenant shall specify in each Additional Expansion Space Exercise Notice how many additional
rentable square feet Tenant desires to lease. Within 10 days after Landlord’s receipt of each
Additional Expansion Space Exercise Notice, Landlord shall deliver a notice (“Identification
Expansion Notice”) to Tenant identifying Landlord’s proposed location of the Additional Expansion
Space in the Northern Facility (“Identified Expansion Space”). Tenant shall have 5 business days
after Landlord’s delivery of the Identification Expansion Notice to confirm that Tenant accepts
the Identified Expansion Space as Additional Expansion Space by delivery of written notice to
Landlord (“Tenant Confirmation”). If Tenant fails to deliver a Tenant Confirmation within such 5
business day period and/or no lease amendment or lease agreement for any Additional Expansion
Space, acceptable to Landlord and Tenant, each in their respective reasonable discretion, has been
executed and delivered by the parties within 20 days after Landlord delivers a draft of the same
to Tenant despite the good faith efforts of both parties, Tenant shall be deemed to have rejected
the Identified Expansion Space and Landlord shall be free, subject to the provisions of Section
39(c), to lease the Identified Expansion Space to any third party.



     Tenant acknowledges and agrees that, if Tenant accepts the Identified Expansion Space
as the Additional Expansion Space by delivery of the Tenant Confirmation, Tenant shall lease such
space on all of the same terms that are applicable to Tenant’s leasing of the Expansion Space,
except that: (i) the term of the lease with respect to the Additional Expansion Space shall
commence upon Landlord’s delivery of the Additional Expansion Space to Tenant in at least the
condition required for the Shell Delivery Date to occur with respect to the Expansion Space and
the term shall expire on the same date at as the term with respect to the Expansion Space, (ii)
Tenant shall commence paying Base Rent (at the same per square foot rate that Tenant is then
paying for the Expansion Space as the same is thereafter adjusted as provided for in this Lease)
and Operating Expenses for the Additional Expansion Space immediately following the Tenant
Build-Out Period for the Additional Expansion Space as such period may be extended due to Force
Majeure and Landlord Delay applicable to the construction of the tenant improvements for the
Additional Expansion Space, (iii) the parties shall enter into a work letter to be agreed upon by
Landlord and Tenant as part of the lease agreement or lease amendment for Additional Expansion
Space but which shall be substantially similar to Expansion Space Work Letter and with the same
tenant improvement allowance of $150 per rentable square foot for the Additional Expansion Space
for tenant improvements as provided for in the Expansion Space Work Letter; and (iv) the
definitions on page 1 of the Lease will be amended as necessary to document and reflect the
addition of the Additional Expansion Space and Tenant’s leasing of the Additional Expansion Space
plus an increase in the Security Deposit to reflect one month of Base Rent for the Additional
Expansion Space. Notwithstanding






	 	 	 	 	 

	 

	 	
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anything to the contrary contained herein, if applicable with respect to the Additional
Expansion Space, Tenant shall be solely responsible for paying for any costs in connection with
any changes which Tenant requests to the Building Shell (including, without limitation, with
respect to any plans) whether or not such changes are made, and any delays in the design and/or
construction of the Northern Facility caused by Tenant and/or any Tenant Party shall reduce
Tenant’s Build-Out Period provided for in clause (ii) of this paragraph on a day for day basis.




     Notwithstanding anything to the contrary contained in this Section 39(b), Tenant may not
elect to lease any space in the Northern Facility pursuant to this Section 39(b) if Landlord has
previously delivered to Tenant a Pending Deal Notice pursuant to Section 39(c) with respect to the
space in question.



     (c) Right
of First Refusal. Provided that Landlord and Tenant have entered into a lease
agreement or lease amendment for Tenant to lease the Expansion Space, any time prior to the date
that is 36 months after the Expansion Right Expiration Date that Landlord intends to agree to a
written proposal (the “Pending Deal”) to lease to any third party all or any portion of the
Northern Facility which is not being leased to Tenant, not occupied by a tenant or which, subject
to the provisions of the last paragraph of this Section 39(c), is occupied by an existing tenant
whose lease is expiring within 6 months or less and such tenant does not wish to renew (whether or
not such tenant has a right to renew) its occupancy of such space (“Right of First Refusal
Space”), Landlord shall deliver to Tenant written notice
(the “Pending Deal Notice”) of the
existence and the terms of such Pending Deal. Tenant shall be entitled to exercise its right under
this Section 39(c) only with respect to the entire space described in the Pending Deal Notice (the
“Identified RFR Space”). Within 10 business days after Tenant’s receipt of the Pending Deal
Notice, Tenant shall deliver to Landlord written notice (the
“Space Acceptance Notice”) if Tenant
elects to lease the Identified RFR Space. Tenant’s right to receive the Pending Deal Notice and
election to lease or not lease the Identified RFR Space pursuant to this Section 39(c) is
hereinafter referred to as the “Right of First Refusal.” If Tenant elects to lease the Identified
RFR Space described in the Pending Deal Notice by delivering the Space Acceptance Notice within
the required 10 business day period, Tenant shall be deemed to agree to lease the Identified RFR
Space on the terms and conditions set forth in the Pending Deal Notice and any other terms as may
be required by Landlord and Tenant, in their respective reasonable discretion, taking into
consideration the provisions of this Lease (other than those provisions that could reasonably be
considered economic and/or deal specific provisions) and the potential multi-tenant use of the
Northern Facility. If (i) Tenant fails to deliver a Space Acceptance Notice to Landlord within the
required 10 business day period, or (ii) no lease amendment or lease agreement for the Identified
RFR Space, acceptable to Landlord and Tenant in their respective reasonable discretion, has been
executed and delivered by the parties within 20 days after Landlord delivers a draft of the same
to Tenant despite the good faith efforts of both parties, Tenant shall be deemed to have elected
not to exercise Tenant’s right to lease the Identified RFR Space pursuant to the Pending Deal
Notice in question in which case Tenant shall be deemed to have forever waived its right to lease
the Identified RFR Space pursuant to the Pending Deal Notice in question, this Section 39(c) shall
terminate and be of no further force or effect with respect to the Pending Deal Notice in
question, and Landlord shall have the right to lease the Identified RFR Space to the party that
was the subject of the Pending Deal Notice on substantially the business terms and conditions set
forth in the Pending Deal Notice. Notwithstanding the foregoing, if Landlord negotiates with the
proposed tenant economic lease terms materially more favorable (but in no event shall the economic
lease terms be considered materially more favorable unless the other proposed tenant is offered a
base rental rate, tenant improvement allowance, lease term and/or a free rent period more
favorable than was offered to Tenant), as reasonably determined by Landlord, than those offered to
Tenant but rejected as part of the Pending Deal Notice, Landlord shall be required to submit the
more favorable economic terms to Tenant for its review. Tenant shall have 7 business days after
receipt of the more favorable economic terms to accept or reject the revised terms. If Tenant
rejects the more favorable terms, Landlord shall be free to enter into a lease with the proposed
tenant on such terms. The Right of First Refusal shall be continuous during the period set forth
in the first sentence of this Section 39(c). Tenant’s rejection of any particular Pending Deal
Notice shall not relieve Landlord of its obligation to again offer any Right of First Refusal
Space to Tenant at any time that Landlord intends, subject to the provisions of the first sentence
of this Section 39(c) with






	 	 	 	 	 

	 

	 	
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respect to an existing tenant extending the term of its lease, to again agree to a
written proposal from another party to lease such space in such period.



     Notwithstanding anything to the contrary contained herein, (i) in no event shall Landlord be
required to disclose to Tenant the name of any party with whom Landlord intends to agree to a
Pending Deal, and (ii) during the period that Tenant’s Right of First Refusal is in effect, in no
event may Landlord agree to the extension of the term of a lease with a tenant in the Northern
Facility beyond the term (including any proposed extensions) set forth in the applicable Pending
Deal Notice delivered to Tenant with respect to such tenant’s premises without giving Tenant the
right to lease such space pursuant to the terms of this Section 39(c).



     (d) Exceptions. Notwithstanding the above, the Expansion Right, Right of First Offer
and the Right of First Refusal shall, at Landlord’s option, not be in effect and may not be
exercised by Tenant:




     (i) during any period of time that Tenant is in Default under any provision of
the Lease; or




     (ii) if Tenant has been in Default under any provision of the Lease 3 or more times,
whether or not the Defaults are cured, during the 12 month period prior to the date on
which Tenant seeks to exercise the Expansion Right, Right of First Offer or Right of First
Refusal, as applicable.



     (e) Termination. The Expansion Right, Right of First Offer and Right of First Refusal,
as applicable, shall, at Landlord’s option, terminate and be of no further force or effect even
after Tenant’s due and timely exercise of the Expansion Right, Right of First Offer or Right of
First Refusal, as applicable, if, after such exercise, but prior to the commencement date of the
lease of such Expansion Space, Additional Expansion Space or Identified RFR Space, as applicable,
(i) Tenant fails to timely cure any default by Tenant under the Lease; or (ii) Tenant has
Defaulted 3 or more times during the period
from the date of the exercise of the Expansion Right, Right of First Offer or Right of First
Refusal, as applicable, to the date of the commencement of the lease of the Expansion Space,
Additional Expansion Space or Identified RFR Space, as applicable, whether or not such
Defaults are cured.



     (f) Rights Personal. The Expansion Right, Right of First Offer and Right of First Refusal are
personal to Tenant and are not assignable without Landlord’s consent, which may be granted or
withheld in Landlord’s sole discretion separate and apart from any consent by Landlord to an
assignment of Tenant’s interest in the Lease except that they may be assigned in connection with
any Permitted Assignment of this Lease.



     (g) No Extensions. The period of time within which the Expansion Right, Right of First Offer
or Right of First Refusal may be exercised shall not be extended or enlarged for any reason. The
parties acknowledge that the time period for Tenant’s response to a Pending Deal Notice is only
triggered when Tenant receives such Pending Deal Notice.



     40. Right to Extend Term. Tenant shall have the right to extend the Term of the Lease upon
the following terms and conditions:



     (a) Extension Rights. Tenant shall have 2 consecutive rights (each, an “Extension
Right”) to extend the term of this Lease for 5 years each (each, an “Extension Term”) on the same
terms and conditions as this Lease (other than with respect to Base Rent and the Work Letter) by
giving Landlord written notice of its election to exercise each Extension Right at least 9 months
prior, and no earlier than
12 months prior, to the expiration of the Base Term of the Lease or the expiration of
any prior Extension Term.



     Upon the commencement of any Extension Term, Base Rent shall be payable at the Market Rate
(as defined below). Base Rent shall thereafter be adjusted on each annual anniversary of the






	 	 	 	 	 

	 

	 	
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commencement of such Extension Term by a percentage as agreed to by Landlord and Tenant
at the time the Market Rate is determined. As used herein,
“Market Rate” shall mean the then
market rental rate as agreed to by Landlord and agreed to by Tenant. In addition, Landlord may
impose a market rent for the parking rights provided hereunder; provided, however, that Landlord
shall not charge rent for parking rights during any Extension Term unless Landlord is required to
do so by any Governmental Authority or as part of a traffic mitigation or similar such plan.




     If, on or before the date which is 180 days prior to the expiration of the Base Term of
this Lease, or the expiration of any prior Extension Term, as applicable, Landlord and Tenant have
not agreed upon the Market Rate and the rent escalations during the applicable Extension Term
after negotiating in good faith, Tenant shall be deemed to have elected arbitration as described
in Section 40(b). If Tenant has elected to exercise the Extension Right by delivering notice to
Landlord as required in this Section 40(a), Tenant shall have no right thereafter to rescind or
elect not to extend the term of the Lease for the Extension Term and Landlord shall be obligated
to extend the Term of this Lease for the Extension Term.



     (b) Arbitration.




     (i)
Within 10 days of Tenant’s notice to Landlord of its election (or deemed
election) to arbitrate Market Rate and escalations, each party shall deliver to the other a
proposal containing the Market Rate and escalations that the submitting party believes to
be correct (“Extension Proposal”). If either party fails to timely submit an Extension
Proposal, the other party’s submitted proposal shall determine the Base Rent and
escalations for the Extension Term. If both parties submit Extension Proposals, then
Landlord and Tenant shall meet within 7 days after delivery of the last Extension Proposal
and make a good faith attempt to mutually appoint a single Arbitrator (and defined below)
to determine the Market Rate and escalations. If Landlord and Tenant are unable to agree
upon a single Arbitrator, then each shall, by written notice delivered to the other within
10 days after the meeting, select an Arbitrator. If either party fails to timely give
notice of its selection for an Arbitrator, the other party’s submitted proposal shall
determine the Base Rent and any escalations for the Extension Term. The 2 Arbitrators so
appointed shall, within 5 business days after their appointment, appoint a third
Arbitrator. If the 2 Arbitrators so selected cannot agree on the selection of the third
Arbitrator within the time above specified, then either party, on behalf of both parties,
may request such appointment of such third Arbitrator by application to any state court of
general jurisdiction in the jurisdiction in which the Premises are located, upon 10 days
prior written notice to the other party of such intent.




     (ii) The decision of the Arbitrator(s) shall be made within 30 days after the
appointment of a single Arbitrator or the third Arbitrator, as applicable. The decision of
the single Arbitrator shall be final and binding upon the parties. The average of the two
closest Arbitrators in a three Arbitrator panel shall be final and binding upon the
parties. Each party shall pay the fees and expenses of the Arbitrator appointed by or on
behalf of such party and the fees and expenses of the third Arbitrator shall be borne
equally by both parties. If the Market Rate and escalations are not determined by the first
day of the Extension Term, then Tenant shall pay Landlord Base Rent in an amount equal to
the Base Rent in effect immediately prior to the Extension Term and increased by the Rent
Adjustment Percentage until such determination is made. After the determination of the
Market Rate and escalations, the parties shall make any necessary adjustments to such
payments made by Tenant. Landlord and Tenant shall then execute an amendment recognizing
the Market Rate and escalations for the Extension Term.




     (iii)
An “Arbitrator” shall be any person appointed by or on behalf of either party or
appointed pursuant to the provisions hereof and: (i) shall be (A) a member of the American
Institute of Real Estate Appraisers with not less than 10 years of experience in the
appraisal of improved office and high tech industrial real estate in the greater South San
Francisco area, or
(B) a licensed commercial real estate broker with not less than 15 years experience
representing landlords and/or tenants in the leasing of high tech or life sciences space in
the greater South
San Francisco area, (ii) devoting substantially all of their time to professional
appraisal or





	 	 	 	 	 

	 

	 	
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brokerage work, as applicable, at the time of appointment and (iii) be in all
respects impartial and disinterested.



     (c) Rights
Personal. Extension Rights are personal to Tenant and are not assignable without
Landlord’s consent, which may be granted or withheld in Landlord’s sole discretion separate and
apart from any consent by Landlord to an assignment of Tenant’s interest in the Lease, except that
they may be assigned in connection with any Permitted Assignment of this Lease.



     (d) Exceptions. Notwithstanding anything set forth above to the contrary, Extension Rights
shall not be in effect and Tenant may not exercise any of the Extension Rights:




     (i) during any period of time that Tenant is in Default under any
provision of this Lease; or




     (ii) if Tenant has been in Default under any provision of this Lease 3 or more
times, whether or not the Defaults are cured, during the 12 month period immediately prior
to the date that Tenant intends to exercise an Extension Right, whether or not the Defaults
are cured.



     (e) No
Extensions. The period of time within which any Extension Rights may be exercised
shall not be extended or enlarged for any reason.



     (f) Termination. The Extension Rights shall terminate and be of no further force or effect
even after Tenant’s due and timely exercise of an Extension Right, if, after such exercise, but
prior to the commencement date of an Extension Term, (i) Tenant fails to timely cure any default
by Tenant under this Lease; or (ii) Tenant has Defaulted 3 or more times during the period from
the date of the exercise of an Extension Right to the date of the commencement of the Extension
Term, whether or not such Defaults are cured.



     41. Additional
Premises. As of the date of this Lease, the balance of the Building,
consisting of the third and fourth floors and the server room on the first floor of the Building
containing a total of approximately 71,746 rentable square feet (the
“Additional Space”), is
subject to that certain Lease Agreement between Landlord and Exelixis, Inc., a Delaware
corporation (“Exelixis”),dated as of September 14, 2007 (as the same may have been or may in the
future be amended, the “Exelixis Lease”). Tenant shall have the right to occupy the Additional
Space (other than the server room) as of the Commencement Date pursuant to a sublease agreement
between Exelixis and Tenant (the “Exelixis Sublease”), which Exelixis Sublease shall be subject to
Landlord’s written consent. Landlord and Tenant hereby agree that, so long as this Lease remains
in full force and effect at the expiration of the Exelixis Lease, which is scheduled to occur on
November 30, 2015, then, commencing on December 1, 2015
(“AP Commencement Date”), the Premises
shall be automatically expanded to include the Additional Space and the Additional Space shall be
subject to all of the terms and conditions of this Lease; provided, however, that as of the AP
Commencement Date, (a) the Rentable Area of Premises shall be increased to 129,501 rentable square
feet, (b) Tenant shall be required to pay Base Rent for the Additional Space at the same per
square foot rate of Base Rent then being paid by Tenant with respect to the original Premises, (c)
Tenant’s Share of Operating Expenses of Building shall be increased to 100%, (d) Tenant’s Share of
Operating Expenses of the Project shall be proportionately adjusted, subject to further adjustment
pursuant to the last paragraph of Section 5, and (e) Tenant shall accept the Additional Space in
its then as is condition and Landlord shall not be obligated to make any tenant improvements to
the Additional Space or provide Tenant with any tenant improvement allowance. Notwithstanding
anything to the contrary in this Lease, this Lease is expressly conditioned upon the occurrence of
the following concurrent with the mutual execution and delivery of this Lease by Landlord and
Tenant: (i) the execution and delivery by and between Exelixis and Tenant of the Exelixis Sublease
on terms and conditions acceptable to Tenant, and (ii) Landlord’s written consent to the Exelixis
Sublease, which consent shall contain Landlord’s agreement that (a) Tenant’s continued occupancy
of the Additional Space following November 30, 2015, shall be pursuant to this Lease and shall not
constitute a holdover under the Exelixis





	 	 	 	 	 

	 

	 	
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Lease and (b) Exelixis shall have no obligation to remove or restore any existing
alterations in the Additional Space or to remove or restore any Tenant Improvements.




     Notwithstanding the foregoing, Landlord agrees that if the Exelixis Lease terminates
prior to November 30, 2015, then, notwithstanding anything to the contrary contained in this
Lease, the AP Commencement Date shall be amended to be the day immediately after the date of such
early termination of the Exelixis Lease (“Early AP
Commencement Date”); provided, however, that
(i) Tenant shall, commencing on the later of the Early AP Commencement Date and the Start Date (as
defined in the Sublease) through November 30, 2015, be required to (a) pay Base Rent in the amount
provided for in the Sublease which shall in no event be less than the amount of $111,699.25 per
month as increased by 3% on each anniversary of the Start Date, plus base rent for 3,008 rentable
square foot server room on the first floor of the Building at the same base rent that is then
being paid on a per square foot basis under the Sublease for the balance of the Additional Space
(as the same is adjusted by the annual 3% increases), and (b) Tenant’s Share of Operating Expenses
of the Building and the Project (as the same may be adjusted as provided for in this Lease) with
respect to the Additional Space (i.e. 55.4% for the balance of the Building) and (ii) if the
Exelixis Lease has terminated due to a casualty or condemnation, such casualty or condemnation
shall be deemed to have occurred during the Base Term of this Lease and the rights and obligations
of Landlord and Tenant with respect to this Lease shall be governed by Section 18 or Section 19 of
this Lease, as applicable.



     42. Miscellaneous.



     (a) Notices. All notices or other communications between the parties shall be in writing and
shall be deemed duly given upon delivery or refusal to accept delivery by the addressee thereof if
delivered in person, or upon actual receipt if delivered by reputable overnight guaranty courier,
addressed and sent to the parties at their addresses set forth above. Landlord and Tenant may from
time to time by written notice to the other designate another address for receipt of future
notices.



     (b) Joint
and Several Liability. If and when included within the term
“Tenant,” as used in
this instrument, there is more than one person or entity, each shall be jointly and severally
liable for the obligations of Tenant.



     (c) Financial
Information. Upon Landlord’s request, Tenant shall furnish Landlord with true
and complete copies of (i) Tenant’s most recent audited annual financial statements within 90 days
of the end of each of Tenant’s fiscal years during the Term, (ii) Tenant’s most recent unaudited
quarterly financial statements within 45 days of the end of each of Tenant’s first three fiscal
quarters of each of Tenant’s fiscal years during the Term, (iii) at Landlord’s request from time
to time, updated business plans, including cash flow projections and/or pro forma balance sheets
and income statements, all of which shall be treated by Landlord as confidential information
belonging to Tenant, (iv) corporate brochures and/or profiles prepared by Tenant for prospective
investors, and (v) any other financial information or summaries that Tenant typically provides to
its lenders or shareholders. So long as Tenant is a “public company” and its financial information
is publicly available, then the foregoing delivery requirements of this Section 42(c) shall not
apply.



     (d) Recordation. Neither this Lease nor a memorandum of lease shall be filed by or on behalf
of Tenant in any public record. Landlord may prepare and file, and upon request by Landlord Tenant
will execute, a memorandum of lease.



     (e) Interpretation. The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments hereto. Words of any gender used in
this Lease shall be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way define, limit or otherwise describe
the scope or intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.





	 	 	 	 	 

	 

	 	
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     (f) Not
Binding Until Executed. The submission by Landlord to Tenant of this Lease shall have
no binding force or effect, shall not constitute an option for the leasing of the Premises, nor
confer any right or impose any obligations upon either party until execution of this Lease by both
parties.



     (g) Limitations
on Interest. It is expressly the intent of Landlord and Tenant at all
times to comply with applicable law governing the maximum rate or amount of any interest payable
on or in connection with this Lease. If applicable law is ever judicially interpreted so as to
render usurious any interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord’s and Tenant’s express
intent that all excess amounts theretofore collected by Landlord be credited on the applicable
obligation (or, if the obligation has been or would thereby be paid in full, refunded to Tenant),
and the provisions of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any new document, so as
to comply with the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.



     (h) Choice
of Law. Construction and interpretation of this Lease shall be governed by
the internal laws of the state in which the Premises are located, excluding any principles of
conflicts of laws.



     (i) Time. Time is of the essence as to the performance of Tenant’s obligations under
this Lease.



     (j) OFAC. Tenant, and to Tenant’s knowledge, all beneficial owners of Tenant, are
currently (a) in compliance with and shall at all times during the Term of this Lease remain in
compliance with the regulations of the Office of Foreign Assets
Control (“OFAC”) of the U.S.
Department of Treasury and any statute, executive order, or regulation relating thereto
(collectively, the “OFAC Rules”), (b) not listed on, and shall not during the term of this Lease
be listed on, the Specially Designated Nationals and Blocked Persons List maintained by OFAC
and/or on any other similar list maintained by OFAC or other governmental authority pursuant to
any authorizing statute, executive order, or regulation, and (c) not a person or entity with whom
a U.S. person is prohibited from conducting business under the OFAC Rules.



     (k) Incorporation
by Reference. All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. If there is any conflict between such
exhibits or addenda and the terms of this Lease, such exhibits or addenda shall control.



     (l) Entire
Agreement. This Lease, including the exhibits attached hereto, constitutes the
entire agreement between Landlord and Tenant pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings, letters of intent,
negotiations and discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements, express or implied, made to either party by the
other party in connection with the subject matter hereof except as specifically set forth herein.



     (m) No
Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installment of Base Rent or any Additional Rent will be other than on
account of the earliest stipulated Base Rent and Additional Rent, nor will any endorsement or
statement on any check or letter accompanying a check for payment of any Base Rent or Additional
Rent be an accord and satisfaction. Landlord may accept such check or payment without prejudice to
Landlord’s right to recover the balance of such Rent or to pursue any other remedy provided in
this Lease.



     (n) Hazardous
Activities. Notwithstanding any other provision of this Lease, Landlord, for
itself and its employees, agents and contractors, reserves the right to refuse to perform any
repairs or services in any portion of the Premises which, pursuant to Tenant’s routine safety
guidelines, practices or custom or prudent industry practices, require any form of protective clothing or equipment
other than safety glasses. In any such case, Tenant shall contract with parties who are
acceptable to Landlord, in Landlord’s reasonable discretion, for all such repairs and
services, and Landlord shall, to the extent






	 	 	 	 	 

	 

	 	
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required, equitably adjust Tenant’s Share of Operating Expenses in respect of such repairs or
services to reflect that Landlord is not providing such repairs or services to Tenant.




     (o) Construction
of Remainder of Project. Tenant acknowledges that Landlord intends to
construct other buildings at the Project in the future and that the same may adversely impact
Tenant’s access to and use of the Project. In constructing additional improvements on the Project,
Landlord shall endeavor to minimize disturbance to Tenant’s use of the Premises and/or Tenant’s
parking rights.



     (p) Roof
Equipment. Subject to the provisions of this Lease, during the Term, Tenant may, at
its sole cost, install, maintain, and from time to time replace mechanical, security and/or
process equipment on the roof of the Building (collectively, “Roof Equipment”), at no additional
rental expense to Tenant (other than reimbursing Landlord for any costs reasonably incurred by
Landlord in connection with the exercise by Tenant of any rights granted to Tenant under this
Section 42(p)); provided, however, that
(i) Tenant shall obtain Landlord’s prior written approval of the proposed size, weight and
location of the Roof Equipment and method for fastening the same to the roof, (ii) Tenant shall,
at its sole cost, comply with reasonable requirements imposed by Landlord and all Legal
Requirements and the conditions of any bond or warranty maintained by Landlord on the roof, (iii)
Tenant shall be responsible for paying for any structural upgrades that may be reasonably required
by Landlord in connection with the Roof Equipment, and (iv) Tenant shall remove, at its expense,
at the expiration or earlier termination of this Lease, any Roof Equipment which Landlord requires
to be removed at the time Landlord consents to the installation of such equipment, other than Roof
Equipment installed as part of the Tenant Improvements, which may be surrendered by Tenant.
Landlord shall have the right to supervise any roof penetration. Tenant shall repair any damage to
the Building caused by Tenant’s installation, maintenance, replacement, use or removal of the Roof
Equipment. Tenant shall install, use, maintain and repair the Roof Equipment, and use the access
areas, so as not to damage or interfere with the operation of the Building or with the occupancy
or activities of any other tenant of the Building. Landlord shall give Tenant written notice and
30 days to cure such interference before requiring Tenant to remove any Roof Equipment. Tenant
shall protect, defend, indemnify and hold harmless Landlord from and against claims, damages,
liabilities, costs and expenses of every kind and nature, including attorneys’ fees, incurred by
or asserted against Landlord arising out of Tenant’s installation, maintenance, replacement, use
or removal of the Roof Equipment except to the extent caused by the willful misconduct or
negligence of Landlord or the default by Landlord in the performance of its obligations under this
Lease. Tenant’s right to use the roof as contemplated in this
Section 41(p) shall be non-exclusive
with any other tenant(s) in the Building until and during such time as Tenant leases the entire
Building.



     (q) Hazardous
Materials Storage Area. In connection with its use of the Premises, Tenant
shall have the right, during the Term, to the use of certain space designated by Landlord on
Exhibit J for the storage of chemicals, Hazardous Materials waste and other Hazardous Materials
(“HazMat Safety Storage Area”). Tenant shall maintain appropriate records, obtain and maintain
appropriate insurance, implement reporting procedures, and take or cause to be taken all other
actions necessary or required under applicable state and federal Legal Requirements in connection
with the use of the HazMat Safety Storage Area. Tenant shall surrender the HazMat Safety Storage
Area in accordance with the requirements of Section 28 hereof.



     (r) New Generator. In connection with its the use of the Premises, Tenant may install
an emergency generator (a “New Generator”) as part of the Tenant Improvements, in a location shown
on Exhibit J, and if such New Generator is installed as part of the Tenant Improvements and paid
for out of the Tl Allowance, the New Generator shall be the property of Landlord and may not be
removed by Tenant. Tenant shall reimburse Landlord for any costs reasonably incurred by Landlord
in connection with the exercise by Tenant of any rights granted to Tenant under this Section
42(r). Tenant shall, at its sole cost, comply with reasonable requirements imposed by Landlord and
all Legal Requirements. Landlord shall have the right to supervise the installation of the New
Generator. Tenant shall protect, defend, indemnify and hold harmless Landlord from and against
claims, damages, liabilities, costs and expenses of every kind and nature, including attorneys’
fees, incurred by or asserted against Landlord arising out of Tenant’s installation, maintenance
and/or use of the New Generator except to the extent





	 	 	 	 	 

	 

	 	
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	 	249 E. Grand/Onyx — Page 42





caused by the willful misconduct or negligence of Landlord or the default by Landlord in the
performance of its obligations under this Lease.




     (s) Existing Exelixis Generator. Tenant acknowledges that the existing emergency generator
being used by Exelixis and located in the area shown Exhibit J (“Existing Generator”) is the
property of Landlord and the same may not be removed by Tenant. Tenant shall have the right to
maintain and use the Existing Generator following the expiration or earlier termination of the
Exelixis Lease; provided, however, that Tenant shall protect, defend, indemnify and hold harmless
Landlord from and against claims, damages, liabilities, costs and expenses of every kind and
nature, including attorneys’ fees, incurred by or asserted against Landlord arising out of Tenant’s
maintenance and/or use of the Existing Generator except to the extent caused by the willful
misconduct or negligence of Landlord or the default by Landlord in the performance of its
obligations under this Lease.



     (t) Patio Area. In connection with its use of the Premises, Tenant shall have the exclusive
right to use the outdoor patio area to be shown in an area to be mutually approved by the parties
on the Tl Construction Drawings (“Patio Area”); provided, however, that in all respects such Patio
Area complies with all present and/or future approvals granted by the City of South San Francisco
and all other Legal Requirements and rules and regulations applicable to the Project. Subject to
the provisions of this Section 42(t), Tenant may place furniture outside of the Premises in the
Patio Area. Tenant shall have all of the same obligations with respect to the Patio Area that
Tenant has under this Lease with respect to the Premises, except that Tenant shall not be required
to pay additional Base Rent with respect to any Patio Area. Tenant shall, at Tenant’s sole cost and
expense, shall maintain any such Patio Area free of trash and debris. Tenant’s right to the Patio
Area is neither transferable nor assignable except together with this Lease.



[Signatures on next page]









	 	 	 	 	 

	 

	 	
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	 	249 E. Grand/Onyx — Page 43






     IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year
first above written.



	 	 	 	 	 
	 	TENANT:

ONYX PHARMACEUTICALS, INC.,



a Delaware corporation

 	 
	 	By:  	/s/
N. Anthony Coles 	 
	 	 	Its: CEO 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	/s/ Matthew K. Fust 	 
	 	 	Its: CFO 	 
	 	 	 	 
	 
	 	LANDLORD:



ARE-SAN FRANCISCO NO. 12, LLC,

a Delaware limited liability

company

 	 
	 	By:  	ALEXANDRIA REAL ESTATE EQUITIES, L.P.
 	 
	 	 	a Delaware limited partnership, 	 
	 	 	its managing member 	 
	 
	 	 	 
	 	By:  	ARE-QRS CORP.,
 	 
	 	 	a Maryland
corporation,

its
general partner 	 
	 
	 	 	 
	 	By:  	/s/ Eric S. Johnson
 	 
	 	 	Its: Eric S. Johnson

       Vice President

       Real Estate Legal Affairs 	 





	 	 	 	 	 

	 

	 	
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	 	249 E. Grand/Onyx — Page 1









EXHIBIT A TO LEASE




DESCRIPTION OF PREMISES










	 	 	 	 	 

	 

	 	
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	 	249 E. Grand/Onyx — Page 2














	 	 	 	 	 

	 

	 	
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	 	249 E. Grand/Onyx — Page 1






EXHIBIT B TO LEASE




DESCRIPTION OF PROJECT









	 	 	 	 	 

	 

	 	
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	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 1






EXHIBIT C TO LEASE




WORK LETTER



     THIS WORK LETTER (this “Work Letter”) is incorporated into that certain Lease Agreement (the
“Lease”) dated as of July 9, 2010 by and between ARE-SAN FRANCISCO NO. 12, LLC, a Delaware
limited liability company (“Landlord”), and ONYX PHARMACEUTICALS, INC., a Delaware corporation
(“Tenant”). Any initially capitalized terms used but not defined herein shall have the meanings
given them in the Lease.



     1.
 
General Requirements.



     (a) Tenant’s Authorized Representative. Tenant designates David Benjamin and Matthew K. Fust
(either such individual acting alone, “Tenant’s Representative”) as the only persons authorized to
act for Tenant pursuant to this Work Letter. Landlord shall not be obligated to respond to or act
upon any request, approval, inquiry or other communication (“Communication”) from or on behalf of
Tenant in connection with this Work Letter unless such Communication is in writing from Tenant’s
Representative. Tenant may change either Tenant’s Representative at any time upon not less than 5
business days advance written notice to Landlord.



     (b) Landlord’s Authorized Representative. Landlord designates Stephen Richardson and Greg
Gehlen (either such individual acting alone, “Landlord’s Representative”) as the only persons
authorized to act for Landlord pursuant to this Work Letter. Tenant shall not be obligated to
respond to or act upon any request, approval, inquiry or other Communication from or on behalf of
Landlord in connection with this Work Letter unless such Communication is in writing from
Landlord’s Representative. Landlord may change either Landlord’s Representative at any time upon
not less than 5 business days advance written notice to Tenant.



     (c) Architects, Consultants and Contractors. Landlord and Tenant hereby acknowledge and
agree that the architect (the “TI Architect”) for the Tenant Improvements (as defined in Section
2(a) below), the general contractor and any subcontractors for the Tenant Improvements shall be
selected by Tenant, subject to Landlord’s approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Landlord shall be named a third party beneficiary of any
contract entered into by Tenant with the TI Architect, any consultant, any contractor or any
subcontractor, and of any warranty made by any contractor or any subcontractor. Landlord hereby
approves of DGA Architects as Tenant’s architect and any of BNBuilders, Landmark Construction or
XL Construction as Tenant’s contractor.



     2. Tenant Improvements.



     (a) Tenant Improvements Defined. As used herein, “Tenant Improvements” shall mean all
improvements to the Building (including the roof and outdoor areas serving the Building) desired
by Tenant of a fixed and permanent nature. Other than funding the TI Allowance (as defined below)
as provided herein and as otherwise expressly set forth in this Lease, Landlord shall not have any
obligation whatsoever with respect to the finishing of the Premises for Tenant’s use and
occupancy.



     (b) Tenant’s Space Plans. Tenant shall deliver to Landlord schematic drawings and
outline specifications (the “TI Design Drawings”) detailing Tenant’s requirements for the Tenant
Improvements within 30 days of the date hereof. Not more than 7 days thereafter, Landlord shall
deliver to Tenant the written objections, questions or comments of Landlord and the TI Architect
with regard to the TI Design Drawings. Tenant shall cause the TI Design Drawings to be revised to
address such written comments and shall resubmit said drawings to Landlord for approval within 30
days thereafter. Such process shall continue until Landlord has
approved the TI Design Drawings.
Subject to the provisions of this Section 2, Landlord approves of the Tenant Improvements as
described in Schedule 1 of this Work Letter and shall not unreasonably withhold its consent to the
TI Design Drawings or TI Construction Drawings to the





	 	 	 	 	 

	 

	 	
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	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 2





extent consistent therewith. Landlord shall respond to any request for approval in this Work
Letter within the time period set forth herein, or if no time period is specified, within 5
business days. If Landlord fails to respond within the required time period, Tenant may submit a
second written request to Landlord for approval which notice shall specifically describe the
approval being sought and state that Landlord’s failure to respond within 5 business days shall be
deemed to constitute Landlord’s approval of the matter in question and that from the date
Landlord’s approval was due until the earlier of Landlord’s response or the expiration of such 5
business day period shall constitute a Landlord Delay (as defined below); provided, however, that
in no event shall the Landlord Delay actually commence unless and until Landlord’s receives
written notice from Tenant notifying Landlord of the existence of
such Landlord Delay.




     (c) Working
Drawings. Not later than 15 business days following the approval of the TI Design
Drawings by Landlord, Tenant shall cause the TI Architect to prepare and deliver to Landlord for
review and comment construction plans, specifications and drawings for the Tenant Improvements
(“TI Construction Drawings”), which TI Construction Drawings shall be prepared substantially in
accordance with the TI Design Drawings. Tenant shall be solely responsible for ensuring that the
TI Construction Drawings reflect Tenant’s requirements for the Tenant Improvements. Landlord shall
deliver its written comments on the TI Construction Drawings to Tenant not later than 10 business
days after Landlord’s receipt of the same; provided, however, that Landlord may not disapprove any
matter that is consistent with the TI Design Drawings. Tenant and the TI Architect shall consider
all such comments in good faith and shall, within 10 business days after receipt, notify Landlord
how Tenant proposes to respond to such comments. Any disputes in connection with such comments
shall be resolved in accordance with Section 2(d) hereof. Provided that the design reflected in
the TI Construction Drawings is consistent with the TI Design Drawings or otherwise reasonably
approved by Landlord, Landlord shall approve the TI Construction Drawings submitted by Tenant.
Once approved by Landlord, subject to the provisions of Section 4 below, Tenant shall not
materially modify the TI Construction Drawings except as may be reasonably required in connection
with the issuance of the TI Permit (as defined in Section 3(a) below).



     (d) Approval
and Completion. If any dispute regarding the design of the Tenant Improvements
is not settled within 10 business days after notice of such dispute is delivered by one party to
the other, Tenant may make the final decision regarding the design of the Tenant Improvements,
provided (i) Tenant acts reasonably and such final decision is either consistent with or a
compromise between Landlord’s and Tenant’s positions with respect to such dispute, (ii) that all
costs and expenses resulting from any such decision by Tenant shall be payable out of the TI
Allowance (as defined in Section 5(d) below) or otherwise by Tenant, and (iii) Tenant’s decision
will not affect the base Building, structural components of the Building or any Building systems
(in which case Landlord shall make the final decision). Any changes to the TI Construction
Drawings following Landlord’s and Tenant’s approval of same requested by Tenant shall be processed
as provided in Section 4 hereof.



     (e) 
No Obligation to Build Tenant Improvements. Notwithstanding anything to the contrary
in this Work Letter, Tenant’s failure to design or construct the Tenant Improvements or meet any
of the time periods set forth in this Work Letter for construction of the Tenant Improvements
shall not be a default under this Lease. Other than with respect to Landlord Delay as provided for
in this Work Letter, nothing contained in this Work Letter shall delay the Rent Commencement Date.




     
3. Performance of the Tenant Improvements.



     (a) Commencement and Permitting of the Tenant Improvements. Tenant shall commence
construction of the Tenant Improvements upon obtaining and delivering to Landlord a building
permit (the “TI Permit”) authorizing the construction of the Tenant Improvements consistent with
the TI Construction Drawings approved by Landlord. The cost of obtaining the TI Permit shall be
payable from the TI Allowance. Landlord shall assist Tenant in obtaining the TI Permit. Prior to
the commencement of the Tenant Improvements, Tenant shall deliver to Landlord a copy of any
contract with Tenant’s contractors (including the TI Architect), and certificates of insurance
from any contractor performing any
part of the Tenant Improvement evidencing industry standard commercial general liability,
automotive





	 	 	 	 	 

	 

	 	
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	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 3





liability, “builder’s risk”, and workers’ compensation insurance. Tenant shall cause the
general contractor to provide a certificate of insurance naming Landlord, Alexandria Real Estate
Equities, Inc., and Landlord’s lender (if any) as additional insureds for the general contractor’s
liability coverages required above.




     (b) Selection of Materials, Etc. Where more than one type of material or structure is
indicated on the TI Construction Drawings approved by Tenant and Landlord, the option will be
within Tenant’s reasonable discretion if the matter concerns the Tenant Improvements, and within
Landlord’s reasonable discretion if the matter concerns the structural components of the Building
or any Building system.



     (c) Tenant Liability. Tenant shall be responsible for correcting any deficiencies or defects
in the Tenant Improvements.



     (d) Substantial Completion. Tenant shall substantially complete or cause to be
substantially completed the Tenant Improvements in a good and workmanlike manner, in accordance
with the TI Permit subject, in each case, to Minor Variations and normal “punch list” items of a
non-material nature which do not interfere with the use of the Premises (“Substantial Completion”
or “Substantially Complete”). Upon Substantial Completion of the Tenant Improvements, Tenant shall
require the TI Architect and the general contractor to execute and deliver, for the benefit of
Tenant and Landlord, a Certificate of Substantial Completion in the form of the American Institute
of Architects (“AIA”) document G704. For purposes of
this Work Letter, “Minor Variations” shall
mean any modifications reasonably required: (i) to comply with all applicable Legal Requirements
and/or to obtain or to comply with any required permit (including the TI Permit); (ii) to comport
with good design, engineering, and construction practices which are not material; or (iii) to make
reasonable adjustments for field deviations or conditions encountered during the construction of
the Tenant Improvements.



     (e) Landlord Delay. As provided for in Section 2 of the Lease, the Outside Date shall be
extended one day for each day that Substantial Completion of the Tenant Improvements is delayed
due to Landlord Delay. As used herein, “Landlord Delay” shall mean any delay or failure to act by
Landlord after the date hereof (other than a matter which qualifies as a Force Majeure or a delay
by Tenant) within the time period required for such action pursuant to this Work Letter (or if no
period is provided for then within a reasonable period of time after written request to Landlord
from Tenant) which delay or failure actually causes or results in a delay in Substantial
Completion of the Tenant Improvements. The general contractor for the Tenant Improvements shall
make the determination regarding the date on which Substantial Completion of the Tenant
Improvements would have occurred but for such Landlord Delay; provided, however, that Landlord may
challenge such determination by naming an architect or general contractor reasonably acceptable to
Tenant to make a final determination as to the Landlord Delay, if any. In no event shall a
Landlord Delay commence unless and until Landlord receives written notice from Tenant notifying
Landlord of the existence of such Landlord Delay.



     4. Changes. Any changes requested by Tenant to the Tenant Improvements after the
delivery and approval by Landlord of the TI Design Drawings, shall be requested and instituted in
accordance with the provisions of this Section 4 and shall be subject to the written approval of
Landlord, which approval shall not be unreasonably withheld, conditioned or delayed.



     (a) Tenant’s Right to Request Changes. If Tenant shall request changes (“Changes”),
Tenant shall request such Changes by notifying Landlord in writing in substantially the same form
as the AIA standard change order form (a “Change Request”), which Change Request shall detail the
nature and extent of any such Change. Such Change Request must be signed by Tenant’s
Representative. Landlord shall review and approve or disapprove such Change Request within 5
business days thereafter, provided that Landlord’s approval shall not be unreasonably withheld,
conditioned or delayed.





	 	 	 	 	 

	 

	 	
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	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 4






     (b) Implementation of Changes. If Landlord approves such Change, Tenant may cause the
approved Change to be instituted. If any TI Permit modification or change is required as a result
of such Change, Tenant shall promptly provide Landlord with a copy of such TI Permit modification
or change.



     5. Costs.



     (a) Budget For Tenant Improvements. Before the commencement of construction of the Tenant
Improvements, Tenant shall obtain a detailed breakdown, by trade, of the costs incurred or that
will be incurred, in connection with the design and construction of the Tenant Improvements (the
“Budget”), and deliver a copy of the Budget to Landlord for Landlord’s approval, which shall not
be unreasonably withheld or delayed and shall be given within five (5) business days of delivery
thereof by Tenant. The Budget shall be based upon the TI Construction Drawings approved by
Landlord.



     (b) TI Allowance. Landlord shall provide to Tenant a tenant improvement allowance
(collectively, the “TI Allowance”) as follows:



     1. a “Tenant Improvement Allowance” in the amount of $193.46 per rentable square foot in the
Premises, which is included in the Base Rent set forth in the Lease; and



     2. an “Additional Tenant Improvement Allowance” in the maximum amount of $20.00 per rentable
square foot in the Premises, which shall, to the extent used, result in adjustments to the Base
Rent as set forth in the Lease.



     For the avoidance of any doubt, although the TI Allowance may be used for Tenant Improvements
throughout the Building (including the roof and outdoor areas serving the Building), the TI
Allowance is only calculated upon the square footage of the original Premises consisting of 57,755
rentable square feet and not any other portion of the Project. If Tenant does not elect to use any
of the Additional Tenant Improvement Allowance, then references to TI Allowance herein, shall mean
the Tenant Improvement Allowance.



     Before commencing the Tenant Improvements, Tenant shall notify Landlord how much Additional
Tenant Improvement Allowance Tenant has elected to receive from Landlord. Tenant may adjust such
amount from time to time during the course of construction of the Tenant Improvements. The TI
Allowance shall be disbursed in accordance with this Work Letter.



     Tenant shall have no right to the use or benefit (including any reduction to Base Rent)
of any portion of the TI Allowance not required for the construction of (i) the Tenant
Improvements described in the TI Construction Drawings approved pursuant to Section 2(d) or (ii)
any Changes pursuant to Section 4. Tenant shall have no right to any portion of the TI Allowance
that is not disbursed before December 31, 2011. Notwithstanding the foregoing, any portions of the
Tenant Improvement Allowance not used by Tenant in constructing the Tenant Improvements may be
used for Alterations of a fixed and permanent nature to the Building after the Rent Commencement
Date but prior to December 31, 2011.



     (c) Costs Includable in TI Allowance. The TI Allowance shall be used solely for the payment
of design, permits and construction costs in connection with the construction of the Tenant
Improvements, including, without limitation, the cost of electrical power and other utilities used
in connection with the construction of the Tenant Improvements, the cost of preparing the TI
Design Drawings and the TI Construction Drawings and the cost of Tenant’s project manager, all
costs set forth in the Budget and the cost of Changes (collectively, “TI Costs”). Notwithstanding
anything to the contrary contained herein, the TI Allowance (whether used for the Tenant
Improvements and/or Alterations) shall not be used to purchase any furniture, personal property or
other non-Building system materials or equipment, including, but not limited to, Tenant’s voice or
data cabling, non-ducted biological safety






	 	 	 	 	 

	 

	 	
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	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 5





cabinets and other scientific equipment not incorporated into the Tenant Improvements
but may be used for Tenant’s clean dry air and deionized water systems and Roof Equipment.




     (d) Excess TI Costs. Landlord shall have no obligation to bear any portion of the cost
of any of the Tenant Improvements except to the extent of the TI Allowance. Notwithstanding
anything to the contrary set forth in this Section 5(d), Tenant shall be fully and solely liable
for TI Costs and the cost of Minor Variations in excess of the TI Allowance. Notwithstanding the
foregoing or anything to the contrary in this Lease, Landlord shall be responsible, at its sole
cost and not as part of the TI Allowance, for any work required and costs incurred as part of the
construction of the Tenant Improvements due to the presence of Hazardous Materials located on or
about the Project prior to the date of this Lease.



     (e) Payment for TI Costs. During the course of design and construction of the Tenant
Improvements, Landlord shall reimburse Tenant for TI Costs once a month against a draw request in
Landlord’s standard form attached hereto as Schedule 2, containing evidence of incurrence of such
TI Costs by Tenant and such certifications, lien waivers (including a conditional lien release for
each progress payment and unconditional lien releases for the prior month’s progress payments),
inspection reports and other matters as Landlord customarily obtains, to the extent of Landlord’s
approval thereof for payment, no later than 30 days following receipt of such draw request. Upon
completion of the Tenant Improvements (and prior to any final disbursement of the TI Allowance),
Tenant shall deliver to Landlord:
(i) sworn statements setting forth the names of all contractors and first tier
subcontractors who did the work and final, unconditional lien waivers from all such contractors
and first tier subcontractors (except only conditional waivers for the work covered by the final
draw request); (ii) as-built plans (one copy in print format and two copies in electronic CAD
format and, if prepared, copies of any 3D Building Information Models) for such Tenant
Improvements; (iii) a certification of substantial completion in Form AIA G704, (iv) a certificate
of occupancy for the Premises; and (v) copies of all operation and maintenance manuals and
warranties affecting the Premises. Notwithstanding anything to the contrary contained herein,
Tenant shall at all times have not less than a 10% retainage with respect its general contractor
for the Tenant Improvements and as a condition to payment of any draw requests Landlord shall be
entitled to confirm that the percentage of work completed is consistent with the percentage of
payment then being sought.



     (f) Security. Provided that Tenant is not in Default under this Lease (including the Work
Letter), if Landlord defaults in its obligation to disburse any portion of the TI Allowance as
required under this Work Letter and Tenant expends the sum in question as permitted under this
Work Letter, Tenant may offset such undisbursed amounts against Rent next coming due under this
Lease.



     6. Miscellaneous.



     (a) Consents. Whenever consent or approval of either party is required under this Work
Letter, that party shall not unreasonably withhold, condition or delay such consent or approval,
except as may be expressly set forth herein to the contrary.



     (b) Modification. No modification, waiver or amendment of this Work Letter or of any of its
conditions or provisions shall be binding upon Landlord or Tenant unless in writing signed by
Landlord and Tenant.



     (c) Tenant Improvements. The construction of the Tenant Improvements shall be governed by
this Work Letter and the provisions of Section 12 of the Lease shall not apply thereto.





	 	 	 	 	 

	 

	 	
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	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 6






Schedule 1




Description of Tenant Improvements


See attached schematic design drawings:



1st floor — Scope of work in bold



2nd floor — Scope of work in bold



3rd floor — Scope of work in bold



Notwithstanding anything to the contrary contained herein, Tenant acknowledges and agrees
that the Tenant Improvements shall also be subject to obtaining the requisite approvals from the
City of South San Francisco, any applicable architectural review boards, planning commission, city
council and building department.







	 	 	 	 	 

	 

	 	
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	 	249 E. Grand/Onyx — Page 7












	 	 	 	 	 

	 

	 	
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RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 








			
	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 8












	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 








			
	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 9












	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 








			
	Work Letter — Tenant Build
	 	249 E. Grand/Onyx — Page 10






Schedule 2




Landlord’s Form Draw Request









	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 








			
	 
	 	249 E. Grand/Onyx — Page 1






EXHIBIT D TO LEASE




ACKNOWLEDGMENT OF COMMENCEMENT DATE



     This ACKNOWLEDGMENT OF COMMENCEMENT DATE is made this ___ day of
                    , ___, between ARE-SAN FRANCISCO NO. 12, LLC, a Delaware limited liability
company (“Landlord”), and ONYX PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”), and
is attached to and made a part of the Lease dated                     , 2010 (the “Lease”), by and between
Landlord and Tenant. Any initially capitalized terms used but not defined herein shall have
the meanings given them in the Lease.



     Landlord and Tenant hereby acknowledge and agree, for all purposes of the Lease, that the
Commencement Date of the Base Term of the Lease is                     , ___, the “Rent
Commencement Date is                     , ___ and the termination date of the Base Term of the
Lease shall be midnight on                     , ___. In case of a conflict between the terms of the
Lease and the terms of this Acknowledgment of Commencement Date, this Acknowledgment of
Commencement Date shall control for all purposes.



     IN WITNESS WHEREOF, Landlord and Tenant have executed this ACKNOWLEDGMENT OF COMMENCEMENT
DATE to be effective on the date first above written.



	 	 	 	 	 
	 	TENANT:



ONYX PHARMACEUTICALS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Its: 	 



	 	 	 	 	 
	 	LANDLORD:



ARE-SAN FRANCISCO NO. 12, LLC,

a Delaware limited liability company

 	 
	 	By:  	ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
 
	 	 	a Delaware limited partnership, 	 
	 	 	its managing member 	 



	 	 	 	 	 
	 	 	 
	 	By:  	ARE-QRS CORP.,
 	 
	 	 	a Maryland corporation,

its general partner 	 



	 	 	 	 	 
	 	By:  	 	 
	 	 	Its: 	 






	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 






	 	 	 	 	 



			
	Rules and Regulations
	 	249 E. Grand/Onyx — Page 1






EXHIBIT E TO LEASE




Rules and Regulations



     1. The sidewalk, entries, and driveways of the Project shall not be obstructed by Tenant, or
any Tenant Party, or used by them for any purpose other than ingress and egress to and from the
Premises.



     2. Except as provided for in Sections 42(p) through (t) of the Lease, Tenant shall not place
any objects, including antennas, outdoor furniture, etc., in the parking areas, landscaped areas
or other areas outside of its Premises, or on the roof of the Project.



     3. Except for animals assisting the disabled, no animals shall be allowed in the offices,
halls, or corridors in the Project.



     4. Tenant shall not disturb the occupants of the Project or adjoining buildings by the use of
any radio or musical instrument or by the making of loud or improper noises.



     5. If Tenant desires telegraphic, telephonic or other electric connections in the Premises,
Landlord or its agent will direct the electrician as to where and how the wires may be introduced;
and, without such direction, no boring or cutting of wires will be permitted. Any such
installation or connection shall be made at Tenant’s expense.



     6. Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical
apparatus in the Premises, except as specifically approved in the Lease. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the Project.



     7. Parking any type of recreational vehicles is specifically prohibited on or about the
Project. Except for the overnight parking of operative vehicles, no vehicle of any type shall be
stored in the parking areas at any time. In the event that a vehicle is disabled, it shall be
removed within 48 hours. There shall be no “For Sale” or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated parking areas in conformity with
all signs and other markings. All parking will be open parking, and no reserved parking, numbering
or lettering of individual spaces will be permitted except as specified by Landlord.



     8. Tenant shall make reasonable efforts to maintain the Premises free from rodents,
insects and other pests.



     9. Landlord reserves the right to exclude or expel from the Project any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs or who shall in any
manner do any act in violation of the Rules and Regulations of the Project.



     10. Tenant shall not cause any unnecessary labor by reason of Tenant’s carelessness or
indifference in the preservation of good order and cleanliness. Landlord shall not be responsible
to Tenant for any loss of property on the Premises, however occurring, or for any damage done to
the effects of Tenant by the janitors or any other employee or person.



     11. Tenant shall give Landlord prompt notice of any defects in the water, lawn sprinkler,
sewage, gas pipes, exterior electrical lights and fixtures, or any other service equipment
affecting the Premises.



     12. Except as provided in Section 42(q) of the Lease, Tenant shall not permit storage
outside the Premises, including without limitation, outside storage of trucks and other vehicles,
or dumping of






	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 





			
	Rules and Regulations
	 	249 E. Grand/Onyx — Page 2





waste or refuse or permit any harmful materials to be placed in any drainage system or
sanitary system in or about the Premises.




     13. All moveable trash receptacles provided by the trash disposal firm for the Premises must
be kept in the trash enclosure areas, if any, provided for that purpose.



     14. No auction, public or private, will be permitted on the Premises or the
Project.



     15. No awnings shall be placed over the windows in the Premises except with the prior written
consent of Landlord.



     16. The Premises shall not be used for lodging, sleeping or cooking (except for food
preparation and service consistent with Tenant’s business and the Permitted Use) or for any
immoral or illegal purposes or for any purpose other than that specified in the Lease. No gaming
devices shall be operated in the Premises.



     17. Tenant shall ascertain from Landlord the maximum amount of electrical current which can
safely be used in the Premises, taking into account the capacity of the electrical wiring in the
Project and the Premises and the needs of other tenants, and shall not use more than such safe
capacity. Landlord’s consent to the installation of electric equipment shall not relieve Tenant
from the obligation not to use more electricity than such safe capacity.



     18. Tenant assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.



     19. Tenant shall not install or operate on the Premises any machinery or mechanical
devices of a nature not directly related to Tenant’s ordinary use of the Premises and shall keep
all such machinery free of vibration, noise and air waves which may be transmitted beyond the
Premises.






	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.






 









 





			
	 
	 	249 E. Grand/Onyx — Page 1






EXHIBIT F TO LEASE




TENANT’S PERSONAL PROPERTY


None.






	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.






 









 








			
	 
	 	249 E. Grand/Onyx — Page 1






EXHIBIT G TO LEASE




NORTHERN FACILITY LAND










	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.





 









 





			
	 
	 	249 E. Grand/Onyx — Page 1






EXHIBIT H TO LEASE




APPROVED SIGNAGE


Landlord acknowledges that it approves, in concept, Tenant’s proposed signage as
narratively described below, subject to (a) Landlord’s review and approval of detailed
specifications and/or drawings depicting the proposed manner of attachment of any exterior
building signage (in order to determine the integrity, water tightness and other characteristics
of the exterior walls will not be jeopardized by such attachment) and (b) applicable governmental
approvals and other requirements set forth in the lease.



1. Tenant may install, up to 36” high, brushed/painted aluminum or other weather proof
material, cut corporate signage and logo, mounted to the existing monument signage at the
northern-most entrance to the Premises. The signage will contain the Onyx “virus” logo with the
corporate name “Onyx Pharmaceuticals”. Notwithstanding the foregoing, Landlord shall remove
Landlord’s own (Alexandria) signage from the existing monument and Tenant’s signage shall be
required to be of a size that fits on the existing monument signage.



2. Onyx will affix signage on the west facing, top portion of the Premises. The Onyx “virus”
logo and corporate name will be affixed to the fascia of the building and will be back
rear-illuminated. Onyx signage will replace the existing signage from the current tenant
(Exelixis).



Notwithstanding the foregoing, all of Tenant’s signage shall be required to comply with
applicable Legal Requirements.








	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.







 









 








			
	 
	 	249 E. Grand/Onyx — Page 1






EXHIBIT I TO LEASE




INTENTIONALLY OMITTED






	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.




 









 





			
	 
	 	249 E. Grand/Onyx — Page 1






EXHIBIT J TO LEASE




SITE PLAN FOR PHASE I










	 	 	 	 	 

	 

	 	
	 	Copyright © 2005. Alexandria Real Estate Equities, Inc. ALL

RIGHTS RESERVED. Confidential and Proprietary — Do Not

Copy or Distribute. Alexandria and the Alexandria Logo are

registered trademarks of Alexandria Real Estate Equities, Inc.






 











 







CONFIDENTIAL FOR ADDRESSEE ONLY

DO NOT COPY OR DISTRIBUTE




July 9, 2010




Onyx Pharmaceuticals, Inc.
2100 Powell Street

Emeryville, CA 94608

Attention: General Counsel




     Re:      249 East Grand Avenue, South San Francisco/Letter Agreement



Ladies and Gentlemen:




     Reference is made to that certain Lease of even date herewith between you, as “Tenant,” and
ARE-San Francisco No. 12, LLC, a Delaware limited liability company, as “Landlord” (the “Lease”).
Initially capitalized terms not specifically defined in this letter agreement are intended to have
the meanings set forth for such terms in the Lease.



     This letter agreement is intended to modify the terms of Section 7 of the Lease and items 3
and 8 of Exhibit E of the Lease with respect to the meaning of “Permitted Use” under the
Lease.



     This will confirm that the parties agree that the Permitted Use of the Premises may
include use of a portion of the Premises as a vivarium for the housing and use in medical
research of rodents and other small animals, but not primates or larger animals.



     The parties will make a commercially reasonable effort to keep the subject matter of this
letter agreement confidential between them, and will not voluntarily disclose to any person the
contents of this letter agreement except (a) as may be required in connection with any legal,
administrative or regulatory proceeding or requirement related to the content of the Lease, and (b)
to Landlord’s and Tenant’s auditors, attorneys, consultants, lenders and prospective purchasers in
the ordinary course, as applicable, of Landlord’s and Tenant’s operations.



     By this letter agreement, the parties make no other change to the terms of the Lease with
respect to the Permitted Use.



 









 





			
	Onyx Pharmaceuticals, Inc.
	 	CONFIDENTIAL FOR ADDRESSEE ONLY
	July 9, 2010
	 	DO NOT COPY OR DISTRIBUTE
	Page 2 of 2	 	 







	 	 	Please acknowledge your agreement to the terms of this letter agreement
by countersigning below.





	 	 	 	 	 	 	 

	 	 	Sincerely,
	 
	 	 	 	 	 	 
	 	 	ARE-SAN FRANCISCO NO. 12, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	ALEXANDRIA REAL ESTATE EQUITIES, L.P.,

a Delaware limited partnership, managing member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	ARE-QRS CORP.,
	 

	 	 	 	 	 	a Maryland corporation,

general partner






	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Eric S. Johnson
 	 
	 	Its:  	     Eric S. Johnson 	 
	 	 	Vice President

Real Estate Legal Affairs 	 
	 



Acknowledged and agreed as of
 the
date first written above:




ONYX PHARMACEUTICALS, INC.,
 a Delaware
corporation




	 	 	 	 	 

	By:

	 	/s/ N. Anthony Coles
 

	 	 
	Its:

	 	CEO	 	 





	 	 	 	 	 

	By:

	 	/s/ Matthew K. Fust
 

	 	 
	Its:

	 	CFO