Exhibit 10.24


 


	
  

  	
  Southern California Chapter of the

  Society of Industrial and Office Realtors,® Inc.

  	
   

  



INDUSTRIAL REAL
ESTATE LEASE

(SINGLE-TENANT FACILITY)


 


	
  ARTICLE ONE:

  	
  BASIC
  TERMS

  
	
   

  
	
  This Article One
  contains the Basic Terms of this Lease between the Landlord and Tenant named
  below.  Other Articles, Sections and
  Paragraphs of the Lease referred to in this Article One explain and
  define the Basic Terms and are to be read in conjunction with the Basic
  Terms.

  
	
   

  
	
  Section 1.01.

  	
  Date
  of Lease:

  	
  February 24,
  2003

  
	
   

  
	
  Section 1.02.

  	
  Landlord
  (include legal entity):

  	
   

  	
  MAJESTIC-MAPA
  PROPERITES, LLC, a

  
	
  California
  limited liability company

  
	
  Address of
  Landlord:

  	
   

  	
  13191 Crossroads
  Parkway North, 6th Floor

  
	
   

  	
  City of
  Industry, CA 91746

  
	
   

  
	
  Section 1.03.

  	
  Tenant
  (include legal entity):

  	
   

  	
  GILEAD SCIENCES,
  INC., a Delaware corporation

  
	
  Address of
  Tenant:

  	
   

  	
  333 Lakeside
  Drive

  
	
   

  	
  Foster City, CA
  94404

  
	
   

  
	
  Section 1.04.  Property:
  (include street address, approximate square footage and description) that
  approximately 51,000 square foot building more commonly known as 502 Covina
  Boulevard, San Dimas, California as outlined in red on Exhibit “A”, subject
  to the non-exclusive use of such area outlined in green.

  
	
   

  
	
  Section 1.05.

  	
  Lease
  Term:

  	
  10

  	
  years

  	
  —

  	
  months beginning
  on 

  	
  December 1,
  2003

  
	
  or such other
  date as is specified in this Lease, and ending on

  	
  November 30, 2013

  
	
   

  
	
  Section 1.06.

  	
  Permitted
  Uses: (See Article Five)

  	
   

  	
  Only for general
  office, laboratory, warehousing and

  
	
  manufacturing of
  pharmaceutical products

  
	
   

  
	
  Section 1.07.

  	
  Tenant’s
  Guarantor:  (If none,
  so state)

  	
  None

  
	
   

  
	
  Section 1.08.

  	
  Brokers:
  (See Article Fourteen) (If none, so state)

  
	
  Landlord’s
  Broker:

  	
   

  	
  Majestic Realty
  Co.

  
	
  Tenant’s Broker:

  	
   

  	
  None

  
	
   

  
	
  Section 1.09.

  	
  Commission
  Payable to Landlord’s Broker: (See Article Fourteen) $

  	
  per separate
  agreement

  
	
   

  
	
  Section 1.10.

  	
  Initial
  Security Deposit: (See Section 3.03) $

  	
   58,650.00

  
	
   

  
	
  Section 1.11.

  	
  Vehicle
  Parking Spaces Allocated to Tenant:

  	
   per
  Exhibit “A”

  
	
   

  
	
  Section 1.12.  Rent and
  Other Charges Payable by Tenant:

  
	
   

  
	
  (a)  BASE
  RENT:  FIFTY-EIGHT THOUSAND
  SIX HUNDRED FIFTY AND NO/100------ Dollars ($ 58,650.00.) per month for the
  first sixty (60) months, as provided in Section 3.01, and shall be
  increased on the first day of the sixty-first (61st) month(s)
  after the Commencement Date, SIXTY-FOUR THOUSAND FIVE HUNDRED FIFTEEN AND
  NO/100 DOLLARS ($64,515.00).

  
	
   

  
	
  (b)  OTHER
  PERIODIC PAYMENTS:  (i) Real
  Property Taxes (See Section 4.02); (ii) Utilities (See Section 4.03);
  (iii) Insurance Premiums (See Section 4.04); (iv) Impounds for Insurance
  Premiums and Property Taxes (See Section 4.07; (v) Maintenance, Repairs
  and Alterations (See Article Six).

  
	
   

  
	
  Section 1.13.  Landlord’s
  Share of Profit on Assignment or Sublease: (See Section 9.05
  fifty percent (50%) of the Profit (the “Landlord’s Share”).

  
																			



 


 


	
  © 1988

  	
   

  	
  Southern California Chapter

  	
  

  	
   

  	
   

  
	
   

  	
   

  	
  of the Society of Industrial

  	
   

  	
   

  
	
   

  	
   

  	
  and Office Realtors,® Inc.

  	
                   (Single-Tenant
  Net Form)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [Gilead Sciences, Inc.]

  
	
   

  	
   

  	
   

  	
   

  	
  [502 Covina Blvd. San Dimas, CA]

  



 


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  Section 1.14.

  	
  Riders: The
  following Riders are attached to and made a part of this Lease: (If none, so
  state).

  
	
    Addendum pages 1 through 13,
  and Exhibits “A”, “B”, “C” and “D”.

  



 


ARTICLE TWO:  LEASE TERM


 


Section 2.01.  Lease of
Property For Lease Term. 
Landlord leases the Property to Tenant and Tenant leases the Property
from Landlord for the Lease Term.  The
Lease Term is for the period stated in Section 1.05 above and shall begin
and end on the dates specified in Section 1.05 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease.  The “Commencement Date” shall be the date
specified in Section 1.05 above for the beginning of the Lease Term,
unless advanced or delayed under any provision of this Lease.


 


Section 2.02.  Intentionally Deleted.


 


Section 2.03.  Intentionally Deleted.


 


Section 2.04.  Holding Over.  Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease.  Tenant shall reimburse Landlord for and
indemnify Landlord against all damages which Landlord incurs from Tenant’s
delay in vacating the Property.  If
Tenant does not vacate the Property upon the expiration or earlier termination
of the Lease and Landlord thereafter accepts rent from Tenant, Tenant’s
occupancy of the Property shall be a “month-to-month” tenancy, subject to all
of the terms of this Lease applicable to a month-to-month tenancy, except that
the Base Rent then in effect shall be increased by twenty-five percent (25%).


 


Section 2.05.  See Addendum.


 


ARTICLE THREE:  BASE RENT


 


Section 3.01.  Time and Manner of
Payment.  Upon execution of
this Lease, Tenant shall pay Landlord the Base Rent in the amount stated in
Paragraph 1.12(a) above for the first month of the Lease Term.  On the first day of the second month of the
Lease Term and each month thereafter, Tenant shall pay Landlord the Base Rent,
in advance, without offset, deduction or prior demand.  The Base Rent shall be payable at Landlord’s
address or at such other place as Landlord may designate in writing.


 


Section 3.02.  Intentionally Deleted.


 


Section 3.03.  Security Deposit;
Increases.


 


(a)  Upon the execution of this Lease, Tenant
shall deposit with Landlord a cash Security Deposit in the amount set forth in Section 1.10
Above.  Landlord may apply all or part of
the Security Deposit to any unpaid rent or other charges due from Tenant or to
cure any other defaults of Tenant.  If
Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within ten (1) days after Landlord’s
written request.  Tenant’s failure to do
so shall be a material default under this Lease.  No interest shall be paid on the Security
Deposit.  Landlord shall not be required
to keep the Security Deposit separate from its other accounts and no trust
relationship is created with respect to the Security Deposit.


 


(b)  Each time the Base Rent is increased, Tenant
shall deposit additional funds with Landlord sufficient to increase the
Security Deposit to an amount which bears the same relationship to the adjusted
Base Rent as the initial Security Deposit bore to the initial Base Rent.


 


Section 3.04.  Termination; Advance
Payments.  Upon termination of
this Lease under Article Seven (Damage or Destruction), Article Eight
(Condemnation) or any other termination not resulting from Tenant’s default,
and after Tenant has vacated the Property in the manner required by this Lease,
Landlord shall (within sixty (60) days from Tenant delivering exclusive
possession of the Property to Landlord) refund to Tenant (or Tenant’s
successor) the unused portion of the Security Deposit, any advance rent or
other advance payments made by Tenant to Landlord, and any amounts paid for
real property taxes and other reserves which apply to any time periods after
termination of the Lease.


 


ARTICLE FOUR:  OTHER
CHARGES PAYABLE BY TENANT


 


Section 4.01.  Additional Rent.  All charges payable by Tenant other than Base
Rent are called “Additional Rent.” 
Unless this Lease provides otherwise, Tenant shall pay all Additional
Rent then due with the next monthly installment of Base Rent.  The term “rent” shall mean Base Rent and
Additional Rent.


 


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Section 4.02.  Property Taxes.


 


(a)  Real Property
Taxes.  Tenant shall pay all
real property taxes on the Property (including any fees, taxes or assessments
against, or as a result of, any tenant improvements installed on the Property
by or for the benefit of Tenant) during the Lease Term.  Subject to Paragraph 4.02(c) and Section 4.07
below, such payment shall be made at least ten (10) days prior to the
delinquency date of the taxes.  Within
such ten (10) -day period, Tenant shall furnish Landlord with satisfactory
evidence that the real property taxes have been paid.  Landlord shall reimburse Tenant for any real
property taxes paid by Tenant covering any period of time prior to or after the
Lease Term.  If Tenant fails to pay the
real property taxes when due, Landlord may pay the taxes and Tenant shall
reimburse Landlord for the amount of such tax payment as Additional Rent.


 


(b)  Definition
of “Real Property Tax.”  “Real
property tax” means:  (i) any fee,
license fee, license tax, business license fee, commercial rental tax, levy,
charge, assessment, penalty (to the extent caused by Tenant’s acts or
omissions), or tax imposed by any taxing authority against the Property; (ii)
any tax on the Landlord’s right to receive, or the receipt of, rent or income
from the Property or against Landlord’s business of leasing the Property; (iii)
any tax or charge for fire protection, streets, sidewalks, road maintenance,
refuse or other services provided to the Property by any governmental agency;
(iv) any tax imposed upon this transaction or based upon a re-assessment of the
Property due to a change of ownership, as defined by applicable law, or other
transfer of all or part of Landlord’s interest in the Property; and (v) any
charge or fee replacing any tax previously included within the definition of
real property tax.  “Real property tax”
does not, however, include Landlord’s federal or state income, franchise,
inheritance or estate taxes.


 


(c)  Joint
Assessment.  If the Property
is not separately assessed, Landlord shall reasonably determine Tenant’s share
of the real property tax payable by Tenant under Paragraph 4.02(a) from the
assessor’s worksheets or other reasonably available information.  Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord’s written statement.


 


(d)  Personal
Property Taxes.


 


(i)  Tenant
shall pay all taxes charge against trade fixtures, furnishings, equipment or
any other personal property belonging to Tenant.  Tenant shall try to have personal property
taxed separately from the Property.


 


(ii)  If any of
Tenant’s personal property is taxed with the Property, Tenant shall pay
Landlord the taxes for the personal property within fifteen (15) days after
Tenant receives a written statement from Landlord for such personal property
taxes.


 


(e)  Tenant’s
Right to Contest Taxes. 
Tenant may attempt to have the assessed valuation of the Property
reduced or may initiate proceedings to contest the real property taxes.  If required by law, Landlord shall join in
the proceedings brought by Tenant. 
However, Tenant shall pay all costs of the proceedings, including any
costs or fees incurred by Landlord.  Upon
the final determination of any proceeding or contest, Tenant shall immediately
pay the real property taxes due, together with all costs, charges, interest and
penalties incidental to the proceedings. 
If Tenant does not pay the real property taxes when due and contests
such taxes, Tenant shall not be in default under this Lease for nonpayment of
such taxes if Tenant deposits funds with Landlord or opens an interest-bearing
account reasonably acceptable to Landlord in the joint names of Landlord and
Tenant.  The amount of such deposit shall
be sufficient to pay the real property taxes plus a reasonable estimate of the
interest, costs, charges and penalties which may accrue if Tenant’s action is
unsuccessful, less any applicable tax impounds previously paid by Tenant to
Landlord.  The deposit shall be applied
to the real property taxes due, as determined at such proceedings.  The real property taxes shall be paid under
protest from such deposit if such payment under protest is necessary to prevent
the Property from being sold under a “tax sale” or similar enforcement
proceeding.


 


Section 4.03.  Utilities.  Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the Property.  However, if any services
or utilities are jointly metered with other property, Landlord shall make a
reasonable determination of Tenant’s proportionate share of the cost of such
utilities and services and Tenant shall pay such share to Landlord within
fifteen (15) days after receipt of Landlord’s written statement.


 


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Section 4.04.  Insurance Policies.


 


(a)  Liability
Insurance.  During the Lease Term, Tenant shall
maintain a policy of commercial general liability insurance (sometimes known as
broad form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of
property) and personal injury arising out of the operation, use or occupancy of
the Property.  Tenant shall name Landlord
as an additional insured under such policy.  The initial amount of such insurance shall be
Three Million Dollars ($3,000,000.00) per occurrence and shall be subject to
periodic increase based upon industry standards for similar facilities.  The liability insurance obtained by Tenant
under this Paragraph 4.04(a) shall (i) be primary and non-contributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against Tenant’s
performance under Section 5.05, if the matters giving rise to the
indemnity under Section 5.05 result from the negligence of Tenant.  The amount and coverage of such insurance
shall not limit Tenant’s liability nor relieve Tenant of any other obligation
under this Lease.  Landlord may also
obtain comprehensive public liability insurance in an amount and with coverage
determined by Landlord insuring Landlord against liability arising out of
ownership, operation, use or occupancy of the Property.  The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance.


 


(b)  Property
and Rental Income Insurance.  During the Lease Term, Landlord shall
maintain policies of insurance covering loss of or damage to the Property in
the full amount of its replacement value. 
Such policy shall provide protection against loss or damage due to fire
or other casualties covered within the classification of fire standard extended
coverage, vandalism, malicious mischief, sprinkler leakage and any other perils
which Landlord deems reasonably necessary. 
Landlord shall have the right to obtain terrorism, flood and earthquake
insurance and other forms of insurance as required by any lender holding a
security interest in the Property. 
Landlord shall not obtain insurance for Tenant’s fixtures or equipment
or building improvements installed by Tenant on the Property.  During the Lease Term, Landlord shall also
maintain a rental income insurance policy, with loss payable to Landlord, in an
amount equal to one year’s Base Rent, plus estimated real property taxes and
insurance premiums.  Tenant shall be
liable for the payment of any deductible amount under Landlord’s or Tenant’s
insurance policies maintained pursuant to this Section 4.04; provided
however Landlord’s insurance deductible shall not exceed Ten Thousand Dollars
($10,000).  Tenant shall not do or permit
anything to be done which invalidates any such insurance policies.  Upon Tenant’s request, Landlord shall provide
Tenant a certificate evidencing such insurance.


 


(c)  Payment of
Premiums.  Subject to Section 4.07,
Tenant shall pay all premiums for the insurance policies described in
Paragraphs 4.04(a) and (b) (whether obtained by Landlord or Tenant) within
fifteen (15) days after Tenant’s receipt of a copy of the premium statement or
other evidence of the amount due, except Landlord shall pay all premiums for
non-primary comprehensive public liability insurance which Landlord elects to
obtain as provided in Paragraph 4.04(a). 
If insurance policies maintained by Landlord cover improvements on real
property other than the Property, Landlord shall deliver to Tenant a statement
of the premium applicable to the Property showing in reasonable detail how
Tenant’s share of the premium was computed. 
If the Lease Term expires before the expiration of an insurance policy
maintained by Landlord, Tenant shall be liable for Tenant’s prorated share of
the insurance premiums.  Before the
Commencement Date, Tenant shall deliver to Landlord a copy of any policy of
insurance which Tenant is required to maintain under this Section 4.04.  At least thirty (30) days prior to the
expiration of any such policy, Tenant shall deliver to Landlord a renewal of
such policy.  As an alternative to
providing a policy of insurance, Tenant shall have the right to provide
Landlord a certificate of insurance, executed by an authorized officer of the
insurance company, showing that the insurance which Tenant is required to
maintain under this Section 4.04 is in full force and effect and
containing such other information which Landlord reasonably requires.


 


(d)  General
Insurance Provisions.


 


(i)  Any
insurance which Tenant is required to maintain under this Lease shall include a
provision which requires the insurance carrier to give Landlord not less than
thirty (30) days’ written notice prior to any cancellation or modification of
such coverage.


 


(ii)  If Tenant
fails to deliver any policy, certificate or renewal to Landlord required under
this Lease within the prescribed time period or if any such policy is cancelled
or modified during the Lease Term without Landlord’s consent, Landlord may
obtain such insurance, in which case Tenant shall reimburse Landlord for the
cost of such insurance within fifteen (15) days after receipt of a statement
that indicates the cost of such insurance.


 


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(iii)  Landlord
and Tenant shall maintain all insurance required under this Lease with
companies holding a “General Policy Rating” of A-12 or better, as set forth in
the most current issue of “Best Key Rating Guide”.  Landlord and Tenant acknowledge the insurance
markets are rapidly changing and that insurance in the form and amounts
described in this Section 4.04 may not be available in the future.  Tenant acknowledges that the insurance
described in this Section 4.04 is for the primary benefit of
Landlord.  If at any time during the
Lease Term, Tenant or Landlord is unable to maintain the insurance required
under the Lease, Landlord and Tenant shall nevertheless maintain insurance
coverage which is customary and commercially reasonable in the insurance
industry for Tenant’s type of business, as that coverage may change from time
to time.  Landlord makes no
representation as to the adequacy of such insurance to protect Landlord’s or
Tenant’s interests.  Therefore, Tenant
shall obtain any such additional property or liability insurance which Tenant
deems necessary to protect Landlord and Tenant.


 


(iv)  Landlord
and Tenant each hereby waive any and all rights of recovery against the other,
or against the officers, employees, agents or representatives of the other, for
loss of or damage to its property or the property of others under its control, if
such loss or damage is covered by any insurance policy in force (whether or not
described in this Lease) at the time of such loss or damage.  Upon obtaining the required policies of
insurance, Landlord and Tenant shall give notice to the insurance carriers of
this mutual waiver of subrogation. 
Landlord’s and Tenant’s insurance policies described in this Section shall
contain a provision waiving the carrier’s right to subrogation.


 


Section 4.05.  Late Charges.  Tenant’s failure to pay rent promptly may
cause Landlord to incur unanticipated costs. 
The exact amount of such costs are impractical or extremely difficult to
ascertain.  Such costs may include, but
are not limited to, processing and accounting charges and late charges which
may be imposed on Landlord by any ground lease, mortgage or trust deed
encumbering the Property.  Therefore, if
Landlord does not receive any rent payment within ten (10) days after it
becomes due, provided Landlord has given Tenant forth-eight (48) hours written
notice and Tenant has still failed to pay such Base Rent (which forty-eight
(48) shall run concurrently with such ten (10) day period), Tenant shall pay
Landlord a late charge equal to eight percent (8%) of the overdue amount.  The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of such late payment.


 


Section 4.06.  Interest on Past Due
Obligations.  Any amount owed
by one party hereunder to the other which is not paid when due shall bear
interest at the rate of fifteen percent (15%) per annum from the due date of
such amount.  However, interest shall not
be payable on late charges to be paid by Tenant under this Lease.  The payment of interest on such amounts shall
not excuse or cure any default under this Lease.  If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.


 


Section 4.07.  Impounds for Insurance
Premiums and Real Property Taxes. 
If Tenant is more than ten (10) days late in the payment of Base Rent
more than twice in any consecutive twelve (12) -month period, Tenant shall pay
Landlord a sum equal to one-twelfth (1/12) of the annual real property taxes
and insurance premiums payable by Tenant under this Lease, together with each
payment of Base Rent.  Landlord shall
hold such payments in a non-interest bearing impound account.  If unknown, Landlord shall reasonably estimate
the amount of real property taxes and insurance premiums when due.  Tenant shall pay any deficiency of funds in
the impound account to Landlord upon written request.  If Tenant defaults under this Lease, Landlord
may apply any funds in the impound account to any obligation then due under
this Lease.


 


Section 4.08.  See Addendum.


 


ARTICLE FIVE:  USE OF
PROPERTY


 


Section 5.01.  Permitted Uses.  Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.


 


Section 5.02.  Manner of Use.  Tenant shall not cause or permit the Property
to be used in any way which constitutes a violation of any law, ordinance, or
governmental regulation or order, which annoys or interferes with the rights of
other tenants of Landlord, or which constitutes a nuisance or waste.  Tenant shall obtain and pay for all permits,
including a Certificate of Occupancy, required for Tenant’s occupancy of the
Property and shall promptly


 


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take all actions
necessary to comply with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act.


 


See Addendum Section 5.02.


 


See Addendum Section 5.03.


 


Section 5.04.  Signs and Auctions.  Tenant shall not place any signs on the
Property without Landlord’s prior written consent.  Tenant shall not conduct or permit any
auctions or sheriff’s sales at the Property.


 


See Addendum Section 5.04.


 


Section 5.05.  Indemnity.  Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising
from:  (a) Tenant’s use of the Property;
(b) the conduct of Tenant’s business or anything else done or permitted by
Tenant to be done in or about the Property; (c) any breach or default in the
performance of Tenant’s obligations under this Lease; (d) any misrepresentation
or breach of warranty by Tenant under this Lease; or (e) other acts or
omissions of Tenant.  Tenant shall defend
Landlord against any such cost, claim or liability at Tenant’s expense with
counsel reasonably acceptable to Landlord or, at Landlord’s election, Tenant
shall reimburse Landlord for any legal fees or costs incurred by Landlord in
connection with any such claim.  As a
material part of the consideration to Landlord, Tenant assumes all risk of
damage to property or injury to persons in or about the Property arising from
any cause, and Tenant hereby waives all claims in respect thereof against
Landlord, except for any claim arising out of Landlord’s or Landlord’s
employees’, agents’ or contractors’ active negligence or willful
misconduct.  As used in this Section, the
term “Tenant” shall include Tenant’s employees, agents, contractors and
invitees, if applicable.


 


See Addendum Section 5.05.


 


Section 5.06.  Landlord’s Access.  Landlord or its agents may enter the Property
at all reasonable times to show the Property to potential buyers, investors or
tenants or other parties; to do any other act or to inspect and conduct tests
in order to monitor Tenant’s compliance with all applicable environmental laws
and all laws governing the presence and use of Hazardous Material; or for any
other purpose Landlord deems necessary. 
Landlord shall give Tenant 24-hour prior notice of such entry, except in
the case of an emergency and Landlord agrees to allow a representative of
Tenant to accompany Landlord and further agrees to comply with Tenant’s
reasonable security measures.  Landlord
may place customary “For Sale” or “For Lease” signs on the Property.


 


Section 5.07.  Quiet Possession.  If Tenant pays the rent and complies with all
other terms of this Lease, Tenant may occupy and enjoy the Property for the
full Lease Term, subject to the provisions of this Lease.


 


ARTICLE SIX:  CONDITION OF
PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS


 


Section 6.01.  Existing Conditions.  Subject to the provisions of this Lease,
Tenant accepts the Property in its condition as of the execution of the Lease,
subject to all recorded matters, laws, ordinances, and governmental regulations
and orders.  Except as provided herein,
Tenant acknowledges that neither Landlord nor any agent of Landlord has made
any representation as to the condition of the Property or the suitability of
the Property for Tenant’s intended use. 
Tenant represents and warrants that Tenant has made its own inspection
of and inquiry regarding the condition of the Property and is not relying on
any representations of Landlord or any Broker with respect thereto.  If Landlord or Landlord’s Broker has provided
a Property Information Sheet or other Disclosure Statement regarding the
Property, a copy is attached as an exhibit to the Lease.


 


Section 6.02.  Exemption of Landlord from
Liability.  Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant.  Tenant’s employees, invitees, customers or
any other person in or about the Property, whether such damage or injury is
caused by or results from:  (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause; (c) conditions arising in
or about the Property or from other sources or places; or (d) any act or
omission of any other tenant of Landlord. 
Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant.  The provisions of this Section 6.02
shall not, however, exempt Landlord from liability for Landlord’s or Landlord’s
employees’, agents’ or contractors active negligence or willful misconduct.


 


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Section 6.03.  Landlord’s Obligations.  See Addendum Section 6.03.


 


Section 6.04.  Tenant’s Obligations.


 


(a)  Except as provided in Section 6.03, Article Seven
(Damage or Destruction) and Article Eight (Condemnation), Tenant shall
keep all portions of the Property (including structural, nonstructural,
interior, exterior, and landscaped areas, portions, systems and equipment) in
good order, condition and repair (including interior repainting and
refinishing, as needed).  If any portion
of the Property or any system or equipment in the Property which Tenant is
obligated to repair cannot be fully repaired or restored, Tenant shall promptly
replace such portion of the Property or system or equipment in the Property,
regardless of whether the benefit of such replacement extends beyond the Lease
Term; but if the benefit or useful life of such replacement extends beyond the
Lease Term (as such term may be extended by exercise of any options), the
useful life of such replacement shall be prorated over the remaining portion of
the Lease Term (as extended), and Tenant shall be liable only for that portion
of the cost which is applicable to the Lease Term (as extended).  Tenant shall maintain a preventive
maintenance contract providing for the regular inspection and maintenance of
the heating and air conditioning system by a licensed heating and air
conditioning contractor.  Subject to the
provisions of Section 4.04(d)(iv), if any part of the Property is damaged
by any act or omission of Tenant, Tenant shall pay Landlord the cost of
repairing or replacing such damaged property, whether or not Landlord would
otherwise be obligated to pay the cost of maintaining or repairing such
property.  It is the intention of Landlord
and Tenant that at all times Tenant shall maintain the portions of the Property
which Tenant is obligated to maintain in an attractive, first-class and fully
operative condition.


 


(b)  Tenant shall fulfill all of Tenant’s
obligations under this Section 6.04 at Tenant’s sole expense.  If Tenant fails to maintain, repair or
replace the Property as required by this Section 6.04 or is not using all
reasonable efforts to do so, Landlord may, upon ten (10) days’ prior notice to
Tenant (except that no notice shall be required in the case of an emergency),
enter the Property and perform such maintenance or repair (including
replacement, as needed) on behalf of Tenant. 
In such case, Tenant shall reimburse Landlord for all costs incurred in
performing such maintenance or repair immediately upon demand.


 


Section 6.05.  Alterations, Additions,
and Improvements.


 


(a)  Tenant shall not make any alterations,
additions, or improvements to the Property without Landlord’s prior written
consent, which shall not be unreasonably withheld except for non-structural alterations
which do not exceed Sixty Thousand Dollars ($60,000) in cost per project and
which are not visible from the outside of any building of which the Property is
part.  Landlord may require Tenant to
provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord.  Tenant shall
promptly remove any alterations, additions, or improvements constructed in
violation of this Paragraph 6.05(a) upon Landlord’s written request.  All alterations, additions, and improvements
shall be done in a good and workmanlike manner, in conformity with all
applicable laws and regulations, and by a contractor approved by Landlord,
which shall not be unreasonably withheld. 
Upon completion of any such work, Tenant shall provide Landlord with “as
built” plans, copies of all construction contracts, and proof of payment for
all labor and materials.


 


(b)  Tenant shall pay when due all claims for
labor and material furnished to or for the Tenant Group at the Property.  Tenant shall give Landlord at least twenty
(20) days’ prior written notice of the commencement of any work on the
Property, regardless of whether Landlord’s consent to such work is
required.  Landlord may elect to record
and post notices of non-responsibility on the Property.


 


Section 6.06.  Condition upon
Termination.  Upon the
termination of the Lease, Tenant shall surrender the Property to Landlord,
broom clean and in the same condition as received except for ordinary wear and
tear which Tenant was not otherwise obligated to remedy under any provision of
this Lease.  However, Tenant shall not be
obligated to repair any damage which Landlord is required to repair in
accordance with the Lease.  In addition,
Landlord may require Tenant to remove any alterations, additions or
improvements (whether or not made with Landlord’s consent) prior to the
expiration of the Lease and to restore the Property to its prior condition, all
at Tenant’s expense.  All alterations,
additions and improvements which Landlord has not required Tenant to remove
shall become Landlord’s property and shall be surrendered to Landlord upon the
expiration or earlier termination of the Lease, except that Tenant may remove
any of Tenant’s trade fixtures, machinery or equipment which can be removed
without material damage to the Property. 
Tenant shall repair, at Tenant’s expense, any damage to the Property
caused by the removal of any such trade fixtures, machinery or equipment.  In no event, however, shall


 


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Tenant remove any
of the following materials or equipment (which shall be deemed Landlord’s
property) without Landlord’s prior written consent; any power wiring or power
panels; lighting or lighting fixtures; wall coverings; drapes, blinds or other
window coverings; carpets or other floor coverings; heaters, air conditioners
or any other heating or air conditioning equipment; fencing or security gates;
or other similar building operating equipment and decorations.


 


See Addendum Section 6.06.


 


ARTICLE SEVEN:  DAMAGE OR
DESTRUCTION


 


Section 7.01.  Partial Damage to
Property.


 


(a)  Tenant shall notify Landlord in writing
immediately upon the occurrence of any damage to the Property.  If the Property is only partially damaged
(i.e., less than fifty percent (50%) of the Property is untenantable as a
result of such damage or less than fifty percent (50%) of Tenant’s operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Paragraph 4.04(b) are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord shall repair
the damage as soon as reasonably possible. 
Landlord may elect (but is not required) to repair any damage to Tenant’s
fixtures, equipment, or improvements.


 


(b)  If (i) Landlord has maintained the insurance
required to be maintained under Paragraph 4.04(b) and the insurance proceeds
received by Landlord are not sufficient to pay the entire cost of repair; (ii)
the cause of the damage is not covered by such insurance policies; or (iii) the
holder of any mortgage on the Property shall require that the insurance
proceeds or any portion thereof be used to retire the mortgage debt.  Landlord may elect either to (i) repair the
damage as soon as reasonably possible, in which case this Lease shall remain in
full force and effect, or (ii) terminate this Lease as of the date the damage
occurred.  Landlord shall notify Tenant
within thirty (30) days after receipt of notice of the occurrence of the damage
whether Landlord elects to repair the damage or terminate the Lease.  If Landlord elects to repair the damage,
Tenant shall pay Landlord the “deductible amount” (if any) under Landlord’s
insurance policies and, if the damage was due to an act or omission of Tenant,
or Tenant’s employees, agents, contractors or invitees, the difference between
the actual cost of repair and any insurance proceeds received by Landlord.  If Landlord elects to terminate this Lease,
Tenant may elect to continue this Lease in full force and effect, in which case
Tenant shall repair any damage to the Property and any building in which the
Property is located.  Tenant shall pay
the cost of such repairs, except that upon satisfactory completion of such
repairs, Landlord shall deliver to Tenant any insurance proceeds received by
Landlord for the damage repaired by Tenant. 
Tenant shall give Landlord written notice of such election within ten
(10) days after receiving Landlord’s termination notice.


 


(c)  If the damage to the Property occurs during
the last six (6) months of the Lease Term and such damage will require more
than thirty (30) days to repair, either Landlord or Tenant may elect to
terminate this Lease as of the date the damage occurred, regardless of the
sufficiency of any insurance proceeds. 
The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Tenant’s notice to Landlord of the occurrence of the damage.


 


Section 7.02.  Substantial or Total
Destruction.  If the Property
is substantially or totally destroyed by any cause whatsoever (i.e., the damage
to the Property is greater than partial damage as described in Section 7.01),
and regardless of whether Landlord receives any insurance proceeds, this Lease
shall terminate the later of the (i) date the destruction occurred and (ii) the
date Tenant ceases to do business at the Property.  Notwithstanding the preceding sentence, if
the Property can be rebuilt within six (6) months after the date of destruction,
Landlord may elect to rebuild the Property at Landlord’s own expense, in which
case this Lease shall remain in full force and effect.  Landlord shall notify Tenant of such election
within thirty (30) days after Tenant’s notice of the occurrence of total or
substantial destruction.  If Landlord so
elects, Landlord shall rebuild the Property at Landlord’s sole expense, except
that if the destruction was caused by an act or omission of Tenant, Tenant
shall pay Landlord the difference between the actual cost of rebuilding and any
insurance proceeds received by Landlord.


 


Section 7.03.  Temporary Reduction of
Rent.  If the Property is
destroyed or damaged and Landlord or Tenant repairs or restores the Property
pursuant to the provisions of this Article Seven, any rent payable during
the period of such damage, repair and/or restoration shall be reduced according
to the degree, if any, to which Tenant’s use of the Property is impaired.  Except for such possible reduction in Base
Rent, insurance premiums and real property taxes,


 


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Tenant shall not
be entitled to any compensation, reduction, or reimbursement from Landlord as a
result of any damage, destruction, repair, or restoration of or to the
Property.


 


Section 7.04.  Waiver.  Tenant waives the protection of any statute,
code or judicial decision which grants a tenant the right to terminate a lease
in the event of the substantial or total destruction of the leased
property.  Tenant agrees that the provisions
of Section 7.02 above shall govern the rights and obligations of Landlord
and Tenant in the event of any substantial or total destruction to the
Property.


 


ARTICLE EIGHT:  CONDEMNATION


 


If all or any portion of
the Property is taken under the power of eminent domain or sold under the
threat of that power (all of which are called “Condemnation”), this Lease shall
terminate as to the part taken or sold on the date the condemning authority
takes title or possession, whichever occurs first.  If more than twenty percent (20%) of the
floor area of the building in which the Property is located, or which is
located on the Property, is taken, either Landlord or Tenant may terminate this
Lease as of the date the condemning authority takes title or possession, by
delivering written notice to the other within ten (10) days after receipt of
written notice of such taking (or in the absence of such notice, within ten
(10) days after the condemning authority takes title or possession).  If neither Landlord nor Tenant terminates
this Lease, this Lease shall remain in effect as to the portion of the Property
not taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the Property.  Any Condemnation award or payment shall be
distributed in the following order:  (a)
first, to any ground lessor, mortgagee or beneficiary under a deed of trust
encumbering the Property, the amount of its interest in the Property; (b)
second, to Tenant, only the amount of any award specifically designated for
loss of or damage to Tenant’s trade fixtures or removable personal property;
and (c) third, to Landlord, the remainder of such award, whether as
compensation for reduction in the value of the leasehold, the taking of the
fee, or otherwise.  If this Lease is not
terminated, Landlord shall repair any damage to the Property caused by the
Condemnation, except that Landlord shall not be obligated to repair any damage
for which Tenant has been reimbursed by the condemning authority.  If the severance damages received by Landlord
are not sufficient to pay for such repair, Landlord shall have the right to
either terminate this Lease or make such repair at Landlord’s expense.


 


ARTICLE NINE:  ASSIGNMENT
AND SUBLETTING


 


Section 9.01.  Landlord’s Consent
Required.  no portion of the
Property or of Tenant’s interest in this Lease may be acquired by any other
person or entity, whether by sale, assignment, mortgage, sublease, transfer,
operation of law, or act of Tenant, without Landlord’s prior written consent,
except as provided in Section 9.02 below. 
Landlord has the right to grant or withhold its consent as provided in Section 9.05
below.  Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.


 


Section 9.02.  Tenant Affiliate.


 


See Addendum Section 9.02.


 


Section 9.03.  No Release of Tenant.  No transfer permitted by this Article Nine,
whether with or without Landlord’s consent, shall release Tenant or change
Tenant’s primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease.  Landlord’s
acceptance of rent from any other person is not a waiver of any provision of
this Article Nine.  Consent to one
transfer is not a consent to any subsequent transfer.  If Tenant’s transferee defaults under this
Lease, Landlord may proceed directly against Tenant without pursuing remedies
against the transferee.  Landlord may
consent to subsequent assignments or modifications of this Lease by Tenant’s
transferee, without notifying Tenant or obtaining its consent.  Such action shall not relieve Tenant’s
liability under this Lease.


 


Section 9.04.  Offer to Terminate.  If Tenant desires to assign the Lease or
sublease all of the Property, and if Landlord elects in writing to terminate
this Lease pursuant to Section 9.05, the Lease shall terminate as of the
commencement date of a new lease between Landlord and the proposed assignee or
subtenant and all the terms and provisions of the Lease governing termination
shall apply.  If Landlord does not so
elect, the Lease shall continue in effect until otherwise terminated and the
provisions of Section 9.05 with respect to any proposed transfer shall
continue to apply.


 


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Section 9.05.  Landlord’s Consent.


 


(a)  Tenant’s request for consent to any transfer
described in Section 9.01 shall set forth in writing the details of the
proposed transfer, including the name, business and financial condition of the
prospective transferee, financial details of the proposed transfer (e.g., the
term of and the rent and security deposit payable under any proposed assignment
or sublease), and any other information Landlord reasonably deems
relevant.  Landlord shall have the right
to elect to terminate this Lease or to withhold consent, if reasonable, or to
grant consent, based on the following factors: 
(i) the business of the proposed assignee or subtenant and the proposed
use of the Property; (ii) the net worth and financial reputation of the
proposed assignee or subtenant; and (iii) Tenant’s compliance with all of its
obligations under the Lease.  If Landlord
objects to a proposed assignment solely because of the net worth and/or
financial reputation of the proposed assignee, Tenant may nonetheless sublease
(but not assign), all or a portion of the Property to the proposed transferee,
but only on the other terms of the proposed transfer.


 


(b)  If Tenant assigns or subleases, the following
shall apply:


 


(i)  If Tenant
assigns or subleases more than seventy percent (70%) of the building located on
the Property in the aggregate, then Tenant shall pay to Landlord as Additional
Rent under the Lease the Landlord’s Share (stated in Section 1.13) of the
Profit (defined below) on such transaction as and when received by Tenant,
unless Landlord gives written notice to Tenant and the assignee or subtenant
that Landlord’s Share shall be paid by the assignee or subtenant to Landlord
directly.  The “Profit” means (A) all
amounts paid to Tenant for such assignment or sublease, including “key” money,
monthly rent in excess of the monthly rent payable under the Lease, and all
fees and other consideration paid for the assignment or sublease, including
fees under any collateral agreements, less (B) costs and expenses directly
incurred by Tenant in connection with the execution and performance of such
assignment or sublease for real estate broker’s commissions and costs of
renovation or construction of such assignment or sublease for real estate
broker’s commissions and costs of renovation or construction of tenant improvements
required under such assignment or sublease. 
Tenant is entitled to recover such costs and expenses before Tenant is
obligated to pay the Landlord’s Share to Landlord.  The Profit in the case of a sublease of less
than all the Property is the rent allocable to the subleased space as a
percentage on a square footage basis.


 


(ii)  Tenant
shall provide Landlord a written statement certifying all amounts to be paid
from any assignment or sublease of the Property within thirty (30) days after
the transaction documentation is signed, and Landlord may inspect Tenant’s
relevant books and records to verify the accuracy of such statement.  On written request, Tenant shall promptly
furnish to Landlord copies of all the transaction documentation, all of which shall
be certified by Tenant to be complete, true and correct.  Landlord’s receipt of Landlord’s Share shall
not be a consent to any further assignment or subletting.  The breach of Tenant’s obligation under this
Paragraph 9.05(b) shall be a material default of the Lease.


 


Section 9.06.  No Merger.  no merger shall result from Tenant’s sublease
of the Property under this Article Nine, Tenant’s surrender of this Lease
or the termination of this Lease in any other manner.  In any such event, Landlord may terminate any
or all subtenancies or succeed to the interest of Tenant as sublandlord under
any or all subtenancies.


 


ARTICLE TEN:  DEFAULTS;
REMEDIES


 


Section 10.01.  Covenants and Conditions.  Tenant’s and Landlord’s performance of each
obligation under this Lease is a condition as well as a covenant.  Tenant’s right to continue in possession of
the Property is conditioned upon Tenant’s performance.  Time is of the essence in the performance of
all covenants and conditions.


 


Section 10.02.  Defaults.  Tenant shall be in material default under
this Lease.


 


(a)  If Tenant fails to pay rent and abandons the
Property or if Tenant’s vacation of the Property results in the cancellation of
any insurance described in Section 4.04;


 


(b)  If Tenant fails to pay rent when due or any
other charge within ten (10) days from receipt of such bill or statement from
Landlord;


 


(c)  If Tenant fails to perform any of Tenant’s
non-monetary obligations under this Lease for a period of thirty (30) days
after written notice from Landlord; provided that if more than thirty (30) days
are required to complete


 


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such performance,
Tenant shall not be in default if Tenant commences such performance within the
thirty (30)–day period and thereafter diligently pursues its completion.  The notice required by this Paragraph is
intended to satisfy any and all notice requirements imposed by law on Landlord
and is not in addition to any such requirement.


 


(d)  (i)  If
Tenant makes a general assignment or general arrangement for the benefit of
creditors; (ii) if a petition for adjudication of bankruptcy or for
reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant’s assets located at the
Property or of Tenant’s interest in this Lease and possession is not restored
to Tenant within thirty (30) days; or (iv) if substantially all of Tenant’s
assets located at the Property or of Tenant’s interest in this Lease is
subjected to attachment, execution or other judicial seizure which is not
discharged within thirty (3) days.  If a
court of competent jurisdiction determines that any of the acts described in
this subparagraph (d) is not a default under this Lease, and a trustee is
appointed to take possession (or if Tenant remains a debtor in possession) and
such trustee or Tenant transfers Tenant’s interest hereunder, then Landlord
shall receive, as Additional Rent, the excess, if any, of the rent (or any
other consideration) paid in connection with such assignment or sublease over
the rent payable by Tenant under this Lease.


 


(e)  If any guarantor of the Lease revokes or
otherwise terminates, or purports to revoke or otherwise terminate, any
guaranty of all or any potion of Tenant’s obligations under the Lease.  Unless otherwise expressly provided, no
guaranty of the Lease is revocable.


 


Section 10.03.  Remedies.  On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, following three (3) days written
notice or demand (which may be in the form of a three (3) day notice to pay
rent or quit and which time may run concurrently therewith) and without
limiting Landlord in the exercise of any right or remedy which Landlord may
have:


 


(a)  Terminate Tenant’s right to possession of the
Property by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Property to Landlord.  If Tenant shall be served with a demand for
the payment of past due rent or any other charge, any payments rendered
thereafter to cure any default by Tenant shall be made only by cashier’s
check.  In such event, Landlord shall be
entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant’s default, including (i) the worth at the time of the award of the
unpaid Base Rent, Additional Rent and other charges which Landlord had earned
at the time of the termination; (ii) the worth at the time of the award of the
amount by which the unpaid Base Rent, Additional Rent and other charges which
Landlord would have earned after termination until the time of the award
exceeds the amount of such rental loss that Tenant proves Landlord could have
reasonably avoided; (iii) the worth at the time of the award of the amount by
which the unpaid Base Rent, Additional Rent and other charges which Tenant
would have paid for the balance of the Lease term after the time of award
exceeds the amount of such rental loss that Tenant proves Landlord could have
reasonably avoided; and (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant’s failure to perform its
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited to, any costs or
expenses Landlord incurs in maintaining or preserving the Property after such
default, the costs of recovering possession of the Property, expenses of
reletting, including necessary renovation or alteration of the Property,
Landlord’s reasonable attorneys’ fees incurred in connection therewith, and any
real estate commission paid or payable. 
As used in subparts (i) and (ii) above, the “worth at the time of the
award” is computed by allowing interest on unpaid amounts at the rate of
fifteen percent (15%) per annum, or such lesser amount as may then be the
maximum lawful rate.  As used in subpart
(iii) above, the “worth at the time of the award” is computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus one percent (1%). 
If Tenant has abandoned the Property, Landlord shall have the option of
(i) retaking possession of the Property and recovering from Tenant the amount
specified in this Paragraph 10.03(a), and/or (ii) proceeding under
Paragraph 10.03(b);


 


(b)  Maintain Tenant’s right to possession, in
which case this Lease shall continue in effect whether or not Tenant has
abandoned the Property.  In such event,
Landlord shall be entitled to enforce all of Landlord’s rights and remedies
under this Lease, including the right to recover the rent as it becomes
due.  Landlord shall have the remedy
described in California Civil Code Section 1951.4 (lessor may continue
lease in effect after lessee’s breach and abandonment and recover rent as it
becomes due, if lessee has the right to sublet or assign, subject only to
reasonable limitations);


 


11





















 


(c)  Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions of the state in
which the Property is located.


 


Section 10.04.  Intentionally Deleted.


 


Section 10.05.  Automatic Termination.  Notwithstanding any other term or provision
hereof to the contrary, the Lease shall terminate on the occurrence of any act
which affirms the Landlord’s intention to terminate the Lease as provided in Section 10.03
hereof, including the filing of an unlawful detainer action against
Tenant.  On such termination, Landlord’s
damages for default shall include all costs and fees, including reasonably
attorneys’ fees that Landlord incurs in connection with the filing,
commencement, pursuing and/or defending of any action in any bankruptcy court
or other court with respect to the Lease; the obtaining of relief from any stay
in bankruptcy restraining any action to evict Tenant; or the pursuing of any
action with respect to Landlord’s right to possession of the Property.  All such damages suffered (apart from Base
Rent and other rent payable hereunder) shall constitute pecuniary damages which
must be reimbursed to Landlord prior to assumption of the Lease by Tenant or
any successor to Tenant in any bankruptcy or other proceeding.


 


Section 10.06.  Cumulative Remedies.  Landlord’s exercise of any right or remedy
shall not prevent it from exercising any other right or remedy.


 


ARTICLE ELEVEN:  PROTECTION
OF LENDERS


 


Section 11.01.  Subordination.  Landlord shall have the right to subordinate
this Lease to any ground lease, deed of trust or mortgage encumbering the
Property, any advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever
made or recorded.  Tenant shall cooperate
with Landlord and any lender which is acquiring a security interest in the
Property or the Lease.  Tenant shall
execute such further documents and assurances as such lender may require in the
form attached hereto as Exhibit “B” or such other form as is then required by
Landlord’s lender, provided that such agreement contains a non-disturbance
agreement in favor of Tenant and provided further that Tenant’s obligations
under this Lease shall not be increased in any material way (the performance of
ministerial acts shall not be deemed material), and Tenant shall not be
deprived of its rights under this Lease. 
Tenant’s right to quiet possession of the Property during the Lease Term
shall not be disturbed if Tenant pays the rent and performs all of Tenant’s
obligations under this Lease and is not otherwise in default.  If any ground lessor, beneficiary or
mortgagee elects to have this Lease prior to the lien of its ground lease, deed
of trust or mortgage and gives written notice thereof to Tenant, this Lease
shall be deemed prior to such ground lease, deed of trust or mortgage whether
this Lease is dated prior or subsequent to the date of said ground lease, deed
of trust or mortgage or the date of recording thereof.


 


See Addendum Section 11.01.


 


Section 11.02.  Attornment.  If Landlord’s interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Landlord’s interest in the Property and recognize such transferee
or successor as Landlord under this Lease. 
Tenant waives the protection of any current or future statute or rule of
law which gives or purports to give Tenant any right to terminate this Lease or
surrender possession of the Property upon the transfer of Landlord’s interest.


 


Section 11.03.  Signing of Documents.  Tenant shall sign and deliver any instrument
or documents necessary or appropriate to evidence any such attornment or
subordination or agreement to do so provided that such agreement include a
non-disturbance provision in favor of Tenant. 
If Tenant fails to do so within fifteen (15) days after written request,
Tenant hereby makes, constitutes and irrevocably appoints Landlord, or any transferee
or successor of Landlord, the attorney-in-fact of Tenant to execute and deliver
any such instrument or document so long as such instrument complies with the
provisions of this ARTICLE ELEVEN.


 


Section 11.04.  Estoppel Certificates.


 


(a)  Upon Landlord’s written request, Tenant shall
execute, acknowledge and deliver to Landlord a written statement in the form
attached hereto as Exhibit “C” or such other form as is then required by
Landlord’s lender, certifying:  (i) that
none of the terms or provisions of this Lease have been changed (or if they
have been changed, stating how they have been changed); (ii) that this Lease
has not been cancelled or terminated; (iii) the last date of payment of the
Base Rent and other charges and the time period covered by such payment; (iv)
that Landlord is not


 


12





















 


in default under
this Lease (or, if Landlord is claimed to be in default, stating why); and (v)
such other representations or information with respect to Tenant or the Lease
as Landlord may reasonably request or which any prospective purchaser or
encumbrancer of the Property may require. 
Tenant shall deliver such statement to Landlord within fifteen (15) days
after Landlord’s request.  Landlord may
give any such statement by Tenant to any prospective purchaser or encumbrancer
of the Property.  Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.


 


(b)  If Tenant does not deliver such statement to
Landlord within such fifteen (15)–day period, Landlord, and any prospective
purchaser or encumbrancer, may conclusively presume and rely upon the following
facts:  (i) that the terms and provisions
of this Lease have not been changed except as otherwise represented by
Landlord; (ii) that this Lease has not been cancelled or terminated except as
otherwise represented by Landlord; (iii) that not more than one month’s Base
Rent or other charges have been paid in advance; and (iv) that Landlord is not
in default under the Lease.  In such
event, Tenant shall be estopped from denying the truth of such facts.


 


Section 11.04(c).  See Addendum.


 


Section 11.05.  Tenant’s Financial
Condition.  Within ten (10)
days after written request from Landlord, Tenant shall deliver to Landlord
Tenant’s then existing financial statements to verify the net worth of Tenant
or any assignee, subtenant, or guarantor of Tenant.  In addition, Tenant shall deliver to any
lender designated by Landlord any financial statements required by such lender
to facilitate the financing or refinancing of the Property.  Tenant represents and warrants to Landlord
that each such financial statement is a true and accurate statement as of the
date of such statement.  Al financial
statements shall be confidential and shall be used only for the purposes set
forth in this Lease.


 


See Addendum Section 11.05.


 


ARTICLE TWELVE:  LEGAL COSTS


 


Section 12.01.  Legal Proceedings.  If Tenant or Landlord shall be in breach or
default under this Lease, such party (the “Defaulting Party”) shall reimburse
the other party (the “Nondefaulting Party”) upon demand for any costs or
expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced or judgment entered.  Such
costs shall include legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. 
Furthermore, if any action for breach of or to enforce the provisions of
this Lease is commenced, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys’ fees and
costs.  The losing party in such action
shall pay such attorneys’ fees and costs. 
Tenant shall also indemnify Landlord against and hold Landlord harmless
from all costs, expenses, demands and liability Landlord may incur if Landlord
becomes or is made a party to any claim or action (a) instituted by Tenant
against any third party, or by any third party against Tenant, or by or against
any person holding any interest under or using the Property by license of or
agreement with Tenant; (b) for foreclosure of any lien for labor or material
furnished to or for Tenant Group; (c) otherwise arising out of or resulting
from any act or transaction of Tenant Group; or (d) necessary to protect
Landlord’s interest under this Lease in a bankruptcy proceeding, or other
proceeding under Title 11 of the United States Code, as amended.  Tenant shall defend Landlord against any such
claim or action at Tenant’s expense with counsel reasonably acceptable to
Landlord or, at Landlord’s election. 
Tenant shall reimburse Landlord for any legal fees or costs Landlord
reasonably incurs in any such claim or action.


 


Section 12.02.  Landlord’s Consent.  Tenant shall pay Landlord’s reasonable
attorneys’ fees incurred in connection with Tenant’s request for Landlord’s
consent under Article Nine (Assignment and Subletting), or in connection
with any other act which Tenant proposes to do and which requires Landlord’s
consent.


 


ARTICLE THIRTEEN:  MISCELLANEOUS
PROVISIONS


 


Section 13.01.  Non-Discrimination.  Tenant promises, and it is a condition to the
continuance of this Lease, that there will be no discrimination against, or
segregation of, any person or group of persons on the basis of race, color,
sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.


 


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Section 13.02.  Landlord’s Liability;
Certain Duties.


 


(a)  As used in this Lease, the term “Landlord”
means only the current owner or owners of the fee title to the Property or the
leasehold estate under a ground lease of the Property at the time in
question.  Each Landlord is obligated to
perform the obligations of Landlord under this Lease only during the time such
Landlord owns such interest or title. 
Any Landlord who transfers its title or interest is relieved of al
liability with respect to the obligations of Landlord under this Lease to be performed
on or after the date of transfer provided the transferee assumes all of
Landlord’s obligations from the date of transfer.  However, each Landlord shall deliver to its
transferee all funds that Tenant previously paid if such funds have not yet
been applied under the terms of this Lease.


 


(b)  Tenant shall give written notice of any
failure by Landlord to perform any of its obligations under this Lease to
Landlord and to any ground lessor, mortgagee or beneficiary under any deed of
trust encumbering the Property whose name and address have been furnished to
Tenant in writing.  Landlord shall not be
in default under this Lease unless landlord (or such ground lessor, mortgagee
or beneficiary) fails to cure such non-performance within thirty (30) days after
receipt of Tenant’s notice.  However, if
such non-performance reasonably requires more than thirty (30) days to cure,
Landlord shall not be in default if such cure is commenced within such thirty
(30) –day period and thereafter diligently pursued to completion.


 


(c)  Notwithstanding any term or provision herein
to the contrary, the liability of Landlord for the performance of its duties
and obligations under this Lease is limited to Landlord’s interest in the
Property, and neither the Landlord nor its partners, shareholders, officers or
other principals shall have any personal liability under this Lease.


 


Section 13.03.  Severability.  A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.


 


Section 13.04.  Interpretation.  The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. 
Whenever required by the context of this Lease, the singular shall
include the plural and the plural shall include the singular.  The masculine, feminine and neuter genders
shall each include the other.  In any
provision relating to the conduct, acts or omissions of Tenant, the term “Tenant”
shall include Tenant’s agents, employees, contractors, invitees, successors or
others using the Property with Tenant’s expressed or implied permission.


 


Section 13.05.  Incorporation of Prior
Agreements; Modifications. 
This Lease is the only agreement between the parties pertaining to the
lease of the Property and no other agreements are effective.  All amendments to this Lease shall be in writing
and singed by all parties.  Any other
attempted amendment shall be void.


 


Section 13.06.  Notices.  All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by national
overnight carrier or certified mail, return receipt requested, postage
prepaid.  Notices to Tenant shall be
delivered to the address specified in Section 1.03 above.  Notices to Landlord shall be delivered to the
address specified in Section 1.02 above. 
All notices shall be effective upon delivery.  Either party may change its notice address
upon written notice to the other party.


 


Section 13.07.  Waivers.  All waivers must be in writing and signed by
the waiving party.  Landlord’s failure to
enforce any provision of this Lease or its acceptance of rent shall not be a waiver
and shall not prevent Landlord from enforcing that provision or any other
provision of this Lease in the future. 
no statement on a payment check from Tenant or in a letter accompanying
a payment check shall be binding on Landlord. 
Landlord may, with or without notice to Tenant, negotiate such check
without being bound to the conditions of such statement.


 


Section 13.08.  No Recordation.  Tenant shall not record this Lease without
prior written consent from Landlord. 
However, either Landlord or Tenant may require that a “Short Form”
memorandum of this Lease executed by both parties be recorded.  The party requiring such recording shall pay
all transfer taxes and recording fees.


 


Section 13.09.  Binding Effect; Choice of
Law.  This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant.  However, Landlord shall have no
obligation to Tenant’s successor unless the rights or interests of Tenant’s
successor are acquired in accordance with the terms of this Lease.  The laws of the state in which the Property
is located shall govern this Lease.


 


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Section 13.10.  Corporate Authority;
Partnership Authority.  If
Tenant is a corporation, such corporation represents and warrants that each
person signing this Lease on behalf of Tenant has full authority to do so and
that this Lease binds the corporation. 
Within thirty (30) days after this Lease is signed, Tenant shall deliver
to Landlord a certified copy of a resolution of Tenant’s Board of Directors
authorizing the execution of this Lease or other evidence of such authority
reasonably acceptable to Landlord.  If
Tenant is a partnership, each person or entity signing this Lease for Tenant
represents and warrants that he or it is a general partner of the partnership,
that he or it has full authority to sign for the partnership and that this
Lease binds the partnership and all general partners of the partnership.  Tenant shall give written notice to Landlord
of any general partner’s withdrawal or addition.  Within thirty (30) days after this Lease is
signed, Tenant shall deliver to Landlord a copy of Tenant’s recorded statement
of partnership or certificate of limited partnership.


 


Section 13.11.  Joint and Several Liability.  Intentionally
Deleted.


 


Section 13.12.  See
Addendum Section 13.12.


 


Section 13.13.  Execution of Lease.  This Lease may be executed in counterparts
and, when all counterpart documents are executed, the counterparts shall
constitute a single binding instrument. 
Landlord’s delivery of this Lease to Tenant shall not be deemed to be an
offer to lease and shall not be binding upon either party until executed and
delivered by both parties.


 


Section 13.14.  Survival.  All representations and warranties of
Landlord and Tenant shall survive the termination of this Lease.


 


ARTICLE FOURTEEN:  BROKERS


 


Section 14.01.  Broker’s Fee.  When this Lease is signed by and delivered to
both Landlord and Tenant, Landlord shall pay a real estate commission to
Landlord’s Broker named in Section 1.08 above, if any, as provided in the
written agreement between Landlord and Landlord’s Broker, or the sum stated in Section 1.09
above for services rendered to Landlord by Landlord’s Broker in this
transaction.  Landlord shall pay Landlord’s
Broker a commission if Tenant exercises any option to extend the Lease Term or
to buy the Property, or any similar option or right which Landlord may grant to
Tenant, or if Landlord’s Broker is the procuring cause of any other lease or
sale entered into between Landlord and Tenant covering the Property.  Such commission shall be the amount set forth
in Landlord’s Broker’s commission schedule in effect as of the execution
of this Lease.  If a Tenant’s Broker is
named in Section 1.08 above, Landlord’s Broker shall pay an appropriate
portion of its commission to Tenant’s Broker if so provided in any agreement
between Landlord’s Broker and Tenant’s Broker. 
Nothing contained in this Lease shall impose any obligation on Landlord
to pay a commission or fee to any party other than Landlord’s Broker.


 


Section 14.02.  Protection of Brokers.  If Landlord sells the Property, or assigns
Landlord’s interest in this Lease, the buyer or assignee shall, by accepting
such conveyance of the Property or assignment of the Lease, be conclusively
deemed to have agreed to make all payments to Landlord’s Broker thereafter
required of Landlord under this Article Fourteen.  Landlord’s Broker shall have the right to
bring a legal action to enforce or declare rights under this provision.  The prevailing party in such action shall be
entitled to reasonably attorneys’ fees to be paid by the losing party.  Such attorneys’ fees shall be fixed by the
court in such action.  This Paragraph is
included in this Lease for the benefit of Landlord’s Broker.


 


Section 14.03.  Broker’s Disclosure of
Agency.  Landlord’s Broker
hereby discloses to Landlord and Tenant and Landlord and Tenant hereby consent
to Landlord’s Broker acting in this transaction as the agent of (check one):


 


ý            Landlord
exclusively; or


 


o            both
Landlord and Tenant.


 


Section 14.04.  No Other Brokers.  Tenant represents and warrants to Landlord
that the brokers named in Section 1.08 above are the only agents, brokers,
finders or other parties with whom Tenant has dealt who are or may be entitled
to any commission or fee with respect to this Lease or the Property.


 


ADDITIONAL PROVISIONS MAY
BE SET FORTH IN A RIDER OR RIDERS ATTACHED HERETO OR IN THE BLANK SPACE
BELOW.  IF NO ADDITIONAL PROVISIONS ARE
INSERTED, PLEASE DRAW A LINE THROUGH THE SPACE BELOW.


 


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Landlord and Tenant have
signed this Lease at the place and on the dates specified adjacent to their
signatures below and have initialed all Riders which are attached to or incorporated
by reference in this Lease.


 


 


	
   

  	
   

  	
  “LANDLORD”

  
	
   

  	
   

  
	
  Signed on

  	
   

  	
  , 19

  	
   

  	
   

  	
  MAJESTIC-MAPA PROPERTIES, LLC, a

  California limited liability company

  
	
   

  	
   

  
	
  at

  	
   

  	
  .

  	
  By:

  	
  MAJESTIC REALTY CO., a California

  corporation, its manager

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David A. Wheeler

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jay H. Bradford

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Executive Vice President and Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  “TENANT”

  
	
   

  	
   

  
	
  Signed on

  	
   

  	
  , 19

  	
   

  	
   

  	
  GILEAD SCIENCES, Inc. a Delaware
  corporation

  
	
   

  	
   

  
	
  at

  	
   

  	
  .

  	
   

  	
  By:

  	
  /s/ Anthony D. Caracciolo

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mark L. Perry

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Executive Vice President, Operations

  
												



 


IN ANY REAL ESTATE
TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A PROFESSIONAL, SUCH AS A
CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON WITH EXPERIENCE IN EVALUATING
THE CONDITION OF THE PROPERTY, INCLUDING THE POSSIBLE PRESENCE OF ASBESTOS,
HAZARDOUS MATERIALS AND UNDERGROUND STORAGE TANKS.


 


THIS PRINTED FORM LEASE
HAS BEEN DRAFTED BY LEGAL COUNSEL AT THE DIRECTION OF THE SOUTHERN CALIFORNIA
CHAPTER OF THE SOCIETY OF INDUSTRIAL AND OFFICE REALTORS,® INC.  NO REPRESENTATION OR RECOMMENDATION IS MADE
BY THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF INDUSTRIAL AND OFFICE
REALTORS,® INC., ITS LEGAL COUNSEL, THE REAL ESTATE BROKERS NAMED HEREIN, OR
THEIR EMPLOYEES OR AGENTS, AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX
CONSEQUENCES OF THIS LEASE OR OF THIS TRANSACTION.  LANDLORD AND TENANT SHOULD RETAIN LEGAL
COUNSEL TO ADVISE THEM ON SUCH MATTERS AND SHOULD RELY UPON THE ADVICE OF SUCH
LEGAL COUNSEL.


 


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